United States District Court, D. Colorado
Kathleen M. Tafoya Magistrate Judge
This matter is before the court on Defendants Matthew Capalbo and Kevin Capalbo’s (“Capalbo Defendants”) “Motion for Leave to File Designation of Nonparties at Fault Pursuant to C.R.S. § 13-21-111.5” (Doc. No. 47 [Mot.], filed August 7, 2015). Plaintiffs filed their response on August 28, 2015. (Doc. No. 51 [Resp.].) The Capalbo Defendants filed their reply on September 11, 2015. (Doc. No. 55 [Reply].)
In their Second Amended Complaint, Plaintiffs allege claims against the Capalbo Defendants for wrongful death and negligence and a claim under Colorado’s Premises Liability Act regarding the death of Plaintiffs’ son, who Plaintiffs alleged died from a heroin overdose in the Capalbo Defendants’ garage. (See Doc. No. 58-2 [Second Am. Compl.].)
When they filed their motion, the Capalbo Defendants sought to designate as nonparties “John/Jane Doe” who they contend “provided heroin to Bradley Traenker” and who is wholly or partially at fault for his death. (See Doc. Nos. 47-3.) When they filed their reply, the Capalbo Defendants amended their designation to add Roy Andrew Davies, “Sean, ” and “Macs” based on police records produced by Plaintiffs on September 1, 2015. (See Reply at 2 & Ex. C.)
Federal courts sitting in diversity are bound by state statutes when deciding questions of substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). The “Erie doctrine, ” as it has come to be known, has been interpreted to mean that federal courts are to apply state substantive law, but federal procedural law. Hanna v. Plumer, 380 U.S. 460, 465 (1965). In this case, this court will apply state law with respect to the timeliness and adequacy of notice pursuant to Colo. Rev. Stat. § 13-21-111.5(3)(b). Resolution Trust Corp. v. Deloitte & Touche, 818 F.Supp. 1406, 1407 (D. Colo. 1993).
Colo. Rev. Stat. § 13-21-111.5(3)(b) provides, the “[n]egligence or fault of a nonparty may be considered . . . if the defending party gives notice that a nonparty was wholly or partially at fault within ninety days following commencement of the action unless the court determines that a longer period is necessary.” Upon such a designation, the jury may consider those nonparties when apportioning liability at trial. Antolovich v. Brown Group Retail, Inc., 183 P.3d 582, 591-592 (Colo.App. 2007); Barton v. Adams Rental, Inc., 938 P.2d 532, 535 (Colo. 1997). Nonparty designation “ensures that parties found liable will not be responsible for more than their fair share of the damages.” Pedge v. RM Holdings, Inc., 75 P.3d 1126, 1128 (Colo.App. 2002).
A. Timeliness of Designations
Plaintiffs commenced this action on April 9, 2015. (Doc. No. 1.) Thus, any designation of nonparties of fault should have been filed on or before July 8, 2015. The Capalbo Defendants state that they did not timely file their designation of nonparties “[b]ecause of the procedural history of this matter, ” including Defendant Kevin Capalbo’s previously-filed motion to dismiss and the Capalbo Defendants’ recently-filed motion to dismiss Plaintiffs’ Amended Complaint. (Mot., ¶ 7.)
Plaintiffs argue that Defendant has not shown the excusable neglect normally required under Fed.R.Civ.P. 6(b) to extend the time required for a filing. (Resp. at 3-6.) However, Colorado’s corresponding rule, C.R.C.P. 6(b), by its own terms, applies only to requests to enlarge deadlines set forth in the rules of civil procedure, a notice under those rules, or a court order and does not apply to statutorily established time periods. See C.R.C.P. 6(b). Rather, when considering the propriety of an extension of time pursuant to Colo. Rev. Stat. § 13-21-111.5(3)(b),
[t]he Colorado Supreme Court has identified three factors to be considered in determining whether to extend the 90 day period: (1) whether the neglect was excusable; (2) whether the party making the late designation has alleged a meritorious defense or claim; and (3) whether relief from the deadline would be inconsistent with equitable considerations.
Daugherty v. Bissell, Case No. 08-cv-01931-WYD-BNB, 2009 WL 2853108, at *2 (D. Colo. Sept. 1, 2009) (quoting Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 84 (Colo. 2001)). The moving party has the burden of demonstrating the “necessity” for the requested extension of time to file a designation of nonparties. See Redden, 38 P.3d at 84 (rejecting an untimely designation of nonparties where the movant “made no effort to justify the late filing or support it with specific good cause”).
Here, the Capalbo Defendants have failed to articulate why the “procedural history of this matter” prevented them from timely filing their designation of nonparties. Moreover, the Capalbo Defendants have failed to show why an extension of time to file their designation of nonparties is necessary under Colo. Rev. Stat. § 13-21-111.5(3)(b). Nevertheless, the Capalbo Defendants filed their motion to file their designation only three and one-half weeks late and well before the discovery cutoff, which is now set at April 30, 2016. Moreover, no trial date has been ...