United States District Court, D. Colorado
Kathleen M. Tafoya Magistrate Judge
This matter is before the court on “Defendant’s Motion to Amend Answer to Assert an Additional Defense, ” (Doc. No. 32), to which Plaintiff has responded (Doc. No. 37) and Defendant has replied. (Doc. No. 43.)
Plaintiff filed her complaint on March 9, 2015. (See generally Doc. 1 “Comp.”) By this action, Plaintiff asserts that Defendant violated the Americans with Disabilities Act, 42 U.S.C. §12101, et seq. and the Colorado Anti-Discrimination Act (“CADA”), Colo. Rev. Stat. § 24-34-301, et seq. She also asserts a claim for wrongful discharge in violation of Colorado public policy and intentional infliction of emotional distress. Defendant seeks to add an affirmative defense relative only to Plaintiff’s claim for intentional infliction of emotional distress. Therefore, the court will set forth those facts pertinent to this claim.
In her Complaint, Plaintiff sets forth the following allegations: (1) Defendant disciplined her for visiting her doctor (Comp. at 5-6, 9); (2) Defendant disciplined her for taking medical leave ( Id. at 5-6, 9); (3) Defendant yelled at her (Id. at 4, 9); (4) On November 18, 2013, Bret Martin, one of Defendant’s owners, threw papers at Plaintiff, telling her to “take the God damn thing” (Id. at 4); (5) On November 20, 2013, Mr. Martin escalated a disagreement with Plaintiff by standing over her and yelling, hitting a wall and shouting obscenities (Id. at 4); (6) Defendant engaged in the aforementioned actions knowing that Plaintiff was suffering from bi-polar disorder, had recently been in an automobile accident and had a family member threaten suicide (Id. at 3, 7, 9); (7) Defendant terminated her employment when she was in the hospital on suicide watch by having its attorney deliver a termination letter to her home (Id. at 6-7, 9). By this motion, Defendant seeks to assert the defense that the Colorado Worker’s Compensation Act is Plaintiff’s exclusive remedy for her intentional infliction of emotional distress claim.
A. Fed.R.Civ.P. 16 The Scheduling Order entered in this case set a deadline of August 3, 2015 for the parties to amend pleadings. (Doc. No. 14 at 13.) Defendant did not file its request to amend until December 3, 2015, but contends it did not learn of the basis for the Worker’s Compensation Act defense until he received certain of Plaintiff’s discovery responses and took Plaintiff’s deposition in October 2015. Because Defendant filed its motion after the deadline, the court employs a two-step analysis, first determining whether Defendant has shown good cause to modify the scheduling order under Federal Rule of Civil Procedure 16(b), and then evaluating whether Defendant has satisfied the standard for amendment of pleadings under Federal Rule of Civil Procedure 15(a). This court has stated:
Rule 16(b)'s “good cause” standard is much different than the more lenient standard contained in Rule 15(a). Rule 16(b) does not focus on the bad faith of the movant, or the prejudice to the opposing party. Rather, it focuses on the diligence of the party seeking leave to modify the scheduling order to permit the proposed amendment. Properly construed, “good cause” means that the scheduling deadlines cannot be met despite a party’s diligent efforts. In other words, this court may modify the schedule on a showing of good cause if [the deadline] cannot be met despite the diligence of the party seeking the extension.
Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (citations and internal quotations omitted).
Plaintiff does not challenge Defendant’s stated good cause for the late nature of its request to amend its pleading. Thus, the court finds Defendant has shown good cause to amend the scheduling order and request to amend its pleading.
B. Fed.R.Civ.P. 15
Once Defendant has shown good cause for modifying the scheduling order, it must also satisfy the requirements of Rule 15(a) for amending the pleadings. Under Rule 15(a), a court should allow a party to amend its pleadings “when justice so requires.” Fed.R.Civ.P. 15(a). The grant or denial of an opportunity to amend is within the discretion of the court, but “outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). However, “Rule 15(a) does not restrict a party's ability to amend its pleadings to a particular stage in the action.” Minter, 451 F.3d at 1205.
Plaintiff’s only argument against Defendant’s request to add this defense is based upon futility. (See generally Doc. No. 37.) The applicable standard for assessing the futility of a proposed amendment is not entirely settled. Defendant cites to case law indicating that a proposed amendment should be considered futile when it would not withstand a motion to dismiss. (Doc. No. 43 at 2) (citing Corp. Stock Transfer, Inc. v. AE Biofuels, Inc., 663 F.Supp.2d 1056, 1061 (D. Colo. 2009)). The Tenth Circuit has indicated that proposed amendments are futile when the amended pleading “would be subject to dismissal for any reason, including that amendment would not survive a motion for summary judgment.” Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1240-41 (10th Cir. 2001). Notwithstanding Watson, the Tenth Circuit has at other times indicated that “[t]he futility question is functionally equivalent to the question of whether a complaint may be dismissed for failure to state a claim.” Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir.1999). Other courts have attempted to resolve this seeming conflict by considering the stage of the litigation before deciding which standard to apply. See Street v. Curry Bd. of Cnty. Comm’rs, No. Civ. 06-0776 JB/KBM, 2008 WL 2397671, at *13 (D.N.M. Jan. 30, 2008). Nevertheless, the court finds it need not resolve this apparent conflict because, as discussed infra, even applying a summary judgment standard, the court finds the proposed amendment is not futile.
Plaintiff relies on Archer v. Farmer Bros. Co., 70 P.3d 495 (Colo.App. 2002) to argue it would be futile to allow Defendant’s proposed amendment because the “Colorado Court of Appeals has explicitly held that the [Worker’s Compensation] Act provides no defense to an outrageous conduct claim based on the termination of an employee who is on medical leave.” (Doc. No. 37 at 1.) In Archer, the plaintiff asserted an intentional infliction of emotional distress claim against his employer following his termination. Id. at 497-98. According to ...