United States District Court, D. Colorado
January 9, 2017
THOMAS HOOTON, JENNIFER HOOTON, and CYCLONE ENTERPRISES, INC., Plaintiffs,
NAOMI WOOD, SEAN WOOD, NAOMI I. WOOD TRUST, and JOHN JOHNSON, Defendants,
EMPLOYERS MUTUAL CASUALTY CO., and CYCLONE ENTERPRISES, INC., d/b/a Kilthau Transports, Intervenor Plaintiffs.
REPORT AND RECOMMENDATION ON MOTION REQUESTING
SUMMARY JUDGMENT WITH SUPPORTING AUTHORITY (DOCKET NO. 57)
AND HOOTONS' MOTION FOR LEAVE TO FILE SECOND AMENDED
COMPLAINT (DOCKET NO. 63)
Michael J. Watanabe United States Magistrate Judge
case is before the Court pursuant to an Order Referring Case
to Magistrate Judge entered by Judge Lewis T. Babcock on
October 16, 2015 (Docket No. 26), the Memorandum (Docket No.
58) referring the Motion for Summary Judgment With Supporting
Authority filed by Defendants Naomi Woods and Naomi I. Wood
Trust (Docket No. 57) (the “Motion for Summary
Judgment”), and the Memorandum (Docket No. 65)
referring the Hootons' Motion for Leave to File Second
Amended Complaint (Docket No. 63) (the “Motion to
Amend”). The Court has reviewed the parties'
filings, taken judicial notice of the Court's entire file
in this case, and considered the applicable Federal Rules of
Civil Procedure and case law. Now being fully informed the
Court makes the following report and recommendation.
bring negligence claims against Defendants relating to an
incident that occurred on November 28, 2012. Plaintiff
Jennifer Hooton brings a loss of consortium claim against
Defendants. On November 28, 2012, Plaintiff Tom Hooton was
driving a semi-tractor on Colorado Highway 52 and saw a
pickup truck driven by Defendant John Johnson backing into
his lane of travel. Mr. Hooton changed lanes to avoid a
collision with the pickup truck and collided with a black cow
that had escaped from pasture land.
semi-tractor rolled upside down and Mr. Hooton suffered
for Summary Judgment (Docket No. 57)
Motion to Amend seeks to add one claim for a finding of joint
liability under Colo. Rev. Stat. § 13-21-11.5(4) against
Defendants Naomi Wood, Naomi I. Wood Trust, and Shawn Wood.
In the Motion for Summary Judgment, Defendants Naomi Wood and
Naomi I. Wood Trust seek summary judgment of the negligence
claims asserted against them.
circumstances, when a motion to amend is granted, any pending
dispositive motions are denied as moot because they are
directed at a pleading that is no longer the operative
pleading. See, e.g. Martinez v. Spa Motel, No.
15-cv-00358-KLM, 2015 WL 6750269, at *5 (D. Colo. Nov. 5,
2015) (denying motion for summary judgment as moot);
Dempsey v. Jason's Premier Pumping Servs., LLC,
No. 15-cv-00703-CMA-NYW, 2015 WL 4761191, at *2 (D. Colo.
Aug. 13, 2015) (mooting a partial motion for summary judgment
due to the filing of an amended complaint); Dicino v.
Garcia, No. 12-cv-01274-WYD-KLM, 2014 WL 3746961, at *2
(D. Colo. July 30, 2014). Therefore, in many cases, the Court
will address a motion to amend prior to addressing any
dispositive motions. However, in this case, in keeping with
Fed.R.Civ.P. 1, it is most efficient to address both motions
together because if the Motion for Summary Judgment is
granted, the Motion to Amend, which seeks to add a joint
liability claim that includes the two Defendants moving for
summary judgment and Defendant Shawn Wood, would be rendered
moot because two of the three Defendants against whom
Plaintiffs seek joint liability as to the allegedly negligent
acts would be granted summary judgment. Alternatively, if the
Motion for Summary Judgment is not granted, the Court can
then address the Motion to Amend as it would in the normal
Judge Babcock has explained:
The purpose of a summary judgment motion under Rule 56 is to
assess whether trial is necessary. White v. York
Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Rule
56 provides that summary judgment shall be granted if the
pleadings, depositions, answers to interrogatories,
admissions, or affidavits show that there is no genuine issue
of material fact and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party
has the burden of showing that there are issues of material
fact to be determined. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
A party seeking summary judgment bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of the
pleadings, depositions, interrogatories, and admissions on
file together with affidavits, if any, which it believes
demonstrate the absence of genuine issues for trial.
Celotex, 477 U.S. at 323; Mares v. ConAgra
Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir. 1992).
Once a properly supported summary judgment motion is made,
the opposing party may not rest on the allegations contained
in his complaint, but must respond with specific facts
showing the existence of a genuine factual issue to be tried.
Otteson v. United States, 622 F.2d 516, 519 (10th
Cir. 1980); Fed.R.Civ.P. 56(e).
If a reasonable juror could not return a verdict for the
non-moving party, summary judgment is proper and there is no
need for a trial. Celotex, 477 U.S. at 323. The
operative inquiry is whether, based on all documents
submitted, reasonable jurors could find by a preponderance of
the evidence that the [moving party] is entitled to a
verdict. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). However, summary judgment should not enter
if, viewing the evidence in a light most favorable to the
nonmoving party and drawing all reasonable inferences in that
party's favor, a reasonable jury could return a verdict
for that party. Anderson, 477 U.S. at 252;
Mares, 971 F.2d at 494.
Parker Excavating, Inc. v. Lafarge West, Inc., No.
14-cv-01534-LTB-MJW, 2016 WL 1756440, at *3 (D. Colo. May 3,
2016). As the Supreme Court has made clear, “at the
summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 250.
Naomi Wood and Naomi I. Wood Trust seek summary judgment on
the negligence claims alleged against them. “To
establish a prima facie case for negligence, a plaintiff must
show that the defendant owed a legal duty of care to the
plaintiff, the defendant breached that duty, the plaintiff
suffered injury, and the defendant's breach caused the
plaintiff's injury.” Ryder v. Mitchell, 54
P.3d 885, 889 (2002). “If a negligence action is based
on facts that do not impose a duty of care upon a defendant
for a plaintiff's benefit, the claim will fail.”
Id. Defendants Naomi Wood and Naomi I. Wood Trust
argue that they owed no legal duty to Plaintiffs and,
therefore, are entitled to summary judgment. (Docket No. 57
at 4-6). Defendant Naomi Wood argues that she sold the cattle
in question to Shawn Wood in August 2012 and, as a result,
she was not responsible for any injury allegedly caused by
the cattle. (Id. at 4). She further argues that she
was not responsible for management or maintenance of the
grazing land because the land was quitclaimed to Defendant
Naomi I. Wood Trust in 2010. (Id. at 5). Defendant
Naomi I. Wood Trust argues that it was not in control of the
grazing land because it had leased the land to Shawn Wood and
that Shawn Wood was responsible for maintaining the land and
the fences surrounding the land. (Id. at 5).
Intervenor Plaintiffs' argue that there is a genuine
issue of material dispute regarding ownership of the cattle.
(Docket No. 59 at 2). They further argue that the alleged
lease agreement is the subject of a factual dispute.
(Id. at 3). Plaintiffs Tom and Jennifer Hooton make
the same arguments. (Docket No. 60 at 3-4).
explained above, the Court cannot grant summary judgment if
there is a genuine issue of material fact. In this case, the
factual issues identified by the parties are material because
they are “facts that might affect the outcome of the
suit under the governing law . . . .”
Anderson, 477 U.S. at 248. With regard to the
requirement that the dispute be genuine, the Supreme Court
has explained that a dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
Accordingly, the Court turns to the evidence submitted by the
parties to determine if there is a genuine dispute regarding
the ownership of the cattle and the lease arrangement.
Shawn Wood testified that he purchased the cattle from his
mother, Defendant Naomi Wood in August of 2012. (Docket No.
57-1 34:11-14). Both Defendant Shawn Wood and Defendant Naomi
Wood also submitted affidavits to this effect.(Docket No. 57-2
& 57-3). However, as Shawn Wood also testified, shortly
after the November 28, 2012 incident, the cattle were sold
under Naomi Wood's name and the proceeds were paid to
Naomi Wood, not Shawn Wood. (Docket No. 59-1 42:11-21,
47:12-20). In addition, Naomi Wood testified that on the
night of the incident, she called 911 and told that
dispatcher that “some of our cattle are out.”
(Docket No. 59-2 10:19-11:4). She also told the dispatcher
that “I guess it's two black cows. Oh, those two
darn things we can't keep in.” (Id.
11:7-12). Later on the night of November 28, 2012, Naomi Wood
called 911 again to ask about the accident and stated:
“I called earlier, and I had a couple of cows
out.” (Id. 12:24-13:18). Mr. Wood also
testified that he and his mother, Naomi Wood, both agreed to
sell the cattle in November 2012 because they were upset
about the November 28 incident. (Docket No. 59-1 44:9-16).
Naomi Wood testified that even though she sold the cattle to
Shawn, he did not pay her. Instead, she was paid from the
sale of the cattle to a third party after the November 28,
2012 incident. (Docket No. 59-2 15:22-16:18). Based on the
above testimony, the Court agrees with Plaintiffs and
Intervenor Plaintiffs that there is a genuine dispute
regarding the ownership of the cattle. As a result, the Court
concludes that Defendant Naomi Wood is not entitled to
summary judgment on the negligence claim asserted against her
to the extent it relates to the cattle and the owner's
Lease of Property
noted above, Defendant Naomi Wood maintains that she
quitclaimed the grazing property to Defendant Naomi I. Wood
Trust. Defendants provided the Quit Claim Deed, which shows
that on March 18, 2010, in exchange for ten dollars, Naomi
Wood granted a quit claim deed to Naomi I. Wood Trust as to
the grazing land. (Docket No. 57-5). Intervenor Plaintiffs
argue that despite the quit claim deed, Defendants have not
demonstrated in their Motion for Summary Judgment that the
transfer of property to the trust “necessarily
insulates Ms. Wood from potential liability.” (Docket
No. 59 at 3). The Court agrees with this. Defendants cite to
one case to support their position that the quit claim deed
means that Naomi Wood “had no legal control over the
pasture land, and thus owed no duty to Plaintiffs regarding
its maintenance and management.” (Docket No. 57 at 5).
This case, Jordan v. Panorama Orthopedics & Spine
Center, PC, 346 P.3d 1035 (Colo. 2015), makes clear
that, under the Premises Liability Act, an individual who can
be held responsible for the condition of land as a
“landowner” includes persons responsible for the
condition of the property, authorized agents, persons in
possession, and others. See also Colo. Rev. Stat.
§ 13-21-115(1). The facts offered by Defendants in
support of their Motion for Summary Judgment do not clarify
whether Naomi Wood falls within this broader definition.
regard to the alleged lease agreement between the trust and
Shawn Wood, the evidence is muddy. There is no written
agreement (Docket No. 59-2 19-21) and when questioned about
the arrangement he had with either Naomi or the trust, Mr.
Wood testified that they “didn't really have any [
] arrangement.” (Docket No. 59-1 48:6-21). Naomi Wood
testified that it was a verbal agreement in which “He
had cattle and I had cattle. He took care of my cattle, and
he could run - he ran his cattle too, so . . . And then I
decided to sell him all my cattle.” (Docket No. 59-2
25:24-26:6). This verbal agreement does not establish who was
legally responsible for maintenance and management of the
these reasons, the Court concludes that Defendant Naomi Wood
and Defendant Naomi I Wood Trust are not entitled to summary
judgment on the negligence claim asserted against them to the
extent it relates to the maintenance and management of the
grazing land. Therefore, the Court recommends that the Motion
for Summary Judgment be DENIED in all respects.
to Amend (Docket No. 63)
the Court concludes that the Motion for Summary Judgment
should be denied, it next turns to the Motion to Amend. As
noted above, Plaintiffs seek leave to add a third claim for
relief seeking a finding of joint liability against
Defendants Shawn Wood, Naomi Wood, and the Naomi I. Wood
Trust pursuant to Colo. Rev. Stat. § 13-21- 111.5(4).
Defendants argue that the motion should be denied because it
is futile, untimely, and unduly prejudicial. (Docket No. 66
initial matter, the Court notes that the deadline for
amendment of pleadings was November 30, 2015 (Docket No. 25
§ 9) and the instant motion was filed on September 22,
2016. In Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l
Bank Ass'n, 771 F.3d 1230, 1241 (10th Cir. 2014),
the Tenth Circuit held that “[a]fter a scheduling order
deadline, a party seeking leave to amend must demonstrate (1)
good cause for seeking modification under Fed.R.Civ.P.
16(b)(4) and (2) satisfaction of the Rule 15(a)
standard.” Id. at 1240 (citing Pumpco,
Inc. v. Schenker Int'l, Inc., 204 F.R.D. 667, 668
(D.Colo.2001)). Whether to grant leave to amend the pleadings
“is within the discretion of the trial court.”
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204-05
(10th Cir. 2006). Rule 15 instructs that courts should
“freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a)(2). When the deadline for
amendment of pleadings in the scheduling order has passed,
however, Rule 16(b) applies and states that a scheduling
order deadline “may be modified only for good cause and
with the judge's consent.” Fed. R. Civ. P 16(b)(4).
argue that because the “factual basis for the claim
under § 13-21-111.5(4), C.R.S. was not available until
the defendants were deposed, well after the original deadline
was set for amendment of pleadings, ” there is good
cause to extend the scheduling order deadline. (Docket No. 67
at 3). The Court agrees that “if a plaintiff learns new
information through discovery, ” Rule 16's good
cause requirement is met. Gorsuch, 771 F.3d at 1240.
to Fed.R.Civ.P. 15(a)(2), “[t]he court should freely
give leave [to amend] when justice so requires.”
“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.” Bylin v. Billings, 568 F.3d 1224,
1229 (10th Cir. 2009) (quoting Frank v. U.S. West,
Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)). “The
liberal granting of motions for leave to amend reflects the
basic policy that pleadings should enable a claim to be heard
on its merits.” Carr v. Hanley, 2009 WL
4693870, *1 (D. Colo. Dec. 3, 2009) (quoting Calderon v.
Kansas Dep't of Soc. & Rehab. Servs., 181 F.3d
1180, 1186 (10th Cir. 1999)). The Court also notes that the
Federal Rules of Civil Procedure in general, and Rule 15 in
particular, favor resolving disputes on their merits, which
counsels in favor of allowing amendment and permitting
defendants to file appropriate motions to dismiss or for
summary judgment. Gocolay v. New Mexico Federal Sav.
& Loan Ass'n, 968 F.2d 1017, 1021 (1992)
argue that Plaintiffs have unduly delayed and the Motion to
Amend is untimely because the information Plaintiffs allege
forms the basis for their proposed third claim was derived
from depositions that took place on January 26, 2016 “a
full 241 days before” the Motion to Amend was filed.
(Docket No. 66 at 5). Plaintiffs maintain that satisfying
Rule 16's standard, which they describe as “more
stringent, ” means that they have satisfied Rule
15's analysis of whether amendment is untimely or unduly
delayed. It is true that “Rule 16 erects a more
stringent standard [than Rule 15(a) ], requiring some
persuasive reason as to why the amendment could not have been
effected within the time frame established by the
court.” Colorado Visionary Acad. v. Medtronic,
Inc., 194 F.R.D. 684, 687 (D.Colo.2000). However,
Plaintiffs must still address the requirements of Rule 15. If
Rule 16 was simply more stringent than Rule 15 as a general
matter, there would be no reason to engage in both analyses.
Rule 15, untimeliness alone may be a sufficient basis for
denying a party leave to amend. See Duncan v. Manager,
Dep't of Safety, 397 F.3d 1300, 1315 (10th Cir.
2005); Hayes v. Whitman, 264 F.3d 1017, 1026 (10th
Cir. 2001). The important inquiry is not simply whether
Plaintiffs have delayed, but whether such delay is undue.
Minter, 451 F.3d at 1206. Delay is undue “when
the party filing the motion has no adequate explanation for
the delay, ” Frank v. U.S. West, Inc., 3 F.3d
1357, 1365-66 (10th Cir. 1993), or when “the party
seeking amendment knows or should have known of the facts
upon which the proposed amendment is based but fails to
include them in the original complaint.” Las Vegas
Ice & Cold Storage Co. v. Far West Bank, 893 F.2d
1182, 1185 (10th Cir. 1990) (quoting State Distribs.,
Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416
(10th Cir. 1984)). Here, Plaintiffs may not have known of the
new information until January 26, 2016, but they should
provide some explanation for why they did not seek leave to
amend until September 22, 2016. However, “[l]ateness
does not of itself justify the denial of the
amendment.” Minter v. Prime Equipment Co., 451
F.3d 1196, 1205 (10th Cir. 2006) (quotation marks and
citation omitted). Instead, the Court “focuses
primarily on the reasons for the delay.” Id.
at 1206. The problem in this case is that Plaintiffs offer no
reason whatsoever. That is not sufficient to meet Rule
regard to Defendants' argument that amendment is futile,
Defendants rely on the arguments raised in the Motion for
Summary Judgment. (Docket No. 66 at 2-4). The Court has
addressed the issues raised in the Motion for Summary
Judgment above and will not revisit them now.
the Court notes that prejudice to the opposing party is the
single most important factor in deciding whether to allow
leave to amend. Minter v. Prime Equip. Co., 451 F.3d
1196, 1207 (10th Cir. 2006). Defendants argue that they will
be prejudiced because briefing of the Motion to Amend will
not be concluded before the close of discovery and they may
need to take additional discovery if amendment is allowed.
(Docket No. 6 at 6-7). Essentially, they maintain that the
delay between January 26, 2016 and the filing of the Motion
to Amend on September 22, 2016 has foreclosed their ability
to take discovery regarding the new claim. Plaintiffs
maintain that Defendants will not be prejudiced because the
new “claim is based entirely on [the] words of the
defendants and Shawn Wood's girlfriend.” (Docket
No. 67 at 9). They further maintain that Defendants have
identified no additional discovery that is needed, but state
that they will not object to additional discovery if
amendment is allowed. As Plaintiffs' note, the new claim
would be a claim for joint liability which would be premised
on the facts underlying their existing negligence claim.
While the Court agrees that it is possible that Defendants
will not need additional discovery, it is possible that they
will want to re-depose certain parties to establish whether
the requirements of Colo. Rev. Stat. § 13-21-111.5(4)
are met. Colo. Rev. Stat. § 13-21-111.5(4) states that
to impose joint liability on two or more persons, those
persons must “consciously conspire and deliberately
pursue a common plan or design to commit a tortious
act.” Furthermore, the potential prejudice of
Defendants having to engage in further discovery is due to
the unexplained delay in seeking leave to amend.
Plaintiffs fail to offer any reason to explain the delay from
January 26 to September 22, 2016, and because that delay may
prejudice Defendants, the Court recommends that the Motion to
Amend be DENIED.
foregoing reasons, the undersigned RECOMMENDS that the Motion
for Summary Judgment With Supporting Authority (Docket No.
57) filed by Defendants Naomi Wood and Naomi I. Wood Trust be
DENIED and that the Hootons' Motion For Leave to File
Second Amended Complaint (Docket No. 63) be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P.
72(b)(2), the parties have fourteen (14) days after service
of this recommendation to serve and file specific written
objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another
party's objections within fourteen (14) days after being
served with a copy. The District Judge need not consider
frivolous, conclusive, or general objections. A party's
failure to file and serve such written, specific objections
waives de novo review of the recommendation by the District
Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985),
and also waives appellate review of both factual and legal
questions, Makin v. Colo. Dep't of Corr., 183
F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412-13 (10th Cir. 1996).
 The Court does not credit
Defendants' affidavits because they contradict these
individuals' deposition testimony. At their depositions,
it was made clear that the questions regarding ownership of
the cattle and the lease arrangement were far from clear-cut.
As the Tenth Circuit has explained,
Sham affidavits, though “unusual, ” arise
when a witness submits an affidavit that contradicts the
witness's prior testimony. Law Co. v. Mohawk Const.
& Supply Co., 577 F.3d 1164, 1169 (10th Cir.2009).
Although “[a]n affidavit may not be disregarded solely
because it conflicts with the affiant's prior sworn
statements, ” we may nonetheless disregard a
conflicting affidavit if it “constitutes an attempt to
create a sham fact issue.” Id. (quotations
omitted). “In determining whether an affidavit creates
a sham fact issue, we consider whether: ‘(1) the
affiant was cross-examined during his earlier testimony; (2)
the affiant had access to the pertinent evidence at the time
of his earlier testimony or whether the affidavit was based
on newly discovered evidence; and (3) the earlier testimony
reflects confusion which the affidavit attempts to
explain.'” Id. (quoting Ralston v.
Smith & Nephew Richards, Inc., 275 F.3d 965, 973
(10th Cir. 2001)).
Knitter v. Corvias Military Living, LLC, 758
F.3d 1214, 1218 n.3 (10th Cir. 2014).