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Gregoire v. AMCO Insurance Company

United States District Court, D. Colorado

June 20, 2017



          Michael E. Hegarty United States Magistrate Judge

         Plaintiff seeks to amend her Complaint to correct factual inaccuracies and add a claim for bad faith breach of insurance contract. Pl.'s Mot. to Amend, ECF No. 30. Because Plaintiff has not demonstrated good cause to extend the deadline for amendment of pleadings under Federal Rule of Civil Procedure 16(b) or established that her proposed amendment would be proper under Rule 15(a), this Court respectfully recommends that Plaintiff's motion be denied.


         Plaintiff filed this case in state court on November 8, 2016. See Compl., ECF No. 5. Plaintiff alleges she suffered $890, 000 in damages as a result of an automobile accident on November 28, 2011. Id. at ¶¶ 1, 17. After Plaintiff settled with the at-fault driver, she submitted a claim for underinsured motorist benefits to Defendant, her insurer. Id. at ¶¶ 20, 23, 24. Defendant responded by offering Plaintiff $5, 500 of her $100, 000 in underinsured motorist coverage. Id. at ¶¶ 16, 25. Accordingly, Plaintiff asserts causes of action for breach of insurance contract and unreasonable delay or denial of insurance benefits. Id. at ¶¶ 39-51. On December 14, 2016, Defendant removed the case to this District. Notice of Removal, ECF No. 1.

         The Court entered a Scheduling Order on February 8, 2017. ECF No. 19. The order set March 20, 2017 as the deadline for amendment of pleadings. Id. at 7. On April 24, 2017, Defendant filed a motion for summary judgment, which seeks dismissal of the case in its entirety. ECF No. 24. According to Defendant, the Court should dismiss the breach of contract claim, because Defendant has paid Plaintiff the full amount of her UIM benefit. Id. at 7-8. Additionally, Defendant contends Plaintiff's claim for unreasonable delay or denial is barred by the statute of limitations. Id. at 8-14. This motion is currently pending before the Honorable Phillip A. Brimmer.

         On May 17, 2017, Plaintiff filed the present Motion to Amend Complaint. ECF No. 30. Plaintiff seeks to correct misstatements and include omitted information that the evidence undisputedly shows. Id. at 1-2. Additionally, Plaintiff attempts to add a claim for bad faith breach of insurance contract. Id. at 2. Defendant filed a response to Plaintiff's motion on June 7, 2017. Def.'s Resp., ECF No. 38. On June 14, 2017, Plaintiff submitted her reply. Pl.'s Reply, ECF No. 39.


         The present motion implicates Federal Rules of Civil Procedure 15 and 16. Because the motion was filed after the deadline for joinder of parties and amendment of pleadings, Plaintiff must demonstrate good cause for modifying the Scheduling Order pursuant to Rule 16(b)(4). Additionally, the motion must comply with the requirements of Rule 15(a) for amendment of pleadings. If the motion “fail[s] to satisfy either factor-(1) good cause or (2) Rule 15(a)-the district court [may] deny[] [the] motion for leave to amend.” Gorsuch, Ltd. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1241 (10th Cir. 2014). After addressing whether it is appropriate to modify the Scheduling Order, the Court will discuss amendment of the Complaint pursuant to Rule

         I. Modification of the Scheduling Order Pursuant to Rule 16(b)

         This Court set March 20, 2017 as the deadline for amendment of pleadings. Scheduling Order 7. Neither party requested an extension of this deadline. Therefore, granting Plaintiff's motion would necessitate an amendment of the Scheduling Order under Rule 16(b), which requires that Plaintiff show good cause. Fed.R.Civ.P. 16(b)(4); Gorsuch, Ltd., 771 F.3d at 1241 (“We now hold that parties seeking to amend their complaints after a scheduling order deadline must establish good cause for doing so.”).

         In order to show good cause under Rule 16(b)(4), Plaintiff “must provide an adequate explanation for any delay” in meeting the Scheduling Order's deadline. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006). If Plaintiff “knew of the underlying conduct but simply failed to raise [the] claims, ” good cause does not exist. Gorsuch, 771 F.3d at 1240. “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.” Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000).

         However, rigid adherence to the Scheduling Order is not advisable. Sil-Flo, Inc. v. SHFC, Inc., 917 F.2d 1507, 1519 (10th Cir. 1990). A failure to seek amendment within the deadline may be excused due to oversight, inadvertence, or excusable neglect. Id. Additionally, “[t]he fact that a party first learns through discovery of information which may lead to amendment of deadlines set forth in the Scheduling Order constitutes good cause . . . .” Riggs v. Johnson, No. 09-cv-01226-WYD-KLM, 2010 WL 1957110, at *3 (D. Colo. Apr. 27, 2010), adopted by 2010 WL 1957099 (D. Colo. May 17, 2010).

         The Court holds Plaintiff has not demonstrated good cause to modify the Scheduling Order. Plaintiff states that she “miss[ed] the deadline set forth in the scheduling order, ” because “Plaintiff's attorney's firm had staff turnover which resulted in the sudden departure of the first two associates to work on the case.” Pl.'s Reply 2. That Plaintiff's counsel had associates leave their firm does not establish that the deadline could not “be met despite the diligence of the party seeking the extension.” Colo. Visionary Academy, 194 F.R.D. at 687 (quoting Dilmar Oil Co. v. Federated Mutual Ins. Co., 986 F.Supp. 959, 980 (D.S.C. 1997)). Indeed, Plaintiff's counsel's failure to meet the deadline, or request an extension of it, due to their associates' decision to seek other employment demonstrates that counsel personally failed to monitor the deadlines in this case. “Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.” Id. (quoting Dilmar Oil Co., 986 F.Supp. at 980) (holding that defense counsel's failure “to do the research necessary to recognize the applicability of the defense they seek to add” was not good cause under Rule 16). To the extent Plaintiff's counsel argue that their associates' departure increased their workload and caused them to miss the deadline, Judge Brimmer's practice standards specifically provide that “the press of business” does not constitute good cause. Civ. Practice Standard I.G.1.

         Moreover, Plaintiff does not contend she learned any of the information which forms the basis for her bad faith claim after filing her initial Complaint. All of the newly added allegations relevant to the bad faith claim involve Defendant's communications with Plaintiff before Plaintiff filed this case. See Proposed Am. Compl. ¶¶ 30-45. Because Plaintiff “knew of the underlying ...

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