United States District Court, D. Colorado
RECOMMENDATION ON MOTION TO AMEND
Michael E. Hegarty United States Magistrate Judge
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.
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.
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.
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.
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
Modification of the Scheduling Order Pursuant to Rule
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
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.
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).
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.
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 ...