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Brandt v. The City of Westminster

United States District Court, D. Colorado

July 19, 2017

ERIC BRANDT, Plaintiff,
THE CITY OF WESTMINSTER, COLORADO, municipality; CHARLES RUSH, in his official and individual capacity; RAY ESSLINGER, in his official and individual capacity; Defendants.


          William J. Martínez United States District Judge.

         This matter is before the Court on the May 1, 2017 Recommendation of United States Magistrate Judge Craig B. Shaffer (“Recommendation, ” ECF No. 41) that Plaintiff's Motion for Leave to File an Amended Complaint (the “Motion, ” ECF No. 24) be denied. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiff filed an objection to the Recommendation. (“Objection, ” ECF No. 48.) For the reasons set forth below, Plaintiff's Objection is overruled, the Magistrate Judge's Recommendation is adopted, and Plaintiff's Motion is denied.


         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” See Lariviere, Grubman & Payne, LLP v. Phillips, 2010 WL 4818101, at *5 (D. Colo. Nov. 9, 2010) (treating motion to amend complaint as a dispositive matter for purposes of Rule 72(b)); see also Cuenca v. Univ. of Kansas, 205 F.Supp.2d 1226, 1228 (D. Kan. 2002) (“When the magistrate judge's order denying a motion to amend . . . effectively removes a . . . claim from the case, it may well be a dispositive ruling that the district court should review de novo.”) An objection to a recommendation is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it “enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” Id. In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. Here, Plaintiff filed a timely objection to Judge Shaffer's Recommendation. Therefore, this Court reviews the issues before it de novo.


         No parties object to the recitation of facts set forth by Judge Shaffer in the May 1, 2017 Recommendation. (See ECF Nos. 41, 48, 51.) Accordingly, the Court adopts and incorporates the “Factual Background” section of the Recommendation as if set forth herein. (ECF No. 41 at 2-6.)

         Briefly, on June 6, 2014, Plaintiff was charged with disorderly conduct for walking on a public sidewalk while holding a large sign that said “Fuck Cops.” (ECF No. 1 ¶ 13.) Plaintiff's “aim in carrying his sign was, and continues to be, spreading awareness of police brutality and misconduct.” (Id. ¶ 16.) As Plaintiff was crossing the street, Defendants Officer Rush and Esslinger approached Plaintiff. (Id. ¶¶ 18, 20.) Officer Esslinger told Plaintiff that “he had been ordered by his superiors to arrest him.” (Id. ¶ 21.) Plaintiff was then detained, patted down, and issued a citation and summons. (Id. ¶¶ 22-24.)

         Based on this course of events, Plaintiff filed the instant action asserting six claims for relief under 42 U.S.C. § 1983, including violations of his First, Fourth, and Fourteenth Amendment rights. (See Id. at 8-14.) In the proposed scheduling order the parties agreed to a September 26, 2016 deadline for joinder of parties and amendment to the pleadings, which was later adopted by Judge Shaffer. (ECF No. 12 at 9; the “Scheduling Order, ” ECF No. 16 at 9.) Towards the end of the Scheduling Order it states that the “order may be altered or amended only upon a showing of good cause.” (ECF No. 16 at 12 (emphasis in the original).)

         The parties exchanged initial disclosures on September 2, 2016. (ECF No. 51 at 4.) In Defendants initial disclosures they listed Officer Carnes as a person “likely to have discoverable information who may be used to support defenses.” (ECF No. 32-1 at 1.) The disclosures also state that Officer William Carnes “spoke with several witnesses on June 6, 2014 in relation to complaints against Plaintiff, ” and that “Officer Carnes may have knowledge and information regarding same and the allegations in Plaintiff's Complaint.” (Id.) Also on September 2, 2016, Defendants disclosed a Westminster Police Case Report, prepared by Officer Carnes, in which he summarizes his contacts with three named individuals who described seeing Plaintiff with his sign. (See ECF No. 32-2.) Lastly, Defendants disclosed an additional supplemental report prepared by Officer Rush, in which he stated that he “learned through Officer Carnes that probable cause for the charge of disorderly conduct existed.” (Id. at 7.)

         On February 21, 2017, Plaintiff moved to amend his Complaint to add Officer Carnes as a defendant. (ECF No. 24.) On April 10, 2017, Judge Shaffer held a hearing on Plaintiff's Motion. (ECF No. 36.) Subsequently, on May 1, 2017, Judge Shaffer issued his Recommendation. (ECF No. 41.) After considering the parties' briefs and oral argument made during the April 10, 2017 hearing, Judge Shaffer recommended that Plaintiff's Motion be denied. (Id. at 2.) To reach that recommendation Judge Shaffer found that Plaintiff failed to demonstrate the diligence required for a finding of good cause under Federal Rule of Civil Procedure 16(b). (Id. at 15.)

         Plaintiff filed his Objection on May 15, 2017 (ECF No. 48), to which Defendants filed a response on May 30, 2017 (ECF No. 51). Plaintiff objects to Judge Shaffer's findings, arguing that he “was diligent in moving to amend his Complaint” and that Judge Shaffer “erred by failing to consider the prejudice to Defendants.” (ECF No. 48 at 4, 8.) The Court will review de novo the portion of the Recommendation to which these specific objections were made.

         III. ANALYSIS

         Where a party seeks to amend its pleadings after the deadline for such amendments set forth in the scheduling order, the Tenth Circuit has not definitively stated whether the “good cause” standard to modify the scheduling order under Rule 16(b) must be met. See Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009). However, the majority of courts have held that the party must meet the two-part test of first showing good cause to amend the scheduling order under Rule 16(b), and then showing that amendment should be allowed under Rule 15(a).[1] Id. (“Most circuits have held that when a party amends a pleading after a deadline set by a scheduling order, Rule 16 and its ‘good cause' standard are implicated. . . . This circuit, however, has not ruled on that question in the context of an amendment to an existing pleading.”) (citing Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 (10th Cir. 2006) (“We do not decide whether a party seeking to amend its pleadings after the scheduling order deadline must show ‘good cause' for the amendment under Rule 16(b) in addition to the Rule 15(a) requirements.”)).

         Under Rule 16(b)(4), the scheduling order “may be modified only for good cause and with the judge's consent, ” requiring the moving party to show that a deadline “cannot reasonably be met despite the diligence of the party seeking the extension.” Fed.R.Civ.P. 16, advisory committee's note. As noted in the Recommendation, in contrast to the more lenient standard of Rule 15(a), Rule “16(b) does not focus on the bad faith of the movant or the prejudice to the opposing party . . . . Properly construed, good cause means that scheduling deadlines cannot be met despite a party's diligent efforts. Carelessness is not compatible with a finding of diligence and offers no reason for a grant ...

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