United States District Court, D. Colorado
ORDER ADOPTING MAY 1, 2017 RECOMMENDATION OF
MAGISTRATE JUDGE DENYING PLAINTIFF'S MOTION FOR LEAVE TO
FILE AN AMENDED COMPLAINT
William J. Martínez United States District Judge.
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.
STANDARD OF REVIEW
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
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
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.)
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).)
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.)
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.)
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.
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). 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.”)).
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 ...