United States District Court, D. Colorado
JOSEPH A. KOVACH, Plaintiff,
NAVIENT SOLUTIONS, INC., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. Wang, United States Magistrate Judge
Judge Nina Y. Wang This matter comes before the court on
Plaintiff Joseph A. Kovach's (“Plaintiff” or
“Mr. Kovach”) Motion for Leave to Amend Complaint
(the “Motion”). [#35, filed June 30, 2017]. The
undersigned considers the Motion pursuant to 28 U.S.C. §
636(b), the Order of Reference dated December 30, 2016 [#12],
and the memorandum dated July 10, 2017 [#37]. This court
respectfully RECOMMENDS that the Motion to Amend be
initiated this action by filing his Complaint on November 11,
2016. [#1]. Plaintiff asserts a claim against Defendant
Navient Solutions, Inc. (“Defendant” or
“Navient”) for allegedly violating the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C.
§ 227 et seq. [Id. at 3]. Plaintiff
alleges that, beginning in or around August 2015, Defendant
placed repeated harassing telephone calls to Plaintiff, and
continued to place these calls even after Plaintiff requested
that all such calls cease. See [id. at
January 6, 2017, the undersigned held a Scheduling
Conference, and set the following relevant deadlines: (1)
February 24, 2017 for joinder of parties and amendment of
pleadings; (2) July 5, 2017 for discovery; and (3) August 4,
2017 for dispositive motion. See [#18; #19].
Subsequently, upon motion by the Parties, this court extended
the discovery and dispositive motion deadlines to August 18
and September 18, 2017, respectively. See [#34].
on June 30, 2017, Plaintiff filed the instant Motion. In his
brief in support of the Motion, Plaintiff asserts that he
seeks leave to amend his complaint to reflect the true date
of Defendant's harassing calls as May 2015, not August
2015. See [#36 at 1]. Plaintiff avers that he served
timely discovery on Defendant in January 2017, seeking its
relevant call records and recordings related to
Plaintiff's case and Defendant produced three recordings.
[Id. at 4]. However, Navient's Rule 30(b)(6)
deponent indicated that he reviewed ten such recordings
dating back to May 2015, and Plaintiff contends that it was
in May 2015 (not August 2015) that he first requested that
Defendant cease the harassing telephone calls. [Id.
at 4-5]. Defendant then produced the missing recordings to
Plaintiff in June 2017. [Id.]. On July 21, 2017,
Navient filed a Notice indicating, “to expedite
resolution of Plaintiff's motion and without waiving any
defenses, [Navient] does not oppose Plaintiff's request
to amend.” [#38].
party seeks to amend pleadings after the deadline set in the
Scheduling Order, the court's consideration is subject to
a two-prong analysis. First, a party seeking leave to amend
after the deadline set by a Scheduling Order must establish
that there is good cause for seeking modification of such
order pursuant to Rule 16(b) of the Federal Rules of Civil
Procedure. See Gorsuch, Ltd., B.D. v. Wells
Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240
(10th Cir. 2014). Only after establishing good cause does the
court then turn to whether amendment is proper under Rule
15(a) of the Federal Rules of Civil Procedure. Id.
at 1242; Pumpco, Inc. v. Schenker Int'l, Inc.,
204 F.R.D. 667, 668 (D. Colo. 2001).
determination of good cause under Rule 16 lies within the
sound discretion of the court. Fed.R.Civ.P. 16(b)(4). The
focus on whether good cause exists focuses on the diligence
of the moving party seeking leave; a party establishes good
cause when she demonstrates that the deadline in the
Scheduling Order could not have been met despite her diligent
efforts. Pumpco, 204 F.R.D. at 668. This burden is
satisfied, for example, when a party learns of new
information in a deposition or if the governing law has
changed. Gorsuch, Ltd., B.D., 771 F.3d at 1240.
15(a)(2) provides that leave to amend “shall be freely
given when justice so requires.” Fed.R.Civ.P. 15(a)(2).
The court may refuse leave to amend 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. Frank v.
U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993);
accord Watson v. Beckel, 242 F.3d 1237, 1239-40
(10th Cir. 2001) (observing that a court may dismiss a motion
to amend if amendment is futile, i.e., the amended
complaint would be subject to dismissal for any reason).
Ultimately, whether to allow amendment is within the trial
court's discretion. Burks v. Oklahoma Publ'g
Co., 81 F.3d 975, 978-79 (10th Cir. 1996).
Plaintiff seeks leave to amend solely under Rule 15(a), this
court finds that Mr. Kovach has demonstrated good cause under
both Rules 16 and 15. Plaintiff alleges that Defendant
produced only three telephone call recordings in response to
his January 2017 discovery request. [#36 at 2]. At the May
19, 2017 Rule 30(b)(6) deposition, Navient's deponent
indicated that he had reviewed ten such recordings.
[Id.]. Plaintiff then requested that Navient
supplement its responses, which Navient did by sending
Plaintiff the additional recordings in June 2017.
[Id. at 2, 4]. Thus, only after learning of these
recordings that dated back to May 2015, did Plaintiff seek
leave to amend his Complaint to incorporate this new
information. [Id. at 5-6]. I find this sufficient to
satisfy good cause under Rule 16(b)(4). See Gorsuch,
Ltd., B.D., 771 F.3d at 1240. Further, because Navient
does not oppose the requested relief, this court sees no
basis for denying the Motion under Rule 15(a). See
Frank, 3 F.3d at 1365.
reasons stated herein, this court ...