United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Plaintiffs' Motion
for Leave to Amend Complaint to Add a Claim for Exemplary
Damages [#43] (the “Motion”). Defendant
filed a Response [#54] in opposition to the Motion [#43].
Plaintiffs filed a Reply [#59] in support of the Motion
[#43]. The Court has carefully considered the Motion [#43],
related briefing, the case file, and the applicable case law.
For the reasons set forth below, the Court respectfully
RECOMMENDS that the Motion [#43] be
action arises from a ski accident between Plaintiff Lisa
Kassinove and Defendant Roderick McClendon on March 29, 2014,
at Vail Ski Resort. Compl. [#1] at 2. The ski
accident took place in Colorado, and Plaintiffs, who are
citizens of New York, filed this action in federal district
court, invoking the Court's diversity jurisdiction.
Id. at 1-2. Plaintiffs were skiing downhill from
Defendant when Defendant collided with Plaintiff Lisa
Kassinove. Id. at 2; Answer [#17] at 2. On
March 8, 2016, Plaintiffs brought the present action against
Defendant to recover damages allegedly caused by the
collision. Compl. [#1] at 4.
25, 2015, this Court issued a Rule 16 Scheduling Order [#22]
for this case. In the Scheduling Order [#22], Plaintiffs
stated that “the entire collision was captured on
video, and Plaintiffs' counsel  provided this video to
Defendant's counsel.” Scheduling Order
[#22] at 2. The Scheduling Order [#22] set a deadline of
October 1, 2016, for joinder of parties and amendment of
pleadings. Id. at 7. Plaintiffs did not file a
motion to extend the deadline to amend pleadings pursuant to
Rule 16(b). Fed.R.Civ.P. 16(b). Discovery for this case
closed on April 7, 2017. Minute Order [#33]. On
April 13, 2017, Plaintiffs filed the present Motion [#43]
seeking to amend their Complaint [#1] to include a claim for
exemplary damages against Defendant. Motion [#43].
not unusual for a plaintiff to move to amend the pleadings to
include a claim for exemplary damages. See, e.g.,
Bunting v. Preferred Homecare, No.
12-cv-3327-RM-KMT, 2013 WL 5486201, at *4-5 (D. Colo. Oct. 1,
2013) (order granting timely motion to amend pleadings to add
exemplary damages); Metro. Prop. & Cas. Ins. Co. v.
Cullen, No. 13-cv-3218-REB-MJW, 2014 WL 3932246 (D.
Colo. Aug. 12, 2014) (same); Hendrickson v. Doyle,
No. 14-cv-2013-WJM-KLM, 2015 WL 2106225 (D. Colo. May 4,
2015) (same). Colorado law prohibits a plaintiff from
including a claim for exemplary damages in the initial
pleadings. Colo. Rev. Stat. § 13-21-102(1.5)(a) (2016).
To add a claim for exemplary damages, a plaintiff must obtain
leave from the Court to amend the pleadings. Id.;
Schimek v. Owners Ins. Co., No. 16-cv-02197-PAB-STV,
2017 WL 3621833, at *3 (D. Colo. Aug. 23, 2017). To obtain
leave to amend the pleadings to add a claim for exemplary
damages, a plaintiff must satisfy two requirements: the
parties must have exchanged initial disclosures, and the
plaintiff must establish “prima facie proof of a
triable issue” of exemplary damages. Colo. Rev. Stat.
§ 13-21-102(1.5)(a). The discovery process, not the
initial pleadings, provides the requisite prima facie proof
for exemplary damages. See Stamp v. Vail Corp., 172
P.3d 437, 449 (Colo. 2007).
a scheduling order deadline, a party seeking leave to amend
must demonstrate (1) good cause for seeking modification
under Fed.R.Civ.P. 16(b)(4); and (2) satisfaction of the Rule
15(a) standard.” Birch v. Polaris Indus.,
Inc., 812 F.3d 1238, 1247 (10th Cir. 2015) (quoting
Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank
Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014))
(internal quotations omitted); see, e.g.,
Petekeiwicz v. Stembel, No. 13-cv-1865-RM-KLM, 2015
WL 1740386, at *4 (D. Colo. Apr. 14, 2015); Nicastle v.
Adams Cty. Sheriff's Office, No. 10-cv-816-REB-KMT,
2011 WL 1465586, at *3 (D. Colo. Mar. 14, 2011), adopted
by 2011 WL 1464588 (D. Colo. Apr. 18, 2011); Colo.
Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 688
(D. Colo. 2000). These standards apply to a movant's
untimely request to amend pleadings to add a claim for
exemplary damages. See, e.g., Fiechtner v. Amer.
Family Mut. Ins. Co., No. 09-cv-02681-REB-MEH, 2010 WL
5185490, at *3 (D. Colo. Oct. 19, 2010); Alarid v.
Biomet, Inc., No. 14-cv-2667- REB-NYW, 2016 WL 309053,
at *2 (D. Colo. Jan. 26, 2016); Martin v. Amer. Family
Mut. Ins. Co., No. 05-cv-00960-ZLW-BNB, 2007 WL 1159945,
at *1 (D. Colo. Apr. 17, 2007). If the movant meets the Rule
16(b)(4) good cause standard and the Rule 15(a) standard to
amend the pleadings, the movant has met the requirements to
amend the pleadings. Birch, 812 F.3d at 1247.
However, under Colorado law, before a court may grant leave
to amend the pleadings to add a claim for exemplary damages,
the movant must also establish “prima facie proof of a
triable issue” of exemplary damages. Colo. Rev. Stat.
§ 13-21-102(1.5)(a). If the movant has presented prima
facie proof of a triable issue of exemplary damages, a court
will permit the movant to amend the pleadings to add a claim
for exemplary damages. Id. If a movant fails to
satisfy the Rule 16, Rule 15, or the exemplary damages
standard, denial of the motion is appropriate. Id.;
Birch, 812 F.3d at 1248-49.
Rule 16(b), a Scheduling Order deadline “may be
modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4). The Rule 16(b)(4)
standard requires the movant to show that, despite the
movant's diligent efforts, he or she could not meet the
scheduling deadline. Birch, 812 F.3d at 1247;
Pumpco, Inc. v. Schenker Int'l, Inc., 204 F.R.D.
667, 668 (D. Colo. 2001); Minter v. Prime Equip.
Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006). To prove
diligence, Plaintiffs must provide an adequate explanation
for any delay. Minter, 451 F.3d at 1205 n.4. If a
plaintiff learns new information through discovery, good
cause to amend may be established under Rule 16(b)(4).
Birch, 812 F.3d at 1247; Riggs v. Johnson,
No. 09-cv-01226-WYD-KLM, 2010 WL 1957110, at *3 (D. Colo.
Apr. 27, 2010) (granting a motion for joinder six months
after the scheduling order deadline); see also
Fiechtner, 2010 WL 5185490, at *3 (permitting amendment
of the scheduling order and the pleadings to add an exemplary
damages claim five months after deadline because plaintiff
filed the motion within 30 days of receiving the evidence on
which the motion was based). Conversely, if the plaintiff
knew of the conduct substantiating the claims he seeks leave
to add, but simply failed to raise the claims, the plaintiff
has failed to show good cause, and the claims are barred.
Birch, 812 F.3d at 1247. Denial is appropriate when
the moving party does not demonstrate good cause for his or
her failure to file the motion prior to the Scheduling Order
deadline. Minter, 451 F.3d at 1205.
to the Scheduling Order [#22], the deadline for joinder of
parties and amendment of pleadings was October 1, 2016.
Scheduling Order [#22] at 7. Neither party filed a
request to extend this deadline. Plaintiffs filed the Motion
[#43] at issue on April 13, 2017, more than six months after
the deadline for amending pleadings. See Motion
[#43] at 7-8. The Motion [#43] does not address
timeliness or offer an explanation for filing the Motion
[#43] six months after the deadline. See Motion
[#43]. Defendant contends that the Motion [#43] should be
denied as untimely. Response [#54] at 7-10.
Plaintiffs respond by blithely asserting that the Scheduling
Order [#22] deadline for joinder of parties and amendment of
pleadings is inapplicable to their Motion [#43] because the
lenient standard of Rule 15 makes any amendment to the
pleadings timely. Reply [#59] at 1-2. Whether Rule
15 allows the amendment is inapposite to satisfying the good
cause requirement of Rule 16(b)(4). The Rule 16 good cause
standard must be satisfied separately and in addition to Rule
15. See Birch, 812 F.3d at 1247; Alarid,
2016 WL 309053, at *2 (citing Minter, 451 F.3d at
1205). As discussed above, Rule 16(b)(4) requires Plaintiffs
to provide a satisfactory explanation as to why they were
unable to meet the scheduling order deadline. See
Birch, 812 F.3d at 1247.
next argue that the need to conduct discovery, including
depositions, precluded them from filing the Motion [#43]
earlier. Reply [#59] at 2. If Plaintiffs obtained
evidence supporting the Motion through discovery, this
contention might satisfy the good cause requirement. See
Birch, 812 F.3d at 1247; Fiechtner, 2010 WL
5185490, at *3. However, Plaintiffs did not submit any
evidence in support of the Motion [#43] that was obtained
through the discovery process. See Motion [#43].
Plaintiffs submitted a GoPro video of the accident and
documents related to criminal charges Eagle County filed, and
later dropped, against Defendant. Exhibit [#43-1
thru -3]. The GoPro video has been in Plaintiffs'
possession since the day of the accident. Exhibit
[#43-2] at 2 (Deputy Selby's Affidavit stating that
Plaintiff Jeffrey Kassinove videotaped the accident at issue
with a GoPro camera that was attached to his helmet);
Exhibit [#43-1] at 4 (Deputy Selby's incident
report, dated June 11, 2014, stating that Plaintiff Jeffrey
Kassinove sent him a videotape of the incident). Furthermore,
the documents related to the dropped charges show that
Plaintiffs not only knew about the charges, but provided the
evidence for and communicated with Deputy Selby during his
investigation in 2014. See Exhibit [#43-1]. Thus,
Plaintiffs have had access to the evidence supporting their
claim for exemplary damages since 2014, two years before
Plaintiffs commenced this action. Plaintiffs could have moved
to add a claim for exemplary damages at any time after
Initial Disclosures were exchanged on May 25, 2016, and prior
to the Scheduling Order [#22] deadline of October 1, 2016.
Scheduling Order [#22] at 5, 7. Plaintiffs have
failed to provide an adequate explanation for their delay.
See Birch, 812 F.3d at 1247-49. Therefore,
Plaintiffs were not diligent in attempting to meet the
deadline. See id.; Minter, 451 F.3d at 1205
n.4. Plaintiffs fail to show good cause, as required under
Rule 16(b)(4), to amend the Scheduling Order [#22]. See
Birch, 812 F.3d at 1247. Because Plaintiffs have not
satisfied the Rule 16(b)(4) requirements, it is not necessary
to consider whether Plaintiffs satisfy Rule 15. Id.
on the foregoing, The Court respectfully
RECOMMENDS that the Motion [#43] be
FURTHER ORDERED that pursuant to
Fed.R.Civ.P. 72 the parties shall have fourteen (14) days
after service of this Recommendation to serve and file any
written objections in order to obtain reconsideration by the
District Judge to whom this case is assigned. A party's
failure to serve and file specific, written objections waives
de novo review of the Recommendation by the District Judge,
Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140,
147-48 (1985), and also waives appellate review of both
factual and legal questions. Makin v. Colo. Dep't of
Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley
v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A
party's objections to this Recommendation must be ...