United States District Court, D. Colorado
ORDER ON MOTION TO AMEND
Michael E. Hegarty United States Magistrate Judge
Falgun Pathak seeks to file a second amended complaint, which
adds a claim for outrageous conduct, makes his request for a
jury trial explicit, and corrects minor typographical errors.
The Court finds that Mr. Pathak does not demonstrate good
cause to extend the deadline for amendment of pleadings under
Federal Rule of Civil Procedure 16(b). However, because
Defendant FedEx Trade Networks does not oppose Mr.
Pathak's request to make a jury trial explicit and to
correct typographical errors, the Court will permit Mr.
Pathak to file an amended complaint outside of the deadline
set in the Scheduling Order solely for these purposes.
Accordingly, the Court grants in part and denies in part Mr.
Pathak's Motion for Leave to Amend Complaint.
pro se, Mr. Pathak filed his Complaint in this case on June
6, 2016. Compl., ECF No. 1. Mr. Pathak's claims arise
from his employment with FedEx in various customer service
positions. Id. at 4. Generally, Mr. Pathak alleges
FedEx discriminated against him because of his age, race, and
national origin. See Id. at 4-26.
Court entered a Scheduling Order on December 5, 2016. ECF No.
43. The Scheduling Order stated that the deadline for joinder
of parties and amendment of pleadings had passed.
Id. at 18. Additionally, the order set June 2, 2017
as the discovery cutoff. Id. The Court later
extended the discovery cutoff to September 4, 2017. ECF No.
Court granted Mr. Pathak's motion for appointment of
counsel, and on June 1, 2017, pro bono counsel entered their
appearances. ECF Nos. 58-60. On June 9, 2017, Mr. Pathak
filed an unopposed motion to amend complaint, which the Court
granted. ECF No. 66. Mr. Pathak's First Amended Complaint
asserts nine claims for relief: (1) discrimination on the
basis of race and national origin in violation of Title VII;
(2) retaliation in violation of Title VII; (3) race
discrimination in violation of 42 U.S.C. § 1981; (4)
retaliation in violation of 42 U.S.C. § 1981; (5)
discrimination and failure to accommodate in violation of the
Americans With Disabilities Act; (6) retaliation in violation
of the Americans With Disabilities Act; (7) discrimination in
violation of the Age Discrimination in Employment Act; (8)
discrimination under the Family Medical Leave Act; and (9)
wrongful discharge. Am. Compl. ¶¶ 94-163, ECF No.
20, 2017, the Court modified the Scheduling Order at the
request of the parties. ECF No. 73. The Court set December
15, 2017 as the discovery cutoff and January 31, 2018 as the
dispositive motions deadline. Id. The parties then
continued with discovery.
November 8, 2017, Mr. Pathak filed the present Motion for
Leave to Amend Complaint, ECF No. 81. Mr. Pathak seeks to add
a claim for outrageous conduct, make his request for a jury
trial explicit, and correct minor typographical errors.
Id. at 3-8. According to Mr. Pathak, the Court
should permit the amendment, because other courts have
granted leave to amend much later into the litigation than
the current case, the amendment will not cause FedEx to
suffer prejudice, and the amendment is not futile.
Id. Defendant contends Mr. Pathak cannot satisfy
Federal Rules of Civil Procedure 15(a) or 16(b). Resp. to
Mot. to Amend, ECF No. 82. In reply, Mr. Pathak contends he
has shown good cause for the amendment, because the nature of
the outrageous conduct claim came to light through recently
conducted discovery. Reply in Supp. of Mot. to Amend 2, ECF
present motion implicates Federal Rules of Civil Procedure 15
and 16. The motion to amend must comply with the requirements
of Rule 15(a) for amendment of pleadings. Additionally,
granting Mr. Pathak's motion would necessitate an
amendment of the Scheduling Order under Rule 16(b)(4). The
deadline for amendment of pleadings initially passed before
the Court issued a Scheduling Order. See ECF No. 43,
at 18. When the Court permitted Mr. Pathak to file an amended
complaint on June 12, 2017, it extended the deadline for
amendment of pleadings to that date. Although the parties
subsequently moved to modify other deadlines in this case,
neither party requested an extension of the deadline for
amendment of pleadings. Therefore, because Mr. Pathak filed
the present motion after the deadline for amendment of
pleadings, he must demonstrate good cause for modifying the
Scheduling Order pursuant to Rule 16(b)(4). Gorsuch, Ltd.
v. Wells Fargo Nat'l Bank Assn., 771 F.3d 1230, 1241
(10th Cir. 2014) (“We now hold that parties seeking to
amend their complaints after a scheduling order deadline must
establish good cause for doing so.”).
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.” Id. Here, the
Court finds Mr. Pathak fails to demonstrate good cause to
amend the Scheduling Order pursuant to Rule 16(b)(4).
Accordingly, the Court need not address whether Mr. Pathak
satisfies Rule 15(a).
good cause under Rule 16(b)(4), a plaintiff “must
provide an adequate explanation for any delay” in
meeting the Scheduling Order's deadline. Minter v.
Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir.
2006). If the 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. 2000).
However, 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
Pathak's only explanation for failing to meet the
deadline is that “the outrageousness of Defendant's
conduct towards Mr. Pathak reflects the totality of the
circumstances, which only fully came to light during
discovery that occurred after the filing of the
first Complaint drafted by counsel.” Reply in Supp. of
Mot. to Amend 2, ECF No. 84. However, Mr. Pathak does not
specify what new information he discovered that gives rise to
his outrageous conduct claim. Mr. Pathak's conclusory
allegation that he learned new information about the totality
of the circumstances is insufficient to demonstrate good
cause. See generally Birch v. Polaris Indus., Inc.,
812 F.3d 1238, 1248 (10th Cir. 2015) (finding that the
district court did not err in denying leave to amend, in part
because, the plaintiff's statements were “in most
cases vague, confusing, conclusory, and unsupported by record
evidence”); see also Butler Nat'l Serv. Corp.
v. Navegante Grp., Inc., No. 09-2466-JWL-DJW, 2011 WL
941017, at *2-3 (D. Kan. Mar. 16, 2011) (finding that the
plaintiff failed to establish good cause to amend the
scheduling order, because the plaintiff “d[id] not
point to a single, specific piece of information supporting
its proposed fraud claim that [the plaintiff] obtained
through discovery conducted after the deadline for amending
pleadings. Instead, [the plaintiff] ma[de] general statements
that it learned additional information through discovery
which now allows it to ‘connect the dots'”).
the Court's review of Mr. Pathak's proposed amended
complaint does not reveal any facts that Mr. Pathak learned
through recent discovery. Indeed, Mr. Pathak pleaded the
facts supporting his outrageous conduct claim in the
operative complaint. Mr. Pathak alleges his supervisors at
FedEx required him to attend a closed-door meeting in
December 2014 that was identical to a prior meeting that
caused him to suffer serious health issues. Proposed Second
Am. Compl. ¶ 165, ECF No. 81-1. In the operative First
Amended Complaint, Mr. Pathak asserts he was required to
attend a ...