United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge
Omar Alabassi, owns a limousine service and claims that on
March 23, 2016, while driving his personal vehicle to pick up
some clients at the airport (his company vehicles were,
apparently, buried in snow), he was involved in a hit-and-run
collision in which his vehicle was damaged and he was
injured. Plaintiff contacted his personal insurance agent at
Allstate and, eventually, worked out a settlement in which
Allstate paid Plaintiff benefits for damage to his car.
Plaintiff also contacted the Defendant, his commercial
insurance provider, seeking benefits for injuries caused by
the uninsured motorist. Defendant initially denied
Plaintiff's claim, then after this lawsuit was filed,
paid Plaintiff the maximum benefits allowed under the policy
for medical and uninsured motorist claims.
following the thrice-extended deadline for joinder of parties
and amendment of pleadings, Plaintiff seeks to amend his
Amended Complaint to allege negligence against two
“new” defendants, his insurance agent and
insurance brokerage firm. Mot. 1. The Court finds
Plaintiff's amendments to be untimely and unduly
prejudicial at this stage of the litigation and, thus, the
Court recommends that the Honorable Raymond P. Moore deny the
filed this action against the Defendant in the Arapahoe
County District Court, Colorado on February 23, 2017 and,
based on diversity jurisdiction, the Defendant removed the
action to this Court on March 24, 2017. ECF No. 1. This Court
held a scheduling conference on May 1, 2017 at which the
Court agreed with the parties' proposed case management
deadlines, including a deadline of June 12, 2017 for joinder
of parties and amendment of pleadings (“amendment
9, 2017, the parties jointly sought and were granted an
extension of the amendment deadline to July 7, 2017 to allow
Plaintiff's counsel sufficient time to review
Defendant's questions concerning Plaintiff's answer
to the counterclaims. ECF Nos. 45, 48. On July 6, 2017, the
parties jointly sought and were granted a second extension of
the amendment deadline to September 1, 2017 to allow
sufficient time for the taking of the Plaintiff's
deposition on August 3, 2017 and for the setting and taking
of the claims adjustor's deposition, which needed to be
rescheduled because he became “gravely ill, ” and
which needed to occur (at the Plaintiff's request) at
least two weeks before the deadline. ECF Nos. 49, 51. On
September 1, 2017, the parties sought and were granted a
third extension of the amendment deadline to October 12, 2017
because, due to the claims adjustor's paternity leave and
Plaintiff's counsel's litigation scheduling
conflicts, the adjustor's deposition was not set until
September 28, 2017. ECF Nos. 52, 55.
Defendant filed a motion to amend its Answer to add certain
affirmative defenses in light of discovery as to the
Plaintiff's claims. ECF No. 53. After briefing, the Court
granted the motion and the Amended Answer was filed on
October 30, 2017. ECF Nos. 74, 75. In addition, the Court
grant two joint motions to extend the expert disclosure
deadlines. ECF Nos. 62, 73. However, the discovery cutoff
stayed the same at December 19, 2017. ECF No. 40.
filed the present motion on November 6, 2017 arguing that he
learned new information during discovery leading to his
requested amendments. Specifically, Plaintiff contends that
during his own deposition on August 3 and August 9, his
testimony revealed that the proposed new Defendants, T.I.B.
Insurance Brokers and Josef Ortiz, “did not make a
sufficient offer of UM coverage to Plaintiff” and did
not follow through on a promise to procure coverage for
vehicles that Plaintiff rented, leased, or borrowed for his
business. Mot. 5. Furthermore, the insurance application
allegedly reveals inconsistencies demonstrating additional
negligence on the part of these proposed parties.
Id. 6. Plaintiff asserts that it was not until he
took the claims adjustor's deposition on September 28,
2017 that “[i]t became clear . . . that T.I.B. and Mr.
Ortiz played a larger role in the sale of insurance to
Plaintiff than originally assumed.” Id. 6-7.
Plaintiff states that he then obtained the adjustor's
deposition transcript and “reviewed the evidence with a
Colorado licensed insurance producer on October 27, 2017 to
discuss whether T.I.B.'s and Mr. Ortiz's conduct met
industry standard and to comply with the requirements of
C.R.S. § 13-20-602, ” who then determined that the
proposed defendants' conduct “fell below the
standard of care for Colorado insurance producers.”
to a pleading is governed by Fed.R.Civ.P. 15. Rule 15, which
provides that, following a 21-day period for service of the
complaint or service of a responsive pleading or Rule 12
motion, a party may amend its complaint only by leave of the
court or by written consent of the adverse party.
Fed.R.Civ.P. 15(a). Rule 15 instructs courts to “freely
give leave when justice so requires.” Id.
Nevertheless, denying leave to amend is proper if the
proposed amendments are unduly delayed, unduly prejudicial,
futile, or sought in bad faith. Foman v. Davis, 371
U.S. 178, 182 (1962); see also Frank v. U.S. West,
Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Tenth Circuit, untimeliness alone may be a sufficient basis
for denying a party leave to amend. See Duncan v.
Manager, Dep't of Safety, 397 F.3d 1300, 1315 (10th
Cir. 2005); Hayes v. Whitman, 264 F.3d 1017, 1026
(10th Cir. 2001). The important inquiry is not simply whether
Plaintiff has delayed, but whether such delay is undue.
Minter v. Prime Equip. Co., 451 F.3d 1196, 1206
(10th Cir. 2006). Delay is undue “when the party filing
the motion has no adequate explanation for the delay, ”
Frank, 3 F.3d at 1365-66, or when “the party
seeking amendment knows or should have known of the facts
upon which the proposed amendment is based but fails to
include them in the original complaint.” Las Vegas
Ice & Cold Storage Co. v. Far West Bank, 893 F.2d
1182, 1185 (10th Cir. 1990) (quoting State Distribs.,
Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416
(10th Cir. 1984)).
Plaintiff filed his motion after the amendment deadline,
Defendant is correct that granting Plaintiff's motion
pursuant to Rule 15(a) would require a modification of the
Scheduling Order. See Gorsuch, Ltd., B.C. v. Wells Fargo
Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014).
Thus, the Court employs a two-step analysis. First, the Court
evaluates whether Plaintiff demonstrates good cause allowing
modification of the Scheduling Order; if Plaintiff shows good
cause, he must also meet the requirements of Fed.R.Civ.P.
Good Cause for ...