United States District Court, D. Colorado
JOHANA PAOLA BELTRAN, LUSAPHO HLATSHANENI, BEAUDETTE DEETLEFS, ALEXANDRA IVETTE GONZALEZ, JULIANE HARNING, NICOLE MAPLEDORAM, LAURA MEJIA JIMENEZ, and SARAH CAROLINE AZUELA RASCON, Plaintiffs,
INTEREXCHANGE, INC., USAUPAIR, INC., GREATAUPAIR, LLC, EXPERT GROUP INTERNATIONAL INC., d/b/a Expert AuPair, EURAUPAIR INTERCULTURAL CHILD CARE PROGRAMS, CULTURAL HOMESTAY INTERNATIONAL, CULTURAL CARE, INC., d/b/a Cultural Care Au Pair, AUPAIRCARE INC., AU PAIR INTERNATIONAL, INC., APF GLOBAL EXCHANGE, NFP, d/b/a Au Pair Foundation, AMERICAN INSTITUTE FOR FOREIGN STUDY, d/b/a Au Pair in America, AMERICAN CULTURAL EXCHANGE, LLC, d/b/a GoAuPair, AGENT AU PAIR, A.P.EX. AMERICAN PROFESSIONAL EXCHANGE, LLC, d/b/a ProAuPair, 20/20 CARE EXCHANGE, INC., d/b/a The International Au Pair Exchange, ASSOCIATES IN CULTURAL EXCHANGE, d/b/a GoAu Pair, and GOAUPAIR OPERATIONS, LLC, Defendants.
ORDER DENYING PLAINTIFFS' MOTION TO AMEND
CHRISTINE M. ARGUELLO United States District Judge.
matter is before the Court on Plaintiffs' Motion to Amend
Complaint, in which Plaintiffs seek leave to file a third
amended complaint. (Doc. # 564.) For the following reasons,
the Court denies Plaintiffs' Motion to Amend Complaint.
initiated this action on November 13, 2014. (Doc. # 1.) After
Defendants filed multiple Motions to Dismiss (Doc. ## 74, 75,
82), Plaintiffs filed a First Amended Complaint on March 13,
2015 (Doc. # 101), which added four plaintiffs. One month
later, United States Magistrate Judge Kathleen M. Tafoya set
August 15, 2016, as the deadline for amendments to pleadings
and joinder of parties. (Doc. # 294.) On that deadline,
August 15, 2016, Plaintiffs moved to amend the First Amended
Complaint to add four more named plaintiffs. (Doc. # 329.)
The Magistrate Judge granted Plaintiffs' motion (Doc. #
394), and their Second Amended Complaint was entered on
October 17, 2016 (Doc. # 395).
filed the instant Motion to Amend Complaint, seeking leave to
file a third amended complaint, on June 3, 2017. (Doc. #
564.) Plaintiffs seek to amend the complaint to: (1)
“add as named plaintiffs Linda Elizabeth, Camila
Gabriela Perez Reyes, and Cathy Caramelo, ” and (2)
“name International Care, Ltd. (‘ICL') as a
defendant, ” contending that ICL and Defendant Cultural
Care, Inc. (“Cultural Care”) “are alter
egos and agents of each other” and that “ICL is
independently liable for Cultural Care's relevant
actions.” (Id. at 2-3.) Defendant Cultural
Care responded in opposition to both of Plaintiffs' bases
for seeking leave to amend their complaint on June 23, 2017.
(Doc. # 589.) Defendant American Institute for Foreign Study
(“AIFS”), d/b/a Au Pair in America, responded in
opposition on the same day, joining and incorporating
Defendant Cultural Care's Response and raising an
additional argument about one of the proposed named
plaintiffs. (Doc. # 587.) Plaintiffs replied on July 7, 2017.
(Doc. # 595.) The Magistrate Judge granted ICL's request
to make a special appearance to oppose Plaintiffs' Motion
to Amend Complaint (Doc. # 615), and ICL filed its Special
Appearance Brief to Oppose Plaintiffs' motion on July 20,
2017 (Doc. # 616).
filed the Motion to Amend Complaint now before this Court
nearly ten months after the August 15, 2016, deadline for
joinder of parties and amendments to pleadings. See
(Doc. ## 294, 564.) “After a scheduling order deadline,
a party seeking leave to amend must demonstrate (1) good
cause for seeking modification under [Federal Rule of Civil
Procedure] 16(b)(4) and (2) satisfaction of the [Federal Rule
of Civil Procedure] 15(a) standard.” Gorsuch, Ltd.,
B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d
1230, 1240 (10th Cir. 2014) (citing Pumpco, Inc. v.
Schenker Int'l, Inc., 204 F.R.D. 667, 668 (D. Colo.
regard to the first factor, Rule 16(b)(4) provides that a
scheduling order “may be modified only for good cause
and with the judge's consent.” The Tenth Circuit
has clarified that this good cause standard “requires
the movant to show the ‘scheduling deadlines cannot be
met despite the movant's diligent efforts.'”
Gorsuch, 771 F.3d at 1240 (quoting Pumpco,
204 F.R.D. at 668). The good cause standard of Rule 16(b)(4)
may be satisfied “if a plaintiff learns new information
through discovery or if the underlying law has changed,
” for example. Id. However, “[i]f the
plaintiff knew of the underlying conduct but simply failed to
raise . . . claims, . . . the claims are barred.”
Id. (citing Minter v. Prime Equip. Co., 451
F.3d 1196, 1204 (10th Cir. 2006)).
the second factor, Rule 15(a)(2) directs a trial court to
“freely give leave when justice so requires, ” a
rule intended “to provide litigants the maximum
opportunity for each claim to be decided on its merits rather
on procedural niceties, '” Minter, 451
F.3d at 1204 (quoting Hardin v. Mintowoc-Forsythe
Corp., 691 F.2d 449, 456 (10th Cir. 1982)). However, if
there is “any apparent or declared reason-such as undue
delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of the
amendment, etc.-the leave sought” need not be granted.
Id. at 1204 (quoting Foman v. Davis, 371
U.S. 178, 182 (1962)). “The grant or denial of an
opportunity to amend is within the discretion” of the
trial court. Foman, 371 U.S. at 182.
FIRST FACTOR: RULE 16(B)(4)'S GOOD CAUSE
assert that they have shown good cause to amend their
complaint to add (1) additional named plaintiffs, and (2) ICL
as a defendant because “they learned new information in
discovery.” (Doc. # 595 at 3) (citing Gorsuch,
771 F.3d at 1240 (“Rule 16's good cause requirement
may be satisfied, for example, if a plaintiff learns new
information through discovery.”). The Court disagrees.
the Court is not persuaded by Plaintiffs' argument in
their Reply that they “did not learn the information
necessary to add the three proposed plaintiffs until May
2017.” (Doc. # 595 at 6.) Plaintiffs state that
“Proposed plaintiff Linda Elizabeth and Cathy Caramelo
asked to join the lawsuit on May 14 and 17, 2017,
respectively, ” and that they did not learn of Camila
Gabriela Perez Reyes's “interest in joining the
case until May 1, 2017.” (Id.) These bare
factual allegations fail to demonstrate that Plaintiffs
engaged in “diligent efforts.” See
Gorsuch, 771 F.3d at 1240. Moreover, Plaintiffs had
twice previously amended their Complaint to add additional
named plaintiffs, see (Doc. ## 101, 395), which
suggests to the Court that Plaintiffs were quite capable to
doing so prior to the August 15, 2016, deadline.
the Court rejects Plaintiffs' assertion that they
“only recently [have] been able to understand the full
scope of Cultural Care's position vis-à-vis
ICL.” (Doc. # 564 at 6.) The record demonstrates that
Plaintiffs have long had notice of the relationship between
Cultural Care and ICL, as Defendant Cultural Care explains.
See (Doc. # 589 at 9-11.) For example,
Plaintiffs' First Amended Complaint quoted the contract
between Plaintiff Beaudette Deetlefs and Defendant Cultural
Care. (Doc. # 101 at 63- 64). That contract-which Plaintiffs
cited in their First Amended Complaint, filed March 13, 2015,
see (id.), -clearly states that Defendant
Cultural Care has a “registered business name of
International Care, Ltd.” and that “CC” is
ICL's successor and assignee, (Doc. # 589-2).
Additionally, at a scheduling conference before the
Magistrate Judge on April 25, 2016, see (Doc. #
294), Defendant Cultural Care's counsel stated his
assumption that Plaintiffs would seek discovery concerning
“international disputes . . . for purposes . . .
related to the recruitment of the au pair” and
stated that “au pairs are recruited and their
information is done by a foreign entity, ” (Doc. # 307
at 28-29). Two weeks later, on May 9, 2016, Defendant
Cultural Care wrote in its answers to Plaintiffs'
interrogatories that ...