United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. WANG MAGISTRATE JUDGE.
matter comes before the court on Defendants Pioneer Natural
Resources Company (“Pioneer Natural Resources”)
and Pioneer Natural Resources USA, Inc.
“Defendants”) “Partially Unopposed Motion
for Leave to Amend their Pleadings” (“Motion to
Amend”). [#84, filed April 3, 2018]. The Motion to
Amend is before the undersigned Magistrate Judge pursuant to
the Order Referring Case dated February 3, 2017 [#17] and the
memorandum dated May 7, 2018 [#94]. After carefully reviewing
the Motion to Amend, the entire case file, and the applicable
case law, I respectfully RECOMMEND that the
Motion to Amend be GRANTED.
United States of America initiated this civil action under
the Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”), 42 U.S.C. §§
9601 et seq., seeking to recover from Defendants
certain costs incurred in response to the release (or
threatened release) of hazardous waste at the Nelson
Tunnel/Commodore Waste Rock Pile Superfund Site, located in
Mineral County, Colorado. [#1]. Defendants filed their
respective Answers on March 20, 2017. [#20; #21]. On April
19, 2017, this court presided over a Scheduling Conference
and entered a Scheduling Order directing the Parties, in
relevant part, to amend pleadings on or before September 5,
2017, complete written discovery by January 15, 2018, and
complete non-written discovery by September 14, 2018. [#23;
19, 2017, the Government filed an early Motion for Partial
Summary Judgment on the issue of Defendants' corporate
successor liability. [#46]. On September 5, 2017, following
the briefing of the early Motion for Partial Summary Judgment
and with the Government's consent, Defendants filed
respective Amended Answers and asserted counterclaims for
declaratory judgment for the first time. [#61; #62];
see [#63]. The Government filed Answers to the
counterclaims on November 6, 2017. [#70; #71]. Defendants
subsequently filed the Motion to Amend, seeking leave to file
amended counterclaims and revised affirmative defenses and
defenses, and to revise two responsive paragraphs.
April 18, 2018, days before the Government's response to
the Motion to Amend was due, the court granted the
Government's early Motion for Summary Judgment, finding
that Pioneer Natural Resources is a successor to the CERCLA
liabilities of Pioneer Nuclear, Incorporated
(“PNI”), and that Pioneer-USA is a successor to
the CERCLA liabilities of Mesa Operating Limited Partnership
(“MOLP”). See [#88]. The Government did
not ultimately respond to the Motion to Amend.
filed the Motion to Amend after the expiration of the
deadline for amendment of pleadings as specified in this
court's Scheduling Order. Therefore, this court considers
the Motion to Amend pursuant to a two-step inquiry. First,
the court considers whether the moving party demonstrates
good cause pursuant to Rule 16(b) of the Federal Rules of
Civil Procedure. See Gorsuch Ltd. B.C. v. Wells Fargo
Nat'l Bank, 771 F.3d 1230, 1242 (2014). Rule 16(b)
provides that a scheduling order “may be modified only
for good cause and with the judge's consent.”
Fed.R.Civ.P. 16(b)(4). “Rule 16(b) does not focus on
the bad faith of the movant, or the prejudice to the opposing
party. Rather, it focuses on the diligence of the party
seeking leave to modify the scheduling order to permit the
proposed amendment.” Colo. Visionary Acad. v.
Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000).
moving party can demonstrate good cause, the court then
weighs whether the amendment should be allowed under Rule
15(a), which provides that “the court should freely
give leave when justice so requires.” Gorsuch,
771 F.3d at 1242. 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). 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). A general presumption exists in favor of allowing
a party to amend its pleadings, see Foman v. Davis,
371 U.S. 178, 182 (1962), and the non-moving party bears the
burden of showing that the proposed amendment is improper.
Jefferson County Sch. Dist. No. R-1 v. Moody's
Investor's Services, Inc., 175 F.3d 848, 859 (10th
to the certificate of conferral in the Motion to Amend, the
Government does not oppose the proposed amendments to
Defendants' counterclaims, affirmative defenses, and
defenses, [#84 at 1], and thus this court RECOMMENDS that
those amendments be accepted.
also seek leave to “conform two paragraphs, ”
paragraphs 12 and 13, “to the facts developed in
discovery.” [Id. at 2]. Defendants'
Answers contain an almost identical Paragraph 12, which
states that the respective Defendant:
denies Plaintiff's allegation in the first sentence of
Paragraph 12 that the hydraulic structures are or were
“makeshift” or that the discharge system was
“pieced together.” Otherwise,