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Gale v. The City and County of Denver

United States District Court, D. Colorado

June 1, 2018

THE CITY AND COUNTY OF DENVER, a Colorado municipal corporation, Defendant.



         THIS MATTER comes before the Court on the Objection (#62) filed by Plaintiff Franklin Gale (“Mr. Gale”) to the Magistrate Judge's Order (#60) which granted Defendant the City and County of Denver's (“Denver”) Motion for Leave to Amend its Answer (#32). Denver filed a Response to Mr. Gale's Objection (#67), and Mr. Gale filed a Reply (#69) and a Supplement (#75).

         Also before the Court is Denver's Motion for Summary Judgment (#71), as to which Mr. Gale has filed a Response (#76), Denver has filed a Reply (#79), and Mr. Gale has filed two Supplements (##80, 81). For the reasons that follow, the Court overrules Mr. Gale's Objection and further concludes that Denver is entitled to summary judgment in its favor on its affirmative defense of res judicata.


         Mr. Gale brings his claims under 42 U.S.C. § 1983, and the Court exercises jurisdiction under 28 U.S.C. §§ 1331 & 1343.

         Mr. Gale filed his Complaint on September 28, 2016 and Denver answered on November 14, 2016. The Scheduling Order set a deadline of December 20, 2016 for the amendment of pleadings.[1] After that deadline, Denver filed a Motion for Leave to Amend, seeking to add an affirmative defense of res judicata, which motion the Magistrate Judge granted. Denver then filed its Amended Answer containing the new affirmative defense. Mr. Gale timely filed an Objection to the Magistrate Judge's Order arguing that: (1) Denver's amendment was untimely and that it had been waived, and (2) permitting amendment would cause Mr. Gale unfair prejudice. On September 25, 2017, Denver filed its Motion for Summary Judgment in its favor on its res judicata defense.


         The following summary of facts is drawn from the factual submissions in the parties' summary judgment briefing and the facts are construed most favorably to the non-movant, Mr. Gale. Where more facts are necessary for the Court's analysis they are discussed in greater detail below.

         Mr. Gale was employed by the Denver Sheriff Department (“DSD”) for many years, but his employment was terminated by Denver's Civilian Review Administrator (the “Administrator”) on January 21, 2015.[2] Mr. Gale challenged the termination decision in an administrative appeal before Denver's Career Service Authority (“CSA”). A hearing officer conducted a five-day hearing during which Mr. Gale was represented by counsel and both sides presented evidence and argument. Mr. Gale argued that Denver lacked evidence to support its allegations of rule violations, had not followed its own rules for employee discipline, that the Administrator who made the termination decision lacked the authority to do so under Denver's Charter, and that his firing was in retaliation for his participation in union activities.

         The hearing officer affirmed Denver's termination decision in a written decision. (#71-8). Mr. Gale appealed the hearing officer's decision to Denver's full Career Service Board, which affirmed the hearing officer's decision. Mr. Gale then filed a civil action in Denver District Court seeking judicial review of the decisions, pursuant to C.R.C.P. 106(a)(4) (the “state court action, ” or the “C.R.C.P. 106(a)(4) action”). In the C.R.C.P. 106(a)(4) action, Mr. Gale challenged his discharge on the basis that the Administrators action had been ultra vires, but he did not argue that it had been retaliatory or in violation of his constitutional rights. (#71-12 ¶¶ 28-29; #71-13).

         Just over a month after filing the state court action, Mr. Gale brought this action pursuant to 42 U.S.C. § 1983. In this action, Mr. Gale alleges that Denver violated his First Amendment rights to free speech and free association because he was discharged in retaliation for his union affiliation and leadership roles with the Fraternal Order of Police, and for making public statements contrary to Denver's official positions. (#1 ¶¶ 35-89 & 118-140). Denver maintains that Mr. Gale's discharge was a lawful disciplinary action warranted by Mr. Gale's violation of rules and regulations applicable to DSD employees.

         While this action was pending, the state district court ruled in Denver's favor in the C.R.C.P. 106(a)(4) action. (#71-13).[3] Denver then sought to amend its Answer to add the affirmative defense of res judicata, arguing that because Mr. Gale could have brought the § 1983 claims in the C.R.C.P. 106(a)(4) action, they are barred in this action. The Magistrate Judge granted leave for Denver to amend, and Denver then moved for summary judgment in its favor on its res judicata defense.


         I. Order authorizing amendment

         The Court first addresses Plaintiff's Objection (#62) to the Magistrate Judge's Order (#60) allowing Denver to add a res judicata defense following the state district court's ruling in the C.R.C.P. 106(a)(4) action, but after the previously-set deadline for amendment of pleadings.

         Under Fed.R.Civ.P. 72(a) & (b), a district court's review is limited to matters which are the subject of a particularized objection. If the objection is made to an order of a magistrate judge on a non-dispositive motion, a district judge can modify or set aside the order if found to be clearly erroneous or contrary to law. Gomez v. Martin Marietta Corporation, 50 F.3d 1511 (10th Cir. 1995); Ariza v. U.S. West Communications, Inc., 167 F.R.D. 131 (D. Colo. 1996). Under the clearly erroneous standard, a reviewing court can affirm the determination unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). If the order of a magistrate judge pertains to a dispositive matter, the Court conducts a de novo review. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).

         Here, the parties dispute which standard of review should be applied. Normally, a motion to amend is nondispositive, particularly where a claim or defense is added rather than eliminated. See Franke v. ARUP Labs., Inc., 390 Fed.Appx. 822, 828 (10th Cir. 2010). That apparently is how the Magistrate Judge viewed the matter, issuing an Order rather than a recommendation.

         The Court agrees that in this context, the Motion to Amend was a nondispositive motion. The addition of an affirmative defense of res judicata was just that - the addition of a defense. It did not foreclose a claim asserted by the plaintiff, even if it ultimately led to the filing of a Motion for Summary Judgment, or a ruling in Denver's favor. In other words, the Magistrate Judge's ruling did not limit the arguments that could be advanced in the case. In contrast, had the Magistrate Judge denied leave to amend, excluding a claim or defense, that decision would likely be treated as dispositive.[4] Ocelot Oil, 847 F.2d at 1463. Therefore the Court applies the clearly erroneous standard of review.

         Mr. Gale contends that the Magistrate Judge's Order was erroneous because (1) Denver's amendment was untimely or had been “waived, ” and (2) the Magistrate Judge improperly failed to consider its prejudicial effect upon Mr. Gale. This Court finds no clear error. The Magistrate Judge applied the correct legal standards, observing that Denver needed both (1) to establish “good cause” under Fed.R.Civ.P. 16(b)(4) to permit amendment after the deadline set in the scheduling order; and also, (2) to satisfy the standard for permitting amendment under Fed.R.Civ.P. 15(a). Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015).

         Under Rule 16, the Magistrate Judge found that the entry of judgment in the state court action was new information providing “good cause” to permit Denver's amendment. The Court sees no clear error in that determination. The new information was entry of judgment in the C.R.C.P. 106(a)(4) action, without which the affirmative defense of res judicata would not be applicable. Even assuming Denver might have pled res judicata as a defense contingent upon entry of a future judgment, Mr. Gale showed no lack of diligence by Denver under Rule 16. Minter v. Prime Equip., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006).

         Under Rule 15, the Magistrate Judge correctly recognized the judicial preference for permitting amendment so that all claims and defenses can be resolved on their merits, rather on procedural grounds. Id. at 1201. Leave to amend is ordinarily denied only in limited circumstances. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Applying these standards, the Magistrate Judge did not clearly err.

         Mr. Gale argues he is prejudiced because he must now address Denver's res judicata defense, but addressing the defense on its merits is consonant with the policy behind Rule 15. Minter, 451 F.3d at 1204. To the extent Mr. Gale suggests Denver proceeded in bad faith, or purposefully withheld its affirmative defense until Mr. Gale could no longer add claims in the state court action, his argument is unsupported by the factual record. Mr. Gale identifies no legal authority under which the Magistrate Judge clearly erred, or showing that Denver was obliged to disclose its res judicata defense sooner or differently than it did.[5] For these reasons, the Court finds no clear error in the ruling of the Magistrate Judge allowing Denver to amend its Answer to assert the defense of res judicata.

         II. Denver's Motion ...

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