United States District Court, D. Colorado
OPINION AND ORDER ON PLAINTIFF'S OBJECTION TO
MAGISTRATE JUDGE'S RULING AND DEFENDANTS MOTION FOR
S. KRIEGER CHIEF UNITED STATES DISTRICT JUDGE
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
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
AND PROCEDURAL FACTS
Gale brings his claims under 42 U.S.C. § 1983, and the
Court exercises jurisdiction under 28 U.S.C. §§
1331 & 1343.
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. 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
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.
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. 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.
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 ¶¶
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
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). 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.
Order authorizing amendment
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.
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).
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.
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. Ocelot Oil, 847
F.2d at 1463. Therefore the Court applies the clearly
erroneous standard of review.
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).
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).
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
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
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.
Denver's Motion ...