Estate of Strong v. City of Northglenn

          ORDER DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

          WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE

         This civil rights action seeks to hold various police departments in Colorado and certain of their employees accountable for the shooting death of James Strong, Jr. (“Strong”), who died during a search of his home in May 2015. This matter is currently before the Court on Plaintiffs' Motion for Leave to File a Second Amended Complaint (the “Motion”). (ECF No. 72.) Defendants oppose the Motion. For the reasons explained below, Plaintiffs' Motion is denied but Plaintiffs are once again, for a final time, permitted to file a motion for leave to file an amended complaint.

         I. BACKGROUND

         The Court incorporates by reference its discussion of the factual background of this action in its Order Granting Defendants' Partial Motion to Dismiss (ECF No. 59). In short, this action arises out of the fatal shooting of Strong by the police in May 2015. (ECF No. 33 ¶¶ 5-6, 18-19.) On May 29, 2015, Strong and his common-law wife Lanhisha Richmond (“Richmond”) were asleep in their home in Northglenn, Colorado, along with minor children J.S. and T.S.R., Strong's brother Marcus Strong, and friend Howard Mitchell, Jr. (Id. ¶¶ 7-10, 18.) Police officers, including Defendants Nicholas Wilson (“Wilson”), an officer with the Northglenn Police Department, and Defendant Jason Schlenker (“Schlenker”), an officer with the Thornton Police Department, entered the home, acting on a “no knock warrant” issued nine days earlier to lead investigator Adam Nielsen (“Nielsen”), an employee of Westminster. (Id. ¶¶ 15-16, 25, 31, 40.)

         Strong picked up a gun and fired two shots when an “intruder” began to enter the bedroom. (Id. ¶¶ 21, 25.) The person was Officer Wilson, who fired his weapon at Strong. (Id. ¶ 26.) Strong fell to the floor and fired a third shot. (Id.) Wilson continued firing at Strong, “through the bedroom wall as he retreated down the hall.” (Id. ¶ 27.) Schlenker then entered the bedroom and repeatedly shot Strong with a .233 caliber rifle. (Id. ¶ 31.) Strong had multiple gunshot wounds and died from the resulting injuries. (Id. ¶ 38.) Richmond, Marcus Strong, and Howard Mitchell, Jr., the three adults in the home at the time, were handcuffed and jailed, and the minor children placed in state custody. (Id. ¶ 45.)

         Plaintiffs filed their Complaint on May 25, 2017 (ECF No. 1) and an Amended Complaint on August 15, 2017 (ECF No. 33). The Amended Complaint pled nine claims: excessive force claims brought by the Estate of Strong (“the Estate”) against both Wilson and Schlenker (Claims 1 & 2); a claim by the Estate against Nielsen for Failure to Intervene (Claim 3); municipal liability claims by the Estate against the Cities of Northglenn, Thornton, and Westminster (“the Cities”) (Claims 4-6); and three separate claims against Wilson and Schlenker for false arrest brought by Richmond on behalf of herself and the minor children (Claim 7), by Marcus Strong (Claim 8), and by Howard Mitchell, Jr. (Claim 9).

         In August 2017, Defendants moved to dismiss Claim 3 against Nielsen and Claims 4-6 against the Cities. (ECF No. 35.) On April 5, 2018, the Court granted Defendant's motion, and dismissed Claim 3 with prejudice and Claims 4-6 without prejudice (“the Order”). (ECF No. 59 at 18-19.) The Court also granted Plaintiffs leave to file a second amended complaint “no later than May 31, 2018 (i.e., simultaneously with the discovery cutoff deadline, as currently extended (see ECF No. 52)).” (Id. at 19.)

         On May 31, 2018, Defendants filed an unopposed Motion for Extension of Time to Complete Discovery for the purpose of taking four additional depositions. (ECF No. 70.) On June 1, 2018, U.S. Magistrate Judge Michael E. Hegarty granted Defendant's motion and modified, among other deadlines, the discovery cut-off in the Scheduling Order to June 29, 2018. (ECF No. 73.) On that same day, Plaintiffs filed the present Motion seeking leave to amend their complaint. (ECF No. 72.)

         II. DISCUSSION

         A. Timeliness of Motion for Leave to Amend

         1. Standards under Rule 15(a) and Rule 16(b)

         Federal Rule of Civil Procedure 15(a) states that leave to amend a complaint “shall be granted freely when justice so requires.” Fed.R.Civ.P. 15(a). “Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory move, 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).

         Under Rule 16(b)(4), a scheduling order may be modified “only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). Thus, where a motion for leave to amend is filed after the court-ordered deadline, the court engages in a two-step analysis: (1) does the motion meet the requirements of Rule 16(b); and if so, (2) does the motion ...