United States District Court, D. Colorado
DONALD J. ROSS, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Plaintiff's Motion
to Amend Complaint [#23](the “Motion”).
Defendant filed a Response [#28] in opposition to the Motion
[#23], and Plaintiff filed a Reply [#29]. Pursuant to 28
U.S.C. § 636(b) and D.C.COLO.L.CivR 72.19(c), the Motion
has been referred to the undersigned for a recommendation
regarding disposition. The Court has reviewed the briefs, the
entire case file, and the applicable law, and is sufficiently
advised in the premises. For the reasons set forth below, the
Court respectfully RECOMMENDS that the
Motion [#23] be DENIED.
filed this civil action on May 15, 2018, asserting one claim
of negligence pursuant to the Federal Employers'
Liability Act (“FELA”), 45 U.S.C. § 56.
Compl. [#1] ¶ 6. The Complaint alleges that
Plaintiff was employed by Defendant as a remote control
foreman at “Job #YDV72R at the Washington Park
Interchange” in Denver, Colorado. Id. ¶
6. In this position, Plaintiff used a “brake
stick” to apply or release hand brakes on rail cars.
Id. ¶ 7; see also Motion [#23] at 2.
Plaintiff alleges that while he was attempting to apply a
hand brake, the brake stick's unlocking mechanism
suddenly released and unlocked, causing him severe,
permanent, and disabling injuries primarily to his shoulder.
Compl. ¶ 7, 9.
August 14, 2018, the Court entered the Scheduling Order in
this case which set September 28, 2018 as the deadline for
the amendment of pleadings. [#14] at 6. On November 30, 2018,
Plaintiff filed the instant Motion in which he seeks to file
an Amended Complaint that adds a new claim pursuant to the
Federal Safety Appliance Act (“SAA”), 49 U.S.C.
§ 20302. [#23] at 1. Specifically, Plaintiff asserts
that his injuries were the result of Defendant's
violation of the SAA which gives rise to a “strict
liability/negligence per se cause of action under the
FELA.” Proposed Am. Compl. [#23-1]
¶¶ 13-14. As the basis for this additional claim,
Plaintiff states that the SAA requires all rail cars to be
equipped with “efficient hand brakes” and that,
because “the brake stick is properly considered part of
the hand brake, . . . any defect or deficiency in the brake
stick could render the hand brake ‘inefficient,' in
violation of the SAA.” Motion [#23] at 4.
Plaintiff explains that this claim is supported by the Ninth
Circuit Court of Appeals decision in S. Pac. Co. v.
Carson, 169 F.2d 734 (9th Cir. 1948), which stands for
the proposition that the brake stick is “effectively a
part of the hand brake, and therefore subject to the
provisions of the SAA.” Id. at 6-7.
not explained in the Motion, Plaintiff discloses in his Reply
[#29] that the impetus for bringing the SAA claim arose from
Plaintiff's counsel learning a new fact in
Plaintiff's deposition preparation and subsequent
discovery of the Carson decision. See [#29]
at 2-3. As explained in the Reply, Plaintiff's counsel
learned for the first time in preparing for Plaintiff's
November 6, 2018 deposition that Plaintiff had been
instructed by several managers that the use of the brake
stick was required in applying or releasing handbrakes.
Id. at 2. After learning this new fact,
Plaintiff's counsel conducted research to determine
whether the mandatory brake stick could be deemed part of the
hand brake and therefore subject to the SAA. Id.;
see also Pl.'s Ex. 2, Affidavit of James K.
Vucinovich [#29-2] at 2-3. In conducting this research,
Plaintiff's counsel discovered the Carson
decision and concluded that the additional claim pursuant to
the SAA applied. Id.
preliminary matter, the deadline for the amendment of
pleadings was September 28, 2018. Scheduling Order
[#14] at 6. Plaintiff filed the Motion [#23] on November 30,
2018. Therefore, the Motion is untimely. Because Plaintiff
filed his Motion after the deadline for amending the
pleadings, the Court must start its analysis with Rule
16(b)(4). See Ayon v. Kent Denver Sch., No.
12-cv-2546-WJM-CBS, 2014 WL 85287, at *2 (D. Colo. Jan. 9,
2014) (noting that where a party seeks to amend his pleadings
after the deadline established in the scheduling order,
“the majority of courts have held that a party must
meet the two-part test of first showing good cause to amend
the scheduling order under Rule 16(b), and then showing that
amendment would be allowed under Rule 15(a)”); cf.
Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank
Ass'n, 771 F.3d 1230, 1241 (10th Cir. 2014) (holding
that the trial court did not abuse its discretion by using
“Rule 16's good cause requirement as the threshold
inquiry to consider whether amendments should be allowed
after a scheduling order deadline has passed”).
Plaintiff is entitled to amend his complaint only if he makes
the requisite showing at each step of the analysis. The
two-step analysis is explained as follows:
Rule 16(b)[(4)]'s good cause standard is much different
than the more lenient standard contained in Rule 15(a). Rule
16(b)[(4)] 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. Properly
construed, good cause means that the scheduling deadlines
cannot be met despite a party's diligent efforts. In
other words, the Court may “modify the schedule on a
showing of good cause if [the deadline] cannot be met despite
the diligence of the party seeking the extension.”
Pumpco, Inc. v. Schenker Int'l Inc., 204 F.R.D.
667, 668 (D. Colo. 2001) (citations omitted); accord
Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986
F.Supp. 959, 980 (D.S.C. 1997), aff'd, 129 F.3d
116 (4th Cir. 1997). If Plaintiff fails to show good cause
under Rule 16(b)(4), there is no need for the Court to move
on to the second step of the analysis, i.e., whether
Plaintiff has satisfied the requirements of Rule 15(a).
Nicastle v. Adams Cty. Sheriff's Office, No.
10-cv-00816-REB-KMT, 2011 WL 1465586, at *3 (D. Colo. Mar.
Rule 16: Good Cause to Modify the Pleading Amendment
scheduling order deadline, such as the pleading amendment
deadline, “may be modified only for good cause with the
judge's consent.” Fed.R.Civ.P. 16(b)(4). This
“good cause” requirement reflects the important
role a scheduling order plays in the court's management
of its docket. Cf. Washington v. Arapahoe Cty. Dep't
of Soc. Servs., 197 F.R.D. 439, 441 (D. Colo. 2000)
(“[a] scheduling order is an important tool necessary
for the orderly preparation of a case for trial”).
noted above, to demonstrate good cause pursuant to Rule 16,
the moving party must “show that it [was] diligent in
attempting to meet the [pleading amendment] deadline, which
means it must provide an adequate explanation for any
delay.” Minter v. Prime Equip. Co., 451 F.3d
1196, 1205 n.4 (10th Cir. 2006). “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)
(quoting Dilmar Oil Co., 986 F.Supp. at 980,
aff'd, 129 F.3d 116 (4th Cir. 1997)).
“While rigid adherence to the pretrial scheduling order
is not advisable, ” see SIL-FLO, Inc., v. SFHC,
Inc., 917 F.2d 1507, 1519 (10th Cir. 1990), this Court
finds that compliance with the pleading amendment deadline is
particularly important because of the capacity of an
amendment to change the complexion of the case.
Plaintiff filed his Motion on November 30, 2018, two months
after the expiration of the pleading amendment deadline
established in the Scheduling Order. [#14] at 6. In the
Motion, Plaintiff asserts that good cause exists pursuant to
Rule 16 because, unlike cases where good cause was found
lacking, Plaintiff is not shifting theories of liability at
the last minute to avoid the loss of his claim and has not
delayed substantially in filing the Motion. Id. at
8-10. Plaintiff notes that “this is not a case where
[he] delayed filing his [M]otion or where the proposed
amendment is served at the end or past the discovery deadline
and dispositive motion deadline.” Id. at 9.
Plaintiff argues that this case is akin to Bylin v.
Billings, 568 F.3d 1224 (10th Cir. 2009), where a motion
to amend the answer was granted after the moving party
discovered a Wyoming Supreme Court decision that supported an
affirmative defense not asserted in the original answer.
Id. at 9-10. While Plaintiff acknowledges that Rule
16 was not at issue in Bylin, he contends that
“the Tenth Circuit recognized that there was a
‘rough similarity between the ...