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Ross v. Union Pacific Railroad Co.

United States District Court, D. Colorado

April 15, 2019

DONALD J. ROSS, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.


          Kristen L. Mix United States Magistrate Judge.

         This matter is before the Court on Plaintiff's Motion to Amend Complaint [#23][1](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.[2] 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.

         I. Background

         Plaintiff 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.

         On 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.

         Although 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.

         II. Analysis

         As a 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).[3] 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. 14, 2011).

         A. Rule 16: Good Cause to Modify the Pleading Amendment Deadline

         A 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”).

         As 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.

         Here, 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 ...

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