United States District Court, D. Colorado
FRANKLYN A. JENKINS, Plaintiff,
IMMEDIA, INC., a Minnesota corporation. Defendant.
Kristen L. Mix United States Magistrate Judge
matter is before the Court on Plaintiff's Renewed
Motion for Leave to Amend Complaint to Add a Claim for
Punitive Damages and to Conform to the Court's
Orders [#353] (the “Motion”). Defendant
filed a Response [#358] in opposition to the Motion and
Plaintiff filed a Reply [#359]. The Motion is referred to the
undersigned for disposition. See
[#309]. The Court has reviewed the Motion, the
Response, the Reply, and the applicable law, and is
sufficiently advised in the premises. For the reasons set
forth below, the Motion [#353] is GRANTED.
brings this action against Defendant for injuries sustained
by Plaintiff on February 12, 2010, when he was unloading
heavy printing equipment and steel lift tables purchased by
Defendant from his truck. See Order [#268] at 1;
Sched. Order [#288] at 6. Plaintiff also sued
Defendants Duffy Crane and Hauling, Inc., Duffy Holdings, LLC
and Duffy Crane, Inc. (the “Duffy Defendants”),
whose employees allegedly contributed to the accident.
Plaintiff resolved his claims against the Duffy Defendants
and voluntarily dismissed those parties, effective February
5, 2018. See [#289 & #290]. In the Motion,
Plaintiff seeks leave to amend his Second Amended Complaint
[#134] to: (1) remove the Duffy Defendants as parties, (2)
remove the claims against the Duffy Defendants, (3) remove
the reference to Colorado statutory law in Plaintiff's
ninth claim for relief (Joint and Several Liability), and (4)
add a claim for punitive damages pursuant to Minn. Stat.
§§ 549.20 and 549.191. [#353] at 1-3; see
Proposed Third. Am. Compl. [#353-54].Defendant only
opposes the addition of a claim for punitive damages.
Motion [#353] at 1; see generally Response
initially filed a Motion to Leave to Amend Complaint to Add a
Claim for Punitive Damages [#307] (the “Initial
Motion”) on October 5, 2018. However, the proposed
Third Amended Complaint that Plaintiff attached to the
Initial Motion did not contain any of the new factual
allegations on which his punitive damages claim is based.
See generally Pl.'s Ex. 56 [#307-4].
Moreover, Plaintiff's Initial Motion did not comply with
D.C.COLO.LCivR 15.1(b) in that Plaintiff failed to attach a
red-lined version of the proposed Third Amended Complaint.
For these reasons, the Court denied the Initial Motion [#307]
without prejudice and directed Plaintiff to file a renewed
motion for leave to amend his complaint that corrected these
deficiencies on or before February 13, 2019. See Minute
Order [#347]. Pursuant to the Court's Minute Order,
Plaintiff timely filed the instant Motion [#353] on February
6, 2019, which attaches a proposed Third Amended Complaint
[#353-54] that includes the relevant factual allegations and
complies with D.C.COLO.LCivR 15.1(b).
short, Plaintiff argues that the Court should permit the
amendment to add a claim for punitive damages because the
evidence uncovered from the recent completion of fact and
expert discovery establishes prima facie proof that
Plaintiff's injury was the product of Defendant's
“deliberate disregard” for his safety.
See [#353] at 1-3.
Response, Defendant asserts two arguments for why the Court
should deny the amendment. See generally [#358].
First, Defendant argues that Plaintiff cannot present a prima
facie case of clear and convincing evidence that Defendant
acted with deliberate, intentional disregard pursuant to
Minn. Stat. § 549.20. Id. at 2-12. Second,
Defendant argues that Plaintiff's Motion [#353] is
untimely and not supported by good cause, and that Defendant
would be unfairly prejudiced by the amendment. Id.
Reply, Plaintiff maintains that he has established a prima
facie case and that Defendant's attempt to raise factual
issues to oppose Plaintiff's motion cannot be considered
because a motion to amend “only looks to the evidence
alleged by the Plaintiff to determine if it meets the
threshold of proof for punitive damages.” [#359] at 2.
In addition, Plaintiff argues that good cause exists for the
late filing of the Motion and that Defendant is not
prejudiced because crucial evidence was made available only
recently and any delay has been caused by Defendant.
Id. at 2-4.
preliminary matter, the Court must first determine whether
Plaintiff has filed his Motion within the deadline prescribed
by the Scheduling Order, and if not, whether he has
established good cause under Rule 16(b)(4) for his failure
to timely do so. Gorsuch, Ltd. B.C. v. Wells Fargo
Nat'l Bank Ass'n, 771 F.3d 1230, 1241 (10th Cir.
2014) (“We now hold that parties seeking to amend their
complaints after a scheduling order deadline must establish
good cause for doing so.”); 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
Scheduling Order that currently governs this case provides
that the deadline for amendment of pleadings was March 1,
2018. Sched. Order [#288] at 12. The Initial Motion
[#307] was filed on October 5, 2018 and the present Motion
[#353] was filed on February 6, 2019. Therefore,
Plaintiff's request for leave to amend his Second Amended
Complaint [#134] is untimely and he must show good cause for
his failure to timely move to amend pursuant to Rule 16(b)(4)
(a Scheduling Order deadline “may be modified only for
good cause and with the judge's consent.”).
demonstrate good cause, Plaintiff must “show that [he
was] diligent in attempting to meet the deadline[ ], ”
and provide “an adequate explanation for any
delay.” Minter v. Prime Equip. Co., 451 F.3d
1196, 1205 n.4 (10th Cir. 2006) (explaining that lateness
itself does not justify denial of a motion to amend, but
“undue” lateness does). “While rigid
adherence to the pretrial scheduling order is not advisable,
” SIL-FIO v. SFHC, Inc., 917 F.2d 1507, 1519
(10th Cir. 1990), the pleading amendment deadline requires
that parties conduct discovery efficiently and promptly in
order to timely comply. See Granite Southlands Town Ctr.
LLC v. Alberta Town Center, LLC, No.
09-cv-00799-ZLW-KLM, 2010 WL 2635524, at *2 (D. Colo. June 8,
2010); Sanchez v. City & Cty. of Denver ex rel. Bd.
of Water Comm'rs, No. 07-cv-01805-MSK-BNB, 2007 WL
4557842, at *1 (D. Colo. Dec. 20, 2007) (unpublished
decision). However, “[t]he fact that a party first
learns through discovery of information which may lead to
amendment of deadlines set forth in the Scheduling Order
constitutes good cause for such amendment pursuant to Rule
16(b)[(4)].” Riggs v. Johnson, No.
09-cv-01226-WYD-KLM, 2010 WL 1957110, at *3 (D. Colo. Apr.
27, 2010) (citing Pumpco, Inc. v. Schenker Int'l,
Inc., 204 F.R.D. 667, 668-69 (D. Colo. 2001)).
Plaintiff alleges that he learned of new information through
discovery after the March 1, 2018 deadline for the amendment
of pleadings. Motion [#353] at 1-2. Plaintiff states
that “[s]ubstantial discovery has been completed and
certain of the fact discovery documents were received as late
as June 22, 2018 [and that] [r]elevant expert discovery
depositions were completed prior to or on [ ] September 26,
2018.” Id. at 2. In its Response, Defendant
contends that there is no excuse or good cause for
Plaintiff's delay and that “Plaintiff was in
possession of all of the evidence, or had the opportunity to
discover it, supporting [his punitive damages claim] well
before filing this motion.” [#358] at 13.
Reply addresses this contention by chronicling numerous
discovery disputes which, according to Plaintiff, have caused
the delay in obtaining information crucial to his proposed
Third Amended Complaint. [#359] at 2-4. Specifically,
Plaintiff notes that, “[o]n March 9, 2018, Defendant
served over 500 pages of emails and other documents that had
not been previously disclosed during six years of litigation,
which revealed new information and evidence for the first
time . . . .” Id. at 2. Plaintiff explains
that these documents revealed the names of previously
unidentified witnesses and new information which caused
Plaintiff to request supplemental depositions. Id.
at 2-3. Plaintiff notes that Defendant opposed
Plaintiff's request for supplemental depositions,
requiring a ruling from the Court which granted permission
for the depositions on April 24, 2018. Id.; see
Minute Entry [#300]. Plaintiff further states that the
newly produced emails contained relevant communications
between Defendant and Defendant's broker, Adam Sarote
(“Sarote”), which necessitated Plaintiff's
taking the deposition of Mr. Sarote. Reply [#359] at
Plaintiff alleges that, on June 22, 2018, after the discovery
deadline, Defendant served Plaintiff with a copy of its
previously undisclosed safety guidelines. Id.
Plaintiff forwarded this information to his safety expert who
was required to review the information and submit a report by
June 28, 2018, the affirmative expert disclosure and report
deadline. Id.; see Sched. Order [#288] at
13. According to Plaintiff, “Defendant then refused to
allow Plaintiff to schedule the depositions of any of
[Defendant's] liability experts until Defendant completed
the depositions of Plaintiff's experts.”
Reply [#359] at 3. Because of this, Plaintiff
explains that he was unable to take the depositions of three
of Defendant's experts until September 24, 2018, through
September 28, 2018. Id. at 4.Based on the
foregoing, Plaintiff states that it was not until the
September 28, 2018 deadline to complete expert discovery,
that “Plaintiff had the necessary discovery information
required for evaluation of Defendant's conduct”
which led to Plaintiff filing the instant Initial Motion
reviewing the record in this case and the parties'
briefings, the Court finds that the disclosure of
merits-related discovery after the deadline to amend
pleadings and the timing of Plaintiff's depositions
constitute good cause for purposes of Rule 16(b)(4). In
asserting his claim for punitive damages in the Motion
[#353], Plaintiff heavily relies on evidence that was
obtained after the March 1, 2018 deadline to amend pleadings.
See e.g., Motion, Exs. 13-18 [#353-14
through #353-19], Exs. 21-30 [#353-22 through
#353-31], Exs. 33-34 [#353-34, #353-35],
Ex. 40 [#353-41], Exs. 42-46 [#352-43
through #353-47]. Most significantly, Plaintiff relies on the
deposition testimony taken from Dr. Richard Ziernicki
(“Ziernicki”) on September 20, 2018, two weeks
prior to Plaintiff filing the Initial Motion [#307]. See
Motion, Exs. 16-17 [#353-17, #353-18]. When a party
learns new information after the amendment of pleadings
deadline has passed, the newly-acquired information satisfies
Rule 16's good cause requirement. See, e.g.,
Pumpco, Inc., 204 F.R.D. at 668-69 (“[t]he
fact that a party first learns, through discovery or
disclosures, information necessary for the assertion of a
claim after the deadline to amend established in the
scheduling order has expired constitutes good cause to extend
that deadline.”); see also Int'l Bhd. of
Teamsters, Airline Div. v. Frontier Airlines, Inc., No.
11-cv-02007-MSK-KLM, 2012 WL 1857549, at *3 (D. Colo. May 22,
2012) (“[T]he Court is reluctant to refuse an extension
of the amendment deadline considering the parties'
ongoing discovery disputes which obviously have delayed
production[.]”); Lewis v. Denver Fire
Dep't, 09-cv-00004-PAB-MJW, 2010 WL 3873974, at *7-8
(D. Colo. Sept. 28, 2010) (good cause shown to amend
complaint after the Scheduling Order's deadline where
plaintiff first learned of new information through
depositions). Therefore, the Court finds that Plaintiff has
demonstrated good cause to satisfy Rule 16(b)(4), and it is
thus appropriate for the Court to proceed to the next step of
Rule 15(a)(2) and ...