Jenkins v. Immedia, Inc.

          ORDER

          Kristen L. Mix United States Magistrate Judge

         This 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]^[1] (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].^[2] 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.

         I. Background

         Plaintiff 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].^[3]Defendant only opposes the addition of a claim for punitive damages. Motion [#353] at 1; see generally Response [#358].

         Plaintiff 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).

         In 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.

         In its 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. at 12-15.

         In his 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.

         II. Analysis

         A. Rule 16(b)(4)

         As a 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)^[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 15(a)”).

         The 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.”).

         To 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)).

         Here, 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.

         Plaintiff's 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 3.

         Moreover, 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.^[5]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 [#307]. Id.

         After 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 the analysis.

         B. Rule 15(a)(2) and ...