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Sandy v. Baca Grande Property Owners Association

United States District Court, D. Colorado

May 30, 2019




          This case comes before the court on Plaintiff's “Motion for Leave to File Second Amended Complaint and Supporting Memorandum” (Doc. No. 40 [Motion], filed April 5, 2019). Defendants filed their response on April 23, 2019 (Doc. No. 42 [Resp.]), and Plaintiff filed his reply on May 7, 2019 (Doc. No. 44 [Reply]).


         The deadline for the amendment of pleadings was March 3, 2019. (Scheduling Order [Doc. No. 22] at 6.) On March 18, 2019, Plaintiff, through his former attorney, filed an unopposed “Motion for Extension of Time to File Amended Complaint” (Doc. No. 23), which this court granted (Doc. No. 25). Through counsel, Plaintiff filed his Amended Complaint on March 22, 2019. (Doc. No. 27.) That same day, Plaintiff himself filed another Amended Complaint, which the clerk docketed as a duplicate. (Doc. No. 35.) Plaintiff's counsel, Max Minnig, Jr., filed a Motion to Withdraw as Attorney[1] on March 25, 2019 (Doc. No. 31) and was granted leave to withdraw from representation on March 26, 2019 (Doc. No. 34). In the Order granting leave, the court cautioned Plaintiff that his pro se status would not excuse him from compliance with the applicable Federal Rules of Civil Procedure. (Id.) Plaintiff filed a Motion for Leave to File Second Amended Complaint on March 29, 2019, which was denied for failure to comply with D.C.COLO.LCivR 15.1(b) and D.C.COLO.LCivR 7.1(a). (Doc. No. 39.) Plaintiff filed the present Motion on April 5, 2019. (Doc. No. 40.)

         Plaintiff's original Complaint asserts claims against various defendants related to Plaintiff's membership in The Baca Grande Property Owners Association (“BGPOA”). (See Doc. No. 1.) Plaintiff contends, inter alia, that he experienced discrimination on the basis of his ethnicity, race, national origin and alienage such that Plaintiff could not enjoy the benefits of membership and land ownership in the BGPOA. (Id. at 3-4.) Plaintiff specifically asserts claims of tortious interference of contract, breach of fiduciary duty, negligence, fraud, intentional and negligent interference with economic advantage, and violation of 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), 42 U.S.C. § 3605(b)(1)(A), 42 U.S.C. § 3617, and 42 U.S.C. § 1981, in addition to violation of two Colorado criminal statutes. (Id. at 31-41.) Plaintiff's Amended Complaint, which was filed by his former attorney, is substantially similar but removes the claim for violation of 42 U.S.C. § 3605(b)(1) and replaces it with violation of 24 C.F.R. § 100.7, which establishes liability for discriminatory housing practices under the Fair Housing Act. (Doc. No. 27 at 32.)

         Plaintiff's proposed Second Amended Complaint modifies and deletes certain factual allegations and adds a provision regarding an email sent on May 16, 2017. (See Doc. No. 41-1.) Plaintiff also adds an allegation, inter alia, that BGPOA minutes were altered in May of 2015. (Id. at ¶ 96.) Additionally, Plaintiff adds claims for violation of 42 U.S.C. § 2000d, which prohibits discrimination under programs receiving federal financial assistance, and a claim for relief under 42 U.S.C. § 3631(a), which relates to prevention of intimidation under the Fair Housing Act. (Id. at pgs. 37-42.)

         In support of his Motion, Plaintiff merely asserts that he is “encouraged by the opportunity to present his Second Amended Complaint” under the guidelines in Docket No. 39. (Doc. No. 40.) In Response, Defendants argue good cause does not exist to grant Plaintiff's Motion. (Doc. No. 42.) According to Defendants, Plaintiff represented during conferral that he intended to address deficiencies in his complaint but, rather than removing deficient claims, added to his pleading such that the Proposed Second Amended Complaint contains both the original claims and new claims. (Id. at 2-3.) Defendants note that although Plaintiff filed his Proposed Second Amended Complaint over a month after the deadline to amend, no new facts have been revealed during discovery, the law has not changed, and Plaintiff makes no attempt at a “good cause” argument in his Motion. (Id. at 4.) In reply, Plaintiff appears to contend that good cause exists because his former counsel was purportedly ineffective and failed to correct deficient claims. (Doc. No. 44 at pgs. 3, 8.)


         A. Plaintiff's Pro Se Status

         Plaintiff is proceeding pro se. The court, therefore, “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). Pro se plaintiffs must “follow the same rules of procedure that govern other litigants” and “must still allege the necessary underlying facts to support a claim under a particular legal theory.” Thundathil v. Sessions, 709 Fed. App'x 880, 884 (10th Cir. 2017) (citations and internal quotation mark omitted). Courts “cannot take on the responsibility of serving as the litigant's attorney in constructing arguments” or the “role of advocate” for a pro se plaintiff. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). The plaintiff's pro se status does not entitle him to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

         B. Motion to Amend After Scheduling Order

          “After a scheduling order deadline, a party seeking leave to amend must demonstrate (1) good cause for seeking modification under Federal Rule of Civil Procedure 16(b)(4) (“Rule 16”) and (2) satisfaction of the Federal Rule of Civil Procedure Rule 15(a) standard.” Gorsuch, Ltd., B.C. v. WellsFargo 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.”). A plaintiff is entitled to amend a complaint only upon meeting “the two-part test of first showing good cause to amend the scheduling order of Rule 16(b), and then showing that amendment would be allowed under Rule 15(a).” Ayon v. Kent Denver Sch., No. 12-cv-2546-WJM-CBS, 2014 WL 85287, at *2 (D. Colo. Jan. 9, 2014). 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 ...

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