United States District Court, D. Colorado
PACIFIC SPECIALTY INSURANCE COMPANY, a California corporation, Plaintiff,
SAVANNA POIRIER, and JASON MENDOZA, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. WANG UNIT A D STATES MAGISTRATE JUDGE
matter comes before the court on Plaintiff Pacific Specialty
Insurance Company's (“Plaintiff” or
“Pacific Specialty”) Plaintiff's Motion to
Amend the Complaint (“the Motion” or “the
Motion to Amend”). [#39, filed May 28, 2019]. The
Motion to Amend is before the undersigned Magistrate Judge
pursuant to the Order Referring Case dated July 10, 2018
[#17] and the Memorandum [#40] May 28, 2019. Defendants have
not filed a Response to the Motion to Amend, and the time to
do so has lapsed. Accordingly, the court proceeds with the
Motion as briefed. D.C.COLO.LCivR 7.1(d). After carefully
reviewing the Motion, the case file, and the applicable law,
I respectfully RECOMMEND that the Motion to
Amend be GRANTED.
filed this case on April 13, 2018, seeking a declaratory
judgment that Pacific Specialty was not liable under an
insurance policy issued to Defendant Mendoza for an ATV
accident that occurred in Loveland, Colorado. See
generally [#1]. The insurance policy (“the
Policy”) covered the property at 615 Suntrail Drive in
Loveland (“the Property”). [Id. at
¶ 26]. Plaintiff seeks relief, in part, on the basis
that the location of the ATV accident was not covered under
the Policy. [Id. at ¶ 27]. Defendants filed an
Answer [#19] and the case proceeded to a Scheduling
Conference on August 28, 2018 after several unrelated delays.
The Scheduling Order provided that the deadline to seek
joinder of parties or amendment of pleadings was October 12,
2018. [#24 at 6].
months later, Plaintiff moved for summary judgment. [#26].
The parties then sought several different extensions of time
and modifications to the Scheduling Order which were granted.
[#28; #31; #32; #33; #35]. None of these, however, dealt with
the deadline to amend pleadings. [Id.]. Several
months later, Plaintiff filed the instant Motion to Amend.
[#39]. Under Local Rule 7.1(d), Defendants had twenty-one
days in which to respond. That deadline lapsed on June 18,
2019 with no response. Accordingly, the court proceeds solely
considering the Motion which is nominally opposed per the
certificate of conferral.
deadline to amend pleadings has long since passed, and
accordingly, this court must engage in a two-step analysis in
determining whether amendment at this juncture is proper
under both Rule 16(b)(4) and Rule 15 of the Federal Rules of
Civil Procedure. See Gorsuch, Ltd., B.C. v. Wells Fargo
Nat. Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir.
2014). Rule 16(b) provides that a scheduling order “may
be modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4). “In practice,
this standard requires the movant to show the
‘scheduling deadlines cannot be met despite [the
movant's] diligent efforts.'” Gorsuch,
771 F.3d at 1240 (citing Pumpco, Inc. v. Schenker
Int'l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001)).
This burden is satisfied, for example, when a party learns of
new information in a deposition or that the governing law has
changed. Id. “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).
15(a) provides that leave to amend “shall be freely
given when justice so requires.” Fed.R.Civ.P. 15(a).
The court may refuse leave to amend upon a showing of undue
delay, undue prejudice to the opposing party, bad faith or
dilatory motive, failure to cure deficiencies by amendments
previously allowed, or futility of amendment. Minter v.
Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006)
(quoting Forman v. Davis, 371 U.S. 178, 182 (1962)).
The party contesting the motion to amend has the burden of
proving that the amendment should be refused on one of these
bases. Acker v. Burlington N. & Santa Fe R. Co.,
215 F.R.D. 645, 654 (D. Kan. 2003).
proposed amendment is futile if the complaint, as amended,
would be subject to dismissal. Bradley v.
Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004); see,
e.g., id. (futile because claim was subject to
statute of limitations); Anderson v. Suiters, 499
F.3d 1228, 1238 (10th Cir. 2007) (futile for failure to
allege all elements of cause of action); Lind v. Aetna
Health, Inc., 466 F.3d 1195, 1200 (10th Cir. 2006)
(futile because amended claim would seek relief barred by
statute). In considering whether an amendment is futile,
courts apply the same standard used to evaluate a claim under
Rule 12(b)(6), accepting well-pleaded facts as true and
reviewing solely to determine if the Complaint states a
plausible claim for relief as amended. Weingarden v.
Rainstorm, Inc., No. 09-2530-JWL, 2012 WL 13026753, at
*1 (D. Kan. July 12, 2012). The decision to allow amendment
is within the trial court's discretion. Burks v.
Oklahoma Publ'g Co., 81 F.3d 975, 978-79 (10th Cir.
1996). The non-moving party bears the burden of showing that
the proposed amendment is sought in bad faith, that it is
futile, or that it would cause substantial prejudice, undue
delay or injustice. Corp. Stock Transfer, Inc. v. AE
Biofuels, Inc., 663 F.Supp.2d 1056, 1061 (D. Colo.
argues that amendment is appropriate here because Plaintiff
only recently learned that Defendant Mendoza misrepresented a
material fact in obtaining his insurance policy with Pacific
Specialty. [#39 at 1]. Specifically, Defendant Mendoza stated
in a May 16, 2019 deposition that he began renting the
Property “since the beginning, since [he] purchased the
house.” [#39-9 at 7]. This directly conflicts with the
representations made in obtaining the Policy from Plaintiff
where he asserted that the Property was his “primary
residence.” [#39-1 at 3; #39-2; #39-3]. Plaintiff seeks
to add claims for recession and breach of contract based on
these misrepresentations. The court finds that the amendment
has been timely pursued with due diligence because Mr.
Mendoza's deposition occurred on May 16, 2019 and
Plaintiff thereafter promptly sought amendment on May 28,
2019. Thus, the court finds that there is good cause for the
modification of the Scheduling Order under Rule 16(b)(4). In
addition, absent any objection by Defendants and clear
deficiency in the proposed Amended Complaint, this court
further finds that the proposed amendment is appropriate
under the standards of Rule 15. Corp. Stock
Transfer, 663 F.Supp.2d at 1061 (“The non-moving
party bears the burden of showing that the proposed amendment
is sought in bad faith, that it is futile, or that it would
cause substantial prejudice, undue delay or
foregoing reasons, I respectfully RECOMMEND
that Plaintiff Pacific Specialty Insurance Company's
Plaintiffs Motion to ...