United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Plaintiff's Motion
to Amend Complaint [#30] (the “Motion”).
Defendant filed a Response [#31] in opposition to the Motion,
and Plaintiff filed a Reply [#33]. The parties have consented
to proceed before the undersigned for all proceedings
pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR
72.2(d). See [#19, #24]. The Court has reviewed the
entire case file and the applicable law and is sufficiently
advised in the premises. For the reasons set forth below, the
Motion [#30] is GRANTED.
filed suit on November 13, 2018, alleging that Defendant
Arapahoe County Sheriff Tyler Brown discriminated against her on
the basis of her race, sex, and national origin, and
retaliated against her in violation of Title VII of the 1964
Civil Rights Act and the Colorado Anti Discrimination Act
(“CADA”). See generally First Am. Compl. and
Jury Demand [#8].
present Motion, Plaintiff moves for leave to file her Second
Amended Complaint and Jury Demand [#30-3] (the “Second
Amended Complaint”), which seeks to add an additional
claim of retaliation under both Title VII and the CADA.
Proposed Second Am. Compl. [#30-3] ¶¶ 22,
32. This new claim stems from Plaintiff's allegation that
on March 27, 2019, she was summoned by a supervising officer
and presented with a “Remediation Plan” which
requires her to undergo twenty-four hours of additional
remedial training. Id. Plaintiff alleges that she
had already completed remedial training on February 13, 2015,
and that this additional remedial training constitutes
continued and unlawful harassment and retaliation.
Id. As relevant to the Motion [#30], this alleged
retaliation occurred after Plaintiff initiated this action
and days after the expiration of the deadline to amend
pleadings. Defendant opposes the Motion [#30] on the grounds
that Plaintiff's new claim for retaliation under Title
VII is futile.
preliminary matter, the deadline for the amendment of
pleadings was March 14, 2019. Scheduling Order [#22]
at 8. Plaintiff filed the present Motion [#30] on April 5,
2019, and therefore the Motion is untimely. “After a
scheduling order deadline, a party seeking leave to amend
must demonstrate (1) good cause for seeking modification
under Fed.R.Civ.P. 16(b)(4); and (2) satisfaction of the Rule
15(a) standard.” Gorsuch, Ltd., B.C. v. Wells Fargo
Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir.
2014) (internal quotations omitted); see,
e.g., Petekeiwicz v. Stembel, No.
13-cv-1865-RM-KLM, 2015 WL 1740386, at *4 (D. Colo. Apr. 14,
2015); Nicastle v. Adams Cty. Sheriff's Office,
No. 10-cv-816-REB-KMT, 2011 WL 1465586, at *3 (D. Colo. Mar.
14, 2011), adopted by 2011 WL 1464588 (D. Colo. Apr.
18, 2011). Accordingly, the Court will address Rules 16 and
15 in turn.
Good Cause Under Fed.R.Civ.P. 16(b)(4)
Rule 16(b), a Scheduling Order deadline “may be
modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4). The Rule 16(b)(4)
standard requires the movant to show that, despite the
movant's diligent efforts, he or she could not meet the
scheduling deadline. Birch v. Polaris Indus.,
Inc., 812 F.3d 1238, 1247 (10th Cir. 2015);
Pumpco, Inc. v. Schenker Int'l, Inc., 204 F.R.D.
667, 668 (D. Colo. 2001); Minter v. Prime Equip.
Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006). To prove
diligence, a plaintiff must provide an adequate explanation
for any delay. Minter, 451 F.3d at 1205 n.4. If the
plaintiff knew of the conduct substantiating the claims she
seeks leave to add, but simply failed to raise the claims,
the plaintiff has failed to show good cause, and the claims
are barred. Birch, 812 F.3d at 1247. Denial is
appropriate when the moving party does not demonstrate good
cause for her failure to file the motion prior to the
Scheduling Order deadline. Minter, 451 F.3d at 1205.
Plaintiff seeks to amend her complaint to include an
additional claim for retaliation that occurred days after the
expiration of the deadline to amend pleadings.
Motion [#30] at 2. Simply put, it was not possible
for Plaintiff to amend her complaint with these facts until
after the deadline. Thus, there is no reason to believe that
this failure to amend before the deadline passed is
attributable to a lack of diligence on the part of Plaintiff,
and Plaintiff's explanation for the delay is compelling.
See Colo. Visionary Acad. v. Medtronic, Inc., 194
F.R.D. 684, 687 (D. Colo. 2000) (holding that “[t]o
establish good cause, the party seeking to extend the
deadline must establish that the scheduling order's
deadline could not have been met with diligence.”
(quoting Denmon v. Runyon, 151 F.R.D. 404, 407 (D.
Kan. 1993)). Furthermore, Defendant does not argue whether
good cause to amend exists. See generally Response
[#31] at 4. Accordingly, the Court concludes that Plaintiff
has demonstrated good cause, and Rule 16(b)(4) is satisfied.
Futility Under Fed.R.Civ.P. 15(a)(2)
Court has discretion to grant a party leave to amend its
pleadings. Foman v. Davis, 371 U.S. 178, 182 (1962);
see Fed. R. Civ. P. 15(a)(2) (“The court
should freely give leave when justice so requires.”).
The purpose of the rule is to provide litigants “the
maximum opportunity for each claim to be decided on its
merits rather than on procedural niceties.”
Minter, 451 F.3d at 1204. “Refusing leave to
amend is generally only justified 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.”
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th
Cir. 1993) (citation omitted). “[Defendant] bear[s] the
burden of showing that the proposed amendment is sought in
bad faith [or is] futile.” Corp. Stock Transfer,
Inc. v. AE Biofuels, Inc., 663 F.Supp.2d 1056, 1061 (D.
Colo. 2009) (citing Fluker v. Fed. Bureau of
Prisons, No. 07-cv-02426-CMA-CBS, 2009 WL 1065986, at *4
(D. Colo. Apr. 21, 2009)). Here, Defendant opposes the Motion
[#30] only on the basis of futility. Response [#31]
amendment is futile only if it would not survive a motion to
dismiss. See Bradley v. Val-Mejias, 379 F.3d 892,
901 (10th Cir. 2004) (citing Jefferson Cty. Sch. Dist. v.
Moody's Inv'rs Servs., 175 F.3d 848, 859 (10th
Cir. 1999)). “In ascertaining whether plaintiff['s]
proposed amended complaint is likely to survive a motion to
dismiss, the court must construe the complaint in the light
most favorable to plaintiff[ ], and the allegations in the
complaint must be accepted as true.” Bennett v.
Wells Fargo Home Mortg., No. 16-cv-03185-CMA-KLM, 2017
WL 4675524, at *1 (D. Colo. Oct. 18, 2017) (citing Murray
v. Sevier, 156 F.R.D. 235, 238 (D. Kan. 1994)).
Moreover, “[a]ny ambiguities must be resolved in favor
of plaintiff[ ], giving [plaintiff] ‘the benefit of
every reasonable inference' drawn from the
‘well-pleaded' facts and allegations in [the]
VII prohibits an employer from engaging in certain behavior,
including discriminating against any individual
“because of such individual's race, color,
religion, sex, or national origin. . . .” 42 U.S.C.
§ 2000e-2(a). Title VII also forbids an employer from
retaliating against an individual because the individual
“has opposed any practice made an unlawful employment
practice” by Title VII. 42 U.S.C. § 2000e-3(a). A
plaintiff may prove discrimination and retaliation by either
direct or circumstantial evidence. See Adamson v. Multi
Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145
(10th Cir. 2008); Anderson v. Acad. Sch. Dist. 20,
122 Fed.Appx. 912, 916 (10th Cir. 2004). Direct evidence
demonstrates on its face that retaliation was a motive for
the challenged action. Univ. Of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 361(2013). In contrast,