United States District Court, D. Colorado
ORDER DENYING MOTION TO AMEND
Y. Wang United States Magistrate Judge
matter comes before the court on Plaintiff Candice
Borgonah's “Motion for Leave to Amended [sic] First
Amended Complaint” (the “Motion to Amend”
or “Motion”), filed July 22, 2019. [#26]. The
court considers the Motion pursuant to 28 U.S.C. §
636(c) and the Order of Reference for all purposes dated
February 1, 2019 [#10]. The court concludes that oral
argument will not materially assist in the resolution of this
matter. Accordingly, having reviewed the Motion and
associated briefing, the applicable case law, and the docket,
the court DENIES the Motion to Amend for the
reasons stated herein.
court has discussed the background of this matter in its
prior Orders, see [#13; #24], and therefore limits
its discussion here to only the most salient facts. Ms.
Borgonah (“Plaintiff” or “Ms.
Borgonah”), who is Asian and whose nationality is
Indian, worked for Defendant Rocky Mountain Health Center
Pediatrics P.C.'s (“Defendant” or
“RMHCP”) as a Practice Administrator from about
November 17, 2014 to November 3, 2016. See [#14 at
7, 12]. According to Ms. Borgonah, she was the only employee
of Indian national origin at RMHCP and RMHCP's owner Dr.
Kimberly Mourani and its agents Karolynn St. Pierre and Carli
Seeba treated Plaintiff differently than similarly-situated
non-Asian, non-Indian employees. See [#14 at 7-8,
RMHCP's conduct constituted a violation of her civil
rights, Plaintiff filed a charge of discrimination and
retaliation with the Equal Employment Opportunity Commission
(“EEOC”) on February 10, 2017. See [#1
at 3, 11]. On September 6, 2018, the EEOC issued Plaintiff a
Notice of Right to Sue letter. See [id. at
7-8]. Plaintiff initiated this action by filing her pro
Complaint on December 4, 2018. See [#1]. RMHCP moved
to dismiss Plaintiff's original Complaint on January 3,
2019, arguing that Ms. Borgonah failed to plead plausible
Title VII claims for disparate treatment and retaliation and
did not exhaust her administrative remedies related to any
tortious interference claim. See [#6; #11]. The
court granted in part the initial Motion to Dismiss as to
Plaintiff's Title VII claims, but afforded Plaintiff
leave to amend these claims, and denied in part the initial
Motion to Dismiss as to Plaintiff's tortious interference
claim. See [#13].
then filed her Amended Complaint on March 14, 2019.
See [#14]. Plaintiff's Amended Complaint
asserted Title VII claims for disparate treatment based on
race and national origin (“Claim 1”) and hostile
work environment (“Claim 2”) as well as state law
claims for wrongful discharge (“Claim 3”) and
tortious interference (“Claim 4”). [#14].
Defendant moved to dismiss the Amended Complaint in its
entirety, arguing that Plaintiff failed to plead adequate
facts to state plausible claims for relief. See
[#15]. On June 10, 2019, the court granted in part and denied
in part the Motion to Dismiss the Amended Complaint, holding
that Claims 1 and 3 pleaded plausible claims for relief while
Claims 2 and 4 did not. See [#24]. In so ruling, the
court provided Plaintiff until July 24, 2019 to file a formal
Motion to Amend addressed only at the deficiencies
identified with Claims 2 and 4, and informed Ms. Borgonah
that any such motion would need to satisfy the standards of
Rules 16(b)(4) and 15(a)(2) of the Federal Rules of Civil
Procedure. See [id. at 11 & n.6].
Borgonah filed the instant Motion to Amend on July 22, 2019.
[#26]. She requests leave to amend her Amended Complaint to
add allegations bolstering her hostile work environment claim
and to assert a new claim for violations of the Colorado Wage
Act, Colo. Rev. Stat. §§ 8-4-101 et seq.
[Id.]. Defendant has since responded in opposition
to the Motion. See [#27]. And although Ms. Borgonah
has not filed her Reply, the time to do so has since expired,
and I conclude that the Motion is ripe for disposition
presently. See D.C.COLO.LCivR 7.1(d) (“Nothing
in this rule precludes a judicial officer from ruling on a
motion at any time after it is filed.”). Accordingly, I
consider the Parties' arguments below.
courts in this District have repeatedly observed, a
“Scheduling Order is not a frivolous piece of paper,
idly entered, which can be cavalierly disregarded by counsel
without peril.” E.g., Lehman Bros.
Holdings Inc. v. Universal Am. Mortg. Co., LLC, 300
F.R.D. 678, 681 (D. Colo. 2014). Indeed, a Scheduling Order
is an important tool used for the orderly preparation of a
case for trial and to avoid surprise to the parties and to
the court. Id. Accordingly, Rule 16(b)(4) of the
Federal Rules of Civil Procedure expressly provides that
“[a] schedule may be modified only for good cause and
with the judge's consent.” Fed.R.Civ.P. 16(b)(4).
The court repeated the same admonition in the Scheduling
Order entered in this matter. [#21 at 8].
purpose of the deadline to amend pleadings and join parties,
as set out in a Scheduling Order, is to force the parties to
prioritize their discovery to obtain the information
necessary to know if amendment is required sooner rather than
later. This also ensures that discovery proceeds in an
orderly fashion. See Valles v. Gen-X Echo B, Inc.,
Civil Action No. 13-cv-00201-RM-KLM, 2013 WL 5832782, *3 (D.
Colo. Sept. 27, 2013). Accordingly, when a party seeks to
amend pleadings after the deadline set in the Scheduling
Order, the court's consideration is subject to a
two-prong analysis. First, the party must establish good
cause under Rule 16(b)(4) of the Federal Rules of Civil
Procedure. See Gorsuch, Ltd., B.D. v. Wells Fargo
Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir.
2014). Only if the party establishes good cause does the
court turn to whether amendment is proper under Rule 15(a) of
the Federal Rules of Civil Procedure. Id. at 1242;
Pumpco, Inc. v. Schenker Int'l, Inc., 204 F.R.D.
667, 668 (D. Colo. 2001).
determination of good cause under Rule 16 lies within the
sound discretion of the court. Fed.R.Civ.P. 16(b)(4). The
inquiry under the Rule focuses on the diligence of the party
seeking leave to amend. A party establishes good cause when
she demonstrates that she could not have met the deadline as
set in the Scheduling Order despite her best efforts.
Pumpco, 204 F.R.D. at 668. A party's delay in
performing the pretrial preparation necessary to recognize a
claim or defense does not satisfy Rule 16(b)(4)'s good
cause standard. See Colo. Visionary Acad. v. Medtronic,
Inc., 194 F.R.D. 684, 688 (D. Colo. 2000). In analyzing
good cause, the court focuses on Ms. Borgonah's diligence
in seeking leave to amend, not the prejudice to the opposing
party. Id. at 687.
Order on the Motion to Dismiss the Amended Complaint, the
court explained, “The deadline to amend pleadings
expired on July 5, 2019. Any forthcoming Motion to Amend must
therefore satisfy the standards of both Rule 16(b)(4) and
Rule 15(a)(2) of the Federal Rules of Civil Procedure.”
[#24 at 11 n.6]. But Ms. Borgonah (like RMHCP) does not
address Rule 16(b)(4) or offer any explanation as to why,
despite her diligence, she could not comply with the
Scheduling Order's deadline for the amendment of
pleadings. Rather, Ms. Borgonah's Motion to Amend
reiterates many of her factual allegations that she has
raised since the inception of this lawsuit in various
pleadings and papers, though she now provides further
documentary support for her alleged position. This, however,
is insufficient to satisfy Rule 16(b)(4)'s good cause
requirement. See Husky Ventures, Inc. v. B55 Investments,
Ltd., 911 ...