United States District Court, D. Colorado
PATRICK J. LAURIENTI, Plaintiff,
AMERICAN ALTERNATIVE INSURANCE CORPORATION, Defendant.
RECOMMENDATION AND ORDER
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant's Motion
for Leave to Amend Answer to Include Additional Affirmative
Defenses Pursuant to Fed.R.Civ.P. 15(a)(2)
[#43] (the “Motion”). Pursuant to 28
U.S.C. § 636(b) and D.C.COLO.L.CivR 72.1(c), the Motion
has been referred to the undersigned for a recommendation
regarding disposition. [#18, #44]. The Court has reviewed the
Motion [#43], the Response [#47], the Reply [#48], the case
file, and the applicable law, and is sufficiently advised in
the premises. For the reasons set forth below, the Court
GRANTS IN PART the Motion [#43], and
recommends that the Motion [#43] be DENIED IN
filed his Complaint [#3] in Adams County District Court,
Colorado, on May 6, 2019, and Defendant removed the case to
this Court on June 13, 2019 [#1]. Plaintiff alleges that
Defendant has underpaid, unreasonably denied or delayed UIM
payments following a motor vehicle accident on May 16, 2017,
which occurred while Plaintiff was driving his employer's
vehicle insured by Defendant. Complaint [#3].
Plaintiff asserts the following claims in the Complaint [#3]:
(1) for UIM and Med Pay benefits allegedly owed under the
Policy; (2) unreasonable denial or delay of payment of first
party claims in violation of Colo. Rev. Stat. §§
10-3-1115 and 1116; and (3) bad faith breach of insurance
filed its Answer and Counter-Claim for Declaratory Relief
Pursuant to F.R.C.P. 57 [#13] on July 3, 2019. The
Counter-Claim [#13] seeks a determination as to whether
Defendant owes Plaintiff UIM benefits.
current counsel filed Entries of Appearance [#30, #31] on
September 13, 2019, after prior counsel withdrew from the
case [#37, #39]. On October 29, 2019, defense counsel filed
the instant Motion [#43] seeking to amend the Answer [#13] to
add two additional affirmative defenses: (1) reliance on
advice of counsel; and (2) collateral estoppel/issue
preclusion. Motion [#43] at 1.
preliminary matter, Plaintiff does not oppose the Motion
[#43] to the extent that Defendant seeks to amend the Answer
to add an affirmative defense of reliance on the advice of
counsel. See Pl.'s Resp. [#47] at 1. The Motion
[#43] notes as to that affirmative defense that during the
adjustment of the claim, Defendant hired early intervention
counsel, Nathan Dumm & Mayer, to advise it on applicable
Colorado law, and Defendant asserts that it relied upon that
advice in its decisions on adjusting Plaintiff's claim.
Id. at 3. To the extent Plaintiff alleges that
Defendant has “unreasonably” denied or delayed
payment, Defendant argues “that the reasonableness of
any denial or delay of payment should be gaged against the
backdrop of the advice given by early intervention
counsel.” Id. As Plaintiff does not oppose
this amendment, the Motion [#43] is granted
to the extent Defendant seeks to amend the Answer [#13] to
add the affirmative defense of reliance on advice of counsel.
Court now turns to the disputed portion of the motion seeking
to amend the Answer to add the affirmative defense of
collateral estoppel/issue preclusion. The pleading amendment
deadline expired on September 30, 2019. Sched. Order
[#24] at 10. The Motion [#43] was filed on October 29, 2019,
and is thus untimely. Accordingly, the Court must start its
analysis with whether Defendant has shown good cause under
Rule 16(b)(4). See 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)”); cf.
Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank
Ass'n, 771 F.3d 1230, 1241 (10th Cir. 2014) (holding
that the trial court did not abuse its discretion by using
“Rule 16's good cause requirement as the threshold
inquiry to consider whether amendments should be allowed
after a scheduling order deadline has passed”).
Defendant is entitled to amend its Answer only if it makes
the requisite showing at each step of the analysis. 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 schedule on a
showing of good cause if [the deadline] cannot be met despite
the diligence of the party seeking the extension.”
Pumpco, Inc. v. Schenker Intern. Inc., 204 F.R.D.
667, 668 (D. Colo. 2001) (citations omitted); accord
Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986
F.Supp. 959, 980 (D.S.C. 1997), aff'd, 129 F.3d
116 (4th Cir. 1997). If Defendant fails to show good cause
under Rule 16(b)(4), there is no need for the Court to move
on to the second step of the analysis, i.e., whether
Defendant has satisfied the requirements of Rule 15(a).
Nicastle v. Adams Cnty. Sheriff's Office, No.
10-cv-00816-REB-KMT, 2011 WL 1465586, at *3 (D. Colo. Mar.
Rule 16: Good Cause to Modify the Pleading Amendment
scheduling order deadline, such as the pleading amendment
deadline, “may be modified only for good cause with the
judge's consent.” Fed.R.Civ.P. 16(b)(4). This
“good cause” requirement reflects the important
role a scheduling order plays in the court's management
of its docket. Washington v. Arapahoe Cnty. Dep't of
Soc. Servs., 197 F.R.D. 439, 441 (D. Colo. 2000)