Opinion
Civil Action 1:23-cv-00802-RM-SBP
01-03-2024
ELIZABETH TRUJILLO and HAROLD RAMIREZ, Plaintiffs, v. MOORE BROTHERS, INC., FALCON EXPRESS, LLC, and GEORGE A. MYERS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SUSAN PROSE, UNITED STATES MAGISTRATE JUDGE
Plaintiffs have moved to add claims for exemplary damages and to bring claims against new defendants. ECF No. 52 (“Motion to Amend” or “Motion”). The Motion is fully briefed, and the court heard oral argument on the matter on December 19, 2023. ECF No. 67. For the following reasons, it is RECOMMENDED that the Motion be GRANTED in part and DENIED WITHOUT PREJUDICE in part.
The disposition of the present Motion is potentially dispositive of at least some of the parties' claims and defenses. Therefore, in an abundance of caution, the court proceeds by recommendation rather than by order.
BACKGROUND
This lawsuit stems from a motor vehicle accident that occurred on August 10, 2022, in Greeley, Colorado. In the operative Amended Complaint, ECF No. 22 (“Complaint”), Plaintiffs assert that Defendant George A. Myers was driving a semi-truck that struck Plaintiff Elizabeth Trujillo's car. Compl. ¶¶ 57-60. Mr. Myers is alleged to be an employee or independent contractor of Defendant Falcon Express, LLC, which owned the semi-truck-at the hearing, counsel referred to Mr. Myers and Falcon Express as “one and the same”-and/or Defendant Moore Brothers, Inc., which owned and maintained the flatbed trailer attached to the semi-truck. Id. ¶¶ 16-18. The operative complaint raises eight claims, all sounding in negligence, against the various Defendants. Id. ¶¶ 69-181. Moore Brothers and Falcon Express have moved to dismiss two claims in the Amended Complaint: Count III, a negligent hiring and supervision claim against Falcon Express, and Count IV, a claim for “negligent selection of independent contractor” against Moore Brothers and Falcon Express. Motion to Dismiss, ECF No. 28. The motion to dismiss is not referred to this court and is pending as of the date of this order.
The court collectively refers to Moore Brothers, Falcon Express, and Mr. Myers as “Defendants” or “the current Defendants.”
On June 6, 2023, this court entered a scheduling order, setting a deadline of September 1, 2023, to file motions for joinder of parties and amendment of pleadings. ECF No. 42 at 8. On August 30, 2023, Plaintiffs sought an extension of that deadline, which Defendants did not oppose. ECF No. 48 at 1. Plaintiffs specifically stated that they sought an extension to allow them “to proper[ly] ascertain whether additional parties may be join[ed] to this action.” Id. ¶ 7. The court granted the motion, extending the deadline for motions seeking joinder of parties and amendment of pleadings to October 1, 2023. ECF No. 50.
On that date-October 1, 2023-Plaintiffs filed the Motion to Amend. In their proposed Second Amended Complaint, ECF No. 52-1, Plaintiffs seek to add claims for exemplary damages against Mr. Myers and Moore Brothers, id. ¶¶ 239-43, 248-52, and a claim described as “vicarious liability for exemplary damages” against Falcon Express. Id. ¶¶ 244-47.
The proposed Second Amended Complaint also would bring four new defendants into this litigation: Nucor Corporation, Nucor-Yamato Steel Company, Nucor-Vulcraft Norfolk, and Nucor Logistics Center, Inc. (collectively, the “Nucor Defendants”). Motion to Amend at 4. According to Plaintiffs, the Nucor Defendants “were acting in a joint venture to employ” the current Defendants, making the current Defendants “agents” of the Nucor Defendants. Id. at 5. Plaintiffs further contend that “[t]he facts developed in discovery to date establish knowing failures by the Nucor Defendants in investigating and selecting Defendants . . . as it was clear that [the current Defendants] were not properly qualified to safely operate on its behalf and that they routinely employed sub-standard and unsafe equipment and maintenance practices.” Id. The proposed Second Amended Complaint raises two claims against the Nucor Defendants specifically: one entitled “Negligent Selection,” ECF No. 52-1 ¶¶ 213-26, and the other labeled “Joint Venture/Vicarious Liability/Statutory Employment.” Id. ¶¶ 227-38.
The Nucor Defendants are also added as defendants on the loss of consortium claim. ECF No. 52-1 ¶¶ 253-58.
Defendants filed a response in opposition to the Motion to Amend, ECF No. 55 (“Response”), and Plaintiffs replied. ECF No. 60 (“Reply”).
LEGAL STANDARDS
Federal Rule of Civil Procedure 15(a) . When, as here, a party seeks to amend pleadings before the expiration of the deadline set in the scheduling order, the court engages in a “single- tiered” analysis, assessing whether amendment is proper under Rule 15(a) of the Federal Rules of Civil Procedure. See Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass'n, 771 F.3d 1230, 1240-42 (10th Cir. 2014); Pumpco, Inc. v. Schenker Int'l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001); see also Openwater Safety IV, LLC v. Great Lakes Ins. SE, 435 F.Supp.3d 1142, 1151 (D. Colo. 2020) (“The 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, rather than a single-tiered analysis under Rule 15(a)[.]”).
Rule 15(a)(2) provides that “[t]he court should freely give leave [to amend] when justice so requires.” “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.” Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)). A general presumption exists in favor of allowing a party to amend its pleadings, see Foman v. Davis, 371 U.S. 178, 182 (1962), and the non-moving party bears the burden of showing that the proposed amendment is improper. Jefferson Cnty. Sch. Dist. No. R-1 v. Moody's Inv. Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999). Whether to allow amendment is within the trial court's discretion. See Burks v. Okla. Publ'g Co., 81 F.3d 975, 978-79 (10th Cir. 1996); see also Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001) (trial court has “broad discretion to permit a party to serve a supplemental pleading”).
Exemplary damages. With respect to exemplary damages, however, Rule 15(a)(2) and its standard of “freely” granting amendments do not apply; rather, Colorado Revised Statute § 13-21-102 governs proposed amendments concerning exemplary damages. See, e.g., Coomer v. Lindell, No. 22-cv-01129-NYW-SKC, 2023 WL 4408254, at *7 (D. Colo. July 7, 2023) (recognizing that courts in this district have found “no direct conflict between this statute and the Federal Rules of Civil Procedure, and that application of the statute would not necessarily result in forum shopping or the inequitable administration of the law,” and that “courts in this District have held that § 13-21-102, rather than Rules 15(a) or 16(b), controls whether to permit the amendment of a claim for exemplary damages) (collecting cases). Under the statute:
A claim for exemplary damages . . . may not be included in any initial claim for relief. A claim for exemplary damages in an action governed by this section may be allowed by amendment to the pleadings only after the exchange of initial disclosures pursuant to rule 26 of the Colorado rules of civil procedure and the plaintiff establishes prima facie proof of a triable issue. After the plaintiff establishes the existence of a triable issue of exemplary damages, the court may, in its discretion, allow additional discovery on the issue of exemplary damages as the court deems appropriate.Colo. Rev. Stat. § 13-21-102(1.5)(a).
Exemplary damages are permitted if the plaintiff shows that the defendant's actions resulted in injury “attended by circumstances of fraud, malice, or willful and wanton conduct.” Colo. Rev. Stat. § 13-21-102(1)(a). “Willful and wanton conduct is conduct that is “purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff.” Id. § 13-21-102(1)(b); see also Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59, 66 (Colo. 2005) (citing Tri-Aspen Const. Co. v. Johnson, 714 P.2d 484, 486 (Colo. 1986); Frick v. Abell, 602 P.2d 852, 854 (Colo. 1979)). In other words, conduct is willful and wanton if it is “‘a dangerous course of action' that is consciously chosen ‘with knowledge of facts, which to a reasonable mind creates a strong probability that injury to others will result.” Stamp v. Vail Corp., 172 P.3d 437, 449 (Colo. 2007) (finding evidence, including that a snowmobile was traveling at so high a speed that it “lifted off of the ground as it crested the blind knoll,” sufficient for a prima facie showing of willful and wanton conduct) (quoting Steeves v. Smiley, 354 P.2d 1011, 1014 (Colo. 1960) (holding that evidence of a driver's decision to travel at a high speed and to pass other cars at night on a single-lane highway, despite repeated warnings from his passengers that he was driving too fast, was sufficient to present the question of willful and wanton conduct to the jury in a wrongful death action)).
“Where the defendant is conscious of his conduct and the existing conditions and knew or should have known that injury would result, the statutory requirements” are met. Coors, 112 P.3d at 66; see also Blood v. Qwest Servs. Corp., 224 P.3d 301, 314 (Colo.App. 2009) (same).
“Simple negligence,” however, cannot support an award of exemplary damages. Blood, 224 P.3d at 314. As for “malicious” conduct, see § 13-21-102(1)(a), such conduct refers to “‘an intention or desire to harm another [usually] seriously through doing something unlawful or otherwise unjustified' or ‘revengeful or unfriendly feelings.'” Bonidy v. Vail Valley Ctr. for Aesthetic Dentistry, P.C., 232 P.3d 277, 286 (Colo.App. 2010) (quoting Webster's Third New Int'l Dictionary 1367 (2002)).
As to the requirement of a prima facie showing, see § 13-21-102(1.5)(a), a plaintiff must demonstrate “a reasonable likelihood that the issue will ultimately be submitted to the jury for resolution.” Stamp, 172 P.3d at 449 (quoting Leidholt v. Dist. Ct., 619 P.2d 768, 771 n.3 (Colo. 1980)). “Prima facie evidence is evidence that, unless rebutted, is sufficient to establish a fact.” Id. The evidence, which the court views in the light most favorable to Plaintiffs, must only be enough for a prima facie showing of willful and wanton behavior, not enough to “defeat a motion for summary judgment or to result in a jury verdict in Plaintiff's favor.” Hendrickson v. Doyle, No. 14-cv-02013-WJM-KLM, 2015 WL 2106225, at *3 (D. Colo. May 4, 2015); see also RCHFU, LLC v. Marriott Vacations Worldwide Corp., No. 16-cv-1301-PAB-GPG, 2018 WL 3055772, at *4 (D. Colo. May 10, 2018) (“At this stage of the litigation, the Court is only concerned with whether the evidence, when viewed in the light most favorable to Plaintiffs, is sufficient to make out a prima facie case of willful and wanton behavior for the purpose of allowing Plaintiffs to amend their Complaint to include exemplary damages, not whether such evidence is sufficient to defeat a motion for summary judgment or to result in a jury verdict in Plaintiffs' favor.”); Am. Econ. Ins. Co. v. William Schoolcraft, M.D., P.C., No. 05-cv-01870-LTB-BNB, 2007 WL 160951, at *4 (D. Colo. Jan. 17, 2007) (“I am concerned here only with the preliminary question of whether [the plaintiffs] have made a prima facie case under § 13-21-102(1.5)(a), not with summary judgment.”).
Finally, “[e]ven with the application of § 13-21-102,” the court nevertheless “may deny a motion to amend to add exemplary damages because of delay, bad faith, undue expense, or other demonstrable prejudice.” Franklin D. Azar & Assocs., P.C. v. Executive Risk Indemnity, Inc., No. 22-cv-01381-RMR-NRN, 2023 WL 7130144, at *2 (D. Colo. Oct. 10, 2023) (citing Stamp, 172 P.3d at 449).
ANALYSIS
The court turns to the parties' arguments for and against the proposed amendments, beginning with the exemplary damages question.
I. Motion to Add Claims for Exemplary Damages
The court must consider whether Plaintiffs have offered evidence to establish a prima facie case that “Defendants were conscious of their conduct and the existing conditions and knew or should have known that injury would result,” in order to determine whether they may be allowed to include a claim for exemplary damages. Coors, 112 P.3d at 66. To meet their prima facie burden, Plaintiffs rely on five primary allegations:
1. The condition of the flatbed trailer attached to the truck driven by Mr. Myers allegedly “was such that even a cursory visual inspection” would have revealed that the “[b]rake chambers of the trailer were rusted completely through with the springs visible.” Motion at 8. Plaintiffs presented photographs appearing to show a rusted cap on one of the brake chambers on the trailer, as well as one worn tire. ECF Nos. 52-3, 52-4.
2. Mr. Myers, Plaintiffs contend, “would have had to have observed” these purported defects in his daily pre-and-post-trip inspections of the trailer, but Mr. Myers allegedly “falsified the inspection records to give the equipment an ‘all clear.'” Motion at 9.
3. Mr. Myers estimated that “it takes about 15 minutes for him to do a pre-trip inspection if he does it all at once, excluding the time spent during the day just checking up on the truck,” ECF No. 52-5 at 4, but his logs show that he “consistently logged under 5 minutes for such inspections daily.” Motion at 9.
4. The allegedly “defective condition of the tires and brakes, wear and rust,” on the trailer “would have been present over the course [sic] months, if not years, and such deterioration would have been noticed by Moore Brothers staff and brake technicians during yearly and other inspections. Despite this, the inspection records for the trailer . . . show pristine marks for these components.” Motion at 10; ECF No. 52-8 (inspection records).
5. Lastly, Plaintiffs point to a document labeled “7.29.22 Inspections and Violations of Defendants Moore Brothers,” ECF No. 52-10, downloaded from the U.S. Department of Transportation Federal Motor Carrier Safety Administration Safety and Fitness Electronic Records (“SAFER”) System. This document provides a snapshot of violations incurred by vehicles and drivers in the Moore Brothers's fleet during the 24-month period predating July 29, 2022-about two weeks prior to the accident-but neither Mr. Myers
nor the trailer he was pulling at the time of the accident were among the violators.
At oral argument, Defendants made a limited evidentiary presentation concerning the operation of the trailer's braking system, but the court here considers only the evidence put forward by Plaintiffs. See Affordify, Inc. v. Medac, Inc., No. 19-cv-02082-CMA-NRN, 2020 WL 6290375, at *5 (D. Colo. Oct. 27, 2020) (observing that the court looks only to evidence presented by the plaintiff, and that “[c]ontrary evidence is not part of the equation”) (citing Bituminous Cas. Corp. v. Hartford Cas. Inc. Co., No. 12-cv-00043-WYD-KLM, 2013 WL 676157, at *3 (D. Colo. Dec. 18, 2013)).
Even considering the foregoing information in the light most favorable to Plaintiffs, the court finds they have not adequately alleged that any Defendant consciously and purposefully engaged in conduct a reasonable jury could find was willful and wanton, nor have Plaintiffs supported their allegations with adequate evidence. See Colo. Rev. Stat. § 13-21-102(1)(b); Coors, 112 P.3d at 66.
Considering first point number 1-the photographs depicting a rusted cap on one of the brake chambers on the trailer and a worn tire on the trailer-the court is unable to find that these pictures are sufficient prima facie evidence of scienter or purposeful conduct on the part of any Defendant. The photographs, which were taken in September 2022 (approximately one month after the accident), are essentially presented in isolation, with no factual context that might suggest a conscious appreciation of these conditions by any Defendant: i.e., that any of them knew or should have known about these conditions and that injury would result if those conditions were left unattended. Coors, 112 P.3d at 66. Critically, while Plaintiffs point to the existence of these conditions, they make no attempt at a prima facie showing connecting those conditions to the accident itself. At oral argument, this court asked counsel whether Plaintiffs assert that the defects illustrated in the photographs indicate a malfunction in the trailer's brake system that caused or contributed to the accident. Counsel declined to commit to that position. Plaintiffs also have not alleged that they can muster expert testimony purporting to establish a causal connection-this, despite the fact that an expert has been involved in Plaintiffs' case.
It came to light at oral argument that a mechanical engineer retained by Plaintiffs was present at the inspection of the trailer in September 2022. As counsel noted, that expert has not yet submitted a report in this case, but that would not have precluded Plaintiffs from alleging that they will be able to present expert testimony concerning alleged defects in the trailer's brakes, what Defendants should have known about those defects, and how those defects caused or contributed to the accident. Plaintiffs have not done so.
Taking all reasonable inferences in Plaintiffs' favor, the support for adding exemplary damages claims against the current Defendants consists of (1) photographs of a rusted cap on a brake chamber of the trailer, as well as a worn tire, (2) argument by counsel that Defendants knew or should have known about these defects and took no action to rectify them, and (3) Moore Brothers'sDOT record reflecting violations involving other vehicles and other drivers. See points 2-5, above. But the missing component of Plaintiffs' presentation is any evidence demonstrating that the defects Plaintiffs discern in the pictures in fact created a dangerous condition that compromised the operational safety of this trailer specifically, and that Defendants consciously ignored this dangerous condition with the near-certain knowledge that injury to someone would result. Stamp, 172 P.3d at 449. Inferences drawn by Plaintiffs' counsel based on their interpretation of the photographs (from their perspective, the photographs illustrate an “open and obviously dangerous condition,” see ECF No. 60 at 146)-and counsel's corollary supposition that the numerous documented inspections of the trailer by Moore Brothers and Mr. Myers were therefore slipshod, if not entirely fabricated-are not substantive evidence. To be sure, the threshold for finding that Plaintiffs have put forth sufficient evidence to support a prima case of exemplary damages is not high, but some evidence is required, and the court cannot find that even this low bar is met here.
Counsel's assertion that the trailer had “completely rusted through brake chambers and bald tires,” ECF No. 60 at 11 (emphasis added), is not reasonably supported by the photographs presented to the court, nor have Plaintiffs provided any independent evidentiary support for this assertion.
At oral argument, counsel for Plaintiffs suggested that they were being held to a “summary judgment” standard. That is not so. The court's finding here is based on its assessment that Plaintiffs' current evidentiary presentation fails to meet even the low prima facie standard, for the reasons stated in this recommendation.
In sum, the court finds that Plaintiff's allegations at this point are inadequate to make a prima facie showing that the trailer was in fact in a dangerous condition that contributed to the collision, that any Defendant possessed a conscious awareness of that objectively dangerous condition and chose to ignore it, and that any Defendant knew or should have that that objectively dangerous condition would lead to someone's injury. Coors, 112 P.3d at 66. Plaintiffs' support for those points currently rests on speculation that the trailer's braking system was actually compromised and conjecture about Defendants' state of mind. But that could change. Plaintiffs have not yet deposed Mr. Myers or the Moore Brothers's personnel who allegedly overlooked the defects that Plaintiffs' argue are plainly illustrated in the photographs. By means of that testimony, as well as expert evidence to be adduced as the case proceeds, Plaintiffs might succeed in raising a jury question on the issue of exemplary damages against the current Defendants. However, as the record now stands, the court finds itself compelled to conclude that there is no “a reasonable likelihood that the issue [of exemplary damages] will ultimately be submitted to the jury for resolution.” Stamp, 172 P.3d at 449.
The evidence at present appears to be more consistent with the conclusion that the accident is attributable to simple inattention by Mr. Myers. See Blood, 224 P.3d at 314 (“[s]imple negligence cannot support” an award of exemplary damages).
For these reasons, the court respectfully finds that Plaintiffs have not met their burden under Colo. Rev. Stat. § 13-21-102 to add a claim for exemplary damages against any current Defendant and recommends that the Motion be denied without prejudice on this point.
II. Motion to Add Claims Against the Nucor Defendants
Defendants also oppose that aspect of the Motion seeking an amendment to add claims against the Nucor Defendants on two grounds: (1) futility and (2) dilatory motive and bad faith. ECF No. 55 at 7. The court is not persuaded that the proposed amendment falls within that rare category of claims in which amendment should be refused.
A. Futility
The crux of Defendants' futility argument is that Plaintiffs have not plausibly alleged a “legally cognizable duty” on the part of the Nucor Defendants. As Defendants describe the scenario, the accident occurred when Mr. Myers was headed home to Nebraska, having “delivered the load [of Nucor steel products] as agreed and was not carrying anything for Nucor or doing anything at Nucor's direction at the time of the subject accident.” Id. at 8. Defendants point to the “coming and going” rule under Colorado law, which recognizes that a person going to or from work generally is not deemed to be acting in the service of an employer. Id. at 10 (citing Beeson v. Kelran Constructors, Inc., 608 F.2d 369, 371 (Colo.App. 1979)). Plaintiffs dispute the application of the coming-and-going rule under the circumstances here, where “Defendants were still on dispatch for and completing the work assigned to them by the Nucor Defendants until they reached home or accepted another load[.]” ECF No. 60 at 8. Plaintiffs point to authority from other jurisdictions holding that, in the trucking context, the driver's “assignment does not terminate at the point of delivery.” Id. (quoting St. Paul Fire Ins. Co. v. Frankart, 370 N.E.2d 1058, 106 (Ill. 1977)); see also id. at 8-9 (collecting cases).
This is the sort of vigorous debate about an unsettled question of law which, in this court's view, is better addressed on a motion to dismiss. Even Defendants acknowledge, if but implicitly, that the proposed amendment to add the Nucor Defendants is not patently futile. ECF No. 55 at 10 (admitting that “it is at least conceivable that one or more of the Nucor parties could owe a duty were Defendants or one of them actually performing work for or at the request of a Nucor party”) (emphasis added); Swanson v. N. Light Specialty Ins. Co., No. 20-cv-03778-RMR-NRN, 2022 WL 500294, at *5 (D. Colo. Feb. 18, 2022) (declining to consider futility argument where the proposed amendment was not “not patently futile on its face”). And Defendants concede that there is no Colorado law that applies the coming-and-going rule in the precise circumstances at issue here. In light of these considerations, Defendants' “futility argument seems to place the cart before the horse. Rather than force a Rule 12(b)(6) motion into a Rule 15(a) opposition brief, the defendants may be better served by waiting to assert Rule 12 motions until the operative complaint is in place.” Gen. Steel Domestic Sales, LLC v. Steelwise, LLC, Civ. No. 07-cv-01145, 2008 WL 2520423, at *4 (D. Colo. June 20, 2008); see also Agere Sys. Guardian Corp. v. Proxim, Inc., 190 F.Supp.2d. 726, 736 (D. Del. 2002) (“[T]his court hesitates to undergo a rigorous 12(b)(6) analysis of the claims alleged to be futile based on less than complete briefing, especially in light of the deferential standard under which the court must consider 12(b)(6) motions. The court believes the better course is to liberally allow amendments that state a colorable claim and defer judgment as to whether they survive a motion to dismiss for failure to state a claim until such time when that motion is raised.”).
Nor do Defendants dispute that, under Colorado law, there exists a duty to select a competent contractor, as defense counsel acknowledged at the oral argument. See Western Stock Center, Inc. v. Sevit, Inc., 578 P.2d 1045, 1048 (Colo. 1978).
This court is not indifferent to Defendants' contention that Plaintiffs' proposed amendment urges an “unusual and expansive” recognition of a duty. ECF No. 55 at 10. However, the same can be said of many claims, and Defendants have identified no on-point authority, either from this court or a Colorado state court, that explicitly rejects such a duty. Absent such clarity, this Court cannot conclude, in the context of a motion to amend, that the proposed amendment is futile. Amendments of pleadings, after all, “are liberally allowed in recognition of one of the basic policies of the rules of civil procedure-‘that pleadings are not an end in themselves but are only a means to assist in the presentation of a case to enable it to be decided on the merits.'” Scheeler v. Canopy Holdings, LLC, No. 22-cv-02417-DDD-NRN, 2023 WL 3819341, at *2 (D. Colo. June 5, 2023) (quoting 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1473 at p. 521); Romero v. Reams, No. 18-cv-02575-RM-NRN, 2020 WL 6044323, at *5 (D. Colo. Oct. 13, 2020) (recognizing that, where cases raise complex issues of law, the “better course is to liberally allow amendments that state a colorable claim and defer judgment as to whether they survive a motion to dismiss for failure to state a claim until such time when that motion is raised”). And the argument that the claims represent an unwarranted expansion of the concept of duty under Colorado law is one that the Nucor Defendants themselves will be better-positioned to make.
The court expresses no opinion concerning the merits of the amended claims and whether they would survive a motion to dismiss.
Because the circumstances here do not allow this court to conclude that the complaint, as amended, would be subject to dismissal, the court cannot find that the proposed amendment is futile. The sufficiency of Plaintiffs' allegations against the Nucor Defendants should be vetted in a thoroughly-briefed Rule 12(b)(6) motion, should one be filed. See Fuller v. REGS, LLC, No. 10-cv-01209-WJM-CBS, 2011 WL 1235688, at *3 (D. Colo. Mar. 31, 2011) (“In exercising its discretion under Rule 15(a), the court must also be guided by pragmatism and efficiency.”).
B. Undue prejudice, dilatory motive, and bad faith
The court's conclusion that amendment should be allowed is not altered by Defendants' second argument in opposition to the proposed amendment: that it is made in bad faith and for a dilatory motive. ECF No. 55 at 10-12.
Defendants' argument on these points hinges on a purported settlement between the parties which Defendants unsuccessfully sought to enforce. See ECF No. 51 (Motion to Enforce Settlement). Judge Moore denied that motion on December 13, 2023, finding that no settlement agreement was reached. Id. at 5-6. This court thus infers no bad faith or dilatory motive on the basis of a non-existent agreement to settle the case.
Nor is this Court persuaded that there is undue prejudice to the current Defendants associated with the addition of claims against the Nucor Defendants. At oral argument, counsel argued that the current Defendants are prejudiced because they have already filed two motions to dismiss certain claims against Falcon Express and Moore Brothers-the second motion to dismiss having been filed in response to an earlier amendment permitted as a matter of course under Rule 15(a)(1)(B). See ECF Nos. 10, 28 (motions seeking partial dismissal); see also ECF No. 23 (Notice of Filing of Amended Complaint). While the court appreciates the frustration associated with the need to respond to amended pleadings, it is by no means uncommon-nor is it by definition inappropriate-for a plaintiff to amend its complaint to add related claims against new defendants after a motion to dismiss has been filed. Too, this case is not exceptionally old. See ECF No. 1 (removal from Boulder County District Court on March 30, 2023). Neither is the case so far advanced that an amendment will unfairly compromise the current Defendants “in terms of preparing their defense to the amendment.” See Kelley, 2020 WL 6870752, at *2.
Indeed, based on the parties' statements at oral argument, it appears that the current parties have yet to take any depositions.
If this recommendation is adopted, the court likely will set a new discovery schedule, as happens in most every case in which new parties are added by amendment.
Finally, the court perceives no undue delay associated with Plaintiffs' proposed amendment concerning the Nucor Defendants. The court does not doubt that Plaintiffs first heard of the potential involvement of one or more of the Nucor Defendants as early as June 5, 2023, when the current Defendants made their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1). See ECF No. 55 at 10-11 (describing documents referencing various Nucor entities). But it was not unreasonable for Plaintiffs to take some time to investigate the viability of possible claims against the Nucor entities, including by conducting some discovery, before proposing to bring the Nucor Defendants into this case. Perhaps Plaintiffs might have accomplished this review somewhat more expeditiously, but the court does not find that four months is an inordinate amount of time under the circumstances. See, e.g., Cohen v. Longshore, 621 F.3d 1311, 1313 (10th Cir. 201) (citing cases finding undue delay where amendment was sought 14 to 17 months after filing of initial complaint and no good reason for the delay was offered); McCain v. Taylor, No. 09-cv-02982-LTB-KLM, 2010 WL 2521065, at *1 (D. Colo. June 17, 2010) (133 days not an undue delay); see also Mock v. Allstate Ins. Co., 17-CV-02592-KLM, 2018 WL 6243912, at *3 (D. Colo. Aug. 31, 2018) (three months not an undue delay).
This is particularly so where the amendment was sought within the time allotted by the scheduling order. ECF No. 50 (granting unopposed motion to extend deadline to seek amendment of pleadings).
* * *
In sum, the court finds no basis to conclude that the amendment to add the Nucor Defendants is futile, that it is unduly prejudicial to the current Defendants, or that it was brought in bad faith or with dilatory motive.
CONCLUSION
For the reasons set forth above, the court respectfully recommends that the Motion to Amend be granted to the extent that Plaintiffs seek to add claims against the Nucor Corporation, Nucor-Yamato Steel Company, Nucor-Vulcraft Norfolk, and Nucor Logistics Center, Inc., and that the Motion be denied without prejudice to the extent Plaintiffs seek to raise claims for exemplary damages against Defendants Moore Brothers, Inc., Falcon Express, LLC, and George A. Myers.
Because the Second Amended Complaint will not alter the substance of the claims asserted against Defendants Falcon Express, LLC and Moore Brothers, Inc., they need not file a new motion to dismiss. The court will consider the [28] Motion to Dismiss as to the Second Amended Complaint, unless the Defendants seek leave to file an amended motion.