Opinion
Civil Action 19-cv-02304-RM-STV
09-08-2022
ETHAN WEST-HELMLE, Plaintiff, v. DENVER COUNTY JUDICIARY, and UNIVERSITY OF DENVER, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak United States Magistrate Judge
This matter is before the Court on Plaintiff's Motion to Amend Third Amended Complaint and Join Melissa Trollinger Annis (the “Motion”) [#176]. The Motion has been referred to this Court. [#177] This Court has carefully considered the Motion, related briefing, the case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be DENIED.
I. Background
This action arises out of Plaintiff's externship with the Denver District Attorney's Office (the “DA's Office”) while Plaintiff was attending the University of Denver Law School (“DU”). [See generally #108] Plaintiff, proceeding pro se, initiated the instant action on August 13, 2019. [#1] The Court directed Plaintiff to file an amended complaint to address several deficiencies [#4] and Plaintiff did so on September 11, 2019 [#6]. After Defendants filed several motions to dismiss, Plaintiff filed a motion to amend his complaint in January 2020. [#50] This Court granted the motion to amend [#60] and Plaintiff filed a Second Amended Complaint on February 12, 2020 [#61].
The facts alleged in the currently operative Third Amended Complaint are detailed in this Court's August 12, 2021 Recommendation [#131], and the Court does not repeat them herein.
On May 29, 2020, this Court issued a Recommendation that most of Plaintiff's claims in the Second Amended Complaint be dismissed. [#84] On September 9, 2020, United States District Judge Raymond P. Moore entered an Order adopting the Recommendation as modified. [#90] Thereafter, on September 22, 2020, Plaintiff filed a motion for leave to file a Third Amended Complaint [#92], which this Court granted on November 17, 2020 [##106-07].
Plaintiff's Third Amended Complaint asserted six causes of action against nine Defendants. [#108] On May 3, 2021, in response to four motions to dismiss, this Court issued a Recommendation that all claims be dismissed except: (1) a Title II ADA retaliation claim asserted against the Denver County Judiciary (“DCJ”), and (2) a Rehabilitation Act claim asserted against DU and the DCJ. [#131] On August 12, 2021, Judge Moore adopted that Recommendation. [#139]
Thereafter, on August 20, 2021, this Court entered a scheduling order. [#165] The Court set a December 3, 2021 deadline for joinder of parties and amendment of pleadings. [Id. at 9] The scheduling order notified the parties that it would be altered or amended only upon a showing of good cause. [Id. at 14]
The Court has subsequently extended the discovery and dispositive motion deadlines [#199], but has not extended the deadline to join parties or amend pleadings.
On March 10, 2022, Plaintiff filed the instant Motion. [#176] Through the Motion, Plaintiff seeks to amend his Third Amended Complaint to add: (1) Magistrate Melissa Trollinger Annis as a defendant, and (2) a Rehabilitation Act retaliation claim against DU. [Id.; see also #176-1] The DCJ has responded to the Motion [#181] and Plaintiff has replied [#184].
II. Legal Standard
After the deadline for the amendment of pleadings established by a scheduling order has expired, 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” for amending pleadings. Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015) (quoting Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014)).
Federal Rule of Civil Procedure 16(b)(4) allows modification of a scheduling order “only for good cause and with the judge's consent.” “Demonstrating good cause under the rule ‘requires the moving party to show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay.'” Strope v. Collins, 315 Fed.Appx. 57, 61 (10th Cir. 2009) (quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006)); see also Lehman Bros. Holdings Inc. v. Universal Am. Mortg. Co., 300 F.R.D. 678, 681 (D. Colo. 2014).
“In practice, this standard requires the movant to show the scheduling deadlines cannot be met despite [the movant's] diligent efforts.” Gorsuch, Ltd., 771 F.3d at 1240 (alteration in original) (quotations omitted). “Rule 16's good cause requirement may be satisfied, for example, if a plaintiff learns new information through discovery or if the underlying law has changed.” Id. On the other hand, “[i]f the plaintiff knew of the underlying conduct but simply failed to raise tort claims, . . . the claims are barred.” Id.
Pursuant to Federal Rule of Civil Procedure 15(a)(2), the Court is to freely allow amendment of the pleadings “when justice so requires.” The grant or denial of an opportunity to amend is within the discretion of the Court, but “outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). “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).
An amendment is futile “if it would not survive a motion to dismiss.” Bituminous Cas. Corp. v. Hartford Cas. Ins. Co., No. 12-cv-00043-WYD-KLM, 2013 WL 6676157, at *2 (D. Colo. Dec. 18, 2013) (citing Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)). Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quotation omitted).
III. Analysis
The instant Motion was filed on March 10, 2022 [#176]-more than three months after the December 3, 2021 deadline for joinder of parties and amendment of pleadings. Accordingly, Plaintiff must demonstrate that his proposed amendments satisfy both the good cause requirement of Rule 16(b)(4) and the Rule 15(a) standard for amending pleadings. Plaintiff has failed to do so.
Initially, Plaintiff's Motion fails to even address Rule 16, let alone explain why Plaintiff waited until three months after the amendment deadline-not to mention more than two years after bringing this action-to pursue the instant amendments. [#176] The facts that Plaintiff seeks to add primarily occurred in 2017, 2018 and 2019 [id. at 4-6, 810], and Plaintiff makes no attempt in his Motion to explain why he could not have included such facts in any of the four prior iterations of his complaint. See State Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984) (“Where the party seeking amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend is subject to denial.”).
The only two exceptions are allegations that: (1) on October 18, 2021, Magistrate Annis submitted an unedited recording of an October 13, 2017 hearing, and (2) on March 2, 2022, the DCJ, on behalf of Magistrate Annis, submitted discovery responses indicating that Magistrate Annis had no recollection of barring Plaintiff indefinitely from her courtroom. [#176 at 6] Plaintiff fails to explain, however, how these facts support the claims he seeks to add.
In his reply, Plaintiff makes two arguments that he claims provide good cause for amending after the deadline. First, Plaintiff states that his “ambition to clear his name is good cause.” [#184 at 2] But while Plaintiff may seek to “clear his name,” he fails to explain why he did not seek to do so prior to the expiration of the amendment deadline.
Second, Plaintiff argues that he had sought to amend his pleadings prior to the expiration of the amendment deadline, but this Court denied that motion for failure to comply with this Court's local rules regarding motions to amend the Complaint. [Id. at 3; see also #171 (Plaintiff's motion to amend); #175 (this Court's order denying without prejudice the motion to amend)] But this Court issued its order on January 4, 2022, and Plaintiff fails to offer an adequate explanation for waiting more than two months to file the instant Motion. Plaintiff instead states that he thought it “would be best practice” to first issue discovery requests to the DCJ before seeking leave to amend. [#184 at 3] But despite a conclusory statement that Magistrate Annis's “shocking admissions have turned Plaintiff's case upside down, which gives rise to this new claim” [id.], Plaintiff fails to explain how the DCJ's admissions have shed light on Plaintiff's new claims. As a result, Plaintiff has failed to establish good cause. Vazirabadi v. Denver Health & Hosp. Auth., 782 Fed.Appx. 681, 87 (10th Cir. 2019) (affirming refusal to amend complaint where plaintiff failed to provide any reasoning for why the amendment should be allowed and, instead, offered only “conclusory and irrelevant statements”); Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th Cir. 2015) (denying leave to amend where citations and allegations in support of leave to amend were “in most cases vague, confusing, conclusory, and unsupported by record evidence”).
Despite Plaintiff's pro se status, he was still required to “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (quotation omitted).
To the extent Plaintiff argues that he needed DCJ's admission that Magistrate Annis did not actually issue an order holding Plaintiff in contempt, does not recall barring Plaintiff from her courtroom, and did not otherwise take professional actions to harm Plaintiff [#184 at 5-6; see also #176-2 at 4-5], the Court addresses the significance of those admissions below.
Indeed, Plaintiff fails to even address why he could not have filed the retaliation claim against DU before the deadline to amend pleadings.
Plaintiff has also failed to satisfy Rule 15's requirements. First, for the reasons above, Plaintiff has unduly delayed in bringing the instant Motion. Second, Defendants would be prejudiced by allowance of the amendment. This case has been proceeding for more than three years and discovery closes in a matter of weeks. [#199 (setting a September 22, 2022 discovery deadline)]. To add two new claims and a new defendant who was dismissed prior to the commencement of discovery would require the Court to significantly adjust the current deadlines, thereby prejudicing Defendants by further delaying the ultimate resolution of this matter.
Finally, for the reasons previously outlined in this Court's May 29, 2020 Recommendation, Magistrate Annis is entitled to absolute immunity, and therefore Plaintiff's attempt to bring claims against her is futile. [#84 at 11-12] In response, Plaintiff argues that Magistrate Annis “did not enter any order - no citation. No contempt. No explanation. No Judicial Act.” [#184 at 6] But while the DCJ may have denied that Magistrate Annis held Plaintiff in contempt or that Magistrate Annis has any recollection of barring Plaintiff from her courtroom, Plaintiff's proposed claim against Magistrate Annis is premised upon his allegation that Magistrate Annis did in fact bar Plaintiff from his courtroom in response to Plaintiff's actions during a criminal proceeding. [#176-1, ¶¶ 18687] Indeed, Plaintiff alleges that Magistrate Annis was “operating under the color of law” when she did so. [#176-1, ¶ 197] Thus, for the reasons previously outlined in this Court's May 29, 2020 Recommendation [#84 at 11-12], Magistrate Annis is entitled to absolute immunity. Plaintiff's proposed Fifth Claim against Magistrate Annis therefore fails to state a plausible claim, and his attempt to add that claim is therefore futile. Bituminous Cas. Corp., 2013 WL 6676157, at *2.
It was the DCJ, not Magistrate Annis, that responded to Plaintiff's requests for admission. [#176-2]
Though Plaintiff alleges that Magistrate Annis was “not acting in her official capacity” [#176-1, ¶ 197], he fails to plausibly allege how Magistrate Annis could be “operating under the color of law” yet “not acting in her official capacity.”
Accordingly, because Plaintiff has failed to satisfy either Rule 16's good cause standard or the requirements of Rule 15 the Court respectfully RECOMMENDS that the Motion be DENIED.
IV. Conclusion
For the reasons stated above, the Court respectfully RECOMMENDS that Plaintiff's Motion for Leave to File First Amended Complaint [#152] be DENIED.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).