Opinion
Civil Action 22-cv-00098-CMA-NRN
03-08-2023
JERRY MICHAEL GYRION, JR., Plaintiff, v. DILLON COMPANIES, LLC d/b/a KING SOOPERS, INC. a/k/a D620 KROGER CENTRAL/KING SOOPERS, Defendant.
RECOMMENDATION ON PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT (Dkt. #60)
N. REID NEUREITER UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on an Order (Dkt. #61) by Judge Christine M. Arguello referring Plaintiff's Motion for Leave to Amend Complaint. (Dkt. #60.) Defendant filed a response to the motion on February 15, 2023 (Dkt. #67) and Plaintiff filed a reply in support on February 22, 2023. (Dkt. #68.) The Court heard argument from the parties on February 22, 2023. Now, being fully informed and for the reasons discussed below, it is hereby RECOMMENDED that the Motion for Leave to Amend Complaint (Dkt. #60) be DENIED.
BACKGROUND
This is a slip and fall case. Plaintiff alleges that while making a delivery to a King Soopers' store, he slipped and fell due to ice in the loading dock area in the rear of the store where vendors make their deliveries. Plaintiff's sole claim in this case was asserted under the Colorado Premises Liability Act (“CPLA”), Colo. Rev. Stat. § 13-21115.
Plaintiff argues that on December 29, 2022, Defendant served its Fourth Supplemental Disclosures which revealed “which entities were contracted to provide snow and removal services.” (Dkt. #60 at 2.) Then, on December 30, 2022, Defendant filed its Motion for Summary Judgment (Dkt. #40), which relied on documents disclosed only one day earlier to argue, in part, that it was not a landowner under the CPLA. Defendant's Motion for Summary Judgment argues that the subject property is controlled by two non-parties, and that those non-parties used the services of a snow removal company to maintain the area.
Plaintiff responded to Defendant's Motion for Summary Judgment and maintains that Defendant is a landowner. (See Dkt. #54.) Nevertheless, Plaintiff now seeks to introduce a negligence claim into this suit.
LEGAL STANDARDS
The deadline for joinder of parties and amendment of pleadings was May 16, 2022. (Dkt. #8.) Thus, allowing amendment would mean modifying the Scheduling Order, which requires good cause. Fed.R.Civ.P. 16(b)(4) (A scheduling order “may be modified only for good cause and with the judge's consent.”) “In practice, this standard requires the movant to show the ‘scheduling deadlines cannot be met despite [the movant's] diligent efforts.'” Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014) (citing Pumpco, Inc. v. Schenker Int'l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001)). This burden is satisfied, for example, when a party learns of new information in a deposition or that the governing law has changed. Id. Rule 16(b) 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. Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000). The party seeking an extension is normally expected to show at least good faith on its part and some reasonable basis for not meeting the deadline. Deghand v. Wal-Mart Stores, Inc., 904 F.Supp. 1218, 1221 (D. Kan. 1995).
If good cause to amend the Scheduling Order exists, the Court then turns to Rule 15(a)(2) which states, in relevant part, that “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Leave to amend shall be freely granted when justice so requires. See, e.g., Bellairs v. Coors Brewing Co., 907 F.Supp. 1448, 1459 (D.Colo.1995). “If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962). However, the court may exercise its discretion to deny a motion to amend upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by previously allowed amendments, or futility of the amendment. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal ....The relevant standard in determining whether claims are futile is the same standard that is applied to a motion to dismiss under Fed.R.Civ.P. 12(b)(6).” Dorough v. Am. Family Mut. Ins. Co., No. 15-cv-02388-MSK-KMT, 2016 WL 1426968, at *2 (D. Colo. Apr. 11, 2016).
ANALYSIS
The Court does not find good cause to amend the Scheduling Order. The deadline to amend pleadings elapsed more than eight months before Plaintiff sought leave to amend. Plaintiff did not expressly address good cause in his motion, instead arguing that leave was appropriate under Rule 15.
Plaintiff argues, without any citation, that “as the non-moving party, Defendant has the burden of establishing that Plaintiff's request is improper, and Defendant has failed to do so.” (Dkt. #68 at 1.) This is incorrect. As a basic search would reveal, and as the Court set forth in the Legal Standards section, Plaintiff has the burden to demonstrate good cause for the amending the Scheduling Order.
For the first time in his reply, Plaintiff argues that he has shown good cause because the “request for leave to amend is premised on entirely new information learned through discovery and disclosed by the Defendant on the eve of the discovery cutoff.” (Dkt. #68 (emphasis in original).)
This is not true. When Defendant filed its answer to the Complaint on January 21, 2022 (Dkt. #14), it specifically denied that it was a landowner under the CPLA. On March 1, 2022, Defendant filed its Designation of Non-Party at Fault denying its status as a landowner and providing Plaintiff with notice and information related to the owner of the Property and those responsible for snow and ice removal at the property. (See Dkt. #15.) Thus, Plaintiff knew for more than a year that Defendant denied it was a landowner under the CPLA-a critical issue in this case. Plaintiff also knew, for more than ten months, the identifies of the non-parties that Defendant claims are landowners. Moreover, on March 25, 2022, Plaintiff provided initial closures which included Declarations of Covenants, Conditions and Restrictions for Columbine Knolls Village showing the non-parties' ownership and control of the common areas where Plaintiff allegedly fell, as well as the Agreement for Operations and Maintenance for Common Areas for Columbine Knolls Village showing the same. (Dkt. #67-1.)
Despite this knowledge, Plaintiff took no discovery of these two non-parties. He now complains that Defendant did not provide evidence supporting its allegation of nonlandowner status until the eleventh hour. Defendant, doing its due diligence, sought subpoenas from the non-parties' snow removal contractor and disclosed these to Plaintiff on December 29, 2022. But Plaintiff knew about the snow removal contractor even before Defendant shared these subpoenas. Defendant disclosed the snow removal company in the Third Supplemental Disclosure dated November 21, 2022. It also disclosed invoices related to snow removal at the property.
This is Plaintiff's lawsuit. Plaintiff bears the burden of proving his case, including proving that Defendant is a landowner within the meaning of the CPLA. Plaintiff had ample opportunity to conduct discovery or seek relevant documents from the nonparties for a critical issue on which Plaintiff bears the burden of proof. Defendant identified the non-parties at fault early in this case and otherwise disclosed the relevant information to Plaintiff. It then sought the evidence it required to support its motion for summary judgment (which Defendant does bear the burden of proof on), and also disclosed these underlying documents.
Plaintiff cannot now claim surprise or that it had never known that there were non-parties who might, in fact, be the landowners for the purposes of the CPLA. Plaintiff has not been diligent in seeking leave to amend and, for that reason alone, the Motion for Leave to Amend Complaint should be denied.
Even if Plaintiff had demonstrated good cause to amend the Scheduling Order to permit amending his claims, justice does not require amendment when the proposed amendment unduly delayed. Delay is “undue” only if it will place an unwarranted burden on the Court or become prejudicial to the opposing party. Minter, 451 F.3d at 1205. “The important inquiry is not simply whether Plaintiff has delayed, but whether such delay is undue.” Id. The Tenth Circuit “focuses primarily on the reason for the delay.” Id. at 1206. A motion to amend is untimely if, among other reasons, the moving party has made the complaint a “moving target.” Id. (citations omitted). Courts will also find a delay to be undue when a movant lacks adequate explanation for the delay or when a movant knows or should have known of the facts in the proposed amendment but did not include them in the original complaint or any prior attempts to amend. Id. (citations omitted).
As the Court previously noted, Plaintiff knew of Defendant's defense in this matter and the identities of the non-parties at whom Defendant would point the finger for months. His efforts to further investigate Defendant's landowner status were not just unduly delayed, they were entirely lacking. Had he adequately pursued discovery on the issues for which he bears the burden at trial, he would have moved for leave to amend much sooner. Instead, this is a textbook case of an amendment being used to make the complaint a “moving target.” Defendant has already filed dispositive brief on the sole claim currently in this suit. Allowing amendment would require Defendant to engage in the expense of additional discovery and potentially an additional dispositive motion- whether a motion to dismiss or a motion for summary judgment-to defend against the belatedly added negligence claim. Though no trial has been set, Scheduling Orders are contemplated and designed to offer a degree of certainty in pretrial proceedings, ensuring at some point that the claims and evidence are fixed so that parties may proceed to trial. See Home Design Servs., Inc. v. Trumble, No. 09-cv-00964-WYD-CBS, 2010 WL 1435382, *6 (D. Colo. Apr. 9, 2010). They are not “optional deadlines that can simply be ignored or amended on a whim.” Dedmon v. Continental Airlines, Inc., 13-cv-0005-WJM-NYW, 2015 WL 4639737 (D. Colo. Aug. 8, 2015).
CONCLUSION
For the reasons set forth above, it is hereby RECOMMENDED that the Motion for Leave to Amend Complaint (Dkt. #60) be DENIED.
Rule 72(a) of the Federal Rules of Civil Procedure provides that when a pretrial matter not dispositive of a party's claim or defense is referred to a Magistrate Judge to hear and decide, the Magistrate Judge must issue a written order stating the decision. Within fourteen (14) days after service of a copy of this Order, any party may serve and file written objections 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(a). Failure to make any such objection will result in a waiver of the right to appeal the non-dispositive order. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd. 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders).