Opinion
Civil Action No. 09-cv-02273-MSK-KLM.
July 12, 2010
ORDER
This matter is before the Court on Plaintiffs' Motion to Amend Complaint to Add a Claim for Exemplary Damages Pursuant to C.R.S. § 13-21-102 and Fed.R.Civ.P. 16(b)(3)(A) [Docket No. 31; Filed June 14, 2010] (the "Motion"). Pursuant to the Motion, Plaintiffs indicate that Defendant opposes the amendment. On July 6, 2010, Defendant filed a brief Response explaining that while it disputes whether Plaintiffs "have established a triable issue in support of a finding of exemplary damages," it recognizes that the liberal standard for pleading amendment likely justifies amendment at this stage. Response [#36] at 2. Rather than object to amendment here, Defendant intends to address the issue via dispositive motion. See id. Given that Defendant's position appears to be centered on the weight of the evidence, rather than whether, taking the evidence as true, it establishes a prima facie claim for exemplary damages, I view the Motion to be unopposed. Accordingly, in light of the liberal amendment requirements of Fed.R.Civ.P. 15(a), see E S Liquors, 2009 WL 837656, at *2-3,
Indeed, at this stage of the litigation, the Court is concerned with only 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 adding a claim for exemplary damages, and not whether such evidence is sufficient to defeat summary judgment. See E S Liquors, Inc. v. U.S. Fidelity Guar. Co., No. 08-cv-01694-WYD-KLM, 2009 WL 837656, at *2 (D. Colo. March 26, 2009) (unpublished decision).
IT IS HEREBY ORDERED that the Motion is GRANTED.
IT IS FURTHER ORDERED that the Court accepts Plaintiffs' Amended Complaint and Jury Demand Adding Claim for Exemplary Damages [Docket No. 31-3] for filing as of the date of this Order.
IT IS FURTHER ORDERED that Defendant shall answer or otherwise respond to Plaintiffs' Amended Complaint on or before August 6, 2010.