Opinion
Civil Action 20-cv-00986-CMA-NRN
01-22-2021
VICTOR HERNANDEZ, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant.
RECOMMENDATION ON PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT AND JURY DEMAND (Dkt. #19)
N. REID NEUREITER United States Magistrate Judge
This case is before the Court pursuant to an Order (Dkt. #20) issued by Judge Christine M. Arguello referring Plaintiff's Motion for Leave to File Second Amended Complaint and Jury Demand and Modify Scheduling Order. Dkt. #19. The Court has carefully considered the motion and Defendant's response (Dkt. #28), and on December 14, 2020, the Court heard argument on the subject motion. Dkt. #31. The Court has taken judicial notice of the Court's file, considered the applicable Federal Rules of Civil Procedure and case law, and recommends that Plaintiff's Motion be DENIED.
BACKGROUND
This matter arises out of an October 7, 2019 fire at Plaintiff's restaurant business in Lakewood, Colorado. At the time of the fire, a State Farm insurance policy was in effect covering both the property and business operations, subject to the policy's terms and conditions. Plaintiff alleges that although the fire was catastrophic and his restaurant was destroyed, State Farm has not properly investigated or fully compensated Plaintiff for his losses as required under the policy. On April 8, 2020, Plaintiff filed his Complaint and Jury Demand in this Court. Dkt. #1. On May 8, 2020, Plaintiff filed his Amended Complaint and Jury Demand in this Court adding a claim for negligent infliction of emotional distress to the original Complaint. Dkt. #7. On May 22, 2020, Defendant provided its Answer. Dkt. #11. As it currently stands, Plaintiff's claims against State Farm are for breach of contract, unreasonable delay and/or denial in payment, breach of implied covenant of good faith and fair dealing, and negligent infliction of emotional distress. Dkt. #7.
In the Motion, Plaintiff states that after filing the original Complaint and Jury Demand, Plaintiff sought treatment from a licensed psychologist. After 12 visits with the provider, the psychologist drafted a letter dated July 7, 2020 which stated that Plaintiff suffered from an “adjustment disorder with mixed anxiety and depressed mood” that began after his place of business caught on fire. The letter also attributed an exacerbation of Plaintiff's symptoms to State Farm's treatment of Plaintiff while adjusting his claim for the fire. Id. Plaintiff states that he did not receive this letter, which he calls a “significant factual development, ” until after the July 9, 2020 Telephonic Scheduling Conference, at which the deadline for amendment of pleadings was set for August 28, 2020. See Dkt. ##17 & 18.
It is based on this letter that Plaintiff seeks to amend the complaint to add a claim for intentional infliction of emotional distress, and remove the existing claim of negligent infliction of emotional distress. The allegations in the proposed Second Amended Complaint (Dkt. #19-1) that support the intentional infliction of emotional distress claim are:
20. When Plaintiff initiated a claim to State Farm, State Farm engaged in conduct that accused and/or suggested that Plaintiff was making false claims about the loss of his because he is of Mexican descent.
21. Because Defendant did not timely compensate Plaintiff for the loss of Tapatios, and/or because of State Farm's extreme and outrageous conduct, Plaintiff has suffered the following:
a. Plaintiff suffered insomnia.
b. Plaintiff suffered constant throbbing in his head.
c. Plaintiff suffered impotency.
d. Plaintiff suffered a constant very high level of stress.
e. Plaintiff's doctor referred Plaintiff to a psychologist for the conditions reported above in subparagraphs a through d.
f. Psychologist prescribed 450mg of hydroxyzine twice per day and 7.5mg of buspirone once per day since December 2019, to present .....
37. State Farm engaged in extreme and outrageous conduct. State Farm's extreme and outrageous conduct consisted of, but is not limited to, the following:
a. On or about October 7, 2019, Plaintiff immediately called State Farm to discuss the loss of Tapatios. When Plaintiff called State Farm, Plaintiff selected the “SPANISH” options on the verbal phone option menu. On October 8, 2019, Moorer returned Plaintiff's call. Knowing that he previously selected the “SPANISH” option, Plaintiff asked Moorer if he could talk to a Spanish speaker to which Moorer replied, “let's try in English” or words to that effect. Moorer asked Plaintiff numerous questions in English and the pertinent part of the conversation consisted of the following or words to that effect:
Moorer: Why have you had so many claims? That's a lot of claims.
Plaintiff: One was hail, one was robbery, one was one dishonest employee.
Moorer: What time did the fire start?
Plaintiff: The fire man said it was about 4am.
Moorer: Don't you think that that time is too strange for a refrigerator to start a fire on its own at 4am?
Moorer then proceeded to make numerous comments regarding Moorer's perception that Plaintiff's English was unarticulate. Moorer also ridiculed Plaintiff for his answers and speaking style and language. Moorer's questions were of a racist and discriminatory manner. Plaintiff requested on numerous occasions that Moorer provide Plaintiff with an interpreter to which Moorer refused. Morrer stated on at least one occasions, but probably in numerous instances the following to Plaintiff or words to that effect:
Moorer: What, what? What are you trying to say? I can't understand you.
b. On or about March 16, 2020, Plaintiff called Kinsel to discuss Tapatios's income and extra expense coverage. During the call, Kinsel asked Plaintiff about money transfers that occurred at Tapatios. Kinsel's questions to Plaintiff were racist and discriminatory in nature. Plaintiff explained to Kinsel that the money transfers were a service Tapatios provided to customers who wanted to send money to various places including customers' families. During the conversation, the following conversation between Plaintiff and Kinsel occurred or words to that effect:
Kinsel: The cash business, let's talk about that for a minute. Is that wiring the money to Mexico?” Plaintiff: It's wired to all over the world, yeah.
Kinsel: Is it mainly wires to Mexico?
Plaintiff: Mexico and South America.
Kinsel: I'm going to play dumb for a minute. So if I want to wire $100 to my friend in Mexico, how much of that do you take as profit?Dkt. #19-1, ¶¶ 20-21 & 37- Plaintiff alleges that the above actions were taken by State Farm recklessly or with the intent of causing Plaintiff severe emotional distress. Id. ¶ 38.
Plaintiff's Motion argues that the amendment should be permitted under Rules 15 and 16 because Plaintiff did not have the letter from the psychologist until after the Scheduling Conference, and that he produced the letter to Defendant in discovery on July 27, 2020. Plaintiff also points out that discovery is not completed and depositions for some of the witness have yet to take place. Finally, counsel for Plaintiff attributes the delay to fallout from the COVID-10 pandemic, including loss of staff at his business, as well as the “press of business” arising from counsel's other cases.
State Farm argues that the Motion should be granted to the extent it seeks dismissal of the negligent infliction of emotional distress claim, but denied as to Plaintiff's request to add an intentional infliction of emotional distress claim. Specifically, State Farm argues that Plaintiff should not be permitted to add a claim for intentional infliction of emotional distress because: (1) the alleged conduct on which that claim is premised does not rise to the extreme outrageousness required by law; (2) plaintiff has not adequately explained why he did not timely file the Motion even though he received the psychologist's letter more than a month before the court-ordered deadline to amend pleadings; and (3) plaintiff did not attach to the Motion a redlined copy of his proposed amended complaint.
LEGAL STANDARDS
After a scheduling order deadline, 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. Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015) (internal quotations omitted). If the movant meets the Rule 16(b)(4) good cause standard and the Rule 15(a) standard to amend the pleadings, the movant has met the requirements to amend the pleadings. Id. However, if the plaintiff fails “to show good cause under Rule 16(b), there is no need for the Court to move on to the second step of the analysis, i.e., whether [the plaintiff has] satisfied the requirements of Rule 15(a).” Carriker v. City & Cty. of Denver, Colo., No. 12-cv-02365-WJM-KLM, 2013 WL 2147542, at *2 (D. Colo. May 16, 2013) (citing Nicastle v. Adams Cty. Sheriff's Office, No. 10-cv-00816-REB-KMT, 2011 WL 1465586, at *3 (D. Colo. Mar. 14, 2011)).
If a party has met the Rule 16(b)(4) good cause standard, the Court has discretion to grant the party leave to amend its pleadings pursuant to Rule 15(a). See Foman v. Davis, 371 U.S. 178, 182 (1962); Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). “In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant[s], repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.-the leave sought should, as the rules require, be ‘freely given.'” Id. (quoting Fed.R.Civ.P. 15(a)(2)). Whether to grant leave to amend the pleadings pursuant to Rule 15(a) is within the court's wide discretion. Rehberg v. City of Pueblo, No. 10-cv-00261-LTB-KLM, 2011 WL 4102287, at *3 (D. Colo. Sept. 14, 2011) (citing Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006)).
With respect to the issue of futility raised by State Farm, it is well-settled that a proposed amendment is futile only if the complaint, as amended, would not survive a motion to dismiss. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing Jefferson County Sch. Dist. v. Moody's Investor's Servs., 175 F.3d 848, 859 (10th Cir. 1999)). “In ascertaining whether plaintiff's proposed amended complaint is likely to survive a motion to dismiss, the court must construe the complaint in the light most favorable to plaintiff, and the allegations in the complaint must be accepted as true.” Murray v. Sevier, 156 F.R.D. 235, 238 (D. Kan. 1994). Moreover, “[a]ny ambiguities must be resolved in favor of plaintiff, giving him the benefit of every reasonable inference drawn from the well-pleaded facts and allegations in his complaint.” Id. (quotations omitted).
ANALYSIS
Even assuming for purposes of this Recommendation that Plaintiff has established good cause, the Court agrees with State Farm that Plaintiff's intentional infliction of emotional distress claim is futile.
A claim for intentional infliction of emotional distress, also known as “outrageous conduct, ” has just three elements:
1. The defendant engaged in extreme and outrageous conduct;
2. The defendant did so recklessly or with the intent of causing the plaintiff severe emotional distress; and
3. The defendant's conduct caused the plaintiff severe emotional distress.See Colo. Jury Instr., Civil 23:1; Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970). Under Colorado law, the level of outrageousness required for conduct to create liability for intentional infliction of emotional distress is “extremely high: ‘Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'” Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999) (quoting Restatement (Second) of Torts § 46 (1965)). “Such outrageous conduct occurs when knowledge of all the facts by a reasonable member of the community would arouse that person's resentment against the defendant and lead that person to conclude that the conduct was extreme and outrageous.” Colo. Jury Instr. Civil 23:2 (“Extreme and Outrageous Conduct - Defined.”). See Christen-Loper v. Bret's Electric, LLC, 175 F.Supp.3d 1213, 1226 (D. Colo. 2016) (finding intentional infliction of emotional distress adequately pled against defendant employer where plaintiff was lying in a hospital bed after suffering a severe bi-polar episode and under a suicide watch, when defendant, knowing of plaintiff's compromised circumstances, took the opportunity to terminate plaintiff's employment because it was upset with her for taking time off from work to visit her doctor).
“[T]he question of whether conduct is outrageous is generally one of fact to be determined by a jury[.]” Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 883 (Colo. 1994). However, the Court has the responsibility “to determine whether reasonable persons could differ on the question.” Id. See also, Bauer v. Southwest Denver Mental Health Center, Inc., 701 P.2d 114, 118 (Colo. App.1985) (stating, in summary judgment context, “[i]f, after viewing the evidence in the light most favorable to the plaintiff, the court determines that no reasonable person could conclude that the defendant's conduct was outrageous, summary judgment is appropriate.”); see also Therrien v. United Air Lines, Inc., 670 F.Supp. 1517, 1524 (D.Colo. 1987) (“it is for the trial court to determine, in the first instance, whether the conduct could be regarded as sufficiently atrocious to permit recovery”).
While the Court agrees that Plaintiff has alleged conduct on the part of State Farm that qualifies as rude, inappropriate, and rightfully upsetting to Plaintiff, the allegations fall short of the extremely high standard for outrageous conduct in Colorado. After a review of other Colorado cases, the Court finds that even fairly offensive conduct has been found not to meet the high standard required for an intentional infliction of emotional distress claim. For example, in Reigel v. SavaSeniorCare, LLC, 292 P.3d 977 (Colo.App. 2011), the plaintiff asserted a wrongful death action against a nursing home where nursing staff had refused to send its patient, whose spouse was crying, to a hospital or doctor for evaluation. Instead, staff stated in a caustic voice, “well, if it was an emergency, we would call an ambulance”; responded to spouse's requests “like she was totally overreacting”; and allegedly falsified a chart entry related to the deceased's condition. The Court found that conduct, “although cold, callous, and lacking sensitivity” was not enough to state an intentional infliction of emotional distress claim under Colorado's high standard. 292 P.3d at 991. See also Miales v. McDonald's Restaurants of Colorado, 438 F.Supp.2d 1297, 1302 (D. Colo. 2006) (explaining that while some discriminatory acts can be so egregious as to constitute outrageous conduct, “[m]ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities are insufficient”) (quoting Pearson v. Kancilia, 70 P.3d 594, 597 (Colo.App. 2003)).
Here, while the Court can see why the conduct alleged would be perceived as offensive, the Court does not believe that it rises to the extreme level required to support a claim for outrageous conduct. The alleged conduct is not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and . . . [to cause] an average member of the community ... to exclaim ‘Outrageous!'” Restatement, supra, § 46 comment d. See Id. (recognizing that not all “acts that are definitely inconsiderate and unkind” create liability). Accordingly, the Court finds that it would be futile to allow Plaintiffs proposed claim for intentional infliction of emotional distress.
CONCLUSION
I RECOMMEND that Plaintiffs Motion for Leave to File Second Amended Complaint and Jury Demand and Modify Scheduling Order, Dkt. #19 be DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Ma kin v. Colorado Dep't of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).