Opinion
Civil Action No. 20-cv-00237-PAB-NYW
07-07-2020
GINA PEREZ, Plaintiff, v. FRANKLIN CORPORATION, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before this court for recommendation on Defendant Franklin Corporation's ("Defendant" or "Franklin") Motion to Amend Answer to Add Affirmative Defense of Failure to Join a Necessary Party Under Fed. R. Civ. P. 19 (the "Motion to Amend" or "Motion"), filed May 29, 2020. [#36]. The presiding judge, the Honorable Philip A. Brimmer, referred this Motion to the undersigned pursuant to 28 U.S.C. § 636(b) and the Memoranda dated June 12, 2020. [#39]. This court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, upon review of the Motion, the applicable case law, and being fully advised in its premise, this court respectfully RECOMMENDS that the Motion to Amend be GRANTED.
BACKGROUND
The events giving rise to this product liability action occurred on March 16, 2018, when Plaintiff Gina Perez ("Plaintiff" or "Ms. Perez") awoke to the smell of smoke, which was allegedly emanating from her LAF Power Bed Chaise couch (the "couch") in her family room. [#17 at ¶¶ 14-16]. Plaintiff believes the couch's "rectangular power switch" overheated or otherwise malfunctioned, causing the fire; a recall notice was issued in 2015 concerning this type of issue with the couch. [Id. at ¶¶ 17, 26-27]. The couch fire ultimately destroyed Ms. Perez's home, including the contents within it. [Id. at ¶¶ 19-20].
Ms. Perez initiated this civil action in the District Court for Adams County against Franklin, the manufacturer of the couch, on or about December 13, 2019, asserting various Colorado state law claims for negligence, strict product liability, and breaches of express and implied warranties. See #2]. Franklin then removed this matter to this District pursuant to 28 U.S.C. § 1332 on January 29, 2020. [#1]. On March 6, 2020, the undersigned construed Ms. Perez's unopposed Motion to Amend her Complaint as a Notice of filing an amended pleading pursuant to D.C.COLO.LCivR 15.1(a), see [#16], and Ms. Perez's Amended Complaint became the operative pleading in this matter, see [#17]. Pursuant to the Amended Complaint, Ms. Perez added several additional Defendants, see [id.]., but because the joinder of these Defendants destroyed complete diversity among the parties, Chief Judge Brimmer directed Ms. Perez to show cause why the court should either dismiss these new Defendants or remand the matter to state court. [#35]. Given Plaintiff's failure to respond, Chief Judge Brimmer dismissed the newly added Defendants, leaving only her claims against Franklin. See [#37].
Upon reassignment of this matter given the Parties' nonconsent to the jurisdiction of a magistrate judge, Chief Judge Brimmer issued an Order to Show Cause directed to Franklin to show cause as to why this case should not be remanded for lack of complete diversity. See [#27]. Chief Judge Brimmer discharged that Order to Show Cause on April 27, 2020. [#34].
On May 29, 2020, Franklin filed the instant Motion to Amend, requesting leave to amend its Answer to the Amended Complaint to assert the additional affirmative defense of failure to join all necessary and indispensable parties under Rule 19 of the Federal Rules of Civil Procedure. [#36]. Despite her indicated opposition, Plaintiff has yet to file its Response to the Motion to Amend and the time to do so has since expired. Accordingly, I conclude it is appropriate to consider the Motion to Amend presently. See D.C.COLO.LCivR 7.1(d).
LEGAL STANDARD
When, as here, a party seeks leave to amend its pleading prior to the deadline for amendment of pleadings and joinder of parties set by the court, Rule 15(a)(2) governs the court's analysis. See Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 989 (10th Cir. 2019). Rule 15(a)(2) provides that courts are to grant leave to amend "freely . . . when justice so requires." Fed. R. Civ. P. 15(a)(2). The Rule's purpose is "to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties." Warnick v. Cooley, 895 F.3d 746, 755 (10th Cir. 2018) (internal quotation marks omitted).
"A court may deny leave, however, on account of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the amendment." Hasan v. AIG Prop. Cas. Co., 935 F.3d 1092, 1101-02 (10th Cir. 2019) (internal quotation marks omitted). Further, a court may deny leave to amend in the absence of a formal motion requesting leave to amend, because a "bare request to amend in response to a motion to dismiss" does not alert the court or opposing party of the request to amend or the basis for it. Johnson v. Spencer, 950 F.3d 680, 721 (10th Cir. 2020) (internal quotation marks omitted); see also D.C.COLO.LCivR 7.1(d) (prohibiting the inclusion of a motion within a response). Whether to permit amendment is within the court's discretion. See Llacua v. W. Range Ass'n, 930 F.3d 1161, 1189 (10th Cir. 2019).
ANALYSIS
As mentioned, Franklin requests leave to amend its Answer to the Amended Complaint to assert the additional affirmative defense of failure to join all necessary and indispensable parties under Rule 19 of the Federal Rules of Civil Procedure. See [#36 at 2-3]. According to Franklin, Ms. Perez is one of three joint tenants that owned the home destroyed by the couch fire, and thus the two additional joint tenants are parties required to be joined under Rule 19(a)(1). See [id. at 3-4]. Franklin argues that permitting amendment would not cause Plaintiff to suffer any prejudice, but denying leave to amend would severely prejudice Franklin, because failure to join the two other joint tenants may expose Franklin to "a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the[ir] interest." [Id. at 3 (quoting Fed. R. Civ. P. 19(a)(1)(B)(ii))]. This court respectfully agrees.
First, I find that the Motion to Amend is not unduly delayed, as this court has yet to set a deadline for amendment of pleadings and Franklin suggests that it did not learn of the other joint tenants until April, when a now dismissed Defendant moved to dismiss Plaintiff's Amended Complaint under Rule 12(b)(7). See Church Mut. Ins. Co. v. Coutu, No. 17-CV-00209-RM-NYW, 2018 WL 822552, at *4 (D. Colo. Feb. 12, 2018) (concluding that amendment was timely when filed by the deadline for amendment of pleadings); cf. Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir. 2010) (concluding that the district court erred in denying leave to amend where the plaintiff sought leave to amend only 10 days after the deadline for amendment of pleadings and explained that a medical condition caused the delay). Nor is it apparent from the face of the tendered Amended Answer that amendment is futile. See Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013) ("A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.").
Next, I conclude no party will suffer prejudice by allowing amendment, because the proposed amendments do not include new claims based on new subject matter, see Minter v. Prime Equip. Co., 451 F.3d 1196, 1208 (10th Cir. 2006) (explaining that prejudice arises when amendment includes new claims and new subject matter, which affects defendant's ability to defend the case against them), and Mr. Perez has adequate notice of the additional affirmative defense given that this court only recently set this matter for a Scheduling Conference for July 28, 2020. See Bylin v. Billings, 568 F.3d 1224, 1230 (10th Cir. 2009) (finding no prejudice in allowing defendant to amend its answer to assert statute of limitations as an affirmative defense where the plaintiffs were put on notice of the new defense at the final pretrial conference and given eight days to respond to the motion to amend the answer). Indeed, despite indicating its opposition, Plaintiff has not filed an opposition to the Motion to Amend in the time allotted, and therefore there is no opposition from Plaintiff. For these reasons, amendment seems appropriate.
CONCLUSION
For the reasons stated herein, this court respectfully RECOMMENDS that:
(1) Franklin's Motion to Amend [#36] be GRANTED. DATED: July 7, 2020
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings 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); 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. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 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, conclusions of law, 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 and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge