Opinion
Civil Action 20-cv-02605-WJM-NRN
11-16-2021
JULIE REISKIN, and COLORADO CROSS-DISABILITY COALITION, a Colorado Non-profit Organization, Plaintiffs, v. GREYHOUND LINES, INC. a Delaware Corporation, Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED CLASS ACTION COMPLAINT AND JOIN PARTY (DKT. #43)
N. REID NEUREITER UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiffs Julie Reiskin and Colorado CrossDisability Coalition's (“CCDC”) (collectively, “Plaintiffs”) Motion for Leave to File Amended Class Action Complaint and Join Party (the “Motion to Amend”) (Dkt. #43), referred to me by Judge William J. Martinez. (Dkt. #46.) Defendant Greyhound Lines, Inc. (“Defendant”) responded to the Motion to Amend on October 1, 2021 (Dkt. #49), and Plaintiffs replied on October 14, 2021. (Dkt. #53.) The Court heard oral argument on November 8, 2021 (see Dkt. #56), has taken judicial notice of the Court's file, and considered the applicable Federal Rules of Civil Procedure and case law. Now, being fully informed and for the reasons discussed below, it is hereby RECOMMENDED that the Motion to Amend (Dkt. #42) be DENIED.
BACKGROUND
Plaintiffs filed this lawsuit on August 27, 2020 against Defendant for alleged violations of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181- 12189, Sections 504 and 505 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794-794a, and Parts 6 and 8 of the Colorado Anti-Discrimination Act (“CADA”), Colo. Rev. Stat. §§ 24-34-601-605, 801-805. Plaintiffs generally allege that Defendant has historically operated its over-the-road bus services with inadequate wheelchair lifts, inadequate maintenance on those lifts, and inadequate employee training and corporate policies about how to address lift failures that result in discrimination against individuals with disabilities. Ms. Reiskin alleges that she was subjected to all these deficiencies on August 28, 2018, when, due to poor training and an inoperable wheelchair lift on one of Defendant's buses, she was left stranded for hours at a stop in Glenwood Springs, Colorado.
Defendant filed an Answer (Dkt. #18) on October 26, 2020, and a Scheduling Conference was held on November 10, 2020. (Dkt. #22.) The Court entered a Scheduling Order (Dkt. #23) that day. The stipulated deadline to join parties and amend the pleadings was December 28, 2020. (Id. at 10.) Plaintiffs filed several motions to modify the Scheduling Order. (Dkt. ##26, 30, 35, & 38.) The Court granted the first three motions (Dkt. ##28, 32, & 37), but finally warned the parties that “[n]o further extensions of time will be granted absent extraordinary circumstances.
” (Dkt. #37 (emphasis in original).) So, when Plaintiffs filed their fourth motion to extend deadlines (Dkt. #38), the Court held a hearing and denied Plaintiffs' request to extend the outstanding deadlines for 60 more days. (Dkt. #42.) Plaintiffs indicated that they intended to move to amend their Complaint, and the Court set a briefing schedule on any such motion. (Id.) Plaintiffs filed the subject motion on September 10, 2021. The Court notes that in their four requests to amend the Scheduling Order, Plaintiffs did not seek to extend the joinder and amendment deadline.
In their proposed Amended Class Action Complaint (Dkt. #43-1), Plaintiffs seek to add Desmond West as a party, as Mr. West, who, in addition to requiring the use of wheelchair is also legally blind, encountered several problems while using Defendant's bus services in May 2021. (Id. at 49-63, ¶¶ 229-304.) Plaintiffs also seek to convert their original complaint to a class action. (Id. at 70-74, ¶¶ 333-44.) As to the class allegations, Plaintiffs state that during discovery, they obtained information regarding at least sixteen other individuals nationally that had similar experiences.
LEGAL STANDARD
The deadline to amend pleadings was December 28, 2020. (Dkt. #23 at 10.) Allowing amendment would mean modifying the Scheduling Order, which requires good cause. See Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014) (explaining that once the scheduling order deadline has passed, “a party seeking leave to amend must demonstrate (1) good cause for seeking modification under Rule 16(b)(4) and (2) satisfaction of the Rule 15(a) standard”). In practice, this good cause standard requires the movant to show the scheduling deadlines could not be met despite the movant's diligent efforts. 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. If the plaintiff generally knew of the underlying conduct but simply failed to raise the claim, however, good cause is not shown. Id.
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).
ANALYSIS
I. Whether Good Cause Exists to Modify the Scheduling Order
The first question before the Court is whether Plaintiffs have established good cause to modify the Scheduling Order, keeping in mind that the “Scheduling Order is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.” Washington v. Arapahoe Cnty. Dep't of Soc. Servs., 197 F.R.D. 439, 441 (D. Colo. 2000) (citations omitted).
As to allegations regarding Mr. West, Plaintiffs correctly note that they could not have included them in the original Complaint or added him as a party before the deadline because he was not subjected to Defendant's allegedly discriminatory behavior until May 2021, after the applicable deadline had passed. However, Plaintiffs were aware of the events giving rise to Mr. West's claims soon thereafter. (See Dkt. #53 at 3 n.1 (referencing a May 18, 2021 letter from Plaintiffs' counsel to Defendant's counsel stating, “We were contacted by another individual who [sic] we would like to add to this case through an amended complaint.”).) Indeed, on May 30, 2021, Plaintiffs filed their third motion to amend the Scheduling Order, in which they state that their counsel had been contacted by a potential new party and they would be seeking to amend their Complaint “on June 4, 2021, or as soon as possible thereafter.” Dkt. #33 at 2. Plaintiffs did not move to amend by this date. Instead, in August 2021, they sought to further extend discovery deadlines (Dkt. #38), a request the Court denied. (Dkt. #42.) Plaintiffs only sought leave to amend on September 10, 2021, four months after the incident involving Mr. West occurred. Plaintiffs argue that the delay is attributable to their counsel's efforts to investigate the claim, as required by Rule 11. The Court is not convinced that Plaintiffs' counsel needed four months to satisfy their Rule 11 obligations as to the allegations of Mr. West, who is a CCDC member. (See Dkt. #43-1 at 26, ¶ 83.) However, the Court will give Plaintiffs the benefit of the doubt and find good cause has been established under Rule 16.
As to Plaintiffs' class action allegations, Defendant argues that they were or should have been aware of complaints from at least sixteen other individuals when Defendant produced this information on June 18, 2021. Plaintiffs contend that they had to wait until August 4, 2021 for Defendant to clarify which discovery requests these documents were produced in response to, and they filed the subject Motion to Amend soon thereafter. The Court finds that this is an adequate explanation for the relatively brief delay in filing.
The list of complaints was filed and is maintained under Level 1 restriction. (See Dkt. #44.)
II. Whether There is Justification for Denying Leave to Amend
A finding that good cause exists to amend the Scheduling Order under Rule 16(b)(4) does not end the Court's analysis, however. The Court must determine whether, under Rule 15(a), justice requires granting leave to amend Plaintiffs' pleading to join a new party and convert this lawsuit to a class action. As previously noted, “[r]efusing 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, 3 F.3d at 1365.
Here, the Court finds that the undue prejudice Defendant will suffer if the subject motion is granted outweighs any other relevant consideration. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006) (identifying undue delay as the “most important[ ] factor in deciding a motion to amend the pleadings”). This case started 14 months ago with a complaint that, although it sought injunctive relief, involved a discrete incident that affected a single individual, brought on behalf of that individual and the non-profit corporation of which she is the Executive Director. Discovery commenced over a year ago and was originally supposed to close by June 23, 2021. At Plaintiffs' request, that deadline was eventually extended to October 25, 2021. Engaging in almost a year of discovery involves significant expenditures of time, effort, and money, especially when the discovery process involves multiple rounds of written discovery, numerous depositions, and substantial document production. Allowing the joinder of another individual party, to say nothing of permitting nationwide class allegations to go forward, will necessarily involve months, if not years, of additional discovery. While the added expenditure of costs alone may not constitute prejudice, the Court notes that Mr. West's claims raise significant new factual issues, as the incident occurred three years after Ms. Reiskin's claims arose and in a different part of the country (the southeast). While the general allegations may be similar, the facts, and therefore the fact witnesses, will be entirely different. The substantial burdens of class action discovery and certification only strengthens the Court's conviction that allowing amendment at this stage constitutes undue prejudice, not just to the Defendant, but also to the court system. This is effectively the filing of a new, completely different lawsuit as a class action.
Moreover, dispositive motions are due tomorrow, November 17, 2021. Defendant will have expended significant time and energy in preparing a summary judgment motion that will be made moot by the granting of the Motion to Amend. More rounds of briefing would undoubtedly follow. This is neither an efficient use of the Court's resources nor does it further the stated purpose of the Federal Rules of Civil Procedure “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1; see also Robinson v. ACG Processing, No. 17-cv-02725-MSK-STV, 2019 WL 3334684, at *2 (D. Colo. July 25, 2019) (“This case is aged and has progressed to an advanced phase of the litigation; it would be inappropriate (and unduly prejudicial to ACG) at this late stage to interject new defendants and new causes of action that would further delay final resolution of Mr. Robinson's claims.”); Myers v. Hummel, No. 11-cv-00400-KMT-KLM, 2012 WL 1020519, at *7 (D. Colo. Mar. 26, 2012) (even where the proposed amended claims “are not entirely new,” denying leave to amend for undue prejudice where discovery would have to be reopened and renewed dispositive motions would be in order).
At this late stage in the litigation, where (even after multiple extensions) discovery has closed and the dispositive motion deadline has nearly run, allowing Plaintiffs to amend their Complaint to add a new party and make class action allegations would unduly prejudice both the Defendant and a court system that is trying to process filed cases on a reasonable schedule.
RECOMMENDATION
For the forgoing reasons, it is hereby RECOMMENDED that Plaintiffs' Motion for Leave to File Amended Class Action Complaint and Join Party (Dkt. #43) be DENIED. Makin v. Colo. Dep't of Corr. , 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996).