Onyx Properties LLC et al v. Board of County Commissioners of Elbert County

Filing 56

ORDER. Plaintiffs Motion to Amend Complaint 30 is GRANTED and Plaintiffs Second Motion to Amend Complaint 32 is GRANTED. Plaintiffs to file their proposed Second Amended Complaint and Jury Demand Including Complaint for Class Action [ 32-1] within fourteen (14) days from the date of this order. By Judge Lewis T. Babcock on 12/19/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE

Civil Case No. 10-cv-01482-LTB-KLM (Consolidated w/11-cv-02321-RPM-MJW)
ONYX PROPERTIES LLC, a Colorado Limited Liability Company;
EMERALD PROPERTIES, LLC, a Colorado Limited Liability Company;
VALLEY BANK AND TRUST, a Colorado State Bank;
PAUL NAFTEL, an individual; and
SHAUNA NAFTEL, an individual,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF ELBERT COUNTY,
Defendant.
______________________________________________________________________________
KENNETH G. ROHRBACH,
KAREN L. ROHRBACH,
PAUL K. ROHRBACH, and
COMPOST EXPRESS, INC., a Colorado Corporation,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF ELBERT COUNTY, in its official capacity,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before me on two Motions to Amend filed by Plaintiffs Onyx Properties
LLC; Emerald Properties, LLC; Valley Bank and Trust, a Colorado State Bank; and Paul &
Shauna Naftel, seeking to amend their complaint: 1) to expand the definition of the class [Doc #
30 - Motion to Amend Complaint] and 2) to add a party. [Doc # 32 - Plaintiff’s Second Motion

to Amend Complaint] Plaintiffs Kenneth G. Rohrbach, Karen L. Rohrbach, Paul K. Rohrbach,
and Compost Express, Inc., have indicated that they join in these motions. [Doc # 55] Oral
arguments would not materially assist me in my determination of these motions. After
consideration of the parties’ arguments, and for the reason stated, I GRANT the motions and, as
such, I ORDER Plaintiffs to file as accepted its proposed “Second Amended Complaint and Jury
Demand Including Complaint for Class Action.”
I. Background
Plaintiffs are various landowners in Elbert County, Colorado. In this consolidated case,
Plaintiffs assert class claims pursuant to Fed. R. Civ. P. 23 for violations of their constitutional
rights under 42 U.S.C. § 1983, “including, but not limited to, the Fifth and Fourteenth
Amendment” resulting in a taking of property rights by Elbert County without due process of
law. Plaintiffs also assert individual claims under § 1983 for the loss of their individual property
rights by Elbert County’s enforcement of its allegedly invalid zoning regulations. They seek
damages, as well as injunctive relief enjoining Elbert County “from any further use of their
invalid Zoning Regulations against” Plaintiffs and all other members of the public.
II. First Motion to Amend
In its first motion to amend, Plaintiffs seek to expand the proposed class definition from
“a class consisting of all persons who have on or after August 28, 1997 (1) submitted an
application for an A-1 rezone; and (2) all persons who have had the A-1 provisions of the Zoning
Regulations as amended by Wolf (inclusive of the Wolf Maps) and Elbert County enforced
against them regarding the A-1 zone” to “all persons who submitted any application under Elbert
County’s Zoning Regulations and who were subjected to the county’s enforcement of any aspect

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of its Zoning Regulations.” Elbert County, in response, does not oppose this request on the basis
that it is too broad because “such issues are better fleshed out in briefing and a hearing on class
certification.” Rather, Elbert County opposes the motion because it contends that the proposed
amendment is untimely and would be prejudicial.
Pursuant to Fed. R. Civ. P. 15, a plaintiff may amend its complaint after the defendant
has answered only with leave of court. Fed. R. Civ. P. 15(a) (2)(after a responsive pleading has
been served, “a party may amend its pleadings only with the opposing party’s written consent or
the court’s leave”). The Court has the discretion whether to grant a motion seeking leave to
amend, and leave should be freely granted where justice requires. Id.; Anderson v. Merrill Lynch
Pierce Fenner & Smith Inc., 521 F.3d 1278, 1288 (10th Cir. 2008). The Court may exercise its
discretion to deny a motion to amend, however, 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).
In determining whether untimeliness justifies denial of a motion to amend, “[l]ateness
does not of itself justify the denial of the amendment.” Minter v. Prime Equip. Co., 451 F.3d
1196, 1205 (10th Cir. 2006). “However, “a party who delays in seeking an amendment is acting
contrary to the spirit of the rule and runs the risk of the court denying permission because of the
passage of time.” Id. (citation omitted). Thus, the focus is “primarily on the reasons for the
delay.” Id. at 1205. Courts in this circuit “typically find prejudice only when the amendment
unfairly affects the defendants in terms of preparing their defense to the amendment.” Id. at
1207. This occurs most often “when the amended claims arise out of a subject matter different

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from what was set forth in the complaint and raise significant new factual issues.” Id.
Elbert County asserts that Plaintiffs’ motion seeking to expand the class definition should
be denied as untimely. Specifically, it argues that the complaint was filed on June 23, 2010, the
motion was filed more than a year later and a few months prior to the class-based discovery
deadline of November 7, 2011, and no reason is provided for the lengthy delay in seeking leave
to amend. While it concedes that the motion was filed within the time permitted by the
scheduling order, Elbert County argues that “this does not excuse Plaintiffs’ undue delay of their
efforts to expand the class definition.” In addition, Elbert County argues that the belatedness of
this amendment request results in prejudice in that Plaintiffs seek to expand the class from a
relatively discrete pool of individuals to a broad and unlimited group which, in turn, would
increase the amount of discovery necessary for it to prepare for the class certification hearing.
In response, Plaintiffs argue that because this motion to amend is timely under the
scheduling order, it cannot constitute a showing of “undue delay” to overcome the very liberal
standard of Fed. R. Civ. P. 15(a). Likewise, Plaintiffs maintain that Elbert County cannot show
undue prejudice in that it had “plenty of notice of this amendment” because counsel indicated its
intention to amend as early as February of 2011, that they delay was at Elbert County’s request,
and that Elbert County failed to seek discovery from Plaintiffs until September 30, 2011. See
Frank v. U.S. West, supra, 3 F.3d at 1365-66 (holding that denial of leave to amend is
appropriate “when the party filing the motion has no adequate explanation for the delay”).
Thus, I agree that Elbert County’s argument in support of its claim of undue prejudice based on
“11th hour” request to amend is without merit. As such, I will grant Plaintiffs’ First Motion to
Amend.

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III. Second Motion to Amend
In its second motion to amend, Plaintiffs seek to add a new party plaintiff. Plaintiffs note
that although they do not agree with Elbert County’s assertion that Local Service Corporation
(“LSC”) is both a necessary party and a real party in interest rather than Plaintiff Valley Bank
and Trust, it nonetheless seeks to join LSC as a party pursuant to Fed. R. Civ. P. 20. In so doing,
Plaintiffs aver that LSC, through its trustee in bankruptcy, has agreed to become a party plaintiff
in this action and that Plaintiff are acting on behalf of LSC in moving to amend the complaint to
add it as a party.
Elbert County, in response, “does not oppose the addition of the Estate of Local Service
Corporation, by and through its Chapter 11 bankruptcy trustee, Simon E. Rodriguez, as a party
plaintiff,” but notes that its lack of opposition “should not be construed as a waiver of any of the
Defendant’s defenses regarding this party’s claims.” Rather, Elbert County opposes the Second
Motion to Amend in that the proposed “Second Amended Complaint and Jury Demand Including
Complaint for Class Action” attached to the motion also contains the change to the class
definition as sought by Plaintiffs’ First Motion to Amend. However, since I have concluded that
I will grant that motion, Elbert County’s objection is no longer an issue.
Therefore, I will also grant Plaintiffs Second Motion to Amend and, as such, allow the
filing of the proposed Second Amended Complaint and Jury Demand Including Complaint for
Class Action attached to Plaintiffs’ Second Motion to Amend the Complaint. [Doc # 32-1]

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ACCORDINGLY, I GRANT Plaintiff’s Motion to Amend Complaint [Doc # 30]; I
GRANT Plaintiff’s Second Motion to Amend Complaint [Doc # 32], and I ORDER Plaintiffs to
file their proposed Second Amended Complaint and Jury Demand Including Complaint for Class
Action [Doc # 32-1] within fourteen (14) days from the date of this order.

Dated: December

19

, 2011 in Denver, Colorado.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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