Daugherty et al v. Encana Oil & Gas (USA), Inc.
ORDER denying 142 APPEAL OF MAGISTRATE JUDGE DECISION to District Court; finding as moot 149 Motion to Strike. Although motion 150 will be referred to the magistrate judge, and is not yet ripe for review, the Court directs counsel to confer again concerning its subject matter and to make a renewed effort in good faith to resolve the dispute before defendant files its response. By Judge R. Brooke Jackson on 02/12/13. (alvsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 10-cv-2272-RBJ-KLM
DAVID GASTON, et al.,
on their behalf and on behalf of all those similarly situated,
ENCANA OIL & GAS (USA), INC.,
a Delaware corporation,
Plaintiffs object to the magistrate judge’s order denying their amended motion for leave
to file a fifth amended complaint. Defendant moves to strike plaintiffs’ reply to their response to
the objection. For the reasons set forth below, the objection is denied, and the motion to strike is
denied as moot.
Plaintiffs, several oil field pumpers, allege that the defendant violated the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. by refusing to pay overtime and terminating their
employment in retaliation for engaging in protected activities. On July 15, 2011 the Court issued
an order staying the case pending arbitration as to all plaintiffs other than David Gaston. [docket
#63]. On December 10, 2011 the Court granted plaintiff leave to add David Smith as a named
plaintiff and to modify the caption of the case. [#100]. Plaintiffs then filed their Fourth
Amended Complaint listing Mr. Gaston, Mr. Smith and nine others as plaintiffs. [#101].
On September 24, 2012 the magistrate judge held a scheduling conference and issued a
Scheduling Order [#129]. As relevant here, the order granted plaintiffs until October 9, 2012 to
“file an Amended Complaint to include factual allegations relating to the opt-in plaintiffs and
any motion for leave to amend claims.” Id. at 7. On October 9, 2012 plaintiffs filed a motion for
leave to amend. [#132]. The proposed Fifth Amended Complaint [#132-A] would (1) add a
third claim for relief in violation of public policy; (2) amend the second claim, alleging
retaliation in violation of the FLSA, to include plaintiff David Smith; and (3) add an opt-in
putative class member, Jason Goetz, as a named plaintiff conditioned upon his claims’ relating
back to the original date of the filing of this action, September 16 2010. On November 2, 2012
plaintiffs filed an amended motion for leave to amend that was the same as the October 9 motion
except that plaintiffs no longer sought to add Mr. Goetz as a named plaintiff. [#134].
Defendant then filed a “status report,” explaining that because plaintiff was
“withdrawing” its October 9 motion to amend and filing an amended motion to amend, it
considered that its due date for opposition to the proposed Fifth Amended Complaint had moved
to November 26, 2012. [#135]. Defendant’s response to the amended motion to amend was
filed on November 19, 2012. [#139]. It argued that plaintiff’s proposal to add claims for
wrongful termination in violation of public policy (on behalf of Gaston and Smith) and
retaliation (on behalf of Smith) should rejected because of “undue delay and futility.” Id. at 2.
On December 10, 2012 Magistrate Judge Mix issued an order denying the amended
motion to amend “without prejudice.” [#141]. She noted that the proposed amendments, which
would add the public policy claims for Gaston and Smith and a retaliation claim for Smith, were
“not of the type contemplated by the Court and the parties when the Court ordered that Plaintiffs
could seek leave to amend their pleadings to add factual allegations relating to the opt-in
plaintiffs’.” Id. at 2. The magistrate judge further found that plaintiffs had not sought to amend
the Scheduling Order or demonstrated good cause that might support a sua sponte amendment of
that order per Rule 16(b) of the Federal Rules of Civil Procedure, nor had the Court satisfied the
standard for amendment of pleadings under Rule 15(a). Id. at 3-5.
Plaintiffs’ objection to the magistrate judge’s order argues that (1) they interpreted the
Scheduling Order to permit an amendment that added new claims; (2) defendant has known of
the retaliation issue since the complaint was filed; (3) the case is in the initial stages of discovery,
so no prejudice would occur; and (4) the proposed amendment to the motion to amend filed on
November 2, 2012 should be deemed to relate back to the October 9, 2012 date when the motion
to amend was filed. [#142]. Defendant responds that (1) the magistrate judge’s order was not
clearly erroneous or contrary to law; (2) defendant did not consent to the amended motion to
amend; (3) the proposed amendment to add new claims should be denied under Rule 15(a) as
untimely, futile and prejudicial. [#143]. The reply argues that plaintiffs could amend their
motion to amend under Rule 15(a)(1)(B) within 21 days as a matter of course. [#143].
This Court will modify or set aside a magistrate judge’s order on nondispositive matters
only if it is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a). All the magistrate judge
did in this instance was to apply the terms of her own Scheduling Order. That order permitted
plaintiffs to file a motion for leave to amend by October 9, 2012 “to include factual allegations
relating to the opt-in plaintiffs.” Plaintiffs’ motion for leave to amend, as amended, proposed to
add new claims. The magistrate judge was plainly right that those proposed amendments went
beyond what the Scheduling Order permitted. The order was neither clearly erroneous nor
contrary to law.
The rest of the jousting between counsel was largely off the mark. The magistrate judge
denied the motion “without prejudice” (in bold letters). Order [#141] at 2. This means that
plaintiffs can move (after conferring in good faith with defense counsel) to amend the scheduling
order, and if that is permitted, to amend the pleadings to add the new claims. Defendant can
(assuming counsel conferred in good faith with plaintiffs’ counsel) oppose the motion on the
merits. Those issues have not yet been properly presented for decision.
1. The objection [#142] to the magistrate judge’s order of December 10, 2012 is
DENIED. The Court affirms the magistrate judge’s denial of the amended motion to
2. Motion #149 is DENIED as moot.
3. Although motion #150 will be referred to the magistrate judge, and is not yet ripe for
review, the Court directs counsel to confer again concerning its subject matter and to
make a renewed effort in good faith to resolve the dispute before defendant files its
DATED this 12th day of February, 2013.
BY THE COURT:
R. Brooke Jackson
United States District Judge
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