Ofiesh v. The Western Stock Show Association

Filing 51

ORDER Regarding Plaintiff's Motion to Amend Complaint and Order Setting Final Pretrial Conference. Denying 46 Motion to Amend. Each party shall pay their own attorney fees and costs for the subject motion. Final Pretrial Conference set for 1/23/2012 02:30 PM before Magistrate Judge Michael J. Watanabe, by Magistrate Judge Michael J. Watanabe on 12/13/11.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02777-RBJ-MJW
GEORGE N. OFIESH,
Plaintiff,
v.
WESTERN STOCK SHOW ASSOCIATION,
Defendant.

ORDER REGARDING PLAINTIFF’S MOTION TO AMEND COMPLAINT
(DOCKET NO. 46)
AND
ORDER SETTING FINAL PRETRIAL CONFERENCE

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on Plaintiff’s Motion to Amend Complaint (docket
no. 46). The court has reviewed the subject motion and the response (docket no. 49)
thereto. In addition, the court has taken judicial notice of the court’s file and has
considered applicable Federal Rules of Civil Procedure and case law. The court now
being fully informed makes the following findings of fact, conclusions of law, and order.
This court finds that I have jurisdiction over the subject matter and over the
parties. Venue is proper in the state and District of Colorado. Each party has now been
given a fair and adequate opportunity to be heard on the subject motion (docket no. 46).

The motion is made after the deadline for amendment of pleadings, and thus

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this court has applied the following analysis in deciding whether to allow the
amendments:
Where, as here, a motion to amend the pleadings . . . is filed after the
scheduling order deadline, a “two-step analysis” is required. Once a
scheduling order’s deadline for amendment has passed, a movant must
first demonstrate to the court that it has “good cause” for seeking
modification of the scheduling deadline under Rule 16(b). If the movant
satisfies Rule 16(b)’s “good cause” standard, it must then pass the
requirements for amendment under Rule 15(a) . . . .
Rule 16(b)’s “good cause” standard is much different than the more lenient
standard contained in Rule 15(a). Rule 16(b) does not focus on the bad
faith of the movant, or the prejudice to the opposing party. Rather, it
focuses on the diligence of the party seeking leave to modify the
scheduling order to permit the proposed amendment. Properly construed,
“good cause” means that the scheduling deadlines cannot be met despite
a party’s diligent efforts. In other words, this court may “modify the
schedule on a showing of good cause if [the deadline] cannot be met
despite the diligence of the party seeking the extension.” Carelessness is
not compatible with a finding of diligence and offers no reason for a grant
of relief.
Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (quotations
and citations omitted). This court finds that the plaintiff has not satisfied this first
step in the analysis and has failed to establish good cause to extend the deadline
within which he may seek leave to amend the complaint. Plaintiff’s original
Complaint (docket no. 1) was filed on November 1, 2010, and alleged claims for
sexual harassment and retaliation. On December 27, 2010, Plaintiff field his First
Amended Complaint (docket no. 8) which added a claim for unpaid commissions
under the Colorado Wage Claim Act. The deadline to amend the pleadings expired
on May 13, 2011. See docket no. 14 - Scheduling Order. On July 26, 2011, this
court granted Plaintiff’s original attorney’s [Elwyn F. Schaefer’s] motion to withdraw.
See docket no. 31. Plaintiff’s current attorney, Thomas Kimmel, entered his

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appearance on August 31, 2011. See docket no. 34. On August 31, 2011, Mr.
Kimmel filed a motion to extend the discovery deadline. This court granted this
motion (docket no. 34) on September 6, 2011, and extended the deadline to
complete discovery to October 31, 2011, and also extended the deadline to file
dispositive motions to November 30, 2011. Nowhere in the this motion (docket no.
34) did Plaintiff seek an extension of time to amend the pleadings. Plaintiff’s
proposed amendment in the subject motion (docket no. 46) asserts a claim for
breach of contract. Plaintiff has been or should have been aware of his breach of
contract claim when he filed his original Complaint. This court finds that Plaintiff has
unduly delayed in seeking such amendment, noting that the discovery and
dispositive motion deadlines have both expired. “A motion to amend should be
denied if a plaintiff has unduly delayed in seeking the amendment.” Garcia v. Dillon
Cos., Inc., 2008 WL 4509821, at *4 (D. Colo. Oct. 1, 2008). See also Aircraft Fueling
Sys., Inc. v. Southwest Airlines Co., 2011 WL 3421518, at *1 (N.D. Okla. August 4,
2011).
Based upon the standard set forth above, and for those reasons stated above
and for those additional reasons stated in the response (docket no. 49), this court
finds that the proposed amendment should not be permitted at this late date.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law, this
court ORDERS:
1.

That Plaintiff’s Motion to Amend Complaint (docket no. 46) is DENIED.

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Each party shall pay their own attorney fees and costs for the subject
motion (docket no. 46), and
2.

That a Final Pretrial Conference is set for before Magistrate Judge
Watanabe on January 23, 2012, at 2:30 p.m. The parties shall file their
proposed Final Pretrial Order with the court business five days before
the Final Pretrial Conference.

Done this 13th day of December 2011.
BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE