Scavetta v. King Soopers, Inc. et al

Filing 37

ORDER denying 33 Plaintiffs First Unopposed Motion to Clarify and Amend Complaint by Magistrate Judge Kristen L. Mix on 11/30/2011.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02986-WJM-KLM
KAREN SCAVETTA,
Plaintiff,
v.
KING SOOPERS, INC., and
DILLON COMPANIES, INC.,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s First Unopposed Motion to Clarify
and Amend Complaint [Docket No. 33; Filed November 12, 2011] (the “Motion”).
As a preliminary matter, the Scheduling Order [#20] governing this case provides
that the deadline for joinder of parties and amendment of pleadings was May 23, 2011.
Scheduling Order [#20] at 8 § 9(a). Thus, Plaintiff’s Motion was untimely filed. Accordingly,
Plaintiff must provide good cause for her failure to timely move for amendment pursuant
to Fed. R. Civ. P. 16(b)(4). If good cause is shown, the Court next considers any
arguments raised by the parties related to whether justice would be served by amendment.
Specifically, the Court should grant leave to amend “freely . . . when justice so requires.”
Fed. R. Civ. P. 15(a)(2). Leave to amend need not be given, however, when the moving
party unduly delayed, failed to amend despite ample opportunity to do so, the nonmoving
party would be unduly prejudiced, or amendment would be futile. Foman v. Davis, 371 U.S.
-1-

178, 182 (1962).
The key issue here iswhether Plaintiff has provided good cause for amendment. It
is the Court’s practice, and indeed the practice of other judges in this District, to resolve
untimely motions to amend first by considering the Rule 16(b)(4) good cause standard as
a threshold issue. See, e.g., Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 688
(D. Colo. 2000) (denying an untimely motion to amend solely on the basis of a failure to
establish “good cause” within the meaning of Rule 16(b)(4)); Nicastle v. Adams County
Sheriff’s Office, No. 10-cv-00816-REB-KMT, 2011 WL 1465586, at *3 (D. Colo. Mar. 14,
2011), adopted by 2011 WL1464588 (Apr. 18, 2011) (unpublished decisions) (“Because
the Court finds no good cause to amend the scheduling order, [it] will not address whether
leave to amend is appropriate under Rule 15.”); see also Schneider v. City of Grand
Junction, Colo., No. 10-cv-01719-MSK-KLM, slip op. (D. Colo. Apr. 25, 2011) [Docket No.
77], adopted by slip op. (July 12, 2011) [Docket No. 87] (unpublished decisions) (reviewing
untimely motion to amend only as to good cause standard pursuant to Rule 16(b)(4)).
Simply, if good cause is not shown, the Court is not required to consider whether Rule
15(a) excuses that failure. First City Bank, N.A. v. Air Capitol Aircraft Sales, Inc., 820 F.2d
1127, 1132 (10th Cir. 1987) (“We hold that a district court acts within the bounds of its
discretion when it denies leave to amend for ‘untimeliness’ or ‘undue delay.’”).
While Plaintiff must “show that [she was] diligent in attempting to meet the [pleading
amendment] deadline,” this standard can be met by the provision of “an adequate
explanation for any delay.” Minter v. Prime Equip. Co., 451 F3d 1196, 1205 & n.4 (10th Cir.
2006) (explaining that lateness itself does not justify denial of a motion to amend, but
“undue” lateness does).

However, Plaintiff has provided the court with no reason
-2-

explaining her delay in filing this request for leave to amend outside the pleading
amendment deadline. Accordingly,
IT IS HEREBY ORDERED that the Motion is DENIED without prejudice.
Dated: November 30, 2011

-3-