Myers v. Hummel

Filing 152

ORDER granting 138 Motion for Summary Judgment; denying 143 Motion to Amend Amended Complaint. By Magistrate Judge Kathleen M. Tafoya on 3/26/2012. This case is DISMISSED WITH PREJUDICE. (jjpsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 11–cv–00400–KMT–KLM

BERNARD KENNETH MYERS,
Plaintiff,
v.
DORWIN DWAYNE HUMMEL,
Defendant.

ORDER

This matter is before the court on Defendant’s “Motion for Summary Judgment” (Doc.
No. 138, filed Jan. 20, 2012 [Mot. Summ. J.]) and Plaintiff’s “Motion to Amend Amended
Complaint” (Doc. No. 143, filed Feb. 6, 2012 [Mot. Am.]). For the following reasons, the court
grants Defendant’s Motion for Summary Judgment, and denies Plaintiff’s Motion to Amend.
FACTUAL BACKGROUND
In this case, Plaintiff alleges that Defendant breached a fiduciary duty owed to Plaintiff
with respect to Plaintiff’s father’s estate. (See Am. Compl., Doc. No. 49, filed Apr. 26, 2011, at
2.) Plaintiff alleges that he is the rightful and legal heir of his father, Eldon L. Myers, Sr.
(hereinafter “Eldon Sr.”). (Id. at 1.) Plaintiff maintains that, upon Eldon Sr.’s death in August
2004 (Mot. Summ. J., Ex. B, Skype Deposition of Bernard Myers – December 16, 2011 [B.

Myers Dep.], at 6:23–7:4), until the death of Sally A. Myers,1 Eldon Sr.’s estate was to remain in
trust (Am. Compl. at 1–2). Plaintiff further alleges that Defendant, as well as Plaintiff’s brother
Eldon L. Myers, Jr. (hereinafter “Eldon Jr.”), were the personal representatives and executors of
Eldon Sr.’s estate. (Id. at 2.) Upon Ms. Myer’s death,2 however, in addition to all of her estate,
Defendant allegedly received most, if not all, of Eldon Sr.’s estate. (Id.) Plaintiff maintains that
the documents by which Eldon Sr.’s estate passed to Defendant were “very questionable.” (Id.)
PROCEDURAL HISTORY
In his Amended Complaint, filed April 26, 2011, Plaintiff alleges that, by obtaining
substantially all of Eldon Sr.’s estate, Defendant breached his fiduciary duty “to protect
[Plaintiff’s] portion of [his] father’s estate.” (Id.) As a result of this breach, Plaintiff allegedly
suffered damages of $3.85 million dollars. (Id.)
Defendant filed his Motion for Summary Judgment on January 20, 2012. (See Mot.
Summ. J.) Plaintiff filed his Response to Defendant’s Motion for Summary Judgment on
February 9, 2012. (Doc. No. 144 [Resp. Mot. Summ. J.].) Pursuant to D.C.COLO.LCivR 7.1C
and Fed. R. Civ. P. 6(d), Defendant had until February 26, 2012 to file a Reply. No reply was
submitted on, or after, that date.
On February 6, 2012, three days prior to filing his Response to Defendant’s Motion for
Summary Judgment, Plaintiff filed his Motion to Amend his Amended Complaint. (See Mot.

1

2

Sally A. Myers is Defendant Darwin Hummel’s mother, as well as Eldon Sr.’s ex-wife.
It is not clear from the record when Ms. Myers passed away.
2

Am.) Defendant filed his “Motion to Request Denial of Plaintiff [sic] Motion for Leave of
Court” on February 21, 2012, which the court construes to be a Response to Plaintiff’s Motion to
Amend. (Doc. No. 145 [Resp. Mot. Am.].) Plaintiff filed his “Response on Defendants [sic]
Motion to Request Denial for Leave of the Court” on March 5, 2012, which the court construes
to be a Reply in Support of his Motion to Amend. (Doc. No. 147 [Reply. Mot. Am.].)
Accordingly, these matters are now ripe for the court’s review and ruling.
LEGAL STANDARD
A.

Summary Judgment Standard
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The moving party bears the initial burden of showing an absence of evidence to support the
nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving
party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for
trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518
(10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the
allegations in the pleadings, but must instead designate “specific facts showing that there is a
genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact
is “material” if “under the substantive law it is essential to the proper disposition of the claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the evidence is such that it might lead a

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reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co.,
631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).
When ruling on a motion for summary judgment, a court may consider only admissible
evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The
factual record and reasonable inferences therefrom are viewed in the light most favorable to the
party opposing summary judgment. Concrete Works, 36 F.3d at 1517. Moreover, because Plaintiff
is proceeding pro se, the court, “review[s] his pleadings and other papers liberally and hold[s] them
to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d
1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (holding allegations of a pro se complaint “to less stringent standards than formal pleadings
drafted by lawyers”). At the summary judgment stage of litigation, a plaintiff’s version of the facts
must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009).
“When opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007); Thomson, 584 F.3d at 1312.
B.

Leave to Amend the Pleadings
Pursuant to the Scheduling Order, the Deadline for Amending the Pleadings was set for

July 15, 2011. (Doc. No. 81, filed June 7, 2011 [Sched. Order].) Plaintiff’s Motion to Amend
was filed well after that date. Because Plaintiff filed his motion after the deadline for amending

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the pleadings, the court employs a two-step analysis,3 first determining whether Plaintiff has
shown good cause to modify the scheduling order under Federal Rule of Civil Procedure 16(b),
then evaluating whether Plaintiff has satisfied the standard for amendment of pleadings under
Federal Rule of Civil Procedure 15(a). This Court has said that
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.”
Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (citations omitted).
Assuming Plaintiff has shown good cause for modifying the scheduling order, he must
also satisfy the requirements of Rule 15(a) for amending the pleadings. Under Rule 15(a), a
court should allow a party to amend its pleadings “when justice so requires.” Fed. R. Civ. P.
15(a). The grant or denial of an opportunity to amend is within the discretion of the court, but

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It is the practice in this District to utilize this two-step analysis, notwithstanding the fact
that the Tenth Circuit “has not yet decided whether a party seeking to amend its pleadings after
the scheduling order deadline must show ‘good cause’ under Rule 16(b) in addition to the Rule
15(a) requirements.” Strope v. Collins, 315 F. App’x 57, 62 n. 4 (10th Cir. 2009) (internal
quotation omitted); cf. Bylin v. Billings, 568 F.3d 1224, 1231 n.9 (10th Cir. 2009)
(acknowledging that “[m]ost circuits have held that when a party amends a pleading after a
deadline set by a scheduling order, Rule 16 and its ‘good cause’ standard are implicated.”)
(collecting cases); Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006) (citing
SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1518-19 (10th Cir. 1990)) (explaining that the
Tenth Circuit “adopted a similar interpretation of Rule 16(b)’s ‘good cause’ requirement in the
context of counterclaims asserted after the scheduling order deadline, but has not yet done so in
the context of an amendment to the complaint”).
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“outright refusal to grant the leave without any justifying reason appearing for the denial is not
an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of
the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Refusing 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 v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Notably,
The Federal Rules reject the approach that pleading is a game of skill in which
one misstep by counsel may be decisive to the outcome and accept the principle
that the purpose of pleading is to facilitate a proper decision on the merits.
Conley v. Gibson, 355 U.S. 41, 48 (1957).
ANALYSIS
The court first considers Defendant’s Motion for Summary Judgment. The court then
turns to Plaintiff’s Motion to Amend.
A.

Motion for Summary Judgment
Defendant argues that he is entitled to summary judgment because Plaintiff cannot prove

that Defendant owed him a fiduciary duty. (Mot. Summ. J. at 6-8.) Under Colorado law, a
person acting as an executor or personal representative of an estate is a fiduciary and, as such,
owes a fiduciary duty to act in the best interests of the beneficiaries to that estate. See Estate of
Schiloa v. Colo. Dept. of Health Care Policy and Fin., 51 P.3d 1080, 1082 (Colo. App. 2002)
(citing In re Estate of Masden, 24 P.3d 634, 637 (Colo. App. 2001); Colo. Rev. Stat. § 15-12711; Colo. Nat’l Bank v. Friedman, 846 P.2d 159, 173 (Colo. 1993)). See also Colo. Rev. Stat. §
15-1-103(2)).
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A fiduciary is a person having a duty, created by his or her undertaking, to act
principally for the benefit of another in matters connected with that undertaking.
A fiduciary’s obligation to the beneficiary include, among other things, a duty of
loyalty, a duty to exercise reasonable care and skill, and a duty to deal impartially
with the beneficiary.
Bailey v. Allstate Ins. Co., 844 P.2d 1336, 1339 (Colo. App. 1992) (citing Destefano v. Grabian,
763 P.2d 275 (Colo. 1988)).
Here Defendant has included evidence in his Motion for Summary Judgment suggesting
that he was not acting as a fiduciary to Plaintiff. First, Eldon Sr.’s will, attached as Exhibit A to
Defendant’s Motion for Summary Judgment, names Sally Myers as the personal representative
of Eldon Sr.’s estate, and names Eldon Jr. as the alternative personal representative in the event
that Ms. Myers failed, refused, or was unable to serve. (Mot. Summ. J., Ex. A at 2.) Second, in
his deposition, Plaintiff conceded that Eldon Jr. “was dad’s [Eldon Sr.] personal representative as
far as I knew, and he was the executor of the estate.” (B. Myers Dep. at 10:17-18.) Finally,
although Defendant is named in Ms. Myer’s will as the personal representative of her estate
(Orig. Compl., Doc. No. 1, filed Feb. 16, 2011, at 41-42), Plaintiff has conceded that he was not
named in her will, and therefore was not a beneficiary of Ms. Myer’s estate (B. Myers Dep. at
23:7-14), the only estate for which Defendant acted as a personal representative.
Plaintiff maintains that Eldon Sr.’s estate passed through “very questionable” documents
(Am. Compl. at 2), that Eldon Sr.’s will is, in fact, “a fraud,” and that Eldon Jr. has Eldon Sr.’s
“real” will (see B. Myers Dep. at 19:20-20:15, 21:4–8). However, Plaintiff has not submitted a
copy of Eldon Sr.’s “real” will for the court’s review. (B. Myers Dep. at 21:9–22:11.)
Accordingly, though Defendant concedes in his Motion for Summary Judgment that some
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“mishaps” occurred with respect to the notaries public that helped execute documents relating to
Eldon Sr.’s estate (see Mot. Summ. J. at 7), Plaintiff has failed to proffer any evidence
suggesting that Defendant owed him a fiduciary duty with respect to his father’s estate. Only the
naked allegations in the Amended Complaint suggest that Defendant acted as a personal
representative or executor of Eldon Sr.’s estate, which, as outlined above, do not constitute
evidence for summary judgment purposes. See also BancOklahoma Mortg. Corp. v. Capital
Title Co., 194 F.3d 1089, 1097 (10th Cir. 1999) (“The party opposing the motion [for summary
judgment] may not rest on the mere allegation or denials of his pleadings to avoid summary
judgment.” (internal quotations and citations omitted). Moreover, as established above, these
allegations are contradicted by evidence from both parties.
Accordingly, on the record presented, the court finds that there is no genuine dispute of
material fact that Defendant did not owe Plaintiff a fiduciary duty with respect to Eldon Sr.’s
estate. Indeed, Plaintiff appears to concede as much in his Response to Defendant’s Motion for
Summary Judgment, where he proposes “to remove the issues of fiducary [sic] duty” from his
Amended Complaint because he “now realizes that the evidence at hand is not within the issues
raised in the pleading.” (Resp. at 1-2.) Therefore, the court finds that Defendant’s Motion for
Summary Judgment is properly granted.
B.

Motion to Amend
In his Motion to Amend, consistent with his position in his Response to Defendant’s

Motion for Summary Judgment, Plaintiff seeks to amend his Amended Complaint “to remove the
issues of fiducary duty, forgery and such.” (Mot. Am. at 1–2.) Upon review of Plaintiff’s
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proposed Second “Amended Complaint” (Doc. No. 143-1 [Second Am. Compl.]), it appears that
Plaintiff now seeks to assert a claim for fraud against Defendant (see id. at 4-5). Defendant
opposes Plaintiff’s Motion to Amend on grounds that Plaintiff’s proposed amendments are
unduly delayed, would be unduly prejudicial, and are futile. The court agrees with Defendant
and also finds that Plaintiff has failed to show good cause to amend the Scheduling Order as a
prerequisite to amending his Amended Complaint.
1.

Good Cause to Amend the Scheduling Order

Plaintiff has failed to demonstrate that the Scheduling Order’s deadline for amending the
pleadings could not have been met despite his diligent efforts. In fact, Plaintiff’s own arguments
undercut any position to the contrary. More specifically, in his Reply in Support of his Motion
to Amend, Plaintiff maintains that he has “always said fraud and if the defense would take 5
seconds to read that he would even see on my civil cover sheet that it said fraud all along, not
fiducary [sic] duty but fraud.” (Reply Mot. Am. at 4.) This plainly suggest that Plaintiff could
have included a claim for fraud in his Original and Amended Complaints, but failed to do so. To
the extent that Plaintiff relies upon the Civil Cover Sheet attached to his original Complaint,
Plaintiff fails to note the prefatory language contain therein, which states: “The JS 44 civil cover
sheet contained and the information contained herein neither replace nor supplement the filing
and service of pleadings or other papers as required by law.” (Doc. No. 1-1, filed Feb. 16, 2011
(emphasis added).)
Instead, it was incumbent upon Plaintiff to include a claim for fraud in his Amended
Complaint after he was ordered to provide a more definite statement consistent with Fed. R. Civ.
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P. 8(a) by Magistrate Judge Kristen L. Mix. (See Doc. No. 40, filed April 14, 2011.) The court
may not assume that Plaintiff can prove facts that have not been alleged, or that Defendant has
violated laws in ways that he has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Drake v. City of Fort Collins,
927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the
plaintiff in the absence of any discussion of those issues”).
Perhaps more to the point, Plaintiff does not maintain that he only recently discovered the
facts giving rise to his proposed fraud claim. Rather, the only additional allegations included in
his proposed Second Amended Complaint relate to the notaries public’s irregularities in
executing certain documents relating to Eldon Sr.’s estate. (See Second Am. Compl. at 2-3.)
However, the documents attached to Plaintiff’s third “Motion for Summary Judgement” clearly
demonstrate that the investigation into these irregularities occurred primarily in 2009 (see Doc.
No. 135, filed Jan. 12, 2012, at 20-36), and at the very latest in early-2011 (see id. at 44-45.)
Accordingly, these facts are not of recent advent, and do not demonstrate good cause to amend
the Scheduling Order to permit Plaintiff to amend his Amended Complaint.
2.

Undue Delay

Even if Plaintiff were able to demonstrate good cause for amending the Scheduling Order
to permit him to amend his Amended Complaint, the court agrees with Defendant that his
proposed amendments are unduly delayed. To be sure, “Rule 15(a) does not restrict a party’s
ability to amend its pleadings to a particular stage in the action.” Minter v. Prime Equip. Co.,
451 F.3d 1196, 1205 (10th Cir. 2006) (citing Fed. R. Civ. P. 15(a); 6 Wright Miller, & Kane,
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FEDERAL PRACTICE AND PROCEDURE § 1488 (2d ed. 1990)). 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.
Indeed, “[t]he longer the delay, the more likely the motion to amend will be denied, as
protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient
reason for the court to withhold permission to amend.” Id. (internal quotations and citations
omitted). In this circuit, “denial of leave to amend is appropriate ‘when the party filing the
motion has no adequate explanation for the delay.’” Id. (quoting Frank v. U.S. West, 3 F.3d
1357, 1365-66 (10th Cir. 1993)); see also Durham v. Xerox Corp., 18 F.3d 836, 840 (10th Cir.
1994) (“[U]nexplained delay alone justifies the district court’s discretionary decision.”) As
such, “[c]ourts will properly deny a motion to amend when it appears that the plaintiff is using
Rule 15 to make the complaint ‘a moving target’ [or to] ‘salvage a lost case by untimely
suggestion of new theories of recovery.’” Id. (quoting Viernow v. Euripides Dev. Corp., 157 F.3d
785, 800 (10th Cir. 1998); Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir.
1994)).
In this case, the Scheduling Order was entered on June 7, 2011 and, as noted above, the
deadline for amending the pleadings has long since passed. (See Sched. Order at 6.)
Additionally, the Scheduling Order’s December 7, 2011 Discovery Cut-Off and January 20,
2012 Dispositive Motions Deadline have now also passed. (Id. at 6; Doc. No. 134, filed Jan. 10,
2012.) Moreover, Plaintiff filed three separate motions for summary judgment (Doc. Nos. 89,
131, 135), all of which were denied because Plaintiff failed to demonstrate that Defendant owed
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him the requisite fiduciary duty to give rise to his claim for breach of fiduciary duty (Doc. Nos.
124, 132, 140). Now, nearly two months after the Discovery Cut-Off, after having taken three
bites at the apple seeking to prevail on his fiduciary duty claim, and after Defendant filed a
meritorious Motion for Summary Judgment, Plaintiff seeks to amend his complaint to “salvage
[his] lost case by untimely suggestion of [a] new theor[y] of recovery.” Minter, 451 F.3d at
1206.
Under these circumstances, the court finds that Plaintiff’s proposed amendments are
patently untimely. Indeed, the court finds that it is quite possible that Plaintiff is attempting to
make his Complaint “a moving target,” id., as his Motion to Amend was not filed until after he
was served with Defendant’s Motion for Summary Judgment. Accordingly, notwithstanding any
prejudice to Defendant or the futility of his proposed amendments, matters to be addressed infra,
the court finds that Plaintiff’s Motion to Amend is properly denied as untimely.
3.

Undue Prejudice

The “most important[] factor in deciding a motion to amend the pleadings, is whether the
amendment would prejudice the nonmoving party.” Id. at 1207. “Courts typically find prejudice
only when the amendment unfairly affects the defendants ‘in terms of preparing their defense to
the amendment.” Id. at 1208 (quoting Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971)). Thus,
the Tenth Circuit found a motion to amend to be unduly prejudicial where it sought “to add an
entirely new and different claim to [the plaintiff’s] suit little more than two months before trial.”
Horn v. Squire, 81 F.3d 969, 973 (10th Cir. 1996) accord Minter, 451 F.3d at 1208.

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Here, the court finds that Defendant reasonably relied on the Plaintiff’s Amended
Complaint in order to target his discovery efforts at the sole claim raised therein—Plaintiff’s
breach of fiduciary duty claim. Indeed, based on those discovery efforts, Defendant filed a
Motion for Summary Judgment arguing that Plaintiff has not established that Defendant owed
him a fiduciary duty with respect to Eldon Sr.’s estate. Now Plaintiff seeks to add an entirely
new and different claim well after the opportunity for discovery and filing dispositive motions
has passed.
To be sure, the factual circumstances underlying Plaintiff’s proposed fraud claim are not
entirely new. However, it is likely that discovery would have to be reopened to allow Defendant
to re-calibrate its efforts toward this new claim, and that renewed dispositive motions would be
in order. Thus, while it may not be necessary to restart this case altogether to accommodate
Plaintiff’s proposed fraud claim, Defendant would undoubtedly suffer significant additional
expenses as a result of Plaintiff’s palpable delay. Accordingly, the court also finds that
Defendant would suffer undue prejudice were it to allow Plaintiff to amend his Amended
Complaint to assert his proposed fraud claim.
4.

Futility

Finally, Defendant argues that Plaintiff’s Motion to Amend should be denied because his
proposed fraud claim is futile. “Although Fed.R.Civ.P. 15(a) provides that leave to amend shall
be given freely, the [] court may deny leave to amend where amendment would be futile. A
proposed amendment is futile if the complaint, as amended would be subject to dismissal.”
Jefferson Cnty. Sch. Dist. v. Moody’s Investor’s Servs., 175 F.3d 848, 859 (10th Cir. 1999)
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(citations omitted). “The futility question is functionally equivalent to the question whether a
complaint may be dismissed for failure to state a claim.” Gohier v. Enright, 186 F.3d 1216,
1218 (10th Cir. 1999) (citations omitted).
The five elements that must be established for a claim of fraud in Colorado are:
(1) A false representation of a material existing fact, or a representation as to a
material existing fact made with a reckless disregard of its truth or falsity; or a
concealment of a material existing fact, that in equity and good conscience should
be disclosed. (2) Knowledge on the part of the one making the representation that
it is false; or utter indifference to its truth or falsity; or knowledge that he is
concealing a material fact that in equity and good conscience he should disclose.
(3) Ignorance on the part of the one to whom representations are made or from
whom such fact is concealed, of the falsity of the representation or of the
existence of the fact concealed. (4) The representation or concealment made or
practiced with the intention that it shall be acted upon. (5) Action on the
representation or concealment resulting in damage.
Universal Drilling Co. v. Camay Drilling Co., 737 F.2d 869, 872 (10th Cir. 1984) (citing
Morrison v. Goodspeed, 68 P.2d 458, 462 (Colo. 1937)); see also Ackmann v. Merch. Mortg. &
Trust Corp., 645 P.2d 7, 13 (Colo. 1982). Additionally, Plaintiff’s proposed fraud claim is
subject to Rule 9(b)’s heightened pleading standards. Fed. R. Civ. P. 9(b) (“In alleging fraud
. . . , a party must state with particularity the circumstances constituting fraud . . . .”)
Here, Plaintiff’s proposed fraud claim simply alleges that
Plantiff [sic] is entitled to relief as a matter of law because the assets [of Eldon
Sr.’s estate] were frauded [sic] from him by way of Defendants [sic] Mother,
Sally A. Myers, who used invalid documents to obtain them from my father by
way of fraud to leave to her son, Dorwin Dwayne Hummel. Plantiff [sic]
respectfully requests that the court grant the full amount of relief requested and if
the court so chooses to add additional damages the Plantiff [sic] will not object.

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(Second Am. Compl. at 4.) These allegations certainly fail to satisfy Rule 9(b)’s heightened
pleading standard—indeed, they arguably fall short of Rule 8(b)(2)’s “short and plain statement
of the claim showing that [Plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(b)(2). Plaintiff’s
proposed fraud claim does not address any of the elements of a fraud claim or how Defendant’s
alleged conduct satisfies those elements. Indeed, at very best, Plaintiff’s proposed fraud claim
arguably suggests that Defendant’s mother, Ms. Myers, engaged in fraud; it does not address
how Defendant allegedly engaged in fraud.
Accordingly, in addition to finding that Plaintiff has not demonstrated good cause to
amend the Scheduling Order, and that Plaintiff’s proposed amendments are untimely and unduly
prejudicial, the court finds that Plaintiff’s proposed fraud claim is futile insofar as it fails to state
a claim for relief. Altogether, the court finds that Plaintiff’s Motion to Amend is properly
denied.
Therefore, for the foregoing reasons, it is ORDERED that Defendant’s “Motion for
Summary Judgment” (Doc. No. 138) is GRANTED, and that Plaintiff’s“Motion to Amend
Amended Complaint” (Doc. No. 143) is DENIED.
It is further ORDERED that this case is DISMISSED WITH PREJUDICE.
Dated this 26th day of March, 2012.

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