Perkins et al v. Federal Fruit & Produce Company, Inc. et al

Filing 34

ORDER. Defendants Motion for Leave to Amend Answer to Amended Complaint and Jury Demand #29 is GRANTED. By Magistrate Judge Kristen L. Mix on 8/29/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00542-REB-KLM
RICHARD PERKINS, individually, and
RICHARD MILLER, individually,
Plaintiffs,
v.
FEDERAL FRUIT & PRODUCE COMPANY, INC., a Colorado corporation, and
MICHAEL MARTELLI, individually,
Defendants.
_____________________________________________________________________
ORDER GRANTING MOTION TO AMEND ANSWER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion for Leave to Amend
Answer to Amended Complaint and Jury Demand [Docket No. 29; Filed August 2, 2011]
(the “Motion”). Plaintiffs filed a Response in opposition to the Motion on August 16, 2011
[Docket No. 32], and Defendants filed a Reply on August 23, 2011 [Docket No. 33]. The
Motion is fully briefed and ripe for resolution.
IT IS HEREBY ORDERED that the Motion is GRANTED for the reasons set forth
below.
This matter pertains to Defendants’ alleged discriminatory employment practices.
See Scheduling Order [#21] at 2. Specifically, Plaintiffs contend “that Defendants, as part
of a pattern and practice of discrimination and retaliation, discriminated against Mr. Perkins
because is African American, and terminated Mr. Perkins and Mr. Miller in contravention
of federal and state law.” Id. Plaintiffs assert seven federal and state law claims for relief

including race discrimination, retaliation, intentional interference with business
opportunities, outrageous conduct, intentional infliction of emotional distress, and wrongful
discharge. Id. at 3. By contrast, Defendants contend that “Plaintiffs’ allegations concerning
their employment, discipline, and terminations . . . are incongruous with the welldocumented and undisputable record of these events.” Id. Defendants also contend that
Plaintiffs were terminated for legitimate, nondiscriminatory reasons. Id. at 3-5. Defendants
assert several affirmative defenses, including that the federal claims were not properly
exhausted and that Plaintiffs failed to state sufficient factual bases for their claims. Id. at
6-8.
Pursuant to the Motion, Defendants seek to amend their Answer to add an afteracquired evidence defense. See Motion [#29] at 2. Specifically, in May 2011, Defendants
received information that Plaintiff Miller, whose responsibilities included driving while
employed by Defendants, had his driver’s license suspended for failure to pay child
support. Defendants contend that if they had learned this information during Plaintiff
Miller’s employment they “would have immediately terminated Miller for driving without a
license and for failing to advise [Defendants] that he was driving without a license.” Id.
As a preliminary matter, the pleading amendment deadline expired on June 19,
2011. See id. at 13. The present Motion was filed on August 2, 2011 and, therefore, is
untimely. Accordingly, Defendants must provide good cause for their 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,
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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. 178, 182 (1962). The parties’ respective arguments on the Motion are
as follows.
Defendants contend that they were diligent in attempting to meet the pleading
amendment deadline. Motion [#29] at 2, 7-8; Reply [#33] at 4-6. Defendants also argue
that even if their conduct does not evidence diligence, the good cause standard set forth
in Rule 16(b)(4) must yield to Rule 15(a)’s preference for liberally granting requests to
amend. Reply [#33] at 2-4.
Plaintiffs counter that Defendants’ conduct does not evidence the diligence
necessary to satisfy the Rule 16(b)(4) good cause standard. Response [#32] at 5.
Moreover, Plaintiffs contend that because the pleading amendment deadline has already
expired, Defendants must also evidence excusable neglect for their failure to meet the
deadline pursuant to Fed. R. Civ. P. 6(b)(1)(B). Plaintiffs contend that Defendants have not
satisfied their burden under either rule. Plaintiffs do not explicitly raise any objection to the
Motion pursuant to Rule 15(a).
Prior to addressing the key issue here, which for my purposes is whether
Defendants have provided good cause for amendment, the Court briefly addresses two
arguments asserted by the parties. First, to the extent that Defendants contend that Rule
15(a) somehow trumps the determination regarding whether there is good cause to extend
the pleading amendment deadline, this position is rejected. It is my 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.
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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-00816REB-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. 10cv-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.’”).
Second, to the extent that Plaintiffs argue that Defendants must also demonstrate
excusable neglect for their delayed request, this argument is likewise rejected. In relation
to the threshold issue of timeliness, it is not the Court’s practice to require any assessment
of excusable neglect. Furthermore, this practice is justified by the Advisory Committee
Notes to Rule 16, wherein the drafters specifically noted that it was not their intention to
impose a more exacting standard than good cause when considering whether deadlines
set in the Scheduling Order should be extended. This exception is carved out due to the
concern that requiring more than good cause for extensions could encourage the parties
to request longer deadlines at the outset of their case for “fear that extensions would not
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be granted.” 1983 Advisory Committee’s Note to Fed. R. Civ. P. 16.
A.

Good Cause to Modify the Pleading Amendment Deadline

The facts relevant to the good cause determination are set forth in the Motion.
Specifically, Defendants admit that they knew as of May 2011, which is one month prior to
the expiration of the pleading amendment deadline, about the existence of information
which would justify asserting an after-acquired evidence defense. Motion [#29] at 1.
Rather than seeking leave to amend, Defendants attempted to verify the information
through discovery propounded to Plaintiff Miller. Id. at 4. Plaintiff Miller’s discovery
responses were not due until June 24, 2011, which fell after the pleading amendment
deadline. Id. Due to an agreed-upon extension for Plaintiff Miller to respond, the discovery
responses were not received until July 8, 2011.

Id.

Defendants filed their Motion

thereafter. At first glance, these facts would seem to preclude a finding of diligence.
However, while Defendants must “show that [they were] 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). The Court would be remiss not to acknowledge that
Defendants took action prior to expiration of the pleading amendment deadline to obtain
discovery, (as opposed to mere “information”),1 pertaining to the defense.

1

More

Defendants do not explain how they initially obtained the information about Plaintiff
Miller’s alleged license suspension, but because it was derived before the Scheduling
Conference and because it was not confirmed by Plaintiff Miller in his discovery responses, the
Court assumes that the information came to Defendants through some means other than
discovery or initial disclosures.

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specifically, they propounded discovery requests attempting to elicit evidence from Plaintiff
Miller regarding the matter. Moreover, they informed both the Court and Plaintiffs at the
May 23, 2011 Scheduling Conference that they intended to amend their Answer to reflect
the defense. Further, the Court appreciates Defendants’ candor in their Motion, both
acknowledging that, in hindsight, they should have moved for amendment in a timely
fashion and that their tactical decision to delay until receipt of Plaintiff Miller’s discovery
responses was a mistake. Finally, while surprise to Plaintiffs and the length of the delay
are not traditional considerations in determining whether a party has been diligent, here I
note that Plaintiffs’ receipt of notice of the defense in advance and the short delay resulting
from Defendants’ attempt to obtain discovery inform the Court’s interpretation of
Defendants’ conduct and whether it evidences diligence.
While it cannot be denied that Defendants should have sought an extension of the
pleading amendment deadline prior to its expiration, the Court is inclined to allow
amendment of the answer here. To be clear, the Court does not condone Defendants’
tactical decisions to delay amendment and ignore the Court deadline. Nevertheless, I do
not view this as the type of carelessness that the good cause standard is meant to address.
See Pumpco, Inc. v. Schenker Int’l, Inc. 204 F.R.D. 667, 668 (D. Colo. 2001). Although an
exceedingly close call, I find that Defendants have provided good cause for requesting
leave to amend outside the pleading amendment deadline.
B.

Rule 15(a) Requirements

Turning then to Rule 15(a) and whether justice would be served by permitting
amendment, I note that Plaintiffs do not explicitly raise any argument related to the
standard applicable to this issue. As noted above, in situations where the request falls
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outside the pleading amendment deadline and assuming good cause is shown, leave
should generally be permitted unless the moving party unduly delayed or failed to cure, the
opposing party would be unduly prejudiced, or the proposed amendment would be futile.
Foman, 371 U.S. at 182. To the extent that Plaintiffs’ argument could be interpreted to
suggest that Defendants unduly delayed their request, the Court notes that while
Defendants’ Motion came after the pleading amendment deadline expired, it nevertheless
came early in the case and well before the expiration of the discovery deadline. Moreover,
the amendment was not a surprise to Plaintiffs or the Court as Defendants had already
expressed their intention to amend their answer. Further, during the delay, Defendants
were attempting to obtain evidence related to the defense. Although Defendants delayed,
and I find that they did not give appropriate deference to a Court deadline, I do not find that
this history evidences an undue delay. Accordingly, the Motion is granted.
IT IS FURTHER ORDERED that the Court accepts Defendants’ Answer [#29-1] for
filing as of the date of this Order.
Dated: August 29, 2011
BY THE COURT:
s/ Kristen L. Mix
United States Magistrate Judge
Kristen L. Mix

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