WildEarth Guardians v. Lamar Utilities Board et al

Filing 46

ORDER granting 43 Plaintiff's Motion for Leave to File a Supplemental Complaint. Supplement Complaint (43-2) is accepted for filing as of the date of this Order. Each party shall pay its own attorney fees and costs for this motion. By Magistrate Judge Michael J. Watanabe on 7/11/2012.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00742-MSK-MJW
WILDEARTH GUARDIANS,
Plaintiff(s),
v.
LAMAR UTILITIES BOARD d/b/a Lamar Light and Power, and
ARKANSAS RIVER POWER AUTHORITY,
Defendant(s).

ORDER REGARDING
PLAINTIFF’S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL COMPLAINT
(DOCKET NO. 43)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on Plaintiff’s Motion for Leave to File a
Supplemental Complaint (docket no. 43). The court has reviewed the subject motion
(docket no. 43) and the response (docket no. 45). 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.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

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3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That Federal Rule of Civil Procedure 15(d) provides that “the court
may, on just terms, permit a party to serve a supplemental pleading
setting out any transaction, occurrence, or event that happened
after the date of the pleading to be supplemented.” Fed. R. Civ. P.
15(d). Motions to supplement are addressed to the sound
discretion of the court. Gillihan v. Shillinger, 872 F.2d 935, 941
(10th Cir. 1989). “The court should apply the same standard for
exercising its discretion under Rule 15(d) as it does for deciding a
motion under Rule 15(a).” Southwest Nurseries, LLC v. Florists
Mut. Ins., Inc., 266 F. Supp.2d 1253, 1256 (D. Colo. 2003). Leave
to supplement should be freely granted “unless there is a showing
of: (1) undue delay; (2) bad faith or dilatory motive; (3) repeated
failure to cure deficiencies by amendments previously allowed; (4)
undue prejudice to the opposing party; or (5) futility of the
amendment.” Myers v. Alliance for Affordable Services, 371 Fed.
Appx. 950, 960 (10th Cir. Apr. 7, 2010), citing Forman v. Davis, 271
U.S. 178, 182 (1962); and

5.

That I find that the supplemental complaint has not been brought in
bad faith or for a dilatory motive on the part of the Plaintiff. The
supplemental complaint concerns Clean Air Act violations that
allegedly occurred from July 23, 2011, through November 12, 2011,

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after the filing of the original complaint. The original complaint
(docket no. 1) was filed with the court on March 23, 2011. On
January 16, 2012, Plaintiff provided Defendants with notice of its
intent to sue over these violations. See exhibit A attached to
subject motion (docket no. 43). The supplemental complaint will
not cause undue delay since the parties have not conducted
discovery on the merits, and no depositions have been taken in this
case. Moreover, the discovery cut off date is June 3, 2013, and the
dispositive motion deadline is July 3, 2013. In addition, I find the
supplemental complaint is timely per the Rule 16 Scheduling Order
dated May 16, 2012 (docket no. 41), which set the deadline to
amend the pleadings or join additional partes on June 8, 2012, and
the subject motion (docket no. 43) was filed with the court on June
7, 2012. Further, I do not find that this supplemental complaint will
cause undue prejudice to Defendants, and Defendants will have a
full opportunity to conduct discovery on the merits and prepare their
defenses to the supplement complaint. Lastly, I find that there has
not been prior amendments that have failed to cure any
deficiencies in the complaint, and allowing the supplemental
complaint would not be futile. Accordingly, for these reasons, the
subject motion (docket no. 43) should be granted.

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ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiff’s Motion for Leave to File a Supplemental Complaint
(docket no. 43) is GRANTED. The Supplement Complaint (docket
no. 43-2) is accepted for filing as of the date of this Order; and

2.

That each party shall pay their own attorney fees and costs for this
motion.

Done this 11th day of July 2012.

BY THE COURT

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