Taylor Moving, LLC v. Voigt et al

Filing 40

ORDER granting 35 Motion to Amend Verified Complaint to Include Boulder Valley Transfer, Inc. The Clerk of the Court is directed to accept for filing the Verified Amended Complaint [35-1] by Magistrate Judge Boyd N. Boland on 03/27/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 11-cv-01540-WYD-BNB
TAYLOR MOVING, LLC, a Colorado limited liability company,
Plaintiff,
v.
MICHAEL VOIGT, an individual,
OPM ENTERPRISES, INC., d/b/a Pride Worldwide Moving & Storage, d/b/a Boulder Valley
Transfer, a Colorado corporation,
TAYLOR MOVING, INC., a Colorado corporation,
TAYLOR MOVING AND STORAGE, INC., a Colorado corporation, and
BOULDER VALLEY TRANSFER, INC.,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on Plaintiff’s Motion to Amend Verified Complaint to Include
Boulder Valley Transfer, Inc. [Doc. # 35, filed 3/9/2012] (the “Motion to Amend”), which is
GRANTED.
The plaintiff seeks leave to amend its complaint to add a claim against Boulder Valley
Transfer, Inc. (“BVT”). BVT was identified in the initial Complaint as a trade name utilized by
OPM Enterprises. Verified Complaint [Doc. # 1] at ¶3. Subsequently, the defendants answered
and filed counterclaims. Answer and Counterclaims [Doc. # 15, filed 12/2/2011]. In the Answer
and Counterclaims, the defendants asserted that BVT “is not a legal company and is not D.O.T.
compliant.” Id. at ¶26(b). This allegation notwithstanding, BVT asserted a counterclaim against
the plaintiff. Id. at p. 6. The plaintiff moved to dismiss BVT’s counterclaim because BVT was
not a party to the action. Amended Motion to Dismiss [Doc. # 17].

A scheduling conference was held on January 17, 2012. The Scheduling Order indicates
that Donald Janklow represented, among others, “OPM Enterprises, Inc. d/b/a Pride Worldwide
Moving & Storage d/b/a Boulder Valley Transfer. . . .” Thus, defense counsel continued to
represent that BVT was a trade name for OPM Enterprises and not a legal entity. Scheduling
Order [Doc. # 23] at p. 1.
New counsel entered its appearance on behalf of the defendants on January 31, 2012.
See Defendants’ Response [Doc. # 26]. On February 24, 2012, defendants moved for an
extension of time, to and including March 5, 2012, to add parties and amend pleadings.
Defendants’ Motion [Doc. # 28]. In particular, Defendants’ Motion stated that “Defendants and
their counsel have been discussing whether or not to add Boulder Valley Transfer, Inc. as a party
to this case. . . .” Id. at ¶ 2. Defendants’ Motion was granted. Minute Order [Doc. # 30]. On
March 5, 2012, the defendants moved to join BVT as a counterclaimant and to amend their
counterclaims. Defendants’ Combined Motions [Doc. # 31]. For the first time, BVT was
identified as a Colorado corporation. Id. at ¶1. Defendants’ Combined Motions were granted on
March 9, 2012. Minute Order [Doc. # 34]. Also on March 9, the plaintiff moved to amend its
complaint to add BVT as a defendant. Plaintiff’s Motion to Amend [Doc. # 35] at p. 1.
The defendants oppose the Plaintiff’s Motion to Amend as untimely, arguing that the
deadline to join parties and amend pleadings expired on March 5, 2012. However, I find based
on the confusion about BVT’s corporate status, which was compounded by the actions of
defendants’ counsel, that good cause exists to extend that deadline through the filing of the
Plaintiff’s Motion to Amend on March 9, 2012. In addition, the plaintiff acted diligently to seek
leave to amend promptly after the corporate status of BVT was clarified. In addition,

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amendment of the complaint is appropriate under Rule 15, Fed. R. Civ. P., and the defendants do
not contend otherwise.
IT IS ORDERED:
(1)

Plaintiff’s Motion to Amend [Doc. # 35] is GRANTED; and

(2)

The Clerk of the Court is directed to accept for filing the Verified Amended

Complaint [Doc. # 35-1].
Dated March 27, 2012.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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