Delarosa et al v. Coyote Pumping Services, Inc. et al

Filing 64

ORDER granting in part and denying in part 61 Motion to Strike New Material from Plaintiffs Reply to Defendants Response to Plaintiffs Second Motion to Amend Scheduling Order or in the Alternative Motion for Leave to File Surreply, and denying 56 Motion to Amend Scheduling Order, by Magistrate Judge Kathleen M. Tafoya on 5/23/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–01188–CMA–KMT

ANTONIO DELAROSA, and
ROSANNA MENDOZA-RIOS,
Plaintiffs,
and
THE PHOENIX INSURANCE COMPANY,
Plaintiff-Intervenor,
v.
COYOTE PUMPING SERVICES, INC., and
THE MINE SUPPLY COMPANY (IMSCO),
Defendants.

ORDER

This matter is before the court on Plaintiffs’ “Motion to Amend Scheduling Order” (Doc.
No. 56 [Mot. Am. Sched. Order]) and “Defendant Coyote Pumping Services, Inc.’s Motion to
Strike New Material from Plaintiffs’ Reply to Defendant’s Response to Plaintiffs’ Second
Motion to Amend Scheduling Order or in the Alternative Motion for Leave to File Surreply.”
(Doc. No. 61, filed May 13, 2013 [Mot. Strike]). Defendant Coyote Pumping Services, Inc.
(hereinafter “Coyote”) filed a Response to Plaintiff’s Motion to Amend the Scheduling Order on

April 29, 2013 (Doc. No. 59 [Resp.]) and Plaintiffs filed a Reply on May 3, 2013 (Doc. No. 60
[Reply]). Although the deadline for Plaintiffs to file a response to Coyote’s Motion to Strike has
not yet expired, the court notes that it may rule on a motion at any time after it is filed.
D.C.COLO.LCivR 7.1C. For the following reasons, Coyote’s Motion to Strike is GRANTED in
part and DENIED in part and Plaintiffs’ Motion to Amend the Scheduling Order is DENIED.
A.

Motion to Strike
Coyote seeks to strike Plaintiffs’ Reply in Support of their Motion to Amend on grounds

that it contains new factual and legal arguments not featured in their Motion. Alternatively,
Coyote seeks leave to file the proposed Surreply (Doc. No. 61-1) attached to its Motion to Strike.
The court agrees with Coyote that Plaintiffs have raised a number of new facts and
arguments in their Reply and also acknowledges the possibility that Plaintiffs may have
strategically omitted these arguments from their Motion to prevent Coyote from filing a
meaningful response. Indeed, while Plaintiffs’ Motion is a cursory three pages in length and
does not include any discussion of the legal standard governing amendments to the scheduling
order (see Mot. Amend Sched. Order), Plaintiffs’ Reply is eleven pages, begins with a four-page
section entitled “Additional Facts Necessary to Adjudicate Motion,” and discusses for the first
time the “good cause” standard governing the relief they seek (see Reply).
“When a party puts forth new arguments in a reply brief a court may . . . either: (1)
choos[e] not to rely on the new arguments in determining the outcome of the motion; or (2)
permit[] the nonmoving party to file a surreply.” EEOC v. Outback Steak House, 520 F. Supp.
2d 1250, 1260 (D. Colo. 2006) (citing Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186,
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1992 (10th Cir. 2006). As detailed supra, even considering the arguments raised in Plaintiffs’
Reply, the court finds that Plaintiffs have not shown good cause to support amending the
Scheduling Order. As such, the court will grant Coyote’s Motion to Strike to the extent that it
seeks leave to file the Surreply attached thereto. Accordingly, Coyote’s Motion to Strike is
granted in part and denied in part.
B.

Motion to Amend Scheduling Order
Plaintiffs’ Motion to Amend the Scheduling Order seeks to amend the Scheduling Order

(Doc. No. 33, filed Aug. 22, 2012 [Sched. Order]) in order to allow them an additional thirty
days to amend their Complaint to add a claim for exemplary damages, an additional thirty days
to endorse additional experts relating to whether the activity of elevated concrete pumping is an
inherently dangerous activity, and an additional ninety days for “financial discovery” relating to
their proposed exemplary damages claim (see Mot. Amend Sched. Order).
A deadline in a scheduling order may be modified only for “good cause and with the
judge’s consent.” Fed. R. Civ. P. 16(b)(4). “In this context, good cause has been interpreted to
mean: ‘[T]he court may modify the schedule on a showing of good cause if it cannot reasonably
be met despite the diligence of the party seeking the extension.’” Jorgensen v. Montgomery, No.
06-cv-00853-MSK, 2007 WL 3119549, at *3 (D. Colo. Oct. 19, 2007) (quoting Advis. Comm.
Notes for 1983 Amend. to Rule 16)).
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

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a party’s diligent efforts . . . . Carelessness is not compatible with a finding of
diligence and offers no reason for a grant of relief.
Id. (quoting Dilmer Oil Co., Inc. v. Federated Mutual Ins. Co., 986 F. Supp. 959, 980 (D.S.C.
1997); see also Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001).
“Demonstrating good cause under the rule . . . means [the movant] must provide an adequate
explanation for the delay.” Strope v. Collins, 315 F. App’x 57, 61 (10th Cir. 2009).
The court finds that Plaintiffs have failed to show good cause to extend the relevant
Scheduling Order deadlines. As a threshold matter, Plaintiffs’ Motion to Amend the Scheduling
Order was filed more than six months after the deadline to amend the pleadings expired, nearly
three months after the deadline for Plaintiff’s expert witnesses disclosures, and the same day as
the discovery cut-off. (See Sched. Order; Minute Order, Doc. No. 42, filed Jan. 29, 2013.)
Plaintiffs’ only justification for their delay in seeking to extend these deadlines is that
they were hindered in developing evidence to support a claim for exemplary damages “because
depositions of crucial witnesses, particularly that of Coyote CEO Anthony Villegas, had to be
continued at the request of Defendant Coyote.” (Reply at 6.) Mr. Villegas’s deposition, which
was originally scheduled for November 15, 2012, was indeed continued at Coyote’s request
because Mr. Villegas was ill on that date. However, Plaintiffs have provided absolutely no
explanation as to why it took nearly five months before they rescheduled Mr. Villegas’s
deposition for April 10, 2013—nine days before the discovery cut-off. This palpable delay in
scheduling the deposition of this “crucial witness” exhibits a plain lack of diligence by Plaintiffs.
This is particularly true as Plaintiffs admit they were seeking evidence to support a claim for

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exemplary damages throughout the discovery process and must have known that the deadline for
amending the pleading had expired much earlier.
In addition, to the extent Plaintiffs maintain that the April 9, 2013 deposition of Michael
Soto also provided evidence to support Plaintiffs’ proposed claim for exemplary damages, it
cannot be argued that Coyote caused the delay of that deposition. Plaintiffs admit that Mr. Soto
is no longer employed by Coyote (Reply at 3); thus, Coyote did not have any greater ability to
facilitate Mr. Soto’s deposition than did Plaintiffs. To be sure, Plaintiffs were forced to reset Mr.
Soto’s deposition from its originally scheduled date of November 15, 2012 because Mr. Soto
would not return phone calls from Plaintiffs’ counsel. (Id.) However, Plaintiffs once again have
not provided any explanation as to why they waited another five months before rescheduling Mr.
Soto’s deposition for April 9, 2013.
Altogether, Plaintiffs have clearly failed to comply with the Scheduling Order’s deadline
for amending the pleadings and have failed to demonstrate good cause to modify that deadline
under Rule 16(b)(4). A “Scheduling Order is not a frivolous piece of paper, idly entered, which
can be cavalierly disregarded by counsel without peril.” Washington v. Arapahoe Cnty. Dept. of
Soc. Servs., 197 F.R.D. 439, 441 (D. Colo. 2000) (internal quotations and citations omitted).
Further, because Plaintiffs seek to extend the discovery cut-off for the sole purpose of
conducting financial discovery to support its proposed claim for exemplary damages, the court
declines to extend the discovery cut-off. Finally, to the extent that Plaintiffs argue that an
extension of the deadline for affirmative expert disclosures is warranted because they did not
discover the existence of their proposed expert, former Coyote employee William Rodda, until
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the depositions of Messrs. Villegas and Soto, as discussed above, Plaintiffs were not diligent in
completing those depositions.
Therefore, for the foregoing reasons, it is
ORDERED that “Defendant Coyote Pumping Services, Inc.’s Motion to Strike New
Material from Plaintiffs’ Reply to Defendant’s Response to Plaintiffs’ Second Motion to Amend
Scheduling Order or in the Alternative Motion for Leave to File Surreply” (Doc. No. 61) is
GRANTED in part and DENIED in part, and Plaintiffs’ “Motion to Amend Scheduling Order”
(Doc. No. 56) is DENIED. The Clerk of Court is directed to file Defendants’ proposed Surreply
(Doc. No. 61-1).
Dated this 23rd day of May, 2013.

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