Carriker et al v. City & County of Denver et al
ORDER granting 67 Plaintiffs Unopposed Motion for Leave to Amend the Complaint. IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiffs Second Amended Complaint 64 for filing as of the date of this Order. IT IS FURTHER ORDERE D that the caption shall be amended accordingly. IT IS FURTHER ORDERED that Defendant shall answer or otherwise respond to the Second Amended Complaint on or before October 7, 2013. IT IS FURTHER ORDERED that Plaintiff shall serve the Second Amended Complaint on Defendant City and County of Denver and file proof of service of same on or before September 30, 2013, by Magistrate Judge Kristen L. Mix on 9/16/2013.(ervsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02365-WJM-KLM
CLAYBORN CARRIKER, husband, and
DORIS CARRIKER, wife,
ISS FACILITY SERVICES, INC., and
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiffs’ Unopposed Motion for Leave to
Amend the Complaint [Docket No. 67; Filed August 22, 2013] (the “Motion”). The Motion
is referred to this Court for resolution [#68]. For the reasons set forth below, the Motion
[#67] is GRANTED.
This action arises from an accident that occurred on August 23, 2011, when
Clayborn Carriker (“Mr. Carriker”) fell while entering a bathroom at Denver International
Airport (“DIA”). Am. Compl. [#11] at 4. Mr. Carriker was taken to St. Luke’s Hospital and
“was diagnosed with a transcervical fracture of the right hip, right femoral neck fracture,
shortness of breath, and shoulder pain.” Id. On September 5, 2012, Plaintiffs filed a
Complaint and Jury Demand [#1]. On October 5, 2012, Plaintiffs filed the Amended
Complaint & Jury Demand [#11].
In their Amended Complaint, Plaintiffs raise two causes of action against Defendant
and former defendants based on their contention that Defendant and former defendants
failed to properly train personnel, supervise personnel, and maintain the facilities at DIA.
Id. at 3-6. First, they allege negligent failure to train or supervise pursuant to the Colorado
Premises Liability Act. Id. at 3-5. Second, Plaintiffs allege loss of consortium. Id. at 5-6.
On November 6, 2012, Plaintiffs filed a Second Amended Complaint & Jury Demand
[#20]. On November 16, 2012, Defendants filed a Motion to Strike Plaintiff’s Second
Amended Complaint [#28]. On December 20, 2012, the Court granted Defendant’s Motion
to Strike because Plaintiffs failed to obtain “Defendants’ written consent or seek leave of
court before filing their Second Amended Complaint” pursuant to Fed. R. Civ. P. 15(a)(1).
On March 29, 2013, Plaintiffs filed a Motion for Leave to Amend Complaint [#35].
On April 19, 2013, Defendants filed Responses [##37, 38]. On May 16, 2013, the Court
denied Plaintiffs’ Motion for Leave to Amend Complaint [#35] pursuant to Fed. R. Civ. P.
On May 30, 2013, the Court granted a motion to dismiss filed by Defendants City
and County of Denver, Colorado; Kim Day; and Dave LaPorte (collectively, the “Denver
Defendants”), finding that “Plaintiffs here have failed to plead that the cause of their injuries
was a ‘physical condition’ of the DIA building or a use thereof,” Order [#41] at 8 and that,
as a result, Plaintiffs’ claims against the Denver Defendants were barred by the Colorado
Governmental Immunity Act, id. at 10. Therefore, the Court dismissed the claims asserted
against the Denver Defendants without prejudice. Id. at 12.
On June 24, 2013, the Court entered a second Scheduling Order which set
September 1, 2013 as the deadline for amendment of pleadings. Scheduling Order [#58]
On August 16, 2013, Plaintiffs filed a Motion for Leave to Amend the Complaint [#63]
which was denied pursuant to D.C.COLO.LCiv.R 7.1A [#66].
On August 22, 2013, Plaintiffs filed the instant Motion. Pursuant to the Motion,
Plaintiffs seek to amend their Amended Complaint [#11] “to add the City and County of
Denver, as [a] Defendant[ ] in this action,” and to clarify allegations in the Amended
Complaint [#11]. Motion [#67] at 2; compare Am. Compl. [#11] with Proposed Second Am.
The pleading amendment deadline expired on September 1, 2013. See Scheduling
Order [#58] at 6 § 9(a). The instant Motion was filed on August 22, 2013 and was,
therefore, timely filed. See generally Motion [#67].
The Court has discretion to grant a party leave to amend its pleadings. Foman v.
Davis, 371 U.S. 178, 182 (1962); see Fed. R. Civ. P. 15(a)(2) (“The court should freely give
leave when justice so requires.”). The purpose of Rule 15 is to afford “the maximum
opportunity for each claim to be decided on its merits rather than on procedural niceties.”
Minter v. Prime Equipment Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quotation omitted).
“In the absence of any apparent or declared reason – such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of the amendment, etc. – the leave sought should, as
the rules require, be ‘freely given.’” Foman, 371 U.S. at 182 (quoting Fed. R. Civ. P.
15(a)(2)). Potential prejudice to a defendant is the most important factor in considering
whether a plaintiff should be permitted to amend its complaint. Minter v. Prime Equip. Co.,
451 F.3d 1196, 1207 (10th Cir. 2006). “Courts typically find prejudice only when the
[proposed] amendment unfairly affects the defendants in terms of preparing their defense
to [claims asserted in the] amendment.” Id. (quotation omitted).
After carefully reviewing Plaintiffs’ Amended Complaint [#11] and proposed Second
Amended Complaint [#64], the Court agrees with Plaintiffs that the proposed amendment
is an effort to clarify Plaintiffs’ claims with additional facts and “add the City and County of
Denver” as a Defendant. Motion [#67] at 2. Accordingly, the Court finds that Defendant
will not be prejudiced by allowing the filing of the Second Amended Complaint. Moreover,
Defendant and the proposed additional Defendant have ample time to prepare their
defenses. The deadline for the completion of discovery is still more than six months away,
and the deadline for filing dispositive motions is April 1, 2014. Scheduling Order [#58] at
6 §§ 9(b) and (c).
The Court also finds that Plaintiffs have demonstrated good cause for amending
their Amended Complaint [#11]. It is eminently reasonable to allow Plaintiffs to timely
amend the Amended Complaint so as to clarify their allegations. Motion [#67] at 2.
Permitting such amendment will benefit both parties and the Court by clarifying the issues
in the case.
For the foregoing reasons, and considering that leave to amend should be freely
IT IS HEREBY ORDERED that the Motion [#67] is GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiff’s
Second Amended Complaint [#64] for filing as of the date of this Order.
IT IS FURTHER ORDERED that the caption shall be amended accordingly.
IT IS FURTHER ORDERED that Defendant shall answer or otherwise respond to
the Second Amended Complaint on or before October 7, 2013.
IT IS FURTHER ORDERED that Plaintiff shall serve the Second Amended
Complaint on Defendant City and County of Denver and file proof of service of same on or
before September 30, 2013.
Dated: September 16, 2013
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?