Jenkins v. Duffy Crane and Hauling, Inc. et al

Filing 119

ORDER; 93 Plaintiffs Second Renewed Motion to Amend Case Management Order for Extension of Deadline for Joinder of Parties and Amendment of Pleadings and 94 Plaintiffs Motion and Brief to Join Immedia, Inc. Under F.R.C.P. 19 or in the Alternat ive Under F.R.C.P. 20 are GRANTED. IT IS FURTHER ORDERED that the deadline for joinder of parties and amendment of pleadings set in the Scheduling Order 51 is extended through November 20, 2015. IT IS FURTHER ORDERED that Plaintiff may file an Amended Complaint which names Immedia, Inc. as a Defendant on or before November 20, 2015. 117 Plaintiffs Status Report and Request for Ruling is GRANTED, by Magistrate Judge Kristen L. Mix on 10/27/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00327-CMA-KLM
FRANKLYN A. JENKINS,
Plaintiff,
v.
DUFFY CRANE AND HAULING, INC., a Colorado Corporation,
DUFFY HOLDINGS, LLC, a Colorado Limited Liability Company, and
DUFFY CRANE, INC., a Colorado Corporation,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Second Renewed Motion to Amend
Case Management Order for Extension of Deadline for Joinder of Parties and
Amendment of Pleadings [#93]1 (the “Motion to Amend”) and Plaintiff’s Motion and
Brief to Join Immedia, Inc.2 Under F.R.C.P. 19 or in the Alternative Under F.R.C.P. 20
[#94] (the “Joinder Motion”).3 The Motions were referred to this Court for disposition [#97].
Defendants filed a substantive response [#103] to the Joinder Motion and filed a response
[#104] to the Motion to Amend that incorporates the response to the Joinder Motion [#103]

1

“[#93]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Order.
2

The Court refers to Immedia, Inc. as “Immedia” throughout this Order.

3

As noted in the Conclusion, the Court also rules on Plaintiff’s Status Report and Request
for Ruling [#117], which requests a ruling on the Motions.

1

without any further argument. As a result, the Court refers to the response to the Joinder
Motion as the “Response” throughout this Order. Similarly, Plaintiff did not file a reply in
support of the Motion to Amend. Plaintiff filed a reply [#108] in further support of the
Joinder Motion (the “Reply”). The Court has reviewed the Motions, the Response, the
Reply, the entire docket, and the applicable law, and is sufficiently advised in the premises.
For the reasons set forth below, the Motion to Amend [#93] and the Joinder Motions [#94]
are GRANTED.
I. Background
In this negligence action, Plaintiff alleges that Defendants are responsible for injuries
he sustained on February 12, 2010, when part of the cargo he was hauling “rolled off the
top [of his step deck trailer] and crushed him.” Compl. [#1] ¶¶ 41, 45. In support of his
position, Plaintiff further alleges that Defendants were responsible for loading and/or
supervising the employees who loaded the cargo. Id. ¶¶ 69-70. Plaintiff maintains that he
was injured as a result of Defendants’ negligence. Id. ¶¶ 82-83, 88, 101.
On February 24, 2014, the Court held a Scheduling Conference during which it set
a variety of deadlines in this case. See generally Courtroom Minutes [#50]. At the
Scheduling Conference the Court also entered the Scheduling Order [#51].

In the

Scheduling Order, the Court set April 9, 2014 as the deadline to join parties and amend the
pleadings. Sched. Order [#51] § 9(a).
On August 25, 2014, the parties filed their Partially Stipulated Motion to Amend the
Case Management Order [#62] (the “Initial Motion”), in which the parties agreed to modify
certain deadlines set in the Scheduling Order but disagreed regarding Plaintiff’s request

2

that the deadline for joinder of parties and amendment of pleadings be extended from April
9, 2014 to October 26, 2014. Initial Motion [#62] at 2-3. The Court granted in part and
denied without prejudice in part the Initial Motion. See generally Minute Order [#66].
Specifically, the Court explained that the parties did not provide any legal support regarding
the contested portion of the Initial Motion as required by D.C.COLOLCivR 7.1(d). Id. at 1.
As a result, Plaintiff filed his Renewed Motion to Amend Case Management Order
for Extension of Deadline for Joinder of Parties and Amendment of Pleadings [#68] (the
“Renewed Motion”) requesting extension of the deadline for joinder of parties and
amendment of pleadings from April 9, 2014 to November 26, 2014. Renewed Motion [#68]
at 5. In the Renewed Motion, Plaintiff argued that “[f]or the first time, in July 2014, Plaintiff
was provided with the last known contact information” for two potential deponents. Id. at
2. Plaintiff further maintained that “[b]ased on the recent discovery of [the potential
deponents’] whereabouts, Plaintiff is working on scheduling the depositions of” the two
individuals. Id. at 3. Plaintiff stated that he intended to depose the two individuals and that
he “may seek to amend his pleadings based on their testimony.” Id. In support of his
Renewed Motion, Plaintiff cited to Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 668
(D. Colo. 2001), and argued that “[i]nformation learned through discovery[,] if occurring
after the deadline to amend contained in the Scheduling Order[,] constitutes ‘good cause’
to justify an extension of that deadline.” Renewed Motion [#68] at 3. Plaintiff also argued
that Defendants would not be prejudiced by extension of the deadline. Id.
The Court denied the Renewed Motion without prejudice. Order [#82] at 5. The
Court found Plaintiff’s argument “too attenuated” to constitute good cause for the requested
amendment of the Scheduling Order. Id. The Court explained:
3

In Pumpco, the Court explained that "[t]he fact that a party first learns,
through discovery or disclosures, information necessary for the assertion of
a claim after the deadline to amend established in the scheduling order has
expired constitutes good cause to extend that deadline." Pumpco, 204
F.R.D. at 668-69. That is not the situation here. In this case Plaintiff does
not allege that he has discovered any new information that is necessary for
the assertion of an additional claim. Instead, he alleges that there is a
possibility that two future depositions may reveal new information. That is
not good cause for amendment of the deadline for joinder of parties and
amendment of pleadings pursuant to Fed. R. Civ. P. 16.
Id. Plaintiff subsequently filed the two instant Motions.
In the Motion to Amend, Plaintiff argues that the deadline for joinder of parties and
amendment of pleadings should be extended because “[n]ew information was revealed at
the deposition of Mike Watters that is necessary for the assertion of an additional claim and
party.” Motion to Amend [#93] at 3. Plaintiff maintains that Mr. Watter’s deposition
“revealed that Immedia’s preparing and packaging of the printing press equipment at the
time of loading in Colorado was negligent.” Id. at 4. Plaintiff notes that there is litigation
against Immedia in Minnesota state court and that the Minnesota court has ruled that “what
happened in Colorado stays in Colorado.” Id. Plaintiff provides further information about
the Minnesota action in his Joinder Motion. As explained by Plaintiff, Defendants were
dismissed from the Minnesota action for lack of personal jurisdiction. Joinder Motion [#94]
at 2. As a result, Plaintiff continued to sue Immedia in Minnesota state court and brought
the instant action against Defendants. Id. Plaintiff notes that Defendants designated
Immedia as a nonparty at fault in this case [#23], but that it was not until Mr. Watters’
deposition that Plaintiff learned the specific information that has resulted in the requested
relief. Id. at 2-4. Plaintiff states that in the Minnesota action “Immedia denied responsibility
for ‘packaging’ the load and denied involvement in the loading process. But Watters
4

testified that Immedia, not Duffy, was responsible for ‘packaging’ the load.” Id. (citation
omitted).
In the Response, Defendants argue that “[t]he Minnesota court ruled that Immedia
owed no duty to [Plaintiff] in Colorado.” Response [#103] at 2. Defendants attach to their
Response an order entered by the Minnesota state court that denied Immedia’s motion for
summary judgment and found that “[a]s the owner of the property on which the truck was
to be unloaded, Immedia did owe Plaintiff the duty to use reasonable care for his safety.”
Response, Ex. A [#103-1] at 4. While the Minnesota court did rule that “Immedia had no
duty to ensure that Plaintiff’s trailer was properly loaded at the Colorado site,” this was not
the end of the analysis and Defendants entirely ignore the court’s conclusion that Immedia
owed Plaintiff a duty to use reasonable care for his safety. Id. at 3. Defendants also argue
that Plaintiff’s claim against Immedia is barred by the statute of limitations. Id. at 2-6.
Defendants maintain both that Plaintiff misrepresents Watters’ testimony and that Plaintiff
knew or should have known of the information he claims was revealed by Watters “at least
since May 2012.” Id. at 3 (emphasis omitted). In addition, Defendants argue that the
proposed claim against Immedia is barred by the doctrine of collateral estoppel. Id. at 7-8.
Finally, Defendants argue that the claim against Immedia is barred by the rule against
splitting a cause of action. Id. at 8-10.
In the Reply, Plaintiff argues that Defendants do not have standing to assert the
affirmative defenses of statute of limitations, issue preclusion, and claim splitting on behalf
of Immedia. Reply [#108] at 2-3. Plaintiff also argues that even if Defendants have
standing to assert the statute of limitations defense, Defendants’ arguement fails as a
matter of law. Id. at 6-10. Plaintiff further argues that in attempting to assert the affirmative
5

defense of issue preclusion, Defendants have failed to meet their burden. Id. at 2, 4-6. In
addition, Plaintiff avers that even if Defendants have standing to object to joinder on the
grounds of splitting claims, “it is doubtful that claim-splitting even applies here.” Id. at 3.
Plaintiff further argues that “joinder will not split [his] claims against Immedia” because he
intends to bring claims against Immedia in this lawsuit relating to activities in Colorado and
Minnesota. Id. at 4. Plaintiff states that “once Immedia is joined and safely secured as a
defendant . . . he will dismiss the claims against Immedia in the Minnesota state court [ ].”
Id. Finally, Plaintiff maintains that Defendants’ arguments against joining Immedia in this
lawsuit are undercut by Defendants’ own positions taken in this litigation. Id. at 3.
II. Standard of Review
A.

Joinder
Plaintiff seeks to join Immedia pursuant to either Fed. R. Civ. P. 19 or 20. Rule 19

governs mandatory joinder and Rule 20 governs permissive joinder.
1.

Fed. R. Civ. P. 19

Pursuant to Rule 19, joinder of a party “who is subject to service of process and
whose joinder will not deprive the court of subject-matter jurisdiction” is mandatory when:
(A) in that person's absence, the court cannot accord complete relief among
existing parties; or
(B) that person claims an interest relating to the subject of the action and is
so situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect
the interest; or
(ii) leave an existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because of the
interest.
6

Fed. R. Civ. P. 19(1). Therefore, “deciding whether a party is indispensable is a two-step
process.” Brin v. ACI Motor Freight, Inc., No. 13-cv-02035-RBJ, 2014 WL 1664889, at *2
(D. Colo. Apr. 23, 2014). “First, the court must determine whether the party is ‘required.’”
Id. Notably, “in situations where defendants are jointly, severally, or jointly and severally
liable, individual defendants are typically permissive parties, not required parties.” Id. In
such cases, Rule 20 applies, not Rule 19.
2.

Fed. R. Civ. P. 20

The requirements for permissive joinder of defendants in federal actions are set forth
in Federal Rule of Civil Procedure 20(a)(2). Joinder of an additional defendant is proper
under Rule 20(a)(2) if:
(A) any right to relief is asserted against [the defendants] jointly, severally, or
in the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the
action.
The Court also considers whether joinder would prejudice any party or result in needless
delay. See Fed. R. Civ. P. 20(b). Joinder is within the sound discretion of the court.
McPhail v. Deere & Co., 529 F.3d 947, 951-52 (10th Cir. 2008) (discussing joining
nondiverse parties in removal cases). “In exercising this discretion, the district court
‘typically considers several factors [including] whether the amendment will result in undue
prejudice, whether the request was unduly and inexplicably delayed, [and whether it] was
offered in good faith . . . .’” Id. at 416 (quoting State Distrib., Inc. v. Glenmore Distill. Co.,
738 F.2d 405, 416-17 (10th Cir. 1984)).

7

B.

Amendment of the Scheduling Order Deadline
As a preliminary matter, the Court must first determine whether the movant has filed

his Motion within the deadline prescribed by the Scheduling Order, and if not, whether the
movant has established good cause under Fed. R. Civ. P. 16 for his failure to timely do so.
Gorsuch, Ltd. B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1241 (10th Cir. 2014)
(“We now hold that parties seeking to amend their complaints after a scheduling order
deadline must establish good cause for doing so.”). If good cause is shown, the Court then
considers any arguments raised by the parties under Fed. R. Civ. P. 15 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, 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). This two-step
analysis has been explained as follows:
Rule 16(b)[(4)]’s good cause standard is much different [from] the more
lenient standard contained in Rule 15(a). Rule 16(b)[(4)] 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 a party’s diligent
efforts. In other words, this Court may modify the schedule on a showing of
good cause if [the deadline] cannot be met despite the diligence of the party
seeking the extension.
Pumpco, Inc. v. Schenker Int’l. Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (quotation marks
and citations omitted); accord Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986 F. Supp.
959, 980 (D.S.C. 1997), aff’d, 129 F.3d 116 (4th Cir. 1997) (“Rule 16(b)[(4])’s ‘good cause’
standard is much different [from] the more lenient standard contained in Rule 15(a). . . .
8

Properly construed, ‘good cause’ means that scheduling deadlines cannot be met despite
a party’s diligent efforts. . . .”). If a party fails to show good cause under Rule 16(b)(4),
there is no need for the Court to move on to the second step of the analysis, i.e., whether
that party has satisfied the requirements of Rule 15(a). Nicastle, 2011 WL 1465586, at *3.
The Court addresses each step in turn.
III. Analysis
A.

Joinder
Plaintiff seeks to joind Immedia as a defendant in this action primarily pursuant to

Fed. R. Civ. P. 19. Joinder Motion [#94] at 7-12. However, as noted above, “in situations
where defendants are jointly, severally, or jointly and severally liable, individual defendants
are typically permissive parties, not required parties.” Brin, 2014 WL 1664889, at *2; see
also Joinder Motion [#94] at 12 (recognizing “that permissive joinder may apply rather than
mandatory joinder . . . .”). In such cases, Rule 20 applies, not Rule 19. In this case,
Plaintiff seeks to join Immedia in this action because of its allegedly “negligent packaging
and [Defendants’] negligent loading are so closely linked as to almost blend into a single
albeit complex transaction.”

Joinder Motion [#94] at 14 (citation omitted).

Plaintiff

maintains that “it is indisputable that both Immedia’s packaging and [Defendants’] loading
here in Colorado are implicated in [Plaintiff’s] injuries and his right to relief.” Id. (citations
omitted). Plaintiff argues that “[j]oinder will allow the jury to parse the packaging versus the
loading and to determine [Defendants’] fault, if any, relative to Immedia’s fault, if any.” Id.
As these arguments and allegations make clear, Plaintiff’s position is that Defendants and
Immedia may be jointly and severally liable for his injuries. As a result, the Court turns to

9

Rule 20, not Rule 19, when considering the Joinder Motion.
According to the Supreme Court, courts must interpret the Federal Rules of Civil
Procedure to entertain “the broadest possible scope of action consistent with fairness to
the parties”; thus, “joinder of claims, parties and remedies is strongly encouraged.” United
Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). Therefore, Rule 20 is construed
liberally “to promote trial convenience and to expedite the final determination of disputes,
thereby preventing multiple lawsuits.” Cooper v. Fitzgerald, 266 F.R.D. 86, 88 (E.D. Pa.
2010); see Snyder v. Harris, 394 U.S. 332, 340 (1969) (referring to the “liberal joinder
provisions of Rule 20"). Keeping these considerations in mind, the Court first considers
whether joinder of Immedia meets the requirements of Rule 20.
There can be no question that the right to relief is based on “the same transaction,
occurrence, or series of transactions or occurrences”—namely the loading and unloading
of the truck carrying the cargo that Plaintiff claims injured him. This satisfies Fed. R. Civ.
P. 20(a)(2)(A). Further, sorting out the facts relating to the loading and unloading of the
truck implicates Fed. R. Civ. P. 20(a)(2)(B) because the questions surrounding these facts
are common to the existing Defendants and Plaintiff’s allegations against Immedia.
The Court also considers whether joinder would prejudice any party or result in
needless delay. See Fed. R. Civ. P. 20(b); McPhail, 529 F.3d at 951. As explained above,
Defendants argue that the Joinder Motion should be denied based on: the statue of
limitations, the doctrine of collateral estoppel, and the rule against splitting a cause of
action. See generally Response [#103]. As an initial matter, these arguments do not
address the standard for joinder of a defendant under Rule 20. At best, these arguments
may go to prejudice or bad faith, but Defendants do not make any such argument explicit.
10

It is not the Court’s role to supply legal support for a litigant’s position. See Cordova v.
Aragon, 569 F.3d 1183, 1191 (10th Cir. 2009) (“It is not our role to sift through the record
to find evidence not cited by the parties to support arguments they have not made.”); Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998) (“[D]istrict courts . . . have a
limited and neutral role in the adversarial process, and [ought to be] wary of becoming
advocates who comb the record . . . and make a party’s case for it.”); cf. United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles
buried in briefs.”). The Court therefore, does not reconstrue Defendants’ arguments in an
attempt to shoehorn them into a Rule 20 analysis.
Further, it appears, as Plaintiff argues, that Defendants are attempting to assert
affirmative defenses on behalf of Immedia in order to defeat the Joinder Motion, namely the
statute of limitations and collateral estoppel (also known as issue preclusion). However,
there is a “‘general prohibition on a litigant’s raising another person’s legal rights.’” Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting Allen v. Wright, 486
U.S. 737, 751 (1984). As Plaintiff makes clear, if Immedia is joined as a defendant, it may
choose to raise these arguments. Reply [#108] at 2. However, Immedia also may choose
to waive any of these defenses; that is Immedia’s privilege as the party who may assert the
affirmative defenses. See Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1304 (10th Cir. 2003)
(“[T]he statute of limitations defense is an affirmative defense and is subject to waiver.”);
Graham v. Taylor, No. 15-cv-00006-GPG, 2015 WL 4095394, at *2 (D. Colo. July 7, 2015)
(“The statute of limitations is an affirmative defense.”); Wyers Products Grp., Inc. v.
Cequent Performance Prods., Inc., No. 13-cv-02976-REB-KMT, 2015 WL 1514711, at *3
(D. Colo. Mar. 30, 2015) (“Collateral estoppel is an affirmative defense for which Cequent
11

has the burden of persuasion.”); Walters v. Webster, 123 P. 952, 954 (Colo. 1912) (“The
bar of the statute of limitations is a personal privilege, to be relied upon, or not, as a
defendant may choose.”); see also Bentley v. Cleveland County Bd. of County Comm’rs,
41 F.3d 600, 604 (10th Cir. 1994) (failure to raise an affirmative defense under Rule 8(c)
generally results in a waiver of that defense); cf. Afshari v. Bear Archery, Inc., No. 12-13KSF, 2012 WL 3027649, at *3 (E.D. Ky. July 24, 2012) (“Personal jurisdiction is a personal
defense, . . . and Bear Archery lacks standing to assert this defense on behalf of the
putative defendants.”).
Claim splitting, Defendants’ final argument, is related to res judicata and is also an
affirmative defense. Tri-State Truck Ins., Ltd. v. First Nat’l Bank of Wamego, 564 F.App’x
345, 347 (10th Cir. 2014) (noting that res judicata is an affirmative defense); Hartsel
Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 982, 985-86 (10th Cir. 2002)
(noting that claim splitting is “an aspect of res judicata”); Yapp v. Excel Corp., 186 F.3d
1222, 1230 (10th Cir. 1999); Wyles v. Aluminaid Int’l, A.G., No. 15-cv-00393-CMA-KMT,
2015 WL 4035862, at *2 (D. Colo. June 30, 2015) (“Claim splitting is an aspect of res
judicata that prevents parties from filing two substantially identical complaints to circumvent
procedural rules.” (citing Hartsel Springs Ranch of Colorado, Inc., 296 F.3d at 990)).
Therefore, it also would have to be raised by Immedia in the event that entity is joined in
this action. Further, Defendants’ argument against the Joinder Motion that is premised on
claim splitting appears to ignore Plaintiff’s statement in his conclusion to the Joinder Motion
that he is “prepared to file an amended complaint naming Immedia as a defendant at fault
and liable for negligently packaging the steel press tables here in Colorado and for
negligently unloading the same in Minnesota.” Joinder Motion [#94] at 15. Defendants’
12

Response fails to address how doing so would change their analysis of this issue.
Regardless, as explained above, the Court will not entertain the assertion of another
potential party’s affirmative defense in lieu of arguments addressing the standard for joinder
under rule 20.

Because Defendants fail to address the standard for joinder under Rule

20 and the Court has concluded that Plaintiff meets the elements of Rule 20, the Court
briefly addresses the issues of undue delay and prejudice. McPhail, 529 F.3d at 951-52.
Plaintiff argues that it only learned about inconsistencies in the factual allegations made by
Immedia in the Minnesota action when Mr. Watters was deposed and that is why it now
seeks to join Immedia in this case. Joinder Motion [#94] at 3-4. The Court therefore finds
that Plaintiff did not unduly delay raising this issue in this case. See Minter v. Prime
Equipment Co., 451 F.3d 1196, 1205-06 (10th Cir. 2006) (discussing undue delay in the
Rule 15 context). Similarly, it is unclear how any party will be prejudiced by joinder of
Immedia. As noted above, Defendants named Immedia as a nonparty at fault in this case
[#23]. There can be no prejudice or surprise to joining a party the Defendants believe may
be responsible for some of the damages sought by Plaintiff.
For these reasons, the Court finds that joinder under Rule 20 is appropriate.
B.

Amendment of the Scheduling Order
The Motion to Amend discusses the standard for amendment of the Scheduling

Order under Rules 15 and 16. However, as explained above, Defendants filed the
Response [#103] addressing the Joinder Motion and a one-page response to the Motion
to Amend. That one-page response, in its entirety, states as follows:
For the reasons stated in Defendants’ Response to Plaintiff’s Motion and
Brief to Join Immedia, Inc. Under F.R.C.P. 19 or in the Alternative Under
F.R.C.P. 20, Defendants oppose Plaintiff’s attempt to retroactively extend
13

deadlines for joinder of parties and amending pleadings.
Response to Motion to Amend [#104] at 1. Notably, the standard for amendment of the
Scheduling Order under Rules 15 and 16 is entirely different from the standard for joinder
under Rule 20. Therefore, Defendants essentially failed to respond to the Motion to
Amend. As a result, the Court treats the Motion to Amend as unopposed. See Walter v.
HSM Receivables, No. 13-cv-00564-RM-KLM, 2014 WL 5395197, at *1 (D. Colo. Oct. 23,
2014) (“The Motion is essentially unopposed as no response has been filed by
Defendants.”); Armstrong v. Swanson, No. 08-cv-00194-MSK-MEH, 2009 WL 1938793, at
*1 (D. Colo. July 2, 2009) (noting that Plaintiff did not file a response to the motion for
sanctions and “deem[ing] the Plaintiff to have defaulted on th[e] motion.”). However, the
Court briefly discusses the Rule 15 and 16 standards addressed in the Motion to Amend.
1.

Fed. R. Civ. P. 16

In this case, the deadline for joinder of parties and amendment of pleadings was
April 9, 2014. Sched. Ord. [#11] § 9(a). The Motion to Amend was filed on January 19,
2015, and, therefore, is untimely. Accordingly, Plaintiff must show good cause for his
failure to timely move to join Immedia and amend his claims pursuant to Fed. R. Civ. P.
16(b)(4) (a Scheduling Order deadline “may be modified only for good cause and with the
judge’s consent.”). To do this, Plaintiff must “show that [he was] diligent in attempting to
meet the deadline[ ],” and this standard can be met by the provision of “an adequate
explanation for any delay.” Minter, 451 F.3d at 1205 n.4 (explaining that lateness itself
does not justify denial of a motion to amend, but “undue” lateness does). “While rigid
adherence to the pretrial scheduling order is not advisable,” SIL-FIO v. SFHC, Inc., 917
F.2d 1507, 1519 (10th Cir. 1990), the joinder of parties and pleading amendment deadline
14

requires that parties conduct discovery efficiently and promptly in order to timely comply.
See Granite Southlands Town Center LLC v. Alberta Town Center, LLC, No. 09-cv-00799ZLW-KLM, 2010 WL 2635524, at *2 (D. Colo. June 8, 2010) (noting that “deadlines to
amend a party’s pleading are set at the outset of the case to require [parties] to prioritize
their discovery and attempt to obtain information that may be relevant to claim amendment
sooner rather than later.”); Sanchez v. City & Cnty. of Denver ex rel. Bd. of Water Comm’rs,
No. 07-cv-01805-MSK-BNB, 2007 WL 4557842, at *1 (D. Colo. Dec. 20, 2007)
(unpublished decision) (noting that “the purpose of the deadline to amend and add
contained in the Scheduling Order is to force the parties to make any known amendments
immediately so that all discovery in the case, including the earliest discovery, is taken with
the claims and defenses as the parties expect them to be”). However, “[t]he fact that a
party first learns through discovery of information which may lead to amendment of
deadlines set forth in the Scheduling Order constitutes good cause for such amendment
pursuant to Rule 16(b)[(4)].” Riggs v. Johnson, No. 09-cv-01226-WYD-KLM, 2010 WL
1957110, at *3 (D. Colo. Apr. 27, 2010) (citing Pumpco, 204 F.R.D. at 668-69).
Here, Plaintiff alleges that he learned of new information after the deadline for
joinder of parties and amendment of pleadings. Specifically, Plaintiff states that he “did not
discover that Immedia was responsible for preparing and packaging the printing press
equipment in Colorado before [Defendants] loaded it, until Watters’ deposition.” Motion to
Amend [#93] at 5. Plaintiff further explains that this information caused Plaintiff to depose
Mr. Watters in the Minnesota action on February 25, 2015 and thereafter Plaintiff sought
“reconsideration of several rulings” from the Minnesota state court. Id. at 4-5. Plaintiff
notes that the Minnesota court declined the request for reconsideration on May 14, 2015.
15

Id. at 4. The Court finds the timing of the depositions of Mr. Watters to constitute good
cause. Plaintiff deposed Mr. Watters in this action on December 11, 2014, Motion to
Amend, Ex. 1 [#93-2], and deposed him in the Minnesota action on February 25, 2015.
Motion to Amend [#93] at 5. When a party learns new information after the amendment of
pleadings deadline has passed, the newly-acquired information satisfies Rule 16's good
cause requirement. See, e.g., Pumpco, Inc., 204 F.R.D. at 668-69 (“[t]he fact that a party
first learns, through discovery or disclosures, information necessary for the assertion of a
claim after the deadline to amend established in the scheduling order has expired
constitutes good cause to extend that deadline.”); see also Lewis v. Denver Fire Dep't, 09cv-00004-PAB-MJW, 2010 WL 3873974, at *7-8 (D. Colo. Sept. 28, 2010) (good cause
shown to amend complaint after the scheduling order’s deadline where plaintiff first learned
of new information through depositions). Accordingly, Plaintiff has shown good cause
pursuant to Rule 16(b)(4).
2.

Fed. R. Civ. P. 15(a)(2)

As noted above, pursuant to Fed. R. Civ. P. 15(a)(2), “[t]he court should freely give
leave [to amend a pleading] when justice so requires.” “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.’” Id.
(quoting Fed. R. Civ. P. 15(a)(2)). Here, Defendants simply fail to address Rule 15
altogether. See generally Response [#103]. As a result, the Court cannot conclude that
there is an apparent or declared reason to deny the requested relief. Notably, prejudice
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to the opposing party is the single most important factor in deciding whether to allow leave
to amend. Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006). Thus, an
opposing party’s failure to “argue [that it] face[s] any—let alone undue—prejudice” if the
Court grants leave to amend the Scheduling Order deadline “grievously weaken[s]” its
opposition to amendment. Stender v. Cardwell, No. 07-cv-02503-WJM-MJW, 2011 WL
1235414, at *3 (D. Colo. Apr. 1, 2011) (discussing motion seeking leave to file amended
complaint). Here, these Defendants do not argue that they will experience any undue
prejudice if the Scheduling Order deadline for joinder of parties and amendment of
pleadings is extended. They also do not argue that Plaintiff unduly delayed seeking relief
from the Court once he deposed Mr. Watters. Accordingly, the Court finds that pursuant
to Rule 15(a)(2), the Scheduling Order deadline for joinder of parties and amendment of
pleadings should be extended to allow Plaintiff to join Immedia as a Defendant.
IV. Conclusion
Accordingly, for the reasons stated above,
IT IS HEREBY ORDERED that the Motion to Amend [#93] and the Joinder Motion
[#94] are GRANTED.
IT IS FURTHER ORDERED that the deadline for joinder of parties and amendment
of pleadings set in the Scheduling Order [#51] is extended through November 20, 2015.
IT IS FURTHER ORDERED that Plaintiff may file an Amended Complaint which

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names Immedia, Inc. as a Defendant on or before November 20, 2015.
IT IS FURTHER ORDERED that Plaintiff’s Status Report and Request for Ruling
[#117] is GRANTED.
Dated: October 27, 2015

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