Gallegos et al v. Safeco Insurance Company of America
ORDER granting 50 Plaintiffs' Motion to Assert Exemplary or Punitive Damages Pursuant to C.R.S. § 13-21-102(1.5)(A) and Motion to Add Scheduling Order to Allow Assertion, as set forth in the order. Plaintiffs may amend their Complaint asserting exemplary or punitive damages. Plaintiffs shall file their Amended Complaint with this court on or before 3/10/2015, and serve a copy upon Safeco [Defendant]. Each party shall pay their own attorney fees and costs for this motion. By Magistrate Judge Michael J. Watanabe on 3/3/2015.(emill)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01114-WJM-MJW
EUGENE GALLEGOS and
SAFECO INSURANCE COMPANY OF AMERICA,
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that Plaintiffs’ Motion to Assert Exemplary or Punitive
Damages Pursuant to C.R.S. § 13-21-102(1.5)(A) and Motion to Add Scheduling
Order to Allow Assertion (docket no. 50) is GRANTED for the following reasons.
Plaintiffs may amend their Complaint asserting exemplary or punitive damages.
Plaintiffs shall file their Amended Complaint with this court on or before March 10,
2015, and serve a copy upon Safeco [Defendant]. Each party shall pay their own
attorney fees and costs for this motion.
Plaintiff has demonstrated in the subject motion (docket no. 50) prima facie
proof of a triable issue sufficient to allow presentation of evidence surrounding
exemplary damages, which is established by showing a reasonable likelihood that
the issue will ultimately be presented to the jury for resolution under Evans v.
Colorado Permanente Medical Group P.C. , 902 P.2d 867, 873 (Colo. App. 1995),
which did not come to light under after the Safeco depositions which were taken late
in the discovery process. Accordingly, I do not find undue delay by Plaintiffs in
seeking exemplary or punitive damages as this stage of the ligation. Furthermore, I
do not find prejudice to Defendant since the request for exemplary or punitive
damages is based upon the discovery already obtained by both sides to this ligation
and on the most recent Safeco depositions. In any event, any prejudice that
Defendant may believe exists by allowing this amendment can be cured as outlined
below. Finally, the subject motion (docket no. 50) is not futile.
The motion is made after the deadline for amendment of pleadings, and thus
this court has applied the following analysis in deciding whether to allow the
Where, as here, a motion to amend the pleadings . . . is filed after the
scheduling order deadline, a “two-step analysis” is required. Once a
scheduling order’s deadline for amendment has passed, a movant
must first demonstrate to the court that it has “good cause” for seeking
modification of the scheduling deadline under Rule 16(b). If the movant
satisfies Rule 16(b)’s “good cause” standard, it must then pass the
requirements for amendment under Rule 15(a) . . . .
Rule 16(b)’s “good cause” standard is much different than the more
lenient standard contained in Rule 15(a). 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 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.”
Carelessness is not compatible with a finding of diligence and offers no
reason for a grant of relief.
Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (quotations
and citations omitted). This court finds that the Plaintiffs have satisfied this first step
in the analysis and have established good cause to extend the deadline within which
they may seek leave to amend the complaint.
The second step is consideration of whether the Plaintiffs have satisfied the
standard for amendment of pleadings required under Fed. R. Civ. P. 15(a):
Rule 15(a) provides that leave to amend “shall be freely given when
justice so requires.” Refusing leave to amend is generally only justified
upon a showing of undue delay, undue prejudice to the opposing party,
bad faith or dilatory motive, failure to cure deficiencies by amendments
previously allowed, or futility of amendment.
Id. at 669 (citation omitted). Based upon this standard, and substantially for the
reasons stated in the subject motion (docket no. 50) and reply (docket no. 73), this
court finds that the proposed amendments should be permitted. The court notes
that no trial date has been set in this matter, and the final pretrial conference is not
set until April 9, 2015. In the event the parties believe that additional discovery is
warranted in light of these amendments, they may move to reopen discovery for a
reasonable period and to alter any other deadlines. Id. Thus, any prejudice that
might arise from these amendments is capable of being cured. Id.
Date: March 3, 2015
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