Irvine v. I.C. System, Inc.
ORDER; 40 Plaintiffs Motion to File the First Amended Complaint and JuryDemand is GRANTED. The Clerk is directed to file Plaintiffs First AmendedComplaint and Jury Demand" (Doc. No. 40-5), by Magistrate Judge Kathleen M. Tafoya on 10/7/15.(morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–01329–PAB–KMT
I. C. SYSTEM, INC., a Minnesota corporation,
This matter is before the court on “Plaintiff’s Motion to File the First Amended
Complaint and Jury Demand” (Doc. No. 40 [Mot.], filed August 21, 2015). Defendant filed its
response on September 14, 2015 (Doc. No. 49 [Resp.]), and Plaintiff filed her reply on
September 28, 2015 (Doc. No. 54 [Reply]).
On May 12, 2014, Plaintiff filed this case asserting a single claim for relief against
Defendant for violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692,
et seq. (Doc. No. 1 at 9-10.) Plaintiff now seeks leave to amend her complaint to add additional
and more specific allegations as a result of Defendant’s responses to discovery requests. (See
Mot.) Specifically, Plaintiff seeks to amend paragraphs 30-44 to add a specific date of the
telephone call at issue in this case and to delete the name of one of the credit reporting agencies
with which Defendant communicated (see Doc. No. 40-6 [Proposed Am. Compl., ¶¶ 30-44); to
amend paragraphs 45-59 to add specific dates of Defendant’s credit reporting of the Plaintiff’s
account at issue (see id., ¶¶ 45-59); and to amend paragraphs 63-75 to add new allegations that
deal with the defendant’s alleged actions in communicating information regarding the account to
the creditor regarding Plaintiff’s account (see id., ¶¶ 63-75). Plaintiff also seeks to amend to
make “grammatical changes and changes to delete the Plaintiff’s claim pursuant to FDCPA
1692f preface the Plaintiff clarifying that she is not seeking actual damages pursuant to the
FDCPA in this case.” (Mot., ¶ 20.)
Defendant argues Plaintiff’s motion should be denied because she is not adding new
causes of action (Resp., ¶ 3-5); Plaintiff’s motion is futile (id., ¶¶ 6-7); Plaintiff’s motion will
unduly delay the case (id., ¶ 8); and Plaintiff’s motion is untimely (id., ¶ 9).
Good Cause Pursuant to Fed. R. Civ. P. 16(b)
A scheduling order deadline “may be modified only for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b). The deadline for seeking to amend pleadings in this case was
September 30, 2014. (See Doc. No. 18) Plaintiff filed the present motion on August 21, 2015,
nearly eleven months later. To demonstrate good cause pursuant to Rule 16, Plaintiff must
“show that it has been diligent in attempting to meet the deadlines, which means it must provide
an adequate explanation for any delay.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4
(10th Cir. 2006). “Properly construed, ‘good cause’ means that scheduling deadlines cannot be
met despite a party’s diligent efforts . . . . Carelessness is not compatible with a finding of
diligence and offers no reason for a grant of relief.” Colo. Visionary Acad. v. Medtronic, Inc.,
194 F.R.D. 684, 687 (D. Colo. 2000) (internal quotation and citation omitted).
Although not addressed pursuant to Fed. R. Civ. P. 16(b), Plaintiff argues that the filing
of this motion is justified because Defendant failed to respond to Plaintiff’s discovery requests
despite numerous and repeated attempts by Plaintiff’s counsel to obtain the responses. (Reply, ¶
10.) Plaintiff argues that it did not receive documents at issue until after an informal discovery
conference with this court on July 15, 2015, and until during and after the depositions of
Defendant’s witnesses on July 30, 2015. (Id.)
The court is inclined to allow extension of the pleading amendment deadline here. The
length of the delay is not a traditional consideration in determining whether a party has been
diligent; however, the court notes that the short delay between the discovery of much of the
information they seek to add—in July 2015—and the filing of the present motion—on August
21, 2015—informs the court’s interpretation of Plaintiff’s conduct and whether it evidences
diligence. Moreover, “[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 Pumpco, Inc.
v. Schenker Int’l, Inc., 204 F.R.D. 667, 668–69 (D. Colo. 2001). Further, Plaintiff appears not to
have been careless in a way that the good cause standard is meant to address. See, e.g., Pumpco,
Inc., 204 F.R.D. at 668. The court therefore finds that Plaintiff has provided good cause for
requesting leave to amend outside the pleading amendment deadline.
Requirements of Fed. R. Civ. P. 15
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 shows 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, or futility of amendment. Foman v. Davis, 371 U.S. 178, 182
First, concerning delay, “[t]he important inquiry is not simply whether Plaintiff has
delayed, but whether such delay is undue.” Minter, 451 F.3d at 1206. The Tenth Circuit
“focuses primarily on the reason for the delay.” Id. However, the Tenth Circuit has also
emphasized the similarity between the “good cause” standard of Rule 16(b) and the “undue
delay” analysis of Rule 15(a). The court notes that Plaintiff acted quickly to submit her proposed
Amended Complaint once she received the discovery responses and conducted the depositions of
Defendant’s witnesses. See Martinez v. City & Cnty. of Denver, No. 11–cv–00192–MSK–KLM,
2012 WL 4097298, at *3 (D. Colo. Sept.18, 2012). Moreover, though Defendant filed a Motion
for Summary Judgment that is fully briefed, the court notes that the defendant filed the motion
well before the end of the discovery cutoff and the dispositive motions deadline, which is set at
November 9, 2015. Thus, the court finds that this history does not evidence undue delay.
Turning to Defendant’s futility argument, an amendment is futile if it would not survive a
motion to dismiss. Bradley v. Val–Mejias, 379 F.3d 892, 901 (10th Cir.2004). Defendant argues
that Plaintiff is not relying on the additional allegations to advance her case and that Plaintiff has
responded to Defendant’s Motion for Summary Judgment filed on June 20, 2015, and did not
present the new factual allegations in her response. (Mot., ¶ 7.) The court agrees with Plaintiff,
however, that she could not brief the allegations in her response to the Motion for Summary
Judgment because they were not asserted as a part of her original complaint and were not part of
the record. This argument is rejected.
Defendants fail to argue or show, and the court does not find, bad faith or dilatory
motive, repeated failure to cure deficiencies by amendments previously allowed, or undue
Therefore, for the foregoing reasons, it is
ORDERED that “Plaintiff’s Motion to File the First Amended Complaint and Jury
Demand” (Doc. No. 40) is GRANTED. The Clerk is directed to file Plaintiff’s “First Amended
Complaint and Jury Demand” (Doc. No. 40-5).
Dated this 7th day of October, 2015.
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