Kelly v. Wal-Mart Stores, Inc.

Filing 18

ORDER granting 16 Motion to Amend/Correct/Modify. By Magistrate Judge Kathleen M. Tafoya on 03/06/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–01692–CMA–KMT
OMAR KELLY,
Plaintiff,
v.
WAL-MART STORES, INC.,
Defendant.
ORDER

This matter is before the court on “Defendant Walmart Stores, Inc.’s Motion to Extend
Deadline to Amend Pleadings and to Amend Answer.” (Doc. No. 16, filed January 20, 2015.)
Defendant seeks to amend its Answer to add an after-acquired evidence defense to Plaintiff’s
Title VII claims. Despite representing to Defendant’s counsel that he opposed Defendant’s
Motion to Amend, Plaintiff’s counsel did not file a response. For the following reasons,
Defendant’s Motion to Amend is GRANTED.
Because Defendant filed its motion after the December 29, 2014 deadline for amending
the pleadings (see Sched. Order, Doc. No. 15, filed Oct. 27, 2014), the court employs a two-step
analysis, first determining whether Defendant has shown good cause to modify the scheduling

order under Federal Rule of Civil Procedure 16(b), and the evaluating whether Defendant has
satisfied the standard for amendment of pleadings under Federal Rule of Civil Procedure 15(a). 1
This court has stated:
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.
Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (citations and internal
quotation marks omitted).
Once Defendant has shown good cause for modifying the scheduling order, it must also
satisfy the requirements of Rule 15(a) for amending the pleadings. Under Rule 15(a), a court
should allow a party to amend its pleadings “when justice so requires.” Fed.R.Civ.P. 15(a). The
grant or denial of an opportunity to amend is within the discretion of the court, but “outright
refusal to grant the leave without any justifying reason appearing for the denial is not an exercise
of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal

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The court employs this two-step analysis, notwithstanding the fact that the Tenth Circuit “has
not yet decided whether a party seeking to amend its pleadings after the scheduling order
deadline must show ‘good cause’ for the amendment under Rule 16(b) in addition to the Rule
15(a) requirements.” Strope v. Collins, 315 F. App’x 57, 62 n.4 (10th Cir. 2009) (internal
quotation omitted); cf. Bylin v. Billings, 568 F.3d 1224, 1231 n.9 (10th Cir. 2009)
(acknowledging that “[m]ost circuits have held that when a party amends a pleading after a
deadline set by a scheduling order, Rule 16 and its ‘good cause’ standard are implicated.”)
(collecting cases); Minter v. Prim Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006) (citing
SIL–FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1518–19 (10th Cir. 1990)) (explaining that the
Tenth Circuit “adopted a similar interpretation of Rule 16(b)’s ‘good cause’ requirement in the
context of counterclaims asserted after the scheduling order deadline, but has not yet done so in
the context of an amendment to the complaint”).
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Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). “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.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Notably,
The Federal Rules reject the approach that pleading is a game of skill in which one
misstep by counsel may be decisive to the outcome and accept the principle that the
purpose of pleading is to facilitate a proper decision on the merits.
Conley v. Gibson, 355 U.S. 41, 48 (1957).
The court first finds that Defendant has shown good cause to modify the Scheduling
Order. Defendant asserts that it first learned the basis for its after-acquired evidence defense
upon deposing Plaintiff on January 7, 2015. More specifically, at his deposition, Plaintiff
testified that he deliberately omitted several of his most recent employers from his employment
application in order to increase the likelihood that he would be hired. Plaintiff also testified he
was criminally prosecuted for providing false information on an application for a Colorado
gaming license. Defendant asserts that these facts support an after-acquired evidence defense
because it discharges associates for making misrepresentations or omissions on their
employment applications. Because Plaintiff was not deposed until several weeks after the
deadline for amending the pleadings, and because Plaintiff does not dispute that Defendant first
learned of these facts at his deposition, the court finds that, even with diligent efforts, Defendant
could not have met the deadline for amending the pleadings.
The court also finds that Rule 15(a) is met under the circumstances. Plaintiff has not
filed a response to Defendant’s Motion. Thus, there is now showing of, nor does the court

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otherwise find, undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice, or futility of amendment.
Therefore, it is
ORDERED that “Defendant Walmart Stores, Inc.’s Motion to Extend Deadline to Amend
Pleadings and to Amend Answer” (Doc. No. 16) is GRANTED. The Clerk of Court is directed
to file Defendant’s Amended Answer. (Doc. No. 16-2.)
Dated this 6th day of March, 2015.

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