Alarid v. Biomet, Inc et al

Filing 116

ORDER Denying 112 Plaintiffs Motion For Leave To File His Second Amended Complaint To Add a Claim for Exemplary Damages, by Judge Robert E. Blackburn on 1/26/2016.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-02667-REB-NYW
ALFONSO A. ALARID,
Plaintiff,
v.
BIOMET, INC.,
BIOMET ORTHOPEDICS, LLC,
BIOMET MANUFACTURING, LLC,
Defendants.

ORDER DENYING MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
Blackburn, J.
The matter before me is Plaintiff’s Motion For Leave To File His Second
Amended Complaint To Add a Claim for Exemplary Damages [#112],1 filed January
23, 2016. As the motion plainly lacks both substantiation and merit, I exercise my
prerogative under D.C.COLO.LCivR 7.1(c) to rule without awaiting a response and deny
it.
In seeking leave to amend, plaintiff invokes the standards of Fed. R. Civ. P.
15(a), pursuant to which (absent consent of the opposing party) leave of court is
required to amend a complaint once a responsive pleading has been filed. As plaintiff
points out, the rule contemplates that “[t]he court should freely give leave when justice
so requires.” FED. R. CIV. P. 15(a)(2). Although plaintiff acknowledges that prejudice to
1

“[#112]” 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.

the nonmoving party is the paramount concern in making this discretionary
determination, see Minter v. Prime Equipment Co., 451 F.3d 1196, 1207-08 (10th Cir.
2006), he merely concludes, without substantiation, that defendants will not be
prejudiced because this new claim arises out of the same facts and circumstances as
those already set forth in the currently operative complaint. (See Motion at 3.)
In so doing, plaintiff ignores a foundational inquiry necessarily related to the
question of prejudice, that is, whether there has been “undue delay” in seeking leave to
amend. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962);
Minter, 451 F.3d at 1204. Although “[l]ateness does not of itself justify the denial of the
amendment,”
[a] party who delays in seeking an amendment is acting
contrary to the spirit of the rule and runs the risk of the court
denying permission because of the passage of time. The
longer the delay, the more likely the motion to amend will be
denied, as protracted delay, with its attendant burdens on
the opponent and the court, is itself a sufficient reason for
the court to withhold permission to amend.
Minter, 451 F.3d at 1204-05 (citations and internal quotation marks omitted). In
determining whether delay is undue, the Tenth Circuit has advised district courts to
focus on the reasons for the delay. Id. at 1206. Denial of leave to amend is
appropriate “when the party filing the motion has no adequate explanation for the
delay.” Frank v. U.S. West, 3 F.3d 1357, 1365–66 (10th Cir. 1993). See also Durham
v. Xerox Corp., 18 F.3d 836, 840 (10th Cir.) (“[U]nexplained delay alone justifies the
district court's discretionary decision.”), cert. denied, 115 S.Ct. 80 (1994).

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Plaintiff here offers absolutely no explanation for the considerable delay in
bringing this motion. See Centra, Inc. v. Chandler Insurance Co., Ltd., 2000 WL
1277672 at *11 (10th Cir. Sept. 7, 2000) ("[W]ith the passage of time and acceptance of
earlier amendments, the party seeking leave to amend must justify that request by more
than invocation of the concept of [Fed. R. Civ. P. 15(a)]'s liberality."). Discovery in this
matter closed three months ago. The deadline for dispositive motions is two months
past. It is not at all apparent why plaintiff could not have brought this motion sooner.
His motion would be denied appropriately on this basis alone.
Moreover, it further is apparent to this court that, despite plaintiff’s blithe
assertion to the contrary, the addition of a claim for punitive damages, involving
elements and evidence not otherwise obviously admissible in the absence of such a
claim, would in fact work substantial prejudice to defendants. This case was initiated
nearly 18 months ago, and defendants undoubtedly prepared both their discovery and
for trial in reliance on the claims plaintiff already has asserted. Trial is set to commence
less than five weeks from today. The parties’ jury instructions are due imminently. See
REB Civ. Practice Standard V.C.4.a. The attempt to add a substantive claim at this
late juncture not only prejudices defendants, but threatens the trial setting, which
imposes an undue burden on the court as well. See Minter, 451 F.3d at 1205 (“At
some point, however, delay will become undue, placing an unwarranted burden on the
court.”) (citation and internal quotation marks omitted).
In addition, and intimately related to the issue of undue delay and the unfair
prejudice occasioned thereby, the deadline for amendment of the pleadings established

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by the extant scheduling order in this case has long passed. (See Scheduling Order ¶
9 at 7 [#30], filed January 22, 2015 (deadline for amendment of pleadings was April 3,
2015).) Although the Tenth Circuit as yet to address the issue directly in the context of
a motion seeking leave to amend a complaint, it has adopted the good cause
requirement of Rule16 in the context of an attempt to assert new counterclaims after the
scheduling order deadline has expired. See Minter, 451 F.3d at 1205 n.4 (citing
SIL–FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1518-19 (10th Cir. 1990)). Nevertheless,
district courts in this circuit consistently have required a party seeking leave to amend
after the deadline for amendment has passed to show good cause under Rule 16, even
before considering whether leave to amend should be granted under Rule 15. See,
e.g., Petekeiwicz v. Stembel, 2015 WL 1740386 at *4 (D. Colo. Apr. 14, 2015);
Nicastle v. Adams County Sheriff's Office, 2011 WL 1465586 at *3 (D. Colo. Mar. 14,
2011), adopted, 2011 WL 1464588 (D. Colo. April 18, 2011); Colorado Visionary
Academy v. Medtronic, Inc., 194 F.R.D. 684, 688 (D. Colo. 2000).
Under Rule 16, a scheduling order "may be modified only for good cause and
with the judge's consent." FED. R. CIV. P. 16(b)(4). “Good cause” in this context
requires plaintiff to "show that [he] has been diligent in attempting to meet the deadlines,
which means [he] must provide an adequate explanation for any delay." Minter, 451
F.3d at 1205 n.4. Having failed even to recognize the applicability of Rule 16, it is not
surprising that plaintiff offers nothing to demonstrate diligence in connection with his
extraordinarily belated request. Although plaintiff did seek leave to extend the deadline

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to amend the pleadings on the day the period expired,2 that motion was promptly
denied.3 As noted above, discovery in this case closed three months ago. It is not clear
why plaintiff waited until now, barely one month before trial, to seek leave to add a claim
for punitive damages. I thus find no basis to conclude that he has been sufficiently
diligent to warrant an amendment of the reasonable deadlines imposed by the
scheduling order.
In light of these considerations, the motion must be denied.
THEREFORE, IT IS ORDERED that Plaintiff’s Motion For Leave To File His
Second Amended Complaint To Add a Claim for Exemplary Damages [#112], filed
January 23, 2016, is denied.
Dated January 26, 2016, at Denver, Colorado.
BY THE COURT:

2

This itself constitutes a violation of the court’s Civil Practice Standards, which require that any
such motion be filed “no later than three (3) business days before” the expiration of the relevant deadline.
REB Civ. Practice Standard II.G.4. (emphasis in original). Given that the instant motion itself also
violates the Practice Standards insofar as it exceeds the court’s page limitations, see REB Civ. Practice
Standard IV.B.1, counsel for plaintiff is strongly advised to read and heed all the court’s Practice
Standards, as further violations thereof may result in striking of the apposite motion or summary denial of
any relief requested therein.
3

That the magistrate judge suggested plaintiff could seek leave to amend at some later time if he
became aware of facts to support a claim for exemplary damages without setting a deadline for the
submission of such a request (see Motion at 3-4) does not absolve plaintiff of responsibility for
comprehending and complying with the requirements of the Federal Rules of Civil Procedure.

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