Steele v. Colorado Springs Early Colleges et al

Filing 51

ORDER by Magistrate Judge Kristen L. Mix on 12/10/15. Motion for Leave to Amend Witness List # 40 is GRANTED.(lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03016-KLM
DIANNA STEELE,
Plaintiff,
v.
COLORADO SPRINGS EARLY COLLEGES,
KEITH KING, in his individual capacity, and
JASON DILGER, in his individual capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion for Leave to Amend
Witness List [#40]1 (the “Motion”).2 Defendants filed a Response [#50] in opposition to the
Motion. The Court has reviewed the Motion, Response, the entire case file, and the
applicable law, and is sufficiently advised in the premises. For the reasons set forth below,
the Motion [#40] is GRANTED.
In the Motion [#40], Defendants seek to amend their trial witness list to include
Teresa/Tresa3 Suarez (“Suarez”). The Final Pretrial Order [#34], which includes the parties’

1

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

The case has been referred to the undersigned for all purposes [#18] pursuant to the
Court’s Pilot Program and 28 U.S.C. § 636(c), on consent of the parties [#17].
3

Defendants repeatedly and only use the spelling of “Teresa,” and Plaintiff repeatedly and
only uses the spelling of “Tresa,” so it is unclear to the Court which spelling is correct.

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respective witness lists, was entered on September 24, 2015. On November 20, 2015,
Defendants’ counsel realized that he had “inadvertently” failed to include Ms. Suarez on
their witness list. Motion [#40] at 2. In support of the Motion, Defendants state that (1) Ms.
Suarez was intended as a will-call witness, (2) she worked as a math teacher during the
2013-2014 school year, (3) she is expected to testify primarily about Plaintiff’s job
performance, (4) she was identified in Defendants’ January 21, 2015 Rule 26(a)(1)
Disclosures, and (5) at least three deponents (including Plaintiff and Defendant Jason
Dilger) referred to and discussed Ms. Suarez in their respective depositions. Id. at 2.
The Final Pretrial Order serves the purpose of ensuring “the economical and efficient
trial of every case on its merits without chance or surprise.” Hull v. Chevron U.S.A., Inc.,
812 F.2d 584, 588 (10th Cir. 1987). As such, the Federal Rules of Civil Procedure permit
the amendment of a Final Pretrial Order only “to prevent manifest injustice.” Fed. R. Civ.
P. 16(e); see also Final Pretrial Order [#34] at 20. The party seeking to amend the Final
Pretrial Order bears the burden of establishing that manifest injustice will occur without the
amendment. Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir. 2000). The
decision to allow such an amendment rests within the sound discretion of the trial court.
Roberts v. Roadway Express, 149 F.3d 1098, 1107 (10th Cir. 1998). In exercising that
discretion, the Tenth Circuit has directed that courts be guided by the following factors: (1)
prejudice to the party opposing the modification of the pretrial order; (2) the ability of the
party opposing modification to cure the prejudice; (3) disruption to the orderly and efficient
trial of the case resulting from the modification; and (4) bad faith by the party seeking to
modify the pretrial order. Koch, 203 F.3d at 1222. “We also take into consideration the
timeliness of the movant’s motion to amend the order.” Davey v. Lockheed Martin Corp.,

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301 F.3d 1204, 1208 (10th Cir. 2002). While these factors create a “high” standard that
must be met before the Final Pretrial Order can be modified, this “standard isn’t meant to
preclude any flexibility.” Monfore v. Phillips, 778 F.3d 849, 851 (10th Cir. 2015).
At the outset, the Court notes that Plaintiff does not argue the Koch factors in her
Response but instead appears to primarily rely on the argument that, “[r]egardless of
[Defendants’ Koch factor] arguments, Defendants have failed to show how it would be
manifestly unjust for them to bring this case to trial without calling Ms. Suarez as a
witness.” [#50] at 4. In other words, Plaintiff appears to argue that Defendants have failed
to provide evidence that Ms. Suarez is crucial to the presentation of Plaintiff’s case. See
id. at 3-4. However, the Court’s review of Tenth Circuit case law on this issue, including
the cases cited by Plaintiff, see Response [#50] at 2-3, does not support the view that
“manifest unjustness” is somehow an additional factor that must be determined in addition
to the Koch factors and the timeliness of the request. See generally, e.g., Monfore, 778
F.3d at 851; Davey, 301 F.3d at 1208; Koch, 203 F.3d at 1222-23. Rather, although the
Court is ultimately permitted discretion in deciding whether to allow amendment of a pretrial
order, see Roberts, 149 F.3d at 1107, case law from the Tenth Circuit Court of Appeals
supports the proposition that “manifest injustice” is comprised of the factors mentioned
above.
Regarding the first Koch factor, neither Defendants nor Plaintiff have identified any
prejudice which the party opposing the modification of the pretrial order, i.e., Plaintiff, will
endure. It is undisputed that Ms. Suarez was identified in Defendants’ January 21, 2015
Rule 26(a)(1) Disclosures and that at least three deponents (including Plaintiff and
Defendant Jason Dilger) referred to and discussed Ms. Suarez in their respective

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depositions. Motion [#40] at 2. No new claims or defenses are being added as a result of
Ms. Suarez’s testimony. Further, Plaintiff has not asserted that additional discovery would
be required if Ms. Suarez is allowed to testify. Thus, this factor weighs in favor of
permitting amendment of the Final Pretrial Order.
Regarding the second Koch factor, i.e., the ability of the party opposing modification
of the pretrial order to cure the prejudice, there is no need to cure prejudice because none
has been identified. Thus, this factor weighs in favor of permitting amendment of the Final
Pretrial Order.
Regarding the third Koch factor, there is no indication from either party that allowing
amendment would create a disruption of the orderly and efficient trial of this case. Neither
party asserts that trial, despite its imminence, would need to be continued or extended if
Ms. Suarez were added to the Final Pretrial Order at this time. Thus, this factor weighs in
favor of permitting amendment of the Final Pretrial Order.
Regarding the fourth Koch factor, there is no indication that this amendment was
sought in bad faith by Defendants. The only non-speculative information before the Court
is that Defendants inadvertently failed to include Ms. Suarez on their will-call witness list.
While the Court does not condone the carelessness which necessitated the filing of this
Motion [#40] to amend the Final Pretrial Order, see Case v. Abrams, 352 F.3d 193, 195
(10th Cir. 1965), “no judge worth [her] salt can forget or fail to sympathize with the
challenges the trial lawyer confronts,” Monfore, 778 F.3d at 851, and human error will
occasionally happen. This type of error does not appear to have been a recurring theme
in this lawsuit. To the contrary, the professionalism of the attorneys for both parties has so
far generally been exemplary throughout this litigation. Thus, this factor weighs in favor of

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permitting amendment of the Final Pretrial Order.
Finally, the Court considers the timeliness of Defendants’ Motion [#40]. See Davey,
301 F.3d at 1208. Defendants asserted that they realized their error on November 20,
2015.

Motion [#40] at 2.

Defendants and Plaintiff agree that Defendants’ counsel

attempted to confer with Plaintiff’s counsel between November 20 and December 2, until
it was clear that agreement could not be reached. See id. at 2-3; Response [#50] at 1.
This Motion [#40] was then immediately filed on December 3. Thus, despite the proximity
to trial, the Court finds that the Motion [#40] was not filed untimely. This consideration
therefore does not weigh against permitting amendment of the Final Pretrial Order.
In short, because there is no indication that Plaintiff will suffer prejudice, that trial will
be disrupted, or that Defendants acted in bad faith, it would be manifestly unjust not to
permit amendment of the Final Pretrial Order to include Ms. Suarez on Defendants’ will-call
witness list. Thus, for the foregoing reasons,
IT IS HEREBY ORDERED that the Motion [#40] is GRANTED. The Final Pretrial
Order [#34] entered on September 24, 2015 is modified to include Ms. Suarez on
Defendants’ will-call witness list. See [#40-1] at 4.

Dated: December 10, 2015

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