Beltran v. Noonan et al
ORDER Denying Plaintiffs' 564 Motion to Amend Complaint. By Judge Christine M. Arguello on 02/13/2018. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 14-cv-03074-CMA-CBS
JOHANA PAOLA BELTRAN,
ALEXANDRA IVETTE GONZALEZ,
LAURA MEJIA JIMENEZ, and
SARAH CAROLINE AZUELA RASCON,
EXPERT GROUP INTERNATIONAL INC., d/b/a Expert AuPair,
EURAUPAIR INTERCULTURAL CHILD CARE PROGRAMS,
CULTURAL HOMESTAY INTERNATIONAL,
CULTURAL CARE, INC., d/b/a Cultural Care Au Pair,
AU PAIR INTERNATIONAL, INC.,
APF GLOBAL EXCHANGE, NFP, d/b/a Au Pair Foundation,
AMERICAN INSTITUTE FOR FOREIGN STUDY, d/b/a Au Pair in America,
AMERICAN CULTURAL EXCHANGE, LLC, d/b/a GoAuPair,
AGENT AU PAIR,
A.P.EX. AMERICAN PROFESSIONAL EXCHANGE, LLC, d/b/a ProAuPair,
20/20 CARE EXCHANGE, INC., d/b/a The International Au Pair Exchange,
ASSOCIATES IN CULTURAL EXCHANGE, d/b/a GoAu Pair, and
GOAUPAIR OPERATIONS, LLC,
ORDER DENYING PLAINTIFFS’ MOTION TO AMEND COMPLAINT
This matter is before the Court on Plaintiffs’ Motion to Amend Complaint, in which
Plaintiffs seek leave to file a third amended complaint. (Doc. # 564.) For the following
reasons, the Court denies Plaintiffs’ Motion to Amend Complaint.
Plaintiffs initiated this action on November 13, 2014. (Doc. # 1.) After
Defendants filed multiple Motions to Dismiss (Doc. ## 74, 75, 82), Plaintiffs filed a First
Amended Complaint on March 13, 2015 (Doc. # 101), which added four plaintiffs. One
month later, United States Magistrate Judge Kathleen M. Tafoya set August 15, 2016,
as the deadline for amendments to pleadings and joinder of parties. (Doc. # 294.)
On that deadline, August 15, 2016, Plaintiffs moved to amend the First Amended
Complaint to add four more named plaintiffs. (Doc. # 329.) The Magistrate Judge
granted Plaintiffs’ motion (Doc. # 394), and their Second Amended Complaint was
entered on October 17, 2016 (Doc. # 395).
Plaintiffs filed the instant Motion to Amend Complaint, seeking leave to file a third
amended complaint, on June 3, 2017. (Doc. # 564.) Plaintiffs seek to amend the
complaint to: (1) “add as named plaintiffs Linda Elizabeth, Camila Gabriela Perez
Reyes, and Cathy Caramelo,” and (2) “name International Care, Ltd. (‘ICL’) as a
defendant,” contending that ICL and Defendant Cultural Care, Inc. (“Cultural Care”) “are
alter egos and agents of each other” and that “ICL is independently liable for Cultural
Care’s relevant actions.” (Id. at 2–3.) Defendant Cultural Care responded in opposition
to both of Plaintiffs’ bases for seeking leave to amend their complaint on June 23, 2017.
(Doc. # 589.) Defendant American Institute for Foreign Study (“AIFS”), d/b/a Au Pair in
America, responded in opposition on the same day, joining and incorporating Defendant
Cultural Care’s Response and raising an additional argument about one of the proposed
named plaintiffs. (Doc. # 587.) Plaintiffs replied on July 7, 2017. (Doc. # 595.) The
Magistrate Judge granted ICL’s request to make a special appearance to oppose
Plaintiffs’ Motion to Amend Complaint (Doc. # 615), and ICL filed its Special
Appearance Brief to Oppose Plaintiffs’ motion on July 20, 2017 (Doc. # 616).
Plaintiffs filed the Motion to Amend Complaint now before this Court nearly ten
months after the August 15, 2016, deadline for joinder of parties and amendments to
pleadings. See (Doc. ## 294, 564.) “After a scheduling order deadline, a party seeking
leave to amend must demonstrate (1) good cause for seeking modification under
[Federal Rule of Civil Procedure] 16(b)(4) and (2) satisfaction of the [Federal Rule of
Civil Procedure] 15(a) standard.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n,
771 F.3d 1230, 1240 (10th Cir. 2014) (citing Pumpco, Inc. v. Schenker Int’l, Inc., 204
F.R.D. 667, 668 (D. Colo. 2001)).
With regard to the first factor, Rule 16(b)(4) provides that a scheduling order
“may be modified only for good cause and with the judge’s consent.” The Tenth Circuit
has clarified that this good cause standard “requires the movant to show the ‘scheduling
deadlines cannot be met despite the movant’s diligent efforts.’” Gorsuch, 771 F.3d at
1240 (quoting Pumpco, 204 F.R.D. at 668). The good cause standard of Rule 16(b)(4)
may be satisfied “if a plaintiff learns new information through discovery or if the
underlying law has changed,” for example. Id. However, “[i]f the plaintiff knew of the
underlying conduct but simply failed to raise . . . claims, . . . the claims are barred.” Id.
(citing Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006)).
As to the second factor, Rule 15(a)(2) directs a trial court to “freely give leave
when justice so requires,” a rule intended “to provide litigants the maximum opportunity
for each claim to be decided on its merits rather on procedural niceties,’” Minter, 451
F.3d at 1204 (quoting Hardin v. Mintowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir.
1982)). However, if there is “any apparent or declared reason—such as 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, futility of the amendment, etc.—the leave
sought” need not be granted. Id. at 1204 (quoting Foman v. Davis, 371 U.S. 178, 182
(1962)). “The grant or denial of an opportunity to amend is within the discretion” of the
trial court. Foman, 371 U.S. at 182.
FIRST FACTOR: RULE 16(B)(4)’S GOOD CAUSE STANDARD
Plaintiffs assert that they have shown good cause to amend their complaint to
add (1) additional named plaintiffs, and (2) ICL as a defendant because “they learned
new information in discovery.” (Doc. # 595 at 3) (citing Gorsuch, 771 F.3d at 1240
(“Rule 16’s good cause requirement may be satisfied, for example, if a plaintiff learns
new information through discovery.”). The Court disagrees.
First, the Court is not persuaded by Plaintiffs’ argument in their Reply that they
“did not learn the information necessary to add the three proposed plaintiffs until May
2017.” 1 (Doc. # 595 at 6.) Plaintiffs state that “Proposed plaintiff Linda Elizabeth and
Cathy Caramelo asked to join the lawsuit on May 14 and 17, 2017, respectively,” and
that they did not learn of Camila Gabriela Perez Reyes’s “interest in joining the case
until May 1, 2017.” (Id.) These bare factual allegations fail to demonstrate that Plaintiffs
engaged in “diligent efforts.” See Gorsuch, 771 F.3d at 1240. Moreover, Plaintiffs had
twice previously amended their Complaint to add additional named plaintiffs, see (Doc.
## 101, 395), which suggests to the Court that Plaintiffs were quite capable to doing so
prior to the August 15, 2016, deadline.
Second, the Court rejects Plaintiffs’ assertion that they “only recently [have] been
able to understand the full scope of Cultural Care’s position vis-à-vis ICL.” (Doc. # 564
at 6.) The record demonstrates that Plaintiffs have long had notice of the relationship
between Cultural Care and ICL, as Defendant Cultural Care explains. See (Doc. # 589
at 9–11.) For example, Plaintiffs’ First Amended Complaint quoted the contract
between Plaintiff Beaudette Deetlefs and Defendant Cultural Care. (Doc. # 101 at 63–
64). That contract—which Plaintiffs cited in their First Amended Complaint, filed March
13, 2015, see (id.),—clearly states that Defendant Cultural Care has a “registered
business name of International Care, Ltd.” and that “CC” is ICL’s successor and
assignee, (Doc. # 589-2). Additionally, at a scheduling conference before the
Magistrate Judge on April 25, 2016, see (Doc. # 294), Defendant Cultural Care’s
Plaintiffs do not explain in their Motion to Amend Complaint why they could not have added
the three newly named plaintiffs before the August 15, 2016, deadline. See (Doc. # 564.)
Rather, Plaintiffs ask for relief from the Court’s deadline (Doc. # 294) in the interest of “[r]eason
and efficiency” in a footnote. (Doc. # 564 at 4 n.2.) The Court declines to consider this
perfunctory request. See In re C.W. Min. Co., 740 F.3d 548, 564 (10th Cir. 2014) (quoting
United States v. Berry, 717 F.3d 823, 834 n.7 (10th Cir. 2013) (“We decline to address the issue
because it is raised only in a footnote”)).
counsel stated his assumption that Plaintiffs would seek discovery concerning
“international disputes . . . for purposes . . . related to the recruitment of the au pair” and
stated that “au pairs are recruited and their information is done by a foreign entity,”
(Doc. # 307 at 28–29). Two weeks later, on May 9, 2016, Defendant Cultural Care
wrote in its answers to Plaintiffs’ interrogatories that “Ms. Deetlefs was recruited and
screened by International Care, Ltd.” and that “Ms. Carenas Caicedo was recruited and
screened by International Care, Ltd.” (Doc. # 589-4.) The Court therefore finds that
Plaintiffs became aware of ICL’s affiliation with Defendant Cultural Care well before the
August 15, 2016, deadline to amend pleadings.
Here, the absence of good cause for Plaintiffs’ delay in seeking to (yet again)
amend their Complaint is manifest. Because Plaintiffs fail to satisfy the good cause
standard of Rule 16(b)(4), the Court denies their instant Motion to Amend Complaint.
See Gorsuch, 771 F.3d at 1242.
SECOND FACTOR: RULE 15(A)(2)
Having concluded that Plaintiffs lack good cause to amend their Complaint so
long after the scheduling order deadline, the Court need not reach the second factor,
the standards of Rule 15(a), and declines to do so. See id.
For the foregoing reasons, it is ORDERED that Plaintiffs’ Motion to Amend
Complaint (Doc. # 564) is DENIED.
DATED: February 13, 2018
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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