Rojas et al v. Westco Framers LLC et al

Filing 50

ORDER; Plaintiffs' 33 Motion for Leave to Amend Complaint Pursuant to F.R.C.P. 15(a) and for Amended Complaint to Relate Back to Original Pleading Pursuant to F.R.C.P. 15(c) is GRANTED. The Clerk of the Court shall accept Plaintiffs Second Amended Complaint [33-1] for filing as of the dateof this Order. IT IS FURTHER ORDERED that Defendants shall respond to the Second Amended Complaint in accordance with Fed. R. Civ. P. (a)(3), by Magistrate Judge Kristen L. Mix on 10/21/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00168-WJM-KLM
AARON ROJAS,
EDGAR TEJADA,
IVAN PAREDES,
ULISES CISNEROS,
ADOLFO RIOS, and
HUGO BUENA RODRIGUEZ,
JESUS ENRIQUEZ REYES, and those similarly situated,
Plaintiffs,
v.
WESTCO FRAMERS LLC,
DUSTY GRAY,
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, and
GROATHOUSE CONSTRUCTION, INC.,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiffs’ Motion for Leave to Amend
Complaint Pursuant to F.R.C.P. 15(a) and for Amended Complaint to Relate Back to
Original Pleading Pursuant to F.R.C.P. 15(c) [#33]1 (the “Motion”). Defendant Westco
Framers, LLC and Defendant Dusty Gray did not file a Response. Defendant Travelers
Casualty and Surety Company of America and Defendant Groathouse Construction, Inc.
filed a Response [#39] in opposition to the Motion [#33]. Plaintiffs filed a Reply [#42]. The
Scheduling Order [#36] governing this case provides that the deadline for joinder of parties

1

“[#33]” 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.

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and amendment of pleadings was September 4, 2015. Accordingly, Plaintiffs’ Motion was
timely filed.
In the Amended Complaint [#15] filed on March 5, 2015, Plaintiffs assert claims
under the Fair Labor Standards Act (“FLSA”), the Colorado Trust Fund Act, and Wyo. Stat.
Ann. §§ 16-6-112, 27-4-401, and 8-4-101, as well as a claim for breach of contract and
quasi contract. The proposed Second Amended Complaint [#33-1] seeks to amend the
Amended Complaint [#15] primarily to add two additional plaintiffs, Guillermo Vasquez (“Mr.
Vasquez”) and Mario Alvidrez (“Mr. Alvidrez”). Motion [#33] at 2. According to Plaintiffs,
the proposed Second Amended Complaint “adds no new claims and merely adds two new
Plaintiffs [who] allege they worked alongside the existing Plaintiffs and suffered from the
same injuries. Moreover, the new Plaintiffs were members of the putative F.R.C.P. 23 and
FLSA collective action classes that existed in the original complaint, and now merely switch
roles to named Plaintiffs.” Id. at 4-5.
The Court has discretion to grant a party leave to amend its pleadings. Foman v.
Davis, 371 U.S. 178, 182 (1962); see Fed. R. Civ. P. 15(a)(2) (“The court should freely give
leave when justice so requires.”). “In the absence of 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 should, as the rules require, be ‘freely given.’” Id. (quoting Fed. R. Civ. P. 15(a)(2)).
Potential prejudice to a defendant is the most important factor in considering whether a
plaintiff should be permitted to amend the complaint. Minter v. Prime Equip. Co., 451 F.3d
1196, 1207 (10th Cir. 2006). “Courts typically find prejudice only when the [proposed]
amendment unfairly affects the defendants in terms of preparing their defense to [claims
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asserted in the] amendment.” Id. (quotation omitted).
First, Defendants argue that Plaintiffs’ Motion is untimely. Response [#39] at 3.
However, as noted above, Plaintiff’s motion was timely filed before the deadline for joinder
of parties and amendment of pleadings. Rather, the timing inquiry under Fed. R. Civ. P.
15(a)(2) is whether Plaintiffs unduly delayed in seeking leave to amend. See Foman, 371
U.S. at 182. Delay is “undue” only if it will place an unwarranted burden on the Court or
become prejudicial to the opposing party. Minter, 451 F.3d at 1205. The Tenth Circuit
“focuses primarily on the reason for the delay.” Id. A motion to amend may have been
unduly delayed if, among other reasons, the moving party has made the complaint a
“moving target,” is trying to “salvage a lost case by untimely suggesting new theories of
recovery,” is trying to present more theories to avoid dismissal, or is knowingly waiting until
the eve of trial to assert new claims. Id. at 1206 (citations omitted). Other common
reasons for finding undue delay include lack of adequate explanation for the delay or when
a moving party knows or should have known of the facts in the proposed amendment but
did not include them in the original complaint or any prior attempts to amend. Id. (citations
omitted).
Defendants assert that Mr. Vasquez and Mr. Alvidrez retained Plaintiffs’ counsel in
April 2015, but that Plaintiffs’ counsel did not inform Defendants’ counsel of this and the
proposed amendment to add them to the Amended Complaint until June 17, 2015.
Response [#39] at 3. Defendants are correct that the Court may deny leave to amend if
the movant “knows or should have known of the facts [or parties] upon which the proposed
amendment is based but fails to include them in the original complaint.” Pallottino v. City
of Rio Rancho, 31 F.3d 1023,1027 (10th Cir. 1994). However, this argument ignores the
fact that “[t]he Federal Rules reject the approach that pleading is a game of skill in which
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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). Here, the delay was not so egregious as to allow the Court to find that
it was undue, given that the Scheduling Conference was not held until July 1, 2015, and
the deadline for joinder of parties and amendment of pleadings was not until September
4, 2015.
Second, Defendants argue that allowing amendment of the Amended Complaint
[#15] will unduly prejudice them. Response [#39] at 3-4. They argue that Wyo. Stat. Ann.
§ 16-6-113 “requires notice to Defendants prior to bringing suit.” Id. at 3. Regardless of
the accuracy of this statement, which is clearly more of a futility argument (as later argued
by Defendants and discussed by the Court below), Defendants do not identify any cogent
reason why they will suffer prejudice from the addition of two named Plaintiffs, whether
undue or otherwise. Thus, the Court cannot find that amendment should be denied on the
basis of undue prejudice.
Third, Defendants argue that allowing amendment of the Amended Complaint [#15]
is futile with respect to Wyo. Stat. Ann. § 16-6-113. Response [#39] at 4-7. This statute
provides:
Contractor’s bond or other guarantee; right of action; notice to obligee;
intervention by interested parties; pro rata distribution. Any person entitled
to the protection of a bond or other form of guarantee approved by the state
or any political subdivision under W.S. 16-6-112, may maintain an action for
the amount due him. He shall notify the obligee named in the bond or other
guarantee of the beginning of the action, giving the names of the parties,
describing the guarantee and stating the amount and nature of his claim. No
judgment shall be entered in the action within thirty (30) days after the giving
of the notice. The obligee or any person having a cause of action may on his
motion, be admitted as a party to the action. The court shall determine the
rights of all parties to the action. If the amount realized on the bond or other
guarantee is insufficient to discharge all claims in full, the amount shall be
distributed among the parties pro rata.
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The parties do not address the applicability of the Wyoming statute, which on its face
applies to actions by “any person entitled to the protection of a bond or other form of
guarantee approved by the state or any political subdivision,” to this case. The Court is not
required to address arguments not raised by the parties. See, e.g., Continental Materials
Corp. v. Affiliated FM Ins. Co., No. 10-cv-02900-JLK-KLM, 2012 WL 4442743, at *7 (D.
Colo. Sept. 26, 2012). Accordingly, the Court assumes without deciding that the Wyoming
statute is applicable here.
Defendants argue that amendment of the Amended Complaint is futile because Fed.
R. Civ. P. 15(c)(1)(A) only permits relation back “when applicable statutes of limitation
provisions specifically permit the same” and that the new Plaintiffs’ claim is otherwise
barred by the statute of limitations. Response [#39] at 5. Because Wyo. Stat. Ann. § 16-6113 and related statutes do not specifically reference relation back, they argue, relation
back is not permitted. Id. However, Defendants’ argument lacks merit. The standard for
relation back when a pleading seeks to add new plaintiffs whose claims will relate back to
the filing of an earlier pleading is unrelated to statutory language. According to Wright,
Miller, and Kane:
Although Rule 15(c) does not expressly apply to a new pleading adding or
dropping plaintiffs, the Advisory Committee Note to the 1966 amendment of
the rule indicates that the problem of relation back generally is easier to
resolve in this context than when it is presented by a change in defendants
and that the approach adopted in Rule 15(c) toward amendments affecting
defendants extends by analogy to amendments changing plaintiffs. As long
as defendant is fully apprised of a claim arising from specified conduct and
has prepared to defend the action, defendant’s ability to protect itself will not
be prejudicially affected if a new plaintiff is added, and defendant should not
be permitted to invoke a limitations defense. This seems particularly sound
inasmuch as the courts will require the scope of the amended pleading to
stay within the ambit of the conduct, transaction, or occurrence set forth in
the original pleading.
Courts deciding whether to allow amendments changing plaintiffs to relate
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back to the filing of the original complaint seem to concentrate on the notice
and identity-of-interest factors as they do in the case of amendments
changing defendants. Relation back thus will be permitted unless the court
finds that defendant did not have adequate notice or that the new and the
existing plaintiffs did not share a sufficient identity of interest. . . .
[A]n amendment that seeks to add a new plaintiff who asserts an entirely
different claim will not relate back . . . . As long as the original complaint
gives defendant adequate notice, an amendment relating back is proper even
if it exposes defendant to greater damages.
6A Fed. Prac. & Proc. Civ. § 1501 (3d ed.) (footnotes omitted). In the present case,
Plaintiffs asserted a claim under Wyo. Stat. Ann. § 16-6-113 in the Amended Complaint
[#15] at 11. Defendants do not argue that the “new” claim by Mr. Vasquez and Mr. Alvidrez
does not arise from “the conduct, transaction, or occurrence set forth” in the prior pleading.
See 6A Fed. Prac. & Proc. Civ. § 1501 (3d ed.). Accordingly, the Court finds that relation
back is permitted under these circumstances.
Defendants next argue that, even if relation back is otherwise permitted, the claim
fails because they were not provided with proper notice of the claims of Mr. Vasquez and
Mr. Alvidrez under this statute. Response [#39] at 6. The relevant part of the statute
provides that the plaintiff “shall notify the obligee named in the bond or other guarantee of
the beginning of the action, giving the names of the parties, describing the guarantee and
stating the amount and nature of his claim. . . . The obligee or any person having a cause
of action may on his motion, be admitted as a party to the action.” Wyo. Stat. Ann. § 16-6113. Although the statute mandates notice to a defendant-obligee “of the beginning of an
action,” along with certain other information, there is no such notification provision for a
person to be added to the action after its initiation.2 Rather, the statute only mandates that
2

Although the argument is unclear, Defendants may be arguing that the initial notice of the
suit by all Plaintiffs does not comply with Wyoming law. See Response [#39] at 6. To the extent
they do so, the Court notes that Defendants have presented no evidence in support and do not
direct the Court’s attention to any part of the proposed Second Amended Complaint where

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a motion be filed in order to add parties to an action after it has been initiated, as Plaintiffs
have done here.3 See generally Motion [#33]; Wyo. Stat. Ann. § 16-6-113 (“The obligee
or any person having a cause of action may on his motion, be admitted as a party to the
action.”). Accordingly, the Court finds that Defendants’ futility argument is without merit.
For the foregoing reasons, and considering that leave to amend should be freely
given,
IT IS HEREBY ORDERED that the Motion [#33] is GRANTED. The Clerk of the
Court shall accept Plaintiff’s Second Amended Complaint [#33-1] for filing as of the date
of this Order.
IT IS FURTHER ORDERED that Defendants shall respond to the Second Amended
Complaint in accordance with Fed. R. Civ. P. (a)(3).

DATED: October 21, 2015

Plaintiffs’ allegations unequivocally demonstrate that they failed to meet the applicable statute of
limitations.
3

The parties have not directed the Court’s attention to any legal authority interpreting this
provision, and the Court has found none. However, “[w]hen the words used convey a specific and
obvious meaning, we need not go farther and engage in statutory construction.” Robert L. Kroelein
Trust ex rel. Alden v. Kirchhefer, __ P.3d__, __, 2015 WL 5451707, at *7 (Wyo. Sept. 17, 2015)
(citation omitted). Here, the Court finds that “the words used convey a specific and obvious
meaning.” See also Moncrief v. Harvey, 816 P.2d 97, 105 (Wyo. 1991) (stating that remedial
statutes “are to be liberally construed to achieve their remedial purpose”).

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