Martinez v. Spa Motel
ORDER; 30 Defendant's Motion for Summary Judgment is DENIED as moot. 36 Plaintiffs' Motion to Amend Complaint is GRANTED in part and DENIED without prejudice in part. IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiffs proposed Second Amended Complaint [36-1] for filing as of the date of this Order, by Magistrate Judge Kristen L. Mix on 11/5/15.(morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00358-KLM
TERESE MARTINEZ, and
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion for Summary Judgment
[#30] and on Plaintiffs’ Motion to Amend Complaint [#36]1 (the “Motion to Amend”).
Defendant filed a Response [#41] in opposition to the Motion to Amend [#36], and Plaintiffs
filed a Reply [#43]. The Court has reviewed the Motions, Response, Reply, the entire case
file, and the applicable law, and is sufficiently advised in the premises. For the reasons set
forth below, Defendant’s Motion for Summary Judgment [#30] is DENIED as moot and
Plaintiffs’ Motion to Amend [#36] is GRANTED in part and DENIED without prejudice in
In short, this case involves a pool-side injury to a child while she and her family were
guests at Defendant’s motel located in the State of Colorado. In the proposed Second
“[#36]” 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.
Amended Complaint [#36-1], Plaintiffs seek to dismiss their negligence claim and replace
it with a claim under the Colorado Premises Liability Act, Colo. Rev. Stat. § 13-21-115, and
to assert a claim for exemplary damages. See Motion to Amend [#36]; Reply [#43].
Defendant opposes amendment with respect to both claims. See Response [#41].
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)).
Proposed Claim One: Colorado Premises Liability Act
With respect to the proposed claim under the Colorado Premises Liability Act,
Defendants argue that Plaintiffs’ Motion to Amend is untimely. Response [#41] at 1-2. The
Court agrees with this assessment.
First, the deadline for joinder of parties and
amendment of pleadings was July 1, 2015. See Scheduling Order [#20] at 8. Plaintiffs’
Motion, which does not seek amendment of the Scheduling Order to extend this deadline,
is therefore untimely. Plaintiffs offer no explanation for failing to meet this deadline under
Fed. R. Civ. P. 16(b) or for waiting until October 1, 2015, to request this amendment under
Fed. R. Civ. P. 15(a)(2).
However, 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. 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 asserted in the]
amendment.” Id. (quotation omitted). Here, there is no argument or other indication that
Defendant would suffer any prejudice as a result of allowing this amendment. Defendant
knew (and informed Plaintiffs) no later than February 20, 2015, that Plaintiffs’ common law
negligence claim was superseded by the Colorado Premises Liability Act. See Answer [#18, #5] at 2. Further, the Proposed Scheduling Order jointly submitted by the parties also
identified this issue. See [#17, #20] at 4 (citing Vigil v. Franklin, 103 P.3d 322 (Colo. 2004),
the seminal Colorado Supreme Court case regarding negligence and the Colorado
Premises Liability Act).
The Court notes that this request for amendment presents a close call. While
Plaintiffs are blameworthy for not seeking this amendment much sooner, Defendant has
long been aware of this issue (and thus suffers no surprise) and has identified no prejudice
to its defense of this matter. However, given that potential prejudice is “the most important
factor” in deciding whether to permit amendment, see Minter, 451 F.3d at 1207, and that
there appears to be none, the Court will allow this amendment.
Accordingly, the Motion to Amend [#36] is granted to the extent that Plaintiffs seek
to dismiss their negligence claim and add a claim under the Colorado Premises Liability
Proposed Claim Two: Exemplary Damages
Regarding Plaintiffs’ second proposed claim for exemplary damages, Defendant
argues that this claim is futile because Plaintiffs have failed to allege that the asserted injury
was attended by circumstances of fraud, malice, or willful and wanton conduct. Response
[#41] at 2-4. An amendment is futile only if it would not survive a motion to dismiss. See
Bradley v. Val–Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing Jefferson Cnty. Sch. Dist.
v. Moody's Investor’s Servs., 175 F.3d 848, 859 (10th Cir. 1999)). “In ascertaining whether
plaintiff[s’] proposed amended complaint is likely to survive a motion to dismiss, the court
must construe the complaint in the light most favorable to plaintiff[s], and the allegations
in the complaint must be accepted as true.” See Murray v. Sevier, 156 F.R.D. 235, 238 (D.
Kan. 1994). Moreover, “[a]ny ambiguities must be resolved in favor of plaintiff[s], giving
[them] ‘the benefit of every reasonable inference’ drawn from the ‘well-pleaded’ facts and
allegations in [the] complaint.” Id.
Colo. Rev. Stat. § 13–21–102(1.5)(a) provides, in relevant part:
A claim for exemplary damages in an action governed by this section may
not be included in any initial claim for relief. A claim for exemplary damages
in an action governed by this section may be allowed by amendment to the
pleadings only after . . . the plaintiff establishes prima facie proof of a triable
The appropriate test is whether Plaintiffs have provided prima facie evidence of willful and
wanton behavior, not whether the Court believes that a jury could find beyond a reasonable
doubt that exemplary damages are warranted. See, e.g., Am. Econ. Ins. Co. v. William
Schoolcraft, No. 05-cv-01870-LTB-BNB, 2007 WL 160951, at *4 (D. Colo. Jan. 17, 2007)
(emphasizing that in resolving request to amend pursuant to Colo. Rev. Stat. § 13–21–102,
court should consider only the “preliminary question” of whether moving parties made prima
facie case, not whether any party will ultimately be entitled to those damages).
The statute contemplates that the discovery process will provide the requisite prima
facie evidence to support a claim for exemplary damages. See Stamp v. Vail Corp., 172
P.3d 437, 449 (Colo. 2007). Prima facie proof of a triable issue of exemplary damages is
established by “a showing of a reasonable likelihood that the issue will ultimately be
submitted to the jury for resolution.” Id.; see also Colo. Rev. Stat. § 13–25–127(2)
(“Exemplary damages against the party against whom the claim is asserted shall only be
awarded in a civil action when the party asserting the claim proves beyond a reasonable
doubt the commission of a wrong under the circumstances set forth in section
Pursuant to Colo. Rev. Stat. § 13–21–102(1)(a), the circumstances under which the
wrongful act must have been committed include fraud, malice, or willful and wanton
conduct. Here, Plaintiffs do not assert that Defendant engaged in fraudulent or malicious
conduct, but they do assert that Defendant’s behavior was willful and wanton.
Colorado law defines “willful and wanton conduct” as “conduct purposefully
committed which the actor must have realized as dangerous, done heedlessly and
recklessly, without regard to consequences, or of the rights and safety of others.” Colo.
Rev. Stat. § 13–21–102(1)(b). The Colorado Supreme Court has noted that “[w]here the
defendant is conscious of his conduct and the existing conditions and knew or should have
known that injury would result, the statutory requirements” are met. Coors v. Sec. Life of
Denver Ins. Co., 112 P.3d 59, 66 (Colo. 2005). Accordingly, the Court must consider
whether Plaintiffs have offered evidence to establish a prima facie case that “[D]efendant
[was] conscious of his conduct and the existing conditions and knew or should have known
that injury would result,” in order to determine whether Plaintiffs may be permitted to
include a claim for exemplary damages. Coors, 112 P.3d at 66.
In the proposed Second Amended Complaint, Plaintiffs allege that when Plaintiff
Terese Martinez was leaving Defendant’s pool area, “she slipped off a ramp that failed to
have any anti-slip, railing or other safety measure(s) in place in order to protect invited
guests from falling.”
Proposed Second Am. Compl. [#36-1] ¶ 7.
They allege that
“Defendant had constructive and implied notice of the condition of the premises,” and that
“[t]he ramp did not comply with ADA standards.” Id. ¶¶ 10-11. They also allege that “[t]he
area where the subject incident occurred is adjacent to the swimming pool on Defendant’s
premises and Defendant knew, or should have known, of the increased danger to invited
guests due to the activities conducted on the subject premises,” and that “[t]he conduct of
Defendant was reckless, wanton, and with utter disregard for the rights, safety and/or
consequences to the public, specifically Plaintiff Terese Martinez . . . .” Id. ¶¶ 27-28.
Plaintiffs recite no evidence in support of these allegations in the proposed Second
Plaintiffs have failed to meet their burden of presenting a prima facie case of
reckless or willful and wanton behavior. Even aside from the failure to provide evidence,
the allegations alone simply assert that Defendant could have done more to prevent
accidental slippage on the ramp; this, by itself, does not mean that Defendant behaved in
a reckless or willful and wanton manner. For example, in Thiess v. Mercer, No. 09-cv02931-CMA-KLM, 2010 WL 1856286, at *2 (D. Colo. May 7, 2010) (quoting Coors, 112
P.3d at 66), the Court found that the following conduct demonstrated that the defendants
were “conscious of [their] conduct and the existing conditions and knew or should have
known that injury would result . . . .”
Plaintiffs claim that Plaintiff Derek Thiess’ copious attempts to keep
Defendants informed of the project issues and costs and (1) Defendant
Randel Mercer’s threat to Plaintiff Albert Thiess; (2) Defendants’ knowledge
that they owed money to Plaintiff Derek Theiss for services rendered despite
their demands for him to pay them money; (3) Defendants’ knowingly
untruthful and defamatory statements to the Boulder County Court, the
Boulder District Attorney and a Denver-based television station; (4)
Defendants’ omission of relevant documents in response to a subpoena and
their signed statement that they had turned over everything called for; and (5)
Defendant Karin Mercer’s self-serving modifications of bills submitted by
Plaintiff Derek Thiess and attempts to pass the modifications off as the actual
bills are all evidence, in part, of “willful and wanton conduct” sufficient to
permit Plaintiffs to add a claim for exemplary damages.
In Innovatier, Inc. v. Cardxx, Inc., No. 08-cv-00273-PAB-KLM, 2010 WL 5014488, at *3 (D.
Colo. Dec. 3, 2010), the Court held that a misappropriation counterclaim was sufficiently
supported to make a prima facie case for exemplary damages when the evidence in part
consisted of the following:
Defendant contends that despite the parties’ License Agreement to develop
certain technology, Plaintiff continued to attempt to develop the technology
on its own and with the aid of Defendant’s former employee, Paul Meyer.
Specifically, Defendant argues that evidence has revealed that Meyer
improperly used Defendant’s proprietary information in helping Plaintiff
engineer technology in competition with Defendant. Defendant contends that
not only is Plaintiff’s willful misappropriation borne out in documents and
information obtained in discovery, but is also shown by Plaintiff’s alleged
obstreperous discovery conduct in this case.
(internal citations omitted). Further, in Siemens v. Romero, No. 09-cv-02065-KLM-CBS,
2010 WL 427893, at *3 (D. Colo. Feb. 3, 2010), the Court held that the following conduct
was sufficient to state a prima facie case for exemplary damages:
Plaintiff claims that Defendant’s act of allegedly causing the accident, his
failure to stop at the scene of the accident, his denial of involvement and
failure to accept responsibility for the accident when eventually apprehended,
and his plea of guilty to the charge of reckless driving are evidence of “willful
and wanton conduct” sufficient to permit Plaintiff to add a claim for exemplary
damages. In support, Plaintiff provides the State of Colorado Traffic Accident
Report (the “Accident Report”), witness statements contained in the Accident
Report and the transcript of the hearing at which Defendant pled guilty to the
criminal charge of reckless driving.
As a final example, in Cunningham v. Standard Fire Ins. Co., No. 07-cv-02538-REB-KLM,
2008 WL 4371929, at *2 (D. Colo. Sept. 23, 2008), the Court held that the following
conduct in this insurance dispute was sufficient to state a prima facie case for exemplary
Plaintiff argues that Defendants’ conduct was willful and wanton because
they knew their own standards and the purpose for those standards, and they
did not follow them. The standards encouraged reasonable claims handling.
Defendants purposefully ignored the standards to the detriment of Plaintiff .
. . . Defendants knew they had a duty to act . . . . Instead, they did nothing.
This was not a mistake, but rather appears to be . . . intentional . . . . Plaintiff
has provided the deposition testimony of claims handlers Alice Barron and
Susan M. Yeckley in support of his allegations.
(internal citation and quotation marks omitted). Even aside from the failure to provide
evidentiary support, the allegations provided by Plaintiffs in support of a claim for exemplary
damages simply do not meet the threshold of demonstrating a prima facie case of willful
and wanton behavior on the part of Defendant, as demonstrated by these cases.
However, given that leave to amend should be freely given under Fed. R. Civ. P.
15(a)(2), that inclusion of a claim for exemplary damages is prohibited in the initial pleading
and only allowed after the plaintiff establishes prima facie proof of a triable issue under
Colo. Rev. Stat. § 13–21–102(1.5)(a), and that the parties’ discovery deadline was
November 2, 2015 (approximately one month after the filing of this Motion [#36]), the
request to add exemplary damages should be denied without prejudice, in the event that
the parties’ final phase of discovery uncovered evidence allowing Plaintiffs to establish
prima facie proof of a triable issue on exemplary damages.
Accordingly, the Motion to Amend [#36] is denied without prejudice to the extent
Plaintiffs seek to assert a claim for exemplary damages.
For the foregoing reasons,
IT IS HEREBY ORDERED that the deadline for amendment of pleadings and joinder
of parties is sua sponte extended to October 1, 2015 (the date on which the Motion to
Amend [#36] was filed).
IT IS FURTHER ORDERED that the Motion to Amend [#36] is GRANTED in part
and DENIED without prejudice in part. The Motion to Amend is granted to the extent
that Plaintiffs seek to dismiss their negligence claim and add a claim under the Colorado
Premises Liability Act. The Motion to Amend is denied without prejudice to the extent
Plaintiffs seek to assert a claim for exemplary damages.
IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiffs’
proposed Second Amended Complaint [#36-1] for filing as of the date of this Order.
IT IS FURTHER ORDERED that Defendant shall respond to the Second Amended
Complaint in accordance with Fed. R. Civ. P. 15(a)(3).
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment [#30]
is DENIED as moot. See, e.g., Strich v. United States, No. 09-cv-01913-REB-KLM, 2010
WL 14826, at *1 (D. Colo. Jan. 11, 2010) (citations omitted) (“The filing of an amended
complaint moots a motion to dismiss directed at the complaint that is supplanted and
superseded.”); Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo. 2006)
(noting that defendants’ dispositive motions are “technically moot because they are directed
at a pleading that is no longer operative”); see also Dempsey v. Jason’s Premier Pumping
Servs., LLC, No. 15-cv-00703-CMA-NYW, 2015 WL 4761191, at *2 (D. Colo. Aug. 13,
2015) (mooting a partial motion for summary judgment due to the filing of an amended
DATED: November 5, 2015
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