Traenkner et al v. Capalbo et al
WITHDRAWN ORDER; 47 Motion for Leave to File Designation of Nonparties at FaultPursuant to C.R.S. § 13-21-111.5 is DENIED, by Magistrate Judge Kathleen M. Tafoya on 9/29/15.(morti, ) Modified on 9/29/2015 to indicate Order is withdrawn pursuant to minute order 61 (morti, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 15–cv–00743–WYD–KMT
CARL TRAENKNER, JR., and
KEVIN CAPALBO, and
NORTH RANGE BEHAVIORAL HEALTH, a Colorado not for profit corporation,
This matter is before the court on Defendants Matthew Capalbo and Kevin Capalbo’s
(“Capalbo Defendants”) “Motion for Leave to File Designation of Nonparties at Fault Pursuant
to C.R.S. § 13-21-111.5” (Doc. No. 47 [Mot.], filed August 7, 2015). Plaintiffs filed their
response on August 28, 2015. Defendants did not file a reply.
In their First Amended Complaint, Plaintiffs allege claims against the Capalbo
Defendants for wrongful death and negligence and a claim under Colorado’s Premises Liability
Act regarding the death of Plaintiffs’ son, who Plaintiffs alleged died from a heroin overdose in
the Capalbo Defendants’ garage. (See Doc. No. 42 [Am. Compl.].)
Federal courts sitting in diversity are bound by state statutes when deciding questions of
substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). The “Erie doctrine,” as it has
come to be known, has been interpreted to mean that federal courts are to apply state substantive
law, but federal procedural law. Hanna v. Plumer, 380 U.S. 460, 465 (1965). In this case, this
court will apply state law with respect to the timeliness and adequacy of notice pursuant to Colo.
Rev. Stat. § 13–21–111.5(3)(b). Resolution Trust Corp. v. Deloitte & Touche, 818 F. Supp.
1406, 1407 (D. Colo. 1993).
Colo. Rev. Stat. § 13–21–111.5(3)(b) provides, the “[n]egligence or fault of a nonparty
may be considered . . . if the defending party gives notice that a nonparty was wholly or partially
at fault within ninety days following commencement of the action unless the court determines
that a longer period is necessary.” Upon such a designation, the jury may consider those
nonparties when apportioning liability at trial. Antolovich v. Brown Group Retail, Inc., 183 P.3d
582, 591–592 (Colo. App. 2007); Barton v. Adams Rental, Inc., 938 P.2d 532, 535 (Colo. 1997).
Nonparty designation “ensures that parties found liable will not be responsible for more than
their fair share of the damages.” Pedge v. RM Holdings, Inc., 75 P.3d 1126, 1128 (Colo. App.
Plaintiffs commenced this action on April 9, 2015. (Doc. No. 1.) Thus, any designation
of nonparties of fault should have been filed on or before July 8, 2015. The Capalbo Defendants
argue that they did not timely file their designation of nonparties “[b]ecause of the procedural
history of this matter,” including Defendant Kevin Capalbo’s previously-filed motion to dismiss
and the Capalbo Defendants’ recently-filed motion to dismiss Plaintiffs’ Amended Complaint.
(Mot., ¶ 7.) Plaintiffs argue that Defendant has not shown the excusable neglect normally
required under Fed. R. Civ. P. 6(b) to extend the time required for a filing. (Resp. at 3–6.)
The moving party has the burden of demonstrating the “necessity” for the requested
extension of time to file a designation of nonparties. See Redden v. SCI Colorado Funeral
Services, Inc., 38 P.3d 75, 84 (Colo. 2001) (rejecting an untimely designation of nonparties
where the movant “made no effort to justify the late filing or support it with specific good
cause”). Here, the Capalbo Defendants have failed to articulate why the “procedural history of
this matter” prevented them from timely filing their designation of nonparties. Moreover, the
Capalbo Defendants have failed to show why an extension of time to file their designation of
nonparties is necessary under Colo. Rev. Stat. § 13–21–111.5(3)(b).
Additionally, nonparty designations must contain identifying information about the
nonparty and “a brief statement of the basis for believing such nonparty to be at fault.” Colo.
Rev. Stat. § 13–21–111.5(3)(b). The designation must contain facts sufficient to “satisfy all the
elements of a negligence claim.” Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 81 (Colo.
2001); see also Stone v. Satriana, 41 P.3d 705, 709 (Colo.2002) (interpreting Redden to require
that designations “establish a prima facie case” against the nonparty). Courts should construe
designation requirements strictly to avoid a defendant attributing liability to a nonparty from
whom the plaintiff cannot recover. Redden, 38 P.3d at 80.
The Capalbo Defendants’ designation of “John/Jane Doe” whose “[a]ddress and
telephone number [are] unknown at this time” is improper and does not meet the statutory
requirements for a designation of a nonparty at fault.
WHEREFORE, for the foregoing reasons, it is
ORDERED that the “Motion for Leave to File Designation of Nonparties at Fault
Pursuant to C.R.S. § 13-21-111.5” (Doc. No. 47) is DENIED.
Dated this 29th day of September, 2015.
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