Sherwin-Williams Company, The v. Ideal Auto Body Inc

Filing 33

ORDER by Magistrate Judge Kristen L. Mix on 4/5/16. Notice of Motion for Leave to Amend Their Answer to Add Affirmative Defenses Pursuant to D.C.COLO.LCivR 7.1 and FRCP 15(a) # 28 is DENIED.(lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00968-KLM
THE SHERWIN-WILLIAMS COMPANY, an Ohio corporation doing business as SherwinWilliams Automotive Finishes,
Plaintiff,
v.
IDEAL AUTO BODY INC., a Colorado corporation doing business as Ideal Carstar, and
SHEILA SAMUEL, individually,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Notice of Motion for Leave to
Amend Their Answer to Add Affirmative Defenses Pursuant to D.C.COLO.LCivR 7.1
and FRCP 15(a) [#28]1 (the “Motion”). Plaintiff filed a Response [#29] in opposition to the
Motion. No Reply was filed. The Court has reviewed the Motion, the Response, the entire
case file, and the applicable law, and is sufficiently advised in the premises. For the
reasons set forth below,
IT IS HEREBY ORDERED that the Motion [#28] is DENIED.
Pursuant to the Motion, Defendants seek to amend their Answer [#8] to add three
affirmative defenses: (1) “Defendant Ideal’s breach of the subject contract was justified by

1

“[#28]” 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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the Plaintiff’s failure to perform its obligations under the agreement;” (2) “Defendant Ideal’s
full performance of the subject agreement is excused under the Uniform Commercial Code
as codified at Ohio Rev. Code Ann. § 1302.60 and § 1302.70;” and (3) “Defendant Ideal
is entitled to offsets for damages it suffered as a result of Plaintiff’s breach or breaches of
the subject contract.” [#28-1] at 2-3.
On August 17, 2015, the Court set the deadline to join parties and amend pleadings
as September 30, 2015. See Scheduling Order [#22] at 7. Because the Motion [#28] was
filed on January 5, 2016, i.e., after the deadline to join parties and amend pleadings
expired, Defendants must provide good cause for their failure to timely move for
amendment pursuant to Fed. R. Civ. P. 16(b)(4). If good cause is shown, the Court next
considers any arguments raised by the parties related to whether justice would be served
by amendment. Specifically, the Court should grant leave to amend “freely . . . when
justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend need not be given, however,
when the moving party unduly delayed, failed to amend despite ample opportunity to do so,
the nonmoving party would be unduly prejudiced, or amendment would be futile. Foman
v. Davis, 371 U.S. 178, 182 (1962).
“In practice, [the Rule 16(b)(4)] standard requires the movant to show the scheduling
deadlines cannot be met despite [the movant’s] diligent efforts. Rule 16's good cause
requirement may be satisfied, for example, if [the movant] learns new information through
discovery or if the underlying law has changed.” See Birch v. Polaris Indus., Inc., 812 F.3d
1238, 1247 (10th Cir. 2015) (quoting Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n,
771 F.3d 1230, 1240 (10th Cir. 2014)). Here, however, Defendants fail to provide adequate
explanation for their delay in filing the Motion more than three months after the deadline to
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do so. See Reply [#43] at 4-6. They assert that the following meets the Rule 16(b)(4) good
cause standard:
In this matter, despite initial exhaustive Internet research defense counsel
was unable to locate the few similar cases involving similarly situated parties
and claims. Defendants’ interrogatory to Plaintiff requesting information on
all lawsuits was met with an objection that such was too vague, or unduly
burdensome to answer. Thereafter, undersigned counsel conducted
additional research which turned up a couple of cases in which
Sherwin-Williams was or is the plaintiff and which involved identical claims.
Undersigned counsel reviewed those cases and the Uniform Commercial
Code as codified by the State of Ohio and determined that certain affirmative
defenses including those pursuant to the Uniform Commercial Code are
applicable. Undersigned counsel also determined that other contemplated
defenses were not appropriate as having been denied or otherwise dismissed
by the courts in those other cases.
Motion [#28-1] at 3-4.
As Plaintiff argues, Defendants have provided no adequate explanation for why the
research could not have been conducted in a timely manner. See Response [#29] at 5-7.
There is no reason given for why the research could not have been completed prior to the
deadline for joinder of parties and amendment of pleadings, or why Defendants attempted
to rely on Plaintiff to provide such research through an interrogatory. Defendants do not
assert that there was a change in the law, or that facts came to light in discovery which
required amendment, or any other reason why this request could not have been done prior
to September 30, 2015. See, e.g., Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D.
684, 688 (D. Colo. 2000) (“Applying the applicable standard to the facts of this case leads
me to conclude that the defendants have failed to establish good cause in support of their
Motion to Amend. In particular, the defendants admit that the delay in seeking amendment
is the result of their failure earlier in the case to do the research necessary to recognize the
applicability of the defense they seek to add. There is no assertion that new facts were
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developed during discovery that resulted in the need to amend. . . . Nor is the need to
amend based upon recent developments in the law.”). Defendants do not state that they
were diligently conferring with Plaintiff during the period between expiration of the deadline
and filing of the Motion. They do not state that any personal or professional circumstances
necessitated a delay in refiling the Motion. In short, there is no adequate explanation for
the delay.
“While rigid adherence to the pretrial scheduling order is not advisable,” SIL-FIO v.
SFHC, Inc., 917 F.2d 1507, 1519 (10th Cir. 1990), the pleading amendment deadline
requires that parties conduct discovery efficiently and promptly in order to timely comply.
See

Granite

Southlands

Town

Ctr.

LLC

v.

Alberta

Town

Ctr.,

LLC,

No.

09-cv-00799-ZLW-KLM, 2010 WL 2635524, at *2 (D. Colo. June 8, 2010) (noting that
“deadlines to amend a party’s pleading are set at the outset of the case to require [parties]
to prioritize their discovery and attempt to obtain information that may be relevant to claim
amendment sooner rather than later”); Sanchez v. City & Cty. of Denver ex rel. Bd. of
Water Comm’rs, No. 07-cv-01805-MSK-BNB, 2007 WL 4557842, at *1 (D. Colo. Dec. 20,
2007) (noting that “the purpose of the deadline to amend and add contained in the
Scheduling Order is to force the parties to make any known amendments immediately so
that all discovery in the case, including the earliest discovery, is taken with the claims and
defenses as the parties expect them to be”).
However, pursuant to Gorsuch, in order to meet the Rule 16(b)(4) standard,
Defendants must show that the scheduling deadlines could not be met despite their diligent
efforts. 771 F.3d at 1241. In the absence of an adequate explanation regarding these
efforts, the Court must deny the Motion for failure to comply with the good cause standard
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of Rule 16(b)(4). See Gorsuch, 771 F.3d at 1241 (“We now hold that parties seeking to
amend their complaints after a scheduling order deadline must establish good cause for
doing so.”); see also id. at 1242 (“Because [the plaintiffs] lacked good cause for the delay
in amending their complaint, it was within the district court’s discretion to deny their motion
pursuant to Rule 16(b)(4).”).
Accordingly,
IT IS HEREBY ORDERED that the Motion [#28] is DENIED.

Dated: April 5, 2016

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