Riverside Storage and Recycling Center, LLC et al v. City of Federal Heights, The et al

Filing 36

ORDER by Magistrate Judge Nina Y. Wang on 3/15/16. Plaintiffs' Unopposed Motion for Joinder and for Leave to File Third Amended Complaint 31 is GRANTED and the Unopposed Motion for Extension of Certain Discovery and Pretrial Deadlines 34 DE NIED with leave to re-file following a Status Conference with the court to discuss scheduling issues. Plaintiffs shall file and serve the Third Amended Complaint on all parties under Fed. R. Civ. P. 5 no later than 14 days after the date of this Order. A Status Conference is set for 3/24/2016 10:00 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02325-CMA-NYW
RIVERSIDE STORAGE AND RECYCLING CENTER, a Colorado Limited Liability
Corporation, and
CRAIG SHRIVER,
Plaintiffs,
v.
THE CITY OF FEDERAL HEIGHTS, a Colorado Municipal Corporation,
KEN EKROSS,
JACQUELINE HALBURNT,
KRISTEN TEAGUE,
KAREN JACKSON,
TERESA GARRAMONE,
TIMOTHY WILLIAMS, and
STEVEN DURIAN,
Defendants.
ORDER
Magistrate Judge Nina Y. Wang
This matter comes before the court on Plaintiffs’ Unopposed Motion for Joinder and for
Leave to File Third Amended Complaint (the “Motion for Joinder and to Amend”) [#31, filed
Feb. 5, 2016] and Unopposed Motion for Extension of Certain Discovery and Pretrial Deadlines
[#34, filed Mar. 10, 2016]. These Motions are before the undersigned Magistrate Judge pursuant
to the Order of Reference dated December 14, 2015 [#26] and the Memoranda dated February 8,
2016 [#33] and March 10, 2016 [#35]. This court has reviewed the motions, the entire case file,
and the applicable law and is sufficiently advised as to the issues presented. For the following
reasons, Plaintiffs’ Unopposed Motion for Joinder and for Leave to File Third Amended

Complaint [#31] is GRANTED and the Unopposed Motion for Extension of Certain Discovery
and Pretrial Deadlines [#34] DENIED with leave to re-file following a Status Conference with
the court to discuss scheduling issues.
PROCEDURAL HISTORY
Plaintiffs Riverside Storage and Recycling Center and Craig Shriver (“Plaintiffs”)
commenced this action on September 8, 2015 by filing a civil complaint in the Adams County
District Court seeking damages pursuant to 42 U.S.C. § 1983 and C.R.C.P. 106(a)(4). They then
filed a First Amended Complaint and were granted leave to docket a Second Amended
Complaint on October 16, 2015. Defendants Kristen Teague, the City of Federal Heights, Karen
Jackson, Timothy Williams, Teresa Garramone, Ken Ekross, and Jacqueline Halburnt filed a
notice of removal to this court on October 20, 2015.
The individually named Defendants are alleged to have been employees of Federal
Heights during the timeframe relevant to the issues in the Second Amended Complaint. Plaintiff
Craig Shriver is the owner or has a property interest in manufactured homes that were affected
by floodwaters and described in the City of Evans Destroyed Mobile Home list. [#7 at 2]. The
claims in the Amended Complaint arise from the alleged improper Red tagging of manufactured
homes for destruction which Plaintiff allege was improper and contrary to Federal Heights’ own
municipal codes.
Plaintiffs’ first claim for relief is under the Fourteenth Amendment and 42 U.S.C. § 1983.
[#7 at 6]. Plaintiffs assert that Defendants Federal Heights, Ken Ekross, Tim Williams, Kristen
Teague, Karen Jackson, Teresa Garramone, John Doe, Steven Durian and Jacqueline Halburnt,
acting under color of state law, abused their discretion by willfully, recklessly and intentionally

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depriving Plaintiffs of the use and value of their property, even declaring the property (without a
Hearing) uninhabitable Tier 1 debris. [#7 at 6]. Plaintiffs’ second claim for relief is against
Federal Heights under Colorado Rule of Civil Procedure 106(a)(4). [#7 at 7]. Plaintiffs allege
that Federal Heights exceeded its jurisdiction and abused its discretion when Red Tagging and
ordering the removal of Plaintiffs’ property without providing Plaintiffs due process required
under the law. [#7 at 7]. Plaintiffs also allege that Federal Heights failed to follow federal, state,
and municipal law when forbidding Plaintiffs from placing their property in Kimberly Hills. [#7
at 7]. Plaintiffs seek damages, pre-judgment and post-judgment interest, attorneys’ fees and
costs. [#7 at 8].
Plaintiffs filed the pending Motion for Joinder and to Amend on February 5, 2016, the
deadline set out in the Scheduling Order to do so. [#31]; [#29 at 10]. Plaintiffs seek to join
Kevin Cox, John Hood, and Kimberly Hills Mobile Home Park as Plaintiffs and docket a Third
Amended Complaint reflecting the joinder of these new parties. See [#31]; [#31-1]. Plaintiffs
assert that the additional plaintiffs seek to bring a 42 U.S.C. § 1983 claim against Defendants and
wish to join the current matter. [#31 at 2]. Plaintiffs represent that Kimberly Hills Mobile Home
Park, John Hood, and Kevin Cox are the owners, or have property interest, in manufactured
homes affected by the 2013 flood waters and described in the City of Evans Destroyed Mobile
Home List. [#31 at 2]. Pursuant to D.C.COLO.LCivR 15.1(b), Plaintiffs attach a copy of the
proposed Third Amended Complaint with underlining reflecting changes from the previous
Complaint as an exhibit to their motion.
On March 10, 2016, Defendant Steven Durian filed an Unopposed Motion for Extension
of Certain Discovery and Pretrial Deadlines. [#34]. Defendant Durian represents that he seeks a

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three-month extension of the discovery deadlines in this case to accommodate for additional
discovery needed in light of Plaintiffs’ unopposed motion for joinder and to amend the
Complaint, which adds three new parties to the case. [#34 at 2].
STANDARD OF REVIEW
Because Plaintiffs filed the present Motion to Amend prior to the expiration of the
deadline to do so set forth in the Scheduling Order, consideration of this Motion is governed by
Fed. R. Civ. P. 15(a) and Fed. R. Civ. P. 20(a)(1). Federal Rule of Civil Procedure 15(a)
provides that a party may amend his pleading “only by leave of court or by written consent of the
adverse party” after a responsive pleading has been served, and instructs that “leave shall be
freely given when justice so requires.” When considering whether to allow an amendment to a
complaint, the court considers factors such as whether the amendment will result in undue
prejudice to the defendant, whether the request was unduly and inexplicably delayed or offered
in good faith, and whether the party had sufficient opportunity to state the claim but failed. See
Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990).
Whether to grant a motion to amend is within the trial court’s discretion. Woolsey v. Marion
Labs, Inc., 934 F.2d 1452, 1462 (10th Cir. 1991). A motion to amend may be denied when the
proposed amendment is futile. Jefferson County Sch. Dist. No. R-1 v. Moody’s Investor’s
Services, Inc., 175 F.3d 848, 859 (10th Cir. 1999). A proposed amendment is futile if the
complaint, as amended, would be subject to dismissal. Id.
Rule 20(a)(1) permits plaintiffs to be joined together in an action if “they assert any right
to relief jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences,” and “any question of law or

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fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a)(1). Whether to
permit joinder lies at the discretion of the district court. See State Distrib., Inc. v. Glenmore
Distill. Co., 738 F.2d 405, 416-17 (10th Cir. 1984). In exercising this discretion, the district
court “typically considers several factors [including] whether the amendment will result in undue
prejudice, whether the request was unduly and inexplicably delayed, [and whether it] was offered
in good faith . . . .” Id. at 416.
ANALYSIS
The proposed Third Amended Complaint seeks to add Kevin Cox, John Hood, and
Kimberly Hills Mobile Home Park as plaintiffs. This court does not find that the proposed Third
Amended Complaint is futile, untimely, will prejudice Defendants, or is offered in bad faith. 1
The Motion to Amend was filed prior to the expiration of the deadline to join parties set forth in
the Scheduling Order, Defendants do not oppose the proposed amendment or joinder of
Defendants, and have not alleged that the proposed amendment to the Complaint would be futile.
The court also notes that the Federal Rules of Civil Procedure in general, and Rule 15 in
particular, favors resolving disputes on their merits, which counsels in favor of allowing
amendment and permitting Defendants to file appropriate motions to dismiss or for summary
judgment. Gocolay v. New Mexico Federal Sav. & Loan Ass’n, 968 F.2d 1017, 1021 (1992)
(citations omitted).
This court also finds that joinder of Kevin Cox, John Hood, and Kimberly Hills Mobile
Home Park as plaintiffs meets the requirement of Rule 20(a)(1), which permits plaintiffs to be
joined together in an action if “they assert any right to relief jointly, severally, or in the
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This Order should be construed only within the context of Rules 15(a) and 20(a), and not as an
expression of the court’s opinion regarding Plaintiffs’ allegations.
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alternative with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences,” and “any question of law or fact common to all plaintiffs will arise
in the action.” Fed. R. Civ. P. 20(a)(1). Plaintiffs assert that the additional plaintiffs seek to
bring a 42 U.S.C. § 1983 claim against Defendants and that Kimberly Hills Mobile Home Park,
John Hood, and Kevin Cox are the owners, or have property interest, in manufactured homes
affected by the 2013 flood waters and described in the City of Evans Destroyed Mobile Home
List. [#31 at 2]. This court finds that these claims for relief arise from the same transaction,
occurrence, or series of transactions or occurrences as the claims of the current Plaintiffs. The
court also notes that Defendants do not challenge the joinder. Accordingly, IT IS ORDERED
that:
(1)

Plaintiffs’ Unopposed Motion for Joinder and for Leave to File Third Amended

Complaint [#31] is GRANTED;
(2)

Plaintiffs shall file and serve the Third Amended Complaint on all parties under

Fed. R. Civ. P. 5 no later than 14 days after the date of this Order;
(3)

A Status Conference to discuss discovery and a possible extension of deadlines in

this case is SET for March 24, 2016 at 10:00 a.m. in Courtroom C204; and
(4)

The Unopposed Motion for Extension of Certain Discovery and Pretrial Deadlines

[#34] is DENIED with leave to re-file following the Status Conference.

DATED: March 15, 2016

BY THE COURT:
s/Nina Y. Wang__________
United States Magistrate Judge

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