Ross v. Union Pacific Railroad Company,

Filing 41

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 4/15/19 re 23 Motion to Amend Complaint. The Court respectfully RECOMMENDS that the Motion 23 be DENIED. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-01187-WYD-KLM
DONALD J. ROSS,
Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation,
Defendant.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Amend Complaint [#23]1
(the “Motion”). Defendant filed a Response [#28] in opposition to the Motion [#23], and
Plaintiff filed a Reply [#29]. Pursuant to 28 U.S.C. § 636(b) and D.C.COLO.L.CivR
72.19(c), the Motion has been referred to the undersigned for a recommendation regarding
disposition.2 The Court has reviewed the briefs, the entire case file, and the applicable law,
and is sufficiently advised in the premises. For the reasons set forth below, the Court

1

“[#23]” 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 Recommendation.
2

A magistrate judge may issue orders on nondispositive motions only. Ocelot Oil Corp. v.
Sparrow Indus., 847 F.2d 1461, 1462-63 (10th Cir. 1988). Whether motions to amend are
dispositive is an unsettled issue. Chavez v. Hatterman, No. 06-cv-02525-WYD-MEH, 2009 WL
82496, at *1 (D. Colo. Jan. 13, 2009) (collecting cases). When an order denying a motion to amend
removes or precludes a defense or claim from the case it may be dispositive. Cuenca v. Univ. of
Kan., 205 F. Supp. 2d 1226, 1228 (D. Kan. 2002). Therefore, for the purposes of the present
motion, the Court assumes that the issue is dispositive and requires a recommendation.

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respectfully RECOMMENDS that the Motion [#23] be DENIED.
I. Background
Plaintiff filed this civil action on May 15, 2018, asserting one claim of negligence
pursuant to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 56. Compl. [#1] ¶
6. The Complaint alleges that Plaintiff was employed by Defendant as a remote control
foreman at “Job #YDV72R at the Washington Park Interchange” in Denver, Colorado. Id.
¶ 6. In this position, Plaintiff used a “brake stick” to apply or release hand brakes on rail
cars. Id. ¶ 7; see also Motion [#23] at 2. Plaintiff alleges that while he was attempting to
apply a hand brake, the brake stick’s unlocking mechanism suddenly released and
unlocked, causing him severe, permanent, and disabling injuries primarily to his shoulder.
Compl. ¶ 7, 9.
On August 14, 2018, the Court entered the Scheduling Order in this case which set
September 28, 2018 as the deadline for the amendment of pleadings. [#14] at 6. On
November 30, 2018, Plaintiff filed the instant Motion in which he seeks to file an Amended
Complaint that adds a new claim pursuant to the Federal Safety Appliance Act (“SAA”), 49
U.S.C. § 20302. [#23] at 1. Specifically, Plaintiff asserts that his injuries were the result
of Defendant’s violation of the SAA which gives rise to a “strict liability/negligence per se
cause of action under the FELA.” Proposed Am. Compl. [#23-1] ¶¶ 13-14. As the basis
for this additional claim, Plaintiff states that the SAA requires all rail cars to be equipped
with “efficient hand brakes” and that, because “the brake stick is properly considered part
of the hand brake, . . . any defect or deficiency in the brake stick could render the hand
brake ‘inefficient,’ in violation of the SAA.” Motion [#23] at 4. Plaintiff explains that this

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claim is supported by the Ninth Circuit Court of Appeals decision in S. Pac. Co. v. Carson,
169 F.2d 734 (9th Cir. 1948), which stands for the proposition that the brake stick is
“effectively a part of the hand brake, and therefore subject to the provisions of the SAA.”
Id. at 6-7.
Although not explained in the Motion, Plaintiff discloses in his Reply [#29] that the
impetus for bringing the SAA claim arose from Plaintiff’s counsel learning a new fact in
Plaintiff’s deposition preparation and subsequent discovery of the Carson decision. See
[#29] at 2-3. As explained in the Reply, Plaintiff’s counsel learned for the first time in
preparing for Plaintiff’s November 6, 2018 deposition that Plaintiff had been instructed by
several managers that the use of the brake stick was required in applying or releasing
handbrakes. Id. at 2. After learning this new fact, Plaintiff’s counsel conducted research
to determine whether the mandatory brake stick could be deemed part of the hand brake
and therefore subject to the SAA. Id.; see also Pl.’s Ex. 2, Affidavit of James K. Vucinovich
[#29-2] at 2-3. In conducting this research, Plaintiff’s counsel discovered the Carson
decision and concluded that the additional claim pursuant to the SAA applied. Id.
II. Analysis
As a preliminary matter, the deadline for the amendment of pleadings was
September 28, 2018. Scheduling Order [#14] at 6. Plaintiff filed the Motion [#23] on
November 30, 2018. Therefore, the Motion is untimely. Because Plaintiff filed his Motion
after the deadline for amending the pleadings, the Court must start its analysis with Rule
16(b)(4).3 See Ayon v. Kent Denver Sch., No. 12-cv-2546-WJM-CBS, 2014 WL 85287, at

3

Unless otherwise noted, “Rule 16(b)(4)” and all similar citations refer to the Federal Rules
of Civil Procedure.

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*2 (D. Colo. Jan. 9, 2014) (noting that where a party seeks to amend his pleadings after the
deadline established in the scheduling order, “the majority of courts have held that a party
must meet the two-part test of first showing good cause to amend the scheduling order
under Rule 16(b), and then showing that amendment would be allowed under Rule 15(a)”);
cf. Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1241 (10th Cir.
2014) (holding that the trial court did not abuse its discretion by using “Rule 16’s good
cause requirement as the threshold inquiry to consider whether amendments should be
allowed after a scheduling order deadline has passed”). Plaintiff is entitled to amend his
complaint only if he makes the requisite showing at each step of the analysis. The two-step
analysis is explained as follows:
Rule 16(b)[(4)]’s good cause standard is much different than the more lenient
standard contained in Rule 15(a). Rule 16(b)[(4)] does not focus on the bad
faith of the movant, or the prejudice to the opposing party. Rather, it focuses
on the diligence of the party seeking leave to modify the scheduling order to
permit the proposed amendment. Properly construed, good cause means
that the scheduling deadlines cannot be met despite a party’s diligent efforts.
In other words, the Court may “modify the schedule on a showing of good
cause if [the deadline] cannot be met despite the diligence of the party
seeking the extension.”
Pumpco, Inc. v. Schenker Int’l Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (citations
omitted); accord Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986 F. Supp. 959, 980
(D.S.C. 1997), aff’d, 129 F.3d 116 (4th Cir. 1997). If Plaintiff fails to show good cause
under Rule 16(b)(4), there is no need for the Court to move on to the second step of the
analysis, i.e., whether Plaintiff has satisfied the requirements of Rule 15(a). Nicastle v.
Adams Cty. Sheriff’s Office, No. 10-cv-00816-REB-KMT, 2011 WL 1465586, at *3 (D. Colo.
Mar. 14, 2011).
A.

Rule 16: Good Cause to Modify the Pleading Amendment Deadline
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A scheduling order deadline, such as the pleading amendment deadline, “may be
modified only for good cause with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). This
“good cause” requirement reflects the important role a scheduling order plays in the court’s
management of its docket. Cf. Washington v. Arapahoe Cty. Dep’t of Soc. Servs., 197
F.R.D. 439, 441 (D. Colo. 2000) (“[a] scheduling order is an important tool necessary for
the orderly preparation of a case for trial”).
As noted above, to demonstrate good cause pursuant to Rule 16, the moving party
must “show that it [was] diligent in attempting to meet the [pleading amendment] deadline,
which means it must provide an adequate explanation for any delay.” Minter v. Prime
Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006). “Rule 16(b) does not focus on the
bad faith of the movant or the prejudice to the opposing party. Rather, it focuses on the
diligence of the party seeking leave to modify the scheduling order to permit the proposed
amendment.” Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo.
2000) (quoting Dilmar Oil Co., 986 F. Supp. at 980, aff’d, 129 F.3d 116 (4th Cir. 1997)).
“While rigid adherence to the pretrial scheduling order is not advisable,” see SIL-FLO, Inc.,
v. SFHC, Inc., 917 F.2d 1507, 1519 (10th Cir. 1990), this Court finds that compliance with
the pleading amendment deadline is particularly important because of the capacity of an
amendment to change the complexion of the case.
Here, Plaintiff filed his Motion on November 30, 2018, two months after the
expiration of the pleading amendment deadline established in the Scheduling Order. [#14]
at 6. In the Motion, Plaintiff asserts that good cause exists pursuant to Rule 16 because,
unlike cases where good cause was found lacking, Plaintiff is not shifting theories of liability
at the last minute to avoid the loss of his claim and has not delayed substantially in filing
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the Motion. Id. at 8-10. Plaintiff notes that “this is not a case where [he] delayed filing his
[M]otion or where the proposed amendment is served at the end or past the discovery
deadline and dispositive motion deadline.” Id. at 9. Plaintiff argues that this case is akin
to Bylin v. Billings, 568 F.3d 1224 (10th Cir. 2009), where a motion to amend the answer
was granted after the moving party discovered a Wyoming Supreme Court decision that
supported an affirmative defense not asserted in the original answer. Id. at 9-10. While
Plaintiff acknowledges that Rule 16 was not at issue in Bylin, he contends that “the Tenth
Circuit recognized that there was a ‘rough similarity between the undue delay standard of
Rule 15 and the good cause standard of Rule 16’ [and that] ‘Rule 16 was not intended to
function as an inflexible straightjacket on the conduct of litigation.’” Id. at 10 (quoting Bylin
v. Billings, 568 F.3d at 1231, 1232 (internal quotation omitted)).
In its Response, Defendant contends that Plaintiff has not met the good cause
standard of Rule 16. Response [#28] at 1.4 Specifically, Defendant contends that Plaintiff
fails to satisfy Rule 16’s good cause requirement because “it is not based on any new facts
learned through discovery or any recent change” in the law. Id. at 2. Rather, Defendant
argues, the Motion is based on “Plaintiff’s recent discovery of an outdated and factually
distinguishable case[,]” id., and that “Plaintiff has not established good cause as he readily
admits that the delay in seeking the amendment is the result of his failure earlier to timely
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Defendant also argues that Plaintiff’s Motion [#28] fails to apply the proper standard under
which a party may seek leave to amend his complaint after the deadline to amend pleadings.
Response [#28] at 2. This is because the Motion incorrectly states that “the Tenth Circuit has not
specifically held that [Rule] 16 applies to a postdeadline amendment to a complaint[.]” Motion [#23]
at 8. Nevertheless, Plaintiff does argue in the Motion that good cause exists to permit the
amendment and acknowledges in his Reply [#29] the Tenth Circuit’s decision in Gorsuch, Ltd., B.C.
v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230 (10th Cir. 2014), which adopted the requirement
that a party must satisfy Rule 16 when seeking leave to amend after the deadline. See id. at 8-10;
Reply [#29] at 2 n.1.

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research the applicability of the [SAA].” Id. at 3. Thus, according to Defendant, the Motion
should be denied for the same reasons the motion to amend in Colorado Visionary
Academy was denied. Id. at 3-4. Namely, because “Plaintiff (1) admits to not performing
the necessary research earlier in the case; (2) does not assert that any new facts
developed during discovery resulted in the need to amend; and (3) based his Motion not
on recent developments in the law but on seventy-year-old case law that is not controlling.”
Id. at 4. Finally, Defendant argues that Plaintiff bases his new SAA claim on the same
underlying conduct in support of his original FELA claim, which provides additional grounds
for denying the motion under Rule 16 because Plaintiff knew of the underlying conduct but
simply failed to raise the SAA claim. Id. The Court agrees.
To satisfy Rule 16, Plaintiff must show that he was diligent in attempting to meet the
pleading deadline, and provide an adequate explanation for any delay. Minter, 451 F.3d
at 1205 n.4. Diligence can be shown through discovery of a new fact, or a change in the
underlying case law. Gorsuch, 771 F.3d at 1240. However, if a party knew about “the
underlying conduct but simply failed to raise tort claims, [ ] the claims are barred.” Id.
Additionally, reliance on “long-held assertions” and failure to conduct “the research
necessary” to recognize the applicability of a claim or defense does not demonstrate
diligence. Colo. Visionary Acad., 194 F.R.D. at 688. Here, Plaintiff has failed to show
diligence through discovery of a new fact or a change in the underlying case law, and relies
on long-held assertions in his legal theory that could have been discovered with earlier
research. Gorsuch, 771 F.3d at 1240; Colo. Visionary Acad., 194 F.R.D. at 688.
Plaintiff’s diligence arguments are based on discovering a new fact in preparation
for Plaintiff’s own deposition. Reply [#29] at 2. Plaintiff contends that it was during this
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preparation that Plaintiff’s counsel learned that use of the brake stick was required which,
in turn, led to the discovery that a claim pursuant to the SAA might apply. Id. While
Plaintiff asserts that there was “no reason for Plaintiff to be engaged in any legal research
of this type at that point in the case,” id. at 3, the additional fact that Plaintiff discovered
after the amendment deadline directly relates to his initial Complaint and theory of
Defendant’s liability. See Reply [#29] at 2; Compl. [#1] ¶¶ 5-11. In some cases, a party
may satisfy Rule 16’s good cause requirement if he learns new information in the course
of discovery after the amendment of pleadings deadline has passed. See, e.g., Pumpco,
Inc., 204 F.R.D. at 668-69 (“[t]he fact that a party first learns, through discovery or
disclosures, information necessary for the assertion of a claim after the deadline to amend
established in the scheduling order has expired constitutes good cause to extend that
deadline”); Colo. Visionary Acad., 194 F.R.D. at 687-88. However, “[w]here the party
seeking amendment knows or should have known of the facts upon which the proposed
amendment is based but fails to include them in the original complaint, the motion to amend
is subject to denial.” State Distrib., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416
(10th Cir. 1984) (emphasis added).
Here, Plaintiff admits that “[t]he facts of this case are, and always have been, that
the brake stick did not function properly . . . .” Reply [#29] at 3. Plaintiff knew his case
concerned facts related to his use of the brake stick five months before the scheduling
deadline, as alleged in his Complaint. See [#1] ¶ 7. This “new fact” regarding the
mandatory use of the brake stick was not learned from Defendant through discovery and
Plaintiff provides no excuse for why this fact could not have been disclosed to his counsel
prior to the amendment deadline. Minter, 451 F.3d at 1205 n.4. “Carelessness is not
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compatible with a finding of diligence and offers no reason for a grant of relief.” Dilmar Oil
Co., 986 F. Supp. at 980. The “new fact” that Plaintiff allegedly discovered stemmed from
the same conduct that injured Plaintiff in the first place and came from Plaintiff’s own
deposition preparations. Id. Plaintiff’s counsel acted less than carefully in failing to elicit
a fact from his own client that was directly related to his central claim in the Complaint [#1].
Based on this evidence, the Court finds that Plaintiff “kn[ew] or should have known of the
facts upon which the proposed amendment is based” and the Motion is subject to denial
on this basis alone. State Distrib., Inc., 738 F.2d at 416; see also Valles v. Gen-X Echo B,
Inc., No. 13-cv-00201-RM-KLM, 2013 WL 5832782, at *4-5 (D. Colo. Sept. 27, 2013).
Additionally, Plaintiff asserts no change in the underlying law to support good cause.
Gorsuch, 771 F.3d at 1240. The sole case Plaintiff now relies on is over seventy years old.
See Carson, 169 F.2d at 734. Further, the SAA was amended to require hand brakes over
one hundred years ago, in 1910.5 Plaintiff advances a legal theory of negligence in his
initial compliant, and now seeks to add a second claim based on the same allegedly
negligent conduct. Compl. ¶¶ 5-9; Motion [#23] at 4. By Plaintiff’s own admission, the
legal theories he now attempts to assert have not “shifted” from his initial Complaint [#1].
Motion [#23] at 8. Plaintiff’s assertions of negligence with respect to the use of the brake
stick in this case have been consistent and “long-held” from the start of the litigation. Colo.
Visionary Acad., 194 F.R.D. at 688; Compl. [#1] ¶ 7. Given Plaintiff’s knowledge of the
factual circumstances regarding the brake stick and the legal theories involved in this case
well in advance of the amendment deadline, the Court finds the proposed amendment

5

See Safety Appliance Act, ch. 160, 36 Stat. 298 (1910) (codified as amended at 49 U.S.C.
§ 20302).

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should have and could have been brought, with the exercise of diligence, at or before the
expiration of the pleading amendment deadline. In short, Plaintiff’s arguments fail to negate
the pleading amendment deadline’s requirement that the parties conduct discovery
efficiently and promptly in order to timely comply. See Granite Southlands Town Cntr. v.
Alberta Town Cntr., LLC, No. 09-cv-00799-ZLW-KLM, 2010 2635524, at *2 (D. Colo. June
8, 2010), adopted by 2010 WL 2635527 (June 28, 2010).
Finally, the Court finds that Plaintiff’s reliance on other cases to demonstrate good
cause is unavailing. As an initial matter, the Court agrees with Defendant that Plaintiff’s
reliance on Bylin is misplaced. As Plaintiff himself acknowledges, the parties in Bylin did
not raise the issue of Rule 16 at the trial court level and thus, the Tenth Circuit did not
analyze that standard in its decision. See 568 F.3d at 1231 (“[B]ecause the Bylins did not
make the Rule 16 argument to the district court, we do not consider it.”). While Bylin
alludes to a “rough similarity” between Rules 15 and 16, that decision in no way combines
the two standards, or replaces Rule 16’s standard with Rule 15’s. See id. at 1231-32.
Here, Plaintiff blurs the line between the two standards as many of his arguments for good
cause are couched in Rule 15 terms of undue delay and undue prejudice. Motion [#23] at
9; see Bylin, 568 F.3d at 1229 (In the context of Rule 15, “[r]efusing leave to amend is
generally only justified upon a showing of undue delay, undue prejudice to the opposing
party, bad faith or dilatory motive . . . .”). Rule 16’ s good cause standard, however, “is
much different than the more lenient standard contained in Rule 15(a).” Colo. Visionary
Acad., 194 F.R.D. at 687; see Bylin, 568 F.3d at 1231 (noting that Rule 16’s good cause
standard is “an arguably more stringent standard than the standards for amending a
pleading under Rule 15”). Thus, the Court finds that Bylin fails to support Plaintiff’s
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argument for good cause to modify the Scheduling Order.
The other cases cited by Plaintiff provide instances where good cause was not found
based, in part, on the lateness of when the motion for leave to amend was filed. Motion
[#23] at 9; see, e.g., Bradnt v. City of Westminster, No. 16-cv-01356-WJM-CBS, 2017 WL
8894645, at *5-6 (D. Colo. May, 2017) (finding no good cause to amend where a party
moved to add a defendant and assert a new claim only two weeks prior to the close of
discovery and five months after obtaining the new information); Fernandes v. TW Telecom
Holdings, Inc., No. 2:13-cv-2221-GEB-CKD, 2015 WL 1874872, at *3 (E.D. Cal. Apr. 23,
2015) (finding a several month gap between the plaintiff’s receipt of the new information
and his filing of the motion to amend the scheduling order did not demonstrate sufficient
diligence for good cause to amend the scheduling order under Rule 16); Carbajal v. St.
Anthony Cent. Hosp., No. 12-cv-02257-REB-KLM, 2015 WL 1499864, at *3 (D. Colo. Mar.
27, 2015) (finding that a plaintiff who filed a motion to amend ten months after the
expiration of the pleading deadline did not otherwise demonstrate diligence for good
cause). Plaintiff argues that good cause exists here because, unlike those cases, he did
not substantially delay in filing his Motion after learning the new fact and discovering the
applicability of the SAA. [#23] at 9. The Court also finds this authority to be unpersuasive.
While the cases Plaintiff cites do provide instances where the delay in filing a motion to
amend evidenced a lack of diligence, the good cause requirement is not satisfied simply
by the prompt filing of an amendment alone. Rather, the good cause standard requires the
Court to determine if there is an adequate explanation for any delay. Minter, 451 F.3d at
1205 n.4 (emphasis added). Therefore, even though Plaintiff promptly filed the Motion after
his counsel learned of the brake stick requirement, this does not excuse the lack of
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diligence inherent in the five-month gap between the filing of this lawsuit and the
“discovery” of the alleged new fact. As stated above, the pleading amendment deadline
does require that parties conduct discovery efficiently and promptly in order to timely
comply. Had Plaintiff been diligent with the facts and claims available to him prior to the
expiration of the pleading amendment deadline, the Motion [#23] would not be necessary.
See Carbajal, 2015 WL 1499864 at *4. Therefore, Plaintiff’s explanation for his delay is
inadequate to support good cause.
Plaintiff has failed to show that, with diligence, he could not have requested leave
to amend his complaint on or before the pleading amendment deadline. Accordingly, the
Court concludes that Plaintiff has not demonstrated that he was unable to meet the
pleading amendment deadline despite the exercise of due diligence. Therefore, Plaintiff
does not establish good cause for the modification of the Scheduling Order and does not
satisfy the first step of the amendment analysis.
B.

Rule 15: Leave to Amend the Complaint
Because Plaintiff has not shown good cause for seeking leave to amend his

complaint after the expiration of the pleading deadline, the Motion is subject to denial on
this basis alone. Colo. Visionary Acad., 194 F.R.D. at 688 (denying an untimely motion to
amend solely on the basis of a failure to establish “good cause” within the meaning of Rule
16(b)(4)); First City Bank, N.A. v. Air Capitol Aircraft Sales, Inc., 820 F.2d 1127, 1132 (10th
Cir. 1987) (“We hold that a district court acts within the bounds of its discretion when it
denies leave to amend for ‘untimeliness’ or ‘undue delay.’ Prejudice to the opposing party
need not be shown also.”); cf. Minter, 451 F.3d at 1205 (explaining that lateness itself does
not justify denial of a motion to amend, but “undue” lateness may). Accordingly, the Court
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does not analyze the Motion under the standard set forth in Fed. R. Civ. P. 15(a). Nicastle,
2011 WL 1465586, at *3 (“Because the Court finds no good cause to amend the scheduling
order, [it] will not address whether leave to amend is appropriate under Rule 15.”); see also
Schneider v. City of Grand Junction, Colo., No. 10-cv-01719-MSK-KLM, slip op. (D. Colo.
Apr. 25, 2011) [Docket No. 77], adopted by slip op. (July 12, 2011) [Docket No. 87]
(reviewing untimely motion to amend only as to good cause standard pursuant to Fed. R.
Civ. P. 16(b)(4)).
III. Conclusion
For the reasons set forth above, the Court RECOMMENDS that the Motion [#23] be
DENIED.
IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have
fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo
review of the Recommendation by the district judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,
474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal
questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).

A party’s objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review. United States v. One Parcel of Real Prop., 73
F.3d 1057, 1060 (10th Cir. 1996).
Dated: April 15, 2019

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