Loma v. City and County of Denver et al

Filing 93

MEMORANDUM OPINION AND ORDER Plaintiff Brian Loma's Motion for Leave to File a Second Amended Complaint [Doc. 87 ] is DENIED. Plaintiff SHALL FILE a response to the Allied Defendants' Motion for Summary Judgment [Doc. 81 ] on or before November 1, 2024. By Judge Nina Y. Wang on 10/23/2024.(norlin, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 21-cv-02214-NYW-SBP
BRIAN LOMA,
Plaintiff,
v.
ALLIED UNIVERSAL SECURITY SERVICES,
FALIESHA LYNETT TRIMBLE, in their individual capacity,
ANGELIKA CHAPLINSKIY, in their individual capacity, and
SERGEANT JEFFREY BERGER, in his individual capacity,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is the Motion for Leave to File a Second Amended
Complaint (“Motion to Amend” or “Motion”) filed by Plaintiff Brian Loma (“Plaintiff” or “Mr.
Loma”) on April 29, 2024. [Doc. 87]. Defendant Sergeant Jeffrey Berger (“Sergeant
Berger”) and Defendants Allied Universal Security Services (“Allied”), Faliesha Lynett
Trimble, and Angelika Chaplinskiy (together with Allied and Ms. Trimble, the “Allied
Defendants”) timely responded in opposition to the Motion to Amend. [Doc. 90; Doc. 91].
Plaintiff filed a reply brief (the “Reply”). [Doc. 92]. The issues have been fully briefed,
and the Court does not believe that oral argument would materially aid in the resolution
of this matter. For the reasons set forth below, the Court DENIES the Motion to Amend.
BAGKGROUND
The factual background of this case is set forth in this Court’s March 20, 2023
Memorandum Opinion and Order (“March 20 Order”), see [Doc. 63], and the Court does

not repeat it here. Mr. Loma initiated this action on August 13, 2021 against various
former defendants, including the City and County of Denver (the “City”) and various City
employees, and the Allied Defendants, asserting three claims for malicious prosecution
against an assistant City attorney and the Allied Defendants; violation of First Amendment
rights against various former defendants; and violation of First Amendment rights against
various former defendants. [Doc. 1]. Then, on October 7, 2021, prior to service of the
original Complaint, Mr. Loma filed his operative Amended Complaint, wherein he added
additional claims and additional defendants, including Sergeant Berger. [Doc. 6]. On
November 24, 2021, the Allied Defendants filed an answer to the Amended Complaint.
[Doc. 25].

On December 13, 2021, Sergeant Berger, together with the other City

defendants, moved to dismiss the Amended Complaint (“Motion to Dismiss”). [Doc. 28].
On March 20, 2023, the Court granted in part the Motion to Dismiss. [Doc. 63].
Pursuant to the Court’s March 20 Order, Sergeant Berger and the Allied Defendants are
the only remaining Defendants in this action. Mr. Loma’s claims against Sergeant Berger
include (1) a First Amendment retaliation claim, [Doc. 6 at ¶¶ 146–62]; (2) a Fourteenth
Amendment deprivation of property claim, [id. at ¶¶ 176–82]; and (3) a Fourth Amendment
excessive force resulting in the deprivation of property claim, [id. at ¶¶ 183–91]. Mr.
Loma’s only remaining claim against the Allied Defendants is a claim for malicious
prosecution. [Id. at ¶¶ 87–100].

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On July 23, 2023, the Honorable Susan B. Prose entered a second Scheduling
Order in this case. [Doc. 76]. 1 The second Scheduling Order provides, in relevant part,
that:
The only claim against the Allied Universal Security Defendants (Allied
Universal Security Services, and their two employees, Faliesha Lynett
Trimble, and Angelika Chaplinskiy) is for malicious prosecution, a Colorado
tort. Plaintiff will seek to Amend the Complaint to account for the remaining
claims and to clarify the basis for the Colorado tort claims against Allied
Universal Security Defendants.
[Id. at 4]. Pursuant to the Scheduling Order, the deadline for amendment of pleadings
was September 1, 2023; discovery closed on March 1, 2024; and the deadline to file
dispositive motions was April 1, 2024. [Id. at 10].
Sergeant Berger and the Allied Defendants timely filed motions for summary
judgment. [Doc. 80 (“Sergeant Berger’s Motion”); Doc. 81 (“Allied Defendants’ Motion”)].
On April 29, 2024, Mr. Loma filed a response to Sergeant Berger’s Motion, only. [Doc.
86]. Mr. Loma did not file a response to the Allied Defendants’ Motion; instead, he filed
the instant Motion to Amend. [Doc. 87].
Mr. Loma asks for leave to amend his Complaint to clarify that his malicious
prosecution claim against the Allied Defendants is a Colorado common law tort claim,
and not a claim brought pursuant to 42 U.S.C. § 1983. See [id. at ¶¶ 11–12]. If the Court
denies the Motion to Amend, Mr. Loma asks for an additional 14 days to respond to the
Allied Defendants’ Motion. [Id. at 5]. Defendants oppose the Motion. [Doc. 90; Doc. 91].
The Court considers the Parties’ arguments below.

Originally, the case proceeded before the Honorable Daniel D. Domenico and the
Honorable Kristen L. Mix. [Doc. 36]. Judge Mix entered a Scheduling Order on January
25, 2022. [Doc. 45]. Discovery was then stayed pending the resolution of the Motion to
Dismiss filed by the City and its employees. [Doc. 56].

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LEGAL STANDARD
When a party files a motion to amend after the expiration of the deadline to amend
pleadings, the Court considers the motion pursuant to both Rule 15 and Rule 16 of the
Federal Rules of Civil Procedure. First, the Court determines whether the moving party
has demonstrated good cause to amend the Scheduling Order pursuant to Rule 16(b).
See Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1242 (10th Cir.
2014). Then, the Court considers whether the amendment is appropriate under Rule
15(a). Id.
Rule 16(b) provides that a scheduling order “may be modified only for good cause
and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “In practice, this standard requires
the movant to show the ‘scheduling deadlines cannot be met despite [the movant’s]
diligent efforts.’” Gorsuch, 771 F.3d at 1240 (quoting Pumpco, Inc. v. Schenker Int’l, Inc.,
204 F.R.D. 667, 668 (D. Colo. 2001) (alteration in original)). This burden is satisfied when,
for example, a party learns of new information through discovery, or when the governing
law has changed. Id. “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).
Rule 15(a), on the other hand, provides that leave to amend “shall be freely given
when justice so requires.” Fed. R. Civ. P. 15(a). The Court may refuse leave to amend
upon a showing of undue delay, undue prejudice to the opposing party, bad faith or
dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility
of amendment. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). A general

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presumption exists in favor of allowing a party to amend its pleadings, see Foman v.
Davis, 371 U.S. 178, 182 (1962), and the non-moving party bears the burden of showing
that the proposed amendment is improper, Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s
Inv. Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999); see also Corp. Stock Transfer, Inc.
v. AE Biofuels, Inc., 663 F. Supp. 2d 1056, 1061 (D. Colo. 2009) (non-moving party has
burden of demonstrating futility). Whether to allow amendment is within the trial court’s
discretion. Burks v. Okla. Publ’g Co., 81 F.3d 975, 978–79 (10th Cir. 1996).
ANALYSIS
Mr. Loma moves to amend his Amended Complaint pursuant to Rule 15(a) but
makes no attempt to satisfy his burden under Rule 16(b). [Doc. 87]. Sergeant Berger
and the Allied Defendants both argue that the Motion should be denied (1) for lack of
good cause under Rule 16(b), and (2) because the proposed amendments are futile under
Rule 15(a). [Doc. 90; Doc. 91]. 2 The Court’s analysis begins and ends at the first step of
the two-part inquiry because it respectfully agrees with Defendants that Mr. Loma has
failed to show the diligence required to meet the good cause standard under Rule 16(b).
Plaintiff fails to address good cause under Rule 16. Because Mr. Loma seeks
leave to amend after the deadline set forth in the Scheduling Order, he must first satisfy
the requirements of Rule 16(b). This standard “requires the moving party to show that it
has been diligent in attempting to meet the deadlines, which means it must provide an
adequate explanation for any delay.” Strope v. Collins, 315 F. App’x 57, 61 (10th Cir.

The Allied Defendants argue that Mr. Loma’s proposed amendment is futile because his
malicious prosecution claim cannot survive summary judgment under federal or state law.
[Doc. 91]. Sergeant Berger argues that Mr. Loma’s proposed Second Amended
Complaint is futile because it reasserts claims that have already been dismissed. [Doc.
90].
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2009); Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006). Plaintiff’s
Motion to Amend neither explains his delay in seeking amendment nor otherwise
addresses Rule 16. [Doc. 87]. Even after both Responses identified the two-step inquiry
applicable to motions to amend filed after the deadline to amend pleadings and expressly
argued that the Motion should be denied for lack of good cause, Mr. Loma’s Reply failed
to present any substantive good cause argument in support of his Motion. See generally
[Doc. 92]. Mr. Loma’s Motion is simply deficient. See Perez v. Denver Fire Dep’t, 243 F.
Supp. 3d 1186, 1199 (D. Colo. 2017) (“[T]he application of Rule 16(b)’s good-cause
standard is not optional.”), aff’d, 724 F. App’x 646 (10th Cir. 2018).
Plaintiff fails to demonstrate diligence. Rather than address any good cause
for his delay, Mr. Loma emphasizes that the true nature of his malicious prosecution claim
against the Allied Defendants was “acknowledged long ago by all parties,” [Doc. 92 at 3],
and “memorialized” in the Scheduling Order entered on July 26, 2023, [Doc. 87 at ¶ 10].
In analyzing good cause, however, the Court focuses on Mr. Loma’s diligence in seeking
leave to amend, not the prejudice to the opposing party. See Colo. Visionary Acad. v.
Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000). Mr. Loma also characterizes his
failure to seek leave to amend the Amended Complaint as contemplated by the
Scheduling Order as merely a “technical misstep[] by counsel” and an “inartful pleading
error.” [Doc. 87 at ¶¶ 10, 17; Doc. 92 at 3]. These arguments do not meet the Rule 16(b)
standard.
To be sure, “[t]he Federal Rules reject the approach that pleading is a game of skill
in which one misstep by counsel may be decisive to the outcome and accept the principle
that the purpose of pleading is to facilitate a proper decision on the merits.” Foman v.

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Davis, 371 U.S. 178, 181–82 (1962) (quotation omitted); see also Fed. R. Civ. P. 1 (the
Federal Rules “should be construed, administered, and employed by the court and the
parties to secure the just, speedy, and inexpensive determination of every action and
proceeding.”). And the Court recognizes that “inadvertence is near inevitable in the
practice of law and in life generally.” Landon v. Winston Hosp., Inc., No. 20-cv-01547MEH, 2021 WL 463624, at *4 (D. Colo. Feb. 9, 2021). But good cause “is interpreted
narrowly, and oversight, mistake of counsel, or ignorance of the rules is usually not
considered good cause.” Forzani v. Peppy Prods., No. 18-cv-01715-RM-KLM, 2018 WL
5845051, at *4 (D. Colo. Nov. 8, 2018). Proper pleading is fundamental to any lawsuit,
as contemplated by the Federal Rules of Civil Procedure, and Mr. Loma is represented
by counsel, so he is not entitled to a liberal construction of his filings. See Mann v.
Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007). And the second Scheduling Order
makes clear that Plaintiff understood, and the Court expected, that Mr. Loma would seek
amendment of the operative pleading “to account for the remaining claims and to clarify
the basis for the Colorado tort claims agains [sic] Allied Universal Security Defendants.”
[Doc. 76 at 4]. Indeed, this language is reflected in the proposed second Scheduling
Order submitted by Plaintiff himself. See [Doc. 74 at 5].
This Court cannot overlook the fact that Mr. Loma failed to promptly correct his
“inartful pleading error.” [Doc. 87 at ¶ 17]. Mr. Loma fails to explain why he waited until
April 29, 2024—ten months after the entry of the second Scheduling Order and nearly
eight months after the deadline to amend pleadings—to seek leave to amend his
Amended Complaint. See generally [id.]. Given Mr. Loma’s months-long delay in seeking
leave to amend when he clearly understood he was required to act and his failure to

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provide any explanation for that delay, the Court cannot conclude that he acted diligently
in pursuing his requested amendment. White, 2015 WL 13215286, at *3; cf. Est. of
Medina v. Samuels, No. 20-cv-01443-NYW, 2022 WL 194480, at *6 (D. Colo. Jan. 21,
2022) (the movant did not act diligently when it waited five months after discovering new
information to file a motion to amend). Thus, Mr. Loma has not demonstrated that he
acted with sufficient diligence to meet the good-cause standard under Rule 16(b). See
Landon, 2021 WL 463624, at *3 (finding no good cause under Rule 16(b) where the
proposed amendment would not substantively alter the case, but where the plaintiff was
aware of the basis for amendment at least three months prior to moving to amend); Colo.
Visionary Acad., 194 F.R.D. at 687 (“Carelessness is not compatible with a finding of
diligence and offers no reason for a grant of relief.”). As the Landon court concluded,
even in the absence of prejudice to the defendant or bad faith on the part of plaintiff, “[t]o
permit inadvertence to satisfy a finding of good cause would render the good cause
standard to be nothing more than empty words on page.” Landon, 2021 WL 463624, at
*4.
Accordingly, the Court need not address the Rule 15 standards for leave to amend.
See Husky Ventures, Inc. v. B55 Invs., Ltd., 911 F.3d 1000, 1020 (10th Cir. 2018) (finding
that the failure to assert an argument pursuant to Rule 16(b) is alone a sufficient basis to
deny a motion to amend); Gorsuch, 771 F.3d at 1242 (“Having concluded [the movants]
lacked good cause to amend their pleadings after the scheduling order deadline, we need
not reach the Rule 15(a) issue, and decline to do so.”).

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CONCLUSION
For the foregoing reasons, it is ORDERED that:
(1)

Plaintiff Brian Loma’s Motion for Leave to File a Second Amended
Complaint [Doc. 87] is DENIED; and

(2)

Plaintiff SHALL FILE a response to the Allied Defendants’ Motion for
Summary Judgment [Doc. 81] on or before November 1, 2024.

DATED: October 23, 2024

BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge

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