Salazar v. Continental Construction of Montana
Filing
138
ORDER granting 92 Motion to Amend Complaint. Salazar shall promptly file his amended pleading. Signed by Magistrate Carolyn S Ostby on 7/11/2012. (JDH, ) Modified on 7/12/2012 to change to written opinion. (NOB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
JUAN SALAZAR,
CV 11-16-BLG-CSO
Plaintiff,
ORDER GRANTING
PLAINTIFF’S MOTION TO
AMEND COMPLAINT
vs.
CONTINENTAL CONSTRUCTION
OF MONTANA, LLC, A&J
CONSTRUCTION OF MONTANA,
INC., and JOHN DOES A-ZZ,
Defendants.
Plaintiff Juan Salazar (“Salazar”) has moved to amend his
Complaint. DKT 92. Defendants A&J Construction of Montana, Inc.
(“A&J”), and Continental Construction of Montana, LLC
(“Continental”) object. Id. at 1-2. A&J filed a response brief, DKT 103,
but Continental did not. On June 22, 2012, Salazar filed his reply brief.
DKT 114. Thus, the motion is ripe for decision. For the reasons
discussed below, the Court will grant the motion.
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I.
BACKGROUND1
The Court issued a Scheduling Order on July 14, 2011, setting
September 15, 2011, as the deadline for the parties to file motions to
amend the pleadings. DKT 39 at 2. Salazar filed the motion at hand
on May 21, 2012. DKT 92.
II.
PARTIES’ ARGUMENTS
Salazar seeks to amend his complaint to add, among other
allegations, fraud and constructive fraud claims against A&J, including
a request for punitive damages stemming from those claims. Salazar’s
Br. (DKT 93) at 3. Salazar argues that his request to amend arises
from information unearthed during recent discovery, including that: (1)
Continental contracted with A&J for A&J to complete framing on a
Yellowstone Club project known as Slopeside 504; (2) the contract
precluded A&J from subcontracting any work to other subcontractors;
(3) the vast majority of A&J workers are undocumented immigrants
from Mexico, which was known to A&J; (4) Salazar’s two supervisors
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This matter’s background is reflected in the record and is wellknown to the parties. The Court will not recite it here except as
necessary to address the motion at hand.
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required him to obtain an Independent Contractor Exemption Form or
Certificate as a prerequisite to working for A&J, which documentation
was prepared by Sandra Armstrong or another agent of an A&J
subcontractor; (5) this information was known to A&J; and (6) despite
all of this, A&J and its subcontractors had control over the specific
details of Salazar’s work. Id. at 4-6.
A&J responds that the Court should deny Salazar’s motion
arguing that his proposed amendment is futile. A&J’s Resp. Br. (DKT
103). A&J argues that under Rule 16(b)(4),2 Salazar must show “good
cause” for amending his Complaint. A&J maintains that, because
Salazar’s proposed amendment is futile, good cause is lacking. Id. at 23. Specifically, A&J argues that amendment is futile because: (1) under
Gonzales v. Walchuk, 59 P.3d 377 (Mont. 2002), Salazar need not
amend his Complaint to contend that was an employee of subcontractor
Alcarez Construction, Inc., to state a claim for fraud because he already
alleges in his Complaint that he was an Alcarez employee, id. at 5-6;
and (2) if the Court or the jury determines that Salazar is an
2
References to rules are to the Federal Rules of Civil Procedure
unless otherwise indicated.
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independent contractor, Salazar does not have a claim for relief under
his fraud claims, id. at 6-21.
III. DISCUSSION
Where, as here, the deadline for amending pleadings has passed,
Salazar must first show “good cause” for the amendment, pursuant to
both Rule 16(b) and the Scheduling Order. DKT 39 at 1. This “good
cause” standard considers primarily the diligence of the party seeking
the amendment. See Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 609 (9th Cir. 1992). Having considered the parties’ arguments, the
Court concludes that Salazar diligently sought amendment.
As noted above, information upon which Salazar relies in seeking
to amend his Complaint came to light during recent discovery. In
support of his motion, Salazar references testimony given in
depositions taken on May 3, 2012. DKT 93-3 at 1 (Diane Foster Depo.)
and at 8 (Sandra Armstrong Depo.). He also notes that it was not until
May 3, 2012, that he was provided the Independent Contractor
Exemption Certificate for Juan Salazar Construction. Salazar’s Reply
Br. (DKT 114) at 2. Salazar filed his motion to amend his Complaint on
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May 21, 2012. DKT 92.
Although adherence to deadlines dictated by the Federal Rules of
Civil Procedures and the Court’s scheduling orders is required, some
leeway must be afforded where necessary to ensure that substantial
justice is done. Information that came to light during discovery
reasonably altered Salazar’s theories of recovery in relation to A&J.
Although Salazar’s motion to amend failed to comply with the
scheduling order deadline, that fact alone does not compel the
conclusion that he was not diligent in seeking leave to amend. The
minimal amount of time between Salazar’s awareness of the newlydiscovered information and his filing of the motion to amend lead the
Court to conclude that Salazar was diligent in moving to amend and
that he satisfied Rule 16's “good cause” requirement.
Having found “good cause” under Rule 16(b), the Court turns to
Rule 15(a) to determine whether amendment should be allowed. Under
Rule 15(a), “leave to amend should be granted unless amendment
would cause prejudice to the opposing party, is sought in bad faith, is
futile, or creates undue delay.” See Johnson v. Mammoth Recreations,
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Inc., 975 F.2d at 607.
A&J has neither argued nor shown that amendment would cause
unfair prejudice, is sought in bad faith, or would create undue delay in
the proceedings. Rather, A&J relies solely on its argument that
Salazar’s amendment to add fraud and constructive fraud claims
against it would be futile. The Court is not convinced.
A&J argues that Salazar has failed to present sufficient facts to
support the claims he seeks to assert through his proposed Amended
Complaint. But whether A&J’s position has merit must await further
development of the record. At this point, it cannot be said that Salazar
can prove no set of facts to support the claims he seeks to add. Thus,
A&J’s argument that amendment would be futile fails.
The Court is mindful that “[c]ourts are free to grant a party leave
to amend whenever ‘justice so requires’, Fed.R.Civ.P. 15(a)(2). Moss v.
U.S. Secret Service, 573 F.3d 962, 971 (9th Cir. 2009). Accordingly, and
for all of the foregoing reasons, the Court concludes that the motion to
amend should be granted.
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IV.
CONCLUSION
Based on the foregoing, IT IS ORDERED that Salazar’s motion to
amend (DKT 92) is GRANTED. Salazar shall promptly file his
amended pleading.
DATED this 11th day of July, 2012.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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