McCubbin v. Weber County et al
MEMORANDUM DECISION AND ORDER DENYING OGDEN CITY'S MOTION FOR LEAVE TO AMEND ITS ANSWER-denying 76 Motion to Amend/Correct Its Answer. Signed by Judge Clark Waddoups on 8/4/17. (jmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
LELAND KIM MCCUBBIN, JR. and
DANIEL JOSEPH LUCERO,
MEMORANDUM DECISION & ORDER
DENYING OGDEN CITY’S MOTION
FOR LEAVE TO AMEND ITS ANSWER
Consolidated Case Nos. 1:15-cv-132 &
WEBER COUNTY, OGDEN CITY,
CHRISTOPHER ALLRED, in his official
capacity, and DOES 1-10
Judge Clark Waddoups
Defendant Ogden City has moves the court for leave to amend its answer, (Dkt. No. 76).
Upon review of the briefing, the court finds oral argument unnecessary to resolve this motion.
Because the court concludes Ogden City has not established good cause for amendment, the
court DENIES Ogden’s Motion, (Dkt. No. 76).
On October 16, 2015, Plaintiffs filed separate complaints alleging a “gang injunction”
obtained by Weber County and Ogden City had violated their federal and state constitutional
rights. (Dkt. No. 2.) In March 2016, the court consolidated the cases. (Dkt. No. 30.) The court
granted Plaintiffs leave to amend their complaints on September 14, 2016, (Dkt. No. 49), and
Ogden filed its answer to the Amended Complaint on September 30, 2016, (Dkt. No. 56).
On October 11, 2016, the court entered a scheduling order based upon the parties’
attorney planning report. (Dkt. No. 59.) The scheduling order set a February 10, 2017 deadline
for the parties to amend their pleadings. (Id.) 1
On June 29, 2017, Ogden filed a Motion for Leave to Amend Its Answer to include
affirmative defenses for res judicata, collateral estoppel, issue preclusion, claim preclusion,
and/or the Rooker-Feldman doctrine based on the state court’s prior ruling that the injunction at
issue in this case did not violate the Constitution. (Dkt. No. 76.) Ogden argues that under Federal
Rule of Civil Procedure 15(a) justice requires that the court grant its requested amendment
because Plaintiffs will not be prejudiced, Ogden has not unduly delayed, and amendment is not
futile. (See id. at 5-6.) Because Plaintiffs identified the state court ruling in their initial
disclosures and discovery responses, Ogden argues, Plaintiffs knew of the grounds for these
defenses from the outset of the case and therefore are not prejudiced by amendment now. (See id.
at 5.) In addition, Ogden states it has not unduly delayed in seeking amendment because it filed
this motion “immediately . . . upon determining that the state court’s ruling regarding due
process could apply to Plaintiffs’ claims.” (Id.)
Plaintiffs opposed the motion on the grounds that these defenses would be meritless
considering the Utah Supreme Court voided the injunction ab initio, and so any ruling by the
state court below on the constitutionality of the injunction or the Plaintiffs’ claims no longer
stands. (See Dkt. No. 78 at 2-4.) Plaintiffs also assert that Ogden has long known of these
potential defenses and that Ogden has not explained its delay in seeking amendment now. (See
id. at 4-5.) Finally, Plaintiffs argue that allowing amendment would prejudice them by requiring
them to face and defend against these defenses now and in the future. (See id. at 5-6.)
In its reply, Ogden shifts its rationale underlying the motion: instead of basing these
On March 21, 2017, the parties moved to amend the scheduling order, but did not change the
deadline to amend pleadings. The court entered the amended scheduling order the next day,
which maintained the then-passed amendment deadline of February 10, 2017. (See Dkt. No. 69.)
defenses on the state court’s ruling––a ruling on which Ogden concedes it cannot rely––Ogden
contends that the Plaintiffs’ state court PCRA petitions provide the basis to assert these
affirmative defenses. (See Dkt. No. 79 at 1-2.) Ogden further argues that the defenses are
meritorious; that amendment serves the interests of consistency, fairness, and judicial economy;
and, again, that amendment would not prejudice the Plaintiffs. The only explanation Ogden
provides for why it did not plead these defenses initially or file this motion before the
amendment deadline is that Ogden “needed time to fully evaluate all of the pleadings in the
Plaintiffs’ Utah state court PCRA cases, which were extensive.” (Id. at 11.)
Because Ogden seeks to amend its answer after the time for amendment under the court’s
scheduling order has expired, 2 it must demonstrate both “(1) good cause for seeking modification
under Fed. R. Civ. P. 16(b)(4) and (2) satisfaction of the Rule 15(a) standard.” Gorsuch, Ltd.,
B.C. v. Wells Fargo Nat. Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014). The court begins by
considering Rule 16’s good cause requirement. See id. at 1241–42.
“Rule 16(b)’s ‘good cause’ standard is much different than the more lenient standard
contained in Rule 15(a). 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.” Colorado Visionary Acad. v.
Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000) (quoting Dilmar Oil Co., Inc. v. Federated
Mutual Ins. Co., 986 F. Supp. 959, 980 (D.S.C. 1997)). 3
As discussed, the parties were required under the scheduling order to amend their pleadings no
later than February 10, 2017. (Dkt. Nos. 59 & 69.)
Nowhere in the briefing do the parties address Rule 16’s good cause requirement. Ogden has
sophisticated counsel representing it, however, and Ogden’s failure to adequately explain its
delay in seeking to amend its answer, even absent other considerations, justifies denial of
The court has the discretion to determine whether the moving party has established good
cause in any particular case. Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th Cir. 2015).
In the Tenth Circuit, good cause “requires the movant to show the scheduling deadlines cannot
be met despite [the movant’s] diligent efforts.” Id. (alteration in original) (quoting Gorsuch, 771
F.3d at 1240). “Rule 16’s good cause requirement may be satisfied, for example, if a plaintiff
learns new information through discovery or if the underlying law has changed.” Id. “If the
plaintiff knew of the underlying conduct but simply failed to raise [the appropriate] claims,
however, the claims are barred.” Id.; accord Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462
(10th Cir. 1991) (“Where 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.”). Good cause to amend does not exist where a party
fails to bring an available claim due to an error of law or fact, a strategic decision, or a mere
oversight. See, e.g., Gorsuch, 771 F.3d at 1241–42 (concluding plaintiffs’ error of law did not
constitute good cause to amended their pleadings after the amendment deadline).
In Zisumbo v. Ogden Regional Medical Center, 801 F.3d 1185 (10th Cir. 2015), the
Tenth Circuit considered whether amendment beyond the scheduling order deadline should be
permitted. Id. at 1196. The plaintiff had sued his employer for race discrimination and retaliation
in violation of Title VII and for a violation of Utah law. He subsequently moved to amend his
complaint to add a § 1981 claim and additional state law claims based on the same facts
underlying the Title VII race discrimination claims. Id. at 1194. He offered two explanations for
the untimely amendment: first, that his lawyer did not realize until later that he could assert a §
1981 claim and, second, that he only learned of the facts necessary to assert the state law claims
amendment. See, e.g., Durham v. Xerox Corp., 18 F.3d 836, 840 (10th Cir. 1994)
(“[U]nexplained delay alone justifies the district court’s discretionary decision.”).
in discovery. Id. at 1196. The Court rejected both arguments, holding that amendment was not
appropriate because the plaintiff possessed all of the facts necessary to assert these claims well
before the deadline for amending the complaint had expired. Id. The court explained, “belated
realizations” that a claim not previously pled may be available, absent new facts, “do not justify
granting an untimely motion to add new claims.” Id. 4
Considering Ogden’s motion in light of the case law, the court concludes that Ogden has
not shown good cause to amend its answer. First, Ogden does not dispute that it failed to amend
its answer to assert additional affirmative defenses within the time permitted by the scheduling
order. Instead, Ogden asserts that it only learned of the basis for these defenses after reviewing
the Plaintiffs’ PCRA proceedings in state court. But Odgen was a party to both of the Plaintiffs’
state PCRA cases. (See Dkt. Nos. 79-1 through 79-7 (documents from Plaintiffs’ respective
PCRA cases).) The documents Ogden has submitted from the PCRA proceedings show that it
was served with relevant filings and rulings in those cases, and that both cases had ended by July
2016. (See Dkt. Nos. 79-4 & 79-7.) Thus, Ogden knew all of the facts and law necessary to raise
these defenses well before they filed their answer.
In fact, Ogden’s answer entirely consists of twenty-three defenses, with a blanket denial
of all allegations in the Amended Complaint embedded in the Second Defense. (See Dkt. No.
56.) Ogden’s decision not to plead these additional defenses based on documents it had in its
possession at the time and proceedings to which it was a party—whether the result of a strategic
decision, an erroneous assumption of law or fact, or mere oversight—does not present grounds
for amendment now, nearly six months after the amendment deadline has passed. See Birch, 812
F.3d at 1248–49 (10th Cir. 2015) (“Because Appellants ‘knew of the underlying conduct but
Notably, the Court in Zisumbo considered this issue under Rule 15’s more lenient standard. 801
F.3d 1185, 1196 (10th Cir. 2015).
simply failed to raise [their] claims,’ Gorsuch, 771 F.3d at 1240, they cannot establish ‘good
cause’ under Rule 16.”). Ogden cannot tenably suggest that it learned of these defenses only
after it received Plaintiffs’ initial disclosures, or that it took until June 2017 to review the PCRA
proceedings and realize these affirmative defenses might apply to this case. Accordingly, Rule
16(b)(4) prohibits amendment here.
This conclusion makes it unnecessary for the court to consider whether amendment
would be permitted under Rule 15(a)’s more lenient standard. See Gorsuch, 771 F.3d at 1242
(“Having concluded [plaintiffs] 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.”); accord Birch,
812 F.3d at 1249. As noted above, however, the court would find that Ogden has failed to
adequately justify its delay in seeking to amend its answer and deny the Motion under Rule 15(a)
For the foregoing reasons, the court DENIES Ogden’s Motion for Leave to Amend its
Answer, (Dkt. No. 76).
DATED this 4th day of August, 2017.
BY THE COURT:
United States District Judge
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