Johnson v. Murray, City of et al

Filing 63

MEMORANDUM DECISION denying 20 Motion to Amend/Correct. Signed by Magistrate Judge Evelyn J. Furse on 10/18/2012. (asp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DIANNA JOHNSON,

MEMORANDUM DECISION AND
ORDER
Plaintiff,

v.

Case No. 2:10-cv-01130-TS-EJF

CITY OF MURRAY, a political subdivision of
the State of Utah, and PETER A. FONDACO,
in his official and individual capacities,

District Judge Ted Stewart
Magistrate Judge Evelyn J. Furse

Defendants.

Before the Court is Defendants City of Murray (“Murray City”) and Peter A. Fondaco’s
(collectively, “Defendants”) Motion to Amend Answer to Second Complaint. (Docket No. 20.)
At issue is what burden Defendants must meet in order to amend their Answer after the deadline
for amending pleadings has expired. Specifically, whether Defendants must satisfy the good
cause standard for modifying a schedule under Federal Rule of Civil Procedure 16(b)(4) and the
excusable neglect standard of Rule 6(b)(1)(B). The Court has carefully reviewed the motion and
parties’ memoranda. Pursuant to Civil Rule 7-1(f) of the Rules of Practice for the United States
District Court for the District of Utah, the Court has concluded that it does not need to hear oral
argument and will determine the motion on the basis of the written memoranda. See DUCivR71(f). For the reasons set forth below, the Court DENIES Defendants’ Motion.
BACKGROUND
Plaintiff Dianna Johnson brought this employment discrimination action against Murray
City and Peter A. Fondaco asserting causes of action under Title VII and 42 U.S.C. § 1983,

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among other claims. Then-Magistrate Judge David Nuffer1 entered a scheduling order setting an
August 31, 2011, deadline to amend pleadings. (Docket No. 10.) On April 2, 2012,
approximately seven months after this deadline passed, Defendants filed their motion to amend.
Defendants seek to amend their answer to include an additional defense as follows:
Defendant Murray City has implemented and disseminated
antidiscrimination, anti-harassment and anti-retaliation policies to its
employees to prevent the type of conduct raised herein by the Plaintiff and
worked to promptly resolve any complaints that were raised under such
policies and thus should avoid any liability for any damages.
(Defs.’ Mot. to Amend, Docket No. 20.) As grounds for adding this defense at this stage
of the litigation, Defendants state they learned of facts creating a good faith basis for this
additional defense only after deposing the Plaintiff and one of her co-workers on
February 2 and March 1, 2012, respectively.
DISCUSSION
Rule 15 states that where a party seeks to amend a pleading other than as a matter
of course, it “may amend its pleading only with the opposing party’s written consent or
the court’s leave. The court should freely give leave when justice so requires.” Fed. R.
Civ. P. 15(a)(2). Because Defendants bring their motion after the expiration of the
deadline set forth in the scheduling order, this Court must determine what burden
Defendants must meet in order to amend their Answer at this stage of the litigation. The
parties focused their briefing on whether the good cause standard of Rule 16(b)(4) applies
and, if it does, whether Defendants have met that standard.2

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Judge Nuffer subsequently became a district judge for the District of Utah.

2

Plaintiff, alleging that a dissonance exists in this District’s decisions regarding the
applicable standard in this situation, requests that the undersigned “definitively determine and
state what standard applies.” (Pl.’s Mem. Opp. 3, Docket No. 29.) The undersigned, however,
2

Some circuits require a party seeking leave to amend the pleadings after the
expiration of a scheduling order deadline to satisfy the good cause standard of Rule
16(b)(4). E.g., Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000).
Ignoring Rule 16 in these circumstances would “render scheduling orders meaningless
and effectively would read Rule 16(b) and its good cause requirement out of the Federal
Rules of Civil Procedure.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir.
1998) (per curiam).
The Tenth Circuit “has not yet considered whether Rule 16(b)(4) must be met
when motions to amend pleadings would necessitate a corresponding amendment of
scheduling orders.” U.S. ex rel. Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1166
(10th Cir. 2009) (citing Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir.
2006)). Notwithstanding the Tenth Circuit’s silence, some courts within the Tenth
Circuit have applied a two-step analysis requiring a party seeking leave to amend first to
show good cause under Rule 16 and then to meet the more liberal standard of Rule 15.
E.g., Colorado Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687-88 (D. Colo.
2000) (discussing and applying two-step analysis).
While Rule 16(b)(4) speaks to general modification of scheduling orders, when an
extension of time is requested after the expiration of the relevant deadline, Rule
6(b)(1)(B) requires a showing of excusable neglect. Here, Defendants seek to amend
after the deadline to do so has passed. The scheduling order in this case set the deadline
for amendments to pleadings at August 31, 2011. Defendants filed this motion on April
2, 2012, well after this deadline passed. As such, this Court must first determine whether

cannot settle this matter beyond the instant motion. In any case, courts decide each motion based
upon the merits and unique facts of the case.
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Defendant can show excusable neglect under Rule 6(b)(1)(B). See accord, Washington v.
People’s Choice Home Loan, Inc., No. RWT 09cv1475, 2011 WL 1791937, at *2 (D.
Md. May 9, 2011). If the Court finds excusable neglect, it must then determine whether
to allow leave to amend under Rule 15(a).3
Rule 6(b)(1)(B) – Excusable Neglect
In the Tenth Circuit,
[t]o determine whether the neglect is “excusable,” the court must take
account of all relevant circumstances surrounding the party’s omission,
including “the danger of prejudice to the [non-moving party], the length of
the delay and its potential impact on judicial proceedings, the reason for
the delay, including whether it was within the reasonable control of the
movant, and whether the movant acted in good faith.”
Stringfellow v. Brown, No. 95-7145, 1997 WL 8856, at *1 (10th Cir. Jan. 10, 1997)
(unpublished) (alteration in original) (quoting Pioneer Inv. Servs. Co. v. Brunswick
Assoc. Ltd., 507 U.S. 380, 395 (1993)). “Control over the circumstances of the delay is
‘the most important single . . . factor . . . in determining whether neglect is excusable.’”
Id. (quoting City of Chanute v. Williams Nat. Gas Co., 31 F.3d 1041, 1046 (10th
Cir.1994)).

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Some cases apply both the excusable neglect standard of Rule 6(b)(1)(B) and the good
cause standard of Rule 16(b)(4). See Weil v. Carecore Nat. LLC, No. 10-cv-00799-CMA-CBS,
2011 WL 1938196, at *2 (D. Colo. May 19, 2011) (unpublished) (citing cases applying Rule
6(b)(1)(B) and Rule 16(b)(4) where parties seek leave to amend a pleading after the deadline to
do so). However, it would appear that where a party in this situation is able to show excusable
neglect under Rule 6(b)(1)(B), which itself embodies a good cause requirement, it will
necessarily be able to show good cause under Rule 16(b)(4), thereby rendering the second
inquiry redundant. Some courts have equated excusable neglect with good cause in other
contexts. See Sweetwater Investors, LLC v. Sweetwater Apartments Loan, LLC, No. 1:10-CV223-WKW [WO], 2011 WL 1545076, at *2 n.2 (M.D. Ala. Apr. 25, 2011) (unpublished)
(recognizing that in “another context, ‘good cause’ has been equated with ‘excusable neglect.’”
(citation omitted)).
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As explanation for their delay in seeking to amend, Defendants state they only
learned of facts providing a good faith basis to bring this additional defense after
deposing the Plaintiff and a co-worker on February 2 and March 1, 2012, respectively.
(Defs.’ Mem. Supp. 2, Docket No. 20.) The additional defense that Defendants now seek
to add, however, does not appear to rely upon any information learned from deposing the
Plaintiff and her co-worker. Defendants should have known from the beginning of this
action whether Murray City had anti-discrimination policies and whether it took action to
resolve Plaintiff’s complaints. Defendants fail to provide any legitimate reason why they
had no awareness of the basis for this defense, which concerns their own actions, before
the amendment deadline and have thus failed to show excusable neglect.
Rule 16(b)(4) – Good Cause
If Rule 16 not Rule 6 provides the proper standard, this Court would have to deny
Defendants motion to amend for failure to state good cause under Rule 16(b)(4). Rule
16’s good cause standard “focuses on the diligence of the party seeking leave to modify
the scheduling order to permit the proposed amendment.” Medtronic, Inc., 194 F.R.D. at
687 (quoting 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)).
Here, Defendants do not adequately explain why they could not initially plead the
defense they now seek to add. Indeed, the information upon which the defense relies
appears to fall within Defendants’ control. As discussed above, Defendants should have
known from the outset whether they had anti-discrimination policies in place and whether
they took action to resolve Plaintiff’s complaints. “[W]here the party seeking an
untimely amendment knows or should have known of the facts upon which the proposed

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amendment is based, but fails to assert them in a timely fashion, the motion to amend is
subject to denial.” Brigham Young Univ. v. Pfizer, Inc., No. 2:06-CV-890-TS-BCW,
2010 WL 2382593, at *2 (D. Utah June 14, 2010) (unpublished) (quoting Potts v. Boeing
Co., 162 F.R.D. 651, 653 (D. Kan. 1995)). See also State Distribs., Inc. v. Glenmore
Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984) (stating that motion to amend is
subject to denial where a party fails to include facts it already knows or should have
known in original complaint) (citation omitted). Because Defendants fail to offer an
adequate explanation for their delay, they also fail to show good cause under Rule
16(b)(4).
Rule 15(a) – Leave to Amend
Because Defendants have failed to show excusable neglect and/or good cause, this
Court need not reach the question of whether it should grant leave to amend pursuant to
Rule 15(a). However, were the Court to consider this question, Defendants would fail at
this stage also. The Tenth Circuit “focuses primarily on the reasons for the delay” and
has “held that denial of leave to amend is appropriate ‘when the party filing the motion
has no adequate explanation for the delay.’” Minter, 451 F.3d at 1206 (quoting Frank v.
U.S. West, 3 F.3d 1357, 1365-66 (10th Cir. 1993)). See also Birmingham v. Experian
Info. Sys., Inc., 633 F.3d 1006, 1020-21 (10th Cir. 2011) (“[A] district court has
discretion to deny a motion to amend as untimely when the movant’s delay is
unexplained.”); Durham v. Xerox Corp., 18 F.3d 836, 840 (10th Cir. 1994)
(“[U]nexplained delay alone justifies the district court’s discretionary decision.”).
Lacking an adequate explanation for the delay, Defendants, without more, may not
amend.

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CONCLUSION
For the reasons set forth above, the Court DENIES Defendants’ Motion to Amend
Answer to Second Complaint (Docket No. 20).
DATED this 18th day of October, 2012
BY THE COURT: 

________________________________
EVELYN J. FURSE
United States Magistrate Judge

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