Von Collenberg et al v. Silverado Academy

Filing 62

MEMORANDUM DECISION AND ORDER granting in part and denying in part 36 Motion to Compel; denying 47 Motion to Quash; granting 55 Motion for Discovery; granting 56 Motion for Extension of Time; granting 39 Motion for Leave to File 3rd amended complaint. Signed by Magistrate Judge Paul M. Warner on 1/30/14 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
CRAIG VON COLLENBERG and
KATHERINE VON COLLENBERG,
husband and wife and guardians and next
friends of JOHN DOE 1, a minor; MARK
HAWKS and KIM HAWKS, husband and
wife and guardians and next friends of
JOHN DOE 2, a minor; ALISON PAINE,
guardian and next friend of JOHN DOE 3,
a minor; REGINA LASKY, an individual;
S.L., an individual; LEE STOECKLE, an
individual; and C.S., an individual,

MEMORANDUM DECISION
AND ORDER

Case No. 2:11-cv-574-DN-PMW

Plaintiffs,
v.
SILVERADO ACADEMY, LLC,
Defendant.

District Judge David Nuffer
Magistrate Judge Paul M. Warner

District Judge David Nuffer referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A). 1 Before the court are the following discovery motions:
Plaintiffs’ motion to compel; 2 Defendant’s motion to quash a subpoena; 3 Defendant’s motion for
examinations of Plaintiffs pursuant to rule 35 of the Federal Rules of Civil Procedure, 4 see Fed.

1

See docket no. 38.

2

See docket no. 36.

3

See docket no. 47.

4

See docket no. 55.

R. Civ. P. 35; and Defendant’s motion to extend its expert report deadline. 5 Also before the court
is Plaintiffs’ motion for leave to file a third amended complaint. 6 The court has carefully
reviewed the written memoranda submitted by the parties. 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 oral argument is not necessary and will determine the motions on the basis of the
written memoranda. See DUCivR 7-1(f).
I. Discovery Motions
As noted above, the following discovery motions are before the court: (A) Plaintiffs’
motion to compel, (B) Defendant’s motion to quash a subpoena, (C) Defendant’s motion for
examinations of Plaintiffs pursuant to rule 35, and (D) Defendant’s motion to extend its expert
report deadline. After setting for the legal standards governing those motions, the court will
address them in turn.
“The district court has broad discretion over the control of discovery, and [the Tenth
Circuit] will not set aside discovery rulings absent an abuse of that discretion.” Sec. & Exch.
Comm’n v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010) (quotations and
citations omitted). The general scope of discovery is governed by rule 26(b)(1) of the Federal
Rules of Civil Procedure, which provides that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense. . . . For good cause, the
court may order discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the discovery appears reasonably
5

See docket no. 56.

6

See docket no. 39.
2

calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). The
Advisory Committee Notes for the 2000 Amendments to rule 26 direct parties and courts to
“focus on the actual claims and defenses involved in the action” in determining relevance for
purposes of discovery. Fed. R. Civ. P. 26 Advisory Committee Notes, 2000 Amendments,
Subdivision (b)(1). With respect to limiting discovery, rule 26(b)(2)(C)(iii) provides that
[o]n motion or on its own, the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by local
rule if it determines that . . . the burden or expense of the proposed
discovery outweighs its likely benefit, considering the needs of the
case, the amount in controversy, the parties’ resources, the
importance of the issues at stake in the action, and the importance
of the discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C)(iii).
In In re Cooper Tire & Rubber Company, 568 F.3d 1180 (10th Cir. 2009), the Tenth
Circuit clarified that the 2000 Amendments to rule 26 “implemented a two-tiered discovery
process; the first tier being attorney-managed discovery of information relevant to any claim or
defense of a party, and the second being court-managed discovery that can include information
relevant to the subject matter of the action.” Id. at 1188. The Tenth Circuit further stated that
when a party objects that discovery goes beyond that relevant to
the claims or defenses, “the court would become involved to
determine whether the discovery is relevant to the claims or
defenses and, if not, whether good cause exists for authorizing it so
long as it is relevant to the subject matter of the action.” This
good-cause standard is intended to be flexible. When the district
court does intervene in discovery, it has discretion in determining
what the scope of discovery should be. “[T]he actual scope of
discovery should be determined according to the reasonable needs
of the action. The court may permit broader discovery in a
particular case depending on the circumstances of the case, the

3

nature of the claims and defenses, and the scope of the discovery
requested.”
Id. at 1188-89 (quoting Fed. R. Civ. P. 26 Advisory Committee Notes, 2000 Amendments,
Subdivision (b)(1)) (citations and footnote omitted) (alteration in original).
A. Plaintiffs’ Motion to Compel
In their motion to compel, Plaintiffs seek compelled responses from Defendant for certain
discovery requests, both from their first set of discovery requests and their second set of
discovery requests. The court will address the requests at issue below.
Before reaching the requests, however, the court notes that Plaintiffs have presented
arguments concerning only whether the discovery requests at issue seek information that is
relevant. Plaintiffs have not presented any arguments on the issue of whether there is good cause
to support expanding the scope of discovery to include not just information that is relevant to the
claims and defenses in this case, but also information that is relevant to the subject matter of this
case. See id. Accordingly, the court will not reach that issue. Instead, the court will focus only
on whether the information sought by the discovery requests is relevant to the claims and
defenses in this case. See id.
1. Plaintiffs’ First Set of Discovery Requests
Plaintiffs seek compelled responses from Defendant for the following discovery requests
from their first set of discovery requests: Interrogatories No. 1-3, 9-14; and Requests for
Production No. 3 and 8. The court will address those discovery requests, grouping them together
by subject matter when appropriate.

4

a. Interrogatories No. 1-2
Interrogatory No. 1 asks Defendant to identify each owner, officer, director, and
employee of Defendant from 2008 to the present. Interrogatory No. 2 asks Defendant to provide
the hire date, end employment date, job description, and immediate supervisor of each person
identified in Interrogatory No. 1. Defendant objected to these interrogatories as being overly
broad, burdensome, unlimited as to time, and not reasonably calculated to lead to the discovery
of admissible evidence. Subject to those objections, Defendant provided a response to
Interrogatory No. 1, but identified only owners, officers, directors, and employees other than
general staff. Defendant provided no response to Interrogatory No. 2, but instead referred
Plaintiffs to its objections to another interrogatory.
The court concludes that the information sought by these interrogatories is relevant to
Plaintiffs’ claims in this case. The court concludes that Defendant’s objections are not well taken
and that its unilateral decision to omit general staff in its response to Interrogatory No. 1 was
improper. Further, the court concludes that Defendant should be required to respond to
Interrogatory No. 2. Accordingly, this portion of Plaintiffs’ motion is granted. Within thirty (30)
days of the date of this order, Defendant shall provide full responses to Interrogatories No. 1 and
2.
b. Interrogatory No. 3
Interrogatory No. 3 asks Defendant to identify all students who were at Defendant’s
facility from January 2008 to the present, including dates, ages, parents, home addresses, and
telephone numbers for those students. Defendant objected to this interrogatory as being overly
burdensome and not reasonably calculated to lead to the discovery of admissible evidence.
5

Defendant further asserted, and reiterates in its response to Plaintiffs’ motion to compel, that
responding to this interrogatory would violate the privacy interests of former students.
The court agrees with Defendant’s argument concerning the privacy interests of
Defendant’s former students. Further, the court concludes that the burden of the information
sought by this interrogatory outweighs its likely benefit. See Fed. R. Civ. P. 26(b)(2)(C)(iii).
Finally, the court has determined that requiring Defendant to identify all students, without regard
to whether they experienced or witnessed any of the events that formed the basis for this lawsuit
or any similar events, exceeds the bounds of relevance for purposes of discovery. Accordingly,
this portion of Plaintiffs’ motion is denied.
c. Interrogatories No. 9-10
Interrogatory No. 9 asks Defendant to identify all persons, officers, directors, employees,
and parents with knowledge of the inappropriate and/or illegal sexual activity by Eric Glosson
(“Glosson”), the person who committed the alleged abuse in this case. Interrogatory No. 10 asks
Defendant to identify the name, current or last-known address, and telephone number for each
and every person who has or claims to have knowledge of any facts relevant to the issues in this
lawsuit and to state in detail all such facts. Defendant objected to these interrogatories as being
vague and ambiguous as to time and the nature of the knowledge. Subject to those objections,
Defendant responded to Interrogatory No. 9 by stating that no employee of its facility other than
Glosson was aware of Glosson’s actions. Defendant further stated that some employees of its
facility became aware of Glosson’s actions after the fact, but none of them has personal
knowledge of those facts or was a witness to the alleged abuse. Defendant provided no response
to Interrogatory No. 10, but instead referred Plaintiffs to its responses and objections to
6

Interrogatories No. 9 and 11. Defendant’s response and objections to Interrogatory No. 11 are
substantively similar to Defendant’s response and objections to Interrogatory No. 9.
The court concludes that Defendant’s response to Interrogatory No. 9 is adequate. Put
simply, the court cannot compel Defendant to produce information that it claims it does not
possess. In addition, the court concludes that Defendant should not be required to respond to
Interrogatory No. 10 because it is overly broad. It does not limit Defendant’s response to
individuals under Defendant’s control or employ; instead, it asks Defendant to identify each and
every person who has or claims to have knowledge of any facts relevant to the issues in this
lawsuit. For these reasons, this portion of Plaintiffs’ motion is denied. In order to confirm that
Defendant has no responsive information to Interrogatory No. 9, Defendant shall, within thirty
(30) days of the date of this order, provide Plaintiffs with an affidavit to that effect. By providing
such an affidavit, Defendant is on notice that it may be precluded from using any laterdiscovered information that is responsive to Interrogatory No. 9 at trial, unless timely
supplement to the request is provided to Plaintiffs.
d. Interrogatories No. 11-12
Interrogatory No. 11 asks Defendant to state whether there have been, from 2008 to the
present, any complaints of abuse or mistreatment of students of any nature, other than those
made by Plaintiffs, against Defendant, its owners, its officers, its directors, and/or its employees.
Interrogatory No. 12 asks Defendant, provided the answer to Interrogatory No. 11 was
affirmative, to identify each and every person who made a complaint and provide, with
specificity, the claims and complaints made. Defendant responded to Interrogatory No. 11 by
stating that the only other complaints pertained to Glosson, and were not brought to light until
7

after Glossen’s actions were first discovered by Defendant. Defendant further responded to
Interrogatories No. 11 and 12 by asserting that it was prohibited by the Health Insurance
Portability and Accountability Act (“HIPAA”) from disclosing any additional information
without an appropriate court order.
The court concludes that the information sought by these interrogatories is relevant to
Plaintiffs’ claims in this case. Accordingly, this portion of Plaintiffs’ motion is granted. Within
thirty (30) days of the date of this order, Defendant shall provide full responses to Interrogatories
No. 11 and 12, consistent with and pursuant to this court order. However, Defendant’s responses
shall comply with any requirements imposed by HIPAA. Further, Defendant’s responses may be
made subject to an appropriate protective order indicating that the information provided is to be
used exclusively in this case. If a protective order is to be used, the parties are directed to
attempt to stipulate to such an order. If the parties are unable to agree on an order, they may
bring that issue before the court by way of an appropriate motion.
e. Interrogatories No. 13-14
Interrogatory No. 13 asks Defendant to identify all persons with whom any employee or
agent of Defendant has had any form of communication with Glosson. Interrogatory No. 14 asks
Defendant to identify each and every document comprising or relating to all communications
with the persons identified in Interrogatory No. 13. Among other reasons, Defendant objected to
these interrogatories as being overly broad and unduly burdensome.
The court agrees with Defendant and concludes that these interrogatories are overly broad
because that they seek information that exceeds what is relevant to Plaintiffs’ claims in this case.
They are unlimited as to subject matter and seek information about any form of communications
8

with Glosson. Further, requiring Defendant to respond to these interrogatories would impose a
substantial burden. The court concludes that said burden outweighs the likely benefit responses
to the interrogatories would provide because the responses would surely include information
about communications that have nothing to do with Plaintiffs’ claims in this case. See Fed. R.
Civ. P. 26(b)(2)(C)(iii). For those reasons, this portion of Plaintiffs’ motion is denied.
f. Request for Production No. 3
Request for Production No. 3 asks Defendant to provide all of Defendant’s financial
documents, records, papers, and other writings or things, showing or indicating payments made
or received from 2008 to the present. Defendant objected to this request on the grounds that it
seeks information that is irrelevant and not reasonably calculated to lead to the discovery of
admissible evidence.
Plaintiffs are seeking damages from Defendant in this case. As such, the financial
position and records of Defendant are relevant to Plaintiffs’ claims. Accordingly, this portion of
Plaintiffs’ motion is granted. Within thirty (30) days of the date of this order, Defendant shall
provide a full response to Request for Production No. 3. Defendant’s responses may be made
subject to an appropriate protective order indicating that the information provided is to be used
exclusively in this case. If a protective order is to be used, the parties are directed to attempt to
stipulate to such an order. If the parties are unable to agree on an order, they may bring that issue
before the court by way of an appropriate motion.
g. Request for Production No. 8
Request for Production No. 8 asks Defendant to produce, for 2008 to the present, a
complete set of any and all investigation reports, documents, records, papers, and other writings
9

or things showing or indicating complaints of any nature made against Defendant, its employees,
or its staff. Defendant responded to this request by stating that responsive documents are in the
possession of a law enforcement officer.
The court concludes that this request is overly broad because it seeks information that
would be clearly irrelevant to Plaintiffs’ claims in this case. The request is unlimited as to
subject matter and asks for information about any investigations and complaints of any nature.
Requiring Defendant to fully respond to this request would require it to produce information
about investigations or complaints that have no relation or relevance to Plaintiff’s claims in this
case. For those reasons, this portion of Plaintiffs’ motion is denied.
2. Plaintiffs’ Second Set of Discovery Requests
Plaintiffs seek compelled responses from Defendant for all of the discovery requests
contained in their second set of discovery requests. Plaintiffs contend that Defendant has not
objected or responded in any way to those requests. In its response to Plaintiffs’ motion,
Defendant acknowledges that its responses to Plaintiffs’ second set of discovery requests are past
due. Defendant asserts that because of various difficulties, it has been unable to provide
responses. Defendant maintains that it is working on providing responses as soon as possible.
It appears that Defendant has never requested an extension of time from Plaintiffs for
providing responses to Plaintiffs’ second set of discovery requests. It also appears that
Defendant has not provided preliminary responses that could be supplemented at a later date.
While the court understands that Defendant may be experience difficulties in obtaining
information to respond to Plaintiffs’ second set of discovery requests, it is not appropriate for
Defendant to unilaterally decide when it will provide said responses.
10

Accordingly, this portion of Plaintiffs’ motion is granted. Defendant shall provide full
responses to Plaintiffs’ second set of discovery requests within thirty (30) days of the date of this
order, barring further order of this court.
3. Reasonable Expenses
As part of their motion to compel, Plaintiffs request an award of the reasonable expenses,
including attorney fees, incurred in bringing their motion to compel. See Fed. R. Civ. P. 37(a)(5).
Because Plaintiffs’ motion to compel has been granted in part and denied in part, the court “may,
after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed.
R. Civ. P. 37(a)(5)(C). The court is not persuaded that an award of reasonable expenses for either
party is appropriate or justified under the circumstances. Accordingly, Plaintiffs’ request for an
award of reasonable expenses is denied.
B. Defendant’s Motion to Quash
In this motion, Defendant seeks to quash a subpoena allegedly served on Zions Bank by
Plaintiffs seeking Defendant’s banking and financial records. According to Plaintiffs, they
served Defendant with notice of their intent to serve the subpoena on Zions Bank, as required by
rule 45(b)(1) of the Federal Rules of Civil Procedure, but they never actually served the
subpoena on Zions Bank. See Fed. R. Civ. P. 45(b)(1). As such, Plaintiffs argue that the court
should deny Defendant’s motion because there has been no subpoena issued and, therefore, there
is no subpoena to quash.
The court agrees with Plaintiffs. Unless and until a subpoena is actually issued, there is
simply nothing for this court to quash. Accordingly, Defendant’s motion to quash is denied. If
and when the subpoena is actually served on Zions Bank, Defendant is free to renew its motion.
11

C. Defendant’s Motion for Rule 35 Examinations
Defendant moves the court for an order requiring Plaintiffs to submit to mental
examinations pursuant to rule 35. In relevant part, rule 35 provides:
(a) Order for an Examination.
(1) In General. The court where the action is pending may
order a party whose mental or physical condition--including
blood group--is in controversy to submit to a physical or
mental examination by a suitably licensed or certified
examiner. The court has the same authority to order a party to
produce for examination a person who is in its custody or
under its legal control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on
notice to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and
scope of the examination, as well as the person or persons
who will perform it.
Fed. R. Civ. P. 35(a)(1)-(2).
Rule 35 . . . requires discriminating application by the trial judge,
who must decide, as an initial matter in every case, whether the
party requesting a mental or physical examination or examinations
has adequately demonstrated the existence of the Rule’s
requirements of “in controversy” and “good cause,” which
requirements . . . are necessarily related.
Schlagenhauf v. Holder, 379 U.S. 104, 118-119 (1964). The Tenth Circuit “reviews discovery
decisions pertaining to Rule 35 examinations for an abuse of discretion.” Herrera v. Lufkin
Indus., 474 F.3d 675, 688 (10th Cir. 2007).
In this case, the court concludes that Defendant has established both the “in controversy”
and “good cause” requirements of rule 35. As Defendant has noted in its motion, Plaintiffs have
put their metal conditions squarely at issue and in controversy in this case. Indeed, Plaintiffs’
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most recent complaint alleges that Plaintiffs have suffered “severe psychological, mental and
emotional injuries including distress, fear, humiliation, injury to self-esteem, confusion,
intimidation, and additional and other injuries.” 7 In the court’s view, Defendant should not be
required to rely upon depositions of Plaintiffs’ health-care professionals to rebut Plaintiffs’
claims concerning their mental states, as Plaintiffs contend they should. The court reminds
Plaintiffs that they brought this lawsuit and put their mental conditions in controversy. As such,
Defendant should be entitled to employ rule 35 examinations to rebut Plaintiffs’ claims
concerning their mental conditions.
For these reasons, Defendant’s motion for rule 35 examinations is granted. The court
directs the parties to meet and confer in an attempt to find a mutually agreeable time to conduct
each of the rule 35 examinations. If those attempts are successful, Defendant shall submit to the
court an order in compliance with rule 35(a)(2), which sets for the requirements for an order for
rule 35 examinations. See Fed. R. Civ. P. 35(a)(2)(A)-(B). The court will then enter the order,
and the examinations may proceed. If those attempts are unsuccessful, the parties may bring the
issue before the court by way of an appropriate motion. The court admonishes counsel to make
every possible effort to reach agreement on the details of the rule 35 examinations. Those efforts
will ensure that the parties have some input with respect to those details, rather than leaving the
decisions on those details to the court, with results that may not be to the liking of either
Plaintiffs or Defendant.

7

Docket no. 34 at ¶ 28.
13

D. Defendant’s Motion to Extend Expert Report Deadline
In this motion, Defendant seeks an extension of its expert report deadline. Defendant
contends that its experts will need the results of the rule 35 examinations to complete their
reports and, accordingly, that it should have thirty (30) days from the date the rule 35
examinations are complete to submit its expert reports.
The court may extend deadlines in a case for good cause. See Fed. R. Civ. P. 6(b),
16(b)(4). Given the court’s decision to allow the rule 35 examinations, the court concludes that
Defendant has demonstrated good cause for extending its expert report deadline. Accordingly,
Defendant’s motion is granted. Defendant shall have thirty (30) days from the date the last rule
35 examination is complete to submit its expert reports.
II. Plaintiffs’ Motion for Leave to File Third Amended Complaint
In this motion, Plaintiffs seek leave of court to file a third amended complaint to add five
additional parties in individual capacities and add an alter-ego claim. Plaintiffs’ motion for leave
to amend their complaint is governed by rule 15(a)(2) of the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 15(a)(2). Under that rule, “[t]he court should freely give leave” to amend
pleadings “when justice so requires.” Id.; see also Foman v. Davis, 371 U.S. 178, 182 (1962).
The decision about whether to provide a party leave to amend its pleadings “is within the
discretion of the trial court.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006)
(quotations and citation omitted). “Refusing leave to amend is generally only justified 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.” Bylin
v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (quotations and citation omitted).
14

In response to Plaintiffs’ motion, Defendant argues that (A) the alter-ego claim contained
in Plaintiffs’ proposed amended complaint is futile; (B) the addition of two of Defendant’s
employees, Josh Kellum (“Kellum”) and Colin Adamson (“Adamson”) has been unduly delayed;
and (C) the addition of Kellum and Anderson is prejudicial. The court will address those
arguments in turn.
A. Futility
While the standard for leave to amend pleadings is liberal, it “is not limitless and must be
balanced against Fed. R. Civ. P. 7(b)(1).” Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181
F.3d 1180, 1186 (10th Cir. 1999). Rule 7(b)(1) of the Federal Rules of Civil Procedure provides
that any motion must “state with particularity the grounds for seeking the order . . . and . . . state
the relief sought.” Fed. R. Civ. P. 7(b)(1)(B)-(C). “[A] request for leave to amend must give
adequate notice to the district court and to the opposing party of the basis of the proposed
amendment . . . .” Calderon, 181 F.3d at 1186-87. “A court properly may deny a motion for
leave to amend as futile when the proposed amended complaint would be subject to dismissal for
any reason, including that the amendment would not survive a motion for summary judgment.”
e.spire Commc’ns, Inc. v. N.M. Pub. Regulation Comm’n, 392 F.3d 1204, 1211 (10th Cir. 2004)
(quotations and citations omitted).
Defendant argues that Plaintiffs’ proposed alter-ego claim is futile because it is supported
by vague and non-specific allegations and does not establish a viable alter-ego claim. Defendant
argues that the alter-ego cause of action is nothing more than a bare recitation of the elements of
such a claim and does not contain any supporting factual allegations. In response, Plaintiffs
contend that they have stated a viable alter-ego claim and that they have not received full
15

responses to their discovery requests, which would have allowed them to provide supporting
factual allegations.
The court is not persuaded that Plaintiffs’ proposed alter-ego claim is futile. While
Plaintiffs clearly could have provided more particularity, the court notes its ruling above
concerning Defendant’s failure to adequately and fully respond to all of Plaintiffs’ discovery
requests. Once Plaintiffs are provided with that discovery, the court cannot say that there will be
lacking factual support for Plaintiffs’ alter-ego claim to the extent that it would be subject to
dismissal.
B. Undue Delay
When considering undue delay, the Tenth Circuit has indicated that “[l]ateness does not
of itself justify the denial of the amendment.” Minter, 451 F.3d at 1205 (quotations and citation
omitted). The Tenth Circuit has instructed courts to “focus[] primarily on the reasons for the
delay.” Id. at 1206. The Tenth Circuit has “held that denial of leave to amend is appropriate
when the party filing the motion has no adequate explanation for the delay.” Id. (quotations and
citations omitted). Further, “[c]ourts have denied leave to amend in situations where the moving
party cannot demonstrate excusable neglect. For example, courts have denied leave to amend
where the moving party was aware of the facts on which the amendment was based for some
time prior to the filing of the motion to amend.” Fed. Ins. Co. v. Gates Learjet Corp., 823 F.2d
383, 387 (10th Cir. 1987).
In addition to showing that there was no undue delay, when
an amendment is sought after the deadline for the amendment of
pleadings set forth in a scheduling order, most circuits require that
the parties show good cause as required under Rule 16(b) [of the
Federal Rules of Civil Procedure]. The Tenth Circuit “has not
16

ruled on [this] question in the context of an amendment to an
existing pleading.”
DeMarco v. LaPay, No. 2:09-cv-190-TS, 2011 U.S. Dist. LEXIS 124911, at *4-5 (D. Utah Oct.
27, 2011) (quoting Bylin, 568 F.3d at 1231 n.9) (second alteration in original) (footnotes
omitted); see also Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause
and with the judge’s consent.”). “However, it has noted the rough similarity between the good
cause standard of Rule 16(b) and [the Tenth Circuit’s] undue delay analysis under Rule 15 and
that appellate courts that have applied Rule 16 have afforded wide discretion to district courts’
applications of that rule.” DeMarco, 2011 U.S. Dist. LEXIS 124911, at *4-5 (alteration in
original) (quotations, citations, and footnotes omitted). “When applied, the good cause standard
requires the . . . 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.” Id., at *5 (quotations and citation
omitted).
Given the similarity between the rule 16(b) good cause standard and the undue delay
analysis under rule 15, the court will consider them together. In this case, the court concludes
that Plaintiffs have provided an adequate explanation for the delay in seeking leave to add
Kellum and Anderson as parties. Again, the court notes its ruling above concerning Defendant’s
failure to adequately and fully respond to all of Plaintiffs’ discovery requests. If Plaintiffs had
received all of the requested discovery concerning Kellum and Anderson in a timely fashion,
Plaintiffs may have been able to seek to add them as parties at a much earlier date. For these
reasons, the court concludes that Defendants have demonstrated that there was no undue delay
under rule 15 and that good cause exists under rule 16 to add Kellum and Anderson as parties.

17

C. Prejudice
“The . . . most important . . . factor in deciding a motion to amend the pleadings, is
whether the amendment would prejudice the nonmoving party.” Minter, 451 F.3d at 1207.
Courts typically find prejudice only when the amendment unfairly
affects the defendants in terms of preparing their defense to the
amendment. Most often, this occurs when the amended claims
arise out of a subject matter different from what was set forth in
the complaint and raise significant new factual issues.
Id. at 1208 (quotations and citation omitted).
For the following reasons, the court concludes that Defendant will not be unduly
prejudiced if Plaintiffs are provided with leave to add Kellum and Anderson as parties. First,
Plaintiffs’ addition of Kellum and Anderson is not based on new subject matter or factual issues
that were not set forth in Plaintiffs’ previous complaints. Second, discovery is ongoing, and
Defendant will not be unfairly affected in terms of preparing its defense to the addition of
Kellum and Anderson. Finally, this court has a strong preference for resolving cases on the
merits, rather than on procedural technicalities. By allowing Plaintiffs to add Kellum and
Anderson as parties, this case may be fully resolved on its merits.
D. Conclusion on Plaintiffs’ Motion for Leave to File Third Amended Complaint
Based on the foregoing, Plaintiffs’ motion for leave to file a third amended complaint is
granted. Plaintiffs’ shall file their third amended complaint within ten (10) days of the date of
this order.

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*****
In summary, IT IS HEREBY ORDERED:
1.

Plaintiffs’ motion to compel 8 is GRANTED IN PART AND DENIED IN PART,
as detailed above.

2.

Defendant’s motion to quash a subpoena 9 is DENIED.

3.

Defendant’s motion for rule examinations of Plaintiffs 10 is GRANTED, as
detailed above.

4.

Defendant’s motion to extend its expert report deadline is GRANTED, as detailed
above. 11

5.

Plaintiffs’ motion for leave to file a third amended complaint 12 is GRANTED, as
detailed above.

IT IS SO ORDERED.
DATED this 30th day of January, 2014.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge
8

See docket no. 36.

9

See docket no. 47.

10

See docket no. 55.

11

See docket no. 56.

12

See docket no. 39.
19