Opinion
Civil Action 20-cv-00608-RMR-NYW
09-09-2021
TIPHAINE LOURADOUR, Plaintiff, v. UNITED LAUNCH ALLIANCE, L.L.C., a Delaware Corporation, Defendant.
ORDER GRANTING MOTION TO AMEND
NINA Y. WANG, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Plaintiff's Second Motion for Leave to Amend Complaint (the “Motion” or “Motion to Amend”) [Doc. 73, filed March 5, 2021]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b) and the Memorandum dated March 7, 2021. [Doc. 74]. The court has reviewed the Motion and the related briefing, the entire docket, and the applicable case law. For the reasons set forth below, I GRANT the Motion to Amend.
“Whether motions to amend are dispositive is an unsettled issue in the 10th Circuit.” Cano-Rodriguez v. Adams Cty. Sch. Dist. No. 14, No. 19-cv-01370-CMA-KLM, 2020 WL 6049595, at *1 n.2 (D. Colo. July 23, 2020), report and recommendation adopted, 2020 WL 4593219 (D. Colo. Aug. 11, 2020). Courts in this District have treated orders granting motions to amend as non-dispositive, but “many courts have held that a recommendation to deny a motion to amend . . . should be viewed as a dispositive ruling because it precludes the filing of certain claims.” Crocs, Inc. v. Effervescent, Inc., No. 06-cv-00605-PAB-KMT, 2021 WL 941828, at *2 n.1. (D. Colo. Mar. 11, 2021); see also Bullock v. Daimler Trucks N. Am., LLC, No. 08-cv-00491-PAB-MEH, 2010 WL 1286079, at *1 (D. Colo. Mar. 29, 2010) (observing that it “makes good sense” to distinguish between allowing and denying an amendment in considering whether to use an order or recommendation as a magistrate judge). Because this court finds that the Motion to Amend should be granted, this court proceeds by order rather than recommendation.
BACKGROUND
This case arises out of the former employment relationship between Plaintiff Tiphaine Louradour (“Plaintiff” or “Ms. Louradour”) and Defendant United Launch Alliance, L.L.C. (“Defendant” or “ULA”). See generally [Doc. 41]. Ms. Lourador initiated this action in federal court on March 3, 2020, see [Doc. 1], and on October 30, 2020, Plaintiff filed an unopposed motion to amend the complaint, [Doc. 37], which this court construed as a notice of filing an amended pleading. See [Doc. 40]. Ms. Louradour filed her Amended Complaint and Jury Demand (the “Amended Complaint”) [Doc. 41] on November 3, 2020, and this filing remains the operative complaint in this action.
In her Amended Complaint, Ms. Louradour alleges that she was discriminated against by ULA and terminated from her employment with ULA due to her sex and age and for engaging in protected activity. [Id. at ¶¶ 95, 101, 107, 112]. In addition to federal law claims asserted under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act of 1967 (the “ADEA”), see generally [id. at 14-17], Ms. Louradour asserts a state law claim for outrageous conduct and/or intentional infliction of emotional distress. See [id. at 18]. Plaintiff now seeks to amend her complaint to add a demand for exemplary damages pursuant to Colo. Rev. Stat. § 13-21-102, arguing that, in engaging in the conduct set forth in the Amended Complaint, ULA acted with malice and/or willfully and wantonly. See generally [Doc. 73]. Defendant responded in opposition to the Motion, [Doc. 86], and Plaintiff has since replied. [Doc. 99]. Because the Motion is ripe for consideration, I consider the Parties' arguments below.
LEGAL STANDARD
Under the law of the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”), courts generally employ a two-step analysis in determining whether to allow a party to amend the pleadings after the deadline established by the Scheduling Order has passed. Under this approach, the court first considers whether the moving party demonstrates good cause pursuant to Rule 16(b) of the Federal Rules of Civil Procedure. See Gorsuch Ltd. B.C. v. Wells Fargo Nat'l Bank, 771 F.3d 1230, 1242 (2014). If the moving party can demonstrate good cause, the court then weighs whether the amendment should be allowed under Rule 15(a), which provides that “the court should freely give leave when justice so requires.” Id. 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).
However, the amendment at issue here concerns exemplary damages, which is governed by Colo. Rev. Stat. § 13-21-102. Indeed, in finding that there is no direct conflict between this statute and the Federal Rules of Civil Procedure and that application of the statute would not necessarily result in forum shopping or the inequitable administration of the law, courts in this District have held that § 13-21-102, rather than Rules 15(a) or 16(b), controls whether to permit the amendment of a claim for exemplary damages. See Wollam v. Wright Med. Grp., Inc., No. 10-cv-3104-DME-BNB, 2012 WL 4510695, at *9 (D. Colo. Sept. 30, 2012) (applying Colo. Rev. Stat. § 13-21-102 to motion to amend to add exemplary damages claim); Richfield Hosp., Inc. v. Charter One Hotels & Resorts, Inc., No. 12-cv-01937-REB-MEH, 2012 WL 4097722, at *2 (D. Colo. Sept. 18, 2012) (“Colo. Rev. Stat. § 13-21-102 does not conflict with the Federal Rules of Civil Procedure and . . . Erie's twin aims [of preventing forum shopping and avoiding inequitable administration of the law] are best satisfied by applying the Colorado statute.”); see also Dowling v. Gen. Motors LLC, 333 F.R.D. 534, 538 (D. Colo. 2019) (“[T]he Erie doctrine applies, whatever the ground for federal jurisdiction, to any issue or claim which has its source in state law.”) (quotation omitted); but see RCHFU, LLC v. Marriott Vacations Worldwide Corp., No. 16-cv-01301-PAB-GPG, 2018 WL 3055772, at *2 (D. Colo. May 10, 2018) (stating that, because the court sat “in diversity in this matter, . . . the more stringent standard of C.R.S. 13-21-102(1.5)(a) applies” but also finding that the Rule16(b) good-cause standard must be met). Even with the application of § 13-21-102, however, the court may deny a motion to amend to add exemplary damages because of delay, bad faith, undue expense, or other demonstrable prejudice. Stamp v. Vail Corp., 172 P.3d 437, 449 (Colo. 2007) (citation omitted).
This mirrors the Rule 15(a) standard. See Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (“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.”).
Pursuant to § 13-21-102(1.5)(a), a plaintiff cannot move for exemplary damages in the initial pleading and may seek to amend the pleading to add a demand for exemplary damages “only after the exchange of initial disclosures pursuant to Rule 26 of the Colorado Rules of Civil Procedure” and if the Plaintiff establishes prima facie proof of a triable issue. See Colo. Rev. Stat. § 13-21-102(1.5)(a). Section 13-21-102 provides that an award of exemplary damages is permissible when “the injury complained of is attended by circumstances of fraud, malice, or willful and wanton conduct.” Colo. Rev. Stat. § 13-21-102(1)(a). Here, Ms. Lourador alleges that Defendant's actions were malicious and/or willful and wanton. See [Doc. 73 at ¶ 30]. “‘Malice' is defined as ‘an intention or desire to harm another [usually] seriously through doing something unlawful or otherwise unjustified' or ‘revengeful or unfriendly feelings.'” Bonidy v. Vail Valley Ctr. for Aesthetic Dentistry, P.C., 232 P.3d 277, 286 (Colo.App. 2010) (quoting Webster's Third New Int'l Dictionary 1367 (2002) (alteration in original)). “‘[W]illful and wanton conduct' means conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff.” Colo. Rev. Stat. § 13-21-102(1)(b). “Simple negligence cannot support such an award;” rather, “where a defendant is conscious of both its conduct and the existing conditions, and knew or should have known that injury would result, the requirements of section 13-21-102 are met.” Blood v. Qwest Servs. Corp., 224 P.3d 301, 314 (Colo.App. 2009). The purpose of the award of punitive damages is to punish the wrongdoer, not to compensate for injuries. See Lira v. Shelter Ins. Co., 913 P.2d 514, 517 (Colo. 1996).
As to the requirement of a prima facie showing, “[p]rima facie evidence is evidence that, unless rebutted, is sufficient to establish a fact.” Stamp, 172 P.3d at 449 (citation omitted). Such proof is established by “a reasonable likelihood that the issue will ultimately be submitted to the jury for resolution.” Id. (quoting Leidholt v. Dist. Court, 619 P.2d 768, 771 n.3 (Colo. 1980)). Parties may offer this proof in the form of discovery and by evidentiary means. Id. “The question of whether the plaintiff has established sufficient proof to add a claim for exemplary damages lies within the sound discretion of the trial court.” Id. (citation omitted). In reviewing the Motion to Amend, this court considers only the “preliminary question” of whether Plaintiff has made a prima facie showing that the injury complained of is attended by malice or by willful and wanton conduct, not whether Plaintiff will ultimately prevail on her claims. Am. Econ. Ins. Co., 2007 WL 160951, at *4; see also Affordify, Inc. v. Medac, Inc., No. 19-cv-02082-CMA-NRN, 2020 WL 6290375, at *5 (D. Colo. Oct. 27, 2020) (describing the burden on a motion to amend pursuant to § 13-21-102 as “an admittedly low threshold”).
ANALYSIS
Plaintiff argues that she should be granted leave to amend her Amended Complaint to add a prayer for relief for exemplary damages under Colorado law. [Doc. 73 at ¶ 34]. She asserts that she has proffered sufficient evidence to establish that “the injuries to Plaintiff caused by Defendant were attended by circumstances of malice and/or willful and wanton conduct.” [Id. at ¶ 30]. Defendant disagrees. According to Defendant, the Motion to Amend should be denied because (1) it is untimely, see [Doc. 86 at 10], or, in the alternative, (2) Plaintiff fails to state a claim for exemplary damages related to her claim for intentional infliction of emotional distress. [Id. at 11]. The court first addresses whether Plaintiff has met her burden of establishing a prima facie basis for a demand for exemplary damages under Colorado law before turning to Defendant's timeliness argument.
I. Prima Facie Showing of a Triable Issue
Prima facie evidence is that which, unless rebutted, establishes a fact. See Blatchley v. Cunningham, No. 15-cv-00460-WYD-NYW, 2017 WL 4333992, at *4 (D. Colo. Mar. 29, 2017). “Colorado law provides that the existence of a triable issue on punitive damages may be established through discovery, by evidentiary means, or by an offer of proof.” Gile v. Schmidt, No. 16-cv-02498-PAB-NYW, 2018 WL 3056074, at *5 (D. Colo. Jan. 26, 2018), report and recommendation adopted, 2018 WL 6790310 (D. Colo. May 3, 2018). “Prima facie proof, like a proffer, is merely a facial showing sufficient to prove a matter in the absence of contradictory evidence. It is akin to the showing required to survive motions brought under Fed.R.Civ.P. 12 and 50.” Rosania v. Grp. O, Inc., No. 13-cv-00398-MSK-BNB, 2014 WL 679884, at *3 n.4 (D. Colo. Feb. 20, 2014).
In reviewing Ms. Louradour's assertions, this court must view the evidence in the light most favorable to her. Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59, 66 (Colo. 2005); Eurpac Service Inc. v. Republic Acceptance Corp., 37 P.3d 447, 452 (Colo.App. 2000). The evidence must only be enough for a prima facie showing of malice or willful and wanton behavior, not enough to “defeat a motion for summary judgment or to result in a jury verdict in Plaintiff's favor.” Hendrickson v. Doyle, No. 14-cv-02013-WJM-KLM, 2015 WL 2106225, at *3 (D. Colo. May 4, 2015).
Plaintiff's Evidence in Support of Exemplary Damages. Ms. Louradour argues that she has established a prima facie triable issue for an award of exemplary damages based on the following evidence:
• Deposition testimony from ULA's Vice President of Human Resources, Liane George (“Ms. George”), indicating that Plaintiff reported to Ms. George that “it was difficult for [Plaintiff] to work under [Kent Leitzau (“Mr. Leitzau”), ULA's Director of Strategy and Business Development]'s leadership as a female, ” that Plaintiff “was concerned about being a female on [Mr. Leitzau's] team, ” and that Plaintiff suggested Ms. George speak with another female employee, [Doc. 73-4 at 36:8-21; 39:25-40:9], but that Ms. George did not address the complaints with Mr. Leitzau. [Doc. 73-4 at 46:6-8].
• Allegations from Plaintiff's proposed Second Amended Complaint and Jury Demand (the “proposed Second Amended Complaint”) asserting that, when Mr. Leitzau was fired, he was replaced by a man named Chris Ellerhorst (“Mr. Ellerhorst”), who was twelve years younger than Plaintiff, despite the fact that Plaintiff had more experience and tenure with ULA. [Doc. 73-1 at ¶¶ 31-32, 34].
• Allegations from Plaintiff's proposed Second Amended Complaint asserting that, after Mr. Ellerhorst was promoted, Ms. Louradour met with Ms. George, see [id. at ¶¶ 59-60], and deposition testimony from Ms. George indicating that, at this meeting, Plaintiff expressed concerns related to gender bias or discrimination,
[Doc. 73-4 at 89:18-90:4], but that Ms. George did not initiate a discrimination complaint on Plaintiff's behalf or investigate Plaintiff's complaint of discrimination. [Id. at 93:7-18].
• Deposition testimony from Ms. George indicating that ULA's internal policies require investigations in the event of claims of discrimination, retaliation, or general misconduct and that Ms. George is familiar with those policies. [Id. at 21:1625:20].
• Deposition testimony from Thomas Tshudy (“Mr. Tshudy”), who Plaintiff asserts oversaw ethics and compliance areas for ULA, see [Doc. 73 at ¶ 14], indicating that Plaintiff reported to him that Mr. Leitzau did not listen to women and gave male employees preferential treatment. [Doc. 73-3 at 22:10-19], and that Plaintiff complained to him that Mr. Ellerhorst, who “was younger than her [and] a man” had been promoted over her, [id. at 43:12-19], but that Mr. Tshudy did not inform anyone of Plaintiff's complaints of discrimination. [Id. at 22:21-23:13; 43:2045:8].
• Deposition testimony from Mr. Tshudy stating that Ms. Louradour expressed concerns to him regarding potential retaliation by ULA for her discrimination complaints. [Id. at 45:21-25].
• Allegations from the proposed Second Amended Complaint asserting that, after her complaints of discrimination, Plaintiff was subject to retaliation when she was denied benefits regularly provided to employees; was not invited to key events for her position, despite the fact that every other member of her team was invited; was “continually undermined and ignored” by Mr. Ellerhorst; was the subject of demeaning and offensive treatment and comments concerning her French nationality; and was ignored and/or treated coldly by Tory Bruno (“Mr. Bruno”), ULA's Chief Executive Officer. [Doc. 73-1 at ¶¶ 41, 62]. In addition, Plaintiff alleges that she reported this retaliation to the Equal Employment Opportunity Commission (the “EEOC”), [id. at ¶ 65], and that ULA then “continued to retaliate” against her by removing her from her position as a presenter at a “prestigious industry conference, overly scrutinizing her expenses, and denying her and her team resources.” [Id. at ¶¶ 66-69, 72-74].
• Deposition testimony from Ms. George indicating that, after Ms. Louradour reported that she “strongly believed” certain ULA conduct “[was] occurring in retaliation for me having expressed concerns about age and sex discrimination and retaliation to [ULA], including [her] EEOC charge, ” ULA did not investigate such complaints, despite ULA policies requiring an investigation. [Doc. 73-4 at 133:21134:8, 134:17-22, 135:10-13, 136:12-16].
• Allegations in the proposed Second Amended Complaint asserting that, after Ms. Louradour expressed additional concerns about Mr. Ellerhorst's promotion, ULA
demoted Plaintiff, reduced her responsibilities, and withdrew certain workplace resources. [Doc. 73-1 at ¶¶ 75-76].
• Allegations in the proposed Second Amended Complaint that ULA placed Ms. Louradour on administrative leave after she interviewed with a competitor company, International Launch Services, Inc. (“ILS”), [Id. at ¶ 78], and deposition testimony from Ms. George indicating that no investigation was conducted prior to Plaintiff's placement on administrative leave, [Doc. 73-4 at 155:10-15], despite the fact that Ms. George stated that there are ULA policies requiring an investigation into allegations of wrongful conduct that permits the accused to respond to the accusations. [Id. at 24:11-19; 25:10-16].
• Deposition testimony from Ms. George indicating that Ms. Louradour was terminated from her employment with ULA due to her alleged participation in an undisclosed romantic relationship with Mr. Tshudy, a man, [Doc. 73-4 at 162:22163:4], despite the fact that no investigation into the alleged relationship was conducted, [id. at 163:21-164:8], in purported contravention of ULA policy, [id. at 24:11-19; 25:10-16], while Mr. Tshudy was permitted to leave his employment with ULA voluntarily. [Id. at 100:4-7; 101:21-23].
• Deposition testimony from Mr. Bruno's first deposition in which he stated that he heard rumors of the alleged romantic relationship between Ms. Louradour and Mr. Tshudy from “[m]any people in the customer and launch community, ” and, when asked to name individuals, stated that he “[could not] tell you who [he] didn't hear it from, ” [Doc. 73-7 at 159:14-25], and deposition testimony from Mr. Bruno's second deposition in which he indicated that he could only specifically recall one person from whom he heard about the alleged relationship, and that he did not ask any follow-up details during this conversation. [Doc. 101-11 at 200:8-201:20].
• Deposition testimony from Mr. Bruno's first deposition testimony in which Mr. Bruno stated that he would agree that it would be “particularly damaging” to a female president in the space industry to be the subject of rumors of an allegedly improper relationship. [Doc 73-7 at 183:21-24].
When citing to deposition testimony, this court refers to the document number assigned by the court's Electronic Court Filing (“ECF”) but refers to the page and line number assigned in the original transcript.
Because Plaintiff cites to her proposed Second Amended Complaint in supporting her Motion to Amend, see, e.g., [Doc. 73 at ¶¶ 10, 12-13, 15-17], this court too cites to the allegations in the proposed Second Amended Complaint in determining whether Plaintiff has met her prima facie burden. However, the court notes that the factual allegations contained in the proposed Second Amended Complaint are identical to the factual allegations asserted in the Amended Complaint. Compare [Doc. 41] with [Doc. 73-1].
“Although courts in this district have frequently looked to evidence submitted along with a plaintiff's motion to amend to determine whether the plaintiff has presented prima facie proof of a triable issue, . . . an ‘offer of proof' will also satisfy a plaintiff's evidentiary burden under § 13-21-102(1.5)(a).” Gile v. Schmidt, No. 16-cv-02498-PAB-NYW, 2018 WL 6790310, at *2 (D. Colo. May 3, 2018) (citations omitted); see also I'Mnaedaft, Ltd. v. Intelligent Off. Sys., LLC, No. 08-cv-01804-LTB-KLM, 2009 WL 77498, at *2 (D. Colo. Jan. 12, 2009) (finding that the plaintiff's “specific factual allegations” asserted in proposed amended complaint constituted a sufficient offer of proof). The court thus considers Ms. Louradour's factual allegations, in addition to her submissions of deposition testimony, to determined whether Plaintiff has made a sufficient offer of proof. See Gile, 2018 WL 6790310, at *3 (making a § 13-21-102 determination based on the facts asserted in the motion to amend and documents submitted by the plaintiff).
Mr. Bruno's deposition was taken on March 1, 2021, see generally [Doc. 101-11], and thus Plaintiff represents that the transcript of his deposition was not available at the time of filing her Motion to Amend. [Doc. 73 at 8 n.3]. Defendant filed excerpts from Mr. Bruno's second deposition as an exhibit to its reply in support of its motion for summary judgment, see [Doc. 10111], which contain the portions of the deposition testimony referenced by Ms. Louradour.
Analysis. Plaintiff argues that she has met her burden of demonstrating a prima facie case of malicious, willful, or wanton conduct for purposes of § 13-21-102 because she has submitted testimony demonstrating that Defendant failed to investigate any of her complains in violation of its own policies, that Defendant subjected Plaintiff to “an escalating pattern or retaliation that eventually resulting in Plaintiff's suspension and termination, ” that Defendant treated Ms. Louradour less favorably that Mr. Tshudy, and that Defendant terminated Plaintiff with the knowledge that doing so would harm Plaintiff. [Doc. 73 at ¶ 31]. She asserts that, based on this evidence and these allegations, “[a] jury could conclude that ULA engaged in this conduct with malice or, at a minimum, with reckless disregard of Plaintiff's rights.” [Id. at ¶ 32]. In response, ULA argues that Plaintiff has “identifie[d] no facts” to support her intentional infliction of emotional distress (“IIED”) claim, “much less a demand for exemplary damages under such claim.” [Doc. 86 at 12]. ULA contends that, for this reason, amendment would be futile, and thus the Motion should be denied. [Id.].
The court first addresses the propriety of Defendant asserting such an argument in its Response to the Motion to Amend. Defendant asserts that, insofar as Plaintiff's IIED claim is based on an alleged failure to promote, an alleged failure to fairly compensate, or alleged retaliation, the claim is “nothing more than a repetition of Plaintiff's claims for discrimination and retaliation, and do not support an additional claim for IIED.” [Id.]. In addition, Defendant similarly asserts that, insofar as the IIED claim is based on an alleged failure to investigate Ms. Louradour's complaints of discrimination or retaliation, Plaintiff fails to state a claim because she “fails to demonstrate she suffered any demonstrable harm as a result of the alleged failure to investigate.” [Id. at n.5]. According to ULA, “Plaintiff's allegations, even if proven, rise nowhere near the level for an employment-related IIED claim.” [Id. at 13].
To the extent that ULA attempts to argue, couched as a futility argument, that Plaintiff has failed to state a claim for IIED in her proposed Second Amended Complaint, the court is respectfully not persuaded. First, as set forth above, Rule 15 does not guide this court's analysis in ruling on Plaintiff's Motion to Amend pursuant to § 13-21-102. See Richfield Hosp., 2012 WL 4097722, at *2. Thus, futility of amendment is not an issue presently before the court; rather, the court considers whether Plaintiff has established prima facie proof of a triable issue as to whether Defendant's actions were malicious, willful, or wanton. Colo. Rev. Stat. § 13-21-102(1.5)(a); Stamp, 172 P.3d at 449.
Second, ULA's Rule 12(b)(6) arguments are not properly before the court. The court notes that, as is evident from Plaintiff's red-lined proposed Second Amended Complaint, see [Doc. 732], the only amendment Ms. Louradour seeks to make through her Motion to Amend is to include a demand for exemplary damages not previously presented in this litigation. [Id. at 20]. Indeed, Ms. Louradour asserts no new factual allegations in her proposed Second Amended Complaint; thus, the factual allegations now challenged by ULA have been at issue in this case since November 3, 2020, the date Ms. Louradour filed the operative Amended Complaint. See [Doc. 41]. If ULA sought to challenge the sufficiency of these factual allegations to support a claim for IIED, ULA could and should have filed a motion to dismiss that claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For reasons unknown to the court, ULA declined to do so. ULA's Rule 12(b)(6) arguments, raised in its Response to Plaintiff's Motion to Amend, are accordingly not properly before the court. See D.C.COLO.LCivR 7.1(d) (“A motion shall not be included in a response or reply to the original motion. A motion shall be filed as a separate document.”); cf. Affordify, 2020 WL 6290375, at *6 (rejecting an argument that was “more of a motion to dismiss or summary judgment argument than an argument against allowing an amendment to add a request for exemplary damages” where the defendants “did not challenge the original . . . claim with a Rule 12(b) motion” and “briefing on the Motion to Amend [was] no place to be making summary judgment arguments”); Broach v. Yegappan, No. 17-cv-02791-MSK-NYW, 2019 WL 6724246, at *3 (D. Colo. Dec. 11, 2019) (“[T]he Court declines to address what are essentially Rule 12(b)(6) arguments offered in the guise of futility.”). Thus, the court proceeds in its analysis as to whether Plaintiff has made a prima facie showing that ULA engaged in malicious, willful, or wanton conduct.
The dispositive motion deadline in this case was March 12, 2021. [Doc. 18 at 10].
The court notes that Defendant's Motion for Summary Judgment, in which ULA raises a similar argument, see [Doc. 76 at 19-20], is currently pending before the Honorable Regina M. Rodriguez. The court declines to pass on a potentially dispositive issue that is presently before the presiding judge.
Even if this court were to address ULA's futility argument, the court would remain unpersuaded by the argument. In order to defeat a motion to amend under Rule 15 on futility grounds, the nonmoving party must demonstrate that the proposed amendment would be futile. Jefferson County Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999). Here, the proposed amendment is simply the addition of four words-“and/or exemplary damages”- and thus, ULA's arguments attacking the substantive factual allegations of Plaintiff's Amended Complaint and/or arguing that her IIED claim is duplicative of her other claims do not go towards the futility of Plaintiff's proposed amendment. See generally [Doc. 86 at 12-14]. As such, the court is respectfully not persuaded by Defendant's argument.
Viewing all evidence in the light most favorable to Plaintiff, the court finds that Ms. Louradour has put forth evidence that ULA acted “without regard to consequences[] or of the rights” of Plaintiff, and thus engaged in willful or wanton conduct. Colo. Rev. Stat. § 13-21-102(1)(b). Plaintiff has submitted evidence demonstrating that, among other items, Defendant knew that Ms. Louradour was being discriminated and/or retaliated against, [Doc. 73 at ¶¶ 10-11, 13-14, 18], but that ULA failed to investigate such complaints or take any other action to address those complaints, [id. at ¶¶ 11, 13-14, 18], despite company policy requiring that such complaints be investigated, [id. at ¶¶ 13, 24, 31] and that the discrimination and/or retaliation continued after Ms. Louradour's numerous complaints. [Id. at ¶¶ 12, 15, 17, 19]. If proven, this would demonstrate that ULA knew of a potential or actual harm to Plaintiff and acted in disregard of that harm, or was otherwise “conscious of [its] conduct and the existing conditions and knew or should have known that injury would result” from its conduct. Coors, 112 P.3d at 66. Moreover, Plaintiff has submitted evidence showing that ULA knew that the rumors concerning the alleged relationship between Ms. Louradour and Mr. Tshudy would be “particularly damaging” to a woman in the space industry, but terminated her based on those rumors anyway, without investigating those rumors as required by company policy, [Doc. 73 at ¶¶ 23-24, 28, 31], which too would show-if proven at trial-ULA's knowledge and conscious disregard of how its actions could or would harm Ms. Louradour. Stamp, 172 P.3d at 449 (“Conduct is willful and wanton if it is a dangerous course of action that is consciously chosen with knowledge of facts, which to a reasonable mind creates a strong probability that injury to others will result.”). The court thus concludes that Plaintiff has shown a “[a] reasonable likelihood that the issue [of whether Defendant's conduct was willful and wanton] will ultimately be submitted to the jury for resolution.” Leidholt, 619 P.2d at 771; cf. White River Vill., LLP v. Fid. & Deposit Co. of Maryland, No. 08-cv-00248-REB-MEH, 2013 WL 6168853, at *5 (D. Colo. Nov. 25, 2013) (in construction case, finding prima facie triable issue as to willful or wanton conduct where the defendant knew of harmful circumstances and “ignored the problems and/or refused to fix them”); E&S Liquors, Inc. v. U.S. Fid. & Guar. Co., No. 08-cv-01694-WYD-KLM, 2009 WL 837656, at *2 (D. Colo. Mar. 26, 2009) (in insurance dispute case, finding that the plaintiffs had met their prima facie burden where they set forth evidence that the defendant insurer failed to investigate or take action on the plaintiffs' insurance claim and where the plaintiffs asserted that the defendant “knew [its] conduct would cause severe emotional distress”).
To the extent ULA argues that it “had a good faith belief in support of [its understanding that Ms. Louradour was engaged in a romantic relationship with Mr. Tshudy], including information from third parties with no apparent motivation to impact Plaintiff's employment, ” and that “discovery . . . has demonstrated that Plaintiff and Mr. Tshudy without question had a close personal relationship, ” [Doc. 86 at 14]; see also [id. at ¶ 9 (setting forth evidence which ULA asserts supports its decision to terminate Plaintiff)], this does not defeat Ms. Louradour's prima facie showing of a triable jury issue. Indeed, Defendant's argument is nothing more than an attempt “to refute Plaintiff's proffered evidence by providing additional context, ” which fails to establish a lack of evidentiary support for any of the factual allegations ULA attacks. Schimek v. Owners Ins. Co., No. 16-cv-02197-PAB-STV, 2017 WL 3621833, at *5 (D. Colo. Aug. 23, 2017). “Contrary evidence is not part of the equation” in determining whether a prima facie showing under § 13-21-201 has been made. Affordify, 2020 WL 6290375, at *5. Instead, the court “need only look at the evidence presented by the Plaintiff and take all reasonable inference in the Plaintiff's favor.” Id.; see also Bituminous Cas. Corp. v. Hartford Cas. Ins. Co., No. 12-cv-00043-WYD-KLM, 2013 WL 6676157, at *3 (D. Colo. Dec. 18, 2013) (“[A]t this stage of the litigation, the Court is only concerned with whether the evidence, when viewed in the light most favorable to Plaintiff, is sufficient to make out a prima facie case of willful and wanton behavior for the purpose of allowing Plaintiff to amend its Amended Complaint to include exemplary damages, not whether such evidence is sufficient to defeat a motion for summary judgment or to prevail on the issue at trial.”). Doing so here, the court finds that Ms. Louradour has met her burden to assert a demand for exemplary damages.
II. Untimeliness
In its Response, ULA also argues that Ms. Louradour's Motion is untimely under Rule 16(b). See [Doc. 86 at 10-11]. As set forth above, this court does not employ Rules 15 or 16 in determining whether Plaintiff should be permitted leave to amend to add an exemplary damages claim. With that said, a court-in its discretion-may deny a motion to amend to add exemplary damages on account of “delay, bad faith, undue expense, or other demonstrable prejudice.” Stamp, 172 P.3d at 449. The court thus turns to ULA's argument that the Motion is untimely.
Defendant argues that the Motion is untimely because (1) initial disclosures were exchanged on May 5, 2020, but Plaintiff did not move to amend at this time; (2) Plaintiff did not move to amend during written discovery or during fact depositions; but (3) Plaintiff waited to seek leave to amend her complaint until a fact deposition of Mr. Bruno was taken on March 1, 2021.[Doc. 86 at 10-11]. According to Defendant, the only topic covered in the March 2021 deposition of Mr. Bruno was the identity of individuals who informed Mr. Bruno of the rumors surrounding Ms. Louradour, and these identities do not provide any basis for an award of exemplary damages. [Id. at 11]. In her Reply, Plaintiff asserts that she filed the Motion to Amend “as soon as practicable given ULA's conduct during discovery, which included improperly instructing Mr. Bruno not to answer a question during his first deposition in November 2020.” [Doc. 99 at 5]. Ms. Louradour asserts that Mr. Bruno's second deposition revealed material information in support of her claim for exemplary damages, and thus it was reasonable for her to wait until after that deposition was taken to file the Motion to Amend. [Id. at 5-6 n.5]; see also, e.g., [Doc. 73 at ¶ 27].
In its Response, ULA asserts that the fact deposition of Mr. Bruno took place on February 23, 2021. [Doc. 86 at 11]. However, the transcript of this deposition reveals that the deposition occurred on March 1, 2021. [Doc. 101-11 at 2]; see also [Doc. 69].
The court finds no basis to deny the Motion to Amend based on undue delay. As this court recognized in February 2021, ULA “ha[d] not properly instructed Mr. Bruno to respond” to questions asked during his first deposition concerning the identities of the individuals from whom he heard rumors regarding Ms. Louradour and Mr. Tshudy. [Doc. 63 at 3]. And as this court expressly found, information concerning those individuals' identities is relevant to this matter because “whether or not these individuals provided such information to Mr. Bruno does have a tendency to make the stated non-discriminatory reason legitimate or pretextual.” [Id.]. The court thus permitted Ms. Louradour to re-open Mr. Bruno's deposition to explore this topic further, and after some scheduling complications, the Parties agreed to hold this second deposition of Mr. Bruno on March 1, 2021. See [id.]; see also [Doc. 69; Doc. 72]. Plaintiff filed her Motion to Amend on March 5, 2021, only four days after the second deposition of Mr. Bruno. See generally [Doc. 73]. The court cannot conclude that Plaintiff unduly delayed the filing of her Motion here.
Insofar as Defendant asserts that Plaintiff could have filed her Motion during discovery, see [Doc. 86 at 11], or that Plaintiff did not have to wait until Mr. Bruno's second deposition to file the Motion because Plaintiff “fails to demonstrate that the specific identities [discussed in the second deposition] provide any basis for an award of exemplary damages, ” [id.], this court respectfully disagrees. Plaintiff relies, in part, on information learned in Mr. Bruno's second deposition in seeking leave to amend, see [Doc. 73 at ¶ 27], and the court notes that it was defense counsel's improper instruction to Mr. Bruno which necessitated the second deposition three months after his first. See generally [Doc. 63]. The court cannot fault Plaintiff for waiting to see whether any additional support for her exemplary damages demand would be uncovered during Mr. Bruno's deposition before formally seeking leave to amend, particularly where this court expressly stated that the topic covered during that deposition is relevant in this matter. Cf. Gile, 2018 WL 3056074, at *5 (“[T]his court finds it imprudent to penalize Plaintiffs for first satisfying themselves as to the sufficiency of the evidence regarding the higher burden of proof, particularly when the Motion to Amend was filed but two days after the close of discovery.”). For these reasons, the court finds that Ms. Louradour was diligent in filing of her Motion to Amend and finds that her Motion is timely.
Finally, although this court does not conduct a Rule 15 analysis, the court notes that Defendant will not be prejudiced by the amendment or by any arguable delay in filing the Motion to Amend, as the proposed Second Amended Complaint contains no alterations in the factual bases of Plaintiff's claims and thus does not change the general scope of this litigation. Compare [Doc. 41] with [Doc. 73-1]. The court also notes that, in both Ms. Louradour's original Complaint and Jury Demand [Doc. 1] and in the Amended Complaint [Doc. 41], Ms. Louradour alleged that “Defendant's conduct was malicious, willful and/or wanton, and exhibited reckless or callous indifference to Plaintiff's protected right.” [Doc. 1 at ¶ 117; Doc. 41 at ¶ 119]. Thus, Defendant was on notice that Ms. Louradour may, later in the litigation, seek to add a demand of exemplary damages. Cf. Gile, 2018 WL 3056074, at *6 (finding that the defendants were not prejudiced by the addition of a demand for exemplary damages “given the fact that both Plaintiffs' Initial Disclosures and the Scheduling Order alerted Defendants that Plaintiffs would seek to include such a demand.”).
For these reasons, the court finds that Plaintiff has met her prima facie burden of establishing a triable issue as to whether ULA acted with malice or engaged in willful or wanton conduct, and thus her Motion to Amend should be granted. In so finding, the court only answers the “preliminary question” of whether Plaintiff made a prima facie case, Am. Econ. Ins. Co., 2007 WL 160951, at *4, and does not pass on the merits of Plaintiff's clams or demand for exemplary damages.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
(1) Plaintiff's Second Motion for Leave to Amend Complaint GRANTED;
(2) Plaintiff is ORDERED to file a clean version of the proposed Second Amended Complaint [Doc. 73-1] as a separate docket entry on or before September 15, 2021; and
(3) Defendant is ORDERED to file an amended answer to the Second Amended Complaint and Jury Demand within fourteen days of service of the Second Amended Complaint and Jury Demand, revised only to address Plaintiff's newly asserted request for relief in the form of exemplary damages.