Opinion
Civil Action No. 18-cv-02572-RM-KMT
05-30-2019
BAYARDO RENO SANDY, Plaintiff, v. THE BACA GRANDE PROPERTY OWNERS ASSOCIATION, STEVE CRAIG DOSSENBACK, MATIE BELLE LAKISH, JOANNA B. THERIAULT, DENNIS KEITH ISSELMANN, CONNIE ESTRDA, AYLA DANIELLE HOEVERS, and JANE ELIZABETH BROOKS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case comes before the court on Plaintiff's "Motion for Leave to File Second Amended Complaint and Supporting Memorandum" (Doc. No. 40 [Motion], filed April 5, 2019). Defendants filed their response on April 23, 2019 (Doc. No. 42 [Resp.]), and Plaintiff filed his reply on May 7, 2019 (Doc. No. 44 [Reply]).
BACKGROUND
The deadline for the amendment of pleadings was March 3, 2019. (Scheduling Order [Doc. No. 22] at 6.) On March 18, 2019, Plaintiff, through his former attorney, filed an unopposed "Motion for Extension of Time to File Amended Complaint" (Doc. No. 23), which this court granted (Doc. No. 25). Through counsel, Plaintiff filed his Amended Complaint on March 22, 2019. (Doc. No. 27.) That same day, Plaintiff himself filed another Amended Complaint, which the clerk docketed as a duplicate. (Doc. No. 35.) Plaintiff's counsel, Max Minnig, Jr., filed a Motion to Withdraw as Attorney on March 25, 2019 (Doc. No. 31) and was granted leave to withdraw from representation on March 26, 2019 (Doc. No. 34). In the Order granting leave, the court cautioned Plaintiff that his pro se status would not excuse him from compliance with the applicable Federal Rules of Civil Procedure. (Id.) Plaintiff filed a Motion for Leave to File Second Amended Complaint on March 29, 2019, which was denied for failure to comply with D.C.COLO.LCivR 15.1(b) and D.C.COLO.LCivR 7.1(a). (Doc. No. 39.) Plaintiff filed the present Motion on April 5, 2019. (Doc. No. 40.)
In his motion, Mr. Minnig explained that he and Plaintiff mutually agreed that he should withdraw from this matter. (Doc. No. 31 at 2.) --------
Plaintiff's original Complaint asserts claims against various defendants related to Plaintiff's membership in The Baca Grande Property Owners Association ("BGPOA"). (See Doc. No. 1.) Plaintiff contends, inter alia, that he experienced discrimination on the basis of his ethnicity, race, national origin and alienage such that Plaintiff could not enjoy the benefits of membership and land ownership in the BGPOA. (Id. at 3-4.) Plaintiff specifically asserts claims of tortious interference of contract, breach of fiduciary duty, negligence, fraud, intentional and negligent interference with economic advantage, and violation of 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), 42 U.S.C. § 3605(b)(1)(A), 42 U.S.C. § 3617, and 42 U.S.C. § 1981, in addition to violation of two Colorado criminal statutes. (Id. at 31-41.) Plaintiff's Amended Complaint, which was filed by his former attorney, is substantially similar but removes the claim for violation of 42 U.S.C. § 3605(b)(1) and replaces it with violation of 24 C.F.R. § 100.7, which establishes liability for discriminatory housing practices under the Fair Housing Act. (Doc. No. 27 at 32.)
Plaintiff's proposed Second Amended Complaint modifies and deletes certain factual allegations and adds a provision regarding an email sent on May 16, 2017. (See Doc. No. 41-1.) Plaintiff also adds an allegation, inter alia, that BGPOA minutes were altered in May of 2015. (Id. at ¶ 96.) Additionally, Plaintiff adds claims for violation of 42 U.S.C. § 2000d, which prohibits discrimination under programs receiving federal financial assistance, and a claim for relief under 42 U.S.C. § 3631(a), which relates to prevention of intimidation under the Fair Housing Act. (Id. at pgs. 37-42.)
In support of his Motion, Plaintiff merely asserts that he is "encouraged by the opportunity to present his Second Amended Complaint" under the guidelines in Docket No. 39. (Doc. No. 40.) In Response, Defendants argue good cause does not exist to grant Plaintiff's Motion. (Doc. No. 42.) According to Defendants, Plaintiff represented during conferral that he intended to address deficiencies in his complaint but, rather than removing deficient claims, added to his pleading such that the Proposed Second Amended Complaint contains both the original claims and new claims. (Id. at 2-3.) Defendants note that although Plaintiff filed his Proposed Second Amended Complaint over a month after the deadline to amend, no new facts have been revealed during discovery, the law has not changed, and Plaintiff makes no attempt at a "good cause" argument in his Motion. (Id. at 4.) In reply, Plaintiff appears to contend that good cause exists because his former counsel was purportedly ineffective and failed to correct deficient claims. (Doc. No. 44 at pgs. 3, 8.)
LEGAL STANDARDS
A. Plaintiff's Pro Se Status
Plaintiff is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). Pro se plaintiffs must "follow the same rules of procedure that govern other litigants" and "must still allege the necessary underlying facts to support a claim under a particular legal theory." Thundathil v. Sessions, 709 Fed. App'x 880, 884 (10th Cir. 2017) (citations and internal quotation mark omitted). Courts "cannot take on the responsibility of serving as the litigant's attorney in constructing arguments" or the "role of advocate" for a pro se plaintiff. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). The plaintiff's pro se status does not entitle him to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
B. Motion to Amend After Scheduling Order
"After a scheduling order deadline, a party seeking leave to amend must demonstrate (1) good cause for seeking modification under Federal Rule of Civil Procedure 16(b)(4) ("Rule 16") and (2) satisfaction of the Federal Rule of Civil Procedure Rule 15(a) standard." Gorsuch, Ltd., B.C. v. WellsFargo Nat'l Bank Ass'n, 771 F.3d 1230, 1241 (10th Cir. 2014) ("We now hold that parties seeking to amend their complaints after a scheduling order deadline must establish good cause for doing so."). A plaintiff is entitled to amend a complaint only upon meeting "the two-part test of first showing good cause to amend the scheduling order of Rule 16(b), and then showing that amendment would be allowed under Rule 15(a)." Ayon v. Kent Denver Sch., No. 12-cv-2546-WJM-CBS, 2014 WL 85287, at *2 (D. Colo. Jan. 9, 2014). The two-step analysis is explained as follows:
Rule 16(b)[(4)]'s good cause standard is much different than the more lenient standard contained in Rule 15(a). Rule 16(b)[ (4) ] 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. Properly construed, good cause means that the scheduling deadlines cannot be met despite a party's diligent efforts. In other words, the Court may "modify the schedule on a showing of good cause if [the deadline] cannot be met despite the diligence of the party seeking the extension."Pumpco, Inc. v. Schenker Int'l Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (citations omitted).
Pursuant to Federal Rule of Civil Procedure 15(a)(2), the court is to freely allow amendment of the pleadings "when justice so requires." The grant or denial of an opportunity to amend is within the discretion of the court, but "outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules." Foman v. Davis, 371 U.S. 178, 182 (1962). "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." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). However, if a plaintiff fails to show good cause under Rule 16(b)(4), there is no need for the court to move to the second step of the analysis and analyze whether the plaintiff has satisfied the requirements of Rule 15(a). Nicastle v. Adams Cty. Sheriff's Office, No. 10-cv-00816-REB-KMT, 2011 WL 1465586, at *3 (D. Colo. Mar. 14, 2011).
ANALYSIS
Plaintiff filed his Motion on April 5, 2019, roughly a month after the expiration of the pleading amendment deadline established in the Scheduling Order and two weeks after Plaintiff filed his Amended Complaint. Because Plaintiff filed his Motion after the deadline for amending the pleadings, the court must start its analysis with Rule 16(b)(4).
Notably, this court already gave Plaintiff one opportunity to amend his complaint beyond the Scheduling Order deadline. Plaintiff does not make a compelling argument as to why "good cause" exists for the court to give him another opportunity. Plaintiff blames his attorney for failing to correct deficiencies in his Amended Complaint, but does not explain how the new complaint is any more sufficient than the Amended Complaint. In fact, Plaintiff's Proposed Second Amended Complaint is substantially similar to his Amended Complaint but for a handful of modifications including word changes, strike-throughs, switched statutes and new facts from 2015 and 2017. In his Motion, Plaintiff does not address why he seeks to remove certain claims and replace them with others and does not show that the newly-added statutes and facts could not have been incorporated into the Complaint or Amended Complaint. Additionally, Plaintiff does not refute Defendants' contentions that new facts have not been revealed during discovery and that the law has not changed. Moreover, Plaintiff also fails to address Defendants' assertion that Plaintiff represented he would address deficiencies in his complaint yet failed to do so. Plaintiff has not provided an "adequate explanation for the delay" and, accordingly, has failed to establish good cause for modifying the Scheduling Order. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n. 4 (10th Cir. 2006); Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 688 (D. Colo. 2000) ("Good cause means that scheduling deadlines cannot be met despite a party's diligent efforts").
Because Plaintiff has not shown good cause for seeking leave to amend his complaint after the expiration of the pleading deadline, the Motion is subject to denial on this basis alone. See Colo. Visionary Acad., 194 F.R.D. at 688 (denying an untimely motion to amend solely on the basis of a failure to establish "good cause" within the meaning of Rule 16(b)(4)); Minter, 451 F.3d 1205 (10th Cir. 2006) (explaining that lateness itself does not justify denial of a motion to amend, but "undue" lateness may). Accordingly, the court does not analyze the Motion under the standard set forth in Fed. R. Civ. P. 15(a). See Nicastle, 2011 WL 1465586, at *3 ("Because the Court finds no good cause to amend the scheduling order, [it] will not address whether leave to amend is appropriate under Rule 15."); see also Schneider v. City of Grand Junction, Colo., No. 10-cv-01719-MSK-KLM, 2011 WL 13224077 (D. Colo. Apr. 25, 2011) (denying motion to amend solely because the plaintiff failed to show good cause for seeking leave to amend her complaint under Rule 16) report and recommendation adopted sub nom. Schneider v. City of Grand Junction Police Dep't, No. 10-CV-01719-MSK-KLM, 2011 WL 13224165 (D. Colo. July 12, 2011).
WHEREFORE, for the foregoing reasons, the court RECOMMENDS that the Motion [Doc. No. 40] be DENIED.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
This 30th day of May, 2019.
BY THE COURT:
/s/_________
Kathleen M Tafoya
United States Magistrate Judge