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Estate of Riecke v. Boy Scouts of America

United States District Court, D. Utah, Central Division

October 11, 2017

THE ESTATE OF EDGAR RIECKE, et al., Plaintiffs,
v.
BOY SCOUTS OF AMERICA, a Texas non-profit corporation; et al., Defendants.

          District Judge Jill N. Parrish

          MEMORANDUM DECISION AND ORDER

          PAUL M. WARNER, Chief United States Magistrate Judge

         District Judge Jill N. Parrish referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A).[1] Before the court is Plaintiffs' partially unopposed motion for leave to file a second amended complaint.[2] 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 motion on the basis of the written memoranda. See DUCivR 7-1(f).

         ANALYSIS

         As an initial matter, the court notes that the Defendants who responded to Plaintiffs' motion (collectively, “Responding Defendants”) do not oppose it to the extent that Plaintiffs seek to clarify their complaint by withdrawing a category of damages and to conform certain allegations in the complaint to the evidence discovered to date. Accordingly, that portion of Plaintiffs' motion is granted. The court now turns to the remainder of Plaintiffs' motion, which seeks to add Steve Hanni (“Hanni”) and Steve Luddington (“Luddington”) as named defendants.

         Plaintiffs' motion is brought under 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).

         The court has determined that only the factors of undue delay and prejudice are relevant to Plaintiffs' motion. The court turns to addressing those factors.

         I. Undue Delay

         “It is well settled in this circuit that untimeliness alone is a sufficient reason to deny leave to amend . . ., especially when the party filing the motion has no adequate explanation for the delay . . . .” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365-66 (10th Cir. 1993) (citations omitted); see also Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991); Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990); First City Bank, N.A. v. Air Capitol Aircraft Sales, Inc., 820 F.2d 1127, 1133 (10th Cir. 1987). “Furthermore, ‘[w]here the party seeking amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend is subject to denial.'” Frank, 3 F.3d at 1366 (quoting Las Vegas Ice & Cold Storage Co., 893 F.2d at 1185); see also Fed. Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987) (“[C]ourts 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.”).

         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 ruled on [this] question in the context of an amendment to an existing pleading.”

DeMarco v. LaPay, No. 2:09-CV-190 TS, 2011 WL 5118299, at *1 (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 WL 5118299, at *1 (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. (quotations, citation, and footnote omitted).

         Given the rough similarity between the Rule 16(b) good cause standard and the undue delay analysis under Rule 15, the court will consider them together. Specifically, the court will focus on whether Plaintiffs have provided an adequate explanation for the delay in bringing their motion.

         In the pertinent portion of their motion, Plaintiffs seek to add Hanni and Luddington as named defendants. The deadline for Plaintiffs to bring a motion to amend their pleadings in this case was April 4, 2017.[3] Plaintiff's motion was not filed until August 7, 2017, over four months after that deadline.[4] Plaintiffs attempt to explain the delay in bringing their motion by asserting that ...


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