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Lambe v. Sundance Mountain Resort

United States District Court, D. Utah

September 21, 2018

JOHN S. LAMBE for and on behalf of the heirs of LISA LAMBE, deceased, Plaintiff,
SUNDANCE MOUNTAIN RESORT, a Utah corporation; TERRA-NOVA, a Utah limited liability company; ZIP INSTALL, a Utah limited liability company; LEI CONSULTING ENGINEERS AND SURVEYORS, a Utah corporation; A-PLUS AFFORDABLE TREE SERVICE, a Utah limited liability company; AFFORDABLE TREE CARE, a Utah corporation, dba AFFORDABLE TREE SERVICE AND STUMP REMOVAL; ZIP TOUR, a Utah limited liability company; ZIP RIDER, a Utah limited liability company; MITCHELL EXCAVATION, a Utah corporation; VERSA INTERGRITY GROUP, a corporation; SUNDANCE PARTNERS, a limited partnership; and DOES I-X, Defendants.

          District Court Judge Jill N. Parrish




         This case is referred to the undersigned by the District Court pursuant to 28 U.S.C. §636(b)(1)(A). (ECF No. 70.) Before the court is Plaintiff John Lambe's Motion for Leave to Amend Complaint. (ECF No. 112.) The court has carefully considered the memorandum submitted by the parties and the relevant legal authorities. Pursuant to civil rule 7-1(f) of the United States District Court for the District of Utah Rules of Practice, the court elects to determine this motion on the basis of the written memoranda and finds oral argument is not necessary. See DUCivR 7-1(f). For the reasons set for below, the Court GRANTS Plaintiff's Motion to Amend.


         Plaintiff John Lambe filed his initial complaint, as the personal representative of his deceased spouse Lisa Lambe, on January 5, 2017. (ECF No. 2). After several amendments, on November 1, 2017, Plaintiff filed the current, operative Fourth Amended Complaint. (ECF No. 66); See also Amended Complaint (ECF No.4), Second Amended Complaint (ECF No. 22), Third Amended Complaint. (ECF No. 24.) Mr. Lambe alleges that his wife died as a result of injuries sustained from a tree top that struck her while she was riding the Sundance Zip Tour zipline at Sundance Mountain Resort. Plaintiff raises claims against Sundance Mountain Resort, Sundance Partners, Terra Nova and others for gross negligence in operating the zip-line and the wrongful death of his wife.[1]

         An Amended Scheduling Order was entered on January 5, 2018. (ECF No. 97.) Under that Order, the date to amend pleadings was moved to April 30, 2018. On August 16, 2018, after the date for amendment had passed, Plaintiff filed a motion to amend to add a punitive damages claim against Defendants Sundance Mountain Resort and Sundance Partners. (ECF No. 112.) Defendants oppose the motion asserting that amendment is futile. (ECF No. 114.)


         Mr. Lambe seeks to add a claim for punitive damages after the date for amendment of the pleadings has expired. To amend at this stage of the proceedings, Plaintiff must show: (1) good cause for not meeting the scheduling deadline; and (2) satisfaction of the amendment standard set forth under Federal Rule of Civil Procedure 15. See Fed. R. Civ. P. 16(b), Fed.R.Civ.P. 15(a).

         I. Plaintiff Has Shown Good Cause For Not Meeting The Scheduling Deadline.

         The last day to amend the pleading was April 30, 2018. Plaintiff claims, however, that new facts were uncovered after the April 30th date at Terra Nova's June 18, 2018 deposition and Czar Johnson's July 11, 2018 deposition. See Fourth Amended Notice of Depositions (ECF No. 112-4.) According to Plaintiff, the testimony shows that on the day of the accident Defendants were aware of zip-line risks but acted in conscious disregard of that danger.

         A scheduling order may be modified “only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). The good cause standard of Rule 16(b) “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.” Colorado Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000). Properly construed, “good cause” means that scheduling deadlines cannot be met despite a party's diligent efforts. See Id. Rule 16's good cause requirement may be met where “a plaintiff learns new information through discovery or if the underlying law has changed.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015) (citing Gorsuch Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014).

         Defendants do not address the request for modification and do not challenge Plaintiff's diligence in meeting scheduling order deadlines. Accordingly, given that new information was obtained at depositions taken after the date for amendment expired, there is good cause for modification of the scheduling order to allow Plaintiff to seek leave to amend.

         II. Amendment Is ...

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