United States District Court, D. Utah
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
MEMORANDUM RULING & ORDER
B. PEAD, U.S. MAGISTRATE JUDGE.
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.
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.
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.)
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).
Plaintiff Has Shown Good Cause For Not Meeting The Scheduling
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.
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.
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.
Amendment Is ...