Walters v. S&F Holdings LLC, Civil Action No. 14-cv-02006-REB-MJW

• Decision Date: 13 July 2015
• Docket Number: Civil Action No. 14-cv-02006-REB-MJW
• Parties: BRIANNA WALTERS, Plaintiffs, v. S & F HOLDINGS LLC, dba "WILLOW RIDGE MANOR," GREGORY SARGOWICKI, JASON SCHUH, and STACIE SCHUH, Defendants.
• Court: U.S. District Court — District of Colorado

BRIANNA WALTERS, Plaintiffs, v. S & F HOLDINGS LLC, dba "WILLOW RIDGE MANOR," GREGORY SARGOWICKI,JASON SCHUH, and STACIE SCHUH, Defendants.

Civil Action No. 14-cv-02006-REB-MJW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

July 13, 2015

RECOMMENDATION ON

(1) PLAINTIFF'S MOTION TO AMEND (Docket No. 36),

(2) DEFENDANTS S & F HOLDINGS LLC DBA WILLOW RIDGE MANOR AND GREGORY SARGOWICKI'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT TO FED.R.CIV.P. 12(B)(6) (Docket No. 16), and(3) JASON AND STACIE SCHUH'S JOINDER IN DEFENDANTS S & F HOLDINGS LLC DBA WILLOW RIDGE MANOR AND GREGORY SARGOWICKI'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT TO FED.R.CIV.P. 12(B)(6) (Docket No. 25)

MICHAEL J. WATANABE United States Magistrate Judge

This case is before this court pursuant to an Order Referring Case issued by Judge Robert E. Blackburn on July 21, 2014 (Docket No. 3).

Plaintiff, Brianna Walters, alleges the following in her Second Amended Complaint (Docket No. 35).¹ On July 28, 2012, plaintiff was attending the wedding of defendantsJason and Stacie Schuh. The wedding was at the "Willow Ridge Manor," which is owned by defendants S & F Holdings, LLC, and Gregory Sargowicki. (hereinafter collectively referred to as "the Manor defendants"). Jason and Stacie Schuh were utilizing or leasing the premises from the Manor defendants. Plaintiff was bitten by a rattlesnake and suffered severe, debilitating injuries. The Manor defendants have admitted they knew rattlesnakes were on the property. All defendants failed to warn and protect their business invitees and licensees properly of the danger of rattlesnakes as required under Colorado law. Plaintiff incurred over $170,000 in medical specials due to her serious injuries and the substantial cost of medical treatment for rattlesnake bites. In addition, her injuries impaired her ability to earn income, and she has and will lose wages due to her injuries.

In her first claim, plaintiff alleges negligence. She was an invitee on the premises (owned by the Manor defendants and leased or otherwise rented by the Schuhs). Her injury was caused by defendants' negligence and failure to warn of rattlesnakes. Defendants negligently allowed the dangerous conditions to exist, negligently failed to remedy the unreasonably dangerous conditions (rattlesnakes on the property), and negligently or willfully failed to warn plaintiff of the conditions despite the fact that defendants knew, or in the exercise of ordinary care, should have known of the conditions and that there was a likelihood of someone being seriously injured. Defendants were also negligent in failing to protect and safeguard plaintiff from the unreasonably dangerous conditions, in failing to warn plaintiff of the unreasonably dangerous conditions, and in failing to establish and enforce adequate procedures and precautions to ensure that invitees and licensees were not injured. In addition, agents, employees, and/or borrowedservants of the defendants were negligent in failing to warn of the dangerous condition and protect the invitees and licensees. Defendants negligently failed to provide adequate manpower, equipment, training, and supervision to their agents, employees, and/or borrowed servants.

In her second claim, plaintiff alleges gross negligence. At the time of the incident, defendants willfully and wantonly operated a location with the purpose of hosting events for business without regard for the rights and safety of the patrons, unlike a person of ordinary prudence under the same or similar circumstances. Defendants willfully and wantonly failed to maintain a safe environment with properly implemented procedures or warn of the hazards on the property, without regard for the rights and safety of others. Defendants recklessly allowed plaintiff to be hurt with willful or wanton disregard for her safety and willfully and wantonly disregarded the known risks, without regard for the rights and safety of others. Defendants' conduct constitutes a reckless disregard for the rights of others and/or was the result of conscious indifference to the rights, welfare, and safety of others. Accordingly, defendants were grossly negligent, and such gross negligence was a proximate cause of plaintiff's damages.

The third claim is under the doctrine of respondeat superior; defendants are liable for the negligence of each other because the employees and/or agents of each defendant were acting in the course and scope of their employment with the defendants at all relevant times.

The fourth claim is under a theory of joint enterprise; defendants are liable for the negligence of each other because an express or implied agreement among defendant existed, a common purpose was to be carried out by defendants, a common pecuniaryinterest in that purpose existed among the defendants, and an equal right to control the enterprise existed.

Now before the court for a report and recommendation are the following motions: (1) Plaintiff's Motion to Amend (Docket No. 36),² (2) Defendants S & F Holdings LLC DBA Willow Ridge Manor and Gregory Sargowicki's Motion to Dismiss for Failure to State a Claim Pursuant to Fed.R.Civ.P. 12(b)(6) (Docket No. 16), and (3) Jason and Stacie Schuh's Joinder in Defendants S & F Holdings LLC DBA Willow Ridge Manor and Gregory Sargowicki's Motion to Dismiss for Failure to State a Claim Pursuant to Fed.R.Civ.P. 12(b)(6) (Docket No. 25). Plaintiff filed a combined opposition to the motions to dismiss (Docket No. 28), and defendants filed replies (Docket Nos. 30 and 31). Defendants filed responses to the motion to amend (Docket Nos. 38 and 40), and plaintiff filed a reply (Docket No. 42). The court has carefully reviewed these motion papers as well as applicable Federal Rules of Civil Procedure and case law. In addition, the court has taken judicial notice of the court file. The court now being fully informed makes the following findings, conclusions of law, and recommendations.

Motion to Amend

Plaintiff seeks to amend her pleading to include breach of contract claims and to add exemplary damages. She asserts that discovery has provided her with the contract between the defendants and defendants' deposition testimony, both of which she claims demonstrate she is an intended third-party beneficiary of the contract. Furthermore, sheasserts this new evidence also demonstrates that defendants engaged in willful and wanton conduct, which they realized as dangerous, but ignored these risks and acted recklessly without regard to the consequences, rights, and safety of others, including plaintiff, warranting exemplary damages.

The court finds the following with regard to plaintiff's motion to amend to include breach of contract claims. The motion to amend was filed on April 30, 2015, almost five months after the December 1, 2014, deadline for amendment of pleadings (see Scheduling Order, Docket No. 23 at 7; Docket No. 21 at 1). Since the motion was made after the deadline for amendment of pleadings, this court has applied the following analysis in deciding whether to allow the amendments:

Where, as here, a motion to amend the pleadings . . . is filed after the scheduling order deadline, a "two-step analysis" is required. Once a scheduling order's deadline for amendment has passed, a movant must first demonstrate to the court that it has "good cause" for seeking modification of the scheduling deadline under Rule 16(b). If the movant satisfies Rule 16(b)'s "good cause" standard, it must then pass the requirements for amendment under Rule 15(a) . . . .

Rule 16(b)'s "good cause" standard is much different than the more lenient standard contained in Rule 15(a). 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 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, this 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." Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.

Pumpco, Inc. v. Schenker Int'l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (quotations and citations omitted). The second step is consideration of whether the plaintiff has satisfied the standard for amendment of pleadings required under Fed. R. Civ. P.15(a):

Rule 15(a) provides that leave to amend "shall be freely given when justice so requires." 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.

Id. at 669 (citation omitted). Based upon this standard, and substantially for the reasons stated in the responses to the motion to amend, this court recommends that the proposed amendments should not be permitted.

As the Schuh defendants correctly note, in the original Complaint, plaintiff plead that there was a lease between them and the Manor defendants. (See Docket No. 1, ¶ 9). Moreover, the Manor defendants disclosed the License Agreement to plaintiff as part of their initial disclosures on October 15, 2014. (See Defs.' Ex. A - Docket No. 38-1). Plaintiff thus had the information to form the basis for the breach of contract claims she seeks to add weeks before the deadline for amending pleadings, yet she waited until months after that deadline to file her motion to amend. The court, therefore, concludes that the plaintiff has not demonstrated good cause for seeking modification of the scheduling deadline to allow for the amendment adding breach of contract claims.

The court now turns to the motion to amend to add a claim for exemplary damages. As stated above, leave to amend shall be...