Carroll v. Jefferson Cnty. Sheriff's Office
| Decision Date | 16 April 2020 |
| Docket Number | Civil Action No. 19-cv-02132-RM-MEH |
| Parties | DEBRA CARROLL, Plaintiff, v. JEFFERSON COUNTY SHERIFF'S OFFICE, CODY JANN, in his individual and official capacities, THERESE S. GIST, in her individual and official capacities, JEFFERSON COUNTY LIBRARY SYSTEM, SHERYL DITTON, in her individual and official capacities, EMILY KOLM, in her individual and official capacities, CENTURA HEALTH CORPORATION d/b/a LITTLETON ADVENTIST HOSPITAL, DEVIN C. BATEMAN, M.D., in his individual and official capacities, TIMOTHY HIRSCH, P.A., in his individual and official capacities, and JOHN AND JANE DOES 1-10, Defendants. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Debra Carroll, proceeding pro se in this case ("Plaintiff"), has filed a second motion seeking leave to amend her claims. ECF 107. Defendants Timothy Hirsch, P.A. ("Hirsch"), Devin Bateman, M.D. ("Bateman"), and Littleton Adventist Hospital ("LAH") (collectively, "Medical Defendants") filed responses in opposition to the motion, in which they incorporate by reference their pending motions to dismiss to demonstrate the "futility" of certain amendments. For the following reasons, the Court recommends that the Honorable Raymond P. Moore grant in part and deny in part the Plaintiff's motion to amend, grant the Medical Defendants' motions to dismiss, and deny without prejudice the motion to dismiss filed by the remaining named Defendants.1
The Complaint in this case was filed on July 25, 2019. ECF 1. Defendants responded by filing a total of four Motions to Dismiss (in lieu of answers) in August and September 2019. ECF 10, 14, 16, 29. On November 12, 2019, the deadline for joinder of parties and amendment of pleadings, Plaintiff filed her original motion seeking leave to file a "First Amended Complaint," then with the Court's permission, re-filed the motion on November 20, 2019. The Court granted the motion in part, but denied without prejudice (as "premature") Plaintiff's motion to add a request for exemplary damages. The operative First Amended Complaint was filed the same day. In response, Defendants again filed four Motions to Dismiss in lieu of answers in mid-December 2019. ECF 89, 92, 93, 94. Plaintiff filed the present motion seeking leave to file a Second Amended Complaint on February 18, 2020, just after filing responses to the pending motions to dismiss.
In this action, Plaintiff alleges generally that Defendants violated her rights to due process and equal protection, and unlawfully arrested and detained her, in response to an assault against the Plaintiff at a public library in Jefferson County on July 29, 2017. See Am. Compl., ECF 82. In the present motion to amend, Plaintiff notes that Defendants' pending motions to dismiss all argue thatthe operative pleading is verbose, rambling, disjointed, conclusory, unwieldy, and replete with "an exhaustive recitation of statutes and administrative rules." She contends that she is "appreciative of opposing counsel's comments" and "intends to address these concerns in her Second Amended Complaint." Plaintiff asserts that she "recognizes the lumping together of Defendants" and "believes that she can improve readability and organizational issues which include repetition[] and verbosity."
Citing opinions from Colorado appellate courts, Defendant Hirsch counters that Plaintiff's amendments are untimely, unduly prejudicial, and futile, since her amendments fail to state plausible claims for relief against Hirsch. Defendant Bateman similarly argues that Plaintiff's amendments are unduly delayed, prejudicial, and futile, particularly because the Plaintiff has not and "cannot" plausibly allege that Bateman is a state actor and Plaintiff failed to submit a Certificate of Review in accordance with the applicable Colorado statute. Defendant LAH responded contending that it, too, is not a state actor, and the proposed amendments would not survive a motion to dismiss. These Defendants incorporate by reference their pending motions to dismiss.
Plaintiff replies that good cause exists for her amendments which "clarify" the "insufficiencies" in her First Amended Complaint, some of which are derived from "new evidence" she "received from a third party." She further contends that, in response to arguments that Hirsch and Bateman are not employees of the hospital, she seeks to add the hospital's chief executive officer, Jillyan McKinney, as a Defendant. Plaintiff also asserts that she has determined to drop Emily Kolm and Therese Gist as Defendants. Plaintiff states that she has been diligent in seeking and obtaining (despite the stay of discovery in this case) documents related to the incidents at issue, and that additional discovery (when the stay is lifted) will support her claims. She also argues that the discovery stay ensures that no party will suffer prejudice with a grant of her amendments.
Adjudication of the Plaintiff's motion to amend will require review and consideration of the Medical Defendants' motions to dismiss. Accordingly, the Court will examine and apply the following legal standards for these pending motions.
Depending on the date filed, Plaintiff's motion may necessitate an amendment of the Scheduling Order under Fed. R. Civ. P. 16(b), which would require that Plaintiff show good cause. Fed. R. Civ. P. 16(b)(4); Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006) . Here, the Scheduling Order provides that the deadline for the parties to amend the pleadings was November 12, 2019 (ECF 48 at 15), but that deadline was extended to November 20, 2019 (ECF 77). The current motion was filed on February 18, 2020. Because Plaintiff seeks leave to amend the First Amended Complaint after the Scheduling Order's deadline for amendment of pleadings, the motion implicates both Rules 15 and 16.
Rule 16 dictates that "[a] schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "After a scheduling order deadline, a party seeking leave to amend must demonstrate (1) good cause for seeking modification under Fed. R. Civ. P. 16(b)(4) and (2) satisfaction of the Rule 15(a) standard." Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015) (quoting Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014)).
Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000) (quoting Dilmar Oil Co., v. Federated Mut. Ins. Co., 986 F. Supp. 959, 980 (D.S.C. 1997)). "Rule 16's good cause requirement may be satisfied, for example, if a plaintiff learns new information through discovery or if the underlying law has changed." Gorsuch, 771 F.3d at 1240. However, "[a] litigant's failure to assert a claim as soon as he could have is properly a factor to be considered in deciding whether to grant leave to amend." Perez v. Denver Fire Dep't, 243 F. Supp. 3d 1186, 1200 (D. Colo. 2017). "To demonstrate good cause pursuant to Rule 16, the moving party must . . . 'provide an adequate explanation for any delay.'" Lehman Bros. Holdings Inc. v. Universal Am. Mortg. Co., LLC, 300 F.R.D. 678, 681 (D. Colo. 2014) (quoting Strope v. Collins, 315 F. App'x 57, 61 (10th Cir. 2009)); D.R. Horton, Inc.-Denver v. Travelers Indem. Co. of Am., 281 F.R.D. 627, 630 (D. Colo. 2012). Further, a court may consider the procedural posture of a case in a Rule 16(b) "good cause" analysis. See Nicastle v. Adams Cty. Sheriff's Office, No. 10-cv-00816-REB-KMT, 2011 WL 1465586, at *3 (D. Colo. Mar. 14, 2011), rec. adopted, 2011 WL 1464588 (D. Colo. Apr. 18, 2011).
Rule 15 states that after the deadline for amending a pleading as a matter of course, Fed. R. Civ. P. 15(a)(2). 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." Maloney v. City of Pueblo, 323 F.R.D. 358, 360 (D. Colo. 2018) (quoting 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 byamendments previously allowed, or futility of amendment." Id. (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)).
Prejudice in this context arises when the amendment unfairly affects the opposing party "'in terms of preparing their defense to the amendment.'" Minter, 451 F.3d at 1208 (quoting Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971)). Prejudice occurs most often "when the amended claims arise out of a subject matter different from what was set forth in the complaint and raise significant new factual issues." Id.
The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. Sutton v. ...
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