KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on Defendant's
In short, this case involves a pool-side injury to a child while she and her family were guests at Defendant's motel located in the State of Colorado. In the proposed Second Amended Complaint [#36-1], Plaintiffs seek to dismiss their negligence claim and replace it with a claim under the Colorado Premises Liability Act, Colo. Rev. Stat. § 13-21-115, and to assert a claim for exemplary damages. See Motion to Amend [#36]; Reply [#43]. Defendant opposes amendment with respect to both claims. See Response [#41].
The Court has discretion to grant a party leave to amend its pleadings. Foman v. Davis, 371 U.S. 178, 182 (1962); see Fed. R. Civ. P. 15(a)(2) ("The court should freely give leave when justice so requires."). "In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave sought should, as the rules require, be `freely given.'" Id. (quoting Fed. R. Civ. P. 15(a)(2)).
With respect to the proposed claim under the Colorado Premises Liability Act, Defendants argue that Plaintiffs' Motion to Amend is untimely. Response [#41] at 1-2. The Court agrees with this assessment. First, the deadline for joinder of parties and amendment of pleadings was July 1, 2015. See Scheduling Order [#20] at 8. Plaintiffs' Motion, which does not seek amendment of the Scheduling Order to extend this deadline, is therefore untimely. Plaintiffs offer no explanation for failing to meet this deadline under Fed. R. Civ. P. 16(b) or for waiting until October 1, 2015, to request this amendment under Fed. R. Civ. P. 15(a)(2).
However, delay is "undue" only if it will place an unwarranted burden on the Court or become prejudicial to the opposing party. Minter, 451 F.3d at 1205. Potential prejudice to a defendant is the most important factor in considering whether a plaintiff should be permitted to amend the complaint. Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006). "Courts typically find prejudice only when the [proposed] amendment unfairly affects the defendants in terms of preparing their defense to [claims asserted in the] amendment." Id. (quotation omitted). Here, there is no argument or other indication that Defendant would suffer any prejudice as a result of allowing this amendment. Defendant knew (and informed Plaintiffs) no later than February 20, 2015, that Plaintiffs' common law negligence claim was superseded by the Colorado Premises Liability Act. See Answer [#1-8, #5] at 2. Further, the Proposed Scheduling Order
The Court notes that this request for amendment presents a close call. While Plaintiffs are blameworthy for not seeking this amendment much sooner, Defendant has long been aware of this issue (and thus suffers no surprise) and has identified no prejudice to its defense of this matter. However, given that potential prejudice is "the most important factor" in deciding whether to permit amendment, see Minter, 451 F.3d at 1207, and that there appears to be none, the Court will allow this amendment.
Accordingly, the Motion to Amend [#36] is
Regarding Plaintiffs' second proposed claim for exemplary damages, Defendant argues that this claim is futile because Plaintiffs have failed to allege that the asserted injury was attended by circumstances of fraud, malice, or willful and wanton conduct. Response [#41] at 2-4. An amendment is futile only if it would not survive a motion to dismiss. See Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing Jefferson Cnty. Sch. Dist. v. Moody's Investor's Servs., 175 F.3d 848, 859 (10th Cir. 1999)). "In ascertaining whether plaintiff[s'] proposed amended complaint is likely to survive a motion to dismiss, the court must construe the complaint in the light most favorable to plaintiff[s], and the allegations in the complaint must be accepted as true." See Murray v. Sevier, 156 F.R.D. 235, 238 (D. Kan. 1994). Moreover, "[a]ny ambiguities must be resolved in favor of plaintiff[s], giving [them] `the benefit of every reasonable inference' drawn from the `well-pleaded' facts and allegations in [the] complaint." Id.
Colo. Rev. Stat. § 13-21-102(1.5)(a) provides, in relevant part:
The appropriate test is whether Plaintiffs have provided prima facie evidence of willful and wanton behavior, not whether the Court believes that a jury could find beyond a reasonable doubt that exemplary damages are warranted. See, e.g., Am. Econ. Ins. Co. v. William Schoolcraft, No. 05-cv-01870-LTB-BNB, 2007 WL 160951, at *4 (D. Colo. Jan. 17, 2007) (emphasizing that in resolving request to amend pursuant to Colo. Rev. Stat. § 13-21-102, court should consider only the "preliminary question" of whether moving parties made prima facie case, not whether any party will ultimately be entitled to those damages).
The statute contemplates that the discovery process will provide the requisite prima facie evidence to support a claim for exemplary damages. See Stamp v. Vail Corp., 172 P.3d 437, 449 (Colo. 2007). Prima facie proof of a triable issue of exemplary damages is established by "a showing of a reasonable likelihood that the issue will ultimately be submitted to the jury for resolution." Id.; see also Colo. Rev. Stat. § 13-25-127(2) ("Exemplary damages against the party against whom the claim is asserted shall only be awarded in a civil action when the party asserting the claim proves beyond a reasonable doubt the commission of a wrong under the circumstances set forth in section 13-21-102.").
Pursuant to Colo. Rev. Stat. § 13-21-102(1)(a), the circumstances under which the wrongful act must have been committed include fraud, malice, or willful and wanton conduct. Here, Plaintiffs do not assert that Defendant engaged in fraudulent or malicious conduct, but they do assert that Defendant's behavior was willful and wanton.
Colorado law defines "willful and wanton conduct" as "conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others." Colo. Rev. Stat. § 13-21-102(1)(b). The Colorado Supreme Court has noted that "[w]here the defendant is conscious of his conduct and the existing conditions and knew or should have known that injury would result, the statutory requirements" are met. Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59, 66 (Colo. 2005). Accordingly, the Court must consider whether Plaintiffs have offered evidence to establish a prima facie case that "[D]efendant [was] conscious of his conduct and the existing conditions and knew or should have known that injury would result," in order to determine whether Plaintiffs may be permitted to include a claim for exemplary damages. Coors, 112 P.3d at 66.
In the proposed Second Amended Complaint, Plaintiffs allege that when Plaintiff Terese Martinez was leaving Defendant's pool area, "she slipped off a ramp that failed to have any anti-slip, railing or other safety measure(s) in place in order to protect invited guests from falling." Proposed Second Am. Compl. [#36-1] ¶ 7. They allege that "Defendant had constructive and implied notice of the condition of the premises," and that "[t]he ramp did not comply with ADA standards." Id. ¶¶ 10-11. They also allege that "[t]he area where the subject incident occurred is adjacent to the swimming pool on Defendant's premises and Defendant knew, or should have known, of the increased danger to invited guests due to the activities conducted on the subject premises," and that "[t]he conduct of Defendant was reckless, wanton, and with utter disregard for the rights, safety and/or consequences to the public, specifically Plaintiff Terese Martinez . . . ." Id. ¶¶ 27-28. Plaintiffs recite no evidence in support of these allegations in the proposed Second Amended Complaint.
Plaintiffs have failed to meet their burden of presenting a prima facie case of reckless or willful and wanton behavior. Even aside from the failure to provide evidence, the allegations alone simply assert that Defendant could have done more to prevent accidental slippage on the ramp; this, by itself, does not mean that Defendant behaved in a reckless or willful and wanton manner. For example, in Thiess v. Mercer, No. 09-cv-02931-CMA-KLM, 2010 WL 1856286, at *2 (D. Colo. May 7, 2010) (quoting Coors, 112 P.3d at 66), the Court found that the following conduct demonstrated that the defendants were "conscious of [their] conduct and the existing conditions and knew or should have known that injury would result. . . ."
Plaintiffs claim that Plaintiff Derek Thiess' copious attempts to keep
In Innovatier, Inc. v. Cardxx, Inc., No. 08-cv-00273-PAB-KLM, 2010 WL 5014488, at *3 (D. Colo. Dec. 3, 2010), the Court held that a misappropriation counterclaim was sufficiently supported to make a prima facie case for exemplary damages when the evidence in part consisted of the following:
(internal citations omitted). Further, in Siemens v. Romero, No. 09-cv-02065-KLM-CBS, 2010 WL 427893, at *3 (D. Colo. Feb. 3, 2010), the Court held that the following conduct was sufficient to state a prima facie case for exemplary damages:
As a final example, in Cunningham v. Standard Fire Ins. Co., No. 07-cv-02538-REB-KLM, 2008 WL 4371929, at *2 (D. Colo. Sept. 23, 2008), the Court held that the following conduct in this insurance dispute was sufficient to state a prima facie case for exemplary damages:
(internal citation and quotation marks omitted). Even aside from the failure to provide evidentiary support, the allegations provided by Plaintiffs in support of a claim for exemplary damages simply do not meet the threshold of demonstrating a prima facie case of willful and wanton behavior on the part of Defendant, as demonstrated by these cases.
However, given that leave to amend should be freely given under Fed. R. Civ. P. 15(a)(2), that inclusion of a claim for exemplary damages is prohibited in the initial pleading and only allowed after the plaintiff establishes prima facie proof of a triable issue under Colo. Rev. Stat. § 13-21-102(1.5)(a), and that the parties' discovery deadline was November 2, 2015 (approximately one month after the filing of this Motion [#36]), the request to add exemplary damages should be denied without prejudice, in the event that the parties' final phase of discovery uncovered evidence allowing Plaintiffs to establish prima facie proof of a triable issue on exemplary damages.
Accordingly, the Motion to Amend [#36] is
For the foregoing reasons,
IT IS HEREBY
IT IS FURTHER
IT IS FURTHER
IT IS FURTHER
IT IS FURTHER
