Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01253-MSK-MJW

Document 97

Filed 04/12/2006

Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01253-MSK-MJW RICHARD TEBO, Plaintiff, v. LEVTZOW LIMO LLC, doing business as MOUNTAIN LIMO DELUXE LLC, Defendant.

DEFENDANT LEVTZOW LIMO LLC'S RESPONSE TO PLAINTIFF RICHARD TEBO'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Defendant, Levtzow Limo LLC, d/b/a Mountain Limo Deluxe LLC ("Levtzow"), by and through its counsel, Dewhirst & Dolven, LLC, hereby respond to Plaintiff Richard Tebo's Motion for Leave to File Second Amended Complaint as follows: 1. Levtzow has no opposition to Defendant's request to amend in order to delete any

reference to Laura Bakos, in order to delete any reference to Renee Tebo's physical injuries and in order to withdraw the Plaintiffs' claims for loss of consortium. These matters have already been addressed by means of other orders of the court and the amendment accordingly is merely procedural. 2. Levtzow objects to Tebo's Motion to Amend to the extent that it seeks to add a

new substantive claim for Negligence against Levtzow. Although Tebo seeks to characterize the requested amendment as simply adding allegations of fact, in reality Tebo is requesting to add an entirely new claim. In the Complaint and the First Amended Complaint, Tebo asserted that the driver, Laura Bakos, was primarily negligent and that Levtzow was only vicariously liable for

Case 1:04-cv-01253-MSK-MJW

Document 97

Filed 04/12/2006

Page 2 of 9

the driver's alleged negligence. The requested amendment would alter the substance and tenor of the case. 3. Pursuant to the Scheduling Order in this case, the deadline for filing any

amendment to the pleadings to add parties or claims was September 6, 2004. The proposed Second Amended Complaint has been submitted significantly after that deadline. 4. In support of the Motion for Leave to Amend, Tebo relies on Fed. R. Civ. P. 16(b)

and cites Colorado Visionary Academy v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000) as permitting its late request to amend. Despite its reliance on that case, Tebo quotes Medtronic, however, as stating that "Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Levtzow contends that Tebo may have had a sufficient factual basis to support the requested amendment even before the September 6, 2004 deadline and certainly long before April 6, 2006. Levtzow thus contends that Tebo was careless in failing to amend the complaint in a timely fashion. 5. Tebo asserts that the requested amendment is the result of newly discovered

evidence that did not become available until the depositions of Ms. Levtzow and Ms. Bakos in March 2006. Regardless of the circumstances surrounding the timing of the depositions,1 Levtzow contends that Tebo had sufficient information to support the amendment of the complaint as of August 26, 2004 and no later than September 30, 2004.

Levtzow does not suggest that any carelessness was involved in Tebo's failure to conduct the depositions of owner Darcy Levtzow and driver Laura Bakos prior to March 2006. However, Levtzow does note that the deposition deadline as set by the Court's scheduling order was September 30, 2005, and that such deadline was extended to November 7, 2005 by the stipulation of the parties during mediation. Tebo neither sought nor was granted an extension of that date by the court, although Levtzow's counsel did consent to the late scheduling of the depositions.

1

2

Case 1:04-cv-01253-MSK-MJW

Document 97

Filed 04/12/2006

Page 3 of 9

7.

On or about August 26, 2004, Levtzow's counsel, Dewhirst & Dolven, LLP,

served its First Supplemental Disclosures Pursuant to Rule 26(a)(1), which included disclosure of the following documents, among others: · Defendant Laura Bakos' personal file regarding the accident (Bates Label Nos. LVT 0555 to 0630); Defendant Laura Bakos' trip sheet file (Bates Label Nos. LVT 0631 to 0635); Defendant Laura Bakos' personnel file with Levtzow, LLC (Bates Label Nos. LVT 0636 to 0653); Maintenance records for Levtzow, LLC Dodge vans, including the van involved in the subject accident (Bates Label Nos. LVT 0654 to 0682). On or about September 30, 2004, Levtzow provided discovery responses to

· ·

· 8.

Tebo's First Set of Request for Production of Documents, including, once again, all documents relating to the maintenance of the subject vehicle and the personnel file of driver Laura Bakos. 9. It should have been apparent to Tebo, based upon these disclosures, that there was

no record of safety training or driver training of Laura Bakos while in the employ of Levtzow. (Levtzow does not concede that such training was not provided, only that it was not documented.) Consequently, a sufficient factual basis for the allegations set forth in ¶¶ 10 and 18 of the Proposed Second Amended Complaint was available to Tebo, and should have been discovered by Tebo in the exercise of reasonable diligence, as of September 2004. 10. Similarly, what was represented to be the entire maintenance record of the van

was produced to Tebo in the initial supplemental disclosure in August 2004, and in response to the first set of discovery requests in September 2004. Again, if he had exercised reasonable diligence in reviewing the produced documents, Tebo should have discovered the absence of documents relating to tire changes and steering mechanism repair as of September 2004. Therefore, a sufficient factual basis for the allegations of ¶¶ 11, 12, 19 and 20 of the proposed

3

Case 1:04-cv-01253-MSK-MJW

Document 97

Filed 04/12/2006

Page 4 of 9

Second Amended Complaint, was available to Tebo as of September 2004. (Again, Levtzow does not concede that the tire changes and steering repair were not performed, only that they were not documented.) 11. Tebo disingenuously represents that he learned "for the first time" during the

deposition of Darcy Levtzow on March 10, 2006 that the Colorado Public Utilities Commission has an enforcement division. (Motion for Leave to Amend, p. 6 of 18.) Only after that so-called "revelation" did Dr. Tebo's counsel make an open records request to the PUC for the records pertaining to Levtzow. Levtzow suggests that Tebo's representation is somewhat less than candid; it is no secret that the agency, referred to as the Public Utilities Commission, exists in the State of Colorado (as it does in every other state) and that such agency regulates common carriers, such as Levtzow Limo. Indeed, in the deposition of Darcy Levtzow, Tebo's counsel specifically asked Ms. Levtzow questions premised upon counsel's prior knowledge regarding Levtzow's PUC license: Q. And it took me a while to figure this out, but it looks like one permit you have is what they call a Common Carrier Permit, where you're allowed to do certain things and drive certain scheduled routes; is that right? Yes. And under your Common Carrier -- and you purchased that permit when you purchased the company? I did, yeah. And then you had to go to the PUC and get approved as the new owner of that permit? Yes. When I say "PUC," that's the Public Utility Commission of Colorado, right?

A. Q.

A. Q.

A. Q.

4

Case 1:04-cv-01253-MSK-MJW

Document 97

Filed 04/12/2006

Page 5 of 9

A.

Correct.

(Deposition of Darcy Levtzow, March 10, 2006, p. 11, line 11--p. 12, line 4.) Obviously, Tebo's counsel was aware of the existence of the Colorado Public Utility Commission of Colorado prior to conducting his deposition of Ms. Levtzow. 12. Indeed, Tebo's counsel indicated that he had spent a significant amount of time

"poking around on the Internet" regarding PUC regulations and even regarding Levtzow's participation in the PUC rule-making proceedings. (Deposition of Darcy Levtzow, p. 16, line 5--p. 17, line 11.) 13. Moreover, Tebo's counsel clearly was aware of the procedure for obtaining

documents from the PUC prior to Ms. Levtzow's deposition, as indicated by the following exchange made during that deposition: Q. Um, and do you send that notification to any particular part of the Public Utility Commission? Um, yeah, I guess, their enforcement agents, there would be one of three or three to four people. Do you know what -- who are the enforcement agents? Let me get at it this way. Here's what I'm trying to get at. If you sent that notice, it should be somewhere in the files of the Public Utility Commission. And rather than me having to search all the files of the Public Utility Commission, I'm trying to find out where you actually sent it so I can call that office and see if it's there. Well, then I would suggest contacting Bob Luaw, L-U-A-W. I did see his name on the Internet. Good. He may be able to help. That helps me.

A.

Q.

A. Q. A. Q.

(Deposition of Darcy Levtzow, p. 18, line 18--p. 19, line 15.) Tebo's counsel thus indicates that he knew of the existence of the PUC prior to the deposition of Ms. Levtzow and knew how to

5

Case 1:04-cv-01253-MSK-MJW

Document 97

Filed 04/12/2006

Page 6 of 9

obtain documents from the PUC. Maybe having the name of the enforcement officer assisted the PUC in locating the documents once Tebo's counsel requested them; however, Tebo's counsel does not assert that he had encountered any problems in trying to obtain documents in the absence of the officer's name. More likely, the documents were filed under the name of the permit holder, Levtzow; Tebo simply failed to request them in a timely fashion, and then Tebo relied upon the disclosure of the enforcement officer's name as a convenient excuse for his prior lack of diligence. 14. The factual information underlying ¶¶ 13, 26, 27 and 28 of the proposed Second

Amended Complaint thus was available to Tebo prior to the deposition of Levtzow in March 2006. 15. In support of its request to amend ¶¶ 14, 29, 30 and 31, Tebo misstates the

testimony of driver Laura Bakos as supporting the claim that Levtzow violated PUC regulations by requiring Ms. Bakos to operate the vehicle in excess of 10 hours on the day of the accident. Presumably, Tebo will try to argue that this situation contributed to the accident because Ms. Bakos was overly tired. In fact, the testimony (attached as Exhibit P to Tebo's Motion for Leave to Amend) supports only the hypothetical conclusion that, if Bakos had completed her route as directed, and if she had elected not to spend the night in Crested Butte after dropping off Tebo (as was an option), she would have driven more than 10 hours that day. That didn't happen. Consequently, the hypothetical situation is irrelevant and cannot be used to support an amendment to the complaint to assert a claim for per se negligence. 16. As noted above in paragraph 4, Tebo relies on Rule 16(b) and his asserted lack of

carelessness in support of his dilatory Motion for Leave to Amend. However, Levtzow suggests

6

Case 1:04-cv-01253-MSK-MJW

Document 97

Filed 04/12/2006

Page 7 of 9

that, as was true in Medtronic, in this case the delay in seeking the amendment was the result of the party's failure to do the necessary research earlier in the case. 17. Levtzow contends, moreover, that even under the more lenient standard of Fed. R.

Civ. P. 15(a), the requested amendment should be denied. Rule 15(a) states that leave to amend "shall be freely given when justice so requires." Leave to amend is generally refused only on "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. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). In the Tenth Circuit, untimeliness alone is an adequate reason to refuse leave to amend. Id. 18. The case law interpreting and applying Rule 15(a) requires that, although

amendments may be liberally allowed, "a late shift in the thrust of the case" shall not be permitted to prejudice the other party in maintaining his defense upon the merits. Evans v. McDonald's Corp., 936 F.2d 1087, 1090-91 (10th Cir. 1991) (internal quotation omitted). The general rule does not permit a plaintiff to wait until the last minute to ascertain and refine the theories on which he intends to build his case. Id. at 1091; Vernow v. Euripides Dev. Corp. 153 F.3d 785, 790 (10th Cir. 1998). 19. Tebo's Motion for Leave to Amend was filed at the eleventh hour. The trial is

scheduled to begin on May 22, 2006, a mere six weeks from now. The requested amendment would significantly shift the thrust of the case, from a case of vicarious liability based upon the performance of the driver on a dark winter's night, to a primary negligence claim based upon the long-term policies and performance of the van company. The requested amendment is untimely and is the result of Tebo's failure to develop his case in a diligent fashion. Consequently, the Motion for Leave to Amend should be denied.

7

Case 1:04-cv-01253-MSK-MJW

Document 97

Filed 04/12/2006

Page 8 of 9

WHEREFORE, Defendant Levtzow requests that the Motion for Leave to File Second Amended Complaint be denied. Respectfully submitted this 12th day of April 2006. DEWHIRST & DOLVEN, LLC

_________ s/ Patrick J. Maggio Miles M. Dewhirst Patrick J. Maggio 102 S. Tejon Street, Suite 500 Colorado Springs, CO 80903 (719) 520-1421 ATTORNEYS FOR DEFENDANT

8

Case 1:04-cv-01253-MSK-MJW

Document 97

Filed 04/12/2006

Page 9 of 9

CERTIFICATE OF SERVICE I hereby certify that on this 12th day of April 2006, I electronically filed the foregoing DEFENDANT LEVTZOW LIMO LLC'S RESPONSE TO PLAINTIFF RICHARD TEBO'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following email addresses: THE KERENSKY LAW FIRM Michael W. Kerensky, Esq. 5300 Memorial Drive, Suite 950 Houston, TX 77007 [email protected] BREIT BOSCH COPPOLA & MARLIN, P.C. William C. Marlin, Esq. Michael T. Leinz, Esq. 1512 Larimer St, Suite 900 Denver, Co 80202 [email protected] George M. Allen, Esq. 206 Society Dr., Suite A Telluride, CO 81455 [email protected] and I hereby certify that I have mailed or served the document to the following non CM/EFC participants in the following manner indicated by the non participants name: Darcy Levtzow Levtzow Limo LLC d/b/a Mountain Limo 1500 Last Dollar Road Telluride, CO 81435

s/ Tonya D. Feigt Tonya D. Feigt

9