Free Order on Appeal of Magistrate Judge Decision to District Court - District Court of Colorado - Colorado

Case 1:04-cv-01099-JLK-DW

Document 240

Filed 12/12/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1099-JLK-DLW WOLF CREEK SKI CORPORATION, INC., Plaintiff, v. LEAVELL-McCOMBS JOINT VENTURE, d/b/a VILLAGE AT WOLF CREEK, Defendant. ________________________________________________________________________ ORDER ________________________________________________________________________ KANE, J. This matter is before me on the Defendant Joint Venture' Objection to the s Findings and Order of the Magistrate Judge Re: Defendant' Motion to Amend s Scheduling Order (Doc. 230). Defendant objects to the Magistrate Judge' refusal to s amend the Scheduling Order to allow Defendant to add an expert to explain the costs of the Snow Shed Road. The Magistrate Judge denied the Motion to Amend under a " diligence"standard for establishing good cause. Order (Doc. 218) at 4-5 (citing Marcin Eng' L.L.C. v. Founders at Grizzly Ranch L.L.C., 219 F.R.D. 516, 521 (D. Colo. g, 2003)(Kane, J.)). In doing so, the Magistrate Judge rejected Defendant' argument that s the correct standard to evaluate motion to amend scheduling orders is not the " diligence" standard of Marcin but the " good cause"standard of Smith v. Ford Motor Co., 626 F.2d 784 (10th Cir. 1980). Id. at 4. The Magistrate Judge distinguished Smith, stating Smith

Case 1:04-cv-01099-JLK-DW

Document 240

Filed 12/12/2006

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addressed modification of a pretrial order under Rule 16(e) " prevent manifest to injustice"and not a modification of a scheduling order under Rule 16(b)). Id. In its Objection, Defendant persists in this argument, citing Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 604 (10th Cir. 1997). Defendant points out that Summers, while it relies on Smith for its four-factor good cause test, does not involve a request to amend a pretrial order, but to amend a scheduling order, under circumstances similar to the ones presented, to add an expert witness well before any scheduled trial. Defendants are not incorrect that Summers provides an applicable standard for determining " good cause"under Rule 16(b). Given the history of this case and the Magistrate' efforts at s consistency with previous rulings on efforts to amend the scheduling order, however, I do not find he ran afoul of the law in this circuit by relying on Marcin and a diligence standard for good cause under the Rule. The standard of review of magistrate judge decisions on non-dispositive pretrial matters is " reconsideration . . . where it has been shown that the magistrate judge' order s is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). I decline to reconsider Magistrate Judge West' ruling under this standard as his reliance on Marcin s is not " erroneous"(and probably undertaken precisely because the Marcin decision was mine) and may indeed be completely in conformance with the standard approved by the Tenth Circuit in Summers. While I will not reconsider the Magistrate' Order under the s four-part test for good cause under Summers, the Magistrate Judge is free to do so should he believe it just. The Magistrate Judge is under no obligation to apply Marcin solely
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Case 1:04-cv-01099-JLK-DW

Document 240

Filed 12/12/2006

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because it is my case. The Joint Venture' Objection to the Magistrate Judge' Order Re: Motion to s s Amend Scheduling Order (Doc. 23) is OVERRULED.

Dated December 12, 2006

s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

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