Free Order on Motion for Leave - District Court of Colorado - Colorado

Case 1:04-cv-01062-ZLW-BNB

Document 114

Filed 09/14/2005

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Zita L. Weinshienk Civil Action No. 04-cv-1062-ZLW-BNB THE QUIZNO'S MASTER LLC and THE QUIZNO'S FRANCHISE COMPANY LLC, Plaintiffs, v. R&B MANAGEMENT GROUP, LLC, an Alabama limited liability company, ROYCE GWIN, an individual, and REBECCA GWIN, an individual, Defendants.

ORDER

The matter before the Court is Quizno' Motion For Leave To Amend Answer To s Add Affirmative Defense. Plaintiffs seek leave to amend their Answer To Defendants' Amended Counterclaims to assert a statute of limitations affirmative defense. Fed. R.
Civ. P. 15(a) requires that leave to amend pleadings shall be freely given " when justice so requires." The U.S. Supreme Court has held that, [i]n 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 amendment, etc. - the leave sought should, as the rules require, be " freely given". . . .1

1

Foman v. Davis, 371 U.S. 178, 182 (1962).

Case 1:04-cv-01062-ZLW-BNB

Document 114

Filed 09/14/2005

Page 2 of 3

Additionally, the Scheduling Order in this case set a September 16, 2004 deadline for
amendment of pleadings. A scheduling order may be amended, pursuant to Fed. R. Civ. P. 16(b), only on a " showing of good cause."

Plaintiffs state that they learned of the facts supporting the statute of limitations defense at the April 6, 2005, deposition of Defendant Royce Gwin. However, Plaintiffs did not file the present motion to amend their Answer to add the defense until four months later, after Defendants argued in their summary judgment response brief that Plaintiffs had waived the defense by failing to plead it in their Answer. While Plaintiffs certainly delayed in filing their motion to amend, Defendants have failed to make any showing that the delayed amendment will result in prejudice to them by causing them " undue difficulty"in prosecuting their counterclaims.2 For example, Defendants have not identified any additional discovery that they must obtain in order to respond to the statute of limitations defense, and indeed Defendants provided substantive arguments in opposition to the defense in their summary judgment response. Trial is over five months away, and Defendants have not shown that the late amendment will hamper their trial preparation in any way. Good cause exists for the amendment, and in the spirit of Federal Rules, which favor decisions on the merits over decisions based on
3 " technicalities," it is

2

See Lange v. CIGNA Individual Financial Servs. Co., 759 F. Supp. 764, 769-70 (D. Kan. 1991). See Foman, 371 U.S. at 181-82. 2

3

Case 1:04-cv-01062-ZLW-BNB

Document 114

Filed 09/14/2005

Page 3 of 3

ORDERED that Quizno' Motion For Leave To Amend Answer To Add s Affirmative Defense is granted. It is FURTHER ORDERED that Plaintiffs shall file their Amended Affirmative Defense with the Court within five days of the date of this Order. DATED at Denver, Colorado, this 14 day of September, 2005. BY THE COURT:

s/ Zita L. Weinshienk __________________________________ ZITA L. WEINSHIENK, Senior Judge United States District Court

3