Calderon v. City and County of Denver et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-00756-PAB-CYC
LISA CALDERÓN,
Plaintiff,
v.
CITY AND COUNTY OF DENVER,
MICHAEL HANCOCK,
JESS VIGIL,
ANDREA ALBO, and
REGINA HUERTER,
Defendants.
______________________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
Plaintiff Lisa Calderón moves to amend her complaint for the third time to add new
allegations of retaliation against her. ECF No. 135. Because the plaintiff has not shown good
cause for her amendment, and the amendment would be prejudicial to the defendants, the Court
recommends denying the motion.
BACKGROUND
The plaintiff commenced this action on April 2, 2018. ECF No. 1. The original complaint
alleged that the defendants, other than Regina Huerter, violated the plaintiff’s First Amendment
rights by failing to renew her contract with the City and County of Denver in retaliation for the
plaintiff speaking out about matters of public concern and discriminated against her on the basis
of her gender in violation of the Fourteenth Amendment. See generally ECF No. 1.
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The defendants, the City and County of Denver and various Denver officials, moved to
dismiss the complaint and, on September 17, 2019, the Court granted that motion. Calderón v.
City and Cnty. of Denver, No. 18-cv-00756-PAB-MEH, 2019 WL 4450199 (D. Colo. Sept. 17,
2019). The plaintiff timely appealed to the Tenth Circuit, ECF No. 40, and, roughly a year and a
half later, the Tenth Circuit reversed and remanded the matter for further proceedings. Calderón
v. City and Cnty. of Denver, 855 F. App’x 438 (10th Cir. 2021) (unpublished).
The plaintiff filed an amended complaint on June 16, 2021, adding defendant Regina
Huerter and an additional claim of “Conspiracy to Violate Constitutional Rights.” ECF No. 62 at
¶¶ 7, 68. The defendants moved to dismiss the amended complaint, which was granted in part
and denied in part. Calderón v. City and Cnty. of Denver, No. 18-cv-000756-PAB-MEH, 2023
WL 5348396 (D. Colo. Aug. 21, 2023). The Court dismissed with prejudice the plaintiff’s claims
for violation of her First Amendment rights against defendant Patrick Firman; for violations of
her Fourteenth Amendment rights; for conspiracy against defendant Firman; and for conspiracy
to violate her Fourteenth Amendment rights. Id. at *13-14. All other claims, including the
addition of defendant Huerter, were allowed to proceed. Id. at *4, 13-14.
On September 20, 2023, the Court set November 6, 2023 as the deadline for joinder of
parties and amendment of pleadings at a Scheduling Conference. ECF No. 91 § 9.a.
On October 6, 2023, the plaintiff sought leave to file her Second Amended Complaint.
ECF No. 93. In that motion, she sought to add allegations that defendant City and County of
Denver (“City”) unlawfully conducted an investigation into her, which she believed showed
further retaliation for speaking out against the defendants on matters of public concern back in
2018. Id. at ¶ 5. The Court granted that motion and, as a result, the operative complaint is the
Second Amended Complaint, ECF No. 99.
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Over a year later, this motion followed.
ANALYSIS
The plaintiff seeks to add factual allegations to her claims from two sources: first, facts
alleged in a lawsuit that Jessica Calderón, the Director of Operations and Innovation in the
Office of Social Equity & Innovation in the Office of the Mayor, filed against the City of
Denver; and second, facts from a deposition about a 2021 investigation into her. Id. at 4.
As an initial matter, the plaintiff invokes the wrong rule. She seeks relief under Fed. R.
Civ. P. 15(d), which provides that “[o]n motion and reasonable notice, the court may, on just
terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading to be supplemented.” But she invokes that rule
based on her learning information after the operative complaint was filed, whereas Rule 15(d)
actually covers adding facts that occurred after the complaint’s filing, regardless of when the
party learned of the fact. Fed. R. Civ. P. 15(d); see Walker v. UPS, Inc., 240 F.3d 1268, 1278
(10th Cir. 2001) (permitting Rule 15(d) supplementation with “post-complaint transactions,
occurrences or events”). The plaintiff contends that she seeks only to add facts that occurred after
her complaint was filed, but her proposed additions allegedly occurred in April 2021 and June
2023, before the October 6, 2023 Second Amended Complaint was filed. See ECF No. 135-2 ¶¶
32-33, 70; ECF No. 99. Fed. R. Civ. P. 15(a) therefore provides the governing standard. See
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). And because the deadline for
amendment of pleadings has elapsed, the plaintiff must also address Fed. R. Civ. P. 16(b)(4)’s
good cause requirement. Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015).
That requirement “focuses on the diligence of the party seeking leave to modify the
scheduling order to permit the proposed amendment.” Pumpco, Inc. v. Schenker Int’l, Inc., 204
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F.R.D. 667, 668 (D. Colo. 2001) (quotation marks omitted). In that sense, it “is much different
than the more lenient standard contained in Rule 15(a).” Id. The plaintiff must “show that [she
was] diligent in attempting to meet the deadline, which means [she] must provide an adequate
explanation for any delay.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir.
2006).
Having failed to recognize the applicability of Rule 16, the plaintiff’s motion offers no
direct argument that she was diligent in attempting to meet the November 6, 2023 deadline for
amendment of pleadings. Instead, the plaintiff generally avers that she only learned of certain
information through reading the allegations of a November 20, 2024 lawsuit. ECF No. 135 at 2.
The motion was filed one month later. ECF No. 135. Although Fed. R. Civ. P. 16(b)(4) is a more
demanding standard than Fed. R. Civ. P. 15(a)(2), the Tenth Circuit has found a “‘rough
similarity’ between the ‘undue delay’ standard of Rule 15 and the ‘good cause’ standard of Rule
16.” Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009) (citing Minter, 451 F.3d at 1205
n.4). Seeking leave to amend one month after learning new information can meet the good cause
requirement of Rule 16. Peddada v. Catholic Health Initiatives Colo., No. 23-cv-01921-NYW-
MDB, 2024 WL 4634910, at *4 (D. Colo. Oct. 21, 2024); Willis v. Johnson, No. CIV-18-323-D,
2021 WL 8527621, at *2 (W.D. Okla. May 20, 2021); Rodriguez v. Smith, No. 15cv681
WPL/LF, 2016 WL 10179242, at *2 (D. N.M. July 21, 2016). But see Granite Southlands Town
Ctr. LLC v. Alberta Town Ctr., LLC, No. 09-cv-00799-ZLW-LKM, 2010 WL 2635524, at *2 (D.
Colo. June 8, 2010) (denying motion to amend filed one month after the party allegedly learned
the information because the party was not diligent in reviewing discovery). Good cause could
exist, then, for bringing the motion to amend if it were based solely on the November 2024
information.
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With respect to the information she learned from a deposition, though, the plaintiff offers
no information regarding when she learned this additional information. See ECF No. 135 at 4. As
a result, the Court cannot evaluate her diligence with respect to that information. Rule 16’s good
cause standard “requires the moving party to show that it has been diligent in attempting to meet
the deadlines, which means it must provide an adequate explanation for any delay.” Strope v.
Collins, 315 F. App’x 57, 61 (10th Cir. 2009). Without such an explanation for the deposition
information, the plaintiff has not shown good cause under Rule 16 to add the facts she allegedly
learned during a deposition because she has provided no explanation for the delay in seeking
leave to amend. Carrazco v. Morrison, No. 21-cv-01277-NYW, 2022 WL 2666031, at *3 (D.
Colo. July 11, 2022) (denying motion to amend answer when the defendant “provided no
adequate basis for th[e] delay”).
At least part of the information sought to be added, then, suffers from a failure to show
good cause, which alone would suffice to deny that part of the plaintiff’s motion. Nicastle v.
Adams Cnty. Sheriff’s Office, No. 10-cv-00816-REB-KMT, 2011 WL 1465586, at *3 (D. Colo.
Mar. 14, 2011), recommendation adopted, 2011 WL 1464588 (D. Colo. Apr. 18, 2011).
Analyzing whether the plaintiff satisfied Rule 15(a) shows that the motion should be denied in
full.
Under Rule 15(a), once a responsive pleading is filed, a party may amend its complaint
only with leave of the court or written consent of the adverse party. See Foman v. Davis, 371
U.S. 178, 182 (1962). In deciding whether to grant such leave, the court must consider that leave
is to be “freely given when justice so requires,” Fed. R. Civ. P. 15(a), meaning that it should be
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
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amendment.” Duncan v. Manager, Dep’t of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315
(10th Cir. 2005); see Foman, 371 U.S. at 182. The defendants bear the burden of proving that the
amendment should be refused on one of these bases. Openwater Safety IV, LLC v. Great Lakes
Ins. SE, 435 F. Supp. 3d 1142, 1151 (D. Colo. 2020).
Here, unfair prejudice counsels against granting the plaintiff’s motion. A court will find
an amendment prejudicial when it unfairly affects the opposing party “in terms of preparing their
defense to the amendment.” Minter, 451 F.3d at 1208 (quotation marks omitted). 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.
That is the case here. The currently pled First Amendment claim of retaliation is based on
the plaintiff exercising her rights under the First Amendment to “freedom of speech.” U.S.
Const., amend. I; see ECF No. 99 ¶¶ 31-33, 72-75. The plaintiff now seeks to add a claim that
her right to petition the government was restricted.1 ECF No. 135-2 ¶ 84; ECF No. 135 at 3. That
invokes the First Amendment’s separate clause protecting the right “to petition the Government
for a redress of grievances.” U.S. Const., amend. I; see Borough of Durea, Pa. v. Guarnieri, 564
U.S. 379, 388 (2011). Discovery closed on November 1, 2024, ECF No. 126, and the parties
completed said discovery based on the operative Second Amended Complaint. This motion came
weeks later and less than three weeks before the dispositive motions deadline. As such, allowing
1 The plaintiff includes at the end of her reply a statement that she “is not asking the Court to
decide whether her right to petition the government was violated.” ECF No. 143 at 10. This
sentence stands in sharp contrast to the proposed third amended complaint itself. In it she seeks
to amend her First Amendment claim to add that the defendants violated her First Amendment
rights by “placing restrictions on her right to petition the government.” ECF No. 135-2 ¶ 84. The
Court does not read the proposed amendment as anything other than a request to find that the
plaintiff’s right to petition the government was violated by the defendants. A reply brief is not a
proper means to further amend the proposed third amended complaint.
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amendment would prejudice the defendants’ ability to prepare their defense to the proposed
amendments because they were not previously on notice that the plaintiff was alleging a First
Amendment violation under the Petition Clause and had no opportunity for discovery on that
claim. The proposed amendments therefore “arise out of a subject matter different from what
was set forth in the complaint and raise significant new factual issues,” and, as a result, would
unfairly affect the defendants “in terms of preparing their defense to the amendment.” Minter,
451 F.3d at 1208; Green Country Food Mkt., Inc. v. Bottling Grp., LLC, 371 F.3d 1275, 1279
(10th Cir. 2004).
The plaintiff protests. Her new allegations, she says, are mere continuations of her
existing retaliation claims. ECF No. 143 at 5. But she concedes that to defend against the new
allegations, the defendants would have to engage in additional discovery and potentially file
another dispositive motion because she alleges for the first time that they retaliated against her
by cutting off her access to a high-level official. Id. While there is a common theme of
retaliation, the sought amendment introduces entirely new facts the defendants would need to
investigate and develop. As such, the amendment prejudices the defendants and should not be
allowed.
The plaintiff makes a final plea for amendment: it is because she keeps learning of more
retaliatory steps by the City, she says, that she needs to amend, rather than file new actions. ECF
No. 143 at 6. But “the purposes of Rule 15 and Rule 16 would be undermined were a plaintiff
granted leave to update h[er] complaint each time the plaintiff learned facts supporting h[er]
allegations in discovery.” Romero v. Altitude Sports & Ent., LLC, No. 21-cv-00885-CMA-SKC,
2022 WL 3868134, at *4 (D. Colo. Aug. 30, 2022) (citing Baker v. Simmons, 65 F. App’x 231,
236 (10th Cir. 2003)). To find otherwise would allow the plaintiff to make the complaint “a
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moving target.” See Minter, 451 F.3d at 1206. The short of it is that, at some point, the parties
must know the nature of the case they are trying. After five years of litigation, that point has
arrived. Adding new factual allegations threatens enough prejudice and setback such that moving
the goalposts would be improper here.
CONCLUSION
For the foregoing reasons, the Court RECOMMENDS denying the plaintiff’s Motion for
Leave to File Second Supplemental Complaint. ECF No. 135.2
Entered this 28th day of March, 2025, at Denver, Colorado.
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
2 Be advised that all parties shall have fourteen days after service hereof to serve and file any
written objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings
or recommendations to which the objections are being made. The District Court need not
consider frivolous, conclusive, or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1).
Additionally, the failure to file written objections to the proposed findings and recommendations
within fourteen days after being served with a copy may bar the aggrieved party from appealing
the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by
the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991)). Finally, all parties must consult and comply
with the District Judge’s practice standards for any specific requirements concerning the filing
and briefing of objections.
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