Maxwell v. Advanced Sterilization Products Inc. et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:22-cv-00894-SKC-KAS
ERIN MAXWELL,
Plaintiff,
v.
ADVANCED STERILIZATION PRODUCTS, INC.,
Defendant.
ORDER GRANTING AND DENYING IN PART
PLAINTIFF’S MOTION TO AMEND COMPLAINT (DKT. 100)
The above-referenced Motion is now fully briefed and before the Court. Dkt.
100 (Motion); Dkt. 104 (Defendant’s Response); and Dkt. 105 (Plaintiff’s Reply). The
Court grants the Motion in part, and denies it in part, for the reasons shared below.
Where, as here, a party seeks to amend their pleadings after the deadline
established in the scheduling order,1 “a party must meet the two-part test of first
showing good cause to amend the scheduling order under Rule 16(b), and then
showing that amendment would be allowed under Rule 15(a).” Ayon v. Kent Denver
Sch., No. 12-cv-2546-WJM-CBS, 2014 WL 85287, at *2 (D. Colo. Jan. 9, 2014). Cf.
1 The deadline to join parties and amend pleadings was August 15, 2022.
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Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1241 (10th Cir.
2014).
The “good cause” standard under Rule 16 requires the moving party to show
that despite its diligent efforts, it could not have reasonably met the scheduled
deadline. See Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001).
This standard is “much different than the more lenient standard contained in Rule
15(a).” Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000)
(quoting Dilmar Oil Co. v. Federated Mut. Ins. Co., 986 F. Supp. 959, 980 (D.S.C.
1997), aff’d, 129 F.3d 116 (4th Cir. 1997)). The Rule does not focus on the bad faith of
the movant, or the prejudice to the opposing party. Instead, it focuses on the diligence
of the party seeking leave to modify the scheduling order to permit the proposed
amendment. Id. For example, proposed amendments are barred if the movant “knew
of the underlying conduct but simply failed to raise . . . the claims.” Gorsuch, Ltd.,
771 F.3d at 1240 (citing Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir.
2006).).
The purpose of Rule 15(a) unquestionably is to facilitate a decision on the
merits. Bob Marshall All. v. Lujan, 804 F. Supp. 1292, 1298 (D. Mont. 1992). To that
end, motions to amend should be freely granted when justice requires. See, e.g.,
Bellairs v. Coors Brewing Co., 907 F. Supp. 1448, 1459 (D. Colo. 1995). But even then,
“there is no absolute right to repeatedly amend a complaint.” Fluker v. Fed. Bureau
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of Prisons, No. 07-cv-02426-CMA-CBS, 2009 WL 1065986, at * 4 (D. Colo. Apr. 21,
2009).
In evaluating the “needs of justice,” the court must consider the interests of all
parties. Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th
Cir. 1990); see also Arkansas-Platte & Gulf P’ship v. Dow Chem. Co., 886 F. Supp.
762, 765 (D. Colo. 1995) (“Leave to amend should be freely given based on the
balancing of several factors, including futility, delay, bad faith, dilatory motive,
repeated 	failure 	to 	cure 	deficiencies, 	and 	prejudice 	to 	the 	opposing 	party.”).
Ultimately, a motion to amend is left to the sound discretion of the district court.
State Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984).
ANALYSIS & FINDINGS
Plaintiff seeks to amend her Complaint in three ways:
1. 	To bring a claim for retaliation in violation of the False Claims
Act, 31 U.S.C. § 3730(h);
2. 	To cure defects in wrongful termination claims that the Court
dismissed without prejudice [Dkt. # 79] by more specifically
stating the source of public policy; and
3. 	To join Fortive and to recognize ASP Services (the latter under
the doctrine of judicial estoppel) as defendants based on their
dismissed (sic) without prejudice from Erin Maxwell v. Advanced
Sterilization 	Products Services Inc. 	and 	Fortive Corporation,
Case. 	No. 	1:23-cv-03311-[SKC]-KAS 	(D. 	Colo.) 	(hereinafter
Maxwell II) and ASP Services’ active involvement in Maxwell I.
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Dkt. 100, pp.2-3.2
1. 	Adding a Claim for Retaliation Under the False Claims Act (FCA)
The Court finds good cause to allow the amendments adding a claim for
retaliation in violation of the FCA, 31 U.S.C. § 3739(h). Concerning this amendment,
Plaintiff indicates she informally obtained information from Bob Chapman on
February 19, 2023, and deposed Andrew Davis on March 2, 2023, and “[f]ollowing
Chapman’s call and Mr. Davis’s deposition, it became apparent for the first time that
a claim could be made for retaliation under the False Claims Act.” Dkt. 100, p.7 ¶12;
see also id. at p.3 (indicating Chapman and Davis “provided essential information
that uncovered the claim”). Plaintiff then promptly filed a Motion to Amend the
Complaint (Dkt. 47) on March 17, 20233—15 days after Davis’s deposition. Plaintiff
2 Some background on the third amendment Plaintiff seeks: On December 15, 2023,
Plaintiff filed Civil Action No. 1:23-cv-003311-SKC-KAS (“Maxwell II”) in this Court.
The Court later dismissed Maxwell II based on Plaintiff’s improper claims splitting.
Plaintiff’s claims in Maxwell I (the present case) and Maxwell II both arose out of her
employment termination from Defendant Advanced Sterilization Products, Inc.
(“ASP”). Plaintiff claimed she brought Maxwell II against ASP’s parent corporation,
Fortive 	Corporation 	(“Fortive”), 	and 	its 	related 	entity, 	Advanced 	Sterilization
Products Services, Inc. (“ASP Services”), based on discovery in Maxwell I that
suggested ASP Services and Fortive are co-employers of Plaintiff and information
suggesting Fortive actively participated in her unlawful termination. The cases
involved the same claims, but in Maxwell II, Plaintiff also asserted a claim under the
False Claims Act, among other new claims.
3 Due to a series of missteps in her efforts to amend her complaint to add the claims
and new defendants that are the subject of this Motion, the Court denied the earlier
motion to amend without prejudice. Dkt. 82. After another series of haphazard
attempts to amend her complaint while simultaneously filing Maxwell II, once the
dust settled, Plaintiff successfully made her request in the instant motion filed on
July 16, 2024. Dkt. 100. The Court finds the dates of Plaintiff’s earlier attempts to
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originally sought this amendment roughly seven months before discovery closed in
October 2023 and basis her request on new information she learned in discovery.
These reasons establish good cause under Rule 16. They also support a lack of
prejudice to the Defendant. The Court finds this amendment is warranted under Rule
15(a).4 The Motion is granted as to this amendment.
2. 	Curing Defects in the Wrongful Termination Claim Based on This
Court’s Prior Order
Plaintiff has not established good cause for these amendments. First, the
Motion is untimely as to these proposed amendments. The Court issued its Order Re:
Motion for Partial Judgment on the Pleadings on October 19, 2023, which dismissed
portions of Plaintiff’s public-policy, wrongful termination claim. Dkt. 75. Four months
later, on February 23, 2024, Plaintiff filed a “supplement” to her then pending motion
to amend seeking, for the first time, to amend her complaint to “cure the defects” that
led to dismissal of portions of her wrongful termination claim. Dkt. 79. This four-
month delay was untimely. It was also dilatory when considering that, in the
meantime, on December 15, 2023, Plaintiff filed a new lawsuit against ASP’s
amend her complaint, and sue Fortive and ASP Services, relevant to the good-cause
analysis, and therefore, does not necessarily view the current Motion as Plaintiff’s
first request to amend.
4 To the extent Defendant argues futility around adding the FCA claim, the Court
rejects that argument on the current Motion. Futility arguments are better addressed
through a motion to dismiss because it allows for full briefing on the issue and keeps
the associated burden of proof on the movant clear, rather than potentially confusing
or shifting that burden by a defendant raising futility in a responsive pleading.
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affiliated entities—she could have also sought leave to amend her complaint to “cure
defects” in her wrongful termination claim around and before that time.
Moreover, the Court is not convinced the defects which Plaintiff now seeks to
“cure” were not curable in the first instance, when she originally filed her complaint.
Instead, the purported cures appear to present new theories and additional facts to
plug the holes identified by the Court’s prior order. Amendments such as these are
disfavored when sought after an adverse ruling. Viernow v. Euripides Dev. Corp., 157
F.3d 785, 800 (10th Cir. 1998) (“[W]e do not favor permitting a party to attempt to
salvage a lost case by untimely suggestion of new theories of recovery, especially after
the trial judge has already expressed adverse rulings.”); Miller v. First United Bank
& Tr. Co., No. 23-6050, 2024 WL 676857, at *8 (10th Cir. Feb. 20, 2024) (finding no
abuse of discretion where trial court disallowed amendments sought after dismissal
of the complaint).
The Motion is denied as to these amendments.
3. 	Joining Fortive and ASP Services
Concerning Fortive, the Court finds good cause for the amendments adding
Fortive as a defendant. Plaintiff indicates she was unaware of Fortive’s involvement
in the underlying facts until May 12, 2023, when the Court ordered production of the
Investigative Report that Defendant withheld under an improper claim of privilege.
Dkt. 56. Next, she discovered the “fact, nature, and extent of Fortive’s involvement in
the scheme” (Dkt. 100, p.8 ¶18) with a Rule 30(b)(6) deposition of Defendant on June
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30, 2023 (Dkt. 100-3) and the continued Rule 30(b)(6) deposition (based on this
Court’s discovery ruling requiring the continued deposition) which occurred between
this Court’s August 10, 2023 Order (Dkt. 74), and the close of discovery on October
12, 2023. Plaintiff then sued Fortive and ASP Services in Maxwell II on December 15,
2023—a two-month delay at best.5
Considering that Plaintiff first attempted to assert her claims against Fortive
on December 15, 2023, the Court finds her present motion to amend—which she filed
in response to this Court’s dismissal of Maxwell II—to be timely. The Court also finds
no prejudice against ASP or Fortive in allowing the amendment. The timing of the
amendment stems, at least in part, from ASP’s improper claim of privilege over the
Investigation Report and its improper objections to certain Rule 30(b)(6) deposition
topics, both of which this Court resolved in Plaintiff’s favor.
Concerning ASP Services, the parties have been sloppy in addressing this
issue. In Defendant ASP’s April 13, 2022 Notice of Removal, ASP identified itself as
ASP Services and included a footnote indicating ASP was “incorrectly named” in the
complaint as “Advanced Sterilization Products, Inc.” Dkt. 1. It said the same thing in
its April 20, 2022 Answer to the complaint. Dkt. 11. And yet, neither party took steps
to either correct the case caption, add or substitute ASP Services as a defendant,
dismiss ASP, or all the above. The parties simply continued to litigate this matter
while allowing the confusion over ASP and ASP Services to persist. For example,
5 Supra n.2.
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defense counsel has sometimes filed documents on behalf of ASP and other times on
behalf of ASP Services. To confuse things further, when new defense counsel filed
their entries of appearance in this case, they stated they “hereby enter [their]
appearance on behalf of [ASP Services],” while the case caption only reflected the
named defendant as ASP. Dkts. 27 (October 2022 entry of William F. Cusack III), 81
(March 2024 entry of Kaitlin Spittell). Even as late as July 26, 2024, ASP filed an
Unopposed Motion for Clarification claiming the motion to be filed on behalf of ASP
Services. Dkt. 102.
As a result, ASP Services has attempted to inject itself into this litigation all
along. It has continuously claimed it is the proper defendant and has purported to
file various motions or other filings in this case throughout this litigation, and counsel
has entered their appearance on its behalf. There is good cause for these amendments
and ASP Services will suffer no prejudice by formalizing its status as a named
defendant by way of the amendments Plaintiff seeks.
For these reasons, the Motion is granted as to these amendments under Rule
15(a).
* 	* 	*
There is no trial date or deadline for dispositive motions. Thus, there is time
to cure any potential prejudice to Defendants resulting from the amendments this
Court has allowed. But ultimately, the Court sees little prejudice, if any, because the
Court finds the amendments it has allowed were timely sought by Plaintiff in the
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first instance and the parties have directly and indirectly engaged in discovery over
Fortive’s and ASP Services’ involvement in the underlying facts.
For the reasons shared above, IT IS ORDERED that:
1. 	The Motion is GRANTED insofar as concerns (a) the amendments to
include a claim for retaliation in violation of the False Claims Act, 31
U.S.C. § 3730(h), and (b) the amendments joining Fortive and ASP
Services as named Defendants;
2. 	The Motion is DENIED insofar as the amendments “to cure defects” in
the wrongful termination claims previously dismissed by the Court;
3. 	Plaintiff shall file a clean version of the Amended Complaint with the
allowed amendments on or before March 28, 2025;
4. 	Defendants 	shall 	answer 	or 	otherwise 	respond 	to 	the 	Amended
Complaint within 21 days of service;
5. 	Within 10 days from the date of this Order, the parties shall confer in
good faith and either file a notice indicating no additional limited
discovery is necessary based on the amendments and requesting the
Court set a deadline for dispositive motions, or file a motion requesting
a status conference 	with Magistrate Judge Kathryn Starnella to
discuss any need and the parameters for limited discovery based on the
amendments allowed; and,
6. 	There will be no further amendments to the Complaint.
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DATED: March 22, 2025
BY THE COURT:
___________________________________
S. Kato Crews
United States District Judge
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