Barnes v. Omnicell

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-00538-PAB-CYC
LARRY L. BARNES,
Plaintiff,
v.
OMNICELL,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
On March 14, 2025, the district judge in this case found that plaintiff Larry L. Barnes’
Fair Labor Standards Act claim against defendant Omnicell was precluded, but that his state-law
wage-theft claim was not. Barnes v. Omnicell, No. 24-cv-00538-PAB-CYC, 2025 WL 815384,
at *7–8 (D. Colo. Mar. 14, 2025) (“Barnes II Order”). The plaintiff now seeks leave to amend his
complaint to add a retaliation/wrongful termination claim. ECF No. 47. Although the additional
claim comes late, it is not with undue delay or prejudice and, as such, the motion is granted.
BACKGROUND
The history of this and another case the plaintiff filed against the defendant is discussed
in depth in prior rulings. See, e.g., Barnes v. Omnicell, No. 24-cv-00538-PAB-MEH, 2024 WL
3738929, at *1–3 (D. Colo. July 5, 2024) (“Barnes II Recommendation”), recommendation
adopted in part and rejected in part, Barnes II Order. A more succinct background suffices here.
In June 2021, the plaintiff filed a different federal lawsuit against the defendant (“Barnes
I”) asserting claims for back pay that the Court construed as claims under the Fair Labor
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Standards Act of 1938 (“FLSA”), 44 U.S.C. § 1507 et seq., and the Colorado Wage Act
(“CWA”), Colo. Rev. Stat. § 8-1-101 et seq. Barnes II Order, at *1. In Barnes I, summary
judgment entered for the defendant on the FLSA claim, and the Court declined to exercise
supplemental jurisdiction over the CWA claim. Id. The Tenth Circuit affirmed. Barnes v.
Omnicell, No. 23-1336, 2024 WL 2744761, at *7 (10th Cir. May 28, 2024) (unpublished).
Following that ruling, the plaintiff sought to vacate the judgment in Barnes I and amend his
complaint. Those requests were denied. Barnes v. Omnicell, No. 21-cv-01702-PAB-MEH, 2025
WL 2530639, at *1–5 (D. Colo. Sept. 3, 2025) (“Barnes I Order”). A motion for reconsideration
is pending.
While Barnes I was on appeal, the plaintiff “refiled all his claims in the District Court of
Jefferson County, Colorado.” Barnes II Order, at *2. The “complaint recounts the proceedings in
Barnes I, states that the ‘cause of action [is] wage theft,’ and states that the Jefferson County
District Court has jurisdiction under both Colorado and federal law.” Id. The defendant removed
the case to federal court in February 2024. Id. That is the instant action (“Barnes II”). Soon after,
the defendant filed its Answer, ECF No. 12, and then filed a motion for judgment on the
pleadings. ECF No. 19. That motion resulted in dismissal of the FLSA claim. Barnes II Order, at
*8. The CWA wage theft claim remains.
Prior to the Court’s dismissal of the FLSA claim, the plaintiff sought leave to amend his
complaint, ECF No. 40, which was denied without prejudice on procedural grounds. ECF No. 46
at 1. In response, the plaintiff filed the instant motion seeking leave to amend his complaint to
add a claim of retaliation/wrongful termination. ECF No. 47.
ANALYSIS
Under Rule 15(a), once twenty-one days have passed following service of a responsive
pleading, a party may amend its complaint only with leave of the court or written consent of the
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adverse party. Fed. R. Civ. P. 15(a)(2); see Foman v. Davis, 371 U.S. 178, 182 (1962). Such
leave is to be “freely given when justice so requires,” Fed. R. Civ. P. 15(a)(2), because ultimately
“the ‘purpose of the Rule is to provide litigants the maximum opportunity for each claim to be
decided on its merits rather than on procedural niceties.’” Watkins v. Action Care Ambulance,
Inc., No. 07-cv-02598-PAB-BNB, 2010 WL 940990, at *1 (D. Colo. Sept. 24, 2010) (quoting
Minter, 451 F.3d at 1204). However, a court may refuse leave “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.” Duncan v. Manager, Dep’t of
Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005); see Foman v. Davis, 371
U.S. 178, 182 (1962). Prejudice to the opposing party is the most important factor in deciding
whether to allow leave to amend. Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir.
2006). The defendant bears 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).
The defendant relies on undue delay, ECF No. 48 at 5–8, but does not meet its burden.
There has been some delay: the plaintiff filed this case on December 22, 2023, ECF No. 4 at 2; it
was removed on February 26, 2024, ECF No. 1; and the plaintiff moved to amend over nine
months later. But “[l]ateness does not of itself justify the denial of the amendment.” Minter, 451
F.3d at 1205.
Instead, “[e]mphasis is on the adjective” — delay must be “undue,” with a focus
“primarily on the reasons for the delay” and whether their insufficiency indicates, for instance,
“that the plaintiff is using Rule 15 to make the complaint a moving target, to salvage a lost case
by untimely suggestion of new theories of recovery, to present theories seriatim in an effort to
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avoid dismissal, or to knowingly delay raising an issue until the eve of trial.” Id. at 1205–06
(quotation marks omitted). There is little such indication here. The retaliation claim could not
have been included in Barnes I’s initial filing because it alleges retaliation because of Barnes I.
ECF No. 47-2 at 9–10. In addition, the plaintiff says that he did not think he could bring a
retaliation claim in state court when he filed Barnes II. ECF No. 47 at 5. On its own, that
explanation is not fully convincing. While the Court must construe the pro se plaintiff’s
pleadings liberally, Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018), he maintains the
same obligation to comply with procedural rules and substantive law as represented parties. See
Dodson v. Bd. of Cty. Comm’rs, 878 F. Supp. 2d 1227, 1235 (D. Colo. 2012). Amongst those
rules is a lack of excuse for “general confusion” about the law. Huggins v. Reilly, 679 F. App’x
679, 682 (10th Cir. 2017). However, the plaintiff adds that a November 26, 2024 filing in Barnes
I first gave him the idea to add his retaliation/wrongful termination claim here. ECF No. 49 at 2.
Indeed, the filing in question faulted the plaintiff for not asserting that claim in this case. See
Def.’s Resp. in Opp’n to Pltf.’s Mot. For Leave to Amend Compl. 9, Barnes I, ECF No. 85 (D.
Colo. Nov. 26, 2024). The plaintiff’s initial motion for leave to amend in this case came two
weeks later. ECF No. 40. Such prompt action is hardly undue delay.
The defendant protests that the plaintiff knew of the newly alleged facts prior to filing
Barnes II and, therefore, his request to amend should be denied. ECF No. 48 at 6. To be sure,
“[w]here the party seeking amendment knows or should have known of the facts upon which the
proposed amendment is based but fails to include them in the original complaint, the motion to
amend is subject to denial.” State Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416
(10th Cir. 1984). However, if the plaintiff provides “an adequate explanation for the delay,” a
court may conclude that amendment is not unduly delayed. Minter, 451 F.3d at 1206. Here, the
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plaintiff’s explanation is sufficient — or at least not one that masks using amendment for an
improper, prejudicial purpose. Id. As a result, while some time has passed, it does not appear that
any delay is undue. Briggs v. Deutsche Bank Nat’l Tr. Co., No. 13-cv-02433-MSK-KLM, 2014
WL 561659, at *2 (D. Colo. Feb. 13, 2014).
Nor is there unfair prejudice justifying denial of leave to amend. Courts find such
prejudice when an amendment unfairly affects the opposing party “in terms of preparing their
defense to the amendment.” Minter, 451 F.3d at 1208 (quotation marks omitted). That 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. Here, the additional claim
purportedly arises out of retaliation for the plaintiff bringing the existing wage-related claim. See
Handy v. Guerrero-Diaz, No. 14-cv-03291-WYD-MEH, 2015 WL 13215659, at *3 (D. Colo.
Dec. 18, 2015) (finding new claim of retaliation for filing case to not be unduly delayed nor
prejudicial), recommendation adopted, 2016 WL 1376546 (D. Colo. Apr. 7, 2016). And while
discovery on this claim may extend this litigation, ECF No. 48 at 9, and “[a]s a general rule, the
risk of substantial prejudice increases with the passage of time,” 6 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1488 (3d ed.), the defendant has not shown that the
amendment unfairly affects it “in terms of preparing [its] defense to the amendment.” Minter,
451 F.3d at 1207 (quotation marks omitted); see Richardson v. United States, 841 F.2d 993, 999
(9th Cir. 1988) (“A mere passage of time, by itself, is insufficient; rather, there must be an
affirmative showing of either prejudice or bad faith.”). Further, while this case is unusual in that
there was a prior case between these parties in which the plaintiff’s FLSA claim was considered,
that alone is not a reason to find prejudice.
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In sum, this case, Barnes II, is at an early stage of the litigation where neither the
Scheduling Conference nor discovery has taken place, the plaintiff has an understandable
explanation for the delay in his amendment, and such amendment is not prejudicial. His motion
should be granted. See Briggs, 2014 WL 561659, at *2; cf. GEOMC Co., Ltd. v. Calmare
Therapeutics Inc., 918 F.3d 92, 100 (2d Cir. 2019) (discussing amendment of answer to add
counterclaim).
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff Larry L. Barnes’ Motion for
Leave to Amend Complaint, ECF No. 47. Accordingly, it is further ORDERED that the Clerk of
the Court shall docket ECF No. 47-2 as a separate document on the docket, which shall be the
plaintiff’s Amended Complaint, and the defendant shall respond to the Amended Complaint in
accordance with Fed. R. Civ. P. 12(a).
Entered this 24th day of November, 2025, at Denver, Colorado.
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
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