Brix Real Estate, LLC v. Safeco Insurance Company of America et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-01458-NYW-TPO
BRIX REAL ESTATE, LLC,
Plaintiff,
v.
SAFECO INSURANCE COMPANY OF AMERICA, and
RUDY SCHOENBEIN,
Defendants.
MINUTE ORDER
Entered by Judge Nina Y. Wang
This matter is before the Court on Plaintiff’s Motion to Amend Complaint (“Motion”
or “Motion to Amend”). [Doc. 18, filed July 22, 2025].1 Defendant Safeco Insurance
Company of America (“Defendant” or “Safeco”) has responded in opposition. [Doc. 28].
Defendant Rudy Schoenbein (“Mr. Schoenbein”) has neither responded nor appeared in
this lawsuit. Plaintiff Brix Real Estate, LLC (“Plaintiff” or “Brix”) has replied. [Doc. 29].
For the reasons set forth below, the Motion to Amend is respectfully GRANTED.
This case stems from a fire at a residential rental property in Littleton, Colorado
(the “Property”). [Doc. 5 at ¶ 6]. The Property was insured under a landlord policy issued
by Safeco (the “Policy”). [Id. at ¶ 7]. Brix managed the Property and was listed as an
“additional interest” on the Policy. [Id. at ¶¶ 7–8]. The Policy contains an appraisal
provision, which Brix invoked after Safeco provided a “grossly inadequate” initial estimate
for the property damage. [Id. at ¶¶ 9–12]. Mr. Schoenbein was appointed as umpire for
the appraisal. [Id. at ¶ 14]. Brix alleges that Safeco engaged in various “dilatory tactics”
during the appraisal process, and that Mr. Schoenbein exhibited bias toward Safeco and
ultimately issued a flawed appraisal decision. [Id. at ¶¶ 13, 15–17]. In the operative
Amended Complaint, Brix asserts claims against Safeco for breach of contract, statutory
and common law bad faith, and violation of the Colorado Consumer Protection Act. [Id.
at ¶¶ 20–33, 43–48]. Brix also brings a negligence claim against Mr. Schoenbein and a
conspiracy claim against both Mr. Schoenbein and Safeco. [Id. at ¶¶ 34–42]. Originally
1 The Scheduling Order in this case set the deadline for amendment of pleadings as
September 30, 2025. [Doc. 26 at 11]. Thus, the Court considers the instant Motion timely
and need not consider whether Plaintiff could satisfy the elevated “good cause” standard
under Federal Rule of Civil Procedure 16(b)(4). See Gorsuch, Ltd., B.C. v. Wells Fargo
Nat’l Bank Ass’n, 771 F.3d 1230, 1240–41 (10th Cir. 2014).
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filed in state court, this case was removed to this Court on the basis of diversity jurisdiction
pursuant to 28 U.S.C. § 1332. [Doc. 1].
Brix now moves to amend its Complaint. [Doc. 18]. Brix seeks to dismiss its claims
against Mr. Schoenbein—thus removing him as a party to this lawsuit—and add a claim
against Safeco for declaratory relief and vacatur of the appraisal award (the “vacatur
claim”). [Id. at ¶ 6]; see also [Doc. 18-1 at ¶¶ 3–4, 40–43]. Safeco “does not object . . .
to the dismissal of Defendant Rudy Schoenbein as a party to this action.” [Doc. 28 at 8].
Accordingly, the Motion to Amend is GRANTED as unopposed as to Plaintiff’s claims
against Mr. Schoenbein. Safeco does, however, assert that adding the vacatur claim
would be futile because it is untimely under Colorado law and fails to state a claim. [Id.
at 4–8]. The Court addresses the Parties’ arguments as to the vacatur claim below.
I. Legal Standard
Under Rule 15(a), the Court “should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). A general presumption exists in favor of allowing a
party to amend its pleadings, see Foman v. Davis, 371 U.S. 178, 182 (1962), and the
non-movant bears the burden of showing that the proposed amendment is improper,
Openwater Safety IV, LLC v. Great Lakes Ins. SE, 435 F. Supp. 3d 1142, 1151 (D. Colo.
2020). “Refusing leave to amend is generally only justified upon 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.” Bylin v.
Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (quotation omitted). Whether to allow
amendment is within the trial court’s discretion. Burks v. Okla. Publ’g Co., 81 F.3d 975,
978–79 (10th Cir. 1996).
“A proposed amendment is futile if the complaint, as amended, would be subject
to dismissal.” Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999). “The futility
question is functionally equivalent to the question whether a complaint may be dismissed
for failure to state a claim.” Id. But where a complaint is not “patently futile on its face,”
courts in this District are disinclined to deny a motion to amend on futility grounds. See,
e.g., Combs v. Nordstrom, Inc., No. 22-cv-00150-RMR-NRN, 2022 WL 2865985, at *4
(D. Colo. July 21, 2022), objection overruled, 2022 WL 17534122 (D. Colo. Aug 17, 2022);
Electro-Mechanical Prods, Inc. v. Alan Lupton Assocs., No. 22-cv-00763-PAB-SBP, 2023
WL 5152627, at *3 (D. Colo. July 10, 2023) (“Denying a motion to amend based on futility
is uncommon in this District and usually involves claims that are facially unsupported in
the proposed amendment.”). “Rather than force a Rule 12(b)(6) motion into a Rule 15(a)
opposition brief,” courts routinely exercise their discretion under Rule 15(a) to permit
amendment over a futility argument and reserve substantive issues for Rule 12 or Rule
56 motions. See, e.g., Gen. Steel Domestic Sales, LLC v. Steelwise, LLC, No. 07-cv-
01145-DME-KMT, 2008 WL 2520423, at *4 (D. Colo. June 20, 2008) (Ebel, J.); Pollack
v. Boulder Cnty., No. 17-cv-02444-CMA-NRN, 2019 WL 1292858, at *4–5 (D. Colo. Mar.
21, 2019); Faircloth v. Hickenlooper, No. 18-cv-01249-RM-STV, 2019 WL 1002935, at *3
(D. Colo. Mar. 1, 2019). Considerations of judicial economy often favor reserving issues
of futility so the Parties can fully brief the substantive legal issues. Stender v. Cardwell,
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No. 07-cv-02503-WJM-MJW, 2011 WL 1235414, at *3 (D. Colo. Apr. 1, 2011) (declining
to reach futility arguments in order to “preserv[e] [the court’s] scarce resources”).
II. Discussion
Safeco first argues that the vacatur claim is futile as untimely. Safeco asserts that
Colorado courts—including this Court—have applied the procedures set out in the
Colorado Uniform Arbitration Act (“CUAA”) to challenges to appraisal awards. [Doc. 28
at 4–5 (citing Bertisen v. Travelers Home & Marine Ins. Co., No. 20-cv-03650-NYW-STV,
2023 WL 5822504 (D. Colo. Sept. 8, 2023))]. When a party seeks to modify or vacate an
award—here, an appraisal award—the CUAA generally requires the party to lodge its
challenge to the award within 91 days of receiving notice of the award. Colo. Rev. Stat.
§§ 13-22-223(2), 13-22-224(1). But when a party alleges that “the award was procured
by corruption, fraud, or other undue means,” the challenge to the award may be made
within 91 days “after either the ground is known or by the exercise of reasonable care
should have been known.” § 13-22-223(2).
Safeco contends that the vacatur claim would be untimely because Brix failed to
challenge the appraisal award within 91 days of receiving notice of the award. [Doc. 28
at 5]. But as Brix points out, Safeco fails to address the extended deadline that applies if
the award is “allege[d]” to result from “corruption, fraud, or other undue means.” [Doc. 29
at 3]. Brix claims in its Reply that it properly moved to add the vacatur claim within 91
days of “discover[ing] potential corruption, undue means, or mistake.” [Id.]. Safeco has
not yet had an opportunity to respond to this argument. Moreover, Safeco fails to address
whether its timeliness argument qualifies as an affirmative defense. If this argument is
an affirmative defense, it may only provide grounds for dismissal under Rule 12(b)(6) if
the merit of the defense is “apparent on the face of the complaint.” Dummar v. Lummis,
543 F.3d 614, 619 (10th Cir. 2008).
Safeco’s second, more general futility argument boils down to its assertion that
Brix’s allegations reflect nothing more than mere “dissatisfaction with the Appraisal
Award.” [Doc. 28 at 7]. Upon review of the factual allegations in the proposed Second
Amended Complaint, [Doc. 18-1], the Court cannot conclude that the proposed vacatur
claim is “patently futile on its face” as to this point, see Combs, 2022 WL 2865985, at *4.
As with the timeliness issue, the Court finds that the sufficiency of Brix’s allegations is
better addressed through a Rule 12 motion, with the benefit of more fulsome briefing.
See, e.g., id. (“It is fairer to allow Plaintiff[] to have the opportunity to fully brief the viability
of [its] claim against [Defendant] in the context of responding to a formal motion to
dismiss, rather than addressing this dispositive question in the context of a motion to
amend.”).
Finally, the Court observes that considerations of judicial economy favor permitting
the proposed amendment. See Fed. R. Civ. P. 1. The facts underlying the vacatur claim
overlap substantially with Brix’s other claims against Safeco. Even if the Court denied
the addition of the vacatur claim, Brix’s other claims against Safeco would still proceed to
discovery and would presumably be subject to further motions practice. Judicial economy
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counsels against addressing Brix’s claims in such a piecemeal manner. And, importantly,
Safeco does not argue that it would be prejudiced by the amendment. See Minter v.
Prime Equipment Co., 451 F.3d 1196, 1207 (10th Cir. 2006) (“The . . . most important[]
factor in deciding a motion to amend the pleadings[] is whether the amendment would
prejudice the nonmoving party.”); Stender, 2011 WL 1235414, at *3 (finding opposition to
amendment “grievously weakened” by lack of prejudice and reserving futility issues for
future motion to dismiss).
Accordingly, the Court finds it appropriate to permit Brix to file the proposed
Second Amended Complaint. To the extent Safeco believes the proposed Second
Amended Complaint fails to state a plausible claim for relief, it may raise that argument
in a forthcoming motion. For now, the Motion to Amend is respectfully GRANTED. And
because the Parties’ ongoing conferral has evidently resulted in further changes to
Plaintiff’s claims, see [Doc. 28 at 2; Doc. 29 at 5 (“Plaintiff will remove its request for
punitive damages from the Second Amended Complaint.”)], Plaintiff is ORDERED to file
an updated, operative version of its Second Amended Complaint no later than February
5, 2026. Plaintiff shall also file a redlined version of the Second Amended Complaint that
complies with Local Civil Rule 15.1(b). See D.C.COLO.LCivR 15.1(b).
For these reasons, IT IS ORDERED that:
(1) Plaintiff’s Motion to Amend Complaint [Doc. 18] is GRANTED;
(2) Rudy Schoenbein is DISMISSED as a defendant in this action; and
(3) No later than February 5, 2026, Plaintiff SHALL FILE its Second Amended
Complaint, with a redlined copy attached in compliance with
D.C.COLO.LCivR 15.1(b).
DATED: February 2, 2026
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