F I L E D

United States Court of Appeals

Tenth Circuit

SEP 8 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BARRY COMBS,

 Plaintiff - Appellant,

v.

PRICEWATERHOUSECOOPERS

LLP,

 Defendant,

 and

ANN BENNETT,

Defendant - Appellee.

Nos. 03-1080, 03-1222

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D. Ct. No. 01-MK-987 (OES))

Thomas J. Kimmell, Zarlengo & Kimmell, LLC, Denver, Colorado, appearing for

Plaintiff-Appellant.

Cindy C. Oliver (Jennifer Clark, with her on the briefs), Rothgerber, Johnson &

Lyons, LLP, Denver, Colorado, appearing for Defendant-Appellee.
*

 The Honorable Robert H. McWilliams, originally assigned to this panel,

recused himself after oral argument. 

-2-

Before TACHA, Chief Circuit Judge, PORFILIO*, and LUCERO, Circuit

Judges.

TACHA, Chief Circuit Judge.

Plaintiff-Appellant Barry Combs, a minority shareholder and former

employee of Allied Information Solutions, Inc. (“AIS”), alleged six grounds for

breach of fiduciary duty against Defendant-Appellee Ann Bennett, the majority

shareholder and only other employee of AIS. After removal to federal court, Ms.

Bennett moved for summary judgment arguing, in part, that Mr. Combs must

bring his allegations as a derivative action. The District Court granted Ms.

Bennett’s motion. Mr. Combs then filed a motion to amend his complaint to state

a derivative action, which the District Court denied as moot. On appeal, Mr.

Combs challenges both rulings. We take jurisdiction under 28 U.S.C. § 1291 and

AFFIRM.

I. BACKGROUND

AIS is a close corporation organized under Colorado law. It has never had

more than six shareholders. In 1987, Mr. Combs became a minority shareholder

of AIS and began working there. At all times relevant to this appeal, Ms.

Bennett, the majority shareholder of AIS, has been the president, chairman of the
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board, and sole other employee of AIS.

In the late summer of 1999, PriceWaterhouse Coopers acquired all the

assets of AIS, although AIS remains an extant corporate entity. As part of this

transaction, both Ms. Bennett and Mr. Combs became employees of

PriceWaterhouse Coopers. Approximately four months after this transaction,

PriceWaterhouse Coopers terminated Mr. Combs’ employment. 

After his discharge, Mr. Combs brought numerous causes of action against

both PriceWaterhouse Coopers and Ms. Bennett in Colorado state court, including

an age discrimination suit against PriceWaterhouse Coopers under 29 U.S.C. §

621 et seq. (“ADEA”). The ADEA claim enabled PriceWaterhouse Coopers and

Ms. Bennett to remove the case to federal court, see 28 U.S.C. § 1441(c), where

the District Court took supplemental jurisdiction over Mr. Combs’ numerous state

law claims, see 28 U.S.C. § 1367(a). Having subsequently reached a settlement

agreement with Mr. Combs, PriceWaterhouse Coopers is not before us on appeal. 

We therefore turn our focus to the claims against Ms. Bennett.

Mr. Combs rested his sole action against Ms. Bennett, breach of fiduciary

duty, on six alleged instances of her misconduct. Much of the factual basis for

these claims arise out of an August 1999 audit of AIS. Although Mr. Combs

invited the other minority shareholders to participate in the audit, they declined,

thus leaving him with the entire financial burden of the audit.
-4-

In the District Court, Ms. Bennett filed a motion for summary judgment,

offering three supporting arguments. First, she contended that Mr. Combs lacked

standing to bring these claims in his individual capacity, asserting that he must

bring this suit as a derivative action on behalf of the corporation. Second, Ms.

Bennett presented a statute of limitations argument. Third, she argued that Mr.

Combs could not carry his burden of proof as a matter of law. On January 31,

2003, the District Court, relying solely on Ms. Bennett’s first ground, granted

summary judgment and discharged all claims against Ms. Bennett. On February

28, 2003, Mr. Combs appealed the summary judgment ruling. 

On February 10, 2003, Mr. Combs filed a motion to amend his complaint to

state a derivative action. See Fed. R. Civ. P. 15(a). On April 14, 2003, based on

its previous summary judgment ruling, the District Court denied the motion as

moot. Mr. Combs challenges this ruling in a separately filed appeal (“motion to

amend appeal”). In September 2003, Ms. Bennett moved to consolidate the two

appeals, which was granted. She also moved this Court, pursuant to 10th Cir. R.

27.2(A)(1), to dismiss the motion to amend appeal, arguing that mootness and

lack of appellate jurisdiction preclude review of the District Court’s decision. We

consider this argument, along with the merits of Mr. Combs’ appeal, below. 

II. SUMMARY JUDGMENT

Mr. Combs presents two arguments against the necessity of a derivative
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action in this case. First, he asserts that he may sue in his individual capacity

because Ms. Bennett “cause[d] him injury as a stockholder, unique to himself and

not suffered by the other stockholders.” Nicholson v. Ash, 800 P.2d 1352, 1357

(Colo. Ct. App. 1990). Second, he urges that, because AIS is a close corporation,

filing this suit in a derivative capacity would not further the policies served by the

derivative action procedure. Applying Colorado law, we disagree.

A. Standard of Review

We review the District Court’s “grant of summary judgment de novo,

applying the same standards used by the district court.” Byers v. City of

Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). We view the evidence, and

draw reasonable inferences therefrom, in the light most favorable to the

nonmoving party. Byers, 150 F.3d at 1274.

B. Standing as a Unique Shareholder

To escape summary judgment on his breach of fiduciary duty claim, Mr.

Combs must put forth evidence of the elements of a breach of fiduciary duty, see

Graphic Directions, Inc. v. Bush, 862 P.2d 1020, 1022 (Colo. Ct. App. 1993)
1

 “While not binding on this court, decisions by a state’s intermediate

appellate courts provide evidence of how the state’s highest court would rule on

the issue, and we can consider them as such.” Craven v. Univ. of Colo. Hosp.

Auth., 260 F.3d 1218, 1231 (10th Cir. 2001) (internal quotation omitted). We will

not disregard such intermediate rulings “unless [we are] convinced by other

persuasive data that the highest court of the state would decide otherwise.” West

v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940).

-6-

(providing elements), and also establish that he has standing, s ee River Mgmt.

Corp. v. Lodge Props. Inc., 829 P.2d 398, 403 (Colo. Ct. App. 1991).1

Accordingly, the District Court based the summary judgment order on its finding

that Mr. Combs lacked standing as a matter of law. 

Mr. Combs contends that he suffered a breach of fiduciary duty from the

fact that Ms. Bennett: (1) paid herself a salary in excess of what had been

approved by AIS’s board of directors; (2) paid for personal expenses out of AIS

funds; (3) failed to disclose the pending sale of AIS to the shareholders in a

timely manner; (4) pursued business opportunities for herself instead of for AIS;

(5) falsely promised him continued employment with PriceWaterhouse Cooper;

and (6) negotiated a lucrative salary from PriceWaterhouse for herself without

similarly providing for Mr. Combs. 

Absent an exception to the general rule, Mr. Combs lacks standing to bring

these claims in an individual capacity. Under Colorado law, “a stockholder

cannot maintain a personal action against a director or other third party whose

action causes harm to the corporation. Generally, it is the corporation, or a
2

If Mr. Combs were to pursue these harms, he would have to do so strictly

in his capacity as an employee, as we explain below. But such a claim would

necessarily fail on the merits. “Before there can be a breach of a fiduciary duty, a

fiduciary relationship or a confidential relationship must exist.” Turkey Creek,

(continued...)

-7-

stockholder in a derivative action . . . , who must pursue such a claim.” 

Nicholson, 800 P.2d at 1356. Moreover, Colorado law states expressly that Mr.

Combs’ first and second contentions – claiming waste and mismanagement of

corporate assets – must be brought as a derivative action, even in close

corporations having but one minority shareholder. River Mgmt. Corp., 829 P.2d

at 404; see also O’Malley v. Casey , 589 P.2d 1388 (Colo. Ct. App. 1979) (filing

of derivative action is proper for claims regarding excessive salaries); Ireland v.

Wynkoop , 539 P.2d 1349, 1354, 1357 (Colo. Ct. App. 1975) (same for suits

alleging wrongful use). As to his third contention, although close corporation

“shareholders reasonably can expect to be informed of all listings [in a timely

manner] and have a right to expect that offers to purchase will be pursued and

negotiated in good faith[,]” Colt v. Mt. Princeton Trout Club, Inc ., 78 P.3d 1115,

1120 (Colo. Ct. App. 2003), such a claim is properly pursued as a derivative

action, id. at 1116. Such is also the case with Mr. Combs’ fourth contention

regarding self-dealing. Ireland , 539 P.2d at 1357. As the District Court noted,

the fifth and sixth grounds, as they allege injuries to Mr. Combs as an employee,

simply fail on the merits as a matter of law. 2
2

(...continued)

LLC v. Rosania, 953 P.2d 1306, 1312 (Colo. Ct. App. 1998). As such, Mr. Combs

cannot bring this suit solely in his capacity as an employee because, while an

employee normally owes fiduciary duties to his employer, employers do not

generally owe fiduciary duties to employees under Colorado law . See Jet Courier

Service, Inc. v. Mulei, 771 P.2d 486 (Colo. 1989) (employee owes employer duty

of loyalty); Equitex, Inc. v. Ungar, 60 P.3d 746, 752 (Colo. Ct. App. 2002)

(“fiduciary duties are not mutual”); Bithell, 762 F.2d at 714 (corporation does not

owe independent contractor fiduciary duties); Vitale v. Steinberg, 764 N.Y.S.2d

236, 237 (N.Y. App. Div. 2003) (“An employer-employee relationship providing

for the division of profits will not give rise to a fiduciary obligation on the part of

the employer absent an agreement to also share losses.”). We can find, and Mr.

Combs cites, no rationale for finding that Ms. Bennett owes him fiduciary duties

in his capacity as an employee of AIS. 

-8-

Mr. Combs argues that this general prohibition against individual standing

does not apply because Ms. Bennett “cause[d] him injury as a stockholder, unique

to himself and not suffered by the other stockholders.” Nicholson, 800 P.2d at

1357. If he can satisfy this exception to the general rule, then Mr. Combs may

pursue his fiduciary duty claims in his individual capacity. Id.; see also In re

Stat-Tech Int’l Corp ., 47 F.3d 1054, 1059-60 (10th Cir. 1995) (applying Colorado

corporate law).

Mr. Combs offers four reasons why his fiduciary duty claims fall within the

Nicholson exception: (1) Ms. Bennett’s misuse of funds deprived AIS of money to

pay him a higher salary; (2) he was the only shareholder to perform an audit; (3)

Ms. Bennett’s untimely disclosure of the pending sale of AIS inhibited his ability

to negotiate a lucrative salary from PriceWaterhouse Coopers; and (4) Ms.
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Bennett’s promise of continued employment with PriceWaterhouse Coopers

affected him disproportionately. 

As the District Court noted, Mr. Combs’ first, third, and fourth claims of

“uniqueness” are injuries in his status as an employee, not a stockholder. As

such, the District Court held that they failed to establish a unique injury to Mr.

Combs in his status as a shareholder. Citing many non-Colorado cases, Mr.

Combs argues on appeal that this distinction between the status as a shareholder

and status as an employee is not meaningful in the close corporation context

because “[t]he denial of employment to the minority [shareholder] at the hands of

the majority is especially pernicious in some instances. A guaranty of

employment with the corporation may have been one of the basic reasons why a

minority owner invested capital in the firm.” Wilkes v. Springside Nursing Home,

Inc., 353 N.E.2d 657, 662 (Mass. 1976) (internal quotations omitted). 

While some states have adopted the approach advocated by Mr. Combs and

permitted suits by employee/shareholders against their employer-close

corporations, we find that Colorado has not. Colorado has refused to treat

plaintiffs in a hybrid capacity (i.e., shareholder/creditor or

shareholder/independent contractor). Rather, the Colorado courts carefully

distinguish the capacities in which a plaintiff brings a claim. For instance, the

Colorado Court of Appeals in Nicholson carefully distinguished between the
3

 Even in Colt, where the Court of Appeals stated that other jurisdictions

consider the thwarting of plaintiff’s reasonable expectation in employment

oppressive when it arises from a minority interest in a close corporation, the case

was brought as a derivative action—not in an individual capacity. 78 P.3d at

1117, 1119-20.

4

 Although the corporation at issue in Bithell was a Utah corporation, the

Court of Appeals relied exclusively on Colorado case law in this analysis. 

Bithell, 762 P.2d at 714. Thus, we find Bithell, at least in this section, to be an

application of Colorado law.

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plaintiff’s capacity as creditor of the corporation and his capacity as stockholder

in determining his standing to sue as an individual.

3

 800 P.2d at 1356-57. The

court did not allow plaintiff to bring traditionally derivative claims in his

individual capacity based upon a hybrid status of shareholder/creditor. Id. The

Colorado Court of Appeals took a similar course in Bithell v. Western Care Corp.,

762 P.2d 708, 714 (Colo. Ct. App. 1988). There the court carefully distinguished

plaintiff’s different statuses in relation to the corporation and rejected a minority

stockholder’s, who was also an independent contractor, claim that he had standing

to bring a breach of fiduciary duty claim in his hybrid capacity as a

stockholder/independent contractor. Id.

4

 In other words, when a shareholder does

not possess the right to bring a suit in his individual capacity as a shareholder

against the corporation, as is the case here, he does not gain that right merely

because he also serves the corporation in another capacity. In short, Mr. Combs

does not suffer a unique injury as a shareholder, thus granting him individual

standing, based upon his hybrid status as a stockholder/employee. See River
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Mgmt. Corp., 829 P.2d at 403 (distinguishing between suing in an individual

capacity and a derivative capacity for breach of fiduciary duty).

As for the second claim, conducting an audit is simply not an “ injury [to

Mr. Combs] as a stockholder,” Nicholson , 800 P.2d at 1357 (emphasis added),

rather it is a right that is available to all shareholders, see Colo. Rev. Stat. Ann. §

7-116-102(2)-(3) (West 2003) (shareholder’s right to review accounting records). 

Thus, he cannot satisfy the Nicholson test for individual standing.

C. Adoption of Donahue in Colorado

Next, Mr. Combs urges us to predict that the Colorado Supreme Court will

adopt the holding of Donahue v. Rodd Electrotype Co. of New England, Inc., 328

N.E.2d 505 (Mass. 1975). The Donahue decision brought about two innovations

in the law of close corporations relevant to this case. First, the court held that

shareholders in a close corporation owe each other duties as if they are partners:

Because of the fundamental resemblance of the close corporation to

the partnership, the trust and confidence which are essential to this

scale and manner of enterprise, and the inherent danger to minority

interests in the close corporation, we hold that stockholders in the

close corporation owe one another substantially the same fiduciary

duty in the operation of the enterprise that partners owe to one

another. Id. at 515 (notes omitted).

The Colorado courts have adopted this rule. See Van Schaack Holdings v. Van

Schaack, 867 P.2d 892, 897 (Colo. 1994) (en banc) (“[I]t is widely recognized

that the fiduciary duty imposed on corporate directors and officers dealing with
5

 See, e.g., Norman v. Nash Johnson & Sons’ Farms, Inc., 537 S.E.2d 248,

259 (N.C. Ct. App. 2000); Brown v. Brown, 731 A.2d 1212, 1217 (N.J. Super. Ct.

App. Div. 1999); Richards v. Bryan, 879 P.2d 638, 648 (Kan. Ct. App. 1994);

Schumacher v. Schumacher, 469 N.W.2d 793, 798-799 (N.D. 1991); W&W

Equipment Co. v. Mink, 568 N.E.2d 564, 571 (Ind. Ct. App. 1991); Crosby v.

Beam, 548 N.E.2d 217, 221 (Ohio 1989); Thomas v. Dickson, 301 S.E.2d 49, 51

(Ga. 1983); see also American Law Institute, Principles of Corporate Governance:

Analysis and Recommendations § 7.01(d) (1994); Warden v. McLelland, 288 F.3d

105, 112-113 (3d Cir. 2002) (predicting that the Pennsylvania Supreme Court

would follow ALI approach). 

6

 See, e.g., Brancaleone v. Mesagna, 736 N.Y.S.2d 685, 687 (N.Y. App.

Div. 2002); Small v. Sussman, 713 N.E.2d 1216, 1219-1220 (Ill. App. Ct. 1999),

(continued...)

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minority shareholders is enhanced in the context of closed corporations.”); Pueblo

Bancorporation v. Lindoe, Inc., 37 P.3d 492, 499 (Colo. Ct. App. 2001), aff’d 63

P.3d 353 (Colo. 2003) (“In a closely held corporation, the relationship between

directors and shareholders is treated like a relationship between partners.”); Colt ,

78 P.3d at 1119 (same). The existence of heightened fiduciary duties, however,

does not on its own create individual standing.

The Donahue court’s second innovation granted individual standing to

shareholders in close corporations. Donahue, 328 N.E.2d at 508 n.4 (“We treat

that bill of complaint . . . as presenting a proper cause of suit in the personal right

of the plaintiff.”). Many jurisdictions have adopted the Donahue court’s approach

to standing either in whole or with qualifications. 5 Nonetheless, many others

have rejected the Donahue approach to standing, often adopting a rule similar to

that espoused by the Colorado Court of Appeals in Nicholson .

6

 The Colorado
6

(...continued)

appeal denied 723 N.E.2d 1169 (Ill. 1999); Nelson v. Anderson, 84 Cal. Rptr. 2d

753, 763 (Cal. Ct. App. 1999); Wessin v. Archives Corp., 592 N.W.2d 460, 467

(Minn. 1999); Hames v. Cravens, 966 S.W.2d 244, 246-47 (Ark. 1998);

Landstrom v. Shaver, 561 N.W.2d 1, 13-14 (S.D. 1997); Wingate v. Hajdik, 795

S.W.2d 717, 719 (Tex. 1990); see also Brock v. Baskin-Robbins USA Co., 113 F.

Supp. 2d 1078, 1092 (E.D. Tex. 2000) (noting that Alabama, Texas, and

Louisiana do not permit shareholders to sue individually for injuries to a

corporation).

-13-

Supreme Court has yet to explicitly reject or accept the Donahue approach to

standing. 

Nevertheless, because Colorado courts have recently adopted the Donahue

approach to the scope of fiduciary duties between shareholders in a close

partnership— see Van Schaack, 867 P.2d at 897; Pueblo Bancorporation, 37 P.3d

at 498; Colt, 78 P.3d at 1119—the standing issue is ripe for determination by the

Colorado Supreme Court. At oral argument, we asked Mr. Combs’ counsel if he

would like the question certified to the Colorado Supreme Court. He stated he

would prefer that the question not be certified. Ms. Bennett’s counsel also did

not wish to certify the question.

Instead, Mr. Combs’ counsel urges us to predict that the Colorado Supreme

Court would adopt the Donahue standing rule. As we noted above, the general

trend in Colorado has been that corporate claims must be pursued in a derivative

suit, even in close corporations. River Mgmt. Corp., 829 P.2d at 404; see also In

re Stat-Tech Int’l Corp., 47 F.3d at 1059-60 (finding, under Colorado law, that
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corporate claims generally must be pursued derivatively); Nicholson, 800 P.2d at

1357 (holding that the only exception to the need for derivative action arises

where the defendant “cause[s plaintiff an] injury as a stockholder, unique to

himself and not suffered by the other stockholders.”). Although these cases were

decided by the Court of Appeals, we have no “persuasive data that the highest

court of the state would decide otherwise.” West v. Am. Tel. & Tel. Co., 311 U.S.

223, 237 (1940). Given the split of authority on this issue among the states, see

supra notes 4 and 5, and the special importance of the control of corporate

governance in state law, we refuse to predict that the Colorado Supreme Court

will part ways with the Colorado Court of Appeals, thereby creating a sea change

in Colorado corporate law, on the issue of close corporation shareholders’

standing to sue. Therefore, we find that Mr. Combs lacks individual standing to

sue Ms. Bennett for breach of fiduciary duty.

II. MOTION TO AMEND

Two issues confront us on the motion to amend appeal. First, Ms. Bennett

contends that mootness and lack of appellate jurisdiction mandate that we dismiss

Mr. Combs’ motion to amend appeal. Second, Mr. Combs urges that the District

Court abused its discretion by denying his motion. We start with Ms. Bennett’s

contentions.

A. Motion to Dismiss
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A motion to dismiss that is originally filed in this Court is proper when the

case is moot or when we lack jurisdiction. See 10th Cir. R. 27.2(A)(1). Ms.

Bennett asserts the presence of both circumstances. We disagree.

Ms. Bennett first contends that, because the District Court determined that

the motion to amend was moot, we must also dismiss the appeal of that

determination for mootness. See Iron Arrow Honor Soc’y v. Heckler, 464 U.S.

67, 70 (1983) (“Federal courts lack jurisdiction to decide moot cases because their

constitutional authority extends only to actual cases or controversies.”). 

Nevertheless, we have jurisdiction to determine our own jurisdiction. Gschwind

v. Cessna Aircraft Co., 232 F.3d 1342, 1346 (10th Cir. 2000). As such, the

District Court’s conclusion that Mr. Combs’ Fed. R. Civ. P. 15(a) motion was

moot when filed below is not grounds for summary dismissal in this Court,

because we have the requisite jurisdictional font to determine for ourselves

whether the motion below was, in fact, moot. Thus, Ms. Bennett’s mootness

motion presents the same question as an inquiry into the merits of the appeal itself

(i.e., did the District Court properly dismiss the motion to amend as moot). We

discuss that issue below.

Second, Ms. Bennett urges that we lack appellate jurisdiction because the

order denying leave to amend is not a final decision. See 28 U.S.C. § 1291

(generally limiting the jurisdiction of the courts of appeal to final decisions from
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the district courts). We agree with Ms. Bennett that an order denying leave to

amend is not, in most cases, a final decision, as a final decision is one that “ends

the litigation on the merits and leaves nothing for the court to do but execute the

judgment.” Catlin v. United States , 324 U.S. 229, 233 (1945). It does not follow,

however, that courts of appeals lack jurisdiction to review a denial of leave to

amend that is filed after the district court has issued a final decision and is

appealed in conjunction with the final decision. See, e.g., Copier v. Smith &

Wesson Corp., 138 F.3d 833, 834 (10th Cir. 1998) (“Appellant . . . appeals from

the district court’s final order denying her motion to amend and confirming

dismissal of her complaint.”) (note omitted). Thus, if Mr. Combs had presented

his motion to amend argument in the same appeal as his summary judgment

argument, we would undoubtedly have jurisdiction.

That is not exactly the case at hand. Mr. Combs filed his summary

judgment appeal first; he then separately appealed the denial of his motion to

amend. Although filing two separate appeals may affect our jurisdiction in a

different case; we do not find on the facts before us that Mr. Combs’ filing of two

separate appeals differs meaningfully from a single appeal of a final decision that

includes a review of a motion to amend as an additional issue. Therefore, we

hold that we have jurisdiction to hear Mr. Combs’ motion to amend appeal.

B. Denial of Leave to Amend
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After entering final judgment against Mr. Combs, the District Court

dismissed Mr. Combs’ motion for leave to amend his complaint as moot. Mr.

Combs contends this amounts to reversible error. We disagree.

1. Standard of Review

The parties contest the applicable standard of review. In his opening brief,

Mr. Combs pushes for de novo review by citing Foster v. Allied Signal, Inc., 293

F.3d 1187, 1192 (10th Cir. 2002) and Cooperman v. David, 214 F.3d 1162, 1164

(10th Cir. 2000). Foster and Cooperman, however, hold that the de novo standard

applies to our review of summary judgment orders, not denials of motions to

amend. Ms. Bennett argues for abuse of discretion review, citing Zenith Radio

Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 (1971) (“It is settled that

the grant of leave to amend the pleadings pursuant to Rule 15(a) is within the

discretion of the trial court”) and Pallottino v. City of Rio Rancho, 31 F.3d 1023,

1027 (10th Cir. 1994) (same). In reply, Mr. Combs reasserts that we apply de

novo review, this time relying upon Watson ex. rel. Watson v. Beckel, 242 F.3d

1237, 1239-40 (10th Cir. 2001) (“This court reviews de novo a district court’s

refusal to grant leave to amend a complaint based on the court’s conclusion that

the amendment would be futile.”). Although Mr. Combs relies exclusively on

Watson in his renewed standard of review argument, he fails to argue that the

District Court based its decision to deny leave to amend on futility. Therefore,
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we review for abuse of discretion. Pallottino, 31 F.3d at 1027.

2. Merits

The District Court denied Mr. Combs’ motion to grant leave to amend,

stating only that it was moot. Mr. Combs contends that the District Court abused

its discretion by failing to offer reasons for its denial because the rationale for the

denial is not apparent from the record. See id. He misapplies this rule.

After a district court enters a final judgment, as occurred here, it may not

entertain motions for leave to amend unless the court first sets aside or vacates

the judgment pursuant to Fed. R. Civ. P. 59(e) or 60(b). Seymour v. Thornton, 79

F.3d 980, 987 (10th Cir. 1996). Mr. Combs filed neither a Rule 59(e) nor a Rule

60(b) motion. This failure to file the necessary prerequisite motion mooted his

motion to amend. As such, the District Court provided all the explanation

necessary to justify its ruling.

Although he did not style his Rule 15(a) motion to amend as a motion to set

aside or vacate, Mr. Combs counters that the District Court had “the discretionary

power to treat [his] Rule 15(a) motion seeking to amend a complaint as including

a Rule 59(e) motion to amend judgment or a Rule 60(b) motion for relief from

judgment.” 3 Moore’s Federal Practice § 15.12[2] & n.19 (3d ed. 2004) (listing

cases). Mr. Combs, however, offers no reason for us to conclude that the District

Court abused its discretion by failing to morph his Rule 15(a) motion into a Rule
-19-

59(e) or 60(b). Indeed, our review of relevant case law and the record assures us

that the District Court made the proper ruling. 

In Pallottino, we explained that granting leave to amend after entry of

summary judgment is disfavored:

A busy district court need not allow itself to be imposed upon by the

presentation of theories seriatim. Liberality in amendment is

important to assure a party a fair opportunity to present his claims and

defenses, but equal attention should be given to the proposition that

there must be an end finally to a particular litigation. . . . Much of the

value of summary judgment procedure in the cases for which it is

appropriate . . . would be dissipated if a party were free to rely on one

theory in an attempt to defeat a motion for summary judgment and

then, should that theory prove unsound, come back along thereafter

and fight on the basis of some other theory. 31 F.3d at 1027 (internal

citations and quotations omitted).

This wariness is heightened when the losing party seeks the amendment many

months after his initial filing, the amendment is not based on new evidence, and

the amendment is merely the presentation of an alternate legal theory that was

readily available prior to the entry of summary judgment. Id. 

Here, Mr. Combs waited over fifteen months from the filing of his first

amended complaint before seeking leave to amend; and he offers no new evidence

as grounds for the amendment. Rather, he lost on the individual capacity theory

and sought to amend his complaint to use a derivative action as an alternative. 

Given this record, we find that the District Court did not abuse its discretion in

failing sua sponte to treat Mr. Combs’ Rule 15(a) motion as a Rule 59(e) or 60(b)
-20-

motion. Therefore, the motion for leave to amend was properly denied as moot. 

IV. CONCLUSION

We hold that Mr. Combs lacks individual standing to bring suit for breach

of fiduciary duty and AFFIRM the District Court’s grant of summary judgment in

favor of Ms. Bennett. We also have jurisdiction to hear Mr. Combs’ appeal of the

District Court’s denial for leave to amend and AFFIRM the court’s order.