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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

LEWIS T. BABCOCK, JUDGE

Civil Case No. 11-cv-02219-LTB-CBS

ELVIS BAKER and DORIS BAKER, deceased,

Plaintiffs,

v.

DAVID THOMSON and GREYHOUND LINES, INC.,

Defendants.

______________________________________________________________________________

ORDER

______________________________________________________________________________

This matter is before me on Plaintiff Elvis Baker’s Motion for Leave to File an Amended

Complaint [Doc #25]. For the reasons stated herein, I GRANT Plaintiff’s motion. 

I. Background

This suit stems from a June 18, 2010, automobile accident in which Defendant David

Thomson, while driving a commercial bus for Defendant Greyhound Lines, Inc. (together, the

“Defendants”), struck Plaintiff and his wife, Doris, from behind in Otero County, Colorado. Their

car was forced from the road and rolled, injuring them. On July 15, 2011, Plaintiff and Doris filed

suit in state court, alleging four claims for relief: (1) negligence by Thomson; (2) negligence per se

by Thomson; (3) respondeat superior against Greyhound for Thomson’s negligence; and (4)

negligent hiring, training, supervision, and/or retention by Greyhound. Defendants removed the

matter to this Court pursuant to 28 U.S.C. §§ 1332 and 1441. 

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II. Law

Plaintiff moves pursuant to Rule 15(a)(2). It provides that “a party may amend its pleading

only with the opposing party’s written consent or the court’s leave. The court should freely grant

leave when justice so requires.” See Fed. R. Civ. P. 15(a)(2); Bylin v. Billings, 568 F.3d 1224, 1229

(10th Cir. 2009). The rule’s purpose “is to provide litigants the maximum opportunity for each claim

to be decided on its merits rather than on procedural niceties.” Minter v. Prime Equip., 451 F.3d

1196, 1204 (10th Cir. 2006) (internal quotations omitted). Therefore, “[r]efusing 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.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993); accord Foman

v. Davis, 371 U.S. 178, 182 (1962). 

Whether to grant leave to amend the pleadings pursuant to Rule 15(a)(2) is within the trial

court’s discretion. See Minter, 451 F.3d at 1204 (citing Zenith Radio Corp. v. Hazeltine Research,

Inc., 401 U.S. 321, 330 (1971)). Consequently, its decision will not be reversed “absent an abuse

of discretion,” which is when the decision was “arbitrary, capricious, whimsical, or manifestly

unreasonable.” Bylin, 568 F.3d at 1229. 

III. Discussion

With this motion, Plaintiff seeks leave to amend the original complaint to add a wrongful

death claim for the death of his wife and co-plaintiff. Doris died on or around November 21, 2011.

Plaintiff alleges that Doris’s “life was cut short as a result of the injuries she sustained in [the June

18, 2010] accident.” In support, he attaches a statement from Doris’s primary care physician, Dr.

Michael Martino, who opines that Doris “suffered an increase in pain, confusion and a decline in

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her general health after [the] auto accident.”

To begin, consonant with Rule 15(a)(2)’s language and purpose, my predilection is to grant

the motion. See Fed. R. Civ. P. 15(a)(2); see also Minter, 451 F.3d at 1204. Under Rule 15(a)(2)

and Frank, the inquiry thus turns to whether there has been 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.” Frank, 3 F.3d at 1365. Because

Defendants’ only challenges to the motion are on grounds of futility, unfair prejudice, and undue

delay, I confine my analysis to those factors; I find that Defendants show none of them.

Consequently, I grant Plaintiff’s motion and accept his amended complaint tendered therewith. 

Defendants first contend that the motion is futile because Plaintiff will not be able to prove

a causal connection between the accident at issue and Doris’s death. They argue that her litany of

other health problems, the timing of her death, and the nature of her injuries from the accident,

militate against a causal connection between the accident and her death. I need not plumb the depths

of this argument: the question of causality is for the jury to decide. 

I also do not see undue prejudice or delay. Defendants fail to provide any facts in support

thereof. They simply assert that Plaintiff may “request[] extensions for the expert disclosure

deadline, the discovery deadline and perhaps the trial date,” which “will cause prejudice to [them]

as witness recollections will deteriorate and expert expenses will increase.” This is not persuasive.

Trial is still eleven months away (set for April 2013). As a result, Defendants have

“adequate notice” of the claim and its factual allegations and will have “ample opportunity to

respond.” See Bylin, 568 F.3d at 1230; see also Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971)

(finding that there was no prejudice because the amendment was authorized several months prior

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to trial). The amendment also arises out of the same subject matter as the other claims. See Gillette

v. Tansy, 17 F.3d 308, 313 (10th Cir. 1994) (finding no evidence of prejudice when the

“[p]etitioner’s amended claims track the factual situations set forth in his [original] claims”); c.f.

Childers v. Indep. Sch. Dist. No. 1, 676 F.2d 1338, 1343 (10th Cir. 1982) (ruling that the district

court’s refusal to allow an amendment was “particularly egregious in this case because the subject

matter of the amendment was already alleged in the complaint”). 

Regarding timeliness, the motion is the product of an unfortunate event occurring after

Plaintiff filed the original complaint. See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1130

(10th Cir. 1998) (where the court denied leave to amend because the “plaintiff was aware of all the

information on which his proposed amendment was based prior to filing the original complaint”).

Plaintiff filed this motion on April 2, 2012, approximately four months after Doris died, and roughly

six weeks after Dr. Martino rendered his statement. Defendants fail to demonstrate how this timing

constitutes undue delay–especially given the sensitive nature of the underlying circumstances. 

Accordingly, for the reasons set forth above, IT IS ORDERED that Plaintiff’s Motion for

Leave to File an Amended Complaint [Doc #25] is GRANTED, and I accept his amended complaint

tendered therewith [Doc #26-1].

 Date: May 11 , 2012 in Denver, Colorado.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, JUDGE

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