IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11–cv–02603–REB–KMT

DAVID C. ROSS,

Plaintiff,

v. 

COLORADO DEPARTMENT OF TRANSPORTATION, 

Defendant.

______________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Kathleen M. Tafoya

This matter is before the court on Plaintiff’s “Motion for Leave to Amend Complaint”

[Doc. No. 27] filed July 31, 2012. Defendant Colorado Department of Transportation’s

(“CDOT”) Response was filed on the same day, July 31, 2012. [Doc. No. 29.] Plaintiff filed his

Reply [Doc. No. 36] on August 14, 2012.

Not at issue before this court, but relevant to the issues to be addressed herein, Defendant

has sought dismissal of several of Plaintiff’s claims pursuant to Fed. R. Civ. P. 56(b) on the basis

that the Eleventh Amendment to the United States Constitution stand as a bar to the suit against

the state and that pendent state claims are barred by Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 106 (1984). (See “Defendant’s Memorandum Brief in Support of Combined

Motionto Dismiss and Motion for Summary Judgment” (“Mot. SJ”) [Doc. No. 19, filed June 29,

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 On July 31, 2012, Plaintiff filed his Response to Defendant’s Motion for Summary

Judgment [Doc. No. 25] arguing for the first time that he should be permitted to amend his

complaint and add Mark Leonard and Scott McDaniel as Defendants. (Id. at 9-11.)

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2012].) The motion for summary judgment is pending before District Judge Robert E.

Blackburn. 

Plaintiff’s request for leave to amend the Complaint, however, arises out of and in

response to that motion.1 Plaintiff now requests that he be allowed to name as new defendants

Plaintiff’s Supervisor, Mark Leonard, in his official capacity and Leonard’s supervisor, Scott

McDaniel, in his official capacity, so that he may avoid dismissal of his claims and be allowed

claims for prospective declaratory and injunctive relief pursuant to Ex Parte Young, 209 U.S.

123 (1908).

Procedural Background

Plaintiff alleges that his employer engaged in constitutional violations by its practice of

favoring Muslim employees and allowing overt public displays of Muslim religious observances

that were not granted to Christians. (Compl. [Doc. No. 1].) Plaintiff, represented by his counsel

Maria Theresa Antill, filed his Complaint on October 4, 2012, naming only CDOT as a

defendant. There were no allegations against any individual in either his or her individual or

official capacities. The actions and activities of Mark Leonard featured prominently in the

Complaint. (See Compl. ¶¶ 10, 11, 12, 13, 15, 18, 20, 21, 22, 23, 25, 26, and 27.) Scott

McDaniel, the other proposed new defendant, is not mentioned in either the Complaint or the

Final Pretrial Order, nor is he named as a witness in Plaintiff’s witness list attached to the Final

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Pretrial Order. (Final Pretrial Order [Doc. No. 32], filed August 9, 2012.) As damages, the

Complaint seeks: a “permanent injunction enjoining Defendant and its officers from engaging in

discriminatory and retaliatory employment practices;” restoration of Plaintiff’s job duties; actual,

compensatory and punitive damages; attorney fees and costs, including expert witness fees; and,

pre- and post-judgment interest. (Compl. at 14.)

The Scheduling Order [Doc. No. 9] was filed subsequent to a scheduling conference on

December 29, 2012. The Scheduling Order required that motions for leave to amend or join

parties be filed on or before February 12, 2012. (Id. at 7.) The deadline for completion of all

discovery was May 30, 2012. (Id.) Thus, Plaintiff did not seek to amend and join additional

parties until five and a half months beyond the deadline to do so as well as over two months after

the conclusion of the discovery period. In fact, the motion did not come until after CDOT filed

its dispositive motion.

Legal Analysis

Plaintiff's motion implicates both Fed. R. Civ. P. 15(a)(2) and 16(b)(4), as well as their

interplay, and failure to comply with basic legal conventions. 

A. Failure to Attach Proposed Amended Complaint.

Defendant has filed its Answer [Doc. No. 6] to Plaintiff’s Complaint and therefore

Plaintiff may amend his “pleading only by leave of court . . . .” Fed. R. Civ. P. 15(a). 

Obviously, the court must be able to review a proposed amendment to a complaint in order to

determine its viability under the applicable law. Plaintiff has failed to submit a copy of his

proposed Amended Complaint with his Motion to Amend.

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The court may deny a motion to amend a complaint for failure to submit the proposed

amendment. See Lambertson v. Utah Dep’t of Corrs., 79 F.3d 1024, 1029 (10th Cir. 1996)

(district court did not abuse its discretion in denying plaintiff’s motion to amend for failure to

provide adequate explanation for delay in seeking amendment and for failure to provide a copy

of the proposed amended pleading). See also Fleming v. Molloy, Case No. 07-cv-00118-MSKCBS, 2007 WL 3254389, at *1 (D. Colo. Oct. 31, 2007)(motion to amend complaint denied for

failure to attach proposed amended complaint.); Bownes v. City of Gary, Indiana, 112 F.R.D.

424, 425 (N. D. Ind.1986) (“common sense” dictates that a party seeking leave to amend should

accompany his motion with a copy of the proposed amended complaint); Williams v. Wilkerson,

90 F.R.D. 168, 170 (E.D. Va. 1981) (where plaintiff sought leave to amend, a copy of the

proposed amended pleading must be attached to the motion). While Plaintiff has generally

described the two new parties he proposes to add to the case, he has not attached a copy of a

complete proposed Amended Complaint. The court notes that as to at least one of the new

defendants, Plaintiff’s current Complaint does not contain even one fact or any claim pertinent to

the individual.

While this failure on the part of Plaintiff could, and should, be grounds to summarily

deny the motion at this juncture, this court declines to take that route because: (1) this failure can

easily be corrected by re-submitting the motion and correctly attaching the proposed Amended

Complaint; (2) a new submission would require the parties to re-submit and perhaps revise their

briefing on the issue; and, (3) trial is just a little over one month away and delay occasioned by

this administrative failure would be detrimental to the interests of justice. 

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Therefore, the court will note that while the Plaintiff continues to cause disruption and

waste of party and judicial resources by a failure to apprehend and comply with basic legal

precepts and requirements – as is evidenced in more detail herein – it is in the best interests of

the parties and the court to address the merits of the motion to amend given the lateness of the

hour.

B. Fed. R. Civ. P. 16

A Scheduling Order “may be modified only for good cause and with the judge’s

consent.” Fed. R. Civ. P. 16(b)(4). In addition, the court may, for good cause, extend the time

on motion made after the time has expired if the party failed to act because of excusable neglect. 

Fed. R. Civ. P. 6(b). 

Good cause has been interpreted to mean:

[T]he court may modify the schedule on a showing of good cause if it cannot

reasonably be met despite the diligence of the party seeking the extension. Since

the scheduling order is entered early in the litigation, this standard seems more

appropriate than a “manifest injustice” or “substantial hardship” test.

Jorgensen v. Montgomery, Case No. 06-cv-00853-MSK-BNB, 2007 WL 3119549, at *3 (D.

Colo. Oct. 19, 2007) (citing Advis. Comm. Notes for 1983 Amend.) In addition:

Rule 16(b) does not focus on the bad faith of the movant, or the prejudice to the

opposing party. Rather, it focuses on the diligence of the party seeking leave to

modify the scheduling order to permit the proposed amendment. Properly

construed, “good cause” means that scheduling deadlines cannot be met despite a

party’s diligent efforts . . . . Carelessness is not compatible with a finding of

diligence and offers no reason for a grant of relief.

(Id.) (citing Dilmar Oil Co., Inc. v. Federated Mutual Ins. Co., 986 F. Supp 959, 980 (D.S.C.

1997). “Demonstrating good cause under the rule . . . means [the movant] must provide an

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adequate explanation for delay.” Strope v. Collins, 315 Fed. App’x 57, 61, 2009 WL 465073, at

*3 (10th Cir. Feb.25, 2009). 

It is apparent to the court that Plaintiff’s counsel did not master the rather well-worn

maxims regarding Eleventh Amendment immunity in a claim for constitutional violations

involving state actors. When Plaintiff’s counsel realized, after receiving Defendant’s motion for

summary judgment, that she had not properly joined appropriate parties to allow Plaintiff the

ability to obtain prospective injunctive or declaratory relief, and that the failure to do so might be

fatal to some of her client’s claims, she scrambled to correct her research failure by filing the

motion at issue

Ex Parte Young was decided in 1908 and has been part of constitutional law practice for

over one hundred years. In essence, the Ex Parte Young doctrine holds that as to suits against

state agencies, Eleventh Amendment immunity does not apply to the extent a plaintiff seeks

prospective declaratory or injunctive relief if properly pled. See Hill v. Kemp, 478 F.3d 1236,

1255–56 (10th Cir. 2007) (under Ex Parte Young, “the Eleventh Amendment generally will not

operate to bar suits so long as they (I) seek only declaratory and injunctive relief rather than

monetary damages for alleged violations of federal law, and (ii) are aimed against state officers

acting in their official capacities, rather than against the State itself.”); Roe No. 2 v. Ogden, 253

F.3d 1225, 1233 (10th Cir. 2001). To determine whether the Ex Parte Young doctrine applies, “a

court need only conduct a straightforward inquiry into whether [the] complaint alleges an

ongoing violation of federal law and seeks relief properly characterized as prospective.” Verison

Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (internal quotation marks and

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 Paragraph 4 of the Complaint states, “4. This action is filed pursuant to federal and state

laws. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331. This Court has

pendent jurisdiction over state claims.” (Compl. at ¶ 4.)

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citation omitted). Additionally, the Ex Parte Young doctrine “may not be used to obtain a

declaration that a state officer has violated a plaintiff’s federal rights in the past.” Buchwald v.

Univ. of N.M. School of Med., 159 F.3d 487, 494 (10th Cir. 1998). 

It appears that, if this court were inclined to grant the plaintiff’s motion, it would have the

power to do so. Thompson v. Colorado, 278 F.3d 1020, 1025 (10th Cir. 2001)(overruled on

other grounds). See also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 833 (1989)

(concluding that appellate courts do have the power to dismiss a dispensable party whose

presence spoils statutory diversity jurisdiction); Balgowan v. New Jersey, 115 F.3d 214, 216-17

(3d Cir.1977) (granting motion to amend the complaint to add a state official as a defendant and

to include a claim for prospective declaratory and injunctive relief, thus making Ex parte Young

suit possible). Nevertheless, there are considerations weighing against Plaintiff’s motion.

Allowing Plaintiff to amend his complaint would substantially alter the relevant legal

issues to be decided in this case. Under the current complaint, especially with respect to the

specific claims, the initial question before the District Court is now whether CDOT is entitled to

Eleventh Amendment immunity. Defendant alerted the Plaintiff that there might be a

jurisdictional issue lurking in the case as early as in its Answer, filed December 23, 2011, when

it claimed, “3. With respect to the allegations in paragraph 42

 of Plaintiff’s Complaint, the

Defendant admits that Plaintiff seeks to invoke the jurisdiction of the Court, but denies the

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 In Balgowan, the plaintiffs had brought a claim against the New Jersey Department of

Transportation seeking monetary relief for alleged violations of the Fair Labor Standards Act of

1938 (“FLSA”), 29 U.S.C. §§ 201-219 (1978). Under Supreme Court precedent at the time the

plaintiffs in Balgowan filed suit, it appeared that the FLSA was a valid exercise of Congress’

Commerce Clause power and that Congress could abrogate Eleventh Amendment immunity

through legislation enacted pursuant to the Commerce Clause. In Seminole Tribe v. Florida,

however, which was decided after the plaintiffs in Balgowan filed suit, the Supreme Court

reversed previous controlling law and held that Congress cannot abrogate Eleventh Amendment

immunity by means of its Commerce Clause power. Thus, the Third Circuit allowed the

plaintiffs to amend their complaint, partly because of the plaintiffs’ reliance on previous law. 

See Balgowan, 115 F.3d at 217.

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propriety of that jurisdiction” (Answer at 2) and in its Affirmative Defenses when it stated, “2.

Some or all of Plaintiff’s claims might be barred for lack of jurisdiction, for failure to exhaust

administrative remedies, or for failure to comply with jurisdictional filing prerequisites.” (Id. at

6.) Plaintiff seeks to gut the defendant’s legitimate and early raised jurisdictional defenses to

add two additional defendants to the case at this point, with only forty days until a trial which

has been scheduled for over seven months. 

The principals of Ex Parte Young are not new and the law with respect to claims

involving prospective injunctive relief against state entities has not undergone some compelling

transformation excusing counsel from certain drafting choices at the time of filing the

Complaint. Unlike in Balgowan, there has been no reversal of a prior Supreme Court case on

which Plaintiff relied in drafting his complaint.3

 Plaintiff in this case has identified no similar

equitable consideration justifying his eleventh-hour request to amend his complaint. 

Another ground which could be invoked to excuse a late motion to amend is that critical

information was only learned through the discovery process. See Colorado Visionary Academy

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 “The Young fiction was born of necessity to enable the federal courts to ensure

prospective compliance by the states with federal law.” MARTIN A. SCHWARTZ AND KATHRYN

R. URBONYA, SECTION 1983 LITIGATION 126 (2D ED. 2008).

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v. Medtronic, Inc., 194 F.R.D. 684, 688 (D. Colo. 2000). Plaintiff argues that “[a]lthough

aspects of Mark Leonard’s involvement were known at the commencement of these proceedings,

the extent of his actions and Scott McDaniels’ involvement were not known until discovery was

completed,” (Reply at 4) and “[i]t was also through discovery that it was learned that Scott

McDaniels had knowledge of and was personally involved in the actions taken by Leonard and

CDOT” (id. at 5). Neither of these facts, even if true, have anything to do with invocation of the

Ex Parte Young “fiction”4

 that simply requires a plaintiff to name as a defendant the state official

who is responsible for enforcing the contested statute in his official capacity. See Greenawalt v.

Ind. Dep’t of Corr., 397 F.3d 587, 589 (7th Cir. 2005). The personal participation of the two

‘would-be defendants’ is only relevant to claims against them in their individual capacities–a

capacity as to which the Plaintiff does not seek leave to amend. It is evident to the court that the

delay in seeking the requested amendment is the result of Plaintiff’s counsel’s failure earlier in

the case to do the research necessary to recognize the applicability of the Eleventh Amendment

to the case and to determine how best to plead the claims.

I therefore find that the plaintiff has not met the good cause standard pursuant to Fed. R.

Civ. P. 17. In many Circuits the analysis would end at this juncture. “Most circuits have held

that when a party amends a pleading after a deadline set by a scheduling order, Rule 16 and its

‘good cause’ requirement are implicated.” Rehberg v. City of Pueblo, Case No. 10-cv-00261-

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LTB-KLM, 2011 WL 4102287, at *2-4 (D. Colo. Sept. 14, 2011); Bylin v. Billings, 568 F.3d

1224, 1231 n.9 (10th Cir. 2009)(citing cases from other jurisdictions for that proposition). In the

Tenth Circuit, however, the law is in a state of flux on this point. Contrast Rehberg (Rule 15

controls motions to amend and Rule 16 is not a consideration in the analysis) and Rogers v.

Wesco Properties, LLC, Case No. 10-cv-01854-WYD-KMT, 2012 WL 1018431, at *3 (D. Colo.

March 26, 2012)(Chief District Judge Wiley Y Daniel holding that since the Tenth Circuit had

not held that Rule 16(b)’s good cause finding was required a motion to amend filed beyond the

time set in the Scheduling Order was analyzed under only Rule 15) with Enterprise Management

Ltd. Inc. v. Warrick, Case No. 10-cv-00660-JLK-KMT, 2012 WL 1110081, at * 2 (D. Colo.

April 3, 2012)(Senior District Judge John L. Kane holding that Rules 16(b)(4) and 15 must be

read and both considered if an amendment is sought after the deadline to file pleadings has

expired). This split in the District Court matters because Rule 16(b)(4) imposes “an arguably

more stringent standard than the standards for amending a pleading under Rule 15.” Bylin, 568

F.3d at 1231; accord Martinez v. Target Corp., 384 F. App’x 840, 847 n.5, 2010 WL 2616651,

at *4 (10th Cir. July 1, 2010)(stating that Rule 15(a)(2) is “more lenient” than Rule 16(b)(4)). 

Thus, if a plaintiff must meet both rules, it is entirely conceivable that he could satisfy Rule

15(a)(2) but fail Rule 16(b)(4) and would therefore be precluded from amending his complaint. 

Conversely, if he must meet only Rule 15(a)(2), whether he can show “good cause” under Rule

16(b)(4) is irrelevant. Because this court’s finding is that Plaintiff fails to satisfy the standards of

Rule 15 as well as Rule 16, the split in decisions has little, if any, affect on the outcome of this

case.

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C. Fed. R. Civ. P. 15

Pursuant to Fed. R. Civ. P 15(a), the court is to freely allow amendment of the pleadings

“when justice so requires.” The grant or denial of an opportunity to amend is within the

discretion of the court, but “outright refusal to grant the leave without any justifying reason

appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and

inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). 

“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.” Frank v. U.S. West, Inc., 3 F.3d

1357, 1365 (10th Cir. 1993)(emphasis added). However, “Rule 15(a) does not restrict a party’s

ability to amend its pleadings to a particular stage in the action.” Id. at 1205. 

1. Bad Faith or Dilatory Motive, Failure to Cure Deficiencies by

Amendments Previously Allowed, or Futility of Amendment 

There is no evidence or argument that Plaintiff possessed a dilatory or bad faith motive

for his failure to properly include Ex Parte Young defendants. There likewise has been no

attempt to amend the complaint earlier; in fact, if the matters had been addressed earlier in the

proceedings, the amendment would have almost certainly been allowed.

An amendment to a complaint is futile only if the plaintiff can prove no set of facts in

support of his amendment that would entitle him to relief. E.g., Beckett v. United States, 217

F.R.D. 541, 543 (D. Kan. 2003). A district court is clearly justified in denying a motion to

amend as futile only if the proposed amendment cannot withstand a motion to dismiss or

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otherwise fails to state a claim. See Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992). 

“Although Fed. R. Civ. P. 15(a) provides that leave to amend shall be given freely, the district

court may deny leave to amend where amendment would be futile. A proposed amendment is

futile if the complaint, as amended, would be subject to dismissal.” Jefferson County Sch. Dist.

v. Moody’s Investor’s Services, 175 F.3d 848, 859 (10th Cir. 1999). 

Defendant has failed to demonstrate that the proposed amendment is either factually or

legally insufficient under any set of facts; i.e., that it is apparent Plaintiff can prove no set of

facts which would entitle it to relief. Cf. Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th

Cir. 2003). Plaintiff’s goal in the amendment is to correct the potentially fatal error of neglecting

the ramifications of the Eleventh Amendment through Ex Parte Young. Nevertheless, the Tenth

Circuit has concluded that the timeliness of the amendment and the prejudice to a defendant are

to be the crux of the inquiry. Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006).

2. Undue Delay and Prejudice

A motion to amend should be denied if a plaintiff has unduly delayed in seeking the

amendment. Wessel v. City of Albuquerque, 299 F.3d 1186, 1197 (10th Cir. 2002). The

important inquiry is not simply whether Plaintiff has delayed, but whether such delay is undue. 

Minter, 451 F.3d at 1206. A defendant is prejudiced by an untimely amendment if the

amendment will alter the focus of the case at a date that is too late for the defendants to

adequately prepare for trial. Orr v. City of Albuquerque, 417 F.3d 1144, 1153 (10th Cir. 2005)

(“[A] plaintiff should not be prevented from pursuing a valid claim just because she did not set

forth in the complaint a theory on which she could recover, provided always that a late shift in

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the thrust of the case will not prejudice the other party in maintaining his defense upon the

merits.”) (citation omitted). Prejudice is most likely to be found “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.” Minter, 451 F.3d at 1208. 

As previously noted, the trial in this matter is scheduled for October 1, 2012, a mere forty

days from the date of this Recommendation. The trial preparation conference, at which time the

parties are expected to demonstrate their readiness for trial, is now twenty-three days hence. 

That Plaintiff should go forward with his case without ever considering such a fundamental issue

as Eleventh Amendment immunity is inexcusable. The amendment clearly and definitively

comes at a date too late for the defendant to adequately prepare for trial as it is unlikely the new

defendants would even be served by the trial date.

 Prejudice under Rule 15 “means undue difficulty in prosecuting [or defending] a lawsuit

as a result of a change of tactics or theories on the part of the other party.” Deakyne v.

Commissioners of Lewes, 416 F.2d 290, 300 (3d Cir. 1969); see also, LeaseAmerica Corp. v.

Eckel, 710 F.2d 1470, 1474 (10th Cir. 1983). The party opposing the amendment of the

pleadings has the burden of showing prejudice. Beeck v. Aquaslide ‘N’ Dive Corp., 562 F.2d

537, 540 (8th Cir. 1977). The prejudice with which the Rule is concerned is the prejudice to the

party’s ability to prosecute or defend. 

The prejudice to Defendant should the Court allow amendment at this late juncture was

summarized Defendant in its Response as 

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Defense counsel limited discovery in this case knowing that Plaintiff had not

properly pled his case and knowing that the majority of his claims were barred by

the Eleventh Amendment. Defense counsel sought no written discovery

regarding these claims and asked very few, if any, questions about these claims

during Plaintiff’s deposition. Defense counsel was under no obligation, as

Plaintiff seems to suggest, to reveal his ultimate litigation strategy in this case. If

the amendment is allowed, Defendant will need to refile its motion for summary

judgment without the benefit of having obtained discovery on the claims

previously barred by the Eleventh Amendment, or will have to seek to reopen

discovery. Given the nearness of the trial date in this case, reopening discovery

would be highly prejudicial, expensive, and impractical.

(Resp. at 6-7.) 

It is fundamentally disingenuous to chastise Defendant for not schooling the plaintiff in

the elements of an Ex Parte Young claim or in the defense of Eleventh Amendment immunity. 

Defendant correctly argues that the issue of Eleventh Amendment immunity may be raised at

any time, even on appeal, for the first time. Whitney v. Div. of Juvenile Services, Case No. 09-

4230, 468 F. App’x 871, 2012 WL 1142256, at *2 (10th Cir. April 6, 2012). See also U.S. ex

rel. Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008) (arguments for Eleventh

Amendment immunity may be raised at any time, even on appeal for the first time); Sutton v.

Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1231(10th Cir. 1999)(because the Eleventh

Amendment defense has jurisdictional attributes, it may be raised at any point).

Whether or not the defendant has waived its Eleventh Amendment defense is not

properly before this court and will be decided by the District Court as part of its consideration of

the motion for summary judgment. Should plaintiff prevail before the District Court, the need to

add parties in support of an Ex Parte Young analysis will be less pressing. Should the plaintiff

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not prevail, the Defendant’s prejudice becomes even more acute should the court allow the late

amendment, which, no doubt, would necessitate continuance of the trial date.

Applying the applicable standard to the facts of this case leads this court to conclude that

Plaintiff has failed to meet the parameters allowing him to amend his complaint pursuant to Fed.

R. Civ. P. 15, in addition to his failure to establish good cause pursuant to Rule 16, to the extent

the two are read together. The undue delay accompanying this motion was attributable to

Plaintiff’s failure to research and properly plead his claims pursuant to epochal, long-standing

principals of law applicable to this kind of case. There were no new facts developed in

discovery that would excuse this oversight, and there are no recent developments in the law that

could have led to Plaintiff’s initial failures. Plaintiff remained oblivious of the prevailing law

until the Defendant provided the much needed education in the form of a pending motion for

summary judgment. Allowing the amendment at this late stage would greatly prejudice the

educator by allowing the pupil to profit from inaptitude, all to the extreme detriment of

defendant.

WHEREFORE, for the foregoing reasons, I respectfully 

RECOMMEND that

Plaintiff’s “Motion for Leave to Amend Complaint” [Doc. No. 27] be DENIED.

ADVISEMENT TO THE PARTIES

Within fourteen days after service of a copy of the Recommendation, any party may

serve and file written objections to the Magistrate Judge’s proposed findings and

recommendations with the Clerk of the United States District Court for the District of Colorado. 

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28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A

general objection that does not put the district court on notice of the basis for the objection will

not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s

report and recommendation must be both timely and specific to preserve an issue for de novo

review by the district court or for appellate review.” United States v. One Parcel of Real Prop.

Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to

make timely objections may bar de novo review by the district judge of the magistrate judge’s

proposed findings and recommendations and will result in a waiver of the right to appeal from a

judgment of the district court based on the proposed findings and recommendations of the

magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s

decision to review a magistrate judge’s recommendation de novo despite the lack of an objection

does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at

1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both

timely and specific to preserve an issue for de novo review by the district court or for appellate

review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.

1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had

waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,

1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal 

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the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th

Cir. 2005) (firm waiver rule does not apply when the interests of justice require review). 

Dated this 22nd day of August, 2012.

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