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 “[#43]” is an example of the convention I use to identify the docket number assigned to a

specific paper by the court’s electronic case filing and management system (CM/ECF). I use this

convention throughout this order.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Robert E. Blackburn

Civil Case No. 11-cv-02603-REB-KMT

DAVID C. ROSS,

Plaintiff,

v.

COLORADO DEPARTMENT OF TRANSPORTATION,

Defendant.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING 

RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Blackburn, J.

The matters before me are (1) the Recommendation of United States

Magistrate Judge [#43],1

 filed August 22, 2012; and (2) plaintiff’s Objections to

Recommendation [#46], filed September 5, 2012. I overrule the objections and

approve and adopt the recommendation.

 As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the

recommendation to which objections have been filed, and have considered carefully the

recommendation, objections, and applicable caselaw. The recommendation is detailed

and well-reasoned. Contrastingly, plaintiff’s objections are imponderous and without

merit. 

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Even assuming arguendo that the good cause standards of Rule 16(b) are

inapplicable such that the arguably more lenient standards of Rule 15(a) alone govern

the determination, I concur with the magistrate judge that plaintiff’s delay in bringing this

motion would engender undue prejudice to defendant were leave to amend granted. As

the magistrate judge noted, the doctrine of Ex Parte Young, under which plaintiff seeks

to avoid CDOT’s Eleventh Amendment immunity by adding individual defendants, has

been part of the legal landscape for nearly a century. Patently, the delay in bringing the

motion was attributable to nothing more than plaintiff’s own failure adequately to

research the law and timely to determine what claims to pursue. Even the liberal

standards of Rule 15(a) would be offended were such inexplicable lapses excusable.

Moreover, although the recommendation was issued with an eye toward the

original trial date, which has since been continued, trial is now scheduled for April 29,

2013, almost precisely the same number of days hence as the magistrate judge

considered at the time she issued her recommendation. In addition, by order to enter

later today, I will grant defendant’s motion to dismiss plaintiff’s remaining claims on

Eleventh Amendment grounds. As the magistrate judge portended, “[s]hould the

plaintiff not prevail [on the Eleventh Amendment issue], 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.” (Recommendation at 14-15.) Indeed,

because defendant structured its entire discovery strategy around its contention that the

Eleventh Amendment would bar plaintiff’s section 1983 and state law claims entirely,

amendment at this late juncture would require the parties to essentially begin this case

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anew. The prejudice such a result would engender is obvious.

Therefore, I find and conclude that the arguments advanced, authorities cited,

and findings of fact, conclusions of law, and recommendation proposed by the

magistrate judge should be approved and adopted.

THEREFORE, IT IS ORDERED as follows:

1. That the Recommendation of United States Magistrate Judge [#43], filed

August 22, 2012, is APPROVED and ADOPTED as an order of this court; 

2. That the objections stated in plaintiff’s Objections to Recommendation

[#46], filed September 5, 2012, are OVERRULED; and

3. That plaintiff’s Motion for Leave To Amend Complaint [#27], filed July 31,

2012, is DENIED.

Dated March 14, 2013, at Denver, Colorado.

BY THE COURT:

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