PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

 

GORSUCH, LTD., B.C., a Colorado 

corporation; GORSUCH, LIMITED AT 

ASPEN, a Colorado corporation; 

GORSUCH, LIMITED AT KEYSTONE 

MOUNTAIN, a Colorado corporation; 

GORSUCH COOPER, LLC, a Colorado 

limited liability company, 

 Plaintiffs - Appellants, 

and 

GORSUCH, LTD., a Colorado 

corporation, 

Plaintiff, 

v. 

WELLS FARGO NATIONAL BANK 

ASSOCIATION, 

Defendant - Appellee. 

No. 14-1013 

 

 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF COLORADO 

(D.C. No. 1:11-CV-00970-PAB-MEH) 

 

Richard B. Podoll, Podoll & Podoll, P.C., Greenwood Village, Colorado (Robert A. 

Kitsmiller, Podoll & Podoll, P.C., Greenwood Village, Colorado, and Matthew C. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 4, 2014

Elisabeth A. Shumaker 

Clerk of Court
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Ferguson, The Matthew C. Ferguson Law Firm, Aspen, Colorado, with him on the 

briefs), appearing for Plaintiffs-Appellants. 

Brian J. Berardini (David C. Walker, with him on the brief), Brown, Berardini & 

Dunning, P.C., Denver, Colorado, appearing for Defendant-Appellee. 

 

Before KELLY, LUCERO, and MATHESON, Circuit Judges. 

 

MATHESON, Circuit Judge. 

 

In 2008, Wells Fargo extended a $14 million line of credit to Gorsuch, Ltd., a ski 

equipment, apparel, and home furnishing company. In 2009, when Gorsuch, Ltd.’s 

winter sales were lower than expected, Wells Fargo suspended the line of credit. 

Gorsuch, Ltd. and the Gorsuch Entities—Gorsuch, Ltd., B.C.; Gorsuch, Limited at 

Aspen; Gorsuch, Limited at Keystone Mountain; and Gorsuch Cooper, LLC—sued Wells 

Fargo for damages.1

The Gorsuch Entities contend they were intended third-party beneficiaries of the 

Credit Agreement and were not subject to a clause precluding third-party beneficiaries 

from bringing suit. The district court disagreed and dismissed them from the litigation. 

After Gorsuch, Ltd. and Wells Fargo proceeded to arbitration, Gorsuch Cooper and 

 

1

 For the purposes of this litigation, “Gorsuch Entities” refers to Gorsuch, Ltd., 

B.C.; Gorsuch, Limited at Aspen; Gorsuch, Limited at Keystone Mountain; and Gorsuch 

Cooper. “Gorsuch Businesses” refers to the Gorsuch Entities and Gorsuch, Ltd. 
-3- 

Gorsuch, Limited at Aspen (“Gorsuch Cooper and Aspen”) sought to amend the 

complaint to add additional tort claims. The district court determined (1) Gorsuch 

Cooper and Aspen were no longer parties, and (2) they had not shown good cause to 

amend after the deadline established in the scheduling order. It denied the motion. On 

appeal, the Gorsuch Entities challenge the order dismissing them from the case. Gorsuch 

Cooper and Aspen appeal the denial of their motion to amend the complaint.2

 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court. 

I. BACKGROUND 

A. Factual History 

Renie and David Gorsuch founded Gorsuch, Ltd. in 1962. They subsequently 

formed Gorsuch, Ltd., B.C.; Gorsuch, Limited at Aspen; and Gorsuch, Limited at 

Keystone Mountain to operate additional retail stores, and formed Gorsuch Cooper to 

own the property from which Gorsuch, Limited at Aspen conducts its operations. The 

Gorsuches and their three sons own all of the Gorsuch Businesses. 

The Gorsuch Businesses are separate legal entities, but their finances and 

operations are intermingled. Wells Fargo and its predecessors, United Bank of Denver 

 

2

 Gorsuch, Ltd. was a party to the litigation in the district court but arbitrated its 

claims against Wells Fargo under an arbitration clause in the Credit Agreement. It is not 

a party to this appeal. 
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and Norwest Bank, provided credit to Gorsuch, Ltd. for over 40 years. Wells Fargo was 

aware Gorsuch, Ltd. allocated capital to the Gorsuch Entities, and considered the 

aggregate operations of the Gorsuch Businesses when it calculated loans and security 

throughout the lending relationship. 

On October 31, 2008, Gorsuch, Ltd. and Wells Fargo entered into a Credit 

Agreement through which Wells Fargo extended a $14 million line of credit to “finance 

Borrower’s working capital requirements.” App. at 63. Section 7.6—the No Third Party 

Beneficiaries provision (“NTPB”) at issue in this litigation—precluded any recognition of 

third-party beneficiaries or their claims. The NTPB provision specified the Credit 

Agreement 

is made and entered into for the sole protection and benefit of the parties 

hereto and their respective permitted successors and assigns, and no other 

person or entity shall be a third party beneficiary of, or have any direct or 

indirect cause of action or claim in connection with, this Agreement or any 

other of the Loan Documents to which it is not a party. 

Id. at 76. Gorsuch, Ltd. and Wells Fargo signed the Credit Agreement, and the Gorsuch 

Entities signed as guarantors. 

On January 6, 2009, Gorsuch, Ltd. notified Wells Fargo that the economic 

recession and poor snowfall had significantly weakened peak season sales. Wells Fargo 

suspended access to the line of credit on January 23, 2009. On August 31, 2009, Wells 

Fargo accelerated the line of credit and past loans, and declared all payments immediately 

due with interest. 
-5- 

B. Procedural History 

On March 23, 2011, the Gorsuch Businesses commenced litigation in Colorado 

state court, which Wells Fargo removed to federal court.3

 Gorsuch, Ltd. alleged breach 

of contract, breach of the covenant of good faith and fair dealing, and fraudulent 

inducement. The Gorsuch Entities asserted third-party beneficiary claims. Wells Fargo 

moved to dismiss the Gorsuch Entities’ third-party beneficiary claims under Rule 

12(b)(6) and to compel arbitration of Gorsuch, Ltd.’s claims. In the scheduling order, the 

magistrate judge set a deadline of July 12, 2011 for any amendments to the pleadings. 

On November 17, 2011, the district court determined Gorsuch Cooper was not a 

permitted assignee of Gorsuch, Ltd., and was therefore subject to the Credit Agreement’s 

NTPB provision. It also held the NTPB provision precluded the Gorsuch Entities from 

seeking relief as third-party beneficiaries. The court granted Wells Fargo’s motion to 

dismiss the third-party beneficiary claims, dismissed the Gorsuch Entities as plaintiffs, 

stayed the action while Gorsuch, Ltd. and Wells Fargo proceeded to arbitration, and 

administratively closed the case. The court noted that if the parties did not act to reopen 

 

3

 The Gorsuch Businesses are Colorado corporations. For the purposes of 

diversity jurisdiction, Wells Fargo is a citizen of South Dakota, where its main office is 

located. See 28 U.S.C. § 1348; Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303 (2006). 
-6- 

the case by December 1, 2012, the case would be dismissed without prejudice. Gorsuch, 

Ltd. and Wells Fargo then commenced arbitration.4

On December 16, 2011, Gorsuch, Ltd. moved for leave to file a second amended 

complaint.5

 The district court held the motion in abeyance, noting that no party had filed 

a motion to reopen the case, meaning it remained administratively closed. Gorsuch, Ltd. 

moved to reopen the case on December 21, 2011, but withdrew the motion on April 6, 

2012 as it arbitrated its claims. On April 26, 2012, the district court denied the motion 

for leave to file a second amended complaint without prejudice to refiling if the case was 

reopened. 

The parties took no further action before the December 1, 2012 deadline; 

accordingly, the district court dismissed the case without prejudice on December 3, 2012. 

On the same day, Gorsuch, Ltd. moved to reconsider the dismissal, which the district 

court granted on March 14, 2013. On April 1, 2013, Gorsuch, Ltd. then moved to reopen 

 

4

 The Gorsuch Entities attempted to assert their claims in arbitration as well, but 

the arbitration panel, citing the district court’s order dismissing them as third-party 

beneficiaries, concluded it lacked jurisdiction over their claims. On November 26, 2012, 

the panel issued an interim award of $1,916,431 to Gorsuch, Ltd. It later confirmed a 

final award of $2,186,752.80, and then ordered Wells Fargo to pay an additional $10,550 

for the arbitrators’ compensation. 

5

 Although the Gorsuch Businesses remained on the caption and purported to file 

motions collectively, the only plaintiff remaining after the district court’s order on 

November 17, 2011 was Gorsuch, Ltd. 
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the case, which the district court granted on May 8, 2013. Finally, on July 10, 2013, 

Gorsuch, Ltd. moved for the court to confirm the arbitration award and also moved along 

with Gorsuch Cooper and Aspen to file a third amended complaint.6

 The court confirmed 

the arbitration award, which concluded Gorsuch, Ltd.’s involvement in the case. This left 

Gorsuch Cooper and Aspen seeking in the third amended complaint to bring two new 

claims against Wells Fargo for intentional interference with contract and intentional 

interference with prospective business advantage. 

On August 21, 2013, a magistrate judge issued a minute order clarifying the 

district court had dismissed all plaintiffs except Gorsuch, Ltd. on November 17, 2011. 

The magistrate judge recommended the district court deny the motion for leave to file a 

third amended complaint. On December 13, 2013, the district court agreed with the 

magistrate judge that Gorsuch Cooper and Aspen (1) had been dismissed from the 

litigation and (2) had not shown good cause for failing to assert the new tort claims until 

after the deadline to amend pleadings. The district court therefore denied their motion to 

 

6

 Because the district court denied Gorsuch, Ltd.’s motion to file a second 

amended complaint on April 26, 2012, the “third” amended complaint was technically the 

second. To minimize confusion, however, we will follow the district court and the 

parties and refer to the complaint as the “third amended complaint.” Gorsuch, Ltd. 

resolved its claims in arbitration, and only Gorsuch Cooper and Aspen presented claims 

in the third amended complaint. 
-8- 

amend the complaint. On December 17, 2013, the district court issued a final judgment. 

The Gorsuch Entities filed a timely appeal. 

II. DISCUSSION 

This appeal contends the district court erred in (1) dismissing the Gorsuch Entities 

based on the NTPB provision, and (2) denying Gorsuch Cooper and Aspen’s motion for 

leave to amend their complaint. To address these issues, we apply Colorado law.7

 We 

conclude the district court (1) correctly dismissed the Gorsuch Entities, and (2) properly 

denied Gorsuch Cooper and Aspen’s motion to amend based on their failure to show 

good cause under Federal Rule of Civil Procedure 16. 

A. Third-Party Beneficiary Claims 

We review a Rule 12(b)(6) motion to dismiss de novo. Smith v. United States, 561 

F.3d 1090, 1098 (10th Cir. 2009). We ask whether the factual allegations in the 

 

7

 In cases arising under 28 U.S.C. § 1332(a)(1), we apply state law to the 

substantive issues of the appeal, and determine which state’s law applies by using the 

forum state’s choice-of-law rule. Peck v. Horrocks Engineers, Inc., 106 F.3d 949, 952 

(10th Cir. 1997). In contract and tort, “Colorado follows the ‘most significant 

relationship’ approach of the Restatement (Second) of Conflict of Laws.” ITT Specialty 

Risk Servs. v. Avis Rent A Car Sys., Inc., 985 P.2d 43, 47 (Colo. App. 1998). Colorado 

has the most significant relationship to the transactions at issue in this appeal. The parties 

agree Colorado law should apply, and the terms of the Credit Agreement specify that it 

will be governed by Colorado law. 
-9- 

complaint, if accepted as true, allege a plausible claim for relief. Ashcroft v. Iqbal, 556 

U.S. 662, 678-79 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-57 (2007). 

On appeal, the Gorsuch Entities present two arguments as to why they were 

improperly dismissed: (1) Gorsuch Cooper was a permitted assignee of Gorsuch, Ltd. 

and therefore not subject to the NTPB provision, and (2) the totality of the circumstances 

shows the Gorsuch Entities were intended third-party beneficiaries of the Credit 

Agreement. Neither argument is convincing. 

1. Purported Assignment to Gorsuch Cooper

According to the NTPB provision, the Credit Agreement “is made and entered into 

for the sole protection and benefit of the parties hereto and their respective permitted 

successors and assigns,” and all others are precluded from bringing claims. App. at 76. 

Gorsuch Cooper argues it is a permitted assignee and can therefore bring suit under the 

Credit Agreement. 

For evidence of the assignment, Gorsuch Cooper points to a January 6, 2004 

agreement in which Gorsuch, Ltd. assigned Gorsuch Cooper its rights and obligations in 

a contract to purchase property. On January 7, 2004, Wells Fargo extended Gorsuch, 

Ltd. a $5.5 million loan (“Term Loan”). Gorsuch, Ltd. signed a promissory note (“Term 

Note”) for the same amount. Gorsuch, Ltd. transferred the proceeds of the loan to 

Gorsuch Cooper, which then purchased the property. Gorsuch Cooper contends Wells 

Fargo was “fully aware” that Gorsuch, Ltd. had assigned its rights to purchase the 
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property, knew the Term Loan would be used for that acquisition, “and intended and 

consented to this use.” Id. at 20. Because the Term Note was incorporated into the 

Credit Agreement by reference,8

 Gorsuch Cooper argues the assignment from Gorsuch, 

Ltd. to Gorsuch Cooper was a permitted assignment under the Credit Agreement. 

Accepting the facts alleged, Gorsuch Cooper fails to make a plausible claim for 

relief. First, Gorsuch Cooper’s claim is barred by express non-assignment clauses in both 

the Term Loan and the Credit Agreement. The Term Loan states: “Borrower may not 

assign or transfer its interest hereunder without Bank’s prior written consent.” Id. at 108. 

The Credit Agreement similarly states: “Borrower may not assign or transfer its interests 

or rights hereunder without Bank’s prior written consent.” Id. at 75. Colorado law 

recognizes the validity of non-assignment clauses. Parrish Chiropractic Ctrs., P.C. v. 

Progressive Cas. Ins. Co., 874 P.2d 1049, 1052 (Colo. 1994) (en banc). Gorsuch Cooper 

contends Wells Fargo tacitly approved of the assignment, but they never demonstrate—or 

even allege—Wells Fargo gave written permission for the January 6, 2004 assignment to 

Gorsuch Cooper or to any future assignments. The express terms of the Term Loan and 

Credit Agreement therefore preclude recovery by Gorsuch Cooper. 

 

8

 Section 1.2(a) of the Credit Agreement provides: “Borrower’s obligation to repay 

the [Term Loan] shall be evidenced by a promissory note dated as of January 7, 2004 

(‘[Term Note]’), all terms of which are incorporated herein by this reference.” App. at 

64. 
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Even without a non-assignment clause, Colorado’s Credit Agreement Statute of 

Frauds prohibits implied assignments: “A credit agreement may not be implied under 

any circumstances, including, without limitation, from the relationship, fiduciary or 

otherwise, of the creditor and the debtor or from performance or partial performance by 

or on behalf of the creditor or debtor, or by promissory estoppel.” Colo. Rev. Stat. Ann.

§ 38-10-124(3). Absent written documentation, Gorsuch Cooper cannot allege Wells 

Fargo tacitly accepted legal obligations to Gorsuch Cooper under the Term Loan or 

Credit Agreement. 

Finally, the documents the Gorsuch Entities attach to their complaint pertain to 

collateral agreements and fail to demonstrate Wells Fargo was party to any assignment of 

rights or obligations.9

 The written assignment from Gorsuch, Ltd. to Gorsuch Cooper 

assigns Gorsuch, Ltd.’s rights and obligations under a contract to buy and sell real estate 

with the Continental Divide Company. It does not reference Wells Fargo or the proceeds 

from the Term Loan. The Term Loan and Term Note are between Wells Fargo and 

Gorsuch, Ltd. Gorsuch Cooper delivered a Deed of Trust to Wells Fargo as security for 

 

9

 The Gorsuch Businesses attached the Credit Agreement, Assignment, Term 

Note, Term Loan, Loan Agreements, and Deed of Trust to their complaint as exhibits. 

We therefore consider these documents part of their complaint in our Rule 12(b)(6) 

analysis. Fed. R. Civ. P. 10(c); Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991). 
-12- 

the Term Note, but did so as a guarantor, not a permitted assignee.10 The materials 

demonstrate Wells Fargo loaned money to Gorsuch, Ltd. and Gorsuch, Ltd. loaned 

money to Gorsuch Cooper. They do not show Wells Fargo was a party or consented in 

writing to any assignment of rights or obligations. 

The factual allegations made by the Gorsuch Entities, even if accepted as true, fail 

to demonstrate Gorsuch Cooper was a permitted assignee under the Credit Agreement. 

As a result, Gorsuch Cooper remains subject to the NTPB provision. 

2. Gorsuch Entities’ Claim to be Third-Party Beneficiaries

The Gorsuch Entities contend the district court erred when it dismissed their claim 

to be third-party beneficiaries. They argue the court gave undue weight to the NTPB 

provision. They further argue that other aspects of the Credit Agreement and the 

circumstances surrounding its formation demonstrate the Gorsuch Entities were intended 

third-party beneficiaries. We again do not find the Gorsuch Entities’ arguments 

persuasive. First, under Colorado law, NTPB provisions offer strong proof of the parties’ 

 

10 Even in Gorsuch Cooper and Aspen’s own proposed third amended complaint, 

they describe the transfer of the proceeds from Gorsuch, Ltd. to Gorsuch Cooper as a 

separate transaction: “Gorsuch, Ltd. and Gorsuch Cooper entered into a separate loan 

transaction, whereby Gorsuch, Ltd. lent the $5,500,000.00 it had borrowed from Wells 

Fargo, to Gorsuch Cooper for the acquisition of the Gorsuch Cooper Property.” App. at 

964. 
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intent. Second, the NTPB provision in the Credit Agreement is clear and unambiguous. 

Third, Wells Fargo did not waive the NTPB provision through its conduct. 

a. NTPB provisions as proof of intent 

Under Colorado law, the parties to a contract must intend to create third-party 

beneficiaries, and the best evidence of their intent is the contract itself: 

The key question is the intent of the parties to the actual contract to confer a 

benefit on a third party. That intent must appear from the contract itself or 

be shown by necessary implication. It is a question of fact to be determined 

by the terms of the contract taken as a whole, construed in the light of the 

circumstances under which it was made and the apparent purpose the 

parties were trying to accomplish. 

Concrete Contractors, Inc. v. E.B. Roberts Const. Co., 664 P.2d 722, 725 (Colo. App. 

1982). If written documents are ambiguous, courts may consider extrinsic evidence to 

determine the parties’ intent. Chambliss/Jenkins Assocs. v. Forster, 650 P.2d 1315, 1318 

(Colo. App. 1982). If an agreement is contained in multiple documents, courts construe 

those documents together. Id. Nevertheless, “[t]he intent of the parties to a contract is to 

be determined primarily from the language of the instrument itself.” Ad Two, Inc. v. City 

& Cnty. of Denver ex rel. Manager of Aviation, 9 P.3d 373, 376 (Colo. 2000) (en banc). 

Courts construing Colorado law have determined an NTPB provision offers strong 

proof of the parties’ intent to preclude recognition of third-party beneficiaries. In The 

Arc of The Pikes Peak Region v. Nat’l Mentor Holdings, No. 10-cv-01144, 2011 WL 

1047081, at *5 (D. Colo. Mar. 18, 2011), the court considered NTPB provisions in two 
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contracts, determined “the contracting parties’ intent is expressed clearly in the 

contracts,” and concluded the alleged third-party beneficiaries did not state a claim on 

which relief could be granted. A party may allege it was intended to benefit from a 

contract, but such allegations do not overcome contradictory statements in the text of a 

contract attached to their complaint. See Flannery v. Recording Indus. Ass’n of Am., 354 

F.3d 632, 638 (7th Cir. 2004) (“[W]hen a document contradicts a complaint to which it is 

attached, the document’s facts or allegations trump those in the complaint.”). 

b. NTPB provision in the Credit Agreement 

The Gorsuch Entities have not demonstrated they were intended beneficiaries of 

the Credit Agreement. Under the intent-focused inquiry prescribed by Colorado law, the 

express NTPB provision offers the clearest indication of the agreement between Gorsuch, 

Ltd. and Wells Fargo. Furthermore, the documents the Gorsuch Entities attached to their 

complaint identify Gorsuch, Ltd. and Wells Fargo as the sole contracting parties. Wells 

Fargo recognized the Gorsuch Entities as affiliates of Gorsuch, Ltd. and guarantors for 

security purposes, but never as borrowers with rights against Wells Fargo. Simply 

because a contract contemplates or references another party does not undermine an NTPB 

provision. Maisel v. Erickson Constr., Inc., No. 11-cv-00555, 2012 WL 3155834, at *4 

(D. Colo. Aug. 3, 2012). 

The Gorsuch Entities cite Diamond Castle Partners IV PRC, L.P. v. 

IAC/InterActiveCorp, 82 A.D.3d 421 (N.Y. App. Div. 2011), for the proposition that 
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NTPB provisions are not dispositive, but the decision is readily distinguishable. In 

Diamond Castle, the boilerplate NTPB provision appeared alongside another provision 

giving the buyer’s affiliates enforceable rights, and the term “parties” was used 

throughout the agreement to include the buyer’s affiliates. Id. at 421-22. In the instant 

case, no such ambiguity exists. The Credit Agreement did not give the Gorsuch Entities 

enforceable rights against Wells Fargo, and the terms “Borrower” and “Affiliates” are 

used independently.11 

The Gorsuch Entities refer to corporate resolutions delivered to Wells Fargo that 

identify the Gorsuch Entities as providers of “third party collateral,” but also 

acknowledge they “will benefit by any credit now or hereafter extended by Wells Fargo 

Bank, National Association (‘Bank’) to Gorsuch, Ltd. (‘Borrower’).” 12 App. at 306, 317. 

The language indicates Wells Fargo was aware the Gorsuch Entities would benefit from 

the line of credit, but does not contradict the terms of the Credit Agreement, which 

indicates the proceeds from the line of credit “shall be used to finance Borrower’s 

 

11 The term “parties” in the NTPB provision refers to Wells Fargo and Gorsuch, 

Ltd., who are listed as the Bank and the Borrower in the Credit Agreement. App. at 63, 

78. 

12 The resolution for Gorsuch, Limited at Keystone Mountain and certificate for 

Gorsuch Cooper contain this phrase but omit the word “any.” App. at 87, 328. The 

various guaranty agreements between Wells Fargo and the Gorsuch Entities were 

referenced in the complaint and the Credit Agreement, App. at 37, 69, and the certificate 

for Gorsuch Cooper was attached to the complaint, App. at 87. 
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working capital requirements” and bars third parties from staking claims to it. Id. at 63. 

In light of the Credit Agreement’s clear distinction between Gorsuch, Ltd. as the 

borrower and the Gorsuch Entities as guarantors or third-party obligors, language 

acknowledging the Gorsuch Entities would benefit from credit does not make them 

intended beneficiaries. The district court did not err in deciding the explicit text of the 

NTPB provision barred the Gorsuch Entities’ claims, even in light of these collateral 

documents. 

c. Waiver of the NTPB provision 

The Gorsuch Entities finally argue for the first time on appeal that Wells Fargo 

waived the NTPB provision through its conduct. Because this argument was forfeited 

below, we review it for plain error. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-

28 (10th Cir. 2011). “To show plain error, a party must establish the presence of (1) 

error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects 

the fairness, integrity, or public reputation of judicial proceedings.” Id. 

The Gorsuch Entities fail to demonstrate error because Wells Fargo did not waive 

the NTPB provision. The district court considered the circumstances surrounding the 

Credit Agreement but concluded Colorado law limits circumstantial inferences in the face 

of a clear and plainly understood provision. The Credit Agreement includes not only an 

NTPB provision but also provisions disclaiming implied waivers and requiring 

modifications to be in writing and signed. The provisions closely track the Colorado 
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Credit Agreement Statute of Frauds, which prohibits implied credit agreements, Colo. 

Rev. Stat. Ann. § 38-10-124(3), and broadly defines “credit agreement” to include “[a]ny 

amendment of, cancellation of, waiver of, or substitution for any or all of the terms or 

provisions” of a credit agreement, Colo. Rev. Stat. Ann. § 38-10-124(1)(a)(2). Colorado 

courts have held “the plain language of the statute . . . expressly precludes exceptions by 

implication or construction.” Hewitt v. Pitkin Cnty. Bank & Trust Co., 931 P.2d 456, 458 

(Colo. App. 1995) (quotations omitted). Our conclusion that Wells Fargo did not waive 

the NTPB provision is supported by the district court’s findings, the text of the Credit 

Agreement, and Colorado law. The district court did not err, much less plainly err. 

B. Motion to Amend the Complaint 

Gorsuch Cooper and Aspen moved to amend the complaint on July 10, 2013, 

nearly two years after the July 12, 2011 deadline in the scheduling order. They sought to 

add two new tort claims. 

We agree with the district court that Gorsuch Cooper and Aspen were no longer 

parties after the November 17, 2011 order dismissing them from the litigation. After a 

party has been dismissed, the district court has discretion to decide whether they may 

amend their complaint. See Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th 

Cir. 1994). 

After a scheduling order deadline, a party seeking leave to amend must 

demonstrate (1) good cause for seeking modification under Fed. R. Civ. P. 16(b)(4) and 
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(2) satisfaction of the Rule 15(a) standard. Pumpco, Inc. v. Schenker Int’l, Inc., 204 

F.R.D. 667, 668 (D. Colo. 2001). We review a court’s refusal to modify a scheduling 

order for abuse of discretion. Burks v. Oklahoma Publ’g. Co., 81 F.3d 975, 978-79 (10th 

Cir. 1996). 

Rule 16 of the Federal Rules of Civil Procedure requires a good cause showing. It 

provides a scheduling order “may be modified only for good cause and with the judge’s 

consent.” Fed. R. Civ. P. 16(b)(4). In practice, this standard requires the movant to show 

the “scheduling deadlines cannot be met despite [the movant’s] diligent efforts.” Pumpco, 

204 F.R.D. at 668 (quotations omitted). Rule 16’s good cause requirement may be 

satisfied, for example, if a plaintiff learns new information through discovery or if the 

underlying law has changed. Id. at 668-69. If the plaintiff knew of the underlying 

conduct but simply failed to raise tort claims, however, the claims are barred. See Minter 

v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006); Federal Ins. Co. v. Gates 

Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987). 

Although district courts in the Tenth Circuit have imposed a good cause 

requirement when parties seek to amend their pleadings after a scheduling order deadline, 

see, e.g., Woods v. Nationbuilders Ins. Servs., Inc., No. 11-cv-02151, 2014 WL 1213381, 

at *3 (D. Colo. Mar. 24, 2014), we have not yet expressly ratified that standard, Minter, 

451 F.3d at 1205 n.4. In Minter, we noted the Second, Fifth, Sixth, Eighth, and Ninth 

Circuits have all imposed a good cause requirement for amendments to pleadings after 
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scheduling order deadlines. Id. We have adopted a good cause requirement for parties 

seeking to add counterclaims, see SIL-FIO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1518-19 

(10th Cir. 1990), but have not yet done so for parties seeking to amend their complaints, 

Minter, 451 F.3d at 1205 n.4. We now hold that parties seeking to amend their 

complaints after a scheduling order deadline must establish good cause for doing so. 

If Gorsuch Cooper and Aspen failed to satisfy either factor—(1) good cause or (2) 

Rule 15(a)—the district court did not abuse its discretion in denying their motion for 

leave to amend. 

1. Good Cause Under Rule 16 

Gorsuch Cooper and Aspen contend that because Rule 16 is a procedural rule, the 

district court abused its discretion by using it to deny substantive rights. They also argue 

they had good cause to amend their pleadings after the deadline because Colorado’s 

economic loss rule foreclosed their tort claims until after the district court dismissed their 

third-party claims on November 17, 2011. 

The first argument suggests the district court somehow misused Rule 16 to reject 

the tort claims on the merits. The record reflects otherwise. It shows the district court 

here did what federal courts have done in other cases—used Rule 16’s good cause 

requirement as the threshold inquiry to consider whether amendments should be allowed 

after a scheduling order deadline has passed. See id.; Pumpco, 204 F.R.D. at 668. The 
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district court did not err in dismissing the motion to amend if Gorsuch Cooper and Aspen 

were unable to show good cause for their delay. 

Gorsuch Cooper and Aspen are also incorrect about the economic loss rule, which 

bars plaintiffs from bringing tort claims for economic losses resulting from the breach of 

a contractual duty. Colorado recognizes the rule, Town of Alma v. Azco Constr., Inc., 10 

P.3d 1256 (Colo. 2000) (en banc), and looks to the source of the duty to determine 

whether it applies, id. at 1262 (“A breach of a duty which arises under the provisions of a 

contract between the parties must be redressed under contract, and a tort action will not 

lie. A breach of duty arising independently of any contract duties between the parties, 

however, may support a tort action.” (quotations omitted)). 

In Colorado, in addition to the parties to a contract, the economic loss rule extends 

to alleged third-party beneficiaries: “The scope of this rule includes third-party contract 

beneficiaries who may have a cause of action for breach of contractual duties. . . . We 

hold that the economic loss rule applies here to prohibit their duplicate claims under tort 

and contract theories.” Id. at 1264 n.12; see also BRW, Inc. v. Dufficy & Sons, Inc., 99 

P.3d 66, 72 (Colo. 2004) (noting the rule applies any time “the claimant seeks to remedy 

only an economic loss that arises from interrelated contracts”). 

Not all tort claims pled in a case involving contracts violate the economic loss 

rule. A duty independent of contractual provisions may arise in the context of a special 

relationship, for example, and some tort claims seeking to remedy economic loss can 
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arise independently of a breach of contract claim. See Town of Alma, 10 P.3d at 1263 

(citing Brody v. Bock, 897 P.2d 769, 776 (Colo. 1995) (en banc) (determining a common 

law fraud claim was based on a violation of a duty independent of a contract); Keller v. 

A.O. Smith Harvestore Prods., Inc., 819 P.2d 69, 73 (Colo. 1991) (en banc) (determining 

a negligent misrepresentation claim was based on a violation of a duty independent of a 

contract)). When claims arise from a non-contractual duty, the economic loss rule does 

not apply. 

In the proposed third amended complaint, Gorsuch Cooper and Aspen allege “the 

wrongful acceleration of the Term Loan interfered with a written lease agreement 

between Gorsuch Aspen and Gorsuch Cooper and caused substantial damage to both 

entities.” App. at 1018. The economic loss rule is inapplicable to both claims arising 

from this conduct. The lease at issue was between Gorsuch Cooper and Gorsuch, 

Limited at Aspen. Wells Fargo did not have a contractual duty to either of them to avoid 

interfering in their agreement. The duty allegedly breached by Wells Fargo was 

independent of the Credit Agreement—indeed, any contract. See, e.g., Parr v. Triple L & 

J Corp., 107 P.3d 1104, 1108 (Colo. App. 2004) (recognizing “an independent, wellrecognized obligation imposed by tort law to refrain from intentional interference with a 

prospective business advantage”). 

Because Wells Fargo’s actions were not subject to the lease agreement, the 

economic loss rule did not apply. JDB Med., Inc. v. The Sorin Grp., S.p.A., No. 07-cv-
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00350, 2008 WL 10580039, at *5 (D. Colo. June 11, 2008) (noting if the defendant was 

not acting as an agent or operative of the parties to the contract, it may not be subject to 

the contract’s terms for purposes of the economic loss rule). The type of damages sought 

may be similar to those requested in a contract suit, but Wells Fargo’s duty was not the 

product of contracts bargained for by Wells Fargo and Gorsuch Cooper and Aspen. The 

economic loss rule therefore did not bar Gorsuch Cooper and Aspen’s claims before their 

third-party beneficiary claims were dismissed. 

The only excuse Gorsuch Cooper and Aspen offer for their failure to amend the 

complaint by the July 12, 2011 deadline is the economic loss rule. Because the rule did 

not apply to their tort claims, we conclude they had ample time to comply with the 

deadline established in the scheduling order. And even if the rule had applied, Gorsuch 

Cooper and Aspen had no good cause for the lengthy delay between November 17, 2011, 

and the motion for leave to file a third amended complaint on July 10, 2013. Because 

Gorsuch Cooper and Aspen lacked good cause for the delay in amending their complaint, 

it was within the district court’s discretion to deny their motion pursuant to Rule 16(b)(4). 

2. Rule 15(a)

Having concluded Gorsuch Cooper and Aspen lacked good cause to amend their 

pleadings after the scheduling order deadline, we need not reach the Rule 15(a) issue, and 

decline to do so. 
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III. CONCLUSION 

For the foregoing reasons, we affirm the district court’s dismissal of the Gorsuch 

Entities and denial of Gorsuch Cooper and Aspen’s motion to amend their complaint.