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-C V-00970-PAB-MEH)

Richard B. Podoll, Podoll & Podoll, P.C., Greenwood Vill age, Colorado (Robert A. Kitsmiller, Podoll & Po doll, 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-2- Ferguson, The Matthew C. Ferguson Law Fi rm, Aspen, Colorado, with him on the briefs), appearing for Plaintiffs-Appellants. Brian J. Berardini (David C. Walker, w ith 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 co mpany. In 2009, wh en Gorsuch, Ltd.’s winter sales were lower than expected, We lls Fargo suspended the line of credit. Gorsuch, Ltd. and the Gors uch Entities—Gorsuch, Ltd., B. C.; Gorsuch, Limited at Aspen; Gorsuch, Limited at Keystone Mountain; and Go rsuch Cooper, LLC—sued Wells Fargo for damages. 1
The Gorsuch Entities contend th ey were intended third-pa rty beneficiaries of the Credit Agreement and were not subject to a clause precluding third-party beneficiaries from bringing suit. The district court disagr eed and dismissed them from the litigation. After Gorsuch, Ltd. and We lls Fargo proceeded to arb itration, Gorsuch Cooper and

1 For the purposes of this litigation, “Gor such Entities” refers to Gorsuch, Ltd., B.C.; Gorsuch, Limited at As pen; Gorsuch, Limited at Ke ystone Mountain; and Gorsuch Cooper. “Gorsuch Businesses” refers to the Gorsuch En tities 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 sc heduling order. It denied the motion. On appeal, the Gorsuch Entities chal lenge the order dism issing 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, Lim ited at Aspen; and Gorsuch, Limited at Keystone Mountain to operate additional reta il stores, and formed Gorsuch Cooper to own the property from which Go rsuch, Limited at Aspen conducts its operations. The Gorsuches and their three sons own all of the Gorsuch Businesses. The Gorsuch Businesses are separate le gal entities, but their finances and operations are intermingled. Wells Fargo an d 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.-4- and Norwest Bank, provided cred it 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 Busine sses when it calculated loans and security throughout the lending rela tionship. 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 su ccessors and assi gns, and no other person or entity shall be a third party be neficiary 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. a nd Wells Fargo signed the Cred it 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 Busine sses commenced litiga tion in Colorado state court, which Wells Far go removed to federal court. 3 Gorsuch, Ltd. alleged breach of contract, breach of the covenant of g ood faith and fair dealing, and fraudulent inducement. The Gorsuch Entitie s asserted third-party benefi ciary claims. Wells Fargo moved to dismiss the Gorsuch Entities’ th ird-party beneficiar y 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 no ted 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 pr ejudice. Gorsuch, Ltd. and Wells Fargo then commenced arbitration. 4 On December 16, 2011, Gorsuc h, Ltd. moved fo r 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 befo re the December 1, 2012 deadline; accordingly, the district court dismissed the ca se without prejudice on December 3, 2012. On the same day, Gorsuch, Ltd. moved to re consider 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 th eir claims in arbitration as well, but the arbitration panel, citing the district c ourt’s order dismissing them as third-party beneficiaries, concluded it lacked jurisdicti on over their claims. On November 26, 2012, the panel issued an interim award of $1,916,43 1 to Gorsuch, Ltd. It later confirmed a final award of $2,186,752.80, and then orde red 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 rema ining after the district court’s order on November 17, 2011 was Gorsuch, Ltd.-7- the case, which the district court granted on May 8, 2013. Fina lly, on July 10, 2013, Gorsuch, Ltd. moved for the court to confir m 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 conc luded Gorsuch, Ltd.’s involvem ent 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 prospectiv e business advantage. On August 21, 2013 , a magistrate judge issued a minute order clarifying the district court had dismissed all plaintiffs exce pt 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 c ourt agreed with the magistrate judge that Gors uch Cooper and Aspen (1) ha d 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 dist rict court therefore denied their motion to

6 Because the district court denied Gors uch, Ltd.’s motion to file a second amended complaint on April 26, 2012, the “third” amended co mplaint was technically the second. To minimize confus ion, however, we will follow the district court and the parties and refer to the complaint as the “t hird amended complaint.” Gorsuch, Ltd. resolved its claims in arbitration, and on ly Gorsuch Cooper and Aspen presented claims in the third amended complaint.-8- amend the complaint. On Decemb er 17, 2013, the district cour t 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) deny ing Gorsuch Cooper and Aspen’s motion for leave to amend their complaint. To addr ess these issues, we apply Colorado law. 7 We conclude the district court (1) correctly di smissed the Gorsuch Entities, and (2) properly denied Gorsuch Cooper and As pen’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) mo tion 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 determ ine 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 Restatem ent (Second) of Conflict of Laws.” ITT Specialty Risk Servs. v. Avis Rent A Car Sys., Inc. , 985 P.2d 43, 47 (Colo. Ap p. 1998). Colorado has the most significant relationship to the transa ctions at issue in this appeal. The parties agree Colorado law should apply, and the term s of the Credit Agreem ent specify that it will be governed by Colorado law.-9- complaint, if accepted as true, alle ge 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 provisi on, and (2) the totality of the circumstances shows the Gorsuch Entities were intended th ird-party beneficiaries of the Credit Agreement. Neither ar gument is convincing.
1. Purported Assignment to Gorsuch Cooper According to the NTPB provi sion, 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 prec luded from bringing claims. App. at 76. Gorsuch Cooper argues it is a permitted assi gnee 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 Go rsuch Cooper its rights and obligations in a contract to purchase property. On Janu ary 7, 2004, Wells Fargo extended Gorsuch, Ltd. a $5.5 million loan (“Term Loan”). Gorsuch, Ltd. si gned a promissory note (“Term Note”) for the same amount. Gorsuch, Ltd. transferred the proceeds of the loan to Gorsuch Cooper, which then purchased the pr operty. Gorsuch Cooper contends Wells Fargo was “fully aware” that Gorsuch, Ltd. had assigned its rights to purchase the-10- property, knew the Term Loan would be us ed for that acquisition, “and intended and consented to this use.” Id. at 20. Because the Term No te was incorporated into the Credit Agreement by reference, 8 Gorsuch Cooper argues the assignment from Gorsuch, Ltd. to Gorsuch Cooper was a permitted as signment under the Cr edit 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 assi gn or transfer its interests or rights hereunder without Ba nk’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. 1 994) (en banc). Gorsuch Cooper contends Wells Fargo tacitly approved of th e assignment, but they never demonstrate—or even allege—Wells Fargo gave written permission for the Ja nuary 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 evid enced by a promissory note dated as of January 7, 2004 (‘[Term Note]’), all terms of whic h are incorporated herein by this reference.” App. at 64.-11- Even without a non-assignment clause, Co lorado’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 documenta tion, Gorsuch Cooper cannot allege Wells Fargo tacitly accepted legal ob ligations to Gorsuch Cooper under the Term Loan or Credit Agreement. Finally, the documents the Gorsuch Entities attach to their co mplaint pertain to collateral agreements and fail to demonstrate Wells Fargo was party to any assignment of rights or obligations. 9 The written assignment from Gors uch, 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 do es not reference Wells Fargo or the proceeds from the Term Loan. The Te rm Loan and Term Note ar e between Wells Fargo and Gorsuch, Ltd. Gorsuch Cooper delivered a De ed of Trust to Wells Fargo as security for

9 The Gorsuch Businesses attached the Credit Agreement, Assignment, Term Note, Term Loan, Loan Agreemen ts, and Deed of Trust to thei r 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, 11 12 (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 Go rsuch, 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 Gorsuc h Entities, even if accepted as true, fail to demonstrate Gorsuch Cooper was a permit ted 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 th e district court erred when it dismissed their claim to be third-party beneficiaries. They argu e the court gave undue weight to the NTPB provision. They further argue that othe r aspects of the Credit Agreement and the circumstances surrounding its formation de monstrate the Gorsuch Entities were intended third-party beneficiaries. We again do not find the Gorsuc h Entities’ arguments persuasive. First, under Colora do 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 Go rsuch 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 C ooper Property.” App. at 964.-13- intent. Second, the NTPB provision in the Cr edit Agreement is clea r and unambiguous. Third, Wells Fargo did not waive the NT PB provision through its conduct.

a. NTPB provisions as proof of intent Under Colorado law, the parties to a cont ract 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 actu al 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 ma de 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, c ourts 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 contai ned in multiple documents, courts construe those documents together. Id. Nevertheless, “[t]he intent of th e parties to a contract is to be determined primarily from the lang uage of the instrument itself.” Ad Two, Inc. v. City & Cnty. of Denver ex rel. Manager of Aviation , 9 P.3d 373, 376 (C olo. 2000) (en banc). Courts construing Colorado law have determ ined an NTPB provis ion offers strong proof of the parties’ intent to preclude r ecognition 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 consider ed NTPB provisions in two-14- 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 wa s 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 contra dicts a complaint to which it is attached, the document’s facts or allegati ons trump those in the complaint.”). b. NTPB provision in th e Credit Agreement The Gorsuch Entities have not demonstrated they were in tended beneficiaries of the Credit Agreement. Under the intent-focused inquiry pres cribed by Colora do law, the express NTPB provision offers the clearest indication of the agreement between Gorsuch, Ltd. and Wells Fargo. Furthe rmore, the documents the Gors uch Entities attached to their complaint identify Gorsuch, Ltd. and Wells Fargo as the sole contracting parties. Wells Fargo recognized the Gorsuch En tities as affiliates of Gorsuch, Ltd. and guarantors for security purposes, but never as borrowers with rights ag ainst 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-15- NTPB provisions are not dispositive, but the decision is readily distinguishable. In Diamond Castle , the boilerplate NTPB provision appe ared alongside another provision giving the buyer’s affiliates enforceable ri ghts, and the term “parties” was used throughout the agreem ent to include the buy er’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 reso lutions 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 ex tended by Wells Fargo Bank, National Association (‘Bank ’) to Gorsuch, Ltd. (‘Borrower’).” 12 App. at 306, 317. The language indicates Wells Fargo was aw are the Gorsuch Entitie s would benefit from the line of credit, but does not contradict the terms of the Credit Agreement, which indicates the proceeds from th e line of credit “shall be used to finance Borrower’s

11 The term “parties” in the NTPB provisi on refers to Wells Fargo and Gorsuch, Ltd., who are listed as the Bank and the Borrow er 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 We lls Fargo and the Gorsuch Entities were referenced in the complaint a nd the Credit Agreement, App. at 37, 69, and the certificate for Gorsuch Cooper was attached to the complaint, App. at 87.-16- working capital requirements” and bars thir d parties from staking claims to it. Id. at 63. In light of the Credit Agreement’s clear di stinction between Gorsuch, Ltd. as the borrower and the Gorsuch Entitie s as guarantors or third-party obligors, language acknowledging the Gorsuch Entities would benefit from credit does not make them intended beneficiaries. The di strict court did not err in de ciding the explicit text of the NTPB provision barred the Gorsuch Entities’ cl aims, 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 condu ct. 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 re putation 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 circum stances surrounding the Credit Agreement but concluded Colorado law limits circumstan tial inferences in the face of a clear and plainly unders tood provision. The Credit Agreement includes not only an NTPB provision but also provisions disc laiming implied waivers and requiring modifications to be in writing and signed. The provisions closely track the Colorado-17- Credit Agreement Statute of Frauds, which prohibits implied cred it 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 agreemen t, 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). Ou r conclusion that Wells Fargo did not waive the NTPB provision is suppor ted by the district court’s fi ndings, 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 am end the complaint on July 10, 2013, nearly two years after the July 12, 2011 deadline in the sche duling 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 cour t 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 fo r seeking modification under Fe d. R. Civ. P. 16(b)(4) and-18- (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 Pr ocedure 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 de spite [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, 1 206 (10th Cir. 2006); Federal Ins. Co. v. Gates Learjet Corp. , 823 F.2d 383, 387 (10th Cir. 1987). Although district courts in the Tent h Circuit have imposed a good cause requirement when parties seek to amend thei r 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 no t 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 ame ndments to pleadings after-19- 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 fo r 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 satis fy either factor—(1) good cause or (2) Rule 15(a)—the district court did not abus e its discretion in denying their motion for leave to amend.
1. Good Cause Under Rule 16 Gorsuch Cooper and Aspen c ontend that because Rule 16 is a procedural rule, the district court abused its discre tion by using it to deny substan tive rights. They also argue they had good cause to amend their pleadin gs after the deadline because Colorado’s economic loss rule foreclosed th eir tort claims until after the district court dismissed their third-party claims on No vember 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 cons ider whether amendmen ts should be allowed after a scheduling order deadline has passed. See id. ; Pumpco , 204 F.R.D. at 668. The-20- 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 inco rrect about the economic loss rule, which bars plaintiffs from bringing tort claims fo r 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 look s to the source of th e 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 redre ssed 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, th e economic loss rule extends to alleged third-party beneficiar ies: “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 tim e “the claimant seeks to remedy only an economic loss that arises from interrelated contracts”). Not all tort claims pled in a case in volving contracts violate the economic loss rule. A duty independent of contractual provis ions may arise in the context of a special relationship, for example, and some tort claims seeking to remedy economic loss can-21- arise independently of a br each 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 inde pendent of a contract); Keller v. A.O. Smith Harves tore Prods., Inc. , 819 P.2d 69, 73 (Colo. 19 91) (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-cont ractual 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 Go rsuch Cooper and caused substantial damage to both entities.” App. at 1018. The economic loss ru le is inapplicable to both claims arising from this conduct. The leas e at issue was between Gors uch 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 du ty allegedly breache d by Wells Fargo was independent of the Credit Agre ement—indeed, any contract. See, e.g. , Parr v. Triple L & J Corp. , 107 P.3d 1104, 1108 (Colo. App. 20 04) (recognizing “an independent, wellrecognized obligation imposed by tort law to refrain from intentiona l 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--22- 00350, 2008 WL 10580 039, at *5 (D. Colo. June 11, 2008 ) (noting if the defendant was not acting as an agent or operative of the par ties to the contract, it may not be subject to the contract’s terms for purposes of the econom ic loss rule). The type of damages sought may be similar to those requested in a cont ract suit, but Wells Fargo’s duty was not the product of contracts bargained for by Wells Fargo and Gorsuch Coop er and Aspen. The economic loss rule therefore did not bar Gorsuc h Cooper and Aspen’s claims before their third-party beneficiary cl aims were dismissed. The only excuse Gorsuch Cooper and Aspe n 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 clai ms, we conclude they had am ple time to comp ly 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 amen ded 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 Co oper 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.-23- III. CONCLUSION For the foregoing reasons, we affirm the di strict court’s dismissal of the Gorsuch Entities and denial of Gorsuc h Cooper and Aspen’s motion to amend their complaint.