Carter v. Bourgoin Construction, Inc., 357 P.3d 1

In 2003 Landmark Testing performed geotechnical testing for A. Kent Cottam on land later subdivided; Cottam’s results influenced the sale and development.
The Carters bought a lot and a home was built; in 2009 soil movement caused significant damage and the Carters sued multiple parties, including Bourgoin and later Landmark (after amendments).
Landmark’s claims were dismissed on summary judgment in 2012 for lack of privity as to the Carters; Cottam had separate claims against Landmark and later entered bankruptcy.
In May 2013 the Carters acquired by assignment any claims Cottam had against Landmark related to the Carters’ property; two months later the Carters moved for leave to file a third amended complaint to assert those assigned claims.
The district court denied leave to amend as untimely, noting the long passage of time, difficulties locating/cooperating with Cottam and family witnesses, and that several years had elapsed since the original pleadings.
The Court of Appeals affirmed, concluding denial for untimeliness was within the district court’s discretion and that an assignee inherits the assignor’s procedural posture (including delay).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court abused its discretion by denying leave to file a third amended complaint to assert assigned claims	Carters: Motion was timely because it was filed promptly after assignment and after the bankruptcy stay was lifted	Landmark: Motion was untimely given multi-year delay; prejudice and witness/ evidence problems flow from delay; assignee stands in assignor’s shoes	Court: No abuse of discretion; denial affirmed because amendment was untimely and delay justified denial
Whether a court must find dilatory motive, bad faith, or unreasonable neglect before denying a late motion to amend	Carters: Court should have required a finding of dilatory motive or bad faith under Kelly	Landmark: Not required; untimeliness alone can justify denial	Court: Kelly’s factors are permissive; untimeliness alone may support denial and court need not make specific findings of bad faith

Pride Stables v. Homestead Golf Club, Inc., 82 P.3d 198 (Utah Ct. App. 2003) (standard of review: denial of leave to amend reviewed for abuse of discretion)
Kelly v. Hard Money Funding, Inc., 87 P.3d 734 (Utah Ct. App. 2004) (identifies timeliness, prejudice, and justification factors for amendment requests)
Daniels v. Gamma W. Brachytherapy, LLC, 221 P.3d 256 (Utah 2009) (courts should liberally allow amendments but may consider delay, prejudice, and bad faith)
Sunridge Dev. Corp. v. RB&G Eng’g, Inc., 230 P.3d 1000 (Utah 2010) (assignee has no greater rights than assignor; stands in assignor’s shoes)
Failor v. MegaDyne Med. Prods., Inc., 213 P.3d 899 (Utah Ct. App. 2009) (affirming denial to amend based on untimeliness alone)
First City Bank v. Air Capitol Aircraft Sales, Inc., 820 F.2d 1127 (10th Cir. 1987) (untimeliness or undue delay alone can justify denying leave to amend)
Warner v. Warner, 319 P.3d 711 (Utah Ct. App. 2014) (motions to amend should generally be liberally granted but untimeliness and other factors may weigh against amendment)