                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      April 7, 2010
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT


 HOWARD MYERS individually and as
 father and next best friend of ETHAN
 MYERS and LUKAS MYERS, minors,

               Plaintiffs - Appellants,

          v.                                             No. 08-1354
                                               (D. Ct. No. 1:04-CV-00396-LTB)
 ALLIANCE FOR AFFORDABLE                                   (D. Colo.)
 SERVICES, a/k/a or d/b/a or separately
 Alliance for Affordable Health Care
 Association; KENN KOCHAN, a/k/a
 KENNETH KOCHAN; MID-WEST
 NATIONAL LIFE INSURANCE
 COMPANY, a/k/a or d/b/a or
 separately Mid-West National Life
 Insurance Company of Tennessee,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before HENRY, TACHA, and HARTZ, Circuit Judges.


      Plaintiffs-appellants Howard Myers and his minor sons Ethan and Lukas



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Myers (“plaintiffs”) brought claims against Alliance for Affordable Services

(“Alliance”), Mid-West National Life Insurance Company (“Mid-West”), and

Kenneth Kochan after plaintiffs were denied insurance coverage of medical bills

incurred by Ethan and Lukas. The district court dismissed all of plaintiffs’ claims

on pre-trial motions, and plaintiffs now appeal. We take jurisdiction pursuant to

28 U.S.C. § 1291 and AFFIRM.

                               I. BACKGROUND

      In January 2002, plaintiffs did not have health insurance. That month, Mr.

Myers contacted Mr. Kochan, an insurance agent for Mid-West who was working

through Alliance. On Tuesday, January 15, Mr. Kochan came to Mr. Myers’s

home and assisted him in completing an application for health insurance, which

sought coverage for Mr. Myers, Ethan, and Lukas. The application, which Mr.

Myers signed, listed Dr. Kurt Wever as Mr. Myers’s physician. The application

also indicated that he had a kidney removed eight years prior, a procedure known

as a nephrectomy.

      In addition, the application contained various declarations, agreements,

confirmations, and releases that Mr. Myers acknowledged through his signature.

Under the heading “Declarations and Agreements,” the application provided that

“the agent does not have the authority on behalf of [Mid-West] to accept the

risks, or to make, alter, or amend the coverage” and “no insurance will take effect

unless and until the Application is approved by [Mid-West] and the policy is

                                        -2-
delivered to the Applicant while the conditions affecting the insurability are and

have remained as described herein . . . .” Similarly, Mr. Myers signed a

“Confirmation of Presentation and Conditional Receipt” acknowledging that the

payment of an initial premium did not create insurance coverage. 1 The

Confirmation of Presentation also provided that the insurance for which Mr.

Myers applied would “not become effective until the policy is delivered by [Mid-

West]” and that “neither [Mr. Kochan] or [Mid-West] is bound by any knowledge

or statements made by [Mr. Kochan] . . . unless set forth in writing in the

application and this receipt.” Furthermore, at the same January 15 meeting, Mr.

Myers signed a medical records release which provided, “I understand that

coverage is not effective unless and until approved by [Mid-West].”

      Mr. Kochan returned to the Myers’s home the following evening,

Wednesday, January 16, to obtain additional information regarding Mr. Myers’s

nephrectomy. Mr. Kochan turned in the application, the additional information,

and an initial premium payment check written by Mr. Myers in the amount of


      1
          The Confirmation of Presentation provided, in pertinent part:

      I authorize the check tendered with the application to be cashed
      immediately upon receipt by the home office. The Representative
      has explained to me that [Mid-West]’s cashing of my check does not
      create coverage with [Mid-West] and should [Mid-West] fail to
      approve my application for coverage, I will receive a full refund of
      all monies given to the Representative for the insurance I have
      applied for.


                                          -3-
$376.11 on Friday, January 18 at Alliance’s weekly “turn-in” meeting. Alliance,

in turn, mailed the application to Mid-West that Friday or the following Monday.

Mid-West received the application and began the underwriting process on

Tuesday, January 22.

      Tragically, the same day that Mid-West received the application, Ethan and

Lukas were involved in an automobile collision with a drunk driver. Medical

bills for the two boys exceeded $1,000,000.

      On January 31, Mid-West wrote a letter to Mr. Myers indicating that it

would be unable to consider his application until it received medical records

relating to his nephrectomy, and that it had requested a third party obtain the

records from Dr. Wever. Two months later, on March 21, Mid-West notified Mr.

Myers that it was suspending the processing of the application because it never

received the necessary medical records. On March 22, Mid-West issued three

“refund” checks to Mr. Myers and refused to issue him an insurance policy. Mid-

West later refused to pay for the medical bills incurred by Ethan and Lukas.

      Plaintiffs filed a complaint (the “amended complaint”) against Mid-West,

Alliance, and Mr. Kochan (collectively, “defendants”) in El Paso County District

Court in January 2004. The amended complaint raised claims for breach of

contract, bad faith breach of an insurance contract, breach of fiduciary duty,

fraudulent and negligent misrepresentation, negligence, and outrageous conduct.

Defendants removed the action to federal court, contending that Mr. Kochan, the

                                         -4-
only non-diverse party, was not subject to suit because he had filed for

bankruptcy one month prior to the filing of the amended complaint and was

protected by the automatic stay. The district court agreed that the claims against

Mr. Kochan violated the automatic stay in the bankruptcy case, dismissed the

claims against Mr. Kochan as void ab initio, and denied plaintiffs’ motion to

remand.

      In March 2004, Alliance filed a motion to dismiss all of the claims against

it pursuant to Fed. R. Civ. P. 12(b)(6). The district court granted Alliance’s

motion and dismissed plaintiffs’ claims. Plaintiffs subsequently filed a Motion to

Amend Judgment, and in the Alternative, Motion to Reinstate and Amend Their

Amended Complaint, which the district court denied.

      In March 2008, plaintiffs sought to amend the amended complaint to add a

new claim against Mid-West, the only remaining defendant. The district court

also denied this motion to amend. Finally, following Mid-West’s motion, the

district court granted summary judgment in favor of Mid-West on all claims and,

in doing so, also struck portions of plaintiffs’ expert testimony.

      Plaintiffs now appeal the dismissal of their claims against Alliance pursuant

to Rule 12(b)(6) and against Mid-West on summary judgment. They also contend

that the district court erred in denying their Motion to Amend Judgment, and in

the Alternative, Motion to Reinstate and Amend Their Amended Complaint, as

well as their March 2008 motion to amend the amended complaint. Finally,

                                         -5-
plaintiffs contest the dismissal of Mr. Kochan from this action and argue that the

district court improperly struck portions of their expert testimony in support of

their opposition to summary judgment.

                                 II. DISCUSSION

A.    Plaintiffs’ Claims Against Alliance and Mid-West

      1.     Standards of Review

      The district court dismissed the claims against Alliance pursuant to Fed. R.

Civ. P. 12(b)(6); therefore, we review the decision to dismiss de novo. Ridge at

Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). “[W]e

assume the truth of the plaintiff’s well-pleaded factual allegations and view them

in the light most favorable to the plaintiff.” Id. To survive a motion to dismiss, a

plaintiff must “‘nudge his claims across the line from conceivable to plausible.’”

Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007))

(alterations omitted). “If the plaintiff fails to allege an essential element of his

claim, the complaint is appropriately dismissed pursuant to Rule 12(b)(6).” Ellis

ex rel. Estate of Ellis v. Ogden City, 589 F.3d 1099, 1102 (10th Cir. 2009).

      Likewise, we review de novo the district court’s dismissal of the claims

against Mid-West in the summary judgment order, applying the same standard as

the district court. Hill v. Allstate Ins. Co., 479 F.3d 735, 739–40 (10th Cir. 2007).

“Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

                                         -6-
that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Id. at 740 (quotations omitted).

      2.     Breach of Contract

      Plaintiffs brought breach of contract claims against both Alliance and Mid-

West. Under Colorado law, a plaintiff must plead the following elements to state

a claim for breach of contract: (1) the existence of a contract; (2) plaintiff’s

performance or some justification for nonperformance; (3) defendant’s failure to

perform; and (4) resulting damages to the plaintiff. W. Distrib. Co. v. Diodosio,

841 P.2d 1053, 1058 (Colo. 1992).

      The district court dismissed plaintiffs’ breach of contract claim against

Alliance because they failed to allege the existence of a contract with Alliance in

their amended complaint. On appeal, plaintiffs argue that Mr. Myers had an oral

contract with Alliance requiring Alliance to “procure insurance” for him.

Plaintiffs did not, however, plead any facts in their amended complaint suggesting

the formation or existence of such a contract. Thus, the district court properly

dismissed plaintiffs’ breach of contract claim against Alliance.

      Similarly, plaintiffs concede that Mid-West never issued a health insurance

policy to Mr. Myers under which Mid-West was contractually bound to provide

coverage to them. Nevertheless, they argue that representations by Mr. Kochan as

an agent of Mid-West created binding coverage from Mid-West on the date that

Mr. Myers completed his application and tendered the first premium payment.

                                          -7-
The district court ruled that there was no contract between the parties and

dismissed the claim. We agree.

      Under Colorado law, an agent can bind a principal to a contract if he is

acting within the scope of his actual or apparent authority. Life Investors Ins. Co.

of Am. v. Smith, 833 P.2d 864, 868 (Colo. Ct. App. 1992). “Actual authority” is

the authority which the principal has in fact given to the agent. Id. “Apparent

authority exists only to the extent that it is reasonable for the third person dealing

with the agent to believe that the agent is authorized.” Nat’l Cash Register Co. v.

Lightner, 388 P.2d 781, 787–88 (Colo. 1964) (quoting Restatement (Second) of

Agency, § 8 cmt. c (1958)). “[I]f the limitation of an agent’s authority is known

to the person with whom he deals, the principal is not bound if the agent exceeds

his authority.” Id. at 788.

      Assuming that Mr. Kochan’s oral statements could be construed as

sufficient to create an agreement between Mid-West and plaintiffs, the evidence

clearly establishes that Mr. Kochan did not have actual authority to bind Mid-

West to any such contract. In Life Investors, the court looked to the agency

agreement between the agent and insurance company to determine the scope of

the agent’s actual authority. 833 P.2d at 868. Here, Mr. Kochan’s agency

agreement with Mid-West authorized him “to solicit applications for POLICIES

offered by Mid-West” and required him to “submit every insurance application

subject to acceptance or rejection at the SOLE DISCRETION of . . . MID-

                                          -8-
WEST.” 2 These express provisions show that Mid-West did not give Mr. Kochan

the authority to bind it to insurance coverage and that Mr. Kochan was informed

of his limited authority.

      Additionally, Mr. Kochan did not have apparent authority to bind Mid-West

to coverage. The insurance application Mr. Myers signed provided that Mr.

Kochan did not have authority “to make, alter, or amend coverage,” and that “no

insurance will take effect unless and until the Application is approved by [Mid-

West].” Similar disclaimers appeared in other documents signed by Mr. Myers.

Given Mr. Myers’s acknowledgment, through his signature, of these clear

restrictions on Mr. Kochan’s authority, Mr. Myers’s belief that Mr. Kochan could

issue insurance or bind Mid-West to coverage was objectively unreasonable. See

Bayless v. Christie, Manson & Woods Int’l, Inc., 2 F.3d 347, 353 (10th Cir. 1993)

(“‘[I]f a person has means of knowledge reasonably open to him as to the limits

of the agent’s authority, he cannot hold the principal unless he uses ordinary

diligence to ascertain them . . . . [A person] has means of knowledge if he knows

or has reason to know that the authority is evidenced by a document open to and

intended for his inspection.’”) (quoting Restatement (Second) of Agency, § 167

cmt. a (1958)).

      Finally, plaintiffs argue that Mr. Kochan was a “general agent” of Mid-

      2
       The agency agreement between Mr. Kochan and Mid-West is not part of
the record on appeal; the district court, however, relied on it and the parties do
not contest the court’s recitation of this language in the agreement.

                                        -9-
West and thus able to issue binding health insurance on its behalf. A general

agent’s misrepresentations as to policy coverage are indeed binding upon the

agent’s principal. Cadez v. Gen. Cas. Co. of Am., 298 F.2d 535, 537 (10th Cir.

1961). Nevertheless, an agent who is limited to receiving and accepting proposals

for insurance is not a general agent and has no power to bind an insurance

company or write insurance. See id. Mr. Kochan was only given authority to

solicit applications; therefore, he was not a general agent of Mid-West and was

unable to bind it to coverage. Accordingly, the district court properly dismissed

plaintiffs’ breach of contract claim against Mid-West.

      3.     Bad Faith Breach of an Insurance Contract

      Plaintiffs also brought claims for bad faith breach of an insurance contract

against both Alliance and Mid-West. “The basis for liability in tort for the breach

of an insurer’s implied duty of good faith and fair dealing is grounded upon the

special nature of the insurance contract and the relationship which exists between

the insurer and the insured.” Farmers Group, Inc. v. Trimble, 691 P.2d 1138,

1141 (Colo. 1984). A claim for bad faith breach of an insurance contract requires

the existence of a contract. See id.; Parsons ex rel. Parsons v. Allstate Ins. Co.,

165 P.3d 809, 814–15 (Colo. Ct. App. 2006). As we just held, however, plaintiffs

did not allege in their amended complaint the existence of a contract between

themselves and Alliance, and the undisputed evidence demonstrates that there was

no contract between themselves and Mid-West. Accordingly, the district court

                                         - 10 -
properly dismissed plaintiffs’ claim for bad faith breach of an insurance contract

against Alliance under Rule 12(b)(6) and against Mid-West on summary

judgment.

      4.     Breach of Fiduciary Duty

      The district court properly dismissed plaintiffs’ breach of fiduciary duty

claims against Alliance and Mid-West. Under Colorado law, a plaintiff must

plead the following elements to state a claim for breach of fiduciary duty: (1) the

defendant was acting as a fiduciary of the plaintiff; (2) the defendant breached a

fiduciary duty to the plaintiff; (3) the plaintiff incurred damages; and (4) the

defendant’s breach of fiduciary duty was a cause of the plaintiff’s damages.

Graphic Directions, Inc. v. Bush, 862 P.2d 1020, 1022 (Colo. Ct. App. 1993).

Furthermore, a claim for breach of fiduciary duty is improper unless “the

confidential relationship giving rise to the duty [was] established prior to the date

of the transaction that gives rise to the claim.” Nicholson v. Ash, 800 P.2d 1352,

1355 (Colo. Ct. App. 1990).

      Plaintiffs do not allege that their relationship with Alliance or Midwest

existed prior to the date Mr. Myers attempted to purchase insurance from Mid-

West through Alliance. The amended complaint states only that Alliance

provided Mr. Myers with “a benefit summary for the health insurance he applied

for,” “accepted and cashed a check for that insurance,” and submitted the

“application for insurance to Mid-West.” Plaintiffs allege that Mid-West

                                         - 11 -
accepted the application and the initial premium check written by Mr. Myers.

Plaintiffs do not contend, however, that their relationship with either Alliance or

Mid-West predated the transaction giving rise to this claim. Because Colorado

law requires a pre-existing confidential relationship, the district court correctly

dismissed plaintiffs’ breach of fiduciary duty claims.

      5.     Fraudulent Misrepresentation

      Plaintiffs asserted fraudulent misrepresentation claims against Alliance and

Mid-West based on statements by Mr. Kochan. To state a claim for fraudulent

misrepresentation, a plaintiff must allege: (1) a knowing misrepresentation of

material fact; (2) reliance on the material misrepresentation; (3) the right or

justification in relying on the misrepresentation; and (4) reliance resulting in

damages. Williams v. Boyle, 72 P.3d 392, 399 (Colo. Ct. App. 2003). The

alleged misrepresentation must be of a material fact which either exists in the

present or has existed in the past. Bell Press, Inc. v. Phillips, 364 P.2d 398, 400

(Colo. 1961). “[A] mere expression of an opinion in the nature of a prophecy as

to the happening or non-happening of a future event is not actionable.” Id.

      In the amended complaint, plaintiffs allege that Mr. Kochan told them that

“everything was being handled in an expeditious fashion, that everything was in

order, and that the policy for which they had applied would be issued.” The

district court held that Mr. Kochan’s statements were not statements of material

fact and thus could not support a claim of fraudulent misrepresentation. We

                                         - 12 -
agree. Mr. Kochan’s statements concerning the handling of the insurance

application were mere expressions of his opinion. Furthermore, the

representation that the policy “would be issued” related to the happening or non-

happening of a future event. Therefore, the district court properly dismissed this

claim against Alliance.

        Plaintiffs’ claim against Mid-West is more developed. In their response to

Mid-West’s motion for summary judgment, plaintiffs asserted that Mr. Kochan

told them that they were insured beginning January 15, 2002, upon Mr. Myers’s

completion of the application and payment of the first premium. They further

alleged that Mr. Kochan fraudulently misrepresented that: (1) he and his wife

were insured by a similar Mid-West health insurance plan; (2) the policy was for

“100% coverage, up to [one] million dollars, and with a $5,000 deductible”;

(3)“Mr. Myers was bound and had the insurance, and the only way the policy

would be cancelled [was] if there was something wrong on the application with

Mr. Myers’ medical”; and (4) the written policy would be sent to Mr. Myers

within a week or two. The district court held, and we agree, that plaintiffs raised

a triable issue of fact whether Mr. Kochan made material misrepresentations

regarding coverage. Nevertheless, plaintiffs must also establish a triable issue

regarding their justifiable reliance upon such statements. This they have not

done.

        The application and other forms which Mr. Myers signed contained clear

                                        - 13 -
and unambiguous disclaimers of immediate coverage and express limitations on

Mr. Kochan’s authority to bind Mid-West. Plaintiffs’ reliance on any

contradictory statement by Mr. Kochan concerning immediate coverage is

therefore unreasonable as a matter of law. See Balkind v. Telluride Mountain

Title Co., 8 P.3d 581, 587 (Colo. Ct. App. 2000) (“If the plaintiff has access to

information that was equally available to both parties and would have led to

discovery of the true facts, the plaintiff has no right to rely upon the

misrepresentation.”). Accordingly, the district court properly granted Mid-West

summary judgment on plaintiffs’ fraudulent misrepresentation claim.

      6.     Negligent Misrepresentation

      Plaintiffs also allege that they incurred damages due to negligent

misrepresentations by Mr. Kochan and Alliance. Under Colorado law, negligent

misrepresentation only applies when there has been a misrepresentation of an

existing fact; a party is not liable for “negligently failing to perform.” High

Country Movin’, Inc. v. U.S. West Direct Co., 839 P.2d 469, 471 (Colo. Ct. App.

1992). A plaintiff must also allege that it relied on the misrepresentation when

entering into a transaction with a third party. See Snoey v. Advanced Forming

Tech., Inc., 844 F. Supp. 1394, 1400 (D. Colo. 1994).

      Plaintiffs base their negligent misrepresentation claim upon Mr. Kochan’s

assurances that “everything was being handled in an expeditious fashion, that

everything was in order, and that the policy for which they had applied would be

                                         - 14 -
issued.” As discussed above, these were representations of Mr. Kochan’s

opinion, not of fact, and related to the occurrence or non-occurrence of a future

event. See Bedard v. Martin, 100 P.3d 584, 592 (Colo. Ct. App. 2004) (“The

misrepresentation must be of a material past or present fact.”). Moreover,

plaintiffs did not allege that they entered into the transaction with Mid-West

because of the misrepresentations, nor could they as the assurances came after

Mr. Myers had already completed and submitted his application. The district

court thus properly dismissed plaintiffs’ negligent misrepresentation claim.

      7.     Negligence

      Plaintiffs allege that both Alliance and Mid-West negligently caused them

harm. “To state a claim sounding in negligence upon which relief may be

granted, a complaint must identify (1) a legal duty the defendant owes to the

plaintiff, (2) the defendant’s breach of that duty, and (3) an injury to the plaintiff

that is (4) proximately caused by the defendant’s breach.” Dotson v. Bernstein,

207 P.3d 911, 913 (Colo. Ct. App. 2009).

      In their amended complaint, plaintiffs allege that Alliance was negligent

“in the processing of Plaintiff’s application, including but not limited to their

failure to promptly submit the application and in the processing of requests for

further information, and Plaintiffs incurred damages as a result of such

negligence.” Plaintiffs did not, however, plead the existence of any facts giving

rise to a duty on the part of Alliance to submit or process the application any

                                         - 15 -
earlier than it did. Plaintiffs also alleged but failed to identify how any delay in

submitting Mr. Myers’s application caused them harm—in other words, how

submitting the application to Mid-West earlier would have resulted in an

insurance policy being in effect and providing them coverage on the day Ethan

and Lukas were injured. “Conclusory allegations without supporting factual

averments are insufficient to state a claim on which relief can be based.” See

Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009) (alterations and

quotation omitted). Therefore, the district court properly dismissed the

negligence claim against Alliance.

      Additionally, plaintiffs maintain on appeal that Mid-West was negligent by

“having an untrained agent that had never seen its policy, who was unsupervised

on his first sale, making misrepresentations to the Plaintiff in order to secure a

policy application” and who “did not deliver the application disclosure to the

applicant.” In their response to Mid-West’s motion for summary judgment,

however, plaintiffs argued only that Mid-West was “negligent in the processing of

Plaintiff’s application” and that “Mid-West should have reviewed the application

and approved the application no later than January 22, which was the day of the

children’s accident.” It is well-settled law in this circuit that “a party may not

lose in the district court on one theory of the case, and then prevail on appeal on a

different theory.” Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir.

1993). “This rule is particularly apt when dealing with an appeal from a grant of

                                         - 16 -
summary judgment” and applies even when a party raises a different but related

legal theory. Tele-Communications, Inc. v. Comm’r, 104 F.3d 1229, 1232, 1233

(10th Cir. 1997). Because plaintiffs are attempting to raise an argument that was

not before the district court, we do not address it.

      8.     Outrageous Conduct

      Finally, plaintiffs contend that the district court erred in dismissing their

outrageous conduct claims against Alliance and Mid-West. They fail, however, to

provide any meaningful analysis or legal argument on the issue. Plaintiffs merely

discuss the legal standard they believe applicable without any attempt to cite

allegations or facts supporting their claim or challenging the district court’s

dismissal. Because of their inadequate briefing, plaintiffs have waived appellate

consideration of this issue. See Utahns for Better Transp. v. U.S. Dep’t of

Transp., 305 F.3d 1152, 1175 (10th Cir. 2002) (“[I]ssues will be deemed waived

if they are not adequately briefed.”); Am. Airlines v. Christensen, 967 F.2d 410,

415 n.8 (10th Cir. 1992) (“It is insufficient merely to state in one’s brief that one

is appealing an adverse ruling below without advancing reasoned argument as to

the grounds for the appeal.”).

B.    Motion to Amend the Judgment, and in the Alternative, Motion to Reinstate

      and Amend Their Amended Complaint

      Plaintiffs also appeal the denial of their Motion to Amend Judgment, and in

the Alternative, Motion to Reinstate and Amend Their Amended Complaint

                                         - 17 -
pursuant to Fed. R. Civ. P. 59(e), which asked the district court to reconsider its

dismissal of plaintiffs’ claims against Alliance or to permit plaintiffs to correct

the deficiencies identified in the order of dismissal. We review the district

court’s denial of a motion under Rule 59(e) for abuse of discretion. Ogden v. San

Juan County, 32 F.3d 452, 455 (10th Cir. 1994).

      A motion under Rule 59(e) is warranted when: (1) there has been an

intervening change in the controlling law; (2) there is newly discovered evidence

which was previously unavailable; or (3) it is necessary to correct clear error or

prevent manifest injustice. Servants of Paraclete v. Does, 204 F.3d 1005, 1012

(10th Cir. 2000). Furthermore, after a motion to dismiss has been granted, a court

may only consider a motion to amend a complaint if the case is reopened pursuant

to a motion under Rule 59(e) or Rule 60(b). Glenn v. First Nat’l Bank in Grand

Junction, 868 F.2d 368, 371 (10th Cir. 1989).

      In their motion, plaintiffs did not allege any new facts, present any new

evidence, or claim that there had been any intervening change in the law. Instead,

plaintiffs reasserted the arguments they made in opposition to Alliance’s motion

to dismiss. It was therefore not an abuse of discretion for the district court to

deny plaintiffs’ motion to amend judgment, and to accordingly deny plaintiffs’

request to reinstate and amend their amended complaint.

C.    Motion to Amend the Amended Complaint

      After obtaining an exemplar of the insurance policy for which Mr. Myers

                                         - 18 -
had applied and which provided only minimal coverage, plaintiffs filed a motion

in March 2008 to further amend the amended complaint to add a claim of fraud

against Mid-West. The district court denied the motion to amend, concluding that

there had been undue delay in bringing the motion and the proposed amendment

would result in prejudice to Mid-West. “The grant of leave to amend the

pleadings pursuant to Rule 15(a) is within the discretion of the trial court.”

Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (alteration

omitted). Therefore, we review the denial of a motion to amend for abuse of

discretion. Id.

      Because Mid-West had filed a responsive pleading, plaintiffs could only

amend their amended complaint “by leave of the court or by written consent of

the adverse party.” Fed. R. Civ. P. 15(a). Leave to amend is freely given unless

there is a showing of: (1) undue delay; (2) bad faith or dilatory motive; (3)

repeated failure to cure deficiencies by amendments previously allowed; (4)

undue prejudice to the opposing party; or (5) futility of the amendment. Foman v.

Davis, 371 U.S. 178, 182 (1962).

      Plaintiffs filed their motion to amend the amended complaint on March 10,

2008, four years after the initial complaint had been filed and one year after the

deadline for amendment of the pleadings had expired. They argued that the

proposed amendment was timely because they were unaware of Mid-West’s intent

to present a defense based on the terms of the policy—that is, that even if Mid-

                                         - 19 -
West had issued the policy, its terms would not have covered the medical bills of

Ethan and Lukas—until Mid-West provided an exemplar of the policy in

September 2007. As the district court noted, however, Mid-West gave notice of

such a defense in its answer to plaintiffs’ amended complaint in March 2004, and

plaintiffs received a copy of the exemplar six months before moving to amend the

amended complaint.

      Moreover, plaintiffs filed their motion to amend approximately three weeks

before the deadline for non-expert discovery and six months before trial. The

amendment sought to introduce an entirely new theory into the case based on an

alleged fraudulent and deceptive scheme to sell “junk” insurance policies. The

addition of the new claim would have required significant additional discovery

relating to the alleged scheme, which involved Mid-West’s parent company and

other affiliated companies. With the discovery deadline about to expire, Mid-

West would certainly have been prejudiced by the proposed amendment. See

Minter, 451 F.3d at 1208 (“Courts typically find prejudice only when the

amendment unfairly affects the defendants in terms of preparing their defense to

the amendment.”) (quotations omitted). Based on these facts, we cannot say that

the district court abused its discretion in denying plaintiffs’ motion to amend.

D.    Claims Against Mr. Kochan

      The district court determined that plaintiffs’ claims against Mr. Kochan

were void ab initio as violative of the automatic stay in bankruptcy. Later, the

                                        - 20 -
bankruptcy court closed the bankruptcy proceeding without ruling on some of

plaintiffs’ claims, stating that the bankruptcy case would be reopened once the

claims before the district court had been determined. In this appeal, plaintiffs

argue (without citation to any authority) that they have “preserved” their claims

against Mr. Kochan and request that we allow them to proceed with such claims

on remand if we reverse the district court’s dismissal of the claims against

Alliance and Mid-West. Because we affirm the district court’s dismissal of

claims against both Alliance and Mid-West, however, we do not address

plaintiffs’ contention.

E.    Expert Affidavits

      Finally, plaintiffs contend that the district court erred in striking portions of

affidavits filed by plaintiffs’ insurance experts Mark Anderson and Burt

Bernstein. We review the district court’s decision to strike portions of the

affidavits for abuse of discretion. Lighton v. Univ. of Utah, 209 F.3d 1213, 1227

(10th Cir. 2000).

      The district court struck paragraph 3 of Mr. Anderson’s affidavit and a

portion of paragraph 4 of Mr. Bernstein’s affidavit because they included

improper legal conclusions. “Generally, an expert may not state his or her

opinion as to legal standards nor may he or she state legal conclusions drawn by

applying the law to the facts.” Okland Oil Co. v. Conoco Inc., 144 F.3d 1308,

1328 (10th Cir. 1998). Paragraph 3 of Mr. Anderson’s affidavit concluded that

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Mr. Kochan was a “general or captive agent” of Mid-West “with the authority to

bind [Mid-West] to the health insurance Mr. Kochan represented they were

purchasing.” It further concluded that “the payment from the Myers of monies

related to insurance further indicates that Mid-West was bound to the insurance in

question on January 15, 2002.” Likewise, paragraph 4 of Mr. Bernstein’s

affidavit concluded that “when Mr. Kochan accepted a premium check . . . Mid-

West became bound to that health insurance which Mr. Kochan had represented

would be issued.” We agree with the district court that these are improper legal

conclusions and were properly struck.

      Plaintiffs also maintain that the district court erred when it deemed a

portion of Mr. Bernstein’s affidavit unreliable because it was “contradicted by a

large number of authorities cited in Mid-West’s reply brief.” That portion of Mr.

Bernstein’s affidavit provided:

      [B]ased on industry standards, the insurance policy that Mr. Kochan
      represented to the Myers would issue, was effective the date that the
      application and the funds were received by Mr. Kochan, which was
      January 15, 2002, and at the very latest, January 21, 2002, when the
      funds and the application arrived at [] Mid-West’s offices.

We agree that the district judge invaded the province of the jury when it opined

on the reliability of such evidence. Nevertheless, that portion of Mr. Bernstein’s

affidavit was a conclusory allegation and of no probative value. See Nichols v.

Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990) (“Whether plaintiffs’ affidavits

were sufficient to create a genuine issue of material fact must be evaluated in

                                        - 22 -
light of the principle that conclusory allegations without specific supporting facts

have no probative value.” (quotations omitted)). Therefore, it would not have

affected the district court’s grant of summary judgment and any error was

harmless.

                               III. CONCLUSION

      For the foregoing reasons, we AFFIRM. Plaintiffs’ motion to take judicial

notice is DENIED, but we GRANT their motion to file a supplemental appendix.

                                       ENTERED FOR THE COURT,



                                       Deanell Reece Tacha
                                       Circuit Judge




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