Baumert v. Sunrise Senior Living Management Inc.

Filing 23

ORDER granting 20 Motion to Amend Answer by Magistrate Judge Kathleen M. Tafoya on 2/10/09.(erv, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Kathleen M. Tafoya Civil Action No. 08-cv-02125-WYD-KMT HEIDI BAUMERT, Plaintiff, v. SUNRISE SENIOR LIVING MANAGEMENT, INC., a Virginia Corporation, Defendant.

ORDER This matter is before the court on "Defendant's Unopposed Motion for Leave to File Amended Answer to Amended Complaint" (Doc. No. 20, filed February 6, 2009). Pursuant to Fed. R. Civ. P. 15(a), "The court should freely give leave (to amend the pleadings) when justice so requires." See also York v. Cherry Creek Sch. Dist. No. 5, 232 F.R.D. 648, 649 (D. Colo. 2005); Aspen Orthopaedics & Sports Medicine, LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 842 (10th Cir. 2003). The Supreme Court has explained the circumstances under which denial of leave to amend is appropriate. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the

leave sought should, as the rules require, be "freely given." Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules. Foman v. Davis, 371 U.S. 178, 182 (1962). See also Triplett v. LeFlore County, Okl., 712 F.2d 444, 446 (10th Cir. 1983). Further, the Supreme Court guides that The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Conley v. Gibson, 355 U.S. 41, 48 (1957). Therefore, it is ORDERED. The "Defendant's Unopposed Motion for Leave to File Amended Answer to Amended Complaint" (Doc. No. 20) is GRANTED. Dated this 9th day of February 9, 2009. BY THE COURT:

Kathleen M. Tafoya United States Magistrate Judge

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