Natural Miracles, Inc. v. National Companies, Inc. et al

Filing 55

ORDER granting 48 MOTION for Leave to Amend Complaint by Plaintiff. The Clerk of Court shall file Plaintiffs Verified Amended Complaint (Doc. No. 48-2). Defendants shall file their answer or otherwise respond to the amendedVerified Amended Complaint no later than January 4, 2010 by Magistrate Judge Kathleen M. Tafoya on 12/18/09.(kmtcd, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Kathleen M. Tafoya Civil Action No. 09­cv­01379­WDM­KMT NATURAL MIRACLES, INC., Plaintiff, v. TEAM NATIONAL, INC., NATURE'S BLEND, INC., and ROBERT LOEHR, Defendants. ORDER This matter is before the court on Plaintiff's "Combined Motion for Leave to Amend Complaint and to Dismiss Defendant Nature's Blend, Inc." (Doc. No. 48, filed November 10, 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). Plaintiff seeks to dismiss Defendant Nature's Blend, Inc., and to add claims for breach of the non-disclosure agreement and for misappropriation and/or theft of trade secret information. The deadline for amending pleadings was set by this court at November 10, 2009. (Doc. No. 28.) Plaintiff's motion was, therefore, timely filed. Further, the case is in the early stages of litigation. Defendants do not oppose the motion. (See Doc. No. 48.) There has been no showing of, and the court does not find, undue delay, bad faith or dilatory motive, undue prejudice, or futility. Therefore, it is ORDERED that Plaintiff's "Combined Motion for Leave to Amend Complaint and to Dismiss Defendant Nature's Blend, Inc." (Doc. No. 48) is GRANTED. The Clerk of Court shall file Plaintiff's "Verified Amended Complaint" (Doc. No. 48-2). It is further

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ORDERED that Defendants shall file their answer or otherwise respond to the amended Verified Amended Complaint no later than January 4, 2010. Dated this 18th day of December, 2009. BY THE COURT:

Kathleen M. Tafoya United States Magistrate Judge

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