Bensler et al v. Trailhead Lodge at Wildhorse Meadows, LLC et al

Filing 27

ORDER granting 23 Unopposed MOTION for Leave to File Third Amended Complaint by Plaintiffs. Document number 24 is STRICKEN. Plaintiffs shall re-file their Third Amended Complaint with exhibits no later than 02/03/2010. Signed by Magistrate Judge Kathleen M. Tafoya on 2/1/2010.(kmtcd, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Kathleen M. Tafoya Civil Action No. 09­cv­02397­REB­KMT KRISTINE L. BENSLER, a Colorado resident, ANN H. NOYES, a Colorado resident, and HAROLD A. NOYES, a Colorado resident, each in their individual capacities, Plaintiffs, v. TRAILHEAD LODGE AT WILDHORSE MEADOWS, LLC, a Colorado limited liability company, Defendant. ORDER This matter is before the court on "Plaintiffs' Unopposed Motion to File Their Third Amended Complaint" (Doc. No. 23, filed January 29, 2010). 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 add an additional defendant to this action. The motion is unopposed. The deadline for amending pleadings was set by this court at February 1, 2010. Therefore, the motion was timely filed. Further, the case is in the early stages of litigation. 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 1. "Plaintiffs' Unopposed Motion to File Their Third Amended Complaint" (Doc.

No. 23) is GRANTED; 2. Document number 24 is STRICKEN. Plaintiffs shall re-file their Third

Amended Complaint together with the exhibits referenced in document number 26, no later than February 3, 2010. Dated this 1st day of February, 2010. BY THE COURT:

Kathleen M. Tafoya 2

United States Magistrate Judge

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