Kennedy v. Colorado RS, LLC et al

Filing 52

ORDER granting 33 Plaintiff's Motion for Leave to Amend Complaint. Plaintiff's First Amended Complaint and Jury Demand (33-1)is accepted for filing as of the date of this Order; each party to pay its own attorney fees and costs for this motion. By Magistrate Judge Michael J. Watanabe on 7/14/2011.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02240-WYD-MJW
PATRICK KENNEDY,
Plaintiff(s),
v.
COLORADO RS, LLC. and
CAS PARTNERS, LLC,
Defendant(s).

ORDER REGARDING PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
(DOCKET NO. 33)

Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Plaintiff’s Motion for Leave to Amend
Complaint (docket no. 33). The court has reviewed the subject motion (docket no. 33),
the response (docket no. 35), and the reply (docket no. 36). In addition, the court has
taken judicial notice of the court file and has considered applicable Federal Rules of
Civil Procedure and case law. The court now being fully informed makes the following
findings of fact, conclusions of law, and Order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That Federal Rule of Civil Procedure 15(a)(2) provides that a party
may amend its pleadings after the time for amending as a matter of
right has passed “only with the opposing party’s written consent or
the court’s leave. The court should freely give leave when justice
so requires.” Fed. R. Civ. P. 15(a)(2). A court may deny a motion
for leave to amend where, among other reasons, “amendment
would be futile.” Jefferson County Sch. Dist. No. R-1 v. Moody’s
Investor’s Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999). “A
proposed amendment is futile if the [pleading], as amended, would
be subject to dismissal for any reason, including that the
amendment would not survive a motion for summary judgment.”
Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001). A court
faced with a challenge to a motion to amend based on the futility
defense therefore will consider the sufficiency of the claims that the
moving party seeks to add in the party’s proposed amended
pleading. Moody’s, 175 F. 3d at 859;

5.

That Plaintiff has met the requirements of Fed. R. Civ. P. 15(a)(2)
and has demonstrated good cause in the subject motion (docket
no. 33) to allow an amended pleading to be filed. Accordingly,
Plaintiff’s should be permitted to amend his Complaint.

ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiff’s Motion for Leave to Amend Complaint (docket no.
33) is GRANTED. The Plaintiff’s First Amended Complaint and
Jury Demand (docket no. 33-1) is accepted for filing as of the date
of this Order; and

2.

That each party shall pay their own attorney fees and costs for this
motion.
Done this 14th day of July, 2011.
BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE