Hollander v. Zito et al
ORDER: denying without prejudice 13 Joint Motion to Approve Stipulation to Amend Complaint. by Magistrate Judge Boyd N. Boland on 6/6/11.(bnbcd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 11-cv-00499-MSK-BNB
ANTHONY J. ZITO,
GLADIUS INVESTMENT CORP.,
DAN VOLKER, and
This matter arises on the Joint Motion to Approve Stipulation to Amend Complaint
[Doc. #13, filed 06/01/2011] (the “Motion”). The Motion is DENIED WITHOUT PREJUDICE.
The plaintiff and defendant Anthony Zito have submitted a stipulation to amend the
complaint [Doc. #13-1]. They state that Zito filed a motion to dismiss [Doc. #11] which raises
the issue of lack of personal jurisdiction and that “[t]he parties agree and request the Court to
enter an order giving the Plaintiff forty-five (45) days from the date this Stipulation is signed by
the Court to amend her Verified Complaint and giving Defendant Zito further twenty-one (21)
days from the date of service of the Amended Verified complaint to respond to same.” Id. at ¶ 3.
The plaintiff does not attach a copy of the proposed amended complaint, nor does she describe
the proposed amendments.
In the absence of a copy of the proposed amended complaint, it is not possible to
determine if the plaintiff’s proposed amendments are appropriate. When seeking leave to amend
a complaint, the motion to amend must detail the proposed amendments and the reasons why
such amendments are necessary. In addition, the plaintiff must attach the proposed amended
complaint to the motion. The proposed amended complaint shall be submitted on the court’s
form and shall be entitled Amended Complaint. D.C.COLO.LCivR 8.1A (stating that “[a] pro se
party shall use the forms established by this court to file an action”).
In addition, the Federal Rules of Civil Procedure require that a complaint “shall contain
(1) a short and plain statement of the grounds for the court's jurisdiction . . .; (2) a short and plain
statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the
relief sought . . . .” Fed. R. Civ. P. 8(a). “[T]he only permissible pleading is a short and plain
statement of the claim showing that the pleader is entitled to relief on any legally sustainable
grounds.” Blazer v. Black, 196 F.2d 139, 144 (10th Cir. 1952). “[T]o state a claim in federal
court, a complaint must explain what each defendant did to him or her; when the defendant did
it; how the defendant’s action harmed him or her, and what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,
1163 (10th Cir. 2007). The requirements of Rule 8(a) guarantee “that defendants enjoy fair
notice of what the claims against them are and the grounds upon which they rest.” TV
Communications Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff'd,
964 F.2d 1022 (10th Cir. 1992). The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1),
which provides that “[e]ach allegation must be simple, concise, and direct.” Taken together,
Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity by the federal
The plaintiff’s initial Complaint [Doc. #1] is not a model of clarity. Therefore, any
proposed amended complaint must comply with this order. The background statement shall
briefly summarize the plaintiff’s case and shall not exceed two double-spaced typewritten pages.
Each claim shall be stated separately. Each claim shall state which defendants the claim is
brought against and shall briefly allege facts sufficient to state a claim for relief against each of
those defendants. Each claim shall not exceed three typewritten pages, double-spaced.
Finally, the plaintiff may not incorporate by reference her original Complaint into the
proposed amended complaint. The proposed amended complaint must stand alone; it must
contain all of the plaintiff’s claims. Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007)
(stating that “an amended complaint supercedes an original complaint and renders the original
complaint without legal effect”) (internal quotations and citations omitted).
IT IS ORDERED that the Motion is DENIED WITHOUT PREJUDICE. Any future
attempts to amend the Complaint shall comply with the Federal Rules of Civil Procedure, the
local rules of this court, and this order.
Dated June 6, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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