Bath v. EMC Mortgage et al

Filing 68

ORDER granting 58 Plaintiff's Motion to Amend Pleadings in Response to EMC's 12(b)(6) Motion [sic]. The Plaintiff's Amended Complaint (58-1) is accepted for filing as of the date of this Order and is the operative pleading. Each party shall pay its own fees and costs for this motion. By Magistrate Judge Michael J. Watanabe on 11/15/2011.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01089-REB-MJW
BRIAN EDMOND BATH,
Plaintiff,
v.
EMC MORTGAGE CORPORATION and
EXPERIAN CORPORATION,
Defendants.

ORDER REGARDING PLAINTIFF’S MOTION TO AMEND PLEADINGS IN
RESPONSE TO EMC’S 12(B)(6) MOTION (DOCKET NO. 58)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on Plaintiff’s Motion to Amend Pleadings in
Response to EMC’s 12(b)(6) Motion (docket no. 58). The court has reviewed the
subject motion (docket no. 58) and the response (docket no. 67) thereto. 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;

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3.

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

4.

That Rule 15(a) of the Federal Rules of Civil Procedure provides
that “[t]he court should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). “Refusing leave to amend is
generally only justified upon a showing of undue delay, undue
prejudice to the opposing party, bad faith or dilatory motive, failure
to cure deficiencies by amendments previously allowed, or futility of
amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.
1993) (citations omitted). As to Defendant’s futility argument,
Judge Ebel has previously addressed that issue in the case of
General Steel Domestic Sales, LLC v. Steelwise, LLC, 2008 WL
2520423 (D. Colo. 2008). In the General Steel case, Judge Ebel
stated, in pertinent part: “. . . Defendants’ futility argument seems
to place the cart before the horse. Rather than force a Rule
12(b)(6) motion into a Rule 15(a) opposition brief, the defendants
may be better served by waiting to assert Rule 12 motions until the
operative complaint is in place;”

5.

That Plaintiff filed his original Complaint Pro Se. Plaintiff has now
retained legal counsel, Ernesto Delgadillo, Esquire; and

6.

That under these facts, justice requires that Plaintiff, who is now
represented by legal counsel, should be permitted to amend his
Complaint, and I do not find any real prejudice to Defendant, noting

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that no Scheduling Order has entered, and no trial date is set.
Moreover, the Defendant can always renew his motion to dismiss
as to the Amended Complaint (docket no. 58-1).
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiff’s Motion to Amend Pleadings in Response to EMC’s
12(b)(6) Motion [sic] (docket no. 58) is GRANTED. The Plaintiff’s
Amended Complaint (docket no. 58-1) is accepted for filing as of
the date of this Order and is the operative pleading; and

2.

That each party shall pay their own attorney fees and costs for this
motion.

Done this 15th day of November 2011.
BY THE COURT

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