Young v. Dollar Tree Stores, Inc.

Filing 69

ORDER. Plaintiffs Nunc Pro Tunc Motion for Leave to File AmendedComplaint and Memorandum of Law 30 is GRANTED. By Magistrate Judge Michael J. Watanabe on 11/18/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01840-REB-MJW
TAYNA YOUNG, on her own behalf and on behalf of others similarly situated,
Plaintiff(s),
v.
DOLLAR TREE STORES, INC.,
Defendant(s).

ORDER REGARDING
PLAINTIFF’S NUNC PRO TUNC MOTION FOR LEAVE TO FILE AMENDED
COMPLAINT AND MEMORANDUM OF LAW (DOCKET NO. 30)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on Plaintiff’s Nunc Pro Tunc Motion for Leave to
File Amended Complaint and Memorandum of Law (docket no. 30). The court has
reviewed the subject motion (docket no. 30) and the response (docket no. 65) 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 each party has been given a fair and adequate opportunity to

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be heard;
3.

That pursuant to Fed. R. Civ. P. 15(a)(2), “[t]he court should freely
give leave [to amend] when justice so requires.” “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.” Bylin v. Billings, 568 F.3d 1224, 1229 (10th
Cir. 2009) (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365
(10th Cir. 1993)).

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. June 20,
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;” and
4.

That Plaintiff’s Nunc Pro Tunc Motion for Leave to File Amended
Complaint and Memorandum of Law (docket no. 30) is GRANTED
for the reasons stated above and in the interest of justice as
outlined in Fed. R. Civ. P. 15(a)(2). Accordingly, the Amended

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Complaint & Demand for Jury Trial (docket no. 28) is accepted for
filing as of the date of this Order.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiff’s Nunc Pro Tunc Motion for Leave to File Amended
Complaint and Memorandum of Law (docket no. 30) is GRANTED.
The Amended Complaint & Demand for Jury Trial (docket no. 28) 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 18TH of November 2011.
BY THE COURT

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