Adams v. FedEx Ground/Home Delivery
ORDER granting 46 Motion for Leave to File Second Amended Compliant and Jury Demand. The Second Amended Complaint (Doc. # [46-1]) is accepted for filing as of the date of this Order. Defendants may supplement their pending Motion to Dismiss (Doc. # 26 ) on or before January 24, 2013. Plaintiff may respond to Defendants' supplement on or before Thursday, February 7, 2013. By Magistrate Judge Craig B. Shaffer on 1/4/13.(mjgsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02333-LTB-CBS
FEDEX GROUND PACKAGE SYSTEM, INC.,
MARK HARRIS, in his official capacity as Senior Manager, and in his individual capacity, and
MARK POOLE, in his official capacity as P & D manager, and in his individual capacity,
Magistrate Judge Craig B. Shaffer
This civil action comes before the court on “Plaintiff’s Motion for Leave to File Second
Amended Compliant and Jury Demand.” Pursuant to the Order of Reference dated January
27, 2012 (Doc. # 6) and the memorandum dated August 20, 2012 (Doc. # 47), this matter
was referred to the Magistrate Judge. The court has reviewed Ms. Adams’ Motion,
Defendants’ Response (Doc. # 50), Ms. Adams’ Reply (Doc. # 51), the pleadings, the entire
case file, the proceedings held on May 1, 2012 (see Courtroom Minutes/Minute Order (Doc. #
21)) and July 31, 2012 (see Courtroom Minutes/Minute Order (Doc. # 45)), and the applicable
law and is sufficiently advised in the premises.
Proceeding pro se, Ms. Adams filed her initial Compliant on September 6, 2012. (See
Docs. # 1, # 2). The sole Defendant in the initial Complaint filed its Motion to Dismiss on April
5, 2012. (See Doc. # 12). Ms. Adams filed a Response to the Motion on April 11, 2012 (see
Doc. # 14) and an Amended Complaint on April 15, 2012. (See Doc. # 15). On April 30,
2012, Defendant filed its Motion to Dismiss the Amended Complaint. At a hearing held on
May 1, 2012, Ms. Adams withdrew her Amended Complaint and the court permitted her until
May 31, 2012 to refile the Amended Complaint. (See Courtroom Minutes/Minute Order (Doc.
# 21)). Ms. Adams filed a 40-page Amended Complaint on May 31, 2012, naming two
additional Defendants. (See Doc. # 23). On June 21, 2012, Defendants filed their Motion to
Dismiss the Amended Complaint. (See Doc. # 26).
At a hearing held on July 31, 2012, the court permitted Ms. Adams an extension of
time until August 21, 2012 to respond the Defendants’ Motion to Dismiss the Amended
Complaint. (See Courtroom Minutes/Minute Order (Doc. # 45)). On August 16, 2012, Ms.
Adams filed the instant Motion for Leave to File a Second Amended Complaint and a
proposed Second Amended Complaint. (See Docs. # 46, # 46-1). On August 22, 2012, Ms.
Adams filed her Response to Defendants’ Motion. (See Doc. # 48). Defendants object to
Ms. Adams’ Motion to file a Second Amended Complaint, arguing that the amendment is
futile and that Ms. Adams “has failed to remedy the deficiencies in her complaint despite
being allowed to amend on two previous occasions.” (See Response (Doc. # 50) at 1 of 3).
The District Court for the District of Colorado has noted that “[r]ather 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.” General Steel
Domestic Sales, LLC v. Steelwise, LLC, No. 07-cv-01145-DME-KMT, 2008 WL 2520423, at *
4 (D. Colo. 2008). If Defendants have viable grounds for dismissing Ms. Adams’ Second
Amended Complaint, such arguments are more efficiently raised in the context of their Rule
12 motion, rather than indirectly under Rule 15(a). See id. (recognizing that a futility
argument under Rule 15(a) effectively places “the cart before the horse”). At the very least,
proceeding under Rule 12 would avoid one round of objections under either Fed. R. Civ. P.
72(a) or (b).1 Cf. In re K-Dur Antitrust Litigation, 338 F. Supp.2d 517, 528 (D. N.J. 2004)
(noting efficiencies of disposing of a motion to amend along with a Rule 12 motion); Leach v.
Northern Telecom, Inc., 790 F. Supp. 572, 573-74 (E.D.N.C. 1992) (reasoning that a
An order denying a motion to amend may be dispositive if the order effectively
removes a claim or a party from the action. See Pedro v. Armour Swift-Eckrich, 118 F.
Supp.2d 1155, 1157 (D. Kan. 2000)).
pragmatic approach to plaintiff’s motion to amend assured the best use of judicial time and
resources). As Defendants’ arguments asserted in their pending Motion to Dismiss also
apply to Ms. Adams’ proposed Second Amended Complaint, the court will permit the
amended pleading and address Defendants’ arguments to Ms. Adams’ Second Amended
Complaint. Ms. Adams is reminded that she does not have a right to perpetually amend her
pleading. No further amendments will be permitted until a recommendation has been made
by the Magistrate Judge and a ruling has been made by District Judge Babcock on
Defendants’ Motion to Dismiss. Accordingly,
IT IS ORDERED that:
“Plaintiff’s Motion for Leave to File Second Amended Compliant and Jury
Demand” (filed August 16, 2012) (Doc. # 46) is GRANTED and the Second Amended
Complaint (Doc. # 46-1) is accepted for filing as of the date of this Order. The Clerk of the
Court shall docket Doc. # 46-1 as the Second Amended Complaint.
Defendants may supplement their pending Motion to Dismiss (Doc. # 26) on or
before January 24, 2013.
Plaintiff may respond to Defendants’ supplement on or before Thursday,
February 7, 2013.
DATED at Denver, Colorado, this 4th day of January, 2013.
BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge
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