Guy v. Jorstad et al

Filing 32

ORDER granting 24 Plaintiff's Motion to Amend Complaint. The Clerk of Court is directed to file Plaintiffs Amended Complaint (Doc. No. 24-1). By Magistrate Judge Kathleen M. Tafoya on 11/2/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12-cv-01249-PAB-KMT

KATHRYN GUY, as mother, next of kin and executor of the estate of James Guy, deceased,
Plaintiff,
v.
NATHAN JORSTAD,
RICHARD MYERS, Chief of Police,
STEVE COX, Interim City Manager, individually and in their official capacity, and
CITY OF COLORADO SPRINGS, a Municipality,
Defendants.

ORDER

This matter is before the court on Plaintiff’s “Motion to Amend Complaint” (Doc. No.
24, filed August 15, 2012 [“Mot.”]) and “Defendants’ Response to Plaintiff’s Motion to Amend
Complaint” (Doc. No. 29, filed September 5, 2012 [“Resp.”]). No reply was timely filed.
Accordingly, this motion is ripe for the court’s review.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from the shooting death of James William Guy in the City of Colorado
Springs on April 22, 2011. On that date, Defendant Nathan Jorstad, a Colorado Springs police
officer, was dispatched to Mr. Guy’s address on reports that shots had been fired. (Doc. No. 1 ¶
11.) After taking a position of cover, Officer Jorstad allegedly fired his shotgun without warning

when an intoxicated Mr. Guy, with his back facing Officer Jorstad, raised a semi-automatic
pistol that was in a slide-back, locked position. (Id. ¶¶ 11-15.) The shotgun blast hit Mr. Guy,
who died later that day from the injuries sustained. (Id. ¶ 15.)
Plaintiff, as Mr. Guy’s mother and next of kin, filed her Complaint in federal court on
May 14, 2012, alleging one federal law claim based on the Fourth and Fifth Amendments,
brought pursuant to 42 U.S.C. § 1983, and two state law claims based on assault and battery and
negligence. (Doc. No. 1.) Defendants jointly filed a motion to dismiss on July 9, 2012 (Doc.
No. 11) and a motion to stay discovery on August 14, 2012 (Doc. No. 21). In response to the
Motion to Dismiss, Plaintiff filed a motion to stay briefing (Doc. No. 17) so that she could
conduct discovery in preparation for her response to the Motion to Dismiss. District Judge
Philip A. Brimmer denied her motion to stay briefing and ordered Plaintiff to respond to the
Motion to Dismiss on or before August 15, 2012. (See Minute Order, Doc. No. 23.) Plaintiff
duly filed her response to the Motion to Dismiss on August 15, 2012 (Doc. No. 25), and also
filed the instant Motion to Amend (Mot.) that same day, along with a proposed “Amended
Complaint” (Mot., Ex. 1). Pursuant to Orders of Reference dated August 15, 2012 and August
16, 2012, Plaintiff’s Motion to Amend and Defendants’ motion to stay were referred to this
court. The Motion to Dismiss remains pending before the District Court.
LEGAL STANDARDS
A.

Leave to Amend

Pursuant to Federal Rule of Civil Procedure 15(a), “The [C]ourt should freely give leave
[to amend the pleadings] when justice so requires.” See also York v. Cherry Creek Sch. Dist. No.
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5, 232 F.R.D. 648, 649 (D. Colo. 2005); Aspen Orthopaedics & Sports Medicine, LLC v. Aspen
Valley Hosp. Dist., 353 F.3d 832, 842 (10th Cir. 2003). The Supreme Court has explained the
circumstances under which denial of leave to amend is appropriate.
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject
of relief, he ought to be afforded an opportunity to test his claim on the merits. In the
absence of any apparent or declared reason-such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.-the leave sought should, as the rules require,
be “freely given.” Of course, the grant or denial of an opportunity to amend is within the
discretion of the District Court, but outright refusal to grant the leave without any
justifying reason appearing for the denial is not an exercise of discretion; it is merely
abuse of that discretion and inconsistent with the spirit of the Federal Rules.
Foman v. Davis, 371 U.S. 178, 182 (1962); see also Triplett v. LeFlore County, Okl., 712 F.2d
444, 446 (10th Cir. 1983). The Federal Rules reject the approach “that pleading is a game of
skill in which one misstep by counsel may be decisive to the outcome and accept the principle
that the purpose of pleading is to facilitate a proper decision on the merits.” Conley v. Gibson,
355 U.S. 41, 48 (1957).
B.

Failure to State a Claim Upon Which Relief Can Be Granted

Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss
a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6)
(2007). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that
the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

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“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall v.
Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the
plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis.
First, the court identifies “the allegations in the complaint that are not entitled to the assumption
of truth,” that is, those allegations which are legal conclusion, bare assertions, or merely
conclusory. Id. at 678-80. Second, the Court considers the factual allegations “to determine if
they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss. Id. at 679.
Notwithstanding, the court need not accept conclusory allegations without supporting
factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir.
1998). “[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’ Nor does the complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citation omitted). “Where a
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complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of
the line between possibility and plausibility of ‘entitlement to relief.’” Id. (citation omitted).
ANALYSIS
In opposing Plaintiff’s Motion to Amend, Defendants argue only that Plaintiff’s proposed
amendments are futile pursuant to Fed. R. Civ. P. 12(b)(6). (See Resp. at 2.) While the court
may deny an amendment on futility grounds, “[p]rejudice to the opposing party is the single
most important factor in deciding whether to allow leave to amend.” Minter v. Prime Equipment
Co., 451 F.3d 1196, 1207 (10th Cir. 2006); see also 6 Wright, Miller & Kane, Federal Practice
and Procedure § 1487 (3d ed. 2010) (“Perhaps the most important factor . . . for denying leave to
amend is that the opposing party will be prejudiced if the movant is permitted to alter a
pleading.”). Indeed, courts in this district have refused to undertake an analysis of futility in the
absence of arguments concerning prejudice. See, e.g., Stender v. Cardwell, No. 07-cv-02503WJM-MJW, 2011 WL 1235414, at *3 (D. Colo. 2011). Thus, despite Defendants’ futility
argument, the court may properly focus on prejudicial impact instead.
At this stage in the case, Defendants have both a motion to dismiss and a motion to stay
pending. Granting Plaintiff’s Motion to Amend would moot Defendants’ current pending
Motion to Dismiss. See, e.g., Brunet v. The Quizno’s Franchize Co. LLC, 07-cv-01717-EWNKMT, 2008 WL 4380590, at *1 (D. Colo. 2008); Gilles v. United States, 906 F.2d 1386, 1389
(10th Cir. 1990) (“[A] pleading that has been amended under Rule 15[a] supercedes the pleading
it modifies . . . ”). Moreover, because Defendants’ motion to stay is premised upon the
arguments raised in the Motion to Dismiss, that motion might be mooted as well. See, e.g.,
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Hwang v. Kan. State Univ., 2012 WL 3292835, at *1 (D. Kan. Aug. 13, 2012) (mooting motion
to stay based on filing of amended complaint). However, the prejudice to re-filing both of those
motions is minimal. In fact, Defendants’ argument that the proposed amendments add little to
the original Complaint underscores that little effort would required to incorporate those new
arguments into the previous motions’ framework to create new motions. What is more, briefing
on the two motions has only recently been completed, and pursuant to the Scheduling Order in
this case, the deadline for dispositive motions is not until July 19, 2013. (See Doc. No. 19 at 5);
cf. Garland v. Board of Educ. of Denver Public School Dist. No. 1, No. 11-cv-00396-REB-KMT,
2012 WL 1018837, at *3 (D. Colo. Feb. 10, 2012) (denying amendment because amendments
added little, motion to dismiss had been pending for eight months, and deadline for dispositive
motions was near), adopted by Garland v. Board of Educ. of Denver Public School Dist. No. 1,
No. 11-cv-00396-REB-KMT, 2012 WL 1018723, at *1 (D. Colo. Mar. 26, 2012).
While bypassing a full analysis of the futility argument at this time, the court nonetheless
notes that such an argument further counsels in favor of allowing amendment. The Tenth Circuit
has stated that “[t]he futility question is functionally equivalent to the question of whether a
complaint may be dismissed for failure to state a claim.” Gohier v. Enright, 186 F.3d 1216,
1218 (10th Cir. 1999). While the pending Motion to Dismiss first argues that Plaintiff’s
Complaint should be dismissed for failure to state a claim, (see Doc. No. 11 at 4-12), Defendants
also argue that the court lacks subject-matter jurisdiction to hear the state law tort claims. (See
id. at 13-15), The proposed Amended Complaint deletes those very claims, thus negating the
need for judicial analysis of that part of the motion. To analyze the futility of Plaintiff’s one
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remaining claim is to undertake substantially the same analysis that the District Court must apply
pursuant to Fed. R. Civ. P. 12(b)(6). Under these circumstances, this court finds the most
suitable approach is to allow the amendment of the Complaint and reserve the Rule 12(b)(6)
analysis for the District Court. Therefore, it is
ORDERED that Plaintiff’s “Motion to Amend Complaint” (Doc. No. 24) is GRANTED.
The Clerk of Court is directed to file Plaintiff’s Amended Complaint (Doc. No. 24-1).
Dated this 2nd day of November, 2012.

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