Moran v. Home Depot U.S.A., Inc. et al

Filing 18

ORDER granting 15 Defendant Home Depot U.S.A., Inc.'s Unopposed Motion for Leave to File Amended Answer to Plaintff's [sic] Complaint. The Clerk of Court is directed to file Home Depot's Amended Answer (Doc. No. 15-1). By Magistrate Judge Kathleen M. Tafoya on 10/23/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–01518–PAB–KMT

MARY MORAN,
Plaintiff,
v.
HOME DEPOT U.S.A, INC., and
JOHN DOE,
Defendants.

ORDER

This matter is before the court on “Defendant Home Depot U.S.A., Inc.’s Unopposed
Motion for Leave to File Amended Answer to Plaintff’s [sic] Complaint.” (Doc. No. 15, filed
Oct. 9, 2012.) Defendant Home Depot’s proposed Amended Answer seeks to add two additional
affirmative defenses. For the following reasons, Home Depot’s Motion is GRANTED.
Pursuant to Federal Rule of Civil Procedure 15(a)(2), “[t]he court should freely give
leave [to amend the pleadings] when justice so requires.” See also York v. Cherry Creek Sch.
Dist. No. 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 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 deadline for amending pleadings was set in the Scheduling Order for October 8,
2012. (Doc. No. 11, filed Sept. 6, 2012.) Because that date was a holiday, the court agrees with
Home Depot that the deadline is properly considered to be October 9, 2012. As a consequence,
Home Depot’s Motion is timely. Otherwise, Plaintiff does not oppose Home Depot’s Motion.1
Thus, there is no argument, and the court does not otherwise find, undue delay, bad faith or
dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue

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In light of Plaintiff’s non-opposition to Home Depot’s Motion, the court directed
Plaintiff to file a response to Home Depot’s Motion, on or before October 17, 2012, advising
whether she consented to Home Depot’s proposed Amended Answer consistent with Fed. R.
Civ. P. 15(a)(2). (Minute Order, Doc. No. 17, filed Oct. 11, 2012.) However, no response was
filed by October 17, 2012, or any time after that date. Plaintiff is admonished for failing to
comply with a court-ordered directive.
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prejudice to the opposing party by virtue of allowance of the amendment, or futility of
amendment.
Therefore, it is
ORDERED that “Defendant Home Depot U.S.A., Inc.’s Unopposed Motion for Leave to
File Amended Answer to Plaintff’s [sic] Complaint” (Doc. No. 15) is GRANTED. The Clerk of
Court is directed to file Home Depot’s Amended Answer (Doc. No. 15-1).
Dated this 23rd day of October, 2012.

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