Toy v. American Family Mutual Insurance Company

Filing 35

MINUTE ORDER granting 15 Plaintiff's Motion to Amend Complaint. The Plaintiff is a granted leave to file his Amended Complaint within ten (10) days from the date of this minute order which adds a claim for bad faith breach of an insurance contract and a prayer for exemplary damages. By Magistrate Judge Michael J. Watanabe on 10/29/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01683-PAB-MJW
GREGORY TOY,
Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
Defendant.
MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that Plaintiff’s Motion to Amend Complaint (docket no.15)
is GRANTED finding good cause shown and for these further reasons stated below.
The Plaintiff is a granted leave to file his Amended Complaint within ten (10) days from
the date of this minute order which adds a claim for bad faith breach of an insurance
contract and a prayer for exemplary damages.
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 FDIC’s futility argument, Judge Ebel has previously addressed that
issue in the case of General Steel Domestic Sales, LLC v. Steel Wise, 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 [pleading] is in place.”
Date: October 29, 2012