Schudel et al v. Miller et al

Filing 68

ORDER. Motion to Amend 32 is GRANTED. The Clerk of the Court shall accept Plaintiff's Amended Complaint [#32-1] for filing as of the date of this Order. Defendants shall answer or otherwise respond to the Amended Complaint on or before March 4, 2013. Motions to Dismiss 17 , 19 are DENIED as moot. Motion to Sever 18 is DENIED without prejudice. By Magistrate Judge Kristen L. Mix on 2/15/2013. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01864-REB-KLM
JEFFREY SCHUDEL,
Plaintiff,
v.
LA SALLE POLICE OFFICER DAVID MILLER, in his individual and official capacities,
LA SALLE POLICE OFFICE VICTOR ERAZO, in his individual and official capacities, and
DALE PARRISH, ESQ.,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Motion to Dismiss [Docket No. 17; Filed
September 26, 2012], filed by Defendants David Miller (“Miller”) and Victor Erazo (“Erazo”)
(collectively, the “LaSalle Defendants”). On October 31, 2012, Plaintiff filed a Response
[#35]. On November 28, 2012, the LaSalle Defendants filed a Reply [#55].
This matter is further before the Court on the LaSalle Defendants’ Motion to Sever
[Docket No. 18; Filed September 26, 2012]. On October 31, 2012, Plaintiff filed a
Response [#36]. On November 7, 2012, Defendant Dale Parrish, Esq. (“Parrish”) filed a
Response [#41]. On November 14, 2012, the LaSalle Defendants filed a Reply [#45].
This matter is further before the Court on Defendant Parrish’s Motion to Dismiss
[Docket No. 19; Filed October 1, 2012]. On October 31, 2012, Plaintiff filed a Response
[#34]. On November 28, 2012, Defendant Parrish filed a Reply [#57].

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Finally, this matter is further before the Court on Plaintiff’s Motion to Amend
Complaint, and for Acceptance of Contemporaneously-Filed Amended Complaint
[Docket No. 32; Filed October 31, 2012] (the “Motion to Amend”). On November 28, 2012,
the LaSalle Defendants filed a Response [#56]. On December 12, 2012, Defendant Parrish
filed a Response [#61]. On December 14, 2012, Plaintiff filed a Reply [#62].
For the reasons set forth below, the Court GRANTS the Motion to Amend [#32],
DENIES as moot the Motions to Dismiss [#17, #19], and DENIES without prejudice the
Motion to Sever [#18].
The Court begins by addressing the Motion to Amend. This matter originated with
Plaintiff’s separation from his wife and the ensuing custody battle over their son and related
criminal proceedings against Plaintiff. In the proposed Amended Complaint [#32-1],
Plaintiff eliminates Timothy Stitt (“Stitt”), his former co-Plaintiff, and Stitt’s Section 1983
claim, as well as Plaintiff’s claims against the LaSalle Defendants in their official capacities.
Motion to Amend [#32] at 1. He also “clarifies the connection between the Defendants’
misconduct, and the elements of each civil claim.” Id. at 2. The proposed Amended
Complaint retains the following three claims: (1) unreasonable seizure under the Fourth
Amendment due to lack of probable cause, against the LaSalle Defendants; (2)
unreasonable search, seizure, and prosecution under the Fourth and Fourteenth
Amendments, i.e., malicious prosecution, against the LaSalle Defendants; and (3) abuse
of process, against Defendant Parrish. Proposed Am. Compl. [#32-1] ¶¶ 51-71.
As a preliminary matter, a Scheduling Conference has not yet been held, and thus
Plaintiff’s request to amend the Complaint is timely. The Court therefore considers any

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arguments raised by the parties related to whether justice would be served by amendment.
Specifically, the Court should grant leave to amend “freely . . . when justice so requires.”
Fed. R. Civ. P. 15(a)(2). Leave should generally be permitted unless the moving party
unduly delayed or failed to cure, the opposing party would be unduly prejudiced, or the
proposed amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962).
Here, Defendants argue that Plaintiff’s amendments are futile. Response [#56] at
1. An amendment is futile if it would not survive a motion to dismiss. Innovatier, Inc. v.
CardXX, Inc., No. 08-cv-00273-PAB-KLM, 2010 WL 148285, at *2 (D. Colo. Jan. 8, 2010)
(citing Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)). However, the Court
notes that this case is still in its earliest stages. Plaintiff has neither filed an amended
complaint as a matter of course nor previously sought leave to amend his Complaint. No
ruling has issued on any dispositive motion. A Scheduling Conference has not yet been
held and discovery has not commenced. At this stage of the proceedings, the Tenth Circuit
has expressed that, “[T]he preferred practice is to accord a [party] notice and an
opportunity to amend his [pleading] before acting upon a motion to dismiss for failure to
state a claim[.]”

McKinney v. Okla., 925 F.2d 363, 365 (10th Cir. 1991).

In the

circumstances at hand, therefore, the Court will not deny leave to amend on the basis of
futility. Thus, the Court permits Plaintiff leave to file an Amended Complaint. See, e.g.,
Starr v. City of Lakewood, No. 08-cv-01390-WYD-KLM, 2008 WL 5246158, at *1 (D. Colo.
Dec. 16, 2008).
Turning to the Motion to Sever [#18], the LaSalle Defendants ask the Court to sever
Plaintiff’s claim against Defendant Parrish from those against the LaSalle Defendants
because the Complaint [#1] does not sufficiently allege that the asserted claims arose from
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the same transaction, occurrence, or series of transactions and occurrences, or that there
are common questions of law or fact. Motion to Sever [318] at 5-6; see also Fed. R. Civ.
P. 20(a)(2). The same day that Plaintiff filed a Response [#36] to the Motion to Sever, he
also filed the Motion to Amend [#32]. In the Response, Plaintiff cites to the allegations he
made in the proposed Amended Complaint [#32-1] in support of his position that the case
should not be severed. See, e.g., Response [#36] at 2. In their Reply, the LaSalle
Defendants continue to argue in reference to the allegations presented in the original
Complaint, explicitly pointing out that the Amended Complaint had not yet been accepted
for filing. Reply [#45] at 3.
The question of whether to sever is highly dependent on the allegations pled by a
plaintiff. See, e.g., Stine v. Lappin, No. 08-cv-00164-WYD-KLM, 2008 WL 3992712, at *1-2
(D. Colo. Aug. 22, 2008). Here, the parties are basing their arguments on two differing sets
of allegations. Moreover, Plaintiff’s proposed Amended Complaint was offered in part to
address the arguments made by the LaSalle Defendants in the Motion to Sever. Thus,
because the Court is granting the Motion to Amend, the Court finds that the Motion to
Sever, which is explicitly directed to the original Complaint, should be denied without
prejudice at this time.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Amend [#32] is GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiff’s
Amended Complaint [#32-1] for filing as of the date of this Order.
IT IS FURTHER ORDERED that Defendants shall answer or otherwise respond to

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the Amended Complaint on or before March 4, 2013.
IT IS FURTHER ORDERED that the Motions to Dismiss [#17, #19] are DENIED as
moot. See, e.g., Strich v. United States, No. 09-cv-01913-REB-KLM, 2010 WL 14826, at
*1 (D. Colo. Jan. 11, 2010) (citations omitted) (“The filing of an amended complaint moots
a motion to dismiss directed at the complaint that is supplanted and superseded.”);
Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo. 2006) (noting that
defendants’ motions to dismiss are “technically moot because they are directed at a
pleading that is no longer operative”).
IT IS FURTHER ORDERED that the Motion to Sever [#18] is DENIED without
prejudice.
DATED: February 15, 2013 at Denver, Colorado.

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