XPAYS, Inc. v. Does 1-17

Filing 22

ORDER. Plaintiff's 20 Combined Motion for Leave to Amend the Complaint and Motion for Extension of Time to Serve is granted. Plaintiff may file an Amended Complaint consistent with this Order no later than 4/26/2013. Plaintiff shall serve the defendants named in its Amended Complaint no later than 5/17/2013. By Magistrate Judge Kathleen M. Tafoya on 4/9/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–02418–PAB–KMT

XPAYS, INC.,
Plaintiff,
v.
DOES 1-17,
Defendants.

ORDER

This matter is before the court on “Plaintiff’s Combined Motion for Leave to Amend the
Complaint and Motion for Extension of Time to Serve.” (Doc. No. 20, filed April 4, 2013.)
Plaintiff seeks leave to amend its Complaint to include the identities of Doe Defendants 3, 6, 14,
16, and 18. Plaintiff also seeks a twenty-one day extension of time to effectuate service on these
five defendants.
Pursuant to Federal Rule of Civil Procedure 15(a), “[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 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).
This case is in its relative infancy. Indeed, up to this point, none of the Doe Defendants
have been identified by name. As a consequence, a Scheduling Conference, at which the court
will set a deadline for amending the pleadings and joining parties, see Fed. R. Civ. P.
16(a)(3)(A), has not been held. Thus, there can be little, if any, argument that Plaintiff’s
proposed amendments are unduly delayed or prejudicial. Furthermore, the court cannot find that
Plaintiff’s proposed amendments are submitted in bad faith as Plaintiff’s efforts to uncover the
identities of Doe Defendants 3, 6, 14, 16, and 18 were permissibly taken pursuant to the court’s
Order granting in part Plaintiff’s Motion for Leave to Take Discovery Prior to the Rule 26(f)
Conference. (See Doc. No. 9, filed Dec. 4, 2012.)

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In addition, the court notes that the question of whether Plaintiff’s proposed amendments
are futile is substantially equivalent to the question of whether Plaintiff’s Amended Complaint
states a claim for relief. See Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999). As such,
the court finds it proper to defer consideration of whether Plaintiff states a claim for relief until if
and when Doe Defendants 3, 6, 14, 16, and 18 file a motion to dismiss under Fed. R. Civ. P.
12(b)(6). See General Steel Domestic Sales, LLC v. Steelwise, LLC, 07-cv-01145-DME-KMT,
2008 WL 2520423, at *4 (D. Colo. June 20, 2008).
The court notes that Plaintiff has not attached a proposed amended complaint to its
motion. Ordinarily, when filing a motion to amend, the plaintiff must attach a proposed
amended complaint to his motion. A plaintiff may not simply incorporate by reference his
original complaint when seeking leave to amend. Rather, the amended complaint must stand
alone and must contain all of the plaintiff’s claims and name all of the defendants. Nevertheless,
because Plaintiff’s proposed amendments are not substantive, but rather seek simply to identify
Doe Defendants 3, 6, 14, 16, and 18, the court will allow Plaintiff to file an amended complaint
within a reasonable time from the date of this Order. The amended complaint shall not feature
any amendments, substantive or otherwise, to the original Complaint other than identifying Doe
Defendants 3, 6, 14, 16, and 18 by name.
Finally, the court finds that, because Plaintiff only recently received Doe Defendants 3, 6,
14, 16, and 18 identifying information from their respective Internet Service Providers, Plaintiff
has shown good cause for an extension of the deadline for service on these defendants. See Fed.

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R. Civ. P. 4(m) (providing that the court must extend the time for service where the plaintiff
shows good cause for its failure to effect service within 120 days after the complaint was filed).
Therefore, for the foregoing reasons, it is
ORDERED that “Plaintiff’s Combined Motion for Leave to Amend the Complaint and
Motion for Extension of Time to Serve” (Doc. No. 20) is GRANTED. Plaintiff may file an
Amended Complaint consistent with this Order no later than April 26, 2013. It is further
ORDERED that Plaintiff shall serve the defendants named in its Amended Complaint no
later than May 17, 2013.
Dated this 9th day of April, 2013.

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