McIntosh v. MJM Partners, LLC et al

Filing 39

MINUTE ORDER granting 34 Motion for Leave of the Court to Amend the Complaint. Plaintiff shall separately file her Amended Complaint (Docket No. 34 -1). Order denying as moot 19 Motion to Dismiss Complaint. By Magistrate Judge Michael J. Watanabe on 2/19/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02579-MSK-MJW
KRISTIN MCINTOSH,
Plaintiff,
v.
MJM PARTNERS, LLC, a Colorado limited liability company,
d/b/a VITA RESTAURANT, and
RESURRECTION PROPERTIES, LLC, a Colorado limited liability company,
Defendants.
MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED Plaintiff’s Motion for Leave of the Court to Amend the
Complaint (Docket No. 34) is GRANTED for the following reasons. 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)). “The liberal granting of motions for leave to amend
reflects the basic policy that pleadings should enable a claim to be heard on its merits.”
Carr v. Hanley, 2009 WL 4693870, *1 (D. Colo. Dec. 3, 2009) (quoting Calderon v.
Kansas Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999)).
In their Response (Docket No. 36), defendant MJM Partners, LLC argues that
plaintiff’s proposed amendments are futile because plaintiff’s ADA claim is still defective.
Judge Ebel has previously addressed the futility issue in the case of General Steel
Domestic Sales, LLC v. Steel Wise, LLC, 2008 WL 2520423, at *4 (D. Colo. June 20,
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 complaint is in place.” For the
same reason expressed by Judge Ebel in General Steel, this court finds that plaintiff’s
motion to amend should be granted.
It is FURTHER ORDERED that plaintiff shall separately file her Amended

Complaint (Docket No. 34-1).
It is FURTHER ORDERED that Defendant MJM Partners, LLC’s Motion to
Dismiss Complaint (Docket No. 19) is DENIED AS MOOT as the motion is now directed
to an inoperative, superceded pleading. See, e.g., Gilles v. United States, 906 F.2d
1386, 1389 (10th Cir. 1990) (stating that “a pleading that has been amended under Rule
15(a) supersedes the pleading it modifies”) (internal quotation marks omitted).
Date: February 19, 2013