Faircloth v. Schwartz, et al

Filing 106

MINUTE ORDER granting 104 Plaintiff's Motion to Amend. Defendants' Motion to Dismiss [# 89 ] is DENIED as moot. By Magistrate Judge Kristen L. Mix on 9/20/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02764-REB-KLM
JAMES FAIRCLOTH,
Plaintiff,
v.
CELIA SCHWARTZ, Legal Assistant for BVCF, in her official and individual capacities, and
GERRY BLAND, Hearings Officer for BVMC/BVCF, in his official and individual capacities,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion to Dismiss [Third]
Amended Complaint (Doc. 79-1) [Docket No. 89; Filed August 19, 2013] (the “Motion to
Dismiss”), and on Plaintiff’s Petition for Leave to File Amended Complaint [Docket No.
104; Filed September 19, 2013] (the “Motion to Amend”). A Scheduling Conference has
not yet been held in this matter, and thus Plaintiff’s request to amend his complaint is
timely. The Court finds that, pursuant to Fed. R. Civ. P. 15(a)(2), Plaintiff should be given
leave to amend his complaint. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Amend [#104] is GRANTED.
The Clerk of the Court shall accept Plaintiff’s proposed Fourth Amended Complaint [#1041, #104-2, #104-3] as of the date of this Minute Order.1
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss [#89] is 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a motion to dismiss directed at the complaint that is supplanted and superseded.”); AJB
Props., Ltd. v. Zarda Bar-B-Q of Lenexa, LLC, No. 09-2021-JWL, 2009 WL 1140185, at *1

1

The Court notes that Plaintiff has now amended his complaint twice in response to
Defendants’ Motions to Dismiss [#71, #89]. Despite his pro se status, the Court will not be inclined
to view with favor any additional motions for leave to amend filed in response to a motion to
dismiss. Plaintiff has now had four opportunities to state his claims, and no further opportunities
will be afforded absent extraordinary circumstances.

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(D. Kan. April 28, 2009) (finding that amended complaint superseded original complaint and
“accordingly, defendant’s motion to dismiss the original complaint is denied as moot”);
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”).

Dated: September 20, 2013

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