Carbajal et al v. Morrissey et al

Filing 84

MINUTE ORDER granting 81 Motion to Amend. Plaintiffs' Second Amended Complaint [# 81 -1] is accepted for filing as of the date of this Minute Order. Defendants who have already been served and entered their appearances in this case shall answe r or otherwise respond to Plaintiffs' Second Amended Complaint [#81-1] on or before 5/7/2013. Plaintiffs shall serve any unserved Defendant(whether previously identified in the Amended Complaint or newly identified in the Second Amended Complain t) on or before 6/17/2013. The Motions [# 34 , # 41 , # 43 , # 50 , # 60 ], all of which are directed at or related to a pleading that is no longer operative, are DENIED as moot. The Motion for Leave [# 40 ] is GRANTED in part and DENIED AS MOOT in part. The Motion for Extension [# 45 ] is GRANTED in part, DENIED as moot in part, and DENIED without prejudice in part. By Magistrate Judge Kristen L. Mix on 4/17/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03231-REB-KLM
VICTORIA CARBAJAL,
DEAN CARBAJAL, and
LUIS LEAL,
Plaintiffs,
v.
MITCHELL R. MORISSEY, District Attorney for the Second Judicial District, in his official
and individual capacities,
JEFFREY WATTS, Investigator for the Second Judicial District, in his official and individual
capacities,
ROBERT FULLER, Investigator for the Second Judicial District, in his official and individual
capacities,
REBEKAH MELNICK, Deputy District Attorney for the Second Judicial District, in her official
and individual capacities,
LARA MULLIN, Deputy District Attorney for the Second Judicial District, in her official and
individual capacities,
MILES FLESCHE, District Administrator and Clerk for the Second Judicial District, in his
official and individual capacities,
KEITH CRISWELL, Deputy Court Clerk for the Second Judicial District, in his official and
individual capacities,
ANNE MANSFIELD, District Court Judge for the Second Judicial District, in her official and
individual capacities,
KEEFER, Deputy Sheriff for the Denver Detention Center, in his official and individual
capacities,
MICHAEL SIMPSON, Detective for the Denver Police Department, in his official and
individual capacities,
JAY LOPEZ, Detective for the Denver Police Department, in his official and individual
capacities,
RICHARD HAGAN, Detective for the Denver Police Department, in his official and
individual capacities,
CAROL DWYER, a co-conspirator with the Second Judicial District Attorney’s Office, in her
official and individual capacities,
WELLS FARGO, a corporation,
BRIAN BERARDINI, a co-conspirator with the Second Judicial District Attorney’s Office,
in his individual capacity, and
JOHN SUTHERS, Attorney General for the State of Colorado, in his official and individual
capacities,
Defendants.
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_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant Brian Berardini’s Motion to Dismiss
Amended Complaint [Docket No. 34; Filed February 25, 2013]; on Defendant City and
County of Denver’s Motion for Leave to File Appearance and Motion to Dismiss,
Instanter [Docket No. 40; Filed March 1, 2013] (the “Motion for Leave”); on Defendants
John Miles Flesche, Adrian Keith Criswell, and Anne Mansfield’s Motion to Dismiss
Amended Complaint [Docket No. 41; Filed March 4, 2013]; on Defendants Mitchell R.
Morrissey, Jeffrey Watts, Robert Fuller, Rebekah Melnick, and Lara Mullin’s Motion to
Dismiss Amended Complaint [Docket No. 43; Filed March 6, 2013]; on Plaintiff’s Motion
for Extension of Time to Effect Service and Motion for an Order Allowing Discovery
to Properly Name the Defendants and Serve [Docket No. 45; Filed March 8, 2013] (the
“Motion for Extension”); on the Defendant City and County of Denver’s Motion to Strike
Defendants Keefer, Simpson, Lopez, and Hagan in Their Official Capacities [Docket
No. 50; Filed March 12, 2013]; on Defendants Wells Fargo Bank, N.A. and Carol Dwyer’s
Motion to Dismiss Plaintiffs’ Amended Complaint Pursuant to Rule 12(b)(6) [Docket
No. 60; Filed March 19, 2013]; and on Plaintiffs’ opposed Motion to File Amended
Complaint Pursuant to the Court’s Order [Doc #65] [Docket No. 81; Filed April 16, 2013]
(the “Motion to Amend”).1
In the Motion to Amend [#81], Plaintiffs seek leave of the Court to file a Second
Amended Complaint [#81-1]. In support of their request, Plaintiffs state that they have
added or corrected Defendants’ names based on newly-discovered information. They have
also added factual detail necessary to establish their claims, condensed the former
complaint to 25 pages, and redrafted each claim to remove unnecessary facts. A
Scheduling Conference has not yet been held in this matter. Pursuant to Fed. R. Civ. P.
15(a)(2), which states that the Court should freely give leave to amend when justice so
requires,
IT IS HEREBY ORDERED that the Motion to Amend [#81] is GRANTED.
Accordingly,
IT IS FURTHER ORDERED that Plaintiffs’ Second Amended Complaint [#81-1] is
accepted for filing as of the date of this Minute Order.
IT IS FURTHER ORDERED that those Defendants who have already been served
and entered their appearances in this case shall answer or otherwise respond to Plaintiffs’

1

A judicial officer may rule on a motion at any time after it is filed, without waiting for a
response or a reply. D.C.COLO.LCivR 7.1C.

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Second Amended Complaint [#81-1] on or before May 7, 2013.
IT IS FURTHER ORDERED that Plaintiffs shall serve any unserved Defendant
(whether previously identified in the Amended Complaint or newly identified in the Second
Amended Complaint) on or before June 17, 2013.
IT IS FURTHER ORDERED that the Motions [#34, #41, #43, #50, #60], all of which
are directed at or related to a pleading that is no longer operative, 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.”); AJB
Props., Ltd. v. Zarda Bar-B-Q of Lenexa, LLC, No. 09-2021-JWL, 2009 WL 1140185, at *1
(D. Kan. Apr. 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”).
IT IS FURTHER ORDERED that the Motion for Leave [#40] is GRANTED in part
and DENIED AS MOOT in part. The Motion is granted to the extent the City and County
of Denver seeks leave to appear in this case on behalf of several Defendants named in
their official capacities. The Motion is denied as moot to the extent it seeks leave to file
a Motion to Dismiss directed at the First Amended Complaint, a pleading that is no longer
operative.
IT IS FURTHER ORDERED that the Motion for Extension [#45] is GRANTED in
part, DENIED as moot in part, and DENIED without prejudice in part, as follows:
1.

The Motion for Extension is granted in part to the extent that Plaintiffs
request an extension of time to serve certain Defendants previously identified
in the Amended Complaint. As stated above, Plaintiffs shall serve any
unserved Defendant on or before June 17, 2013.

2.

The Motion for Extension is denied as moot to the extent that Plaintiffs
request the full name of Defendant Deputy Sheriff Keefer, as Plaintiffs now
appear to have discovered that his first name is Andrew. See Motion to
Amend [#81] at 1.

3.

The Motion for Extension is denied without prejudice to the extent that
Plaintiffs request early discovery regarding the addresses of Defendants
Carol Dwyer, Andrew Keefer, Jay Lopez, Michael Simpson, and Richard
Hagan so that they may be properly served in this lawsuit. Plaintiffs have
provided a general overview of their attempts to serve these Defendants.
However, Plaintiffs must provide the Court with a detailed factual account of
the efforts of both the incarcerated Plaintiff and the unincarcerated Plaintiffs
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to obtain service on these five Defendants before the Court will consider
allowing early discovery regarding their whereabouts.

Dated: April 17, 2013

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