Gonzales v. Sizemore

Filing 26

ORDER. Plaintiff's 22 Motion for Leave to File Amended Complaint and Jury Demand is granted. Plaintiff's proposed Amended Complaint (Doc. # 22-1) is accepted for filing as of the date of this Order. The Clerk of the Court shall docket D oc. # 22-1 as the Amended Complaint. Defendants may stand on their pending Motion to Dismiss or may file a Motion to Dismiss directed to the Amended Complaint, on or before Friday, 9/6/2013. By Magistrate Judge Craig B. Shaffer on 8/12/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00946-PAB-CBS
JOAQUIN GONZALES,
Plaintiff,
v.
CITY AND COUNTY OF DENVER by and through COMMUNITY PLANNING AND
DEVELOPMENT, and
MICHAEL SIZEMORE, in his personal capacity,
Defendants.

ORDER

Magistrate Judge Craig B. Shaffer
This civil action comes before the court on “Plaintiff’s Motion for Leave to File
Amended Complaint and Jury Demand.” Pursuant to the Order Referring Case dated April
18, 2013 (Doc. # 4) and the memorandum dated July 23, 2012 (Doc. # 23), this matter was
referred to the Magistrate Judge. The court has reviewed the Motion, the Response (filed
August 8, 2013) (Doc. # 25), the pleadings, the entire case file, the proceedings held on June
18, 2013 (see Courtroom Minutes/Minute Order (Doc. # 16)), and the applicable law and is
sufficiently advised in the premises.
Proceeding pro se, Mr. Gonzales filed his initial Complaint on April 12, 2013, alleging
violation of the Equal Protection Clause of the Fourteenth Amended to the U.S. Constitution
by Defendants City and County of Denver and Sizemore and violation of Title VII, 42 U.S.C. §
2000e et seq., by the City and County of Denver. (See Doc. # 1). Defendants filed their
Motion to Dismiss on May 21, 2013, arguing that both of Mr. Gonzales’s claims are barred by
res judicata, that the § 1983 claim fails to state a claim upon which relief can be granted, and
that Sizemore has qualified immunity. (See Doc. # 13). Counsel for Mr. Gonzales entered
his appearance on July 3, 2013 and filed the instant Motion for Leave to File the Amended

Complaint on July 22, 2013. (See Docs. # 17, # 21). Mr. Gonzales’s proposed Amended
Complaint withdraws his § 1983 claim against the City and retains his Title VII claim against
the City and Sizemore. (See Doc. # 22-1). Defendants object to Mr. Gonzales’s Motion,
arguing that the proposed amendment is futile for failing to overcome the arguments raised in
the Motion to Dismiss. (See Doc. # 25). Defendants ask the court to hold Mr. Gonzales’s
Motion for Leave to File the Amended Complaint in abeyance until after a ruling on the
Motion to Dismiss.
Defendants’ arguments asserted in their Motion to Dismiss also apply to Mr.
Gonzalez’s proposed Amended Complaint. The District Court for the District of Colorado has
recognized that a futility argument under Rule 15(a) effectively places “the cart before the
horse.” General Steel Domestic Sales, LLC v. Steelwise, LLC, No. 07-cv-01145-DME-KMT,
2008 WL 2520423, at * 4 (D. Colo. 2008). “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.” Id. At the very least, proceeding under
Rule 12 would avoid one round of objections under either Fed. R. Civ. P. 72(a) or (b).1 Cf. In
re K-Dur Antitrust Litigation, 338 F. Supp.2d 517, 528 (D. N.J. 2004) (noting efficiencies of
disposing of a motion to amend along with a Rule 12 motion); Leach v. Northern Telecom,
Inc., 790 F. Supp. 572, 573-74 (E.D.N.C. 1992) (reasoning that a pragmatic approach to
plaintiff’s motion to amend assured the best use of judicial time and resources).
The court will permit the amended pleading and address Defendants’ arguments to the
Amended Complaint. Defendants may stand on their current Motion to Dismiss (Doc. # 13)
or may file a new Motion directed to the Amended Complaint.

1

An order denying a motion to amend may be dispositive if the order effectively
removes a claim or a party from the action. See Pedro v. Armour Swift-Eckrich, 118 F.
Supp.2d 1155, 1157 (D. Kan. 2000)).

Accordingly, IT IS ORDERED that:
1.

“Plaintiff’s Motion for Leave to File Amended Complaint and Jury Demand’ (filed

July 22, 2013) (Doc. # 22) is GRANTED.
2.

Plaintiff’s proposed Amended Complaint (Doc. # 22-1) is accepted for filing as

of the date of this Order. The Clerk of the Court shall docket Doc. # 22-1 as the Amended
Complaint.
3.

Defendants may stand on their pending Motion to Dismiss or may file a Motion

to Dismiss directed to the Amended Complaint, on or before Friday, September 6, 2013.
DATED at Denver, Colorado, this 12th day of August, 2013.
BY THE COURT:

s/Craig B. Shaffer
United States Magistrate Judge