Dawson v. Continental Insurance Company, The
ORDER denying as moot 15 Motion to Dismiss by Judge Philip A. Brimmer on 09/24/14.(jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-03511-PAB-KMT
THE CONTINENTAL INSURANCE COMPANY,
This matter is before the Court on the Motion to Dismiss [Docket No. 15] filed by
defendant Continental Insurance Company.
On December 30, 2013, plaintiff David Dawson filed the Complaint and Jury
Demand (the “original complaint”). Docket No. 1. The complaint asserts claims against
defendant for breach of contract, violation of Colo. Rev. Stat. § 10-3-1115 and § 10-31116, and violation of the covenant of good faith and fair dealing (collectively, the
“original claims”). Docket No. 1 at 6. On February 28, 2014, defendant filed the
present motion, arguing that plaintiff’s claims are preempted by the Longshore and
Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., and the Defense Base
Act Extension, 42 U.S.C. § 1651 et seq. Docket No. 15 at 1. After defendant filed its
motion to dismiss, plaintiff filed a motion for leave to amend the complaint (the “motion
to amend”), seeking to delete the original claims and replace them with “three new
Claims for Relief, none of which are preempted . . . .” Docket No. 21 at 2. The
magistrate judge has issued a Recommendation [Docket No. 31] that plaintiff’s motion
for leave to amend be denied, and plaintiff has filed timely objections [Docket No. 33].
Plaintiff filed a response to defendant’s motion to dismiss, arguing that, because his
motion to amend seeks to remove the original claims, defendant’s motion to dismiss
should be denied as moot. Docket No. 23 at 1. Defendant argues that, because
plaintiff has failed to respond to the arguments in its motion to dismiss, plaintiff has
implicitly conceded that the original claims are preempted and therefore that plaintiff’s
original claims should be dismissed with prejudice. Docket No. 24 at 2.
Given that plaintiff no longer wishes to pursue the three claims that are the
subject of defendant’s motion to dismiss, the Court finds that defendant’s motion to
dismiss is moot. Because plaintiff seeks to withdraw the original claims by amendment
pursuant to Fed. R. Civ. P. 15(a), the question of whether plaintiff’s withdrawal of the
original claims warrants dismissal of such claims with prejudice is best addressed in
resolving plaintiff’s motion for leave to amend. See Kent v. S. Star Cent. Gas Pipeline,
Inc., 2008 WL 4489791, *1-*2 (D. Kan. Oct. 3, 2008) (f inding that, where defendant
failed to show that it would suffer actual legal prejudice, motion to amend should not be
conditioned on dismissal of deleted claims with prejudice); Bibbs v. Newman, 997 F.
Supp. 1174, 1177 (S.D. Ind. 1998) (citing 6 Charles Alan Wright et al., Federal Practice
and Procedure § 1486 (3d ed. 2014) (recognizing court’s power under Rule 15 to
exercise discretion in imposing conditions on the allowance of a proposed amendment).
For the foregoing reasons, it is
ORDERED that defendant’s Motion to Dismiss [Docket No. 15] is DENIED as
DATED September 24, 2014.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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