Hammond v. I.C.C.S. et al

Filing 48

MINUTE ORDER In the interest of justice, Plaintiffs renewed Motion to Amend Pleading filed August 5,2014; docket # 46 is granted. In light of this order, Defendants 12(b)(6) Motion to Dismiss filed June 6, 2014; docket # 33 is denied as moot with leave to re-file, if Defendants so choose, in response to the Third Amended Complaint, by Magistrate Judge Michael E. Hegarty on 8/5/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00242-WJM-MEH
ANDREA HAMMOND, J.D.,
Plaintiff,
v.
INTERVENTION,
ICCS (Intervention Community Correction Services), a subsidiary of Intervention,
GREG KILDOW, CEO of Intervention,
ALL THE BOARD OF DIRECTORS OF INTERVENTION, and
GERI ANN ECHLENBERG, Case Manager at ICCS,
Defendants.

MINUTE ORDER
______________________________________________________________________________
Entered by Michael E. Hegarty, United States Magistrate Judge, on August 5, 2014.
In the interest of justice, Plaintiff’s renewed Motion to Amend Pleading [filed August 5,
2014; docket #46] is granted, and the Third Amended Complaint (docket #44) is accepted as filed.
Plaintiff seeks to identify the proper Defendants in accordance with information (apparently)
received through Defendants’ motion to dismiss, and seeks to add a claim under the Fourteenth
Amendment based on the same facts as those set forth in the operative pleading.
First, regarding identifying the proper defendants, the Court finds particularly instructive the
Advisory Committee’s comments concerning the 2009 Amendments to Rule 15: “This provision will
force the pleader to consider carefully and promptly the wisdom of amending to meet the arguments
in the [Rule 12(b) ] motion. A responsive motion may avoid the need to decide the motion or reduce
the number of issues to be decided, and will expedite determination of issues that otherwise might
be raised seriatim.” Fed. R. Civ. P. 15 advisory committee’s note, 2009 Amendments. While the
note focuses on the rule’s allowance of amendment once as a matter of course, the committee
specifically emphasizes the importance of allowing amendment to correct deficiencies in the
pleading, which may be raised by a Rule 12(b) motion, and frame the issues to be decided.
With this in mind, the Court finds that it is not necessarily improper to amend a pleading
pursuant to Rule 15 to correct deficiencies in the pleading that are raised in a Rule 12(b) motion.
Thus, proposed amendments that seek to clarify or explain facts asserted in an original complaint,
or to add additional factual allegations concerning a claim’s required elements, are proper. The
Court perceives no bad faith on the part of the Plaintiff in seeking to correct defects raised in the
Defendants’ pending motion to dismiss. However, the Court reminds the Plaintiff of the Tenth

Circuit’s admonition against allowing pleadings to become “moving targets.” See Minter v. Prime
Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (“[c]ourts will properly deny a motion to amend
when it appears that the plaintiff is using Rule 15 to make the complaint ‘a moving target.’”)
(citation omitted). The Court will be mindful of such admonition when reviewing any further
amendments.
Moreover, a Scheduling Order was recently issued in this case (July 15, 2014); thus,
Plaintiff’s amendments are neither unduly delayed nor unduly prejudicial to the Defendants.
Accordingly, at this early stage of the litigation, the Court finds justice requires permitting
Plaintiff to amend the operative pleading. In light of this order, Defendants’ 12(b)(6) Motion to
Dismiss [filed June 6, 2014; docket #33] is denied as moot with leave to re-file, if Defendants so
choose, in response to the Third Amended Complaint. See Franklin v. Kansas Dep’t of Corr., 160
F. App’x 730, 734 (10th Cir. 2005) (“An amended complaint supersedes the original complaint and
renders the original complaint of no legal effect.”) (citing Miller v. Glanz, 948 F. 2d 1562, 1565
(10th Cir. 1991)); see also Robinson v. Dean Foods Co., No. 08-cv-01186-REB-CBS, 2009 WL
723329, at *4 (D. Colo. Mar. 18, 2009) (citation omitted) (“Generally, when an amended complaint
is filed, the previous complaint is wiped out and the operative complaint is the most recently filed
version.”).

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