Clayton v. Samsonite Employees Retirement Income Plan, The et al

Filing 26

ORDER re: 19 Stipulation for Extension of Time and 20 Notice of Filing Amended Pleading, by Magistrate Judge Boyd N. Boland on 6/16/2014. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 14-cv-00932-BNB
D. MICHAEL CLAYTON,
Plaintiff,
v.
THE SAMSONITE EMPLOYEES RETIREMENT INCOME PLAN, f/k/a The Samsonite
Retirement Income Plan, and
SAMSONITE LLC, as Plan Administrator of The Samsonite Employees Retirement Income
Plan,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on:
(1) The parties’ Stipulation to File Second Amended Complaint and for Extension
of Time to Respond [Doc. #19, filed 06/02/2014]; and
(2) The plaintiff’s Notice of Filing Second Amended Complaint [Doc. #20, filed
06/03/2014].
The plaintiff filed his initial Complaint on April 1, 2014 [Doc. #1]. Because the plaintiff
is proceeding pro se, he was ordered to file an amended complaint on the court’s form. He filed
the Amended Complaint on April 4, 2014 [Doc. #6]. The defendants filed waivers of service
indicating that the plaintiff served requests for waivers on April 2, 2014 [Docs. ## 12 and 13].
The parties state that they stipulate to the following: (1) the plaintiff will file a second
amended complaint on or before June 5, 2014; (2) “any and all exhibits to the Amended
Complaint may be incorporated by reference in Plaintiff’s Second Amended Complaint; (3)

“there is no need for Defendants to answer the Amended Complaint”; and (4) “Defendants shall
answer or otherwise respond to Plaintiff’s Second Amended Complaint within seven days of the
date the Second Amended Complaint is filed.” They request that the court “enter an order (1)
granting Plaintiff leave to file a Second Amended Complaint in accordance with
D.C.COLO.LCivR 15.1(a) on or before June 5, 2014, which Defendants must answer or
otherwise respond to within seven days of the date the Second Amended Complaint is filed, and
(2) ordering that Defendants need not answer the Amended Complaint.”
Rule 15, Fed. R. Civ. P. provides that “[a] party may amend its pleading once as a matter
of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive
pleading is required, 21 days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). “In all other
cases, a party may amend its pleading only with the opposing party’s written consent or the
court’s leave.” Fed. R. Civ. P. 15(a)(2).
The plaintiff does not meet the requirements of Rule 15(a)(1). However, because he has
written consent to amend from the defendants, he may file a second amended complaint under
Rule 15(a)(2). The defendants’ response to the amended pleading “must be made within the
time remaining to respond to the original pleading or within 14 days after service of the amended
pleading, whichever is later.” Fed. R. Civ. P. 15(a)(3). The defendants’ stipulation to respond
within seven days complies with Rule 15(a)(3).
The parties may not stipulate that the plaintiff can incorporate by reference exhibits into
his second amended complaint, nor can they stipulate that a response to an extant complaint is
unnecessary. Those issues must be presented to the court by motion. The parties’ failure to

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properly present the issues to the court notwithstanding,
IT IS ORDERED:
(1) The Clerk of the Court is directed to accept the Second Amended Complaint for
filing; and
(2) All future papers filed with the court shall be in proper form and shall comply with
the Federal Rules of Civil Procedure and the local rules of this court.
Dated June 16, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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