Davidson v. Bank of America N.A. et al

Filing 78

ORDER; 63 Motion for Leave to Amend Complaint is GRANTED. The Clerk of Court is directed to file Plaintiffs Amended Complaint (Doc. No. 69) and the exhibits attached thereto. 48 Green Trees Motion to Dismiss Pursuant to F.R.C.P. Rule 12(b)(6) is DENIED as moot as it is now directed at an inoperative pleading, by Magistrate Judge Kathleen M. Tafoya on 7/24/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–01578–CMA–KMT
KENNETH R. DAVIDSON,
Plaintiff,
v.
BANK OF AMERICA N.A., and
GREEN TREE SERVICING LLC,
Defendants.

ORDER

This matter comes before the court on Plaintiff’s “Motion for Leave to Amend
Complaint” (Doc. No. 63, filed June 12, 2015), as well as Defendant Green Tree Servicing
LLC’s (“Green Tree”) “Motion to Dismiss Pursuant to F.R.C.P. Rule 12(b)(6)” (Doc. No. 48,
filed Mar. 12, 2015). Plaintiff seeks leave to file a proposed Amended Complaint (Doc. No. 69)
that clarifies the bases for his claims. Defendants did not respond to the Motion to Amend. For
the following reasons, Plaintiff’s Motion to Amend is GRANTED.
Pursuant to Fed. R. Civ. P. 15(a), “[t]he court should freely give leave [to amend the
pleadings] when justice so requires.” See also York v. Cherry Creek Sch. Dist. No. 5, 232 F.R.D.
648, 649 (D. Colo. 2005); Aspen Orthopaedics & Sports Medicine, LLC v. Aspen Valley Hosp.
Dist., 353 F.3d 832, 842 (10th Cir. 2003). The Supreme Court has explained the circumstances
under which denial of leave to amend is appropriate.

If the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on the
merits. In the absence of any apparent or declared reason-such as undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.-the
leave sought should, as the rules require, be “freely given.” Of course, the grant
or denial of an opportunity to amend is within the discretion of the District Court,
but outright refusal to grant the leave without any justifying reason appearing for
the denial is not an exercise of discretion; it is merely abuse of that discretion and
inconsistent with the spirit of the Federal Rules.
Foman v. Davis, 371 U.S. 178, 182 (1962); see also Triplett v. LeFlore County, Okl., 712 F.2d
444, 446 (10th Cir. 1983).
Defendants have not opposed Plaintiff’s Motion to Amend. As such, the court finds there
has been no showing of undue delay, bad faith or dilatory motive, undue prejudice, or futility.
Therefore, it is
ORDERED that Plaintiff’s “Motion for Leave to Amend Complaint” (Doc. No. 63) is
GRANTED. The Clerk of Court is directed to file Plaintiff’s Amended Complaint (Doc. No. 69)
and the exhibits attached thereto.
It is further
ORDERED that Green Tree’s “Motion to Dismiss Pursuant to F.R.C.P. Rule 12(b)(6)”
(Doc. No. 48) is DENIED as moot as it is now directed at an inoperative pleading.
Dated this 24th day of July, 2015.

2