Zunogama v. Raemisch et al

Filing 39

MINUTE ORDER; 36 Motion for Leave to Amend Complaint and 37 Motion to Show Ex[c]usable Neglect and Motion to Accept Complaint as Timely Filed are GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiffs Amended Complaint [#36-1] for filing as of the date of this Order. 22 Motion to Dismiss or Alternatively Motion for Summary Judgment is DENIED as moot, by Magistrate Judge Kristen L. Mix on 6/11/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03013-KLM
SALVADOR ZUNOGAMA,
Plaintiff,
v.
JOSEPH M. VIGIL, in his individual capacity,
CORRECTIONAL OFFICER MATEO, in his individual capacity, and
CORRECTIONAL OFFICER APODACA, in his individual capacity,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Leave to Amend
Complaint [#36]1 (the “Motion to Amend”) and Plaintiff’s Motion to Show Ex[c]usable
Neglect and Motion to Accept Complaint as Timely Filed [#37] (the “Extension Motion”).
Plaintiff proceeds in this matter pro se. As such, the Court must liberally construe his
filings. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).
On May 14, 2015, the Court explained what steps Plaintiff needed to take to amend
his claims and set June 5, 2015 as the deadline for Plaintiff to file a motion seeking leave
to amend his Complaint. Order [#35] at 4-5. In the Extension Motion, Plaintiff explains that
the Motion to Amend was filed a few days after that deadline because “Crowley County
Correctional Facility was placed on emergency facility lockdown on Monday[,] June 1,
2015.” Extension Motion [#37] at 2. Plaintiff further states that “Crowley Correctional
Facility was released from lockdown on Monday[,] June 8, 2015" and that he “immediately
accessed the law library and completed the mailing process . . . . “ Id. The Motion to
Amend and Extension Motion were received by the Court on June 10, 2015.
The Court finds that the explanation offered by Plaintiff constitutes good cause and
excusable neglect pursuant to Fed. R. Civ. P. 6(b)(1)(B). “[E]xcusable neglect” is an

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“[#18]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Minute Order.

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“elastic concept.” Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 392 (1993).
The determination of what is “excusable” is “at bottom an equitable one, taking account of
all relevant circumstances surrounding the party’s omission.” Id. at 395 (in context of
Federal Rule of Bankruptcy 9006(b)(1)). Factors to consider regarding excusable neglect
include, but are not limited to: (1) the danger of prejudice to opposing party, (2) the length
of delay and impact on proceedings, (3) the degree of control the moving party had over
the delay, and (4) whether the moving party acted in good faith. Id. In this case, the
motions were received by the Court within five days of the deadline and Plaintiff did not
have control over the lockdown or his access to the law library. In addition, the mailing of
the motions soon after the lockdown ended indicates that Plaintiff was acting in good faith.
Finally, there can be no prejudice to Defendants by a delay of a few days when they have
had notice of Plaintiff’s intent to amend his Complaint since April 13, 2015. On that day
Plaintiff filed a motion seeking leave to amend, but failed to follow the proper procedures
for amendment. See generally Motion to Amend Complaint [#28]. Accordingly, for the
reasons stated above,
IT IS HEREBY ORDERED that the Motion to Amend [#36] and the Extension Motion
[#37] are GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiff’s
Amended Complaint [#36-1] for filing as of the date of this Order.
IT IS FURTHER ORDERED that Defendants shall answer or otherwise respond to
the Amended Complaint in accordance with the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss or Alternatively
Motion for Summary Judgment [#22] is DENIED as moot. See, e.g., Strich v. United
States, No. 09-cv-01913-REB-KLM, 2010 WL 14826, at *1 (D. Colo. Jan. 11, 2010)
(citations omitted) (“The filing of an amended complaint moots a motion to dismiss directed
at the complaint that is supplanted and superseded.”); AJB Props., Ltd. v. Zarda Bar-B-Q
of Lenexa, LLC, No. 09-2021-JWL, 2009 WL 1140185, at *1 (D. Kan. Apr. 28, 2009)
(finding that amended complaint superseded original complaint and “accordingly,
defendant’s motion to dismiss the original complaint is denied as moot”); Gotfredson v.
Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo. 2006) (noting that defendants’ motions
to dismiss are “technically moot because they are directed at a pleading that is no longer
operative”).
Dated: June 11, 2015

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