Gabriel v. Peak Vista Health Center, et al

Filing 20

ORDER; Plaintiff's Amended Complaint 18 is STRICKEN and the 19 United States' Motion to Dismiss as Parties Marsha Alger and Peak Vista Health Center for Plaintiffs Claim under the Federal Tort Claims Act is DENIED as moot, by Magistrate Judge Kathleen M. Tafoya on 4/10/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–03022–KMT
VINCENT GABRIEL,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

ORDER

This matter is before the court on Plaintiff’s Amended Complaint, filed May 31, 2015
(Doc. No. 18), as well as the “United States’ Motion to Dismiss as Parties Marsha Alger and
Peak Vista Health Center for Plaintiff’s Claim under the Federal Tort Claims Act” (Doc. No. 19,
filed Apr. 1, 2015). For the following reasons, Plaintiff’s Amended Complaint is STRICKEN
and the Government’s Motion to Dismiss is DENIED as moot.
Federal Rule of Civil Procedure 15(a) provides that “if a pleading is one to which a
responsive pleading is required,” a party may amend its pleading once as a matter of course
within “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.” In all other cases, a party may amend its pleading
only with the opposing party’s written consent or with the court’s leave. Fed. R. Civ. P.
15(a)(2).

Here, the United States filed a Motion to Dismiss for Lack of Subject-Matter Jurisdiction
on March 5, 2015. (Doc. No. 15.) Even assuming that Plaintiff was not actually served with the
Government’s Motion to Dismiss for Lack of Subject-Matter Jurisdiction until March 9, 2015,
see Fed. R. Civ. P. 6(a), (d), 1 Plaintiff was permitted to amend his Complaint as a matter of
course under Rule 15(a)(1) only through March 30, 2015. Although Plaintiff’s Amended
Complaint is dated March 23, 2015, he is not a prisoner, and therefore whether Plaintiff’s
amendment is timely under Rule 15(a)(1) is governed by the date of filing, not the date of
mailing. Compare Price v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005) (citing Houston v.
Lack, 487 U.S. 266, 276 (1988)) (“The prisoner mailbox rule . . . holds that a pro se prisoner’s
[filing] will be considered timely if given to prison officials for mailing prior to the filing
deadline, regardless of when the court itself receives the documents.”) with Pickering-George v.
Cuomo, No. 10-cv-0771(GTS/DEP), 2011 WL 1832560, at 4 n.7 (N.D.N.Y. May 12, 2011)
Cowden v. U.S. Dep’t of Labor, No. Civ.A.04CV53JMH, 2005 WL 1691036, at *8 n.10 (E.D.
Ky. July 18, 2005) (Houston v. Lack’s mailbox rule does not apply to non-prisoner litigants).
Accordingly, because Plaintiff’s Amended Complaint was filed after the March 30, 2015
deadline for amending his pleading as a matter of course, the Amended Complaint is properly
stricken. The court notes that Plaintiff may still seek to amend his complaint under Rule 15(a)(2)
by either filing a motion for leave to amend his complaint or obtaining Defendant’s written
consent.
1

Rule 6(a) provides that when a time period specified in the rules of civil procedure is stated in
days, the court must include every day, including intermediate Saturdays, Sundays, and legal
holidays, but if the last day of the period falls on a Saturday, Sunday, or legal holiday, the period
continues to run until the next weekday or non-holiday. Fed. R. Civ. P. 6(d). Rule 6(d) provides
that when a party may or must act within a specified time period after service, three days are
added time period specified in Rule 6(a). Id. at 6(a).
2

Therefore, it is
ORDERED that Plaintiff’s Amended Complaint (Doc. No. 18) is STRICKEN and the
“United States’ Motion to Dismiss as Parties Marsha Alger and Peak Vista Health Center for
Plaintiff’s Claim under the Federal Tort Claims Act” (Doc. No. 19) is DENIED as moot.
Dated this 10th day of April, 2015.

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