Gonzales v. Physician Health Partners et al

Filing 56

MINUTE ORDER; 54 Motion to Amend is GRANTED. Plaintiffs Second Amended Complaint 54 is accepted for filing as of the date of this Minute Order. Motions to Dismiss 40 and 47 are DENIED as moot. IT IS HEREBY ORDERED that, if they so choose, Defendants may file a Response to the Motion for Preliminary Injunction 18 on or before November 10, 2015, by Magistrate Judge Kristen L. Mix on 10/20/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03084-RM-KLM
TIM GONZALES,
Plaintiff,
v.
PHYSICIAN HEALTH PARTNERS,
UNKNOWN LICENSED MEDICAL DOCTOR, of Physician Health Partners,
ANTHONY A. DECESARO, and
RENAE JORDAN,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion: Declaration in Support of
Preliminary Injunction [#18] (the “Motion for Preliminary Injunction”), on Defendant
Physician Health Partners’ Motion to Dismiss Plaintiff’s Prisoner Complaint (ECF No.
32) [#40], on Defendants Anthony A. Decesaro and Renae Jordan’s Motion to Dismiss
Pursuant to F.R.C.P. 12(b)(1) and 12(b)(6) [#47] (collectively, the “Motions to Dismiss”),
and on Plaintiff’s Motion for Leave to File an Amended Complaint [#54] (the “Motion to
Amend”).
The Court previously denied Plaintiff’s request to file an amended complaint because
he did not provide a document which could be construed as a complete proposed amended
complaint. Minute Order [#52]. In the Motion to Amend [#54], Plaintiff has corrected this
omission. Given that it is still early in this lawsuit and Plaintiff has only once corrected his
complaint, the Court finds that leave to amend should be permitted pursuant to Fed. R. Civ.
P. 15(a)(2). Accordingly,
IT IS HEREBY ORDERED that the Motion to Amend [#54] is GRANTED. Plaintiff’s
Second Amended Complaint [#54] is accepted for filing as of the date of this Minute Order.
IT IS FURTHER ORDERED that the Motions to Dismiss [#40, #47] are 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
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a motion to dismiss directed at the complaint that is supplanted and superseded.”); AJB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. April 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”).
Finally, Plaintiff’s Motion for Preliminary Injunction [#18] was filed prior to service on
any Defendant, and the time to file a Response passed prior to any Defendant’s entry of
appearance. Accordingly,
IT IS HEREBY ORDERED that, if they so choose, Defendants may file a Response
to the Motion for Preliminary Injunction [#18] on or before November 10, 2015.

Dated: October 20, 2015

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