Reiskin et al v. Regional Transportation District

Filing 54

MINUTE ORDER; #43 Plaintiff's Motion for Leave to File Second Amended Class Action Complaint is GRANTED and Plaintiffs Second Amended Class Action Complaint [#43-2] is accepted for filing as of the date of this Minute Order. Defendant shall respond to the Second Amended Class Action Complaint in accordance with Fed. R. Civ. P. 15(a)(3). #39 Defendant RTD's Motion for Partial Dismissal is DENIED as moot. #41 Defendant RTD's Motion to Stay Discovery is DENIED as moot, by Magistrate Judge Kristen L. Mix on 5/21/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03111-REB-KLM
JULIE REISKIN,
JON JAMIE LEWIS,
WILLIAM JOE BEAVER,
DOUGLAS HOWEY,
DIANA MILNE,
TINA MCDONALD,
JOSE TORRES-VEGA,
RANDY KILBOURN,
JOHN BABCOCK, and
COLORADO CROSS-DISABILITY COALITION, on behalf of themselves and others
similarly situated,
Plaintiffs,
v.
REGIONAL TRANSPORTATION DISTRICT,
Defendant.
______________________________________________________________________
MINUTE ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant RTD’s Motion for Partial Dismissal
[#39] (the “Motion to Dismiss”), Defendant RTD’s Motion to Stay Discovery [#41] (the
“Motion to Stay”), and Plaintiffs’ Motion for Leave to File Second Amended Class
Action Complaint [#43] (the “Motion to Amend”).
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Defendant does not oppose the Motion to Amend. RTD’s Response to Plaintiffs’
Motion for Leave to File Second Amended Class Action Complaint [#45] (the “Response”)
at 1-2 (“RTD does not oppose allowing Plaintiff to file the Second Amended Class Action
Complaint . . . , but it does oppose Plaintiffs’ purported position that the proposed
amendments adequately resolve the legal issues raised in” the Motion to Dismiss). As a

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

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result, Plaintiffs may file their Second Amended Class Action Complaint pursuant to Fed.
R. Civ. P. 15(a)(2) because they have “the opposing party’s written consent.” However,
because Plaintiffs were uncertain of Defendant’s position and, therefore, filed the Motion
to Amend as a motion, it requires a ruling from the Court.
The Court notes that in the Response Defendant asks that the Court not deem the
Motion to Dismiss moot even though there will be a new operative complaint in this case.
Response [#45] at 5-6. In addition, Defendant states that it “needs more depositions than
the seven allowed by the Scheduling Order to fully investigate Plaintiffs’ contentions . . . .”
Id. at 6. As a result, Defendant asks that if the Court grants the Motion to Amend, the Court
also amend the Scheduling Order “to allow RTD to depose each Plaintiff, in addition to
third-party witnesses and experts.” Id. at 8.
With regard to Defendant’s request that its Motion to Dismiss not be deemed moot
by the amendment of the operative complaint, generally when a complaint is amended, the
Court will deny any pending dispositive motion as moot because the dispositive motion is
directed at a complaint that is no longer operative. 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”). In certain
circumstances, the Court will either revive the dispositive motion after a party files a motion
seeking that relief or rule on the merits of the motion. In this case, because the Second
Amended Class Action Complaint adds four Plaintiffs, adds new factual allegations
regarding both existing and new Plaintiffs, and results in the addition of almost 100
paragraphs, it makes sense for the Court to deny the pending Motion to Dismiss [#39] as
moot so that Defendant can file a new motion to dismiss that cites to the correct
paragraphs in the operative complaint and so that Defendant has the opportunity to
address the new factual allegations if it wishes to do so.
To the extent the Response requests that the Scheduling Order be amended, that
request is not properly before the Court. Pursuant to D.C.COLO.LCivR 7.1(d), “[a] motion
shall not be included in a response or reply to the original motion.” If Defendant would like
to file a motion requesting that the Scheduling Order be amended, it must do so by filing
a motion requesting that relief. See Fed. R. Civ. P. 7(b)(1) (“A request for a court order
must be made by motion.”).
Finally, the Motion to Stay requests a stay of discovery “until such time as the Court
issues an order concerning” the Motion to Dismiss. Motion to Stay [#41] at 1. Therefore,
denial of the Motion to Dismiss as moot also moots the Motion to Stay. Accordingly,
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IT IS HEREBY ORDERED that, to the extent it requires a ruling, the Motion to
Amend [#43] is GRANTED and Plaintiffs’ Second Amended Class Action Complaint [#43-2]
is accepted for filing as of the date of this Minute Order.
IT IS FURTHER ORDERED that Defendant shall respond to the Second Amended
Class Action Complaint in accordance with Fed. R. Civ. P. 15(a)(3).
IT IS FURTHER ORDERED that the Motion to Dismiss [#39] is DENIED as moot.
IT IS FURTHER ORDERED that the Motion to Stay [#41] is DENIED as moot.
Dated: May 21, 2015

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