Williams-Berrien v. Wilson et al

Filing 32

ORDER Allowing Amendment and Order to Show Cause; 27 Plaintiffs Opposed Motion for Leave to Amend the Complaint is GRANTED. The Clerk of Court is directed to accept the Amended Complaint [#27-2] for filing as of the date of this Minute Order. 17 Joint Motion to Dismiss the Complaint is DENIED as moot. IT IS FURTHER ORDERED that on or before November 13, 2015, Plaintiff shall show cause in writing and filed on the docket, as to why this case should not be dismissed for his failure to comply with the Local Rules and to prosecute this lawsuit. Failure to respond to this Order to Show Cause will result in a recommendation that Plaintiffs lawsuit be dismissed. IT IS FURTHER ORDERED that Defendants shall answer or otherwise respond tothe Amended Complaint [#27-2] fourteen (14) days after Plaintiff provides an updated address with the Court, if Plaintiff does so, by Magistrate Judge Kristen L. Mix on 10/13/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00948-REB-KLM
DERICK LAMAR WILLIAMS-BERRIEN,
Plaintiff,
v.
DAVID WILSON, Officer, individually and in his official capacity as a paid peace officer and
as an Employee and/or Agent of the Aurora Department and the City of Aurora,
GARY OLIVER, Officer, individually and in his official capacity as a paid peace officer and
as an Employee and/or Agent of the Aurora Department and the City of Aurora,
ROBERT PETREE, Officer, individually and in his official capacity as a paid peace officer
and as an Employee and/or Agent of the Aurora Department and the City of Aurora,
DAN OATES, Aurora Police Chief, individually and in his capacity as a paid peace officer
supervisor of Officers David Wilson, Gary Oliver, and Robert Petree and as an Employee
and/or Agent and/or Chief of the Aurora Police Department and the City of Aurora,
THE CITY OF AURORA, in its capacity as a governmental entity and as the
employer/principal of Officers David Wilson, Gary Oliver, and Robert Petree, Aurora Police
Chief Dan Oates, and the Aurora Police Department, and
AURORA POLICE DEPARTMENT, in its capacity as employer and/or supervisor of Officers
David Wilson, Gary Oliver, and Robert Petree, Aurora Police Chief Dan Oates, and an
Agent and/or independent contractor of the City of Aurora,
Defendants.
_____________________________________________________________________
ORDER ALLOWING AMENDMENT AND ORDER TO SHOW CAUSE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Joint Motion to Dismiss the
Complaint [#17]1 (the “Motion to Dismiss”) and on Plaintiff’s Opposed Motion for Leave
to Amend the Complaint [#27] (the “Motion to Amend”). Although the Motion to Amend

1

[#17] 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 filing system
(CM/ECF). This convention is used throughout this Order.

-1-

was allegedly opposed, see [#27] at 2, Defendants have not filed a timely Response in
opposition. D.C.COLO.LCivR 7.1(d). Because a Scheduling Conference has not yet been
held, the Motion to Amend is timely, and the Court finds that leave should be granted
pursuant to Fed. R. Civ. P. 15(a)(2). Accordingly,
IT IS HEREBY ORDERED that the Motion to Amend [#27] is GRANTED. The Clerk
of Court is directed to accept the Amended Complaint [#27-2] for filing as of the date of this
Minute Order.
IT IS FURTHER ORDERED that the Motion to Dismiss [#17] 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. 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”).
Normally, Defendants would be required to file an answer or other response to the
Amended Complaint within fourteen days of this Minute Order. See Fed. R. Civ. P.
15(a)(3). However, on September 9, 2015 (after the Motion to Amend [#27] was filed), the
Court permitted Plaintiff’s counsel to withdraw. Minute Order [#29]. At that time, the Court
noted that Plaintiff’s withdrawing counsel had indicated that he did not have a current

-2-

address for Plaintiff because Plaintiff was in the process of moving between prison facilities.
Id. The Court directed Plaintiff to update his address with the Court within one week of his
placement at a new facility. Id. However, to date, Plaintiff has not yet updated the Court
with his new address.
D.C.COLO.LAttyR 5(c) requires that a party provide notice of any change of address
(or other contact information) to the Court within five days of such change. Plaintiff is thus
under a continuing obligation to inform the Court of any changes in his contact information.
To date, the docket does not reflect the filing of a notice by Plaintiff regarding an address
change. Plaintiff has failed to update his present contact information with the Court and,
thus, the Court and Defendants have no means of contacting him in connection with this
litigation. Accordingly,
IT IS FURTHER ORDERED that on or before November 13, 2015, Plaintiff shall
show cause in writing and filed on the docket, as to why this case should not be dismissed
for his failure to comply with the Local Rules and to prosecute this lawsuit. See, e.g.,
Myers v. [No Named Defendant], No. 07-cv-02421-BNB, 2008 WL 608311 (D. Colo. Mar.
4, 2008) (failure to communicate properly with Court, including failure to inform Court of
change of address, resulted in dismissal without prejudice). Plaintiff may also comply with
this Order to Show Cause by filing a written Notice of Address Change providing his current
contact information on or before November 13, 2015. Failure to respond to this Order
to Show Cause will result in a recommendation that Plaintiff’s lawsuit be dismissed.
IT IS FURTHER ORDERED that Defendants shall answer or otherwise respond to
the Amended Complaint [#27-2] fourteen (14) days after Plaintiff provides an updated

-3-

address with the Court, if Plaintiff does so.

Dated: October 13, 2015

-4-