Chang v. Vail Resorts, Inc. et al

Filing 56

ORDER by Magistrate Judge Nina Y. Wang on 12/1/15 re: 51 MOTION to Dismiss for Failure to State a Claim filed by Vail Resorts Inc., RockResorts International, LLC. It is ordered that: (1) Any response to the Motion to Dismiss Amended Complaint IS DUE no later than December 14, 2015; and(2) Any reply to the Motion to Dismiss Amended Complaint IS DUE no later thanfourteen (14) days after the filing of a Response by Plaintiff. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01731-REB-NYW
DR. LENA CHANG, an individual,
Plaintiff,
v.
VAIL RESORTS, INC., a Delaware corporation,
ROCKRESORTS INTERNATIONAL, LLC, a Delaware corporation,
GREAT HOUSE LIMITED, a Cayman Islands company, and
HALF MOON BAY LIMITED, a Jamaica company,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Magistrate Judge Nina Y. Wang
This matter is before the court on the Motion to Dismiss Plaintiff’s Amended Complaint
Pursuant to Fed. R. Civ. P. 12(b)(6) (“Motion to Dismiss Amended Complaint”) [#51], which
was filed by Defendants Vail Resorts, Inc. and RockResorts International, LLC on November 23,
2015. The Motion to Dismiss Amended Complaint was referred to the undersigned Magistrate
Judge pursuant to 28 U.S.C. § 636(b), the Order of Reference dated September 4, 2015 [#22],
and the memorandum dated November 23, 2015 [#52].
Plaintiff filed an Amended Complaint November 5, 2015, without first seeking leave of
court and without express consent of Defendants. [#48]. Rule 15(a)(2)(B) provides that a party
may amend a pleading once, as a matter of course within:
“(A) 21 days of serving it; or

(B) if the pleading is one to which a responsive pleading is required, 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.” Fed. R. Civ. P. 15(a)(1) (emphasis added).
The Amended Complaint does not appear to be timely filed as a matter of right under
Rule 15(a)(1)(B) because it was filed more than 21 days after the filing of the original Complaint
on August 11, 2015; and more than 21 days after Vail Resorts and RockResorts moved for
dismissal [#16, September 3, 2015], Defendant Half Moon Bay Limited moved for dismissal on
[#19, September 3, 2015], and Defendant Great House Limited moved for dismissal [#19,
September 10, 2015]. Fed. R. Civ. P. 15(a)(1)(B); Reiskin v. Regional Transp. District, No. 14cv-03111-REB-KLM, 2015 WL 738636, *1 (D. Colo. Feb. 19, 2015). In addition, it does not
appear, based on Vail Resorts and RockResorts’ Motion to Dismiss Amended Complaint, that
the Amended Complaint was filed pursuant to Rule 15(a)(2) with written consent of the opposing
parties. Fed. R. Civ. P. 15(a)(2). Nevertheless, none of the Defendants has objected to the filing
or has moved to strike the Amended Complaint. Therefore, in accordance with the direction of
Rule 1 that the court must implement the Federal Rules and this proceeding in a “just, speedy,
and inexpensive” manner, this court will accept and deem the Amended Complaint as filed on
November 5, 2015.
To avoid any ambiguity as to whether Plaintiff must respond to the currently pending
Motion to Dismiss Amended Complaint given the other motions pending in this matter, IT IS
ORDERED that:
(1)

Any response to the Motion to Dismiss Amended Complaint IS DUE no later

than December 14, 2015; and

2 

(2)

Any reply to the Motion to Dismiss Amended Complaint IS DUE no later than

fourteen (14) days after the filing of a Response by Plaintiff.

DATED: December 1, 2015

BY THE COURT:

s/ Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge

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