Thiess v. City of Wheat Ridge, Colorado et al

Filing 52

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 5/22/18 re 49 Motion for Leave to File Amended Complaint and Jury Demand. IT IS HEREBY RECOMMENDED that the Motion [#49] be GRANTED and that the Amended Complaint [49-1] be accepted for filing. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02261-PAB-KLM
DEREK A. THIESS,
Plaintiff,
v.
CITY OF WHEAT RIDGE, COLORADO, a body politic, by and through its City Council, the
Governing Body for the City of Wheat Ridge,
MONICA DURAN, Wheat Ridge City Council Member, in her official capacity,
JANICE HOPPE, Wheat Ridge City Council Member, in her official capacity,
KRISTI DAVIS, Wheat Ridge City Council Member, in her official capacity,
ZACKARY URBAN, Wheat Ridge City Council Member, in his individual and official
capacities,
TIM FITZGERALD, Wheat Ridge City Council Member, in his official capacity,
GEORGE POND, III, Wheat Ridge City Council Member, in his official capacity,
LARRY MATHEWS, Wheat Ridge City Council Member, in his official capacity,
GENEVIEVE WOODEN, Wheat Ridge City Council Member, in her official capacity,
KENNETH JOHNSTONE, Community Development Director, in his individual and official
capacities,
PATRICK GOFF, in his official capacity,
JOHN SCHUMACHER, former Chief Building Officer, in his individual and official
capacities,
DONNA SCHNEIDER, Assistant Prosecuting City Attorney, in her individual and official
capacities, and
JOYCE JAY, Mayor, in her official capacity,
Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Leave to File Amended
Complaint and Jury Demand [#49] (the “Motion”). Defendants filed a Joint Response to
Plaintiff’s Motion for Leave to File First Amended Complaint [#51], which indicates that

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Defendants do not object to the Motion [#49]. Pursuant to 28 U.S.C. § 636(b)(1)(A) and
D.C.COLO.LCivR 72.1C.3., the Motion [#49] has been referred to this Court for disposition
[#50]. For the reasons set forth below, the Court RECOMMENDS that the Motion [#49] be
GRANTED.
A scheduling order has not yet entered in this matter. Thus, the Motion [#49] is
timely. The unopposed amendment seeks to dismiss several parties and all designations
of parties in their official capacities. Additionally, Plaintiff seeks to dismiss various claims.
See Motion [#49] at 3-5. A magistrate judge may issue orders on nondispositive motions
only. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1461, 1462-63 (10th Cir. 1988).
Whether motions to amend are dispositive is an unsettled issue. Chavez v. Hatterman, No.
06-02525-WYD-MEH, 2009 WL 82496, at *1 (D. Colo. Jan. 13, 2009) (collecting cases).
When an order on a motion to amend removes or precludes a defense or claim from the
case, it may be dispositive. Cuenca v. Univ. of Kan., 205 F. Supp. 2d 1226, 1228 (D. Kan.
2002). Thus, although the Motion [#49] is unopposed, the Court assumes that the issue
is dispositive and requires a recommendation. Accordingly,
IT IS HEREBY RECOMMENDED that the Motion [#49] be GRANTED and that the
Amended Complaint [#49-1] be accepted for filing.
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,

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474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal
questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).

A party's objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73
F.3d 1057, 1060 (10th Cir. 1996).

Dated: May 22, 2018

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