Tatum v. Moore et al

Filing 18

MEMORANDUM DECISION AND ORDER finding as moot 7 Motion to Dismiss ; granting 11 Motion for Leave to File Amended Complaint. Plaintiff shall file his amended complaint within 14 days of the entry of this order. finding as moot 14 Motion to Strike. Signed by Judge Ted Stewart on 5/5/2011. (las)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

RAY TATUM,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING MOTION TO
AMEND AND MOOTING MOTION
TO DISMISS AND MOTION TO
STRIKE

vs.

DAVID MOORE, individually and in his
capacity as a Provo City Police Officer;
and PROVO CITY CORP., a subdivision
of the State of Utah,

Case No. 2:10-CV-1126 TS

Defendants.

Plaintiff brings a § 1983 complaint alleging excessive force in connection with the
use of a taser during an arrest. Defendant Provo City corporation (the City) moves to
dismiss for the failure to state a claim. Plaintiff opposes the Motion to Dismiss. He relies,
in part, on several exhibits, including a Report and an Affidavit. Plaintiff also seeks leave
to amend his complaint to add factual support to his claim against the City. Among the
factual allegations he seeks to add are facts that he alleges he discovered after filing his
original Complaint.

1

The City opposes the Motion to Amend and also argues that, by submitting
additional materials, Plaintiff has converted the City’s Motion to Dismiss into one for
summary judgment. In support of its argument for dismissal, the City submits its own
affidavit. The City also argues that the facts relied upon by Plaintiff are immaterial and
irrelevant, are hearsay, and/or are inadmissible character evidence. The City moves to
strike the Affidavit and the Report attached to Plaintiff’s Opposition to the City’s Motion to
Dismiss. In reply, Plaintiff submits several exhibits in support of his position that his
proposed amended complaint’s factual allegations state a plausible claim because they are
based on such things as the transcripts of his preliminary hearing.
The Court will grant the Motion to Amend. At this stage, leave to amend should be
freely given “when justice so requires.”1

In support of its arguments that the proposed

amended complaint should not be filed because it also fails to state a claim, the City relies
on and attach matters outside of the pleadings. Similarly, in his Reply in support of his
Motion for Leave to Amend, Plaintiff submits several exhibits outside of the pleadings.
Unlike a Motion to Dismiss, there is no provision for converting a Motion for Leave
to Amend to a motion for summary judgment when matters outside the pleadings are
attached and not excluded by the Court. Because the City’s arguments and Plaintiff’s reply
brief rely on matters outside the pleadings, the Court cannot determine at this time if filing
the proposed amended complaint would be futile. Therefore, it will grant leave to file the
proposed amended complaint.

1

Fed. R. Civ. P. 15(a)(2).
2

Because there will be an amended complaint, the current Motion to Dismiss and the
Motion to Strike the Report and Affidavit submitted by Plaintiff in support of his original
claim are moot. It is therefore
ORDERED that Plaintiff’s Motion for Leave to File Amended Complaint (Docket No.
11) is GRANTED and Plaintiff shall file his amended complaint within 14 days of the entry
of this order. It is further
ORDERED that Defendant Provo City’s Motion to Dismiss (Docket No. 7) and
Motion to Strike (Docket No. 14) are MOOT.
DATED May 5, 2011.
BY THE COURT:

_____________________________________
TED STEWART
Chief United States District Judge

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