Opinion
Civil Case No. 10-cv-02862-REB-KLM.
February 10, 2011
ORDER
This matter is before the Court on Plaintiffs' Motion for Leave to Amend Complaint [Docket No. 24; Filed February 9, 2011] (the "Motion"). On January 7, 2011, the Court ordered that "on or before February 7, 2011, Plaintiffs shall either (1) file a response to Defendants' Motions to Dismiss [Docket Nos. 6 11], or (2) file a motion to amend their Complaint [Docket No. 1] that includes a proposed amended complaint as an attachment." Minute Order [Docket No. 17] at 2. Plaintiffs filed their Motion on February 9, 2011, two days after the expiration of the deadline set by the Court. The Motion is therefore untimely. However, the Court notes that Plaintiffs executed the Motion on February 5, 2011, before the deadline expired. Because Plaintiffs are proceeding pro se, and because they represent that Defendants do not oppose the Motion, see Motion [#24] at 2, the Court excuses the Motion's untimeliness.
After issuance of the Minute Order [#17] on January 7, 2011, Defendants Charles Greenacre, Montrose Probation Department, Delta Probation Department, Carrol Warner, and David Romero also filed a Motion to Dismiss [Docket No. 18].
IT IS HEREBY ORDERED that the Motion is GRANTED. Accordingly,
IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiffs' Amended Complaint [Docket No. 24-1] and its attached "Declaration of Truth" [Docket Nos. 24-2 — 24-4] for filing as of the date of this Minute Order.
IT IS FURTHER ORDERED that those Defendants who have already been served and entered their appearances in this case shall answer or otherwise respond to Plaintiffs' Amended Complaint [#24-1] on or before March 7, 2011.
IT IS FURTHER ORDERED that Plaintiffs must serve the summons and Amended Complaint [#24-1] on any Defendants who have not yet been served in this case on or before March 23, 2011. See Fed.R.Civ.P. 4(m) ("If a defendant is not served within 120 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time."). These Defendants must answer or otherwise respond to the Amended Complaint within 21 days after being served with the summons and Amended Complaint pursuant to Fed.R.Civ.P. 12(a)(1)(A)(I).
IT IS FURTHER ORDERED that Defendants' Motions to Dismiss [# 6, 11 18] are 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").
Dated: February 10, 2011