Opinion
Civil Action No. 08-cv-00751-ZLW-CBS.
June 11, 2008
ORDER
The matter before the Court is Defendants Logan Jeffrey Davis, Linda Daly, William Uphold, DDUE, LLC, and Grand Valley Estates Development LLC's Motion For Leave To File Amended Counterclaim And Cross-Claim. Defendants Logan Jeffrey Davis, Linda Daly, William Uphold, DDUE, LLC, and Grand Valley Estates Development LLC (the Grand Valley Defendants) apparently filed their counterclaim against Plaintiff and cross-claim against Defendant Loren Ennis (Doc. No. 7-43) in April 2008 in state court before this action was removed to this Court. On May 15, 2008, Plaintiff filed a motion to dismiss the counterclaim (Doc. No. 19). Pursuant to Fed.R.Civ.P. 15(a)(1)(A), a party may amend its pleading once without leave of court before being served with a responsive pleading. However, a motion to dismiss does not constitute a responsive pleading for purposes of Rule 15, and Plaintiff has not filed an answer to the counterclaim. Defendant Ennis also has not filed a responsive pleading with respect to the Grand Valley Defendants' cross-claim against him. Thus, the Grand Valley Defendants may file their amended counterclaim and cross-claim without leave of Court. Accordingly, it is
The copy of the pleading provided to this Court does not bear a date-stamp, but the certificate of service indicates that the pleading was served on April 14, 2008.
See Brever v. Rockwell Intern Corp., 40 F.3d 1119, 1131 (10th Cir. 1994).
ORDERED that Defendants Logan Jeffrey Davis, Linda Daly, William Uphold, DDUE, LLC, and Grand Valley Estates Development LLC's Motion For Leave To File Amended Counterclaim And Cross-Claim is denied as moot. The Grand Valley Defendants may file their amended counterclaim and cross-claim without leave of Court. It is
FURTHER ORDERED that because Logan Jeffrey Davis was named as a Defendant for the first time in the First Amended And Supplemental Complaint after Defendant Loren Ennis filed his third-party complaint against Davis, Ennis' claim against Davis, and Davis' responding counterclaim against Ennis, now are properly characterized as cross-claims. Accordingly, the caption shall be amended as set forth above to remove the designation of a third-party claim.