Opinion
Matthew Scott Martin, Gordon & Melun, LLC, Denver, CO, for Plaintiff.
Ann Baumgartner Smith, Gordon Lamar Vaughan, Vaughan & DeMuro, Colorado Springs, CO, Debra K. Sutton, Katie Berit Johnson, Sutton Booker, P.C., Denver, CO, for Defendants.
ORDER
Scott T. Varholak, Magistrate Judge
This matter is before the Court on Plaintiff’s Motion to Amend Second Amended Complaint [# 47] (the " Motion" ). The Motion was referred to this Court. [# 50] This Court has carefully considered the Motion, related briefing, the case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the instant Motion. For the following reasons, the Court GRANTS the Motion.
I. BACKGROUND
Plaintiff Brian Patrick Maloney initiated this action on September 4, 2017, bringing claims pursuant to 42 U.S.C. § 1983, stemming from Plaintiff’s arrest outside a Loaf ‘n Jug store in Pueblo, Colorado on September 5, 2015. [# 1] Plaintiff filed a First Amended Complaint on September 5, 2017, and a Second Amended Complaint on September 7, 2015. [## 4, 9] On November 13, 2017, Defendants City of Pueblo and Vincent Petkosek (collectively, the " City Defendants" ) filed a Motion to Dismiss the Second Amended Complaint. [# 26] That same day, Defendants Steven Maes, Mini Mart, Inc., Dillon Companies, and Kroeger Company (collectively the " Dillon Defendants" ) filed their Motion to Dismiss the Second Amended Complaint. [# 29] The Court struck both Motions to Dismiss for failing to contain a conferral statement, as required by WJM Revised Practice Standard III.D.1. [## 34, 35] The purpose of the conferral prior to the filing of a Rule 12(b)(6) motion is to determine whether any alleged deficiencies can be cured by amendment. [Id. ]
On December 8, 2017, Plaintiff filed the instant Motion. [# 47] The Motion seeks leave to file a Third Amended Complaint. [Id. at 1] The Third Amended Complaint attempts to cure the alleged deficiencies raised by the Motions to Dismiss. [Id. at 3-7] On December 22, 2017, the Dillon Defendants filed a Response indicating that, while they do not believe the Third Amended Complaint cures the alleged deficiencies, they do not oppose the Motion. [# 56 at 1-2] On December 27, 2017, the City Defendants filed a Response indicating that, while they do not oppose Plaintiff filing a Third Amended Complaint in an attempt to cure any deficiencies from the Second Amended Complaint, the currently proposed Third Amended Complaint " is impossibly long-winded with legal arguments, case citations, and immaterial facts[— ]including hearsay." [# 58 at 4] City Defendants therefore " request that this Court reject Plaintiff’s Motion ... and ... reject the proposed Third Amended Complaint with direction to Plaintiff to have one last opportunity to file an Amended Complaint that comports with Fed.R.Civ.P. 8 and 10." [Id. at 6] Plaintiff filed a Reply on January 5, 2018 and a revised Reply on January 7, 2018. [## 68, 69]
II. ANALYSIS
Pursuant to Federal Rule of Civil Procedure 15(a), the Court is to freely allow amendment of the pleadings " when justice so requires." The grant or denial of an opportunity to amend is within the discretion of the Court, " but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). " Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Plaintiff seeks leave to amend the operative complaint in order to attempt to cure alleged deficiencies in the Second Amended Complaint. [# 47 at 3-7] Defendants do not argue any undue delay or bad faith on the part of Plaintiff in bringing the Motion or any undue prejudice to Defendants that would result from the proposed amendment. Moreover, while Defendants do not concede that Plaintiff can cure the alleged deficiencies, all Defendants agree that these purported deficiencies are more efficiently resolved through motions to dismiss brought pursuant to Rule 12. [# 56 at 2; # 58 at 6] This Court agrees. See Stender v. Cardwell, No. 07-cv-02503-WJM-MJW, 2011 WL 1235414, at *3 (D. Colo. Apr. 1, 2011) (" Accordingly, the Court— preserving its scarce resources— will not at this time consider the question whether the amendments should be denied on grounds of futility because they fail to state plausible claims for relief. The Court will consider that question if and when Defendants file a motion to dismiss on those grounds." ).
Nonetheless, City Defendants argue that the Motion should be denied because the proposed Third Amended Complaint " is impossibly long-winded with legal arguments, case citations, and immaterial facts[— ]including hearsay." [# 58 at 4] The proposed Third Amended Complaint is long, and likely contains some unnecessary detail. But, it is coherent and logically organized. While it may not reflect a " short and plain" statement of the case, the Court believes that Plaintiff should be given some leeway as he attempts to satisfy the pleading requirements detailed in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). See McGill v. Corr. Healthcare Cos., Inc., No. 13-cv-01080-RBJ-BNB, 2014 WL 2922635, at *5, *5 n.7 (D. Colo. June 27, 2014) (noting that complaints were becoming increasingly long and detailed but that this trend may be a reaction to the increased number of motions to dismiss filed in the wake of Iqbal and Twombly ). Accordingly, Plaintiff’s Motion to Amend is GRANTED.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Amend [# 47] is GRANTED. Within seven days of this Order Plaintiff shall file a clean version of the Third Amended Complaint. Defendants shall respond to the Second Amended Complaint within 28 days of the filing of this Order.