Opinion
Civil Action No. 11-cv-01363-WYD-CBS
09-28-2011
DENISE HETTINGER f/k/a DENISE SEYBOLD, Plaintiff, v. JOHN B. COOKE, individually and in his official capacity as Weld County Sheriff, Defendant.
MINUTE ORDER
ORDER ENTERED BY CHIEF JUDGE WILEY Y. DANIEL
THIS MATTER is before the Court on a review of the file. On September 8, 2011, Defendant filed a Motion to Dismiss. This motion was filed in reference to the original complaint. On September 27, 2011, a First Amended Complaint was filed by Plaintiff. This was properly filed pursuant to Fed. R. Civ. P. 15(a) without leave of Court, even though a motion to dismiss, is pending since no responsive pleading has been served. Calderon v. Kansas Dep't of Social And Rehabilitation Servs., 181 F.3d 1180, 1185 (10th Cir. 1999); Glenn v. First Nat'l Bank, 868 F.2d 368, 370 (10th Cir. 1989).
The First Amended Complaint substantially expands the allegations and appears to add and/or delete claims from the original complaint. Accordingly, I find that Defendant's Motion to Dismiss relating to the original complaint (ECF No. 18) should be DENIED AS MOOT. Defendant may, if he wishes, file a new motion to dismiss that addresses the allegations and claims of the First Amended Complaint. In such motion, Defendant may refer the Court back to the original motion to dismiss as to arguments made therein that are still viable.