Opinion
Civil Action No. 08-cv-00503-REB-KMT.
August 11, 2008
ORDER
This matter is before the court on "Motion for Relief from Orders Concerning (1) Defendant's Motion to Dismiss and (2) Plaintiff's Motion for Leave to Amend Complaint Pursuant to F.R.C.P. 15" [Doc. No. 23, filed August 7, 2008].
The plaintiff in this matter filed a Motion for Leave to Amend the Complaint which was granted by this court. In fact, there was no necessity for the plaintiff to seek the court's approval to file the Amended Complaint since the plaintiff, "may amend its pleading once as a matter of course: (A) before being served with a responsive pleading; . . ." Fed.R.Civ.P. 15(a)(1)(A). A motion to dismiss pursuant to Fed.R.Civ.P. 12(b) is not a responsive pleading. Adams v. Campbell County School District, 483 F.2d 1351, 1353 (10th Cir. 1973) (Motion to dismiss complaint is not a responsive pleading within rule permitting party to amend once as a matter of course at any time before responsive pleading is served); Hafen v. Carter, 248 Fed. Appx. 43, 46 (10th Cir. 2007) (same); Capital Solutions, LLC v. Konica Minolta Business Solutions USA, Inc., 2008 WL 1901396 (D. Kan. 2008) (same).
Since the plaintiff did not need the court's permission to file the Amended Complaint, there was no need to wait for a response from defendant before granting the motion allowing the filing of the Amended Complaint.
The defendant's "Motion for Relief from Orders Concerning (1) Defendant's Motion to Dismiss and (2) Plaintiff's Motion for Leave to Amend Complaint Pursuant to F.R.C.P. 15" [Doc. No. 23] is DENIED.