Opinion
Civil Action No. 07-cv-01053-WYD-BNB.
July 5, 2007
ORDER
This matter is before the Court on a review of the parties' status reports. The reports address a briefing schedule for Plaintiff's motion for preliminary injunction and the various motions to dismiss filed by Defendants. I have reviewed those status reports as well as other recent filings, including Magistrate Judge Boland's Order of June 25, 2007 which granted Boulder Growth and Income Fund, Inc.'s motion for relief from the Order allowing expedited discovery.
It appears from my review of these filings that Plaintiff's preliminary injunction motion is not ripe. Plaintiff's motion relates only to a preliminary Registration Statement that has not yet been finalized. Plaintiff has acknowledged that he does not intend to file a brief in support of his preliminary injunction motion until that Registration Statement is final and Plaintiff has had an opportunity to review it. Thus, as Magistrate Judge Boland correctly recognized in his June 25, 2007 Order, Plaintiff's motion is merely a notice of an intent to seek a preliminary injunction in the future. Accordingly, the motion is not ripe, and I deny the motion for preliminary injunction without prejudice. Plaintiff may refile the motion, if appropriate, after the Registration Statement is final.
As to the motions to dismiss, Plaintiff indicates that he may file an amended complaint which will impact those motions. He thus suggests that the motions to dismiss be held in abeyance such that no opposition is due, pending the filing of the amended complaint. He further suggests that if the amended complaint is filed, Defendants may then renew or supplement their motions to dismiss. Defendants, on the other hand, request that expedited briefing be set on the motions to dismiss and that the motions immediately be set for hearing. Defendants assert that Plaintiff has no basis to amend his complaint since the amendment was premised on information Plaintiff may learn from expedited discovery, which has now been denied. Further, Defendants assert that no amendment can cure the motions to dismiss as Plaintiff's claims are precluded as a matter of law.
I deny Plaintiff's request to hold the motions to dismiss in abeyance, finding that briefing should go forward on those motions. Plaintiff has not filed a motion for leave to amend the complaint, nor has he clearly stated an intent that he will file such a motion. If in the future Plaintiff is granted leave to file an amended complaint, the motions to dismiss can always be supplemented to address the allegations in that complaint. Further, Plaintiff stated that such an amendment may be based on expedited discovery which has now been denied. Finally, Defendants assert that Plaintiff cannot cure the alleged defects in this lawsuit through such an amendment.
Accordingly, I find that the motions to dismiss should be briefed and that a hearing should be set on same. Plaintiff shall file a response to the motions to dismiss by Friday, July 13, 2007, and Defendants shall file a reply by Friday, July 27, 2007. A hearing is set for Thursday, August 30, 2007.
In conclusion, it is
ORDERED that Plaintiff's Motion for Preliminary Injunction (filed June 4, 2007) is DENIED WITHOUT PREJUDICE. It is
FURTHER ORDERED that Plaintiff shall file a response to the motions to dismiss on or before Friday, July 13, 2007. Defendants shall file a reply on or before Friday, July 27, 2007. A hearing is set on the motions to dismiss for Thursday, August 30, 2007, at 11:00 a.m.