Perkins v. Johnson

Full title: TERRY L. PERKINS, TERESA A. PERKINS, and TODD PERKINS, Plaintiffs, v…

Court: United States District Court, D. Colorado

Date published: Apr 16, 2007

Civil Action No. 06-cv-01503-REB-PAC (D. Colo. Apr. 16, 2007)

Opinion

Civil Action No. 06-cv-01503-REB-PAC.

April 16, 2007

ORDER

O. SCHLATTER, Magistrate Judge

Plaintiffs sue defendant Johnson for violation of the anti-kickback prohibitions of the Real Estate Settlement Procedures Act, violation of the Colorado Consumer Protection Act, and common law fraud. The matter before the court is Plaintiff's Motion to Amend Complaint (Doc. #40), filed March 21, 2007.

Plaintiffs seek leave to amend their Complaint to add Leonid Shifrin and Matthew Green as party defendants. Plaintiffs allege that Shifrin and Green were involved in a mortgage brokerage business with defendant Johnson under the names of Jupiter Lending, LLC and Mile Hi Process, LLC. Plaintiffs purport to assert the same claims against Shifrin and Green as are asserted against defendant Johnson.

Defendant objects to the proposed amendment on the ground that the claims against Shifrin and Green are time-barred.

Under Fed.R.Civ.P. 15(a), leave to amend shall be freely given when justice so requires. A motion to amend may be denied where the proposed amendment is futile. See Foman v. Davis, 371 U.S. 178, 182 (1962)). Denial of leave to amend based on a statute of limitations defense is inappropriate unless the applicability of the defense is clear from the face of the pleading. See Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1041 n. 4 (10^th Cir. 1980) (discussing Rule (12(b)(6) motion); Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 n. 3 (10^th Cir. 1999) (same).

Plaintiffs do not allege any of the relevant dates in the tendered First Amended Complaint. It is thus not clear from the pleading that plaintiffs' claims against defendants Shifrin and Green are time-barred.

Moreover, the tendered First Amended Complaint is timely under the Scheduling Order. See Doc. #36 (setting April 1, 2007 as deadline for joinder of parties and amendment of pleadings). Accordingly, it is

HEREBY ORDERED that Plaintiff's Motion to Amend Complaint (Doc. #40), filed March 21, 2007, is GRANTED. It is

FURTHER ORDERED that the tendered First Amended Complaint, attached to Plaintiff's Motion, shall be filed this date. It is

FURTHER ORDERED that the caption in this case shall be amended to add Leonid Shifrin, individually and d/b/a Jupiter Lending, LLC, and Mile Hi Mortgage Process, LLC, and Matthew Green, individually and d/b/a Jupiter Lending, LLC, and Mile Hi Mortgage Process, LLC, as party defendants.