Opinion
Civil Action No. 12-cv-01921-PAB-KMT
02-21-2013
DELMART E.J.M. VREELAND, II, Plaintiff, v. JOHN W. SUTHERS, Attorney General, TOM CLEMENTS, Executive Director, CDOC, and SERGEANT GRIGGS, CDOC/BVCF Mailroom, Defendants.
Magistrate Judge Kathleen M. Tafoya
ORDER
This matter is before the court on "Plaintiff's Motion to Rule on Plaintiff's Previously Filed Objection to U.S. Magistrate Judge's Striking Plaintiff's Amended Complaint" (Doc. No. 46, filed February 21, 2013) and Plaintiff's "Objection by Plaintiff to Magistrate Judge Kathleen M. Tafoya's December 17, 2012 Order Striking Plaintiff's Amended Complaint" (Doc. No. 36, filed December 26, 2012).
This court previously struck Plaintiff's Amended Complaint because it was filed outside the time limits for filing an Amended Complaint as a matter of course under Fed. R. Civ. P. 15(a)(1), and therefore Plaintiff was required either to seek the court's leave or to obtain Defendants' written consent to the filing of his Amended Complaint pursuant to Fed. R. Civ. P. 15(a)(2). (See Doc. No. 32.) In Plaintiff's Objection (construed by District Judge Philip A. Brimmer as a motion to reconsider), he explains that he filed motions to extend the time to file a response to Defendants' motion to dismiss and to file an amended complaint (see Doc. Nos. 23 & 26), and that because this court granted his motion to extend the time, he was within the time to file an amended complaint as a matter of course. (Doc. No. 32.)
Plaintiff is mistaken. First, in both orders issued by this court, the court addressed only the deadline to respond to the motion to dismiss. (See Doc No. 25, stating, "Plaintiff shall file his response to the motion to dismiss no later than November 30, 2012" and Doc. No. 28, stating, "Plaintiff may file his response no later than December 14, 2012.") Second, the plain language of Rule 15(a) provides, in pertinent part:
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:Fed. R. Civ. P. 15(a) (emphasis added). When Plaintiff filed his Amended Complaint on December 14, 2012, he was well outside the time period to file his pleading as a matter of course. Thus, in order to amend his complaint, he had to comply with Rule 15(a)(2).
(A) 21 days after serving it, or(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave.
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
The court properly struck Plaintiff's Amended Complaint. Therefore, it is
ORDERED that "Plaintiff's Motion to Rule on Plaintiff's Previously Filed Objection to U.S. Magistrate Judge's Striking Plaintiff's Amended Complaint" (Doc. No. 46) is GRANTED and Plaintiff's "Objection by Plaintiff to Magistrate Judge Kathleen M. Tafoya's December 17, 2012 Order Striking Plaintiff's Amended Complaint" (Doc. No. 36) (construed by Judge Brimmer as a motion to reconsider) is DENIED. Plaintiff may file a motion to amend his complaint, attaching the proposed amended complaint, no later than March 8, 2013. This court will abstain from issuing a recommendation on the Motion to Dismiss at this time. If Plaintiff files a proper motion to amend his complaint, the court will await briefing on the motion to amend and issue its recommendation or order on the motion to amend before issuing a recommendation on the Motion to Dismiss.
BY THE COURT:
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Kathleen M. Tafoya
United States Magistrate Judge