United States District Court, D. Colorado
KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on the City Defendants' Motion to Dismiss [#14] and on Plaintiff's Opposed Motion for Leave to File Amended Complaint [#27] (the "Motion to Amend").
As a preliminary matter, a Scheduling Conference has not yet been held, and thus Plaintiff's request to amend the Complaint [#1] is timely. The Court therefore considers whether justice would be served by amendment. Specifically, the Court should grant leave to amend "freely... when justice so requires." Fed.R.Civ.P. 15(a)(2). Leave should generally be permitted unless the moving party unduly delayed or failed to cure, the opposing party would be unduly prejudiced, or the proposed amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment is futile if it would not survive a motion to dismiss. Innovatier, Inc. v. CardXX, Inc., No. 08-cv-00273-PAB-KLM, 2010 WL 148285, at *2 (D. Colo. Jan. 8, 2010) (citing Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)).
The Court notes that this case is still in its earliest stages. Plaintiff, who proceeds in this matter as a pro se litigant, has neither filed an amended complaint as a matter of course nor previously sought leave to amend his Complaint. No ruling has issued on any dispositive motion. A Scheduling Conference has not yet been held and discovery has not commenced. At this stage of the proceedings, the Tenth Circuit has expressed that, "[T]he preferred practice is to accord a [party] notice and an opportunity to amend his [pleading] before acting upon a motion to dismiss for failure to state a claim[.]" McKinney v. Okla., 925 F.2d 363, 365 (10th Cir. 1991). In the present circumstances, therefore, the Court will not deny leave to amend. Thus, the Court permits Plaintiff leave to file an Amended Complaint. See, e.g., Starr v. City of Lakewood, No. 08-cv-01390-WYD-KLM, 2008 WL 5246158, at *1 (D. Colo. Dec. 16, 2008). Accordingly,
IT IS HEREBY ORDERED that the Motion to Amend [#27] is GRANTED. The Proposed First Amended Complaint [#27-1] is accepted for filing as of the date of this Order.
IT IS FURTHER ORDERED that Motion to Dismiss [#14] is DENIED as moot. See, e.g., Strich v. United States, No. 09-cv-01913-REB-KLM, 2010 WL 14826, at *1 (D. Colo. Jan. 11, 2010) (citations omitted) ("The filing of an amended complaint moots a motion to dismiss directed at the complaint that is supplanted and superseded."); AJB Props., Ltd. v. Zarda Bar-B-Q of Lenexa, LLC, No. 09-2021-JWL, 2009 WL 1140185, at *1 (D. Kan. April 28, 2009) (finding that amended complaint superseded original complaint and "accordingly, defendant's motion to dismiss the original complaint is denied as moot"); Gotfredson v. Larsen LP, 432 F.Supp.2d ...