United States District Court, D. Colorado
BERNHARD ENGL, individually and on behalf of all others similarly situated, Plaintiffs,
NATURAL GROCERS BY VITAMIN COTTAGE, INC., a Delaware corporation, VITAMIN COTTAGE NATURAL FOOD MARKETS, INC., a Colorado corporation, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
NINA Y. WANG, Magistrate Judge.
This case comes before the court on Defendants' Motion to Dismiss Under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ("Motion to Dismiss") [#18, filed November 5, 2015] and Plaintiff's Motion for Leave to File Amended Complaint in Lieu of a Response to Defendants' Motion to Dismiss ("Motion to Amend") [#38, filed December 11, 2015], which were referred to this Magistrate Judge pursuant to the Order of Reference dated November 9, 2015 [#28] and the memoranda dated November 9, 2015 [#30] and December 14, 2015 [#39]. Pursuant to 28 U.S.C. § 636(b)(1)(B), this court respectfully RECOMMENDS that the pending Motion to Dismiss and the Motion to Amend be DENIED as MOOT.
Plaintiff Bernhard Engl ("Plaintiff" or "Mr. Engl") initiated this action on September 25, 2015, with a "Class Action Complaint" alleging that Defendants had failed to secure and safeguard its customers' personal financial data, including credit and debit card information arising from a data breach on or about March 2, 2015. [#1]. Defendants Natural Grocers by Vitamin Cottage, Inc. and Vitamin Cottage Natural Food Markets, Inc. (collectively, "Defendants") then filed its Motion to Dismiss for lack of subject matter jurisdiction based on lack of standing, and failure to state a claim, because he failed to allege or show the existence of a contract or actionable damages. [#18]. Plaintiff then filed his Motion to Amend [#38], seeking leave from the court to file an Amended Complaint rather than responding to the Motion to Dismiss. In the Motion to Amend, Plaintiff represented that his counsel contacted Defendants' counsel on the day the Motion to Amend was filed to obtain Defendants' position on the Motion; however, at the time of filing, Plaintiff had not received a response from Defendants' counsel. [ Id. at 2-3].
Because this court considered the meet and confer process associated with the Motion to Amend deficient and the Motion to Amend does not comply with Local Rule 15.1, which requires a party to submit as an exhibit a copy of the proposed amended pleading, this court issued a Minute Order on December 18, 2015, requiring the Parties to meet and confer verbally, either in person or on the telephone, regarding the proposed Amended Complaint and ordering Plaintiff to file, no later than December 30, 2015, a response to the Motion to Dismiss or a Motion for Leave to File an Amended Complaint that complied with Local Rule 15.1. [#41]. On December 18, 2015, Plaintiff filed an Amended Class Action Complaint, which was stricken by this court for failure to comply with Rule 15.1. [#45]. Plaintiff then filed a Notice of Filing First Amended Class Action Complaint With the Consent of All Defendants and a First Amended Class Action Complaint on December 30, 2015. [#46, #47].
Rule 15(a)(2) of the Federal Rules of Civil Procedure permits an amendment of a complaint that is not permitted as a matter of right with written consent of an opposing party. Fed.R.Civ.P. 15(a)(2). Plaintiff represents that Defendants have consented to the proposed Amended Complaint, with the express provision that "[b]y agreement, Defendants do not waive the right to move to dismiss Plaintiff's First Amended Class Action Complaint." [#46]. Defendants have not filed an opposition to either the Motion to Amend, or to the Notice of Filing. Because the First Amended Class Action Complaint is now the operative complaint in this case, see Harper v. Receivables Performance Mgmt., LLC, No. 12-CV-02443-PAB-KMT, 2013 WL 4510314, at *4 (D. Colo. Aug. 26, 2013), this court respectfully RECOMMENDS that:
(1) Defendants' Motion to Dismiss Under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) [#18] be DENIED as MOOT; and
(2) Plaintiff's Motion for Leave to File Amended Complaint in Lieu of a Response to Defendants' Motion to ...