United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. WANG, Magistrate Judge.
matter comes before the court on Plaintiffs' Motion for
Leave to Amend Complaint (the "Motion to Amend")
[#18, filed Mar. 1, 2016]. Pursuant to the Order Referring
Case dated January 29, 2016 [#6] and the Memorandum dated
March 2, 2016 [#19], this matter was referred to the
undersigned Magistrate Judge. After carefully reviewing the
Motion and related briefing, the entire case file, and the
applicable case law, I respectfully RECOMMEND that the Motion
to Amend be GRANTED and that Plaintiff Audrey Matson's
claims be DISMISSED WITHOUT PREJUDICE from this case.
AND FACTUAL BACKGROUND
Merwyn Matson and Audrey Matson (collectively,
"Plaintiffs") initiated this case by filing a
Complaint in Colorado state court against Defendant Dillon
Companies, Inc. (doing business as King Soopers)
("Defendant") on December 18, 2015. [#1-1].
Plaintiffs, who are married, assert claims against Defendant
arising from a slip-and-fall accident that occurred on June
5, 2014 at a King Soopers market located in Conifer,
Colorado. [#1-1 at Â¶ 3]. Plaintiff Merwyn Matson was
allegedly injured when he slipped and fell on or near a
puddle of water on a wet restroom floor inside the market.
[#1-1 at Â¶Â¶ 10-18]. Mr. Matson suffered injuries including a
lacerated scalp, weakened right vestibular, and damage to his
cerebellum. [#1-1 at Â¶Â¶ 18, 21-24]. Plaintiffs assert claims
for negligence, gross negligence, and willful and wanton
misconduct against Defendant due to Defendant's alleged
failure to protect Mr. Matson from the dangerous condition
that existed in the men's restroom. [#1-1 at Â¶Â¶ 25-44].
January 15, 2016, Defendant filed a Notice of Removal to this
court on the basis of diversity jurisdiction, citing 28
U.S.C. Â§Â§ 1332 and 1441. [#1]. Plaintiffs' Complaint was
docketed in this court on the same day. [#3]. Defendants
filed an Answer on January 22, 2016. [#9]. The undersigned
Magistrate Judge held a Scheduling Conference on February 29,
2016 and entered a Scheduling Order the same day. [#16, #17].
The Scheduling Order stated that Plaintiffs were to file an
Amended Complaint that dismisses Ms. Matson claims by March
1, 2016. [#17 at 6]. The deadline for joining additional
parties or amending pleadings is otherwise set for April 14,
2016. [#17 at 6].
filed the present Motion to Amend on March 1, 2016. [#18].
Plaintiffs seek to dismiss without prejudice the claims of
Audrey Matson and amend the Complaint to leave Plaintiff
Merwyn Matson as the only remaining Plaintiff. [#18 at Â¶ 1].
Plaintiffs state that Defendant has no objection to this
requested relief. [#18 at Â¶ 2]. A proposed First Amended
Complaint is provided as an attachment to the Motion to
to the deadline set in a Scheduling Order for amending the
pleadings, requests to amend are governed by Fed. R. 15(a).
Rule 15(a) provides that leave to amend "shall be freely
given when justice so requires." Fed.R.Civ.P. 15(a). The
court may refuse leave to amend upon a showing of undue
delay, undue prejudice to the opposing party, bad faith or
dilatory motive, failure to cure deficiencies by amendments
previously allowed, or futility of amendment. Frank v.
U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Whether to allow amendment is within the trial court's
discretion. Burks v. Okla. Publ'g Co., 81 F.3d
975, 978-79 (10th Cir. 1996).
undersigned Magistrate Judge respectfully recommends
exercising the court's discretion to allow Plaintiffs to
amend the Complaint and dismiss Ms. Audrey Matson's
claims without prejudice. Plaintiffs' proposed amendment
is not opposed by Defendants, and this court does not find
any undue delay, undue prejudice, bad faith, or futility of
amendment. Moreover, discovery has only just commenced and
this amendment was specifically discussed at the Scheduling
Conference prior to entry of a Scheduling Order in this case.
While D.C.COLO.LCivR 15.1 requires that a plaintiff seeking
to file an amended complaint "attach as an exhibit a
copy of the proposed amended pleading which strikes through
(e.g. strikes through) the text to be deleted and underlines
(e.g. underlines) the text to be added, " this court
recommends granting the Motion to Amend despite
Plaintiffs' failure to follow the Local Rule in this
instance, particularly considering the straightforward nature
of the proposed amendment and that the original Complaint was
formatted for filing in state court, and the proposed Amended
Complaint has been reformatted for this court. Plaintiff
Merwyn Matson is advised, however, that future failures to
comply with D.C.COLO.LCivR 15.1 will result in the
non-compliant proposed pleading and accompanying motion being
foregoing reasons, this court respectfully RECOMMENDS that:
Plaintiffs' Motion to Amend Complaint [#18] be GRANTED;
Plaintiff Audrey Matson's claims be DISMISSED WITHOUT