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Matson v. Dillon Companies, Inc.

United States District Court, D. Colorado

March 8, 2016

MERWYN MATSON, and AUDREY MATSON, Plaintiffs,
v.
DILLON COMPANIES, INC., a Kansas corporation d/b/a King Soopers, Defendant.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          NINA Y. WANG, Magistrate Judge.

         This 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.

         PROCEDURAL AND FACTUAL BACKGROUND

         Plaintiffs 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 ¶ 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 ¶¶ 10-18]. Mr. Matson suffered injuries including a lacerated scalp, weakened right vestibular, and damage to his cerebellum. [#1-1 at ¶¶ 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 ¶¶ 25-44].

         On January 15, 2016, Defendant filed a Notice of Removal to this court on the basis of diversity jurisdiction, citing 28 U.S.C. §§ 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].

         Plaintiffs 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 ¶ 1]. Plaintiffs state that Defendant has no objection to this requested relief. [#18 at ¶ 2]. A proposed First Amended Complaint is provided as an attachment to the Motion to Amend. [#18-1].

         STANDARD OF REVIEW

         Prior 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).

         ANALYSIS

         The 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 stricken.

         CONCLUSION

         For the foregoing reasons, this court respectfully RECOMMENDS that:

         (1) Plaintiffs' Motion to Amend Complaint [#18] be GRANTED;

         (2) Plaintiff Audrey Matson's claims be DISMISSED WITHOUT ...


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