United States District Court, D. Colorado
DEREK SCOTT, individually and on behalf of others similarly situated, Plaintiff,
HONEYWELL INTERNATIONAL INC., a Delaware corporation, Defendant.
Philip A. Brimmer United States District Judge
This matter is before the Court on plaintiff’s Motion for Leave to File a Second Amended Class Action Complaint Pursuant to Fed.R.Civ.P. 15(a)(2) and Supporting Memorandum of Law [Docket No. 51] filed by plaintiff Derek Scott. Plaintiff alleges that this Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332(d)(2).
On January 21, 2014, plaintiff filed this class action suit against defendant Honeywell International, Inc., alleging breach of contract, breach of express warranty, breach of implied warranty, strict products liability, negligence, negligent misrepresentation, unjust enrichment, and violations of the Colorado Consumer Protection Act, Colo. Rev. Stat. §§ 6-1-105, et seq., and the Colorado Products Liability Act, Colo. Rev. Stat. §§ 13-21-401, et seq. Docket No. 1 at 17-28. On April 7, 2014, defendant filed a motion to dismiss all of plaintiff’s claims pursuant to Fed. R. Civ. P.
12(b)(6) and 9(b). Docket No. 23. On April 28, 2014, plaintiff filed an amended complaint pursuant to Fed.R.Civ.P. 15(a)(1), Docket No. 29, thereby mooting defendant’s motion to dismiss. See, e.g., Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) (noting that an amended complaint “supercedes an original complaint and renders the original complaint without legal effect”) (citation omitted). On May 12, 2014, defendant filed a motion to dismiss with prejudice all claims in plaintiff’s amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 9(b). Docket No. 32. On March 30, 2015, this Court granted in part and denied in part defendant’s motion to dismiss. Docket No. 43 at 30. Specifically, this Court dismissed plaintiff’s claims for breach of express warranty, failure of essential purpose, breach of the implied warranties of merchantability and fitness for a particular purpose, negligence, strict products liability, unjust enrichment, and violation of the Colorado Products Liability Act. Id. The Court did not state whether the dismissed claims were dismissed with or without prejudice. See id.
On May 1, 2015, plaintiff filed the instant motion for leave to file a second amended class action complaint pursuant to Fed.R.Civ.P. 15(a)(2). Docket No. 51. Plaintiff’s proposed second amended complaint withdraws several claims asserted in the first amended complaint and provides additional substantive allegations in support of several claims asserted in the first amended complaint. Docket No. 51 at 2. First, plaintiff’s proposed second amended complaint withdraws his claims for strict products liability, negligence, negligent misrepresentation, unjust enrichment, and violations of the Colorado Products Liability Act. See Docket No. 51 at 2. The Court notes that, with the exception of plaintiff’s negligent misrepresentation claim, all the aforementioned claims plaintiff seeks to remove have already been dismissed. Compare Docket No. 43 at 30 with Docket No. 51 at 2. Second, plaintiff’s proposed second amended complaint proffers additional allegations to support his claims for breach of express warranty, breach of implied warranties of merchantability and fitness for a particular purpose, and failure of essential purpose. See id.
Defendant opposes plaintiff’s motion for leave to amend insofar as it attempts to resuscitate claims that this Court dismissed, which defendant argues are presumed to have been dismissed with prejudice. Docket No. 53 at 1. Defendant also argues that plaintiff’s motion for leave to amend should be denied as futile. Id. Defendant does not oppose plaintiff’s withdrawal of his negligent misrepresentation claim. Id. at 2 n.1.
II. STANDARD OF REVIEW
Plaintiff seeks leave to file the proposed second amended complaint pursuant to Fed.R.Civ.P. 15(a), which states that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a)(2). Rule 15 instructs courts to “freely give leave [to amend] when justice so requires.” Id. Nevertheless, denying leave to amend is justified if the proposed amendments are unduly delayed, unduly prejudicial, futile, or sought in bad faith. Foman v. Davis, 371 U.S. 178, 182 (1962); Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). As a general rule, the Court retains the discretion to permit such amendments. Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006). The Court must delineate its rationale if it refuses leave to amend. Federal Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987).
A. Prior Dismissal of Plaintiff’s Claims Pursuant to Rule 12(b)(6)
Defendant first argues that plaintiff cannot amend his breach of express warranty, failure of essential purpose, or breach of implied warranty claims because they were dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(6). Docket No. 53 at 2. Defendant contends that “a dismissal under Rule 12(b)(6) must be presumed to be with prejudice.” Docket No. 53 at 3 (quoting Lacey v. Homeowners of Am. Ins. Co., 546 F. App’x 755, 758 (10th Cir. 2013)). Plaintiff replies with a request that the Court clarify whether its dismissal of the claims plaintiff seeks to amend was with prejudice or without. Docket No. 54 at 2.
Exercising its discretion, the Court will consider the merits of plaintiff’s motion for ...