United States District Court, D. Colorado
THOMAS HOOTON, JENNIFER HOOTON, and CYCLONE ENTERPRISES, INC., Plaintiffs,
NAOMI WOOD, SEAN WOOD, NAOMI I. WOOD TRUST, and JOHN JOHNSON, Defendants,
EMPLOYERS MUTUAL CASUALTY CO., and CYCLONE ENTERPRISES, INC., d/b/a Kilthau Transports, Intervenor Plaintiffs.
REPORT AND RECOMMENDATION ON MOTION REQUESTING
SUMMARY JUDGMENT WITH SUPPORTING AUTHORITY (DOCKET NO. 57)
AND HOOTONS' MOTION FOR LEAVE TO FILE SECOND AMENDED
COMPLAINT (DOCKET NO. 63)
Michael J. Watanabe United States Magistrate Judge
case is before the Court pursuant to an Order Referring Case
to Magistrate Judge entered by Judge Lewis T. Babcock on
October 16, 2015 (Docket No. 26), the Memorandum (Docket No.
58) referring the Motion for Summary Judgment With Supporting
Authority filed by Defendants Naomi Woods and Naomi I. Wood
Trust (Docket No. 57) (the “Motion for Summary
Judgment”), and the Memorandum (Docket No. 65)
referring the Hootons' Motion for Leave to File Second
Amended Complaint (Docket No. 63) (the “Motion to
Amend”). The Court has reviewed the parties'
filings, taken judicial notice of the Court's entire file
in this case, and considered the applicable Federal Rules of
Civil Procedure and case law. Now being fully informed the
Court makes the following report and recommendation.
bring negligence claims against Defendants relating to an
incident that occurred on November 28, 2012. Plaintiff
Jennifer Hooton brings a loss of consortium claim against
Defendants. On November 28, 2012, Plaintiff Tom Hooton was
driving a semi-tractor on Colorado Highway 52 and saw a
pickup truck driven by Defendant John Johnson backing into
his lane of travel. Mr. Hooton changed lanes to avoid a
collision with the pickup truck and collided with a black cow
that had escaped from pasture land.
semi-tractor rolled upside down and Mr. Hooton suffered
for Summary Judgment (Docket No. 57)
Motion to Amend seeks to add one claim for a finding of joint
liability under Colo. Rev. Stat. § 13-21-11.5(4) against
Defendants Naomi Wood, Naomi I. Wood Trust, and Shawn Wood.
In the Motion for Summary Judgment, Defendants Naomi Wood and
Naomi I. Wood Trust seek summary judgment of the negligence
claims asserted against them.
circumstances, when a motion to amend is granted, any pending
dispositive motions are denied as moot because they are
directed at a pleading that is no longer the operative
pleading. See, e.g. Martinez v. Spa Motel, No.
15-cv-00358-KLM, 2015 WL 6750269, at *5 (D. Colo. Nov. 5,
2015) (denying motion for summary judgment as moot);
Dempsey v. Jason's Premier Pumping Servs., LLC,
No. 15-cv-00703-CMA-NYW, 2015 WL 4761191, at *2 (D. Colo.
Aug. 13, 2015) (mooting a partial motion for summary judgment
due to the filing of an amended complaint); Dicino v.
Garcia, No. 12-cv-01274-WYD-KLM, 2014 WL 3746961, at *2
(D. Colo. July 30, 2014). Therefore, in many cases, the Court
will address a motion to amend prior to addressing any
dispositive motions. However, in this case, in keeping with
Fed.R.Civ.P. 1, it is most efficient to address both motions
together because if the Motion for Summary Judgment is
granted, the Motion to Amend, which seeks to add a joint
liability claim that includes the two Defendants moving for
summary judgment and Defendant Shawn Wood, would be rendered
moot because two of the three Defendants against whom
Plaintiffs seek joint liability as to the allegedly negligent
acts would be granted summary judgment. Alternatively, if the
Motion for Summary Judgment is not granted, the Court can
then address the Motion to Amend as it would in the normal
Judge Babcock has explained:
The purpose of a summary judgment motion under Rule 56 is to
assess whether trial is necessary. White v. York
Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Rule
56 provides that summary judgment shall be granted if the
pleadings, depositions, answers to interrogatories,
admissions, or affidavits show that there is no genuine issue
of material fact and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party
has the burden of showing that there are issues of material
fact to be determined. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
A party seeking summary judgment bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of the
pleadings, depositions, interrogatories, and admissions on
file together with affidavits, if any, which it believes
demonstrate the absence of genuine issues for trial.
Celotex, 477 U.S. at 323; Mares v. ConAgra
Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir. 1992).
Once a properly supported summary judgment motion is made,
the opposing party may not rest on the allegations contained
in his complaint, but must respond with specific facts
showing the existence of a genuine factual issue to be tried.
Otteson v. United States, 622 F.2d 516, 519 (10th
Cir. 1980); Fed.R.Civ.P. 56(e).
If a reasonable juror could not return a verdict for the
non-moving party, summary judgment is proper and there is no
need for a trial. Celotex, 477 U.S. at 323. The
operative inquiry is whether, based on all documents
submitted, reasonable jurors could find by a preponderance of
the evidence that the [moving party] is entitled to a
verdict. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). However, summary judgment should not enter
if, viewing the evidence in a light most favorable to the
nonmoving party and drawing all reasonable inferences in ...