United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. WANG UNITED STATES MAGISTRATE JUDGE
matter comes before the court on three pending motions:
Defendants RAM International 1, LLC (“RAM
International”) and Westminster 73, LLC's
“Defendants”) Partial Motion to Dismiss Pursuant
to Fed.R.Civ.P. 12(b)(1) and (6) (“Motion to
Dismiss”) [#20, filed July 26, 2017];
Plaintiff Asia O'Connor's (“Plaintiff” or
“Ms. O'Connor”) Motion to Accept First
Amended Complaint and Jury Demand Pursuant to Fed.R.Civ.P.
15(a)(1)(B) (“Motion to Amend”) [#27, filed
August 16, 2017]; and
“Plaintiff's Motion to Deem Moot Defendant's
Partial Motion to Dismiss or for Additional Time to Respond
to Respond [sic] to the Motion” (“Motion to Deem
Moot”) [#28, filed August 16, 2017].
undersigned considers the motions pursuant to 28 U.S.C.
§ 636(b), the Order Referring Case dated July 12, 2017
[#13], and the memoranda dated August 11 and 21, 2017 [#25;
#29]. This court concludes that oral argument will not
materially assist in the resolution of these motions.
Accordingly, upon careful review of the motions and
associated briefing, the entire case file, and the applicable
law, this court respectfully RECOMMENDS that
Plaintiff's Motion to Amend be GRANTED; Plaintiff's
Motion to Deem Moot be GRANTED; and Defendants' Motion to
Dismiss be DENIED AS MOOT.
initiated this action by filing her Complaint in the United
States District Court for the District of Colorado on June
20, 2017. [#1]. The facts giving rise to Plaintiff's
Complaint are rather troubling. Plaintiff alleges that at the
age of sixteen (16) she began working for Defendants as a
hostess at their C.B. & Potts restaurant located in
Westminster, Colorado. [Id. at ¶¶ 7-10].
Around this same time, Defendants also hired Timothy Chavez
who Plaintiff alleges was on parole or probation for a prior
conviction of a criminal sexual offense. [Id. at
about January 16, 2015, Plaintiff alleges that, while taking
a routine break during her hostess shift, Mr. Chavez
“forced her into an isolated area and then sexually
assaulted [her].” [Id. at ¶¶ 20-23].
Plaintiff escaped Mr. Chavez and immediately reported the
incident to her manager. [Id. at ¶¶
24-25]. However, Plaintiff alleges that her manager left her
alone in his office, and that Mr. Chavez entered the office
and threatened Plaintiff to not report the assault.
[Id. at ¶ 26]. Ultimately, Plaintiff fled to a
nearby restaurant and hid from Mr. Chavez in the
establishment's restroom; Mr. Chavez pursued Ms.
O'Connor to the nearby restaurant, but eventually
returned to C.B. & Potts. [Id. at ¶¶
28-32]. The next day, on January 17, 2015, Mr. Chavez's
sexual assault was reported to law enforcement officials.
[Id. at ¶ 33]. Following an investigation, Mr.
Chavez was criminally charged and convicted of sexually
assaulting Ms. O'Connor. [Id.].
Complaint continues that Ms. O'Connor returned to work at
some point after Mr. Chavez's conviction; however, Ms.
O'Connor alleges that her co-workers “harassed,
targeted and abused” her for the incident.
[Id. at ¶¶ 34-36]. For example, Plaintiff
alleges that co-workers blamed her for the assault and even
ridiculed Plaintiff on social media. [Id. at ¶
35]. Ms. O'Connor alleges that she informed management of
the abuse and harassment, but to no avail. [Id. at
¶¶ 36-37]. Given the hostile work environment, Ms.
O'Connor resigned from her position at C.B. & Potts.
[Id. at ¶¶ 38-39]. At some point, Ms.
O'Connor filed her charge of discrimination against
Defendants with the Equal Employment Opportunity Commission
(“EEOC”), who subsequently issued a Notice of
Right to Sue to Plaintiff on April 17, 2017. [Id. at
¶ 41]. The Complaint asserts the following claims
against Defendants: (1) gender/sexual discrimination in
violation of 42 U.S.C. § 2000e-2 (“Claim
I”); and state law claims for (2) outrageous conduct
(“Claim II”) and (3) negligent hiring and
supervision (“Claim III”). [#1].
26, 2017, Defendants filed their Motion to Dismiss, moving
for dismissal of Claim I under Rule 12(b)(1) because
Plaintiff failed to file a timely charge of discrimination
with the EEOC, as well as dismissal of Claim II for failure
to state a claim under Rule 12(b)(6). [#20]. On August 16,
2017, in response to the Motion to Dismiss, Plaintiff filed
her Motion to Amend and Motion to Deem Moot. [#27; #28].
Although Defendant has yet to file responses to these
motions, this court considers the motions below. See
to Rule 15(a)(1)(B), a plaintiff may amend her complaint as a
matter of course within twenty-one (21) days “after
service of a motion under Rule 12(b) . . . .”
Fed.R.Civ.P. 15(a)(1)(B). An amended pleading supersedes the
pleading it modifies thereby mooting any motions to dismiss
directed at an inoperative pleading. See Gotfredson v.
Larsen LP, 432 F.Supp.2d 1163, 1172 (D. Colo. 2006).
Plaintiff filed her Motion to Amend on August 16, 2017;
twenty-one days after service of Defendants' Motion to
Dismiss pursuant to Rules 12(b)(1) and (6). Because
Plaintiff's First Amended Complaint (“FAC”)
complies with the parameters of Rule 15(a)(1)(B), Plaintiff
is permitted to amend her complaint as a matter of course.
Under Local Rule 15.1(a), Plaintiff could have simply filed