United States District Court, D. Colorado
OF UNITED STATES MAGISTRATE JUDGE
Y. WANG, UNITED STATES MAGISTRATE JUDGE.
matter comes before the court on Plaintiff Michael
Kiley's (“Plaintiff” or “Mr.
Kiley”) Motion for Leave to File a Second Amended
Complaint (“Motion to Amend” or
“Motion”) [#21, filed October 5, 2017] and
Defendant's Motion to Dismiss Plaintiff's First
Amended Complaint (“Motion to Dismiss”) [#24,
filed October 10, 2017]. The undersigned considers the Motion
pursuant to 28 U.S.C. § 636(b), the Order of Reference
dated August 31, 2017 [#13], and the memorandum dated October
6, 2017 [#22]. This court has determined that oral argument
will not assist in the resolution of this matter.
Accordingly, upon careful review of the Motions, the entire
case file, and the applicable law, this court respectfully
RECOMMENDS that the Motion to Amend be GRANTED and the Motion to
Dismiss be DENIED as moot.
initiated this action by filing his Complaint on July 22,
2017. [#1]. Plaintiff, a sixty-eight-year-old male and former
employee of the Jefferson County Public School District (the
“District”), worked as a “Regular School
Bus Driver” for the District from August 2017 to
December 9, 2017. [Id. at ¶10]. Plaintiff
alleges that he was “diagnosed with hearing loss in
March of 2001, ” which required him to use hearing
aids. [Id. at ¶ 13]. Due to his hearing loss,
Plaintiff requested several accommodations that would make it
easier to perform his job. These included a rear engine bus
as well as an on-board “bus attendant.”
[Id. at ¶¶ 15, 17]. Plaintiff alleges,
however, that Defendant Josephine Gallagher, Director of West
Terminal, initially provided a rear engine bus, but
“inexplicably took the accommodating  bus away from
Mr. Kiley[.]” [Id. at ¶ 15]. Nor was
Plaintiff provided an on-board bus attendant. [Id.
at ¶ 17].
claims he was discriminated against because of his age and
disability. Thus, Mr. Kiley asserted claims under the
Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12131 et seq., and the Age
Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq.
[#1]. Originally, Plaintiff named as Defendants the District,
Ms. Gallagher, R. Craig Hess the Chief Legal Counsel for the
District, and Christopher Esser the Employer Relations
Attorney for the District. [#1]. However, at the September
12, 2017 Status Conference, counsel discussed dismissing the
individual Defendants. [#19 at 1]. The undersigned then
directed Plaintiff to file an amended complaint on or before
September 29, 2017, to reflect these changes. [Id.].
This court also set the matter for a further Scheduling
Conference on October 20, 2017. [Id. at 2].
Kiley filed his First Amended Complaint on September 29,
2017. [#20]. In doing so, however, Plaintiff filed only a
redlined version of his First Amended Complaint that did not
comply with Local Rule of Civil Practice 15.1.
[Id.]; D.C.COLO.LCivR 15.1. Plaintiff was informed
that a clean version of the First Amended Complaint was
required. Then, on October 5, 2017, Mr. Kiley filed the
instant Motion requesting leave to file a Second Amended
Complaint (“SAC”). [#21]. Because it was unclear
whether Defendants opposed this instant Motion to Amend, this
court ordered Defendants to file a Notice indicating their
position on the requested relief. [#23]. Defendants indicate
that they do not oppose the Motion to Amend. See
interim, on October 10, 2017, Defendants filed a Motion to
Dismiss Plaintiff's First Amended Complaint [#24], which
was referred to the undersigned Magistrate Judge today.
Motion to Amend
there is no Scheduling Order in place but the time to amend
as a matter of right has elapsed, the court's analysis
proceeds under Rule 15(a)(2) of the Federal Rules of Civil
Procedure. See Fernandez v. Bridgestone/Firestone,
Inc., 105 F.Supp.2d 1194, 1195 (D. Colo. 2000). Rule
15(a)(2) provides 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). Leave to
amend “shall be freely given when justice so
requires.” Id. However, 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); accord Watson v.
Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001)
(observing that a court may dismiss a motion to amend if
amendment is futile, i.e., the amended complaint
would be subject to dismissal for any reason). Ultimately,
whether to allow amendment is within the trial court's
discretion. Burks v. Oklahoma Publ'g Co., 81
F.3d 975, 978-79 (10th Cir. 1996).
review of the proposed Second Amended Complaint
(“SAC”) reveals that Plaintiff intends to dismiss
Defendants Hess and Esser, leaving the District and Ms.
Gallagher in her official capacity only. [#21 at 2; #21-3 at
2]. The proposed SAC therefore removes any allegations
concerning Defendants Hess and Esser. Additionally, the
proposed SAC dismisses Plaintiff's ADEA claim, and
incorporates a new allegation regarding the timeliness of
Plaintiff's ADA claim, following his receipt of the Equal
Employment Opportunity Commission's (“EEOC”)
Notice of Right to Sue. [#21 at 2; #21-3 at 3]. Therefore,
leave to amend appears warranted under Rule 15(a)(2).
Motion to Dismiss
amended complaint generally moots any motion directed at an
inoperative pleading. See Gotfredson v. Larsen LP,
432 F.Supp.2d 1163, 1172 (D. Colo. 2006). A review of the
pending Motion to Dismiss suggests that Defendants'
attack upon the timeliness of Plaintiff's Complaint,
following his receipt of the EEOC's Notice of Right to
Sue, is equally applicable to the proposed SAC. [#24].
However, as noted above, there is one additional allegation
contained in the proposed SAC directed at the timeliness of
Mr. Kiley's action. [#21-3 at 3, ¶ 4.a].
Accordingly, for the sake of clarity on the court's
docket and to avoid any confusion as to what Plaintiff needs
to address in response to any Motion to Dismiss, this court
concludes that the best course of ...