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Tatulyan v. City of Aurora

United States District Court, D. Colorado

July 17, 2018

SUREN TATULYAN; and PIT SISTERS, a Florida charitable organization, Plaintiffs,
CITY OF AURORA; and JENEE aka JENNEE SHIPMAN in her official and individual capacity, Defendants.



         This matter is before the Court on Plaintiffs' Motion for Leave to File Second Amended Complaint Pursuant to Fed.R.Civ.P. 15(a)(2) [Doc. 57]. The Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law. For the following reasons, the Court orders that the Motion be denied.


         This matter arises subsequent the seizure of Plaintiffs' dog, Bandit, by the City of Aurora following Bandit's January 4, 2017 attack of a delivery man. Bandit remained seized following the City's determination that his release would endanger the public, and after lengthy deliberation Bandit was ordered to be put down. On September 1, 2017, Plaintiffs filed their original Complaint, arguing the process that led to Bandit's ordered euthanasia deprived them of their Fifth Amendment and due process rights pursuant to 42 U.S.C. §1983 [Doc. 1]. Plaintiffs concurrently moved for a Temporary Restraining Order ("TRO") to halt Bandit's euthanasia [Doc. 2]. That Motion was denied without prejudice for failure to show substantial likelihood of success on the claim's merits [Doc. 9]. Plaintiffs filed their First Amended Complaint on October 25, 2017, which added Jenee Shipman, the Director of the Aurora Animal Shelter, as a Defendant [Doc 11].

         Plaintiffs again moved for a TRO on December 12, 2017 [Doc. 31], which stayed Bandit's scheduled December 20 euthanasia. Defendants responded by moving to dismiss Plaintiffs' Complaint [Doc. 36]. This Court denied Plaintiffs' Second TRO on February 28, 2018, again concluding Plaintiffs failed to establish they were likely to succeed on the claim's merits [Doc. 54]. Plaintiffs moved for a third TRO the same day, seeking additional time to say goodbye to Bandit and further restating their previously submitted arguments [Doc. 55]. This Court denied their third TRO Motion that same day [Doc. 56]. Bandit was euthanized on March 2, 2018 [Doc. 63 p. 3]. Plaintiffs then filed their Motion for Leave to File Amended Complaint on March 6, 2018, seeking to add factual allegations from the period following the filing of their First Amended Complaint through Bandit's death [Doc. 57]. Contemporaneously with this Order, a recommendation that Plaintiffs' First Amended Complaint be dismissed has been filed herein.


         Plaintiff seeks leave of the Court pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to file its Second Amended Complaint for Declaratory Relief and Damages [Doc. 57]. Plaintiffs' proposed Second Amended Complaint does not add any new claims, but rather adds factual allegations "to amplify the facts and allegations alleged in the original complaint." Id. ¶ 51. The additional facts primarily involve (1) the health issues of Plaintiffs' lead counsel; (2) the process between the denial of Plaintiffs' second TRO and Bandit's euthanasia; and (3) the alleged "interrogation" of Plaintiffs without their counsel or an interpreter. Defendants object to allowing the amendments, arguing the additional factual allegations do not support Plaintiffs' claim for relief and are thus futile [Doc. 64].

         In their First Amended Complaint, Plaintiffs seemingly argue that the seizure and condemnation of Bandit violated their Fifth Amendment rights and did not afford them proper procedural and substantive due process. This Court has recommended that Plaintiffs' First Amended Complaint be dismissed, finding that Plaintiffs failed to allege facts and state a claim upon which relief could be granted.

         1. Standard of Review

         Rule 15, Fed.R.Civ.P., provides for the amendment of a party's pleadings prior to trial with the written consent of the opposing party or leave of the court, which should be freely given when justice requires. A court may refuse to allow an amendment when the proposed amendment would be futile. Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013). The proposed amendment is futile if the complaint would be subject to dismissal. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) and Jefferson County School Dist. V. Moody's Investor's Service!, 175 F.3d 848, 859 (10th Cir. 1999). The "grant or denial of leave to amend is within the discretion of the trial court and will not be disturbed, absent an abuse of that discretion." Triplett v. LeFlore Cty., Old., 712 F.2d 444, 446 (10th Cir. 1983).

         2. Plaintiffs' Counsel's Health Issues

         Plaintiffs' proposed Second Amended Complaint alleges that their lead counsel, Jay Swearingen ("Swearingen"), underwent emergency gall bladder surgery on February 19, 2018 [Doc. 57-1 ¶ 26]. He was released from the hospital on February 26, but remained "materially unavailable" as he recovered. Id. ¶¶ 29, 34.

         On February 28, Plaintiffs' second TRO motion was denied [Doc. 55]. Plaintiffs immediately reached out to Defendants to determine when Bandit would be euthanized [Doc. 57-1 ¶ 35]. After initially being told that Bandit would not be put down for at least a week, Defendants informed Plaintiffs an hour later that the City's policy was to perform euthanasia on Fridays, which was March 2. Id. ¶¶ 36-37. When Defendants refused to budge on the date, Swearingen was "forced" to file a third TRO because Swearingen's incapacity rendered him unable to "communicate" or read the order denying the previous TRO. Id. ¶¶ 50-51. Swearingen's third TRO was denied on March 1 [Doc. 56], and Bandit was euthanized [Doc. 63 p. 3].

         It is unclear how Plaintiffs believe the above is relevant to their claim. If Plaintiffs are alleging denial of procedural due process, the Court first considers whether Plaintiffs' "possess a protected interest to which due process protection was applicable." Hennigh v. City of Shawnee,155 F.3d 1249, 1253 (10th Cir. 1998). If so, the Court then ...

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