United States District Court, D. Colorado
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.
ORDER ON PLAINTIFFS' MOTION TO FILE SECOND
L. CARMAN UNITED STATES MAGISTRATE JUDGE.
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.
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].
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
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
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.
Standard of Review
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).
Plaintiffs' Counsel's Health Issues
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.
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].
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 ...