United States District Court, D. Colorado
I.G., by and through her parent and guardian, Gabriel Grunspan, and GABRIEL GRUNSPAN, for himself, Plaintiffs,
JEFFERSON COUNTY SCHOOL DISTRICT, through the Board of Education for the Jefferson County School District, UNITED STATES DEPARTMENT OF EDUCATION, through the Secretary of Education, Elizabeth D. DeVos, in her official capacity, and J. Aaron Romaine, in his official capacity as Program Manager, Region VII, and OFFICE FOR CIVIL RIGHTS FOR THE UNITED STATES DEPARTMENT OF EDUCATION, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX MAGISTRATE JUDGE
matter is before the Court on Plaintiffs'
Unopposed Motion to Accept First Amended Complaint
and Jury Demand [#31] (the “Motion”). The
Motion is referred to the undersigned for disposition.
Motion [#31], Plaintiffs seek to file an amended complaint
which corrects typographical errors, includes new factual
allegations, and removes Plaintiffs' third-party
beneficiary contract claim. See Proposed First Am. Compl.
and Jury Demand [#31-1]. Plaintiffs state that they
“believe this Amendment is made timely and is a matter
of right because no responsive pleading has been
filed.” Motion [#31] at 1. Therefore,
Plaintiffs file the Motion [#31] “in the event the
Court considers the government's [Motion to Dismiss
Pursuant to Rule 12(b)(1) or, in the alternative, for Summary
Judgment Pursuant to Rule 56(a) for Failure to Exhaust
Administrative Remedies [#24] (the ‘Motion to Dismiss
or in the Alternative for Summary Judgment')] to be a
responsive pleading.” Id.
to Rule 15(a)(1) of the Federal Rules of Civil Procedure, a
party may amend its pleading once as a matter of course
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b),
(e), or (f), whichever is earlier.
Fed. R. Civ. P. 15(a)(1) (emphasis added). Plaintiffs'
Complaint [#1] was filed on December 19, 2018, and the
instant Motion [#31] was filed on May 31, 2019. The Motion to
Dismiss or in the Alternative for Summary Judgment [#24] was
filed on May 3, 2019, pursuant to Rule 12(b)(1). Accordingly,
given that the deadlines prescribed in subsections (A) and
(B) have elapsed, Plaintiffs may not amend their Complaint as
a matter of right pursuant to Rule 15(a)(1).
Plaintiffs' Motion [#31 ] is more appropriately filed
pursuant to Rule 15(a)(2). 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"
which should be freely given "when justice so
requires." Fed.R.Civ.P. 15(a)(2). Here, Plaintiffs
represent that Defendants do not oppose the proposed
amendment. Motion [#31 ] at 2. Moreover, the Motion
is timely given that a scheduling order has not yet been
entered in this case. For these reasons, and considering that
leave to amend should be freely given, IT IS HEREBY
RECOMMENDED that the Motion [#31] be
GRANTED and that Plaintiffs' tendered
First Amended Complaint and Jury Demand [#31 -1 ] be
ACCEPTED for filing.
HEREBY ORDERED that, pursuant to
Fed.R.Civ.P. 72, the parties shall have fourteen (14) days
after service of this Recommendation to serve and file any
written objections in order to obtain reconsideration by the
District Judge to whom this case is assigned. A party's
failure to serve and file specific, written objections waives
de novo review of the Recommendation by the District Judge,
Fed.R.Civ.P. 72(b); Thomas v. Am, 474 U.S. 140,
147-48 (1985), and also waives appellate review of both
factual and legal questions. Makin v. Colo. Dep'tof
Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley
v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A
party's objections to this Recommendation must be both
timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United
States v. One Parcel of Real Prop., 73 F.3d 1057, 1060
(10th Cir. 1996).
 “[#31]” is an example of
the convention the Court uses to identify the docket number
assigned to a specific paper by the Court's case
management and electronic case filing system (CM/ECF). This
convention is used throughout this Order and
 A magistrate judge may issue orders on
nondispositive motions only. Ocelot Oil Corp. v. Sparrow
Indus., 847 F.2d 1461, 1462-63 (10th Cir. 1988). Whether
motions to amend are dispositive is an unsettled issue in the
10th Circuit. Hatten v. Freeborn, No.
09-cv-02729-CMA-MJW, 2010 WL 1677772, at *2 (D. Colo. Apr.
26, 2010) (citing Chavez v. Hatterman, No.
06-cv-02525-WYD-MEH, 2009 WL 82496, at *1 (D. Colo. Jan. 13,
2009)). When an order on a motion to amend removes or
precludes a defense or claim from the case it may be
dispositive. Sunflower Condo. Ass'n, Inc. v. Owners
Ins. Co., No. 16-cv-2946-WJM-NYW, 2018 WL 1755784, at *1
(D. Colo. Apr. 12, 2018) (quoting Cuenca v. Univ. of
Kan., 205 F.Supp 2.d 1226, 1228 (D. Kan. 2002)).