I.G. v. Jefferson County School District

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX MAGISTRATE JUDGE

         This matter is before the Court on Plaintiffs' Unopposed Motion to Accept First Amended Complaint and Jury Demand [#31]^[1] (the “Motion”). The Motion is referred to the undersigned for disposition. See [#40].^[2]

         In the 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.

         Pursuant to Rule 15(a)(1) of the Federal Rules of Civil Procedure, a party may amend its pleading once as a matter of course within:

(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).

         Instead, 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.

         IT IS 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).

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Notes:

^[1] “[#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 Recommendation.

^[2] 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)). Accordingly, ...