United States District Court, D. Colorado
ORDER DENYING PLAINTIFFS' MOTION FOR
KATO CREWS U.S. MAGISTRATE JUDGE.
Order addresses Plaintiffs' Motion for Reconsideration of
the Order striking their Second Amended Complaint
(“Motion”) [#19]. The Court has reviewed the Motion
and its Order Striking the Second Amended Complaint
(“Striking Order”) [#18], and Defendant's
Response [#29]. Oral argument will not assist the Court;
the Court discussed aspects of the Motion with counsel during
a Scheduling Conference on December 3, 2019. [#27.] For the
following reasons, the Court DENIES the Motion.
filed their original Complaint on August 13, 2019. [#1.] On
August 27, 2019, they filed a Notice of Filing Amended
Pleading (“First Notice”), informing the Court of
their intent to file a First Amended Complaint as a matter of
course. [#6.] Plaintiffs represented that their amendments
were “pursuant to Fed. R. Civ. P 15(a)(1)(A), ”
which provides that a party may amend a pleading once as a
matter of course within “21 days after serving
it.” [#6.] The Court accepted the First Amended
Complaint, noting in an Order that “Plaintiffs are
entitled to file their First Amended Complaint as a matter of
course.” [#7.] Plaintiffs subsequently filed the First
Amended Complaint on August 30, 2019. [#8.]
November 18, 2019, Plaintiffs filed a Notice of Filing of
Second Amended Complaint [#16] (“Second Notice”)
and Second Amended Complaint [#17]. In the Second Notice,
Plaintiffs expressly indicated that their amendments were
“pursuant to Fed.R.Civ.P. 15(a)(1)(B).” [#16.]
The Court struck both filings, stating:
Plaintiffs' filed their [#]16 Notice of Filing of Second
Amended Complaint and [#]17 Second Amended Complaint pursuant
to Fed.R.Civ.P. 15(a)(1)(B). Rule 15(a)(1) allows a party to
amend its complaint "once as a matter of course."
All other amendments must be amended pursuant to Fed.R.Civ.P.
15(a)(2). Because Plaintiffs' filed the [#]8 First
Amended Complaint pursuant to Rule 15(a)(1), it may not do so
a second time.
[#18.] Plaintiffs now ask the Court to reconsider its
Striking Order because, according to Plaintiffs, “the
Court has misapprehended the facts.” [#19 at p.2.]
Federal Rules of Civil Procedure do not specifically provide
for motions for reconsideration.” Spring Creek
Expl. & Prod. Co., LLC v. Hess Inv. II, LLC, No.
14-cv-00134-PAB-KMT, 2015 WL 3542699, at *2 (D. Colo. June 5,
2015). Instead, “motions for reconsideration fall
within a court's plenary power to revisit and amend
interlocutory orders as justice requires.” Id.
Judges in this district generally “have imposed limits
on their broad discretion to revisit interlocutory
orders.” Id. Accordingly, courts generally
“consider whether new evidence or legal authority has
emerged or whether the prior ruling was clearly in
error.” Id. “[A] motion for
reconsideration is appropriate where the court has
misapprehended the facts, a party's position, or the
controlling law.” Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Such a
motion is committed to the trial court's discretion.
See Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th
to Plaintiffs' assertion, the Striking Order was not
based on the Court's misapprehension of facts. The facts
are, (1) Plaintiffs filed an original Complaint on August 13,
2019; (2) Plaintiffs filed a First Amended Complaint on
August 30, 2019; (3) Plaintiffs' counsel represented that
he filed the First Amended Complaint under Rule 15(a)(1)(A);
and (4) Plaintiffs tried to file a Second Amended Complaint
on November 18, 2019, under Rule 15(a)(1)(B).
matter of law, Rule 15(a)(1) is the sole means by which
Plaintiffs could amend their Complaint as a matter of course.
Rule 15(a)(1) allows a party to amend a pleading “as a
matter of course” only once. Fed.R.Civ.P. 15(a)(1).
Plaintiffs have sought to amend their complaint twice
“as a matter of course, ” which Rule 15(a)(1)
does not allow. According to Plaintiffs, they never served
the original Complaint, and therefore, they filed the First
Amended Complaint pursuant to some unspecified right to
freely amend their complaint “without consequence under
Rule 15 prior to service.” [#19 at p.3
(emphasis in original).] They argue that Rule 15(a)(1) was
not triggered until they served the First Amendment
Complaint, which then gave them an opportunity to further
amend once “as a matter of course” under Rule
15(a)(1). Plaintiff's cite no authority in support of
these arguments, and the Court found none.
unlimited right to amend a complaint prior to service does
not exist. See Gentry v. Nat'l Multi List Service
Inc., Civ. No. 14-CV-00858-PAB-KMT, 2015 WL 6751103 at
*2 (D. Colo. Nov. 5, 2015). In Gentry, Chief Judge
Brimmer analyzed the intent of the Advisory Committee in
drafting the current version of Rule 15. Id. He
determined that Rule 15(a)(1)(B) applied specifically to
complaints, and he interpreted the Rule as allowing
amendments once as a matter of course at any time
until 21 days after service of a responsive
pleading. Id. Under this interpretation of Rule
15(a)(1), the trigger for amending a pleading once as a
matter of course is “filing” of the pleading, not
“service.” See, e.g., id.
have interpreted Rule 15(a)(1) as providing the outside time
limit to amend a pleading as a matter of course from the time
of filing, as opposed to containing internal triggers that
start a clock on the time to amend. See id.
(interpreting Rule 15(a)(1)(B) as allowing amendment of a
complaint any time until 21 days following service of a
responsive pleading); United States ex rel. Blyn v.
Triumph Grp., Inc., No. 2:12-cv-922-DAK, 2016 WL
1664904, at *3 (D. Utah April 26, 2016) (“[T]he filing
of a pleading is accompanied by a right to amend once as a
matter of course, and that right remains with the party that
filed the pleading until the right is terminated by one of
the time limits described in Rule 15(a)(1).)” This
interpretation is supported by the plain language of Rule
15(a)(1), which states that a party “may amend its
pleading once as a matter of course within”
specified time frames. Fed R. Civ. P. 15(a)(1)(A) and (B).
“Within” is a preposition defined to be
“used as a function word to indicate enclosure or
containment, ” or “used as a function word to
indicate situation or circumstance in the limits or compass
of… .” Merriam-Webster online dictionary,
(last accessed 12/19/19).