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Case 1:13-cv-01406-REB-KLM Document 17 Filed 08/29/13 USDC Colorado Page 1 of 3



Civil Action No. 13-cv-01406-REB-KLM




BOSELLI INVESTMENTS ARVADA TWO LLC, doing business as McDonalds,





This matter is before the Court on Defendant’s Motion to Dismiss Pursuant to

Fed. R. Civ. P. 12(b)(6) [Docket No. 8; Filed July 16, 2012] (the “Motion to Dismiss”) and

on Plaintiffs’ Opposed Motion for Leave to Amend Their Complaint [Docket No. 13;

Filed August 6, 2013] (the “Motion to Amend”). On August 6, 2013, Plaintiffs filed a

Response [#12] in opposition to the Motion to Dismiss [#8]. On August 23, 2013,

Defendant filed a Reply [#15]. On August 23, 2013, Defendant also filed a Response [#16]

in opposition to the Motion to Amend [#13]. For the reasons set forth below, the Court

GRANTS the Motion to Amend [#13] and DENIES as moot the Motion to Dismiss [#8].

The Court begins by addressing the Motion to Amend. As a preliminary matter, a

Scheduling Conference has not yet been held, and thus Plaintiff’s request to amend the

Complaint is timely. The Court therefore considers any arguments raised by the parties


Case 1:13-cv-01406-REB-KLM Document 17 Filed 08/29/13 USDC Colorado Page 2 of 3

related to whether justice would be served by amendment. Specifically, the Court should

grant leave to amend “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave

should generally be permitted unless the moving party unduly delayed or failed to cure, the

opposing party would be unduly prejudiced, or the proposed amendment would be futile.

Foman v. Davis, 371 U.S. 178, 182 (1962). In the proposed Amended Complaint [#13-1],

Plaintiffs provide additional pleading information in response to the alleged deficiencies in

the Complaint [#1] raised by Defendant in its Motion to Dismiss. Motion to Amend [#13]

at 1-2.

Defendant argues that Plaintiffs’ amendments are futile. Response [#16] at 4. An

amendment is futile if it would not survive a motion to dismiss. Innovatier, Inc. v. CardXX,

Inc., No. 08-cv-00273-PAB-KLM, 2010 WL 148285, at *2 (D. Colo. Jan. 8, 2010) (citing

Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)). However, the Court notes that

this case is still in its earliest stages. Plaintiffs have neither filed an amended complaint as

a matter of course nor previously sought leave to amend their Complaint. No ruling has

issued on any dispositive motion. A Scheduling Conference has not yet been held and

discovery has not commenced. At this stage of the proceedings, the Tenth Circuit has

expressed that, “[T]he preferred practice is to accord a [party] notice and an opportunity to

amend his [pleading] before acting upon a motion to dismiss for failure to state a claim[.]”

McKinney v. Okla., 925 F.2d 363, 365 (10th Cir. 1991). In the circumstances at hand,

therefore, the Court will not deny leave to amend on the basis of futility. Thus, the Court

permits Plaintiff leave to file an Amended Complaint. See, e.g., Starr v. City of Lakewood,

No. 08-cv-01390-WYD-KLM, 2008 WL 5246158, at *1 (D. Colo. Dec. 16, 2008).



Case 1:13-cv-01406-REB-KLM Document 17 Filed 08/29/13 USDC Colorado Page 3 of 3

IT IS HEREBY ORDERED that the Motion to Amend [#13] is GRANTED.

IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiffs’

Amended Complaint [#13-1] for filing as of the date of this Order.

IT IS FURTHER ORDERED that Defendant shall answer or otherwise respond to

the Amended Complaint on or before September 13, 2013.

IT IS FURTHER ORDERED that the Motion to Dismiss [#8] is DENIED as moot.

See, e.g., Strich v. United States, No. 09-cv-01913-REB-KLM, 2010 WL 14826, at *1 (D.

Colo. Jan. 11, 2010) (citations omitted) (“The filing of an amended complaint moots a

motion to dismiss directed at the complaint that is supplanted and superseded.”);

Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo. 2006) (noting that

defendants’ motions to dismiss are “technically moot because they are directed at a

pleading that is no longer operative”).

DATED: August 29, 2013 at Denver, Colorado.