Opinion
Civil Action No. 19-cv-00754-PAB-NYW
05-30-2019
JASON G. KIBEL, Plaintiff, v. DEAN WILLIAMS, MATHEW HANSEN, CONKLIN, LEONARD WOODSON, and JASON GUIDRY, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pending before this court is Defendants Dean Williams, Mathew Hansen, Robert Conklin, Leonard Woodson and Jason Guidry's (collectively, "Defendants") Defendants' Rule 12(b)(6) Motion to Dismiss ("the Motion to Dismiss") [#17, filed May 17, 2019] that was referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated April 10, 2019 [#12], and by the Memorandum dated May 20, 2019 [#18].
On May 28, 2019, eleven days after the Motion to Dismiss was filed, Plaintiff Jason G. Kibel ("Plaintiff" or "Mr. Kibel") filed a Motion to Amend the Complaint. The court found and Defendants agreed at the Status Conference held May 29, 2019 [#23], that Mr. Kibel had the right to amend his complaint as a matter of course under Federal Rule of Civil Procedure 15(a)(1)(B) and Local Rule 15.1(a) because it was filed within twenty-one days following the service of a responsive pleading—to wit, the Motion to Dismiss. The court therefore permitted the amendment at the May 29th Status Conference. [Id.].
The filing of an amended complaint moots any motions to dismiss aimed at a now-inoperative pleading. See Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo. 2006) (explaining that an amended pleading moots any motions to dismiss aimed at an inoperative pleading); Strich v. United States, No. 09-cv-01913-REB-KLM, 2010 WL 14826, at *1 (D. Colo. Jan. 11, 2010) ("The filing of an amended complaint moots a motion to dismiss directed at the complaint that is supplanted and superseded."). Accordingly, the court respectfully recommends finding that Defendants' now-superseded Motion to Dismiss is moot and denying it without prejudice to refiling as to the amended complaint. [#25].
Accordingly, it is respectfully RECOMMENDED that:
(1) Defendants Dean Williams, Mathew Hansen, Robert Conklin, Leonard Woodson and Jason Guidry's Defendants' Rule 12(b)(6) Motion to Dismiss [#17] be DENIED WITHOUT PREJUDICE AS MOOT.DATED: May 30, 2019
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and 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 Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review). --------
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge