Civil Action No. 10-cv-01704-PAB-MEH.
October 13, 2010
ORDER GRANTING RENEWED MOTION TO AMEND
Plaintiffs have filed a "Renewed Motion to Amend Complaint Pursuant to Fed.R.Civ.P. 15(a)(2)" [filed September 17, 2010; docket #67]. On September 8, 2010, the Court granted the parties' request to drop The Kempe Foundation for the Prevention of Child Abuse and Neglect from the case caption. This was not the type of amendment contemplated by Fed.R.Civ.P. 15(a). Therefore, Plaintiffs had a right to amend their complaint "once as a matter of course" within the time period described by Rule 15(a).
The current motion requests an amendment that is allowed as a matter of course. Only one group of Defendants oppose the Renewed Motion, Defendants Serotnak, Luna, Chiesa and Faro. Their 12(b)(1) supplemental Motion to Dismiss was filed on August 25, 2010. Plaintiffs filed their initial Motion to Amend Complaint on September 13, 2010, 19 days after these Defendants' supplemental Motion to Dismiss and within the 21-day period contained in Fed.R.Civ.P. 15(a)(1)(B). Although the Court denied that motion without prejudice for failure to attach a proposed amendment complaint, as to Defendants Serotnak, Luna, Chiesa and Faro, amendment of right was permitted. The other Defendants in this case, who do not oppose the Plaintiffs' effort to amend the Complaint, filed their motions to dismiss on August 20, 2010 and did not thereafter supplement the motions. These Defendants are situated differently to Plaintiff vis-a-vis Rule 15(a)'s timing.
The legal precedent of which the Court is aware holds that "[e]ach defendant is treated separately for purposes of amending once as of right." Steven S. Gensler, Federal Rules of Civil Procedure: Rules and Commentary, vol. 1, Rule 15 n. 28 (2009) (citing cases); 18 C. Wright, A. Miller, M. Kane R. Marcus, Federal Practice and Procedure § 1481 (3d ed. 2010). See also, e.g., Scott-Blanton v. Universal City Studios Productions, LLP, 244 F.R.D. 67, 69 (D.D.C. 2007). Accordingly, the Plaintiffs' renewed motion is granted, and the Clerk of Court is directed to enter the First Amended Complaint and Jury Demand located at docket #67-2.
Dated at Denver, Colorado, this 13th day of October, 2010.