Opinion
Case No. CIV-20-109-D
06-02-2020
THOMAS CARMICHAEL, Plaintiff, v. JOE ALLBAUGH, et al., Defendants.
ORDER
Before the Court are two motions [Doc. Nos. 6,7] seeking the dismissal of Plaintiff's Complaint. In response, Plaintiff asks the Court for leave to amend his pleading. See Response [Doc. No. 12]. Defendants oppose this request, arguing that Plaintiff's request is not adequately supported, and any amendment would be futile. See Reply [Doc. No. 14].
Federal Rule of Civil Procedure 15(a) provides that a party "may amend [its] pleading once as a matter of course at any time before a responsive pleading is served." FED. R. CIV. P. 15(a). A motion to dismiss is not a typically a responsive pleading within the meaning of Rule 15(a). See Brever v. Rockwell Int' l Corp., 40 F.3d 1119, 1131 (10th Cir. 1994).
Under the present circumstances, Defendants' motions to dismiss are not deemed responsive pleadings. See Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir. 1985) (stating that a "motion to dismiss is treated like a responsive pleading when final judgment is entered before plaintiff files an amended complaint"). Plaintiff, therefore, has a right to amend the complaint as a matter of course, and there is no need for the Court to grant leave. Further, upon amendment, Defendants' motions challenging the sufficiency of Plaintiff's original pleading are moot. See Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (amended complaint "supersedes the original and renders it of no legal effect"); see also May v. Segovia, 929 F.3d 1223, 1228 (10th Cir. 2019); Predator Int'l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177, 1180 (10th Cir. 2015); Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007).
IT IS THEREFORE ORDERED that Plaintiff may file his amended complaint within twenty-one (21) days from the date of this Order.
IT IS FURTHER ORDERED that Defendants' Motions to Dismiss [Doc. Nos. 6, 7] are DENIED AS MOOT without prejudice to resubmission, as appropriate.
IT IS SO ORDERED this 2nd day of June, 2020.
/s/_________
TIMOTHY D. DeGIUSTI
Chief United States District Judge