HomeMy WebLinkAbout2018CV01 - Sutherland V. City Of Fort Collins, Et Al - 011 - Order On Pending IssuesPage 1 of 2
Fort Collins Municipal Court,
Larimer County, Colorado
Court Address: 215 N. Mason St., 1
st
floor
P.O. Box 580
Fort Collins, CO 80522
Court Phone: 970-221-6800
PLAINTIFFS: Eric Sutherland; J&M Distributing, DBA
Fort Collins Muffler and Automotive
v.
DEFENDANTS: THE CITY COUNCIL OF THE CITY OF
FORT COLLINS, the governing body of a Colorado
municipal corporation; and THE ADMINISTRATION
BRANCH OF THE CITY OF FORT COLLINS, by and
through its City Manager, Darin Atteberry
Indispensable Party: Craig Russell
COURT USE ONLY
Civil Case No.: 2018-CIVIL-01
ORDER ON PENDING ISSUES
This matter is before the Court on a number of issues, including Plaintiffs’ filing of an Amended
Complaint without having filed a motion to amend their complaint, and Plaintiffs’ Motion for
Expansion of Time to respond further to the City’s Motion to Dismiss. After having reviewed the file
the Court now FINDS and ORDERS as follows:
I. Amendment of the Complaint
Plaintiffs filed their original Complaint on April 3, 2018. Defendants filed their Motion to
Dismiss on April 25, 2018, to which Plaintiffs’ response was due May 16, 2018 (see C.R.C.P. 121,
Section 1-15 (1)(b)). No such responsive pleading was filed on May 16, 2018; instead, on May 17,
2018, Plaintiffs filed a Combined Motion for Disqualification of Judge pursuant to C.R.C.P. 97 and
Motion for Expansion of Time to respond to the Motion to Dismiss. On that same day, Plaintiffs also
filed an Amended Complaint, but did not file a motion to amend the complaint.
Pursuant to C.R.C.P. 15(a), “[a} party may amend his pleading once as a matter of course at
any time before a responsive pleading is filed . . . [o]therwise, a party may amend his pleading only by
leave of court or by written consent of the adverse party.” This is not merely a “technical” or “make
work” requirement – amending pleadings once a response to them has been filed has the potential to
create a confusion of deadlines and pending issues and a duplication of work. However, Rule 15(a)
also provides that leave to amend shall be “freely given,” and numerous cases stand for the proposition
that the filing of a motion to dismiss does not waive a plaintiff’s right to amend his or her complaint as
a matter of right. See, e.g., Renner v. Chilton, 351 P.2d 277 (Colo. 1960); Grear v. Mulvahill, 207
P.3d 918 (Colo. App. 2009). Plaintiffs created substantial confusion in this case by filing both an
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amended complaint and a partial response to the Motion to Dismiss; nevertheless, given that
Defendants filed a motion to dismiss and not an answer, Plaintiffs were entitled to amend their
complaint as of right under the Rule. Given the holiday weekend, for purposes of counting time for
the submission of their responsive pleading, the Court will deem service of the Amended Complaint
on Defendants to have been accomplished as of Tuesday, May 29, 2018. Going forward, all parties
are expected to comply with C.R.C.P. 15 and all other relevant Rules of Civil Procedure.
II. Plaintiffs’ Motion for Expansion of Time
Given the Court’s ruling on the amendment of the complaint, the Motion for Expansion
of Time is effectively MOOT and is DENIED AS SUCH. The Motion to Dismiss is also MOOT with
the filing of the Amended Complaint and is therefore also DENIED. Defendants point out that
Plaintiffs missed the deadline for filing their response to the Motion to Dismiss. All parties are
advised that the deadlines for filing set forth in the Rules of Civil Procedure are mandatory, not
advisory, and that they are to comply with those filing deadlines going forward.
IT IS SO ORDERED, this 25
th
day of May, 2018.
____________________
Lisa D. Hamilton-Fieldman
Municipal Judge (Temporary)