Free Motion to Strike - District Court of Colorado - Colorado

Case 1:04-cv-01271-EWN-BNB

Document 93

Filed 09/23/2005

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1271-EWN-BNB PATRICK M. HAWKINSON, Plaintiff, v. JAMES A. MONTOYA, and JENELLE BORDEN, in their individual capacities, Defendants. ______________________________________________________________________________ DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S MOTION TO AMEND COMPLAINT IN RESPONSE TO MAGISTRATE'S RECOMMENDATION TO DISMISS ______________________________________________________________________________ Defendants James A. Montoya and Jenelle Borden, by and through their counsel, Hall & Evans, L.L.C., pursuant to Fed. R. Civ. P. 15(a) and 7(b)(1), hereby move this Court to strike Plaintiff's Motion to Amend Complaint in Response to Magistrate's Recommendation to Dismiss, for the following reasons: Plaintiff filed his Complaint on June 21, 2004. Defendants Montoya and Borden were served, and they filed a Motion to Dismiss on December 6, 2004. On August 24, 2005, the United States Magistrate Judge issued his recommendation that Defendants' Motion to Dismiss be granted and that Plaintiff's claims be dismissed. On September 14, 2005, Plaintiff filed a Response and Objection to Magistrate's Recommendation to Dismiss. On the same day, Plaintiff filed a Motion to Amend Complaint in Response to Magistrate's Recommendation to Dismiss. Plaintiff did not submit a proposed Amended Complaint with the Motion.

Case 1:04-cv-01271-EWN-BNB

Document 93

Filed 09/23/2005

Page 2 of 4

Fed. R. Civ. P. 15(a) provides that: A party may amend the party's pleading once as a matter or course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. Plaintiff has failed to comply with the Federal Rules of Civil Procedure and has failed to properly move for leave to amend his Complaint. Defendants request that the Court strike Plaintiff's Motion because: First, Plaintiff failed to provide any basis upon which the Court should consider his Motion. The only reason that Plaintiff offers for seeking leave to amend his Complaint is that he wants "to correct his mistakes or deficient complaint to avoid dismissal as permitted by case law." Plaintiff did not specify the "mistakes" he wishes to correct and did not point out the deficiencies he plans to rectify. He did not provide a reason why he needs to "correct" anything. He has not explained how he will correct the mistakes or deficiencies. As a result, neither Defendants nor the Court have any basis upon which to analyze Plaintiff's Motion, to determine whether the request is justified, and to detemrine whether justice requires that leave be given to amend the Complaint. Second, Plaintiff failed to confer with Defendants' counsel, pursuant to D.C.COLO.LCivR 7.1(A), prior to filing the Motion to Amend Complaint. Third, Plaintiff did not attach a proposed Amended Complaint, thereby denying Defendants and the Court the opportunity to determine whether a proper basis exists for allowing leave to amend. In addition, the failure to attach a proposed Amended Complaint prevents Defendants from determining whether amendment would be futile for its failure to cure deficiencies in the original Complaint. -2-

Case 1:04-cv-01271-EWN-BNB

Document 93

Filed 09/23/2005

Page 3 of 4

For the foregoing reasons, the Court should strike Plaintiff's Motion to Amend Complaint in Response to Magistrate's Recommendation to Dismiss. DATED this 23rd day of September, 2005. Respectfully submitted,

s/ Awilda R. Marquez____________ Awilda R. Marquez, Esq. Special Assistant Attorney General Hall & Evans, L.L.C. 1125 - 17th Street, Suite 600 Denver, CO 80202-2052 303-628-3300 [email protected] ATTORNEYS FOR DEFENDANTS

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Case 1:04-cv-01271-EWN-BNB

Document 93

Filed 09/23/2005

Page 4 of 4

CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 23rd day of September, 2005, I electronically filed the foregoing DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S MOTION TO AMEND COMPLAINT IN RESPONSE TO MAGISTRATE'S RECOMMENDATION TO DISMISS with the Clerk of the Court using the CM/ECF system and hereby certify that I have mailed the foregoing document to the following non-CM-ECF participant by depositing same in the U.S. Mail, postage prepaid, and address as follows: Patrick M. Hawkinson Reg. No. 62702 Arkansas Valley Correctional Facility PO Box 1000 Crowley, CO 81034

s/ Marlene Hightshoe, Secretary_______

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