Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02514-EWN-BNB

Document 49

Filed 07/29/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action Number: KERRY L. COURNOYER, Plaintiff, v. LARRY E. REID, DAVID D. HOLT, DR. WERMERS Defendants. 03-cv-2514-EWN-BNB

DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION SEEKING LEAVE OF COURT TO AMEND PLAINTIFF'S AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. RULE 15(A)

Defendants LARRY E. REID, DAVID D. HOLT, and DR. WERMERS, by and through their attorneys, CAIN & HAYTER, LLP, hereby file their Response to Plaintiff's Motion Seeking Leave of Court to Amend Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. Rule 15(a), filed with this Court on July 15, 2005 and entered on the court's docket as document number 48, and state as follows: On June 3, 2005, U.S. Magistrate Judge Boland entered his recommendation to GRANT Defendant Dr. Wermers' Motion to Dismiss, filed in this matter on January 27, 2005. Plaintiff objected to Judge Boland's recommendation, and Defendant Dr. Wermers' Response to Plaintiff's Objections was filed on June 21, 2005. Plaintiff's Motion Seeking Leave of Court to Amend Plaintiff's Amended Complaint is an attempt to escape the Page 1 of 5

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pending ruling by this Court to grant Defendant's Motion to Dismiss as to Defendant Dr. Wermers, and this Motion should not postpone or interfere with the Court's ruling on Defendant Dr. Wermers' pending Motion to Dismiss. This is Plaintiff's second request to amended his complaint. He has already been allowed to amend his complaint. Defendants Reid and Holt have filed their Answer, and as such, a responsive pleading has been filed in this case. Although Rule 15(a) provides that leave to amend be freely given, it is appropriate to deny a request to amend when a reason for the denial exists. Foman v. Davis, 371 U.S. 378, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Justifications for denial include bad faith, undue delay, dilatory motive, repeated failure to cure defects by amendments previously allowed, undue prejudice to the opposing party if amendment is allowed, and futility of amendment. Id. "It is well settled in this circuit that untimeliness alone is a sufficient reason to deny leave to amend." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365-66 (1993). In addition, this Court may properly deny a motion to amend if the proposed amendment cannot withstand a Motion to Dismiss or otherwise fails to state a claim. If a proposed amendment would be futile, the request to amend may be denied. Emory v. Texas State Bd. of Medical Examiners, 748 F.2d 1023, 1027 (5th Cir. 1984). Therefore, a motion to amend may be denied if the proposed amendment would not withstand a motion to dismiss that complaint or if that complaint fails to state a claim upon which relief may be granted. Ketcham v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992); Dahn v. United States, 127 F.3d 1249, 1251-52 (10th Cir. 1997). If the proffered amendments fail to cure

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the deficiencies of the original complaint, or if the newly asserted claims would be futile, it is appropriate to deny the motion to amend. Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997); Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000). The decision whether to grant a motion to amend the pleadings is generally left to the sound discretion of the district court. Schepp v. Fremont County, Wyoming, 900 F.2d 1448, 1451 (10th Cir. 1990). This Court may properly deny a motion to amend if the proposed amendment cannot withstand a motion to dismiss or otherwise fails to state a claim. Id. (Citing, e.g. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L.Ed. 2d. 222(1962) (futility of amendment adequate justification to refuse to grant leave to amend)). See Jefferson County School District No. R-1 v. Moody's Investor's Services, Inc. 988 F. Supp. 1341(1998), at page 1345,1346. The standard of review applied to a motion to dismiss for failure to state a claim is well-established. This Court must accept as true the Plaintiff's well-pleaded factual allegations and construe them in a light most favorable to plaintiff. Maez v. Mountian State Tel. And Tel., Inc., 54 F.3d 1488, 1496 (10th Cir. 1995). Dismissal for failure to state a claim is appropriate only if the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Id. The Tenth Circuit Court of Appeals has stated that, at this stage, this Court's "function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Miller v. Glanz, 948 F.2d 1562 (10th Cir. 1991).

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The Plaintiff's First Amended Complaint, which was accepted as filed on January 7, 2005 generally deals with the same alleged cause of action as the Plaintiff's proposed Second Amended Complaint. However, there are additions in the proposed Second Amended Complaint. The significant dates alleged in the First Amended Complaint are 7-23-03, 8-4-03, 9-19-03 and 7-23-03. In the proposed Second Amended Complaint, the significant dates alleged are 9-25-03,7-23-03,12-15-04 and 6-13-05. In the proposed Second Amended Complaint, the Plaintiff also adds a party, Lynn Erickson. Defendant object to the Plaintiff's proposed Second Amended Complaint. Defendant Wermers' Motion to Dismiss should be allowed to go forward for ruling with this Court. The Plaintiff has already amended his compliant. The Plaintiff now seeks a second amended complaint. For all the reasons set forth herein, Plaintiff's Motion Seeking Leave of Court to Amend Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. Rule 15(a) should be denied. WHEREFORE Defendants respectfully pray for an Order denying Plaintiff's Motion Seeking Leave of Court to Amend Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. Rule 15(a). Should Plaintiff's proposed Second Amended Complaint be accepted as filed, Defendants request 30 days from the date of such acceptance to file a responsive pleading to said Second Amended Complaint.

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Respectfully submitted this 28th day of July, 2005. Duly signed original is on file at the office of CAIN & HAYTER, LLP

/s/ Kristine K. Hayter Kristine K. Hayter, No. 30357 CAIN & HAYTER, LLP 128 South Tejon, Suite 100 Colorado Springs, Colorado 80903 Telephone: (719) 575-0010 Fax: (719) 575-0020 Email: [email protected] Attorneys For Defendants Reid, Holt and Wermers

CERTIFICATE OF SERVICE I hereby certify that on this 28th day of July, 2005, a true and correct copy of the foregoing DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION SEEKING LEAVE OF COURT TO AMEND PLAINTIFF'S AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. RULE 15(A) was filed with the Court via ECF and a copy was placed in the United States Mail, postage prepaid and addressed to the following: Mr. Kerry L. Cournoyer, No. 100304 Colorado State Penitentiary (D2/24) PO Box 777 Cañon City, Colorado 81215-0999

/s/ Kristi Holtzberg Kristi Holtzberg, Paralegal

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