Payment Brokers Group, LLC v. Agentra, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-02439-MEH
PAYMENT BROKERS GROUP, LLC,
Plaintiff,
v.
AGENTRA, LLC,
DAVID LINDSEY, individually and d/b/a BRIGHT IDEA DENTAL,
MYHEALTHPASS, LLC, and
INNOVATIVE HEALTH INSURANCE PARTNERS, LLC,
Defendants.
ORDER
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Plaintiff’s “Motion for Leave to File Second Amended Complaint and
Join Bio Dental, LLC as a Defendant” (“Motion”). 	ECF 22. 	Plaintiff seeks to amend its First
Amended Complaint, in part, to correct deficiencies Defendants identified in their motion to
dismiss. ECF 18. Defendants filed a three-page response in opposition to the Motion. ECF 25.
The Court requires no further briefing. See D.C. Colo. LCivR 7.1(d). For the following reasons,
the Court grants Plaintiff’s Motion.
Rule 15 of the Federal Rules of Civil Procedures states that after the deadline for amending
a pleading as a matter of course, “a party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court should freely give leave when justice so requires.”
Fed. R. Civ. P. 15(a)(2). “Refusing leave to amend is generally only justified upon a showing of
undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure
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deficiencies by amendments previously allowed, or futility of amendment.” Maloney v. City of
Pueblo, 323 F.R.D. 358, 360 (D. Colo. 2018) (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365
(10th Cir. 1993)).
Particularly instructive here is the Advisory Committee’s comments concerning the 2009
Amendments to Rule 15: “This provision will force the pleader to consider carefully and promptly
the wisdom of amending to meet the arguments in the [Rule 12] motion. 	A responsive motion
may avoid the need to decide the motion or reduce the number of issues to be decided, and will
expedite determination of issues that otherwise might be raised seriatim.” Fed. R. Civ. P. 15
advisory committee’s note, 2009 Amendments. While the note focuses on the rule’s allowance of
amendment once as a matter of course, the committee specifically emphasizes the importance of
allowing amendment to correct deficiencies in the pleading, which may be raised by a Rule 12
motion, and frame the issues to be decided.
In this case, Plaintiff filed the present Motion after the Defendants filed their Rule 12
motion. 	The Court has not entered a scheduling order, so there is no current deadline for
amendment of pleadings. 	Therefore, the Court finds that Plaintiff’s proposed amendment is
timely.1 	Moreover, Plaintiff contends that its proposed Second Amended Complaint responds
directly to Defendant’s Rule 12 motion. Mot. at 4 (“The proposed Second Amended Complaint
addressed 	complaints 	raised 	by 	Defendants 	to 	the 	current 	First 	Amended 	Complaint.”).
Accordingly, the Court finds that it is not necessarily improper to amend a pleading pursuant to
Rule 15 to correct deficiencies in the pleading that are raised in a Rule 12 motion. Further, the
Court perceives no prejudice to Defendants from the requested amendment. Plaintiff avers that
1 Additionally, given there is no need to amend a scheduling order deadline, Plaintiff’s request
does not implicate the “good cause” requirement of Fed. R. Civ. P. 16.
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“[t]here are no new allegations, only clarification of existing issues” in the proposed Second
Amended Complaint. 	Mot. at 4. 	For this reason, the Court finds that Defendants will not be
prejudiced this early in the case, because they have “adequate notice . . . and [have] ample
opportunity to respond.” Bylin v. Billings, 568 F.3d 1224, 1230 (10th Cir. 2009). Additionally,
Defendants do not contend (and the Court finds no authority to hold) that there is any bad faith or
dilatory motive.
Defendants urge the Court to deny leave to amend based on Plaintiff’s “repeated failure to
cure deficiencies.” Resp. at 2. This argument is inapplicable in this instance. Plaintiff amended
its Complaint as a matter of course in response to this Court’s Order to Show Cause. 	ECF 6.
Plaintiff’s amended allegations in the First Amended Complaint concerned jurisdictional issues.
ECF 11. 	Currently, Plaintiff seeks to amend based on deficiencies identified by Defendants’
motion to dismiss. Plaintiff has not had the opportunity to address those concerns. Thus, the Court
will not deny leave to amend for any failure to cure past deficiencies.
Regarding futility, although the Court is aware of case law applying a Fed. R. Civ. P. 12(b)
standard to a futility challenge under Rule 15(a), in exercising its discretion, the Court here must
consider the efficiency of proceeding in this matter. See Fluker v. Federal Bureau of Prisons, No.
07-cv-02426-CMA-CBS, 2009 WL 1065986, at *5 (D. Colo. April 21, 2009) (finding that futility
arguments would be “more efficiently raised in the context of a Rule 12(b)(6) motion”). The Court
finds that any futility argument Defendants might make would more properly be raised and
adjudicated in a Rule 12(b) motion, rather than indirectly through opposition of a Rule 15(a)
motion. Id.
The Court notes that Defendants insist that this Court enter an order disallowing any further
attempts to amend. Id. (“Defendant[s] respectfully request[] that this Court also order Plaintiff’s
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third complaint will be its last attempt at amending its complaint.”). Such a request is properly
raised in a motion, not in a response brief. 	D.C. Colo. LCivR 7.1(d) (“A motion shall not be
included in a response or reply to the original motion.”). Hence, the Court will not consider the
argument at this time.
Accordingly, for the reasons stated above and in the interest of justice, Plaintiff’s “Motion
for Leave to File Second Amended Complaint and Join Bio Dental, LLC as a Defendant” [filed
October 2, 2020; ECF 22] is granted. Plaintiff shall file a clean copy (omit strikethroughs and
underlines) of the Second Amended Complaint on or before October 29, 2020. Defendant shall
file an answer or other response in accordance with Fed. R. Civ. P. 15(a).
In light of this order, Defendants’ motion to dismiss [filed September 14, 2020; ECF 18]
is denied without prejudice with leave to re-file, if Defendants so choose, in response to the
Second Amended Complaint. See Franklin v. Kansas Dep’t of Corr., 160 F. App'x 730, 734 (10th
Cir. 2005) (“An amended complaint supersedes the original complaint and renders the original
complaint of no legal effect.”) (citing Miller v. Glanz, 948 F. 2d 1562, 1565 (10th Cir. 1991)); see
also Robinson v. Dean Foods Co., No. 08-cv-01186-REB-CBS, 2009 WL 723329, at *4 (D. Colo.
Mar. 18, 2009) (citation omitted) (“Generally, when an amended complaint is filed, the previous
complaint is wiped out and the operative complaint is the most recently filed version.”).
Dated at Denver, Colorado, this 26th day of October, 2020.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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