IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

VICTOR ORVIS, et al.

Plaintiff(s),

vs.

CITY OF PLEASANT GROVE, et al.

Defendant(s).

ORDER GRANTING

MOTION TO AMEND COMPLAINT

Case No: 2:03 CV 430 TS

District Judge Ted Stewart

Magistrate Judge David Nuffer

Plaintiff moved to amend his complaint to add his business, Design Fabricators, Inc., as a Plaintiff.1 The proposed amended complaint varies from the original complaint in four paragraphs, including a new paragraph 2 adding the new plaintiff; paragraphs 22-23 referring to the new plaintiff; and a modified paragraph 24, adding a reference to the new plaintiff. Otherwise the thirty-plus pages and eight causes of action appear unaltered. The deadline for filing motions to add parties or amend pleadings is January 7, 2004.2

Defendants request that the court deny the motion because of Plaintiff's failure to include a proposed amended complaint with the motion; because having to answer the new amended complaint will be burdensome; and because the amendment is futile.3 The better practice is to submit a proposed amended complaint with the motion, but Plaintiff did accurately summarize the amendments, and supplied the proposed amended complaint separately prior to the filing of the motion and with the reply memorandum.4 The burden of answering the amended complaint is not a legitimate concern in evaluating permission to amend. "A court properly may deny a motion for leave to amend as futile when the proposed amended complaint would be subject to dismissal for any reason, including that the amendment would not survive a motion for summary judgment."5 The brief arguments Defendants make against the claims of the new plaintiff are not sufficient to make that determination. The merits of the claims of the new party should be tested in joined pleadings and not on a motion to amend.

IT IS HEREBY ORDERED that the motion to amend6 is GRANTED.

January 6, 2004.

BY THE COURT:

_____________________________

David Nuffer

U.S. Magistrate Judge