United States District Court, D. New Mexico
Arash “Asher” Kashanian,
Albuquerque, New Mexico, for Plaintiffs.
Michael Dickman, Santa Fe, New Mexico, for
Defendants Antonio Gutierrez and Anna Montoya.
Luis Robles and Jordon George, Robles, Rael & Anaya,
P.C., Albuquerque, New Mexico, for City Defendants A. Arroyo,
and E. Montijo.
ORDER DENYING PLAINTIFFS'
AMENDED MOTION FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT
MATTER comes on for consideration of Plaintiffs' Amended
Motion for Leave to File Second Amended Complaint filed March
20, 2017. Doc. 172. Upon consideration thereof, the motion is
not well taken and should be denied.
initial matter, the title of Plaintiffs' new complaint is
somewhat of a misnomer. Plaintiffs filed their initial
complaint on October 10, 2016 (Doc. 1), and amended it once
as a matter of course on October 12, 2016 (Doc. 8).
Plaintiffs then filed a Motion for Leave to File a Second
Amended Complaint on February 19, 2017 (Doc. 149), which this
court denied as futile (Doc. 178). In March, over five months
after filing the initial complaint, Plaintiffs filed the
instant motion (Doc. 172), characterizing the attachment as a
“second amended complaint” (Doc. 172-1). However,
this new complaint differs significantly from Plaintiffs'
first proposed second amended complaint, as it drops two
defendants and changes the legal theory underlying
Plaintiffs' claims. Accordingly, Plaintiffs' newly
proposed complaint is more aptly a third amended complaint.
Cf. Marucci Sports, L.L.C. v. NCAA, 751 F.3d 368,
373 (5th Cir. 2014) (characterizing the complaint attached to
plaintiff's motion to amend its second amended complaint
as a third amended complaint).
Federal Rule of Civil Procedure 15(a) provides that leave to
amend should be liberally granted, a court may deny such a
motion for reasons such as “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.” Foman v.
Davis, 371 U.S. 178, 182 (1962). Denial of leave to
amend is also appropriate “when it appears that the
plaintiff is using Rule 15 to make the complaint a moving
target, to salvage a lost case by untimely suggestion of new
theories of recovery, [or] to present theories seriatim in an
effort to avoid dismissal.” Minter v. Prime Equip.
Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (internal
quotation marks and citations omitted). This is precisely
what Plaintiffs have done.
moved for leave to file their third amended complaint after
five Defendants argued that Plaintiffs' motion for leave
to file their second amended complaint should be
denied as futile. Plaintiffs asserted claims against
Defendants in their official capacities without alleging any
municipal custom or policy that violated Plaintiffs'
constitutional rights - an essential element of an
official-capacity claim. See Doc. 160 at 3-5; Doc.
159 at 2-3. The proposed third amended complaint now alleges
individual-capacity claims against Defendants A.
Arroyo and E. Montijo. Doc. 172-1 ¶ 1.
court has repeatedly explained what an official capacity
claim requires and granted motions to dismiss or for summary
judgment accordingly. See Doc. 137 at 4; Doc. 144 at
4-5; Doc. 168 at 5, 12. Defendants Arroyo and Montijo have
argued this point successfully not once, but twice. Docs. 137
(granting Defendants Arroyo and Montijo's motion to
dismiss), 178 (denying Plaintiffs' motion for leave to
file a second amended complaint). Needless to say,
Plaintiffs' repeated failure to cure this deficiency
(until now) weighs against granting leave to file the third
amended complaint. Cf. Foman, 371 U.S. at 182. Just
as a client would not expect a lawyer to advance indisputably
meritless legal theories in light of the pertinent facts, a
lawyer should not expect his adversaries to respond to a
stream of amended complaints that do not fix obvious
denial of leave to amend was warranted in a case where a
plaintiff waited eight months after the original complaint
and over five months after a prior amended complaint to
assert a theory he chose not to advance until his original
theory had been dismissed. Pallottino v. City of Rio
Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994). There, the
court held that “untimeliness alone [is] a sufficient
reason to deny leave to amend, especially when the party
filing the motion has no adequate explanation for the
delay.” Id. (internal quotation marks and
citation omitted). Similarly here, Plaintiffs waited over
five months to amend their complaint to assert a theory they
chose not to advance until their original, conspiracy-based
theories had been dismissed. Moreover, Plaintiffs have not
put forth any explanation for the delay, let alone an
adequate one, despite Plaintiffs' knowledge of the facts
underlying their new theory at the time they filed the
original complaint. See, e.g., Doc. 8 ¶ 73.
This, too, warrants denying Plaintiffs' motion.
THEREFORE, IT IS ORDERED that the Plaintiffs' Amended
Motion for Leave to File Second Amended Complaint filed ...