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Benavidez v. Sandia National Laboratories

United States District Court, D. New Mexico

June 21, 2017

LINDA BENAVIDEZ, Plaintiff,
v.
SANDIA NATIONAL LABORATORIES; VARICK TUCKER, Personally, and TIMOTHY GARDNER, Personally, Defendants.

          Timothy L. White V Valdez & White Law Firm, LLC Albuquerque, New Mexico - and - Rachel E. Higgins Rachel E. Higgins Attorney at Law Albuquerque, New Mexico - and - Rachel Berenson Berenson & Associates, P.C. Albuquerque, New Mexico - and - Katherine A. Wray Jane Katherine Girard Wray & Girard P.C. Albuquerque, New Mexico Attorneys for the Plaintiff Linda Benavidez and for the Proposed Plaintiffs Patricia Baca, Rita Luna-Casias, and Thelma Ortiz

          Justin E. Poore Sandia Corporation Albuquerque, New Mexico -- and -- Aaron C. Viets Rodey, Dickason, Sloan, Akin & Robb, P.A.Albuquerque, New Mexico Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Plaintiff's Motion for Partial Reconsideration of this Court's January, 17, 2017 Memorandum Opinion and Order, filed February 3, 2017 (Doc. 87)(“Motion to Reconsider”). The Court held a hearing on March 16, 2017. The primary issue is whether the Court should reconsider its Memorandum Opinion and Order in Benavidez v. Sandia Nat'l Labs., Memorandum Opinion and Order, filed January 17, 2017 (Doc. 84), 2017 WL 2266854 (D.N.M. Jan. 17, 2017)(“Amendment MOO”), wherein it granted in part and denied in part Plaintiff Linda Benavidez' Motion to Withdraw Prior Motion to Amend and Substituted Motion to Amend Complaint, filed August 31, 2016 (Doc. 71)(“Motion to Withdraw and Amend”), which sought to withdraw the Plaintiff's Motion for Leave to Amend Complaint, filed February 10, 2016 (Doc. 30)(“Motion for Leave to Substitute Second Amended Complaint”), which provided as an attachment the Plaintiff's Second Amended Complaint for Damages for Violation of the New Mexico Human Civil Rights Act, Title I and IV of the American with Disabilities Act of 1964, Retaliation and Intentional Infliction of Emotional Distress and the Equal Pay Act of 1963, filed February 10, 2016 (Doc.31)(“Proposed Second Amended Complaint”). The Motion to Withdraw and Amend also requested leave to substitute a proposed third amended complaint -- the Second Amended Complaint for Damages for Violation of Title I and IV of the American with Disabilities Act of 1964, Retaliation and the Equal Pay Act of 1963, filed August 31, 2016 (Doc. 71-1)(“Proposed Third Amended Complaint”) -- which sought addition of three plaintiffs and federal claims, and removal of any state-law claims that the Court had already dismissed in its Amended Memorandum Opinion and Order in Benavidez v. Sandia Nat'l Labs., 212 F.Supp. 1039 (D.N.M. June 27, 2016)(“Preemption MOO”), amending its Memorandum Opinion and Order, filed June 22, 2016 (Doc. 63).[1] In its Amendment MOO, the Court concluded that Benavidez is free to withdraw the Motion for Leave to Substitute Second Amended Complaint under the local rules, and the Court thus allowed Benavidez to so withdraw it. See Amendment MOO at 47-50, 2017 WL 2266854, at *1. The Court also granted leave for Benavidez to file the Proposed Third Amended Complaint with respect to the federal claims she sought to bring, on her behalf, against Defendant Sandia National Laboratories, because the Court concluded that such leave should freely be granted. See Amendment MOO at 50-56, 2017 WL 2266854, at *1. The Court did not, however, grant leave for Benavidez to file her claim under the Equal Pay Act of 1963, 29 U.S.C § 10 206(d)(1), because the Court concluded that it fails to state a claim and thus amendment would be futile. See Amendment MOO at 50-56, 2017 WL 2266854, at *1. As to what the Court termed the “proposed Plaintiffs, ” the Court denies the Motion to Withdraw and Amend as it pertains to them, because: (i) their Equal Pay Act claim similarly failed to state a claim; and (ii) the filing date of their other federal claims did not relate back to a date meeting the statutory limitation for filing such claims, rendering them time barred and futile. See Amendment MOO at 57-68, 2017 WL 2266854, at *1.

         Specifically, Benavidez seeks reconsideration of the Court's conclusion in the Amendment MOO that leave to substitute the Proposed Third Amended Complaint would be futile as to its proposed addition of three new plaintiff-parties -- “proposed Plaintiffs” Patricia Baca, Rita Luna-Casias, and Thelma Ortiz -- because the filing date of their federal claims did not relate back to a date meeting the statutory limitation for filing such claims, rendering them time barred and futile. Benavidez ultimately “requests the opportunity to expand her response on that issue so that the Court has the opportunity to address the effect of the ‘deemed filed' doctrine and the tolling case law.” Motion to Reconsider at 6. Because the Court concludes, in part, that there has not been a manifest injustice, it will deny the Motion to Reconsider in part. The Court, after a thorough review of all the issues Benavidez raises, determines that its conclusion in the Amendment MOO is sound. The Court will leave open the possibility of entering final judgment as to Benavidez' attempt to add proposed Plaintiffs at a later date.

         FACTUAL BACKGROUND

         The Court has already discussed the facts underlying this case in detail. See Preemption MOO, 212 F.Supp. at 1044-48. The Court takes the following recitation of the relevant facts from the First Amended Complaint for Damages for Violation of the New Mexico Human Rights Act, and for Intentional Infliction of Emotional Distress, filed October 15, 2015 (Doc. 1-2)(“First Amended Complaint”), which Benavidez filed originally in the Second Judicial District Court, County of Bernalillo, State of New Mexico. First Amended Complaint at 1.[2]

         Sandia Labs employed Benavidez, a United States citizen and a resident of Albuquerque, New Mexico. See First Amended Complaint ¶ 8, at 6. Defendant Varick Tucker was Benavidez' Human Resource manager, while Defendant Timothy Gardener was Benavidez' manager. See First Amended Complaint ¶¶ 11-12, at 6. Sandia Labs had hired Benavidez as a Neutron Generator Production Specialist on June 1, 2001, see First Amended Complaint ¶ 14, at 7, but she eventually “developed some serious medical conditions which resulted in Plaintiff's life activities being affected, ” First Amended Complaint ¶ 16, at 7. In 2011, the requirements of Benavidez' position changed to include the need for a Trades Degree. See First Amended Complaint ¶ 17, at 7. To obtain a Trades Degree, Benavidez would have had to return to school for college-level courses such as physics, trigonometry, and chemistry, which would have required her to take years of preparatory classes to qualify to take the required classes. See First Amended Complaint ¶ 19, at 7; id. ¶ 42, at 11; id. ¶ 53, at 12.

         Benavidez was told that, if she was unable to obtain the Trades Degree, she would be “bumped” into another similar position at Sandia Labs with the same grade level and pay. First Amended Complaint ¶ 22, at 8. See id. ¶ 42, at 11; id. ¶ 53, at 12. “Instead of being ‘bumped' into a similar position at Sandia Labs, though, Plaintiff was ultimately placed in a position described as a Maintenance Support Technician, ” which “included ‘duties requiring working strenuous positions with exertions of physical effort up to 60 pounds.'” First Amended Complaint ¶ 24, at 8. See id. ¶ 43, at 11; id. ¶ 54, at 12. “She and her co-workers that were put in this position, essentially as tractor/trailer drivers, were the only females working this job.” First Amended Complaint ¶ 25, at 8. See id. ¶ 43, at 11; id. ¶ 54, at 12. “The only other employees in this position were men, with the exception of one other woman over the age of 40 who was also being ‘absorbed' into this new position, and who was ultimately terminated.” First Amended Complaint ¶ 54, at 12.

         “On September 9, 2014, Ms. Benavidez filed a formal charge of discrimination on the basis of sex, age, and equal pay in violation of the New Mexico Human Rights Act, NMSA § 28-1-7 (1978), et seq.” First Amended Complaint ¶ 3, at 5-6. On September 30, 2014, a doctor “with Defendant SNL advised Plaintiff that she was incapable of performing the job duties due to her permanent medical restrictions.” First Amended Complaint ¶ 31, at 9. See id. ¶ 45, at 11; id. ¶ 57, at 13. Accordingly, Benavidez “was placed on a realignment process and was not given any reasonable accommodation.” First Amended Complaint ¶ 32, at 9. See id. ¶ 57, at 13. On April 16, 2015, Sandia Labs terminated Benavidez' employment. See First Amended Complaint ¶ 36, at 10; id. ¶ 66, at 13-14.

         PROCEDURAL BACKGROUND

         On August 27, 2015, Benavidez filed suit in the Second Judicial District Court. See First Amended Complaint at 1. Benavidez had originally failed to serve a complaint upon Defendants, which is why Benavidez instead began the lawsuit by serving the First Amended Complaint. See Notice of Removal at 1, filed October 15, 2015 (Doc. 1). About a month and a half later, on October 15, 2015, the Defendants removed the case to federal court, asserting federal-question jurisdiction. See Notice of Removal at 1-7. Benavidez asserted three causes of action against all of the Defendants: (i) discrimination on the basis of age in violation of the New Mexico Human Rights Act, N.M. Stat. Ann. §§ 28-1-1 to -14 (“NMHRA”), First Amended Complaint ¶¶ 38-48, at 10-12 (Count I); (ii) discrimination on the basis of sex in violation of the NMHRA, see First Amended Complaint ¶¶ 49-62, at 12-13 (Count II); and (iii) intentional infliction of emotional distress, see First Amended Complaint ¶¶ 63-73, at 13-14 (Count III). Benavidez asked the Court for judgment against the Defendants “for all actual, compensatory, nominal, and emotional damages she has suffered . . . [, ] punitive damages for Defendants' willful, wanton, and reckless conduct . . . [, ] attorneys' and other fees, costs, and pre-and post-judgment interest accrued[, ] and for such other relief as the Court finds just and proper.” First Amended Complaint at 14-15.

         1. The January 20, 2016, Hearing.

         The Court held a hearing on January 20, 2016. See Transcript of Hearing (taken January 20, 2015)(“January Tr.”).[3] At the hearing the Defendants briefly set forth their argument that federal law preempts Benavidez' claims, and the Court asked the Defendants whether they agree that all of Benavidez' claims are state claims and that there are no federal claims. See January Tr. at 2:12-3:25 (Court, Poore). The Defendants responded that there are only state law claims in the First Amended Complaint. See January Tr. at 4:1-2 (Poore). They further stated, however, that Benavidez had sent them a proposed second amended complaint, in which Benavidez asserts claims on behalf of herself and of three additional former Sandia Labs employees under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”); the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 to 634 (“ADEA”); and the Americans with Disabilities Act, 42 U.S.C. §§ 12201 to 12213 (“ADA”). January Tr. at 4:3-15 (Court, Poore). The Court stated that, under the preemption doctrine, one of the bases for federal court jurisdiction is that, even though the complaint's face does not raise any federal claims, if there is a preemption defense, that defense is enough for a defendant to remove a case to federal court. See January Tr. at 4:19-24 (Court). The Defendants agreed and argued that, under the artful pleading doctrine, a plaintiff cannot fail to include factual allegations to avoid federal jurisdiction. See January Tr. at 4:25-5:3 (Poore). They contended that, in this case, Benavidez fails to plead allegations to avoid federal jurisdiction by omitting the references to the CBAs. See January Tr. at 5:3-5 (Poore). The Defendants added that, with respect to Benavidez' request for remand, “there is an alternative basis for federal jurisdiction, which is that the actions took place on a federal enclave, and so remand would be inappropriate regardless of how far the Court rules on the preemption claim.” January Tr. at 5:11-16 (Poore). The Defendants also confirmed that they cited that basis of jurisdiction in their Notice of Removal. See January Tr. at 5:17-19 (Court, Poore).

         Benavidez then argued the Motion to Dismiss. See January Tr. at 6:21-23 (Court, Higgins, Poore). Benavidez began by emphasizing that “preemption is only required if the state claim is inextricably intertwined with the consideration of the terms of the labor contract.” January Tr. at 6:23-7:1 (Higgins). According to Benavidez, her claims for sex and age discrimination are not inextricably intertwined with the CBA's terms, and there is nothing in the CBA that would have anything to do with discrimination. See January Tr. at 7:5-13 (Higgins). She maintained, therefore, that § 301 preemption does not apply. See January Tr. at 7:9-20 (Higgins). Benavidez then largely restated her arguments from her briefing. See January Tr. at 9:3-10:4 (Higgins). The Court expressed concern that the conduct alleged does not appear to meet the standard of being outrageous. See January Tr. at 10:5-20 (Court). Benavidez responded that it was premature to dismiss the claim and that she would like an opportunity to do some discovery. See January Tr. at 10:5-11:3 (Higgins). Benavidez also agreed that the Court can likely decide whether there is § 301 preemption in this case. See January Tr. at 12:11-13:5 (Court, Higgins).

         The Court then asked Benavidez where she is going with the case by adding additional people and bringing federal claims. See January Tr. at 13:6-8 (Court). Benavidez stated that attorney Rachel Berenson was present and could better address that question. See January Tr. at 13:9-11 (Higgins). Ms. Berenson then argued. See January Tr. at 13:12-17 (Berenson, Court, Higgins). She agreed that the Defendants will likely prevail on the issue of federal enclave jurisdiction. See January Tr. at 13:17-15:17 (Berenson, Court). She further stated that they have received additional Equal Employment Opportunity Commission right-to-sue letters regarding the three other Plaintiffs, and that they have been trying to draft a complaint to include federal claims for discrimination both for the three additional Plaintiffs and for Benavidez. See January Tr. at 14:3-12 (Berenson). Ms. Berenson explained that they could go about it in two separate ways: (i) file a separate lawsuit for the additional Plaintiffs; or (ii) file a motion for leave to amend Benavidez' Complaint to include the federal claims and incorporate the additional plaintiffs. See January Tr. at 14:7-19 (Berenson). The Court asked whether, given that the Defendants have not filed an answer, Benavidez has the ability to file an amended complaint as of right. See January Tr. at 15:18-22 (Court). Ms. Berenson responded that she believed that Benavidez would need the Court's permission, because the time frame had already lapsed even though the Defendants had not yet filed an answer. See January Tr. at 15:23-16:3 (Berenson).

         The Court then asked the Defendants whether, given that the Plaintiffs have indicated that the Defendants likely will prevail on the remand issue, they might allow the Plaintiffs to bring their suit here in one case. See January Tr. at 16:9-15 (Court). The Defendants responded that they would prefer that all of the Plaintiffs and claims be in one case, but that all of the parties would benefit from the Court ruling on the § 301 preemption question. See January Tr. at 16:16-17:2 (Poore). The Defendants also clarified that they are arguing that, as with the intentional-infliction-of-emotional-distress claim, Benavidez' sex-and-age discrimination claims do not state a claim upon which relief can be granted. See January Tr. at 18:23-19:19 (Poore). The Defendants made the final point that, although Benavidez did not concede federal enclave jurisdiction, she suggested that the intentional infliction of emotional distress claim might survive even if the Court has such jurisdiction. See January Tr. at 20:7-11 (Poore). According to the Defendants, however, New Mexico first recognized the tort of intentional infliction of emotional distress in 1972, well after the New Mexico Legislature passed the NMHRA in 1969. See January Tr. at 20:7-11 (Poore). They therefore contended that they believe that “all of the state law claims will ultimately be disposed of under federal enclave jurisdiction.” January Tr. at 20:7-19 (Poore).

         Benavidez responded that they were relying on a 1937 case, which they contended allowed for damages and recognized a claim for emotional distress. See January Tr. at 21:2-10 (Higgins). Benavidez also clarified that the question of sex-and-age discrimination does not rely on the CBA. See January Tr. at 20:25-22:4 (Higgins). The Court responded:

Does that require any construction of the contract? I mean [what I] understand the plaintiffs are saying[, i]t's kind of irrelevant whether the contract required bumping or didn't require bumping, they don't care, they're just saying [] the manager came in and said this is what occurred on the basis of what the manager said, [and] that's where the sexual or age discrimination occurred. Does it really require the Court to construe in any way the CBA[?]

         January Tr. at 22:5-14 (Court). The Defendants responded that they read the First Amended Complaint as arguing that Benavidez should have bumped or displaced another employee. See January Tr. at 22:15-17 (Poore). They further explained: “I don't believe an argument that her supervisor told her one thing and something different ended up happening has anything to do with [age] or sex discrimination, and so if you actually look at that, it's at best, a contract claim.

         At worst it's not a claim at all.” January Tr. at 22:17-22 (Poore).

         The Court then stated:

Let me take a look at this. I still have a recollection I thought it was maybe that [T]ru[] [Solutions], that [Westinghouse] case out of the [WIPP] [c]ite[, ] maybe it wasn't. I thought I had a [§] 301 preemption and I thought I'd construed it narrowly but let me give that some thought. It sounds like I'm going to [have] federal jurisdiction one way or another here so I'm inclined to dismiss the intentional infliction of distress[;] I think I've had enough of these in the employment context. I'll have to look at the allegation to see whether they satisfy Iqbal an[d] Twombly. That's really [what I] understand Sandia to be raising [about] the state law claims on the substance, but the only one I really have a feel for is maybe the intentional infliction of emotional distress. So I'll have to give that some consideration. It sounds like the plaintiffs are not contesting or at least indicating that this federal enclave which I have had no experience with, so I'll have to take a look at it for the first time, it sounds like that's sufficient to confer jurisdiction, so it doesn't look like it's a remand situation and the case will remain here in Federal Court. I understand that the intentional infliction might survive or be around before the federal enclave but I'm not sure that would save it even under state law.
I'll hear the plaintiff[']s motion to stay. I'll give you my thoughts. I guess I was inclined to think that the defendant was right, at some point I've got to decide this 301 issue. It may not be exactly what you[r] next complaint is. But it sound[s] like I'm going to have to get into it at some point, and I know you may be amending your complaint and things like that, but . . . those [sort] of things I've got to decide[;] it's just delaying things for me not to go ahead and decide it. So I was inclined to deny it. [I will g]o ahead and have Ms. Wild send out a [notice for an initial scheduling conference] and try to have the opinion out to you by the time I see you at the initial scheduling conference, so we can keep the case moving for all sides and hopefully I'll have [that] opinion out to you. It will give you some guidance on whether we're going to have these state claims in or out and maybe by that point the plaintiffs will know what they're going to do with their complaint and be ready to go on that.

January Tr. at 22:23-24:20 (Court).

         Benavidez then noted the Defendants could also raise this § 301 preemption argument as to the additional claims that she and the three additional Plaintiffs will bring. See January Tr. at 25:4-10 (Berenson). She asserted that the Court would then have to revisit this preemption issue again with all of the additional Plaintiffs. See January Tr. at 25:10-12 (Berenson). The Court responded that, even if it might need to decide these § 301 preemption issues as to each Plaintiff, it might make sense to go ahead and deal with them as to Benavidez. See January Tr. at 25:13-21 (Court). The parties would then have the Court's thoughts on preemption under § 301, and they could then move onto the three additional Plaintiffs. See January Tr. at 25:13-21 (Court). Benavidez stated that she understood that rationale, but explained that they had not yet received right-to-sue letters from the Human Rights Division, which would require additional time before they could bring forth all of the other Plaintiffs. See January Tr. at 25:24-26:5 (Berenson). The Defendants expressed concern about having to refile the Motion. See January Tr. at 26:6-17 (Court, Poore). The Court concluded by stating:

Well, I think that it will probably be helpful to the Court and really to the parties for me to go ahead and get this 301 issue resolved. So I'm going to deny the motion to stay. Usually if the plaintiffs want to put their [case] on [ice], I'm pretty sympathetic to that, let them kind of control the case, but I think in this situation where we've had a hearing, we've had all the briefing, go ahead and get this issue decided, and I think it will give guidance to us down the road. I think once I figure it out it will probably help us more expeditiously decide 301 issues for the other three plaintiffs.

         January Tr. at 26:19-27:16 (Court).

         2. The Preemption MOO Dismissing Benavidez' State Claims.

         The Court issued the Preemption MOO after the January 20, 2016, hearing. The Preemption MOO decides:

First, the Court concludes that the LMRA's § 301 does not preempt Benavidez' age and sex discrimination claims brought pursuant to the NMHRA. Second, the Court concludes that the LMRA's § 301 partially preempts Benavidez' intentional-infliction-of-emotional-distress claim. The Court concludes that, to the extent that Benavidez bases her intentional infliction of emotional distress claim on Gardener's “belittl[ing] and berat[ing]” her “for not being able to complete the course work she took in preparation for attempting to obtain a Trades Degree, ” § 301 does not foreclose Benavidez from asserting an intentional infliction of emotional distress claim. See Complaint ¶ 64, at 13. The Court concludes, however, that § 301 preempts Benavidez' intentional-infliction-of-emotional-distress claim to the extent that it is based on: (i) the Defendants' downgrading of Benavidez and putting her in a position for which she was not qualified, either by experience or physical abilities, rather than allowing her to move into another Grade 8 position, see Complaint ¶ 64, at 13; and (ii) the Defendants doing nothing to help her find another, more appropriate position after she complained to management multiple times and asked for help in her new position, and their ultimate termination of Benavidez for being unable to perform the new position, see Complaint ¶ 65, at 13. The Court nonetheless dismisses the portion of Benavidez' intentional-infliction-of-emotional-distress claim that § 301 preempts, because Benavidez has not demonstrated that she exhausted her remedies under the CBA.[4] See Allis-Chalmers Corp. v. Lueck, 471 U.S. [202, 220-21 (1985)](concluding that complaint should have been dismissed for failure to make use of the grievance procedure established in a collective-bargaining agreement or dismissed as pre-empted by § 301). Third, the Court concludes that Benavidez states a claim for sex and age discrimination under the NMHRA. Fourth, the Court will dismiss the claims against the individual defendants --Gardner and Tucker -- because Benavidez has not exhausted her administrative remedies against them. The Court concludes, however, that Benavidez has exhausted her administrative remedies for the conduct alleged in support of her NMHRA discrimination claims that took place after she filed her Charge of Discrimination on September 9, 2014. Fifth, with respect to the portion of Benavidez' intentional-infliction-of-emotional-distress claim that § 301 does not preempt, the Court concludes that Benavidez does not state a claim upon which relief can be granted. In sum, the Court is left with two state-law discrimination claims brought under the NMHRA. While the Court concludes that it retains federal enclave jurisdiction over this action, and therefore denies Benavidez' request in the Response that the Court remand this action to state court, it must dismiss Benavidez' three claims -- including those brought under the NMHRA --pursuant to the federal enclave doctrine.

Preemption MOO, 212 F.Supp. at 1044-45.

         3. Motion for Leave to Substitute Second Amended Complaint.

         Benavidez filed the Motion for Leave to Substitute Second Amended Complaint on February 10, 2016. See Motion for Leave to Substitute Second Amended Complaint at 1. The amendment deadline in the Scheduling Order was April 30, 2016. See Scheduling Order, filed March 2, 2016 (Doc. 35). “The Amended Complaint includes three (3) additional Plaintiffs who have similar claims arising out the same or similar conduct by their former employer, Defendant Sandia Corp. and the additional violation charge of the Equal Pay Act[, 29 U.S.C. § 206(d)].” Motion for Leave to Substitute Second Amended Complaint at 2. The three additional Plaintiffs have, according to the Motion for Leave to Substitute Second Amended Complaint, received “Right to Sue letters dated November 24, 2015, November 25, 2015 and November 30, 2015 and have received their letter of Non Determination from Human Rights Bureau on January 27, 2016.” Motion for Leave to Substitute Second Amended Complaint at 2. The Motion for Leave to Substitute Second Amended Complaint asserts that the Court and the Defendants were aware that Benavidez was awaiting the additional Plaintiffs' “Right to Sue Letters” before she filed this impending Motion for Leave to Substitute Second Amended Complaint. Motion for Leave to Substitute Second Amended Complaint at 2-3. “Plaintiff further requests leave to amend the Complaint such that the caption may be amended to accurately reflect the nature to withdraw [sic] her claims against Defendant Gardner and Defendant Tucker and to add additional exhausted claims and additional Parties.” Motion for Leave to Substitute Second Amended Complaint at 3.

         The Proposed Second Amended Complaint, attached to the Motion for Leave to Substitute Second Amended Complaint, however, retains the same claims in the First Amended Complaint that the Court's Preemption MOO dismissed. See Proposed Second Amended Complaint at 1-24. Specifically, the Proposed Second Amended Complaint “essentially re-states th[e] [Intentional Infliction of Emotional Distress (“IIED”)] claim, as well as the New Mexico Human Rights Act age and sex discrimination claims that are subject to the [Preemption MOO].” Defendants' Response to Plaintiff's Motion for Leave to Amend Complaint at 2, filed March 7, 2016 (Doc. 38). More specifically, the Proposed Second Amended Complaint alleges “Count I: Discrimination on the Basis of Serious Medical Condition in Violation of the New Mexico Human Rights Act and Title I of the American Disability Act, ” Proposed Second Amended Complaint ¶¶ 123-34, at 16-17; “Count II: Discrimination on the Basis of Sex in Violation of the New Mexico Human Rights Act and/or Title VII of the Civil Rights Act Against Defendant Sandia Corporation, ” Proposed Second Amended Complaint ¶¶ 135-49, at 17-19; “Count III[:] Retaliation Against Defendant Sandia Corporation, ” Proposed Second Amended Complaint ¶¶ 150-58, at 19-20; “Count IV: Violation of the Age Discrimination in Employment Act, ” Proposed Second Amended Complaint ¶¶ 159-69, at 20-21; “Count V: Intentional Infliction of Emotional Distress, ” Proposed Second Amended Complaint ¶¶ 170-83, at 21-22; and “Count VI: The Equal Pay Act of 1963, ” Proposed Second Amended Complaint ¶¶ 184-88, at 22-23. On July 1, 2016 -- following the Court's issuance of the Preemption MOO -- Benavidez submitted the Plaintiff's Supplemental Briefing on Doc. 30, Motion for Leave to Amend Complaint, filed July 1, 2016 (Doc. 65)(“Supplemental Briefing”), making minor changes to the Proposed Second Amended Complaint. Supplemental Briefing at 1-2. The Supplemental Briefing, in particular, renumbers paragraphs, discusses grievances that the Plaintiffs made before the Metal Trade Council, makes more specific allegations, adds a punitive damages claim, and changes the anticipated month of filing. See Supplemental Briefing at 2. Importantly, the Supplemental Briefing provides that, despite the Preemption MOO, “[i]n order to preserve the record for any appeal and on behalf of the new proposed Plaintiffs, Plaintiff has not removed the state law claims that the Court dismissed in the Amended Memorandum Opinion and Order [Doc. 64].” Supplemental Briefing at 2.

         4. Motion for Leave to Substitute Second Amended Complaint Response.

         Sandia Labs responded to the Motion for Leave to Substitute Second Amended Complaint with the Defendants' Response to Plaintiff's Motion for Leave to Amend Complaint, filed March 7, 2016 (Doc. 38)(“Motion for Leave to Substitute Second Amended Complaint Response”). The Motion for Leave to Substitute Second Amended Complaint Response objects to the Motion for Leave to Substitute Second Amended Complaint, because the “Plaintiff's proposed amendment would be futile, cause undue delay, and cause undue prejudice to Defendant Sandia Corporation.” Motion for Leave to Substitute Second Amended Complaint Response at 1. Essentially, Sandia Labs requests that the Court not allow Benavidez to amend the First Amended Complaint until after the Court issues its Preemption MOO resolving the issues Sandia Labs raised in its Motion to Dismiss. See Motion for Leave to Substitute Second Amended Complaint Response at 3. The Motion for Leave to Substitute Second Amended Complaint Response concludes by stating:

Plaintiff's proposed amendment is -- at least as to the state law claims -- futile. Furthermore, the filing of a second amended complaint before the Court completes and issues its decision on Defendants' motion to dismiss would moot that motion and effectively nullify the work that has gone into arguing and deciding the motion, causing undue delay and undue prejudice to Sandia. Defendants' respectfully request that the Court deny Plaintiff leave to amend her complaint until after a decision is issued on Defendants' motion to dismiss, and in no event should it be granted with regard to state law claims that Sandia has already identified as defective.

          Motion for Leave to Substitute Second Amended Complaint Response at 3.

         5. The Motion for Leave to Substitute Second Amended Complaint Reply.

         Benavidez replied to the Motion for Leave to Substitute Second Amended Complaint Response with the Plaintiff's Reply to Defendant's Response to Plaintiff's Motion for Leave to Amend Complaint, filed March 21, 2016 (Doc. 43)(“Motion for Leave to Substitute Second Amended Complaint Reply”). The Motion for Leave to Substitute Second Amended Complaint Reply offers a path forward for the Court, stating initially that the “Plaintiff is attempting to comply with Court's Scheduling Order [Doc. 35] deadline by moving to amend the pleadings and to join additional parties in compliance with Fed.R.Civ.P. 15(a).” Motion for Leave to Substitute Second Amended Complaint Reply at 1. Accordingly, the Motion for Leave to Substitute Second Amended Complaint Reply explains that the

Plaintiff's deadline to move to amend the pleadings and to join additional parties is April 30, 2016. The three (3) proposed joining plaintiffs had a deadline to file an appeal from the Human Rights Department or the Employee Equal Opportunity Commission before February 24, 2016 and February 30, 2016, and therefore it is critical that this Court grant Plaintiff's motion for leave to amend to adjoin these additional three (3) plaintiffs. If the Court does not grant Plaintiff's motion to amend the complaint the three (3) additional Plaintiffs' will be forced to file a new lawsuit and bring Defendant into separate proceedings and waste the Court's valuable time and resources.

         Motion for Leave to Substitute Second Amended Complaint Reply at 2. Thus, according to the Motion for Leave to Substitute Second Amended Complaint Reply, Benavidez will, “[u]pon the Court's decision on Defendants' motion to dismiss, . . . again amend their second amended complaint to properly reflect the court's decision if it alters the ability to bring any of the claims.” Motion for Leave to Substitute Second Amended Complaint Reply at 2. Benavidez also provides that the “[p]roposed Joining Plaintiffs request this Court to allow them to pursue their right to adjoin and appeal their decisions of the Employee Equal Opportunity Commission and the Human Rights Department.” Motion for Leave to Substitute Second Amended Complaint Reply at 2.

         6. The May 16, 2016, and June 23, 2016, Hearings.

         The Court held hearings on May 16, 2016, and June 23, 2016. See Transcript of Hearing, taken May 16, 2016 (“May Tr.”); Transcript of Hearing, taken June 23, 2016 (“June Tr.”). At the May 16, 2016, Hearing, the Court had not yet issued its Preemption MOO, so the Court suggested:

Since we've already argued the motion I've already given my inclination and think I know what I'm going to do is if I could just grant this motion for leave to amend the complaint and then whatever I say as to Ms. Benavidez in the motion to dismiss so we don't have to reinvent everything we've done, just apply that equally to Tucker and Gardener, and I think the big issue is going to be the intentional infliction of emotional distress and I probably am not going to find in too many employment context[s] and I did sit down and read the complaint here last night, I just am not certain I'm going to find it. But then I just enter an order, the opinion as to I can do it as to the amended complaint or I can just say it's going to apply to the amended complaint. But I'm wondering if maybe we can cut through that by assuring Sandia that they don't have to reargue this thing, whatever I say there I'll apply it to Tucker and Gardener, but go ahead and get the amended motion on file. But Ms. Berenson it's your motion if you wish to argue in support of it.

May Tr. at 3:11-4:7 (Court). Benavidez indicated, then explained, that they had added new facts to the Proposed Second Amended Complaint, and that they would be happy to have the Court allow them to file the Proposed Second Amended Complaint and then apply the Preemptive MOO, once it was filed, to that pleading as well. See May Tr. at 4:18-21 (Berenson). Even though all parties agreed with that proposal, Benavidez immediately backed away from that proposal and indicated that “it's just difficult because we've added so many more facts in regards to other plaintiffs as well. So it would be unjust for them to have a ruling” in this manner. May Tr. at 6:4-6 (Berenson). The Court agreed that its initial proposal thus would not work and instructed Benavidez to “make your own decision whether you want to file separate cases” given the proposed addition of new Plaintiffs, and

if you need to file separate cases, you can. If I get the opinions out and you want to bring it back here, us pick this up, I'll just hold this for the time being, I won't rule on it, and then you can make a decision. You'll just have to be the judge of your own time.

         May Tr. at 6:7-16 (Court). The Court thus did not hear Benavidez' Motion for Leave to Substitute Second Amended Complaint at the May 16, 2016, Hearing. See May Tr. at 6:7-16 (Court).

         The Court once more heard argument on the Motion for Leave to Substitute Second Amended Complaint at the June 23, 2016, Hearing. See June Tr. at 1:1 (Court). The Court issued the Preemption MOO on the evening before the hearing, and the Court inquired of the parties whether, “if with the opinion out if y'all might be able to . . . agree to whether it should be amended, but I don't know.” June Tr. at 3:1-4 (Court). Benavidez responded that they had not yet talked to Sandia Labs, but that they probably would want the Court to set another hearing on the Motion for Leave to Substitute Second Amended Complaint, because they may need to supplement that motion in light of the Preemption MOO's guidance, for which they needed “a little more time to digest.” June Tr. at 3:5-16 (Higgins). Sandia Labs agreed, and the Court set a hearing for August 25, 2016. See June Tr. at 6:10-12 (Poore, Court).

         7. The August 25, 2016, Hearing.

         The Court held a hearing on August 25, 2016. At the hearing, the Court addressed, in part, the Motion for Leave to Substitute Second Amended Complaint. See Transcript of Hearing, taken August 25, 2016 at 2:4-5 (Court)(“Tr.”). The Court reminded the parties:

We started a hearing and I tried to work out an agreement [where] we could have the motion to dismiss that was pending[, ] and I have not been able to get the opinion out[, ] [and the opinion] would apply to all the new people, but we weren't able to reach that agreement. So we adjourned that hearing for motion for leave to amend the complaint.

Tr. at 2:4-11 (Court). The Court continued: “I finished my work on that opinion, so where are we on the motion for leave to amend? Do you still want to file this complaint?” Tr. at 2:11-14 (Court). Benavidez responded that she wished to argue in favor of the Motion for Leave to Substitute Second Amended Complaint and Supplemental Briefing, and that one reason that the Proposed Second Amended Complaint still contains the state claims that the Court has dismissed is because

[t]he February amended complaint was designed to become a federal complaint. It was designed to contain the allegations [] necessary not just to bring forth the state claims that are pending, but also to bring those [] federal claims. And the intent has been to include everything in this amended complaint so we're not hiding the ball so we do not have to amend again . . . .

Tr. at 4:4-17 (Girard). Further, with respect to why Benavidez filed the Motion for Leave to Substitute Second Amended Complaint instead of waiting for the Preemption MOO, Benavidez indicated that “we had three additional plaintiffs to add who had been issued their right to sue letters, and they had a statutory deadline to meet.” Tr. at 3:14-24 (Girard). The Court was hard pressed, however, to understand “why go through all that motion if I spent a lot of time dealing with the []motion to dismiss, why put them all back in the case[, ] I just don't get that.” Tr. at 4:18-21 (Court). The Court thus asked Benavidez if she has “a complaint that you can propose to the Court and parties that conforms to the Court's opinion, ” Tr. at 5:1-3 (Court), to which Benavidez replied that she could “prepare that pretty quickly, ” Tr. at 5:4-5 (Girard).

         Sandia Labs then addressed the Court, arguing that its “primary objections are the same as the courts, which is that they include and in some instances double down on the state law claims which you have already dismissed.” Tr. at 7:22-25 (Poore). Benavidez then interjected and explained that “what I would like, at the end of this process, [is] for a ruling that makes clear or a complaint that makes clear that the new plaintiffs are also subject to the Court's prior ruling.” Tr. at 10:13-17 (Girard). To achieve this goal, Benavidez explained that what she proposes is

to file this complaint as written, followed by the order that says that the Court's ruling applies to all plaintiffs, the Court's previous ruling in the motion to dismiss applies to all plaintiffs and claims in this complaint. We thought that that satisfied it and made it easier, but obviously it has not . . . .

Tr. at 10:21-11:5 (Girard). Benavidez then reiterated that she simply wanted a clean slate, with a federal-court complaint that brings both her original state claims and the new federal claims, and includes herself and the three additional Plaintiffs, and that in no way did she expect that the Preemption MOO would not to apply to that new complaint or to the additional Plaintiffs. See Tr. at 11:18-25 (Girard).

         Accordingly, Benavidez apologized for causing the Court frustration and stated that, because there was not a complaint before the Court at the present time, she was not prepared to argue her First Motion to Compel Production of Documents, filed May 2, 2016 (Doc.52)(“Motion to Compel”). Tr. at 13:1-6 (Girard). The Court then took the Motion to Compel under advisement, without hearing argument, and stated that it would “get an opinion out to you and an order denying your motion to amend and then we'll figure out how to go from there.” Tr.at 13:7-13 (Court). Upon giving the parties one last chance to address the Court, Sandia Labs provided:

Your Honor, I do want to make sure we're also being transparent that if the motion to amend is denied, it would be our understanding that at least many of the federal claims on the additional three plaintiffs would be outside the statute of limitations. So when I indicated that we weren't filing a motion to dismiss on the federal claims that was based on this[, ] I don't want to say that that would be our position for a third amended complaint.

Tr. at 13:15-24 (Poore). Benavidez then took the opportunity to reiterate that the statutory deadline Sandia Labs mentioned was one of the motivating factors in filing the Motion for Leave to Substitute Second Amended Complaint as it did and when it did. See Tr. at 14:1-9 (Girard). The Court then denied the Motion for Leave to Substitute Second Amended Complaint “as to the way it's filed.” Tr. at 14:10-11 (Court).

         8. The Motion to Withdraw and Amend.

         Before the Court had the opportunity to formally deny by opinion and order the Motion for Leave to Substitute Second Amended Complaint with a Memorandum Opinion and Order, Benavidez filed the Motion to Withdraw and Amend on August 31, 2016. See Motion to Withdraw and Amend at 1. The Scheduling Order had been vacated on June 10, 2016. See Order Granting Plaintiff's Unopposed Motion to Vacate the Scheduling Order and Reset Deadlines and Trial Date at a New Scheduling Conference, filed June 10, 2016 (Doc. 62). In the Motion to Withdraw and Amend, Benavidez seeks to amend the Proposed Second Amended Complaint, because she recognizes that the Proposed Second Amended Complaint makes claims that the Court dismissed in the Preemption MOO and that the Court was thus inclined to deny the Motion for Leave to Substitute Second Amended Complaint. See Motion to Withdraw and Amend at 1-4. Benavidez relies on rule 15(a) of the Federal Rules of Civil Procedure, and requests that the Court permit her to file the Second Amended Complaint for Damages for Violation of Title I and IV of the American with Disabilities Act of 1964, Retaliation and the Equal Pay Act of 1963, filed August 31, 2016 (Doc. 71-1)(“Proposed Third Amended Complaint”). Motion to Withdraw and Amend at 1-4. The Proposed Third Amended Complaint amends the Proposed Second Amended Complaint by eliminating state law claims in accordance with the Court's Preemption MOO. See Motion to Withdraw and Amend at 1-2. The Proposed Third Amended Complaint thus relates to Benavidez, Baca, Luna-Casias, and Ortiz, and asserts:

         “Count I: Discrimination on the Basis of Serious Medical Condition in Violation of Title I of the American Disability Act, ” Proposed Third Amended Complaint ¶¶ 127-38, at 16-17; “Count II: Discrimination on the Basis of Sex in Violation of the Civil Rights Act Against Defendant Sandia Corporation, ” Proposed Third Amended Complaint ¶¶ 139-53, at 17-19; “Count III[:] Retaliation Against Defendant Sandia Corporation, ” Proposed Third Amended Complaint ¶¶ 154-63, at 19-20; “Count IV: Violation of the Age Discrimination in Employment Act, ” Proposed Third Amended Complaint ¶¶ 164-74; and “Count VI: The Equal Pay Act of 1963, ” Proposed Third Amended Complaint ¶¶ 189-93, at 21-22.

         9. The Response.

         Sandia Labs responds to the Motion to Withdraw and Amend with the Defendant's Response to Plaintiff's Motion to Withdraw Prior Motion to Amend and Substituted Motion to Amend Complaint, filed September 23, 2016 (Doc. 76)(“Response”). The Response largely reiterates the arguments that Sandia Labs make in the Motion for Leave to Substitute Second Amended Complaint Response, and further argues

that the most recent motion to amend has been denied, so there is nothing to withdraw, and further amendment is untimely, dilatory, and futile. Plaintiff Benavidez, Ms. Baca, Ms. Luna-Casias, and Ms. Ortiz all fail to state prima facie Equal Pay Act Claims, and the remainder of the causes of action that Ms. Baca, Ms. Luna-Casias, and Ms. Ortiz want to bring are time barred.

         Response at 1. The Response thus explains that the “amendment deadline for Plaintiff in the Scheduling Order expired on April 30, 2016. . . . The Scheduling Order was ultimately vacated, but not until June 10, 2016.” Response at 2. Then, after a recap of the case's procedural history of the case, the Response asserts -- with respect to the Proposed Third Amended Complaint -- that “using ordinal counting, it marks the fifth attempt by Ms. Benavidez and the third attempt by the three putative plaintiffs at articulating a complaint.” Response at 5 (emphasis omitted).

         The Response then argues that the Court should not allow Benavidez to withdraw the Motion for Leave to Substitute Second Amended Complaint, because “escaping an adverse ruling is not a legitimate basis for withdrawing a motion.” Response at 5-6 (citing Selman v.Delta Airlines, 2008 WL 6022017 (D.N.M. 2008)(Browning, J.)(“Selman”). The Response provides that, in that case:

Rather than suffer an adverse ruling on the law at the start of the case, the movant preferred to just withdraw its motion. Finding that to be a reason that did not justify withdrawal, the Court further noted that it had already invested substantial effort and time in addressing the issues in the underlying motion and that it had an extensive draft opinion started. It was apparent that the legal questions in the motion would need to be resolved eventually in the case anyway, and so the Court in Selman denied leave to withdraw.

         Response at 6. Accordingly, the Response contends that this case's facts are similar and counsel in favor of denying the Motion for Leave to Substitute Second Amended Complaint under Selman. See Response at 6.

         The Response further argues that the “[t]he Motion to Withdraw should also be denied for the additional reason that it is moot and untimely.” Response at 6-7 (citing Estate of Gonzales v. AAA Life Ins. Co., 2012 WL 1684599 (D.N.M. 2012)(Browning J.)(“Gonzales”); United States v. Thomas, No. CR 03-0569 JB, Memorandum Opinion and Order at 19, filed July 8, 2004 (Doc. 242)(“Thomas”)). The Response thus explains:

In Gonzales, the motion to strike was denied as moot, and in Thomas the motion to join was denied as untimely. Those concepts apply with full force here. Like an employee who says she quits after she has already been fired, Plaintiff's Motion to Withdraw is moot and late. The motion she seeks to withdraw has already been denied. Accordingly, for the foregoing reasons alone, the Motion to Withdraw should be denied and the case dismissed with prejudice.

         Response at 6-7.

         Next, turning to the “amend” component of the Motion to Withdraw and Amend, the Response argues the Court should deny amendment, because the “Plaintiff is late, she unduly delayed, and she was dilatory in seeking amendment.” Response at 8. This statement is true, the Response argues, because the amendment deadline had expired, the Proposed Second Amended Complaint retains the deficiencies resulting in the Court's dismissal of the First Amended Complaint in the Preemption MOO, this amendment is the fifth attempt at some amendment of her complaint, and Benavidez' “choice to forgo both a tolling agreement and the option to file separate lawsuits while they still had time to do so.” Response at 8-9. Additionally, the Response argues that “amending to add an Equal Pay Act Count is futile because Plaintiffs do not have a prima facie case.” Response at 9. According to the Response,

[t]he Equal Pay Act, 29 U.S.C § 10 206(d)(1) (“EPA”)[, ] prohibits employers from ‘paying wages to employees . . . at a rate less than the rate which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions' unless enumerated exceptions apply.

         Response at 9-10. In this case, the Response argues, Benavidez does “not even allege that they were paid less than men performing substantially equal work, ” Response at 10, and thus “Plaintiffs cannot establish a prima facie case of discrimination under the EPA, ” Response at 11.

         Last, the Response argues that amending the First Amended Complaint to add the additional three Plaintiffs is futile, because “most of their counts are time barred.” Response at 11. The Response explains:

The [Proposed Third Amended Complaint] would add three new plaintiffs to the case by amendment, with causes of action under Title VII, the Americans With Disabilities Act, the Age Discrimination in Employment Act, and the New Mexico Human Rights Act, but . . . the limitations periods under those federal statutes expired in late February 2016 and for the Human Rights Act, the limitations period expired in late April 2016. Giving Plaintiffs the benefit of the doubt and assuming that an amended complaint is deemed filed for statute of limitations purposes when the motion to amend is filed rather than when it might be granted, Koch v. Shell Oil, 8 F.Supp.2d 1264, 1268 (D. Kan. 1998), the filing date would be August 31, 2016, the date of the Motion to Withdraw [and Amend] (Doc. No. 71) with its attached [Proposed Third Amended Complaint]. This would still leave the state claims tardy by about four months and federal claims by about six.

         Response at 11-12. Further, while “Sandia recognizes that Rule of Civil Procedure 15 allows for certain amendments to relate back to the original pleading, ” Sandia Labs argues that relation back is not the case here, because

Although that rule expressly applies to adding new defendants (“the amendment changes the party or the naming of the party against whom a claim is asserted”), the drafters contemplated its use in adding new plaintiffs as well. . . . Accordingly, courts do not dismiss out of hand proposed amendments adding plaintiffs. Instead, they apply the same standard that would be used to add new defendants. One key part of that standard -- mistake concerning the proper party's identity, Rule 15(c)(1)(C)(ii) -- is absent from this case.

         Response at 12. The Response thus argues that, for the proposed additional Plaintiffs, there should not be relation back of the statute of limitations to the time the First Amended Complaint was filed. See Response at 12-15. The Response thus concludes by stating that “[e]nough is enough.” Response at 15.

         10. The Reply.

         Benavidez replies to the Response with her Reply in Support of Plaintiff's Motion to Withdraw Prior Motion to Amend and Substituted Motion to Amend Complaint, filed September 28, 2016 (Doc. 79)(“Reply”). The Reply begins by recapping the procedural history, specifically highlighting that Benavidez had initially pursued this lawsuit in state court pro se, that Benavidez had made sure all parties and the Court were aware of the additional Plaintiffs and their impending exhaustion of administrative remedies, and that, “[u]ntil this Response, Defendant has not objected substantively to Plaintiff's proposed amendments or the addition of the three other plaintiffs. In their Response to this Motion, Defendants have attached evidence to attack Plaintiff's Equal Pay Act Claim, which was proposed originally in February. Otherwise, Defendant's objections have been procedural.” Reply at 1-5. The Reply then turns to its argument in favor of the Motion to Withdraw and Amend, as that motion pertains to the withdrawal, arguing that, “[p]ursuant to Local Rule 7.7, Plaintiff may withdraw a document from consideration by the Court by filing and serving a notice of withdrawal, which identifies the document to be withdrawn and with the consent of the parties or the Court.” Reply at 5. The Reply then cites to Selman, as did the Response, explaining that, in Selman, the Court

denied the motion to withdraw, considering the reasons for the plaintiff's request to withdraw (to avoid an adverse ruling), the need to decide the motion at a future date, the parties' need for an answer to the legal questions, and the effort the Court had expended in reviewing and working on the motion.

         Reply at 5. Here, the Reply argues, the Court has not “entered an order” on the Motion for Leave to Substitute Second Amended Complaint, and thus “requests this Court to permit Plaintiff to notice withdrawal of her previous pleadings related to the motion to amend and substitute with the current briefing on the issue.” Reply at 7. Contrasting this case with Selman, the Reply contends that Benavidez is not seeking to avoid an adverse ruling, and instead

requests withdrawal in order to (1) conform to the Court's professed preference that the proposed amended complaint exclude the state law claims that were the subject of the June orders and (2) to maintain the pendency of briefing on amendment that was begun in February 2016. Withdrawal would not prejudice Defendant -- Plaintiff has eliminated the state law claims. Plaintiff acted as quickly as possible after the Aug. 25, 2016 hearing to circulate and file a motion to withdraw so as to avoid the Court investing time and effort in a ruling on the pending motion to amend.

         Reply at 7.

         Turning next to the Motion to Withdraw and Amend's request to amend the Proposed Second Amended Complaint, the Reply argues that rule 15(a)

         permits amendment with leave of court and the court should freely give leave when justice so requires. Generally, refusal of leave to amend is only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.

         Reply at 6 (internal quotation marks and citation omitted). The Reply then argues that the amendment should relate back to the date of the original pleading,

because Plaintiff moved to amend the complaint to add the other plaintiffs, rather than file a separate lawsuit, because the Court and Defendant expressed a preference for that course. During the pendency of the motion to amend, until now, Defendant has not argued that the motion to amend did not toll the time to file. The matter was discussed in January, May, July, and August, and Defendant did not raise the issue. Plaintiff relied on Defendant's acquiescence to the amendment procedure in late January 2016, at a time when the other proposed plaintiffs could overcome an objection by filing separate lawsuits.

         Reply at 7. Alternatively, the Reply argues, the “limitation period tolled at the filing of the motion to amend on Feb. 10, 2016.” Reply at 7. Accordingly, the Reply contends that the “Plaintiff's motion to amend tolled the time to file and if Plaintiff is permitted to file the proposed amended complaint, Plaintiff's claims in the proposed complaint relate back to the original complaint under Rule 15(c)(1)(B), because Plaintiff's claims arise from the same facts as the original complaint.” Reply at 7. The Reply concludes by stating that the “Plaintiff and the other proposed plaintiffs have not sat on their rights, but have actively pursued amendment and preservation of claims. Plaintiff asks that the Court view the history of proceedings, ” and grant the Motion to Withdraw and Amend. Reply at 10.

         11. The Hearing.

         The Court held a hearing for the Motion to Withdraw and Amend on September 29, 2016. See Transcript of Hearing, taken September 29, 2016 (“September Tr.”). The Court began the hearing by giving the parties its inclination:

I'm inclined to grant the plaintiff's motion to withdraw the prior motion to amend. I orally denied it, but I'm going to have to [put] an opinion together, and it's going to be difficult for the Court to you know go back and try to indicate exactly what it would allow [and] what it wouldn't allow. It seems to me that there is close to agreement that the plaintiffs have pulled out most of the state law claims that the Court dismissed earlier. I know there are some disputes and we'll get to those in a moment. But I think just from a Court standpoint it's going to be a whole lot easier for the Court to deal with the substituted motion to amend complaint than try to deal with the prior motion to amend. I think I know the defendants would like an opinion on it, but it just doesn't seem to me to make sense for me to go do that work if plaintiffs haven't ask[ed] me to do it. And I think the record is clear. So I think as far as preserving the defendant's arguments about multiple motions and things, that's all clear. So I'm inclined to grant that. I tend to allow plaintiffs to be masters of their pleadings. If they don't want the Court to decide that motion, really parties in general, if they don't want the Court to decide the motion unless there is good reason. In the case that, where I did refuse to allow a motion to withdraw in that case I was going to have to reach the issue anyway so it was one of those things where it wasn't going to save the Court any work and the Court was going to have to reach those issues and the parties were going to have to deal with them sometime. We'd already gotten to that point, I didn't think it made sense to allow the plaintiffs to withdraw their motion, but in this case with so much work ahead, I'm inclined to do it. As far as the substituted motion to amend the complaint you know I'm always reluctant to allow or to have claims go by the way side on things other than the merits. So I probably will try my best where I do have discretion to allow the plaintiffs to file this amended complaint. I guess the question I have is you know, is it truly time barred and is there, do I have any discretion here? Is this something where it would be futile? So I probably will treat the substituted motion to amend largely as a motion to dismiss and use you know pretty rigorous standards to see if there is a complaint and case left. So those are my thoughts . . . I need to probably get that motion to amend, the plaintiffs wanting to withdraw has been on my docket for a while and I probably need to get it off. So what I'm inclined to do is grant that motion to withdraw prior motion to amend get that prior motion off my calendar and then try to turn probably not this week, but next, try to get to it in October, get you an opinion out on whether we're going to h[ear] the substituted motion to amend the complaint and whether we've still got a case here or not. But those are my thoughts.

         September Tr. at 2:1-4:9 (Court). At this point, Benavidez indicated that her only hesitation with the Court's inclination was whether bifurcating the Motion to Withdraw and Amend in such a manner would create “a time lapse between the two of them. The hope was that the substituted motion to amend was sort of simultaneously filed to maintain that pending motion to amend from February.” September Tr. at 4:16-23 (Wray). Essentially, Benavidez argued that the analysis for the tolling of the statutory limitation date differs between Benavidez and the proposed additional Plaintiffs; for Benavidez, she asks “the Court to relate back the new complaint under 15(a)(1)(b) [because] it arises out of the same causes of action, ” and for the new Plaintiffs, Benavidez is “not asking the Court to relate their motion back to the original filing, ” but instead argues that either “the 90-day period [after exhaustion of administrative remedies] was waived, it was tolled and time actually still remains, or equitable tolling can apply to permit filing of the substituted amended complaint.” September Tr. at 7:2-8:9 (Wray). The Court then inquired why, with the potential limitations, Benavidez did not file separate complaints, to which Benavidez replied that, “[a]t the January hearing, we got a sort of consensus that everybody preferred for it to happen together. . . . If we filed new complaints even then the 90-day period had expired and we would have to be standing in front of somebody making these arguments . . . .” September Tr. at 8:14-24 (Wray). Benavidez then argued that the claims should not be time barred, because “all the arguments are intertwined . . . and, as defendant noted in their briefing on this issue, defendant had indicated no opposition to tolling this period.” September Tr. at 9:3-25 (Wray).

         Sandia Labs then took up argument and argued that

a motion to amend that is not granted doesn't have relation back ability. . . . [Y]ou can't toll a statute with a motion to amend that isn't granted and . . . that's what we have here. And so what we're left with is three plaintiffs who are untimely and are trying to [ride the coat] tails of one plaintiff.

         September Tr. at 10:13-25 (Viets). Sandia Labs further disagreed that the parties had agreed to toll the limitations period, because, while they had originally “floated” the idea to Benavidez, “they made a conscience decision not to engage in discussions about a tolling agreement. [And t]hey made a conscious decision not to file separate lawsuits.” September Tr. at 11:1-19 (Viets).Sandia Labs then discussed with the Court its alternative arguments why, apart from it being time barred, the Court should deny the Motion to Withdraw and Amend. See September Tr. at 14:12-15 (Viets). A couple of Sandia Labs' arguments were that the Motion to Withdraw and Amend was delayed and dilatory, but the Court quickly indicated that it was not going to agree with those arguments. See September Tr. at 14:21-23 (Viets, Court). Sandia Labs thus argued that Benavidez' equal-pay argument is futile, because the “plaintiffs have to allege and prove that there were men who performed [‘]substantially equal work[‘]. . . . [A]nd there aren't any allegations in even the latest iteration of the proposed complaint that there were men who performed substantially equal work, but were paid more.” September Tr. at 16:3-10 (Viets). After the Court pressed Sandia Labs whether there were futility arguments for the other claims in the Proposed Third Amended Complaint, Sandia Labs indicated that its only argument on those claims was that they were time barred, delayed, and dilatory. See September Tr. at 17:18-22 (Viets). To that point, Sandia Labs reminded the Court that: (i) the case management deadlines, although subsequently vacated, were missed; (ii) the Proposed Second Amended Complaint fails to remove state law claims; (iii) there have been a large number of amendments; and (iv) Sandia Labs has not agreed to any waiver or tolling of any statutory limitations. See September Tr. at 17:23-19:22 (Viets). Sandia Labs then turned, specifically, to the concept of relation back to the original First Amended Complaint, and explained that “when a plaintiff seeks to add another plaintiff to the lawsuit rule 15(c)(1)(c) . . . applies . . . and the case law under it requires that there [is] some kind of mistake in the identity of the plaintiffs.” September Tr. at 21:7-18 (Viets). Thus, Sandia Labs argued, the three additional Plaintiffs were untimely, because the Motion for Leave to Substitute Second Amended Complaint has not been granted -- the only way that the additional Plaintiffs' claims could be timely. September Tr. at 22:5-9 (Viets). Sandia Labs, in conclusion, pointed the Court to remaining references to state law claims in the Proposed Third Amended Complaint. See September Tr. at 23:2-20 (Viets).

         Benavidez then responded, initially ensuring that all parties and the Court knew that she had intended to remove all state law claims, and that the references remaining were not claims.See September Tr. at 24:3-18 (Wray). Benavidez further explained that the additional Plaintiffs were not sitting on their rights and that instead their strategy simply was to ensure that the Court “only has to look at one thing in front of it.” September Tr. at 25:1-11 (Wray). Benavidez then reminded the Court that, in this case, when the Plaintiffs filed the Motion for Leave to Substitute Second Amended Complaint, their statutory limitation period had not lapsed. See September Tr. at 26:11-17 (Wray). Last, Benavidez insisted that Sandia Labs' offer -- in a footnote -- to toll the limitations period for the claims of the three additional Plaintiffs was not ignored and that Sandia Labs did not renew their offer in the hearing on the issue. See September Tr. at 27:1-7 (Wray). According to Benavidez, the offer to toll the limitations is irrelevant, because the parties agreed to handle the issue by instead amending the First Amended Complaint. See September Tr. at 27:15-28:7 (Wray). Regarding the alleged futility of the Proposed Third Amended Complaint's equal-pay argument, Benavidez argued that the claim was well pled and that the issue would be developed in discovery. See September Tr. at 28:14-29:6 (Wray). In conclusion, Benavidez indicated that she is content with the Court's suggestion that it bifurcate the Motion to Withdraw and Amend so long as, despite withdrawal, her filing of the Motion for Leave to Substitute Second Amended Complaint “tolled the 90-day period, ” and then while the withdrawal component of the Motion to Withdraw and Amend might have stopped the tolling -- the simultaneous amendment component of the Motion to Withdraw and Amend restarted the tolling immediately. September Tr. at 29:17-30:3 (Wray). The Court then took the Motion to Withdraw and Amend under advisement, indicating that it would issue an order soon after the hearing granting the Motion to Withdraw and Amend's request to withdraw the Motion for Leave to Substitute Second Amended Complaint. See September Tr. at 30:6-31:9 (Court).

         12. The Order.

         On September 30, 2016, the Court issued an Order in which it granted in part the Motion to Withdraw Prior Motion to Amend. The Order provided:

The Court will grant the part of the Motion to Withdraw and Amend by which Plaintiff Linda Benavidez seeks to withdraw her prior Motion for Leave to Amend Complaint, filed February 10, 2016 (Doc. 30). The Court will take the other part of the Motion to Withdraw and Amend, by which Benavidez seeks leave to file a substituted, third amended complaint, under advisement.

         Order at 1.

         13. The Amendment MOO.

         In its Amendment MOO, regarding Benavidez' request to amend and add the proposed Plaintiffs, the Court explained:

[T]he Court . . . concludes that amendment adding them to the lawsuit would be futile, because their claims are time barred. The Court understands that Benavidez and her attorneys were in a position where they considered the claims of the three proposed Plaintiffs as being related to Benavidez' claims, and as arising from the same circumstances at Sandia Labs, and that Sandia Labs on numerous occasions indicated that they would prefer to defend one lawsuit, as opposed to four separate lawsuits. Indeed, Sandia Labs offered to toll the statute of limitations appurtenant to the potential Plaintiffs' federal claims -- yet, Benavidez and her attorneys did not engage in any relevant colloquy with Sandia Labs on this point or assent to that offer to toll in some other manner. Instead, Benavidez chose to try to amend her First Amended Complaint to include the three proposed Plaintiffs as parties to the Proposed Second Amended Complaint. The Court would not have pursued such a strategy; Benavidez and the proposed Plaintiffs were more intent on preserving the record for appeal with respect to the state law claims than they were in timely filing the proposed Plaintiffs' claims. The proposed Plaintiffs ought have recognized, or at least considered, that the Court was going to dismiss Benavidez' First Amended Complaint in its entirety, the only complaint before the Court -- particularly after receiving the Court's inclination at the January hearing. Thus, the potential Plaintiffs' decision to pursue their claims against Sandia Labs in this case by simply waiting for Benavidez' receipt of leave to amend the First Amended Complaint to add them as parties was a risky strategy given that the clock was ticking. The Court gave Benavidez and the proposed Plaintiffs the power to be the masters of their own lawsuit -- indeed, the Court specifically instructed Benavidez to “make your own decision whether you want to file separate cases” given the proposed addition of new Plaintiffs, and
if you need to file separate cases, you can. If I get the opinions out and you want to bring it back here, [we can] pick this up, I'll just hold this [Proposed Second Amended Complaint] for the time being, I won't rule on it, and then you can make a decision. You'll just have to be the judge of your own time.

         May Tr. at 6:7-16 (Court). The prudent thing to do would have been to file a separate lawsuit to beat the statute of limitations and then seek to consolidate if they wanted to litigate all of the cases together. Because Benavidez' case was first filed, and has the lowest number, the tradition and custom in this district is to consolidate within that lowest number. It took the Court some time to issue the Preemption MOO, because it had not done a lot of work in the two main areas at issue -- LMRA preemption and federal enclave jurisdiction -- and had not extensively written on these, in this context, before. Also, the parties argued the federal enclave issue at the hearing, but had not extensively briefed that jurisdictional issue, which was new to the Court. The Court thus had to do a lot of that research on its own. The proposed Plaintiffs had, however, the opportunity to file separate cases before the statutory period had lapsed -- although, the Court is aware that its admonition in May would potentially not have fixed the problem, as the statutory period had indeed already lapsed at that time. The Court notes, however, that, in May, the Motion for Leave to Substitute Second Amended Complaint had not yet been withdrawn -- that is, there may have been an argument that the statutory period had been tolled by the filing of the state-law-claim-riddled Proposed Second Amended Complaint which the Court had indicated it would deny, at least in part, at the August hearing. The decision not to file separate cases -- or to enter into a tolling agreement with Sandia Labs --before the statutory period's lapse, now manifesting itself as a risky decision, has become the operative error rendering the proposed Plaintiffs' claims futile.

         Given that Benavidez has now withdrawn the Motion for Leave to Substitute Second Amended Complaint, the proposed Plaintiffs' only chance at successfully getting a complaint before the Court which is not deficient on account of the lapse of the statutory period would be if the Proposed Third Amended Complaint relates back to a time before the lapse. The Court, however, can see no sound way in which the Proposed Third Amended Complaint might somehow relate back to the timing of the First Amended Complaint -- in which the three additional Plaintiffs were not named -- or even the timing of the withdrawn Proposed Second Amended Complaint, which the Court notes would satisfy the statutory requirement.

         Amendment MOO at 59, 2017 WL 2266854, at *27. As grounds for its conclusion, the Court provided:

         The limitations period for the federal claims brought by the proposed Plaintiffs expired in late February, 2016. See Response at 3-4. The limitations period at issue in this case is a 90-day deadline to file suit after receipt of a right-to-sue letter from the EEOC, and that period covers all of Benavidez' and the proposed Plaintiffs' federal claims -- save for the Equal Pay Act [claim]. See 42 U.S.C. § 2000e-5(f)(1)(providing limitation period under Title VII); 42 U.S.C. § 12117(a) (providing limitation period for the ADA, specifically adopting Title VII's deadlines); 29 U.S.C. 626(e)(providing limitation period for ADEA). Baca received her right-to-sue letter on November 30, 2015; Luna-Casias received hers on November 30, 2015; and Ortiz received hers on November 30, 2015. See Proposed Amended Third Complaint ¶¶ 9-18, at 2-3.

         Amendment MOO at 59, 2017 WL 2266854, at *27 n.8. The Court then considered rule 15 of the Federal Rules of Civil Procedure, which governs when an amendment to a complaint will relate back to the timing of the complaint's original filing. See Amendment MOO at 57-68, 2017 WL 2266854, at *28. For context, rule 15(c) reads:

         (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out -- or attempted to be set out -- in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

         Fed. R. Civ. P. 15(c). The Court concluded that rule 15(c) does not provide explicit guidance regarding the addition of new plaintiff-parties. See Amendment MOO at 60-68, 2017 WL 2266854, at *28-29. The Court stated:

Despite rule 15(c)(1)(C)'s express language, however, the Court notes that it is apparent that the drafters of rule 15(c) appear to have contemplated its application to the addition of new plaintiffs. See Fed.R.Civ.P. 15(c) advisory committee's notes to 1966 amendment (“The relation back of amendments changing plaintiffs is not expressly treated in revised Rule 15(c) since the problem is generally easier. Again the chief consideration of policy is that of the statute of limitations, and the attitude taken in revised Rule 15(c) toward change of defendants extends by analogy to amendments changing plaintiffs.”). Accordingly, most courts do not automatically dismiss amendments proposing to add new plaintiffs and instead generally apply the same standard used to add new defendants -- rule 15(c)(1)(C)(i) and (ii) -- when such is applicable. See, e.g., Leachman v. Beech Aircraft Corp., 694 F.2d 1301, 1308-10 (D.C. Cir. 1982)(holding that there is a “need to limit relation back of claims asserted by new plaintiffs in some way beyond the ‘conduct, transaction, or occurrence' test that applies to relation back of amendments generally. Without some limit, total strangers with claims arising out of a multi-victim incident might join pending actions long after the statute of limitations had lapsed. That would allow the tardy plaintiffs to benefit from the diligence of the other victims and, more importantly, could cause defendants' liability to increase geometrically and their defensive strategy to become far more complex long after the statute of limitations had run. Even if, as here, there were no showing of specific prejudice in the sense of lost or destroyed evidence, defendants would still be deprived of their interest in repose. At some point, defendants should have notice of who their adversaries are, ” and, further stating that “[t]he point of the courts' consideration of identity of interest is that that factor ensures that the old and new plaintiffs are sufficiently related so that the new plaintiff was in effect involved in the proceedings unofficially from an early stage'” (internal citations and quotation marks omitted)(alterations omitted)); Pierce v. Long John Silver, Inc., 1996 WL 153563 (E.D. Pa. 1996)(relying on Nelson v. Cnty. of Allegheny, 60 F.3d 1010, 1014-16 (3d. Cir. 1995), and holding that no matter the plaintiff/defendant status of the party to be added, the analysis entails whether “defendants (A) received such notice that they will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought with the original claims); Ambraziunas v. Bank of Boulder, 846 F.Supp. 1459, 1467 (D. Colo. 1994)(Kane, S.J.)(“They have not, however, established that Defendants had notice of their additional claims or that there was any mistake in the original complaint to merit the relation back of the claims of the new Plaintiffs to the filing of the original complaint on June 30, 1993.”). The Court is at a loss as to why rule 15(c)(1)(C)'s plain language is still at odds with the drafter's commentary, but concludes, nonetheless, that the drafter's commentary does not, anyway, encompass the addition of these proposed Plaintiffs.

         Amendment MOO at 61-63, 2017 WL 2266854, at *28-29. The Court also stated:

         The Court wonders, for example, whether the commentary in fact purports to create a theory by which the addition of new Plaintiffs might be accomplished by reference only to rule 15(c)(1)(B), given the general incompatibility between rule 15(c)(1)(C)'s language and the addition of plaintiff-parties -- i.e., there is only a narrow set of facts, as narrow as that pertaining to party-defendants, upon which relation back of amendments adding party-plaintiffs exists. Cf. Leachman v. Beech Aircraft Corp., 694 F.2d at 1308-10.

         Amendment MOO at 63-64, 2017 WL 2266854, at *28-29 n.11. The Court, accordingly, concluded:

In light of rule 15(c)(1)(C)'s plain language, then, and the incompatibility of this case with the general body of case law authorizing the relation back of an amendment adding new plaintiffs under rule 15(c) at large, the Court thus concludes that the proposed Plaintiffs' complaints do not relate back to the filing of the First Amended Complaint. Because of this conclusion, the Proposed Third Amended Complaint's addition of the proposed Plaintiffs would be futile, because -- as all parties agree -- these federal employment discrimination claims are time barred.

         Amendment MOO at 65-68, 2017 WL 2266854, at *30. The Court also counseled the parties that:

this result may seem harsh, but also notes that the proposed Plaintiffs had every opportunity to file their respective actions in federal court. Indeed, Sandia Labs --to no avail -- offered to toll the limitations period for these proposed Plaintiffs, stating -- in response to Benavidez' Motion to Stay Proceedings, filed November 12, 2015 (Doc. 10) -- that it was “amenable to an agreement tolling the statutes of limitations for claims that could only be brought after the exhaustion of Plaintiffs' administrative remedies, which . . . were still unexhausted or newly exhausted.” Defendants' Response to Plaintiff's Motion to Stay Proceedings at 3 n.4, filed November 25, 2015 (Doc. 19). At the hearing, Benavidez argued that they did not take Sandia Labs up on the negotiations, because it was offered in a footnote and they thought everyone would be happy with entry of an amended complaint. See Tr. at 26:18-28:7 (Wray). The Supreme Court has said, in this context, that
[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. As we stated in Mohasco Corp. v. Silver, 447 U.S. 807, 826 [] (1980), “[i]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.”

Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984). Thus, although “motions to amend brought in district court should be freely granted, ” such favor for amendment does not exist where “the proposed amendment would result in unfair prejudice to the non-movant or would be futile.” Thompson v. Colorado, 60 F. App'x 212, 215 (10th Cir. 2003). Additionally, Benavidez and the proposed Plaintiffs suggest that the Court apply the doctrine of equitable tolling -- which applies in “exceptional circumstances, ” Yang v. Archuleta, 525 F.3d at 928 (“Generally, equitable tolling requires a litigant to establish two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”) -- or some form of waiver, because the Proposed Second Amended Complaint was timely filed; the Court, however, sees no such exceptional circumstances, or sound reason to invent a waiver on these facts because of the existence of the now-withdrawn Proposed Second Amended Complaint. Further, the Court has a difficult time saying that the proposed Plaintiffs acted diligently to protect their rights. Nothing prevented them from filing separate lawsuits to beat the running of the limitations period or from engaging in negotiations with Sandia Labs to enter into a tolling agreement. And Sandia Labs did not do anything to prevent the proposed Plaintiffs from filing separate lawsuits. Instead, Sandia Labs unequivocally tried to help the proposed Plaintiffs by suggesting that they enter into tolling agreement negotiations. The proposed Plaintiffs pursued a different strategy, and the Court should not create new equitable or waiver doctrines to save them from this deliberate decision. Here, the amendment to add the proposed Plaintiffs would be futile, because, as in the case for intervening plaintiffs -- a situation similar to this -- “an intervening plaintiff should not be permitted to ‘piggyback' on the claims of an earlier plaintiff in order to escape the statutory bar that would normally shield the defendant from liability as to the intervenor.” Weber v. Mobil Oil Corp., 506 F.3d 1311, 1315 (10th Cir. 2007). Under rule 15(c), the Proposed Third Amended Complaint may not relate back to a time which satisfies the limitations period for the proposed federal claims, rendering proposed Plaintiffs' addition futile.

         Amendment MOO at 66-68, 2017 WL 2266854, at *30.

         14. The Motion to Reconsider.

         The Motion to Reconsider requests partial reconsideration of the Court's Amendment MOO under rule 59(e) of the Federal Rules of Civil Procedure, or the Court's “inherent authority to reconsider interlocutory rulings.” Motion to Reconsider at 1. Benavidez, specifically,

requests reconsideration of the portion of Court's ruling that amending the complaint to include Ms. Baca, Ms. Ortiz, and Ms. Luna-Casias (“Second Plaintiffs”) is futile. Specifically, Plaintiff Benavidez asserts that (1) the complaint related to Plaintiffs Ms. Baca, Ms. Ortiz, and Ms. Luna-Casias should be deemed timely for the purposes of 4 USC Section 2000e-5(f)(1)1; (2) after entry of the January 17, 2017 Memorandum Opinion and Order, time remained on the 90-day period in which the Second Plaintiffs could act; and, (3) the time to file the Second Plaintiffs' complaint was tolled until the disposition of the motion to amend.

         Motion to Reconsider at 1. After recapping what she considers were the salient procedural facts of this case, ...


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