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Burke v. State

United States District Court, D. New Mexico

December 22, 2017

HEATHER BURKE, Plaintiff,
v.
STATE OF NEW MEXICO, EDWYNN BURCKLE, JAY HONE, MICHAEL GALLEGOS, ANGELA DAWSON, BRENDA GUETHS, KAREN BALTZLEY, GENERAL SERVICES DEPARTMENT OF THE STATE OF NEW MEXICO, and LARA WHITE-DAVIS, Defendants.[1]

          MEMORANDUM OPINION AND ORDER

          STEPHAN M. VIDMAR United States Magistrate Judge

         THIS MATTER is before the Court on the following motions: Defendants' Motion to Strike Plaintiff's Amended Complaints, filed on September 19, 2017 [Doc. 56]; Plaintiff's Motion Seeking Leave to Amend Complaint Nunc Pro Tunc, filed on October 1, 2017 [Doc. 59]; Plaintiff's Second Motion Seeking Leave to Amend Complaint, filed on November 26, 2017 [Doc. 76]; Plaintiff's [Third][2] Motion Seeking Leave to Amend Complaint, filed on December 5, 2017 [Doc. 77]; and Defendants' Expedited Motion to Stay Further Filings and Existing Deadlines to Respond to any Pending Motions, filed on December 11, 2017 [Doc. 78]. The Honorable Robert A. Junell, Senior United States District Judge, referred this matter to me for analysis and a recommended disposition. [Doc. 52]. I have considered the briefing, the relevant portions of the record, and the relevant law. Being otherwise fully advised in the premises, I will DENY as moot Defendants' motion to strike [Doc. 56]; DENY as moot Plaintiff's first motion [Doc. 59] and second motion [Doc. 76] for leave to amend; GRANT IN PART AND DENY IN PART Defendants' motion to stay [Doc. 78]; and ORDER Defendants to respond to Plaintiff's third motion for leave to amend [Doc. 77].[3]

         Background

         In January 2013, Plaintiff began working for the New Mexico General Services Department (“GSD”) as an “IT Generalist.” [Doc. 49-1] at 2. In that position, she “provid[ed] IT support and customer services for GSD.” Id. She alleges a number of violations of state and federal law stemming from her employment in that position.[4] Plaintiff, proceeding pro se, filed suit in state court in May 2016 against the State of New Mexico and several state employees. [Doc. 1-2]. She alleged claims based on the Fair Pay for Women Act (“FPWA”), the New Mexico Whistleblower Protection Act (“WPA”), and 42 U.S.C. § 1983. Defendants removed the case to federal court and moved to dismiss the claims. [Docs. 1, 10]. Plaintiff subsequently moved to amend her complaint by substituting GSD in place of the State of New Mexico as a defendant and adding certain additional claims and defendants. [Doc. 29]. On October 3, 2016, Judge Junell granted Defendants' motion to dismiss all of Plaintiff's claims and denied her leave to amend her complaint. [Docs. 41, 42].

         Plaintiff appealed to the Tenth Circuit, which affirmed in part and reversed in part.696 F. App'x 325 (10th Cir. 2017); [Doc. 49-1]. The Tenth Circuit affirmed the dismissal of Plaintiff's claims except as to her WPA claim against Defendant Burckle, Secretary of the General Services Department, in his official capacity.[5] [Doc. 49-1] at 20. And it affirmed the denial of leave to amend except as to the addition of FPWA and EPA claims against GSD, the addition of a WPA claim against GSD, and the submission of an amended § 1983 privacy claim.Id. at 20-21. The Tenth Circuit remanded “for further proceedings as to violation of privacy, wage discrimination, and whistleblowing that are consistent with this Order and Judgment.” Id.at 21. On remand, Judge Junell vacated the judgment in part and granted Plaintiff leave to file an amended complaint. [Doc. 50]. Consistent with the Tenth Circuit's order, Judge Junell granted Plaintiff leave:

(1) to amend her privacy claim under 42 U.S.C. § 1983 and cure the deficiencies noted in the Tenth Circuit's Order and Judgment dated June 8, 2017; (2) to name GSD as a defendant in this action; (3) to add a WPA claim against GSD in addition to Plaintiff's WPA claim against Edwynn Burckle, in his official capacity as Secretary of the General Services Department; and (4) to add discrimination claims under New Mexico's [FPWA] and the federal [EPA] against GSD. Plaintiff shall not include any other previously-dismissed claims in her Amended Complaint, except as specified by this Order.

[Doc. 50] at 1-2. He ordered Plaintiff to file her amended complaint within 21 days. Id. at 1.

         On September 5, 2017, Plaintiff filed a 46-page amended complaint. [Doc. 53]. The amended complaint stated FPWA and EPA claims against GSD; § 1983 claims for violation of the Fourth Amendment against Defendants Burckle and Baltzley in their individual capacities; and a WPA claim against GSD. Plaintiff also asserted several new claims that she had never previously raised. She alleged violation of the New Mexico Human Rights Act (“NMHRA”) for gender discrimination and harassment, disability discrimination, and failure to accommodate; violation of the New Mexico Fraud Against Taxpayers Act (“FATA”); violation of the New Mexico Inspection of Public Records Act (“IPRA”); breach of contract and breach of the implied covenant of good faith and fair dealing; and violation of the Family and Medical Leave Act (“FMLA”).[6] A week later, on September 13, 2017, Plaintiff filed a second amended complaint, without requesting leave of the Court to do so. [Doc. 54]. The second amended complaint added several new paragraphs and made additional changes to existing allegations.

         Defendants move to strike both amended complaints pursuant to Fed.R.Civ.P. 15(f). [Doc. 56]. They assert that the Tenth Circuit “narrowly set the parameters under which” Plaintiff could file an amended complaint. Id. at 6. Defendants argue that the amended complaints exceed the scope of the Tenth Circuit's order and Judge Junell's corresponding order on remand granting Plaintiff leave to file an amended complaint. Id. at 6-9. Those orders “made clear” that “the only permissible defendants in Plaintiff's Amended Complaint are the GSD and Defendant Burckle (official capacity only) and the only permissible causes of action are” a § 1983 privacy claim, a FPWA/EPA discrimination claim, and a WPA claim. Id. at 5. The amended complaints, they argue, “add[] additional allegations, claims, and defendants beyond that permitted by the Court and without seeking leave to do so under Rule 15(a)(2).” Id. at 2.

         Defendants suggest that allowing the amended complaints to stand would contravene the “law-of-the-case” doctrine and the mandate rule, which require trial courts to conform to the terms of the remand. Id. at 6. Where the amended complaints exceed the scope of the leave to amend granted, Defendants argue, they should be struck. Additionally, with respect to the second amended complaint, Defendants argue that it was not filed within the 21-day period and that Plaintiff did not seek leave of the court to file it. Id. at 9-10.

         Plaintiff disputes Defendants' assessment of the scope of her leave to amend following remand. As an initial matter, Plaintiff argues that she was granted leave to amend her § 1983 privacy claim to cure the deficiencies noted by the Tenth Circuit; amending that claim necessarily entails re-asserting claims against Defendants Burckle and Baltzley in their individual capacities. [Doc. 57] at 5-8. More broadly, Plaintiff argues that she should be permitted to add new claims and defendants in her amended complaint. In the order granting her leave to amend, she was directed not to “include any other previously dismissed claims in her Amended Complaint, ” except as specified. She argues that the order was silent as to new claims not previously raised. Id. at 2. Therefore, she contends, she was free to file an amended complaint that asserted new claims in addition to the claims explicitly allowed to proceed, so long as she did not re-assert claims that were properly dismissed. And, even if she were required to obtain leave of the Court to add the new claims and amendments, she argues that leave should be granted “nunc pro tunc.” Id. at 5. She further argues that her second amended complaint was proper pursuant to Fed.R.Civ.P. 15(a)(1), which permits amendment once as a matter of course. Id. at 4-5.

         Shortly after the motion to strike was filed, Plaintiff filed a motion seeking leave to amend her complaint nunc pro tunc.[7] [Doc. 59]. The parties' respective briefing on the motion largely tracks the briefing on the motion to strike. Plaintiff argues that granting leave to amend nunc pro tunc would alleviate any alleged procedural deficiency in her amended complaints. Id. at 3-4. Defendants again argue that the deficiencies in the amended complaints are “based on her failure to abide by the clear and specific Tenth Circuit Order.” [Doc. 63] at 6. They argue nunc pro tunc relief would be inappropriate here, where Plaintiff's proposed amendments are “substantive and material” and where the requested relief would effectively modify the earlier orders granting limited leave to amend. Id. at 7-8.

         Plaintiff has subsequently filed two additional motions for leave to amend, even though her first motion for leave to amend and Defendants' motion to strike are still pending. Plaintiff's second motion for leave to amend seeks to add several additional claims beyond those already asserted in her amended complaints. [Doc. 76]. In addition to the claims alleged in her second amended complaint, see [Docs. 54, 59-1], Plaintiff seeks to add new claims for violation of the Stored Communications Act (“SCA”), violation of her “freedom of speech and association” pursuant to § 1983, and conspiracy to violate her civil rights pursuant to 42 U.S.C. § 1985. [Doc. 76]. This proposed third amended complaint also seeks to add counsel for Defendants, Jaclyn McLean, as a Defendant. Finally, Plaintiff's third motion for leave to amend seeks to correct errors in the caption and title of the proposed third amended complaint. [Doc. 77].

         Instead of responding to these latest motions to amend, Defendants have moved the Court for an order staying any further filings by Plaintiff in this matter pending resolution of Defendants' motion to strike the amended complaints. [Doc. 78]. Defendants argue that Plaintiff's successive motions, violations of the discovery rules, and noncompliance with the rules of procedure have burdened them as well as the Court. Id. at 5. Plaintiff's “unauthorized attempts at early discovery and her barrage of motions and constantly changing complaints are harassing and vexatious” such that the Court's intervention is necessary, they argue. Id. at 7. Defendants further request ...


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