United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR United States Magistrate Judge
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] 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].
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. 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].
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. [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.
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”). 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.
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.
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.
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
after the motion to strike was filed, Plaintiff filed a
motion seeking leave to amend her complaint nunc pro
tunc. [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.
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].
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