United States District Court, D. New Mexico
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
AMEND FIRST AMENDED COMPLAINT
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE
have filed motions to dismiss pursuant to Rule 12 of the
Federal Rules of Civil Procedure. See docs. 40, 41.
In those motions, Defendants argue that, with one exception,
Plaintiff's First Amended Complaint (hereinafter
(“FAC”) fails to state claims for which relief
can be granted. See docs. 40, 41. In an attempt to
address the deficiencies highlighted by Defendants'
motions, Plaintiff filed a Motion for Leave to Amend First
Amended Complaint. See doc. 57. Defendants oppose
the motion, arguing that the proposed amendment is futile as
it would also be subject to dismissal under Rule 12. See
docs. 59, 60. On January 29, 2018, the Motion for Leave
to Amend First Amended Complaint was referred to the
undersigned pursuant to Title 28 U.S.C. § 636(b)(1)(A)
and Rule 72(a) of the Federal Rules of Civil Procedure.
See doc. 73. The underlying motions to dismiss have
not been similarly referred and the undersigned therefore
expresses no opinion about their merits. Under these
circumstances and based upon review of the Motion and the
attendant briefing, the Court hereby GRANTS Plaintiff's
Motion. See docs. 57, 59, 60, 63.
party may no longer amend its pleading as a matter of course,
“a party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). Circumstances
justifying denial of leave include “undue delay, bad
faith or dilatory motion on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [and] futility of
amendment[.]” Foman, 371 U.S. at 182. In this
case, Defendants primarily oppose the amendment on the ground
that it would be futile.
determine if a proposed amendment is futile, the Court is to
apply “the same standards that govern a motion to
dismiss under Rule 12(b)(6).” McDaniel v.
Loya, 2015 WL 1323506, * 16 (D.N.M. March 6, 2015)
(citing Ganthier v. N. Shore-Long Island Jewish Health
Sys., 298 F.Supp.2d 342, 349 (E.D.N.Y. 2004)). Under
Rule 12(b)(6) standards, a complaint must contain
“enough facts to state a claim to relief that is
plausible on its face.” Ridge at Red Hawk v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)
(“[A] plaintiff must ‘nudge his claims across the
line from conceivable to plausible' in order to survive a
motion to dismiss.”). Furthermore, plaintiff must plead
more than labels, conclusions or a “formulaic
recitation of the elements of a cause of action[.]”
Twombly, 550 U.S. at 555. Conclusory allegations of
liability, without supporting factual content, are
insufficient. The pleading standard “demands more than
an unadorned, the-defendant-unlawfully- harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009). As such, a proposed amended complaint that
“tenders ‘naked assertions' devoid of
‘further factual enhancement'” does not meet
the Rule 8 standard and is futile. Id. (quoting
Twombly, 550 U.S. at 557), and Fed.R.Civ.P.
seeks leave to file a second amended complaint
(“SAC”) in order to make additions to his
Specifically, Plaintiff plans to provide an additional three
exhibits, including his academic transcripts, a report by the
Ph.D. Advisory Committee, and three affidavits regarding the
June 28, 2016 meeting. Doc. 57-1 at 27-31, 68-82.
Further, Plaintiff seeks to add paragraphs within the facts
section, including ¶¶ 60-62 and ¶64 of the
proposed SAC. Doc. 57-1 at 11-13. These paragraphs
primarily describe the June 28, 2016 meeting, and note the
attendance of individuals previously not mentioned, some of
whom are the affiants in the SAC's three supplemental
affidavits. Id. See also doc. 57 at 80-91. It does
not appear that these proposed additions would materially
affect the resolution of the pending dispositive motions. As
such, if these were the only proposed changes, the Court
would deny the Motion for Leave to Amend.
the proposed SAC also alters the legal basis of at least four
of Plaintiff's claims. As can be seen in their pending
dispositive motions, Defendants interpreted Counts II, III,
IV and V of the FAC as arising under state law. Their
arguments for dismissal hinged on the general grant of
immunity provided by the New Mexico Tort Claims Act
(“NMTCA”) and the lack of applicable exception
thereto. See N.M.S.A. § 41-4-1, et. seq. The
SAC makes clear that these claims are brought under federal
law pursuant to 42 U.S.C § 1983. Consequently, the SAC
would moot their arguments for dismissal.
Court recognizes that, in their Responses, Defendants broadly
argue that these claims would also not survive under federal
law. These arguments appear to be based upon qualified
immunity. However, because of the procedural posture, the
analysis is understandably truncated. See docs. 59, 60. Under
these circumstances, the most efficient course is to allow
Plaintiff to file his SAC and have Defendants file updated
dispositive motions, enabling the Court to review the facts
and law fully briefed in a procedurally clean manner.
Therefore, the Court GRANTS Plaintiff's Motion for Leave
to Amend (doc. 57). Plaintiff may file thej proposed Second
Amended Complaint (doc. 57-1).
 The Board of Regents of the New Mexico
Institute of Mining and Technology does not seek dismissal of
the claim in Count I of FAC (racial discrimination) against
 The Court dismissed with prejudice
Plaintiff's claim of racial discrimination against
Defendants Wells and Liebrock after Plaintiff's Motion
for Leave had been fully briefed. See doc. 67.
Therefore, this Proposed Findings and Recommended Disposition