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Aicher v. Access Corrections

United States District Court, D. New Mexico

March 9, 2018

ERIC AICHER, Plaintiff,
v.
ACCESS CORRECTIONS, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          THIS MATTER is before the Court on (1) Plaintiff's Motions for Leave to File Amended Complaint (Docs. 77 and 78), filed November 9, 2017; (2) Plaintiff's Motion to Quash Defendant's Motion for Summary Judgment (Doc. 75), filed November 9, 2017; (3) Defendant's Motion to Strike Plaintiff's Unauthorized Surreply (Doc. 88), filed December 15, 2017; (4) Plaintiff's Motion for Summary Judgment (Doc. 58), filed August 23, 2017; and (5) Defendant's Martinez Report (Doc. 69) and accompanying Motion for Summary Judgment (Doc. 68), filed October 30, 2017.

         These motions all concern Plaintiff's sole remaining claim in this lawsuit, which is a claim under the New Mexico Unfair Practices Act (“NMUPA”), NMSA 1978, § 57-12-3 (1971). United States District Judge James O. Browning referred this matter to me for entry of proposed findings and a recommended disposition. Doc. 4. Having reviewed the submissions of the parties, the record, and the relevant law, I recommend that the Court: (1) deny both of Plaintiff's Motions for Leave to File Amended Complaint (Docs. 77, 78); (2) deny Plaintiff's Motion to Quash (Doc. 75); and (3) grant Defendant's Motion to Strike (Doc. 88). With regard to the summary judgment motions, I recommend that the Court deny Plaintiff's motion (Doc. 58) and grant Defendant's motion for summary judgment (Doc. 68). Specifically, I find that there are no genuine issues of material fact, and that Defendant is entitled to judgment as a matter of law on the NMUPA claim. Accordingly, I recommend that Plaintiff's complaint be dismissed with prejudice.

         I. Plaintiff's Motions for Leave to File Amended Complaint (Docs. 77, 78)

         After the Martinez Report was submitted and the summary judgment motions were briefed, Plaintiff filed two motions seeking leave to file an amended complaint. Docs. 77, 78. Plaintiff did not submit a proposed amended complaint with his motions, as required by this Court's local rules of civil procedure. See D.N.M.LR-Civ. 15.1 (“A proposed amendment to a pleading must accompany the motion to amend.”). Plaintiff's pro se status does not excuse his obligation to comply with the requirements of the federal and local rules of civil procedure. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992) (noting that although pro se pleadings are construed liberally, pro se litigants “nevertheless must follow the same rules of procedure that govern other litigants”). Although Defendant's response (Doc. 81) alerted Plaintiff to the requirements of Local Rule 15.1, Plaintiff has not remedied this error by filing a proposed amended complaint. Plaintiff's non-compliance with Local Rule 15.1 is a sufficient basis alone to deny both motions to amend. See Lopez v. Roark, 637 F. App'x 520, 521 (10th Cir. 2016) (unpublished) (affirming district court's denial of motion to amend where plaintiff's motion failed to include a proposed amended complaint as required by Local Rule 15.1); see also Segovia v. Rodriguez, 2017 WL 4480131, at *4 (D.N.M. Oct. 6, 2017) (Baldock, J.) (denying plaintiff's request to amend complaint due to her failure to comply with Local Rule 15.1).

         Furthermore, even if I overlooked Plaintiff's non-compliance with Local Rule 15.1, I still recommend denying both motions to amend. Plaintiff's first motion to amend seeks to add statements that are already part of the record and which I have considered in deciding the summary judgment motions. See Doc. 77 at 2. Therefore, Plaintiff's proposed amendments would be futile. See Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997) (stating that the trial court may deny leave to amend where the amendment would be futile). As for the second motion to amend, Plaintiff failed to identify the particular amendments he seeks to make, instead merely indicating that he was not aware “he had to list every point in his claim . . . as the violations were obvious and [] the ‘NMUPA' [] covers a wide range of areas that could be violated.” See Doc. 78 at 1. This explanation is inadequate to apprise the Court of the particular grounds for the proposed amendments. See Calderon v. Kan. Dep't of Soc. & Rehab. Servs., 181 F.3d 1180, 1186-87 (10th Cir. 1999) (stating that “a request for leave to amend must give adequate notice to the district court and to the opposing party of the basis of the proposed amendment”). As the Tenth Circuit has emphasized, district courts are not obligated to “engage in independent research or read the minds of litigants to determine if information justifying an amendment exists.” Id. at 1187 (internal citation omitted).

         Based on the foregoing, I recommend denying both of Plaintiff's motions to amend (Docs. 77 and 78).

         II. Plaintiff's Motion to Quash Defendant's Motion for Summary Judgment (Doc. 75)

         In full compliance with the deadlines set forth in the Court's Order for a Martinez Report, Defendant filed the Report and its summary judgment motion electronically on October 30, 2017. See Docs. 68 and 69. Defendant indicated therein that it mailed these documents to Plaintiff that same day. Doc. 68 at 10; Doc. 69 at 5. Plaintiff has moved to quash Defendant's summary judgment motion on the basis that he did not receive the motion until four days later, November 3, 2017. Doc. 75. Plaintiff claims that this is a violation of the “three day rule.” Id.

         I find that Defendant complied with the deadline to serve its motion because Defendant served the motion on Plaintiff on October 30, 2017, and the date a document is sent, rather than the date a document is received, determines the date of service. See Fed. R. Civ. P. 5(b)(2)(C) (“A paper is served under this rule by: . . . mailing it to the person's last known address-in which event service is complete upon mailing.”) (emphasis added). The “three day rule” Plaintiff refers to applies after service by mail occurs and compensates for time lapses caused by mail delivery delays. Specifically, under Fed.R.Civ.P. 6(d), Plaintiff's response time to the motion was extended by three days because Defendant served its motion by mail. See id. (“When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), . . . 3 days are added after the period would otherwise expire. . . ”).

         Because I find that Defendant properly served its summary judgment motion, I recommend denying Plaintiff's motion to quash (Doc. 75).

          III. Defendant's Motion to Strike (Doc. 88)

         Defendant's motion for summary judgment was fully briefed on November 28, 2017. See Doc. 68 (Defendant's summary judgment motion); Doc. 74 (Plaintiff's response); Doc. 79 (Defendant's reply brief); Doc. 82 (notice of completion of briefing). On December 11, 2017, Plaintiff filed a “Response to Defendant's Reply in support of its Motion for Summary Judgment.” Doc. 84. Defendant seeks to strike this filing as an unauthorized surreply. Doc. 88.

         I agree with Defendant that Plaintiff's “Response” is actually a surreply, as Plaintiff filed it after briefing was completed on Defendant's summary judgment motion. This Court's local rules provide that the “filing of a surreply requires leave of the Court.” D.N.M.LR-Civ. 7.4(b). Plaintiff did not seek leave to file a surreply in violation of this local rule. Further, Plaintiff failed to identify any new arguments or evidence in Defendant's reply brief that would have necessitated the filing of a surreply. I therefore recommend granting Defendant's motion and striking Plaintiff's response (Doc. 84). See Ysais v. N.M. Judicial Standard Comm'n, 616 F.Supp.2d 1176, 1184 (D.N.M. Mar. 31, 2009) (Browning, J.) (indicating that the court may “choose to strike a filing that is not allowed by local rule, such as a surreply filed without leave of court” (citation omitted)).

         IV. Plaintiff's Motion for Summary Judgment (Doc. 58) and Defendant's Motion for Summary Judgment (Doc. 68)

         I now turn to address the merits of Plaintiff's NMUPA claim. In addition to the Martinez Report (Doc. 69) Defendant submitted, the parties have filed cross-motions for summary judgment on the NMUPA claim. See Doc. 58 (Plaintiff's motion), Doc. 68 (Defendant's motion). Both motions are now fully briefed and ready for ruling.

         A. Applicable Legal Standards

         A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). There is no genuine dispute as to any material fact unless the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way, ” and it is material “if under the substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). In reviewing a motion for summary judgment, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party. S.E.C. v. Thompson, 732 F.3d 1151, 1156-57 (10th Cir. 2013) (quotation omitted). Initially, the party seeking summary judgment ...


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