United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
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.
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
Plaintiff's Motions for Leave to File Amended
Complaint (Docs. 77, 78)
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).
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
on the foregoing, I recommend denying both
of Plaintiff's motions to amend (Docs. 77 and 78).
Plaintiff's Motion to Quash Defendant's Motion
for Summary Judgment (Doc. 75)
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.”
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. . .
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.
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.
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”
Plaintiff's Motion for Summary Judgment (Doc. 58) and
Defendant's Motion for Summary Judgment (Doc.
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.
Applicable Legal Standards
“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 ...