United States District Court, D. New Mexico
ORDER GRANTING LEAVE TO FILE SECOND AMENDED
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE
matter comes before the undersigned pursuant to the
Court's Order of Reference (doc. 35), referring
Plaintiffs' Motion for Leave to File Second Amended
Complaint (doc. 22) for determination by the
undersigned in accordance with 28 U.S.C. § 636(b)(1)(A)
and Fed.R.Civ.P. 72(a). Defendants oppose Plaintiffs'
Motion for Leave to File Second Amended Complaint on grounds
of futility, arguing that the proposed amendments therein do
not cure the pleading defects alleged in Defendants'
Motion to Dismiss (doc. 15). See generally doc.
26. See also Jefferson Cty. Sch. Dist. No. R-1 v.
Moody's Investor's Servs., Inc., 175 F.3d 848,
859 (10th Cir. 1999) (“A proposed amendment is futile
if the complaint, as amended, would be subject to
dismissal.”) (citations omitted).
Defendants' opposition to Plaintiffs' Motion on
futility grounds overlaps with their arguments in their
Motion to Dismiss, Defendants' Motion to Dismiss has not
been referred to the undersigned for recommendations.
See 28 U.S.C. § 636(b)(1)(B). As such, the
undersigned will not express any opinion about the merits of
Defendants' dispositive arguments and the following
analysis of Plaintiffs' Motion for Leave will be
necessarily limited in scope. See Id. §
636(b)(1)(A); Fed.R.Civ.P. 72(a); see also doc. 35.
For the reasons that follow, Plaintiffs' Motion for Leave
to File Second Amended Complaint will be GRANTED.
brought the instant litigation in the Ninth Judicial District
Court for the State of New Mexico on January 19, 2017.
Doc. 1-1. Plaintiffs include the livestock auction
business High Plains Livestock, LLC, its owner, Michael Flen,
and two employees, Calvin and Darcie Pareo. Defendants
include the New Mexico Livestock Board (“NMLB”)
as well as NMLB executive director, Ray Baca, and NMLB law
enforcement agents Barry Allen and Shawn Davis. Doc.
23-1 at 1-2. According to the First Amended Complaint,
Plaintiffs' claims stem from alleged tortious and
unconstitutional conduct by Defendants dating back to 2009
which Plaintiffs contend substantially interfered with
Plaintiffs' ability to conduct their business, including
defamation, abuse of process, and violations of
Plaintiffs' First, Fourth, Fifth, and Fourteenth
Amendment rights. See doc. 1-5 at
filed their First Amended Complaint in state court on
February 6, 2017. Doc. 1-5. Although all claims in
the First Amended Complaint were purportedly based on the New
Mexico Tort Claims Act (“NMTCA”), Counts IV and V
plainly implicated the United States Constitution, giving
rise to federal-question jurisdiction. See Id. at
14- 17. Accordingly, Defendants removed the matter to this
Court on March 17, 2017. Doc. 1. The Individual
Defendants filed a Motion to Dismiss the federal claims
contained in Plaintiffs' First Amended Complaint on May
25, 2017, on both 12(b)(6) grounds as well as on the basis of
qualified immunity. Doc. 15. Plaintiffs then filed
the instant Motion for Leave to File Second Amended Complaint
on June 26, 2017. Doc. 22. The Motion for Leave was
fully briefed on July 24, 2017, and was referred to the
undersigned on January 26, 2018. Docs. 26, 28, 29,
Standard of Review
are beyond the 21-day time period during which they may file
an amended pleading as a matter of course. Fed.R.Civ.P.
15(a)(1). Therefore, Plaintiffs must obtain either
Defendants' consent or the Court's leave in order to
amend. Fed.R.Civ.P. 15(a)(2). The Court should “freely
give” such leave “when justice so
requires.” Id. The decision to grant leave to
amend a complaint is within the Court's discretion.
Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027
(10th Cir. 1994). “Refusing leave to amend is generally
only justified upon a showing of undue delay, bad faith or
dilatory motive, failure to cure deficiencies by amendments
previously allowed, or undue prejudice to the opposing party,
or futility of amendment, etc.” Castleglen, Inc. v.
Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir.
1993) (citing Foman v. Davis, 371 U.S. 178, 182
prejudice would result to the nonmoving party has been
treated by the Tenth Circuit as the “most important
factor in deciding a motion to amend the pleadings[.]”
Minter v. Prime Equipment Co., 451 F.3d 1196, 1207
(10th Cir. 2006). “Typically, courts will find
prejudice only when an amendment unfairly affects non-
movants in terms of preparing their response to the
amendment.” Bylin v. Billings, 568 F.3d 1224,
1229 (10th Cir. 2009) (quotations and alteration omitted).
Courts most often make such a finding “when the amended
claims arise out of a subject matter different from what was
set forth in the complaint and raise significant new factual
issues.” Minter, 451 F.3d at 1208. Thus, an
amendment may be found to be prejudicial “if its timing
prevents the defendant from pursuing a potentially promising
line of defense[.]” Id. at 1209.
discussed in greater detail below, the salient differences
between Plaintiffs' First Amended Complaint and the
proposed Second Amended Complaint include: (1) substituting a
claim that Defendants violated their Fifth and Fourteenth
Amendment rights to due process by destroying exculpatory
evidence with a Sixth Amendment claim based on the same
allegations; (2) the deletion of allegations of tortious
interference with contract; (3) the deletion of
Plaintiffs' claim that Defendants violated their First
Amendment right to free association; (4) the addition of an
equal protection “class-of-one” claim; (5) the
addition to Plaintiffs' existing Fourth Amendment claim
based on unreasonable search and seizure that Plaintiffs
themselves were unreasonably seized during a search of High
Plains operations on January 21, 2015; and (6) the addition
of claims for punitive damages and attorney's fees.
See generally docs. 1-5, 23-1. The undersigned finds
that no prejudice to Defendants will result from allowing
these amendments to the Complaint. Thus, treating prejudice
as the most important applicable factor, and absent authority
to opine on Defendants' dispositive arguments, the
undersigned will grant Plaintiffs' Motion.
speaking, these proposed amendments do not significantly
alter the First Amended Complaint, nor should they affect the
Court's analysis of the Individual Defendants'
qualified immunity defense as to Plaintiffs' Fourth or
Fourteenth Amendment claims. Of course, the addition of the
Sixth Amendment claim would require some additional qualified
immunity briefing on that issue. Generally, however, the
undersigned agrees with Individual Defendants that if the
deficiencies they allege in their Motion to Dismiss do indeed
warrant dismissal of the federal claims in the First Amended
Complaint, allowing the proposed amendments would not change
that result. See doc. 26 at 1-2.
example, in their Reply to Defendants' Response to the
Motion for Leave to Amend, Plaintiffs fail to address
Defendants' argument that a significant number of
Plaintiffs' claims are time-barred. See generally
doc. 28. Their only cursory acknowledgment of the
statute-of-limitations defense relates to factual averments
contained in the Second Amended Complaint that certain
criminal charges brought against them by Defendants in 2009
and 2012 were dismissed. See doc. 23-1 at 4, 5. In
their Reply, Plaintiffs argue that “[t]he citation and
allegations of acquittal of the magistrate charges [from 2009
and 2012] are not ‘stale, ' have no bearing on
alleged defense of applicable statutes of limitation, and
again evidence the pattern and context of illegitimate law
enforcement that proceeded without probable cause and
constitute sufficient notice pleading.” Doc.
28 at 8.
is no further mention in Plaintiffs' Reply of the
statute-of-limitations defense, which Defendants argue should
apply to bar other claims unrelated to the 2009 and 2012
charges, including those claims based on the following
factual allegations: (1) NMLB's denial of Plaintiffs'
request for two sales per week at their sales barn; (2)
NMLB's policy that brand inspectors not stay at
Plaintiffs' sales barn past 7:00 p.m.; (3)
representations by Defendants Allen and Davis that Plaintiffs
could not move to a new facility; (4) NMLB's directive to
Animal Plant and Health Inspections Services not to approve
Plaintiffs' move to a new facility; (5) the seizure of
metal clips and back tags from Plaintiffs by Defendants'
brand inspectors; (6) Defendants Allen and Davis's
threats to two veterinarians not to service Plaintiffs'
auction house; and (7) Defendants' instruction to the New
Mexico DOT to ...