United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Plaintiff's Motion for
Leave to File Second Amended Complaint (Doc. 17),
filed December 8, 2017, and fully briefed February 6, 2018
(Docs. 23, 26). On January 29, 2018, the Honorable
Martha Vazquez referred this motion to me for a recommended
disposition. Doc. 25. Having reviewed the Motion,
the proposed Second Amended Complaint, Defendant's
Response in Opposition, and having conducted oral arguments,
the Court finds that the proposed amendment presents
significant changes to the original complaint such that it
would introduce undue delay and unduly burden Defendant.
Thus, the Court will recommend denial of the Motion.
first filed his pro se Complaint for Violations of
the Telephone Consumer Protection Act, the Unfair Practices
Act and Torts in state court on August 14, 2017. That filing
came just over one hour after Plaintiff allegedly received
the offending telephone call that is at issue in this case.
Plaintiff amended the complaint once as a matter of course on
September 13, 2017, to correctly name the Defendant and to
add conduct by “lead generators” for his claim of
vicarious liability. Defendant removed the case to this
federal district court on October 19, 2017.
Sid Childress is an attorney practicing in the field of real
estate, business-to-business debt collection, probate, trust
and estate disputes, and consumer protection. Doc.
23-1. He specializes in suing “telemarketers who
unlawfully robocall and auto-dial cell phones, thereby
harassing many people every day and willfully invading their
privacy in violation of the Telephone Consumer Protection Act
(“TCPA”).” Doc. 23-7. Indeed,
since 2016, Plaintiff has filed suit in this federal district
court as Plaintiff and/or class representative in six other
instant case arises from an alleged single prerecorded
telephone call Plaintiff received on August 14, 2017 from a
third-party caller identified as “Jason” from
“Cheap Insurance Experts.” After listening to the
prerecorded message and answering questions, Plaintiff was
transferred to a live caller identified as “Steve
Ross” from Liberty Mutual Insurance Company. When
Plaintiff began asking the caller why he received this
“robocall, ” Plaintiff alleges the call was
disconnected. Plaintiff contends that his phone number was on
the Federal “Do Not Call Registry” at the time
and that this “robocall” violated the TCPA.
Plaintiff proceeded pro se until December 7, 2017,
when his current counsel entered their appearance. On
December 8, 2017, Plaintiff's counsel filed the motion at
15(a) of the Federal Rules of Civil Procedure provides:
(1) Amending as a Matter of Course.
A party may amend its pleading once as a matter of course
(A) 21 days after serving it, or
(B) if the pleading is one to which a
responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, 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.
Rule 15(a) encourages liberal granting of leave to amend,
denying such leave may be justified upon showing of undue
burden, undue prejudice to the opposing party, bad faith or
dilatory motive, failure to cure deficiencies by amendments
previously allowed, or futility of amendment. Frank v.
U.S. West. Inc., 3 F.3d 1357, 1365-66 (10th Cir. 1993).
to amend may also be refused on the grounds of untimeliness
or undue delay. Id. Undue delay occurs where the
plaintiff's amendments “make the complaint a moving
target.” Minter v. Prime Equip. Co., 451 F.3d
1196, 1206 (10th Cir. 1998) (quoting Viernow v. Euripides
Dev. Corp., 157 F.3d 785, 799-800 (10th Cir. 1998)).
Undue delay may also occur when the plaintiff knew or should
have known all of the information on which the proposed
amendment is based before the filing of an earlier complaint.
See Pallottino v. City of Rio Rancho, 31 F.3d 1023,
1027 (10th Cir. 1994) (noting that proposed amended complaint
“was not based on new evidence unavailable at the time
of the original filing”). “Untimeliness alone may
be sufficient basis for denial of leave to amend . . . .
Prejudice to the opposing party need not also be
shown.” Las Vegas Ice & Cold Storage
Co. v. Far W. Bank, 893 F.2d 1182 (10th Cir. 1990).