United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE
MATTER is before the Court on Plaintiff's Motion for
Leave to File [Fourth] Amended Complaint, filed on May 4,
2018. (Doc. 40.) Having considered the submissions of the
parties and the procedural posture of this case, the Court
will grant Plaintiff's motion and give her until October
15, 2018, to file her Fourth Amended Complaint as described
Rule of Civil Procedure 15 governs amendments to pleadings.
“Except when an amendment is pleaded ‘as a matter
of course,' as defined by the rule, ‘a party may
amend its pleading only with the opposing party's written
consent or the court's leave.'” Bylin v.
Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (quoting
Fed.R.Civ.P. 15(a)(2)). Courts “should freely grant
leave when justice so requires.” Id. (quoting
Fed.R.Civ.P. 15(a)(2)). Rule 15(a)(2)'s purpose “is
to provide litigants the maximum opportunity for each claim
to be decided on its merits rather than on procedural
niceties.” Minter v. Prime Equip., 451 F.3d
1196, 1204 (10th Cir. 2006) (quotation omitted). Therefore,
“[r]efusing leave to amend is generally only justified
upon a showing of undue delay, 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 (10th Cir. 1993) (citations omitted);
accord Foman v. Davis, 371 U.S. 178, 182 (1962).
to grant leave to amend a complaint pursuant to Rule 15(a) is
within the trial court's broad discretion. See
Minter, 451 F.3d at 1204 (citing Zenith Radio Corp.
v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971)).
The court of appeals will not reverse a lower court's
decision to permit an amendment unless the decision was
“arbitrary, capricious, whimsical, or manifestly
unreasonable.” Bylin, 536 F.3d at 1229
filed her initial Complaint for Violations of Civil Rights on
January 23, 2017. (Doc. 1.) Before Defendants answered,
Plaintiff filed an Amended Complaint on August 8, 2017 (Doc.
12), a Second Amended Complaint on September 7, 2017 (Doc.
15), and a Third Amended Complaint on October 27, 2017 (Doc.
17). The Federal Rules of Civil Procedure state:
(1) Amending as a Matter of Course. A party may amend its
pleading once as a matter of course within:
(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) 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.
Fed. R. Civ. P. 15(a)(1), (2) (emphasis added). Accordingly,
Plaintiff's First Amended Complaint (Doc. 12) was
properly filed “as a matter of course” under Rule
15. See Gilles v. United States, 906 F.2d 1386, 1387
(10th Cir. 1990) (amendment was proper “as a matter of
course” under Rule 15(a) because government had not yet
filed responsive pleading). Plaintiff did not, however, seek
leave of the Court to amend her complaint for a second or
third time, and there is no indication that Defendants
provided written consent for Plaintiff to file a second or
third amended complaint.
Plaintiff filed her Third Amended Complaint, Defendants filed
a motion to dismiss the claims contained in all four
complaints. (See Doc. 22.) Defendants argue in their
Motion to Dismiss that, for a variety of reasons,
Plaintiff's claims are futile. (Id.) After
Defendants filed the Motion to Dismiss, Plaintiff moved to
amend her complaint once again, adding new claims and a new
defendant. (Doc. 40 at 7-25.) Plaintiff's several amended
complaints and her proposed Fourth Amended Complaint contain
some similarities and some differences with regard to the
defendants named and the claims presented.
Court is obligated to liberally construe a pro se
litigant's pleadings and hold them to a less stringent
standard than those drafted by lawyers. Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991)). Each of Plaintiff's amended complaints
contains language that Plaintiff “moves to amend her
complaint to include the following claims.” (Docs. 12
at 1; 15 at 1; 17 at 1; 40 at 7.) Plaintiff attached several
documents to her First Amended Complaint (Doc. 12 at 13-71),
and attached one document to her Second Amended Complaint
(Doc. 15 at 14). There are no attachments to Plaintiff's
Third Amended Complaint, although it references several
attachments. (Doc. 17 at 13.) Plaintiff attached several
documents to her proposed Fourth Amended Complaint. (Doc. 40
at 26-54.) It is unclear whether Plaintiff intends for each
new amendment to be an addition to her initial complaint or a
change to the previously filed complaint in its entirety.
Given the confusion regarding Plaintiff's claims and the
defendants she wishes to include in this lawsuit, the Court
will grant Plaintiff's motion to amend.
the Court will liberally construe Plaintiff's pleadings,
the Tenth Circuit “has repeatedly insisted that pro se
parties follow the same rules of procedure that govern other
litigants.” Garrett, 425 F.3d at 840 (quoting
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994) (internal quotation marks omitted)). Plaintiff's
Fourth Amended Complaint must comply with Federal Rules of
Civil Procedure, including Rules 8, 10, and 11, which lay out
the requirements of proper pleading.
pursuant to Rule 8, “a complaint must have enough
allegations of fact, taken as true, ‘to state a claim
to relief that is plausible on its face.'” Kan.
Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th
Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). While “‘a court must
accept as true all of the allegations contained in a
complaint, '” this rule does not apply to legal
conclusions. Id. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “[A] plaintiff
must offer specific factual allegations to support each
claim.” Id. (citation omitted). A complaint
survives only if it “states a plausible claim for
relief.” Id. (citation omitted).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678 (citation
omitted). Thus, while the Court will permit Plaintiff to file
her Fourth Amended Complaint, it must stand alone; she cannot
rely on any of the previously filed complaints to state her
causes of action. Should Plaintiff choose not to file an
amended complaint, Defendants may refile their motion to
dismiss and need only address the First Amended Complaint
(Doc. 12), which is currently the operative complaint.
extent that any other named Defendants have viable grounds
for dismissing some or all of the claims raised in
Plaintiff's Fourth Amended Complaint, those arguments
would be more efficiently raised in a new Rule 12(b)(6)
motion that addresses the operative complaint, rather than
indirectly under Rule 15(a). See Gen. Steel Domestic
Sales, LLC v. Steelwise, LLC, No. 07-cv-01145-DME-KMT,
2008 WL 2520423, at *4 (D. Colo. June 20, 2008)
(“Rather than force a Rule 12(b)(6) motion into a Rule
15(a) opposition brief, the defendants may be better served
by waiting to assert Rule 12 motions until the operative
complaint is in place.”).
since the filing of these motions, this lawsuit has been
consolidated with a related action: Wu v. Jewell,
14cv0150. A decision on the motions pending in 14cv0150,
together with the Motion to Set Aside Settlement Agreement
that Plaintiff filed in ...