United States District Court, D. New Mexico
MIKE S. OCHIENO, Plaintiff,
SANDIA NATIONAL LABORATORIES, Defendant.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon pro se
Plaintiff's Motion to Amend the Complaint (Motion to
Amend), filed on April 19, 2018. (Doc. 13). Defendant filed a
response on April 26, 2018, and Plaintiff filed a reply on
May 14, 2018. (Docs. 14 and 15). Having considered the Motion
to Amend, the proposed “Second Amended Complaint,
” and the accompanying briefing, the Court denies the
Motion to Amend.
brings this employment discrimination lawsuit against
Defendant, “a wholly owned subsidiary of Lockheed
Martin.” (Doc. 14) at 4 n.1. When Plaintiff worked for
Defendant, he worked on Kirtland Air Force Base. (Doc. 1-3)
and (Doc. 1-4).
November 25, 2016, the Equal Opportunity Commission (EEOC)
mailed to Plaintiff a Dismissal and Notice of Rights letter,
which notified Plaintiff that he had 90 days from the receipt
of the letter to file a Title VII lawsuit in either federal
or state court. (Doc. 15) at 9. Plaintiff claims that he
received a right to sue letter in January 2017. Id.
March 1, 2017, Plaintiff filed a complaint in state court
raising the following state claims: breach of implied
contract, race discrimination under the New Mexico Human
Rights Act (NMHRA), and intentional interference with
contractual relations (IICR). (Doc. 1-1) at 4-7. Plaintiff
did not bring a Title VII claim or any other federal claim.
On February 28, 2018, Defendant removed the lawsuit to
federal court on the basis of federal question jurisdiction
arising from the fact that Kirtland Air Force Base is a
federal enclave subject to exclusive federal jurisdiction.
(Doc. 1) at 2.
March 7, 2018, Defendant filed a motion to dismiss the
lawsuit based, in part, on the federal enclave doctrine.
(Doc. 4). Under the federal enclave doctrine, “state
law that is adopted after the creation of the enclave
generally does not apply on the enclave.” Allison
v. Boeing Laser Tech. Servs., 689 F.3d 1234, 1235 (10th
Cir. 2012). Instead of responding to the Motion to Dismiss,
Plaintiff moved to amend the state complaint in an effort to
characterize his state claims as federal claims. (Doc. 13).
If Plaintiff succeeds in amending the state complaint, then
the federal enclave doctrine does not apply and dismissal on
that basis would be improper.
moves to amend his state complaint as follows. First,
Plaintiff seeks to base the breach of implied contract claim
on Title VII. Id. at 3, ¶¶ 7-16. Second,
Plaintiff seeks to base the race discrimination claim on
Title VII (“42 U.S.C. § 2002e-2(a)(1), (b) and
(d)” [sic]) and on a violation of the United States
Constitution and First Amendment, presumably, under 42 U.S.C.
§ 1983. (Doc. 13) at 3-4, ¶¶ 17-26. Finally,
Plaintiff seeks to base the IICR claim on “Federal law,
” and on a violation of the United States Constitution
and First Amendment, also, presumably, under Section 1983.
Id. at 4-5, ¶¶ 27-33. In bringing the IICR
claim, Plaintiff contends, as he did in the state complaint,
that Defendant's policies provided he “had a duty
to report complaints he had.” Id. at 4, ¶
29. Aside from labeling his previous state claims as various
federal claims, Plaintiff's allegations in the
“Second Amended Complaint” remain the same as in
the state complaint. Plaintiff asserts that he did not bring
the federal claims in the state complaint “because the
complaint was made in state court” and because he did
not know about the federal enclave doctrine until Defendant
raised it in its notice of removal. (Doc. 15) at 2.
initial matter, the Court observes that “[a]lthough a
pro se litigant's pleadings are to be construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers, [the Tenth Circuit] has
repeatedly insisted that pro se parties follow the
same rules of procedure that govern other litigants.”
Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005) (internal citations, quotation
marks, and alterations omitted).
Fed. R. Civ. 15(a)(2), “a party may amend its pleadings
only with the opposing party's written consent or the
court's leave.” As the Tenth Circuit has explained,
Rule 15(a) provides that leave to amend “shall be
freely given when justice so requires.” Refusing 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. It is well
settled in this circuit that untimeliness alone is a
sufficient reason to deny leave to amend, especially when the
party filing the motion has no adequate explanation for the
delay. Furthermore, “[w]here the party seeking
amendment knows or should have known of the facts upon which
the proposed amendment is based but fails to include them in
the original complaint, the motion to amend is subject to
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365-66 (10th
Cir. 1993) (citations omitted). Courts can also properly deny
a motion to amend when it appears that a plaintiff is using
Rule 15 to “salvage a lost case by untimely suggestion
of new theories of recovery, ” Viernow v. Euripides
Dev. Corp., 157 F.3d 785, 800 (10th Cir. 1998); to make
the complaint “a moving target, ” id.;
or to present “theories seriatim” in an effort to
avoid dismissal, Pallotino v. City of Rio Rancho, 31
F.3d 1023, 1027 (10th Cir. 1994) (citation omitted).
Defendant argues that the Court should deny the Motion to
Amend on the grounds of futility, undue delay, and
presentation of untimely new theories to avoid dismissal.