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Ochieno v. Sandia National Laboratories

United States District Court, D. New Mexico

January 10, 2019

MIKE S. OCHIENO, Plaintiff,
v.
SANDIA NATIONAL LABORATORIES, Defendant.

          MEMORANDUM OPINION AND ORDER

         This 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.[1]

         A. Background

         Plaintiff 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).

         On 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. at 1.

         On 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.

         On 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.

         Plaintiff 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.

         B. Discussion

         As an 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).

         Under 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 denial.”

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).

         Here, 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.

         1. ...


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