United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Honorable Judith C Herrera United States District Court Judge
MATTER is before the Court on Plaintiff's Motion for
Permission to Amend First Amended Complaint
(“Motion to Amend”), (Doc. 55-1), filed September
24, 2018 and Defendants' Response in Opposition to
Plaintiff's Motion for Permission to Amend First Amended
Complaint (“Response to Motion to Amend”),
(Doc. 60), filed October 9, 2018. After considering the
parties' filings, the record, and the relevant law, the
Court FINDS that Plaintiff's Motion
for Permission to Amend First Amended Complaint, (Doc.
55-1), is not well taken and should be DENIED WITHOUT
August 3, 2014, Defendant Brent Aguilar, a police officer
with the City of Clovis Police Department, conducted a
routine traffic stop in Curry county, New Mexico. (Doc. 1-2
at 224-25). Upon approaching the driver's side of the
stopped vehicle, Officer Aguilar asked the driver to roll
down the left passenger-side window. (Doc. 1-2 at 225). The
driver of the vehicle, Keisha Lujan, complied with Officer
Aguilar's request and continued searching for her
driver's license, proof of insurance, and vehicle
registration. Id. Plaintiff Jorge Corona was seated
in the back-left passenger seat of Ms. Lujan's vehicle,
and as Ms. Lujan searched for her documentation, he began
asking Officer Aguilar why they had been pulled over.
Id. Officer Aguilar stated that he was not speaking
to Mr. Corona because he was not the driver of the vehicle.
Id. Mr. Corona then continued asking Officer Aguilar
why the vehicle had been stopped. Id.
repeated questioning from Mr. Corona, Officer Aguilar asked
Mr. Corona if he had any identification (“ID”).
(Doc. 1-2 at 225). In response, Mr. Corona stated he did not
have ID and continued to ask Officer Aguilar why the vehicle
had been pulled over. Id. Eventually, Officer
Aguilar stated that if Mr. Corona did not produce ID, he
would be placed under arrest for concealing identification.
Id. After repeating that he did not have ID, Mr.
Corona was ordered out of the vehicle and placed under arrest
for concealing identification. Id. Officer Aguilar
placed Mr. Corona in handcuffs and began walking him towards
“the patrol units.” (Doc. 1-2 at 225-26).
Corona alleges that while his hands were handcuffed behind
has back, Officer Aguilar “slammed [him] facedown into
the asphalt, ” “without warning, ” causing
him serious bodily injury. (Doc. 1-2 at 226). After the
attack, Mr. Corona alleges that Officer Aguilar
“fabricated many aspects of his story, ” in his
police report concerning the incident, including accusations
that Mr. Corona “used abusive language towards him,
tried to pull away from him on numerous occasions, and 
thrust his shoulder forward in a[n]  aggressive
manner.” Id. In addition, Mr. Corona alleges
that a fellow City of Clovis police officer, Defendant Travis
Loomis, arrived on the scene before the attack occurred and
helped Officer Aguilar “continue the prosecution of an
innocent person by fabricating his police report and
testimony to support a senior officer.” (Doc. 1-2 at
result of this incident, Officer Aguilar charged Mr. Corona
with resisting, evading, or obstructing an officer, in
violation of N.M.S.A. § 30-22-1, and concealing
identity, in violation of N.M.S.A. § 30-22-3.
See (Doc. 54 at 28-29). At trial, Mr. Corona was
acquitted of all charges against him. (Doc. 54 at 14);
see also (Doc. 54 at 41-42).
August 1, 2016, Mr. Corona filed a complaint in the Ninth
Judicial District of New Mexico alleging “assault,
battery, wrongful arrest, prima facie tort, intentional
infliction of emotional distress, pain and suffering,
negligence, damages, misuse of process and malicious abuse of
process, ” against the City of Clovis, the Clovis
Police Department, and Officers Brent Aguilar and Travis
Loomis “in their personal and official
capacities.” (Doc. 1-2 at 1). After a year of
litigation in state court, Defendants removed the case to
this Court on August 8, 2017. See (Doc. 1).
Order of Consideration of Motions
preliminary matter, the Court notes that three motions are
currently pending on the docket: Defendants' First
Motion for Partial Summary Judgment (“Motion for
Summary Judgment”), (Doc. 41), filed August 3, 2018;
Defendants' Motion for Partial Judgment on the
Pleadings (“Motion for Judgment on the
Pleadings”), (Doc. 43), filed August 3, 2018; and the
Motion considered in this Order, Plaintiff's Motion to
Amend his Complaint, (Doc. 55-1).
Defendants filed both their Motion for Summary Judgment and
their Motion for Judgment on the Pleadings, Plaintiff filed a
Motion to Amend, seeking to remedy a number of deficiencies
in his Complaint that were illustrated by Defendants'
Motions. Plaintiff's Second Amended Complaint, if
permitted to be filed by the Court, would
“supersede” his First Amended Complaint,
rendering Defendants' Motions moot. See Gilles v.
U.S., 906 F.2d 1386, 1389 (10th Cir. 1990) (“[A]
pleading that has been amended under Rule 15(a) supersedes
the pleading it modifies and remains in effect throughout the
action unless it subsequently is modified.”) (quoting 6
Fed. Prac. & Proc. Civ. § 1476 (3d ed.)); Tierra
Blanca High Country Youth Prog. v. Gonzales, No. 15-850,
2017 WL 3420755, at *2 (D.N.M. March 20, 2017) (unpublished)
(“[I]f the Second Amended Complaint rectifies any 
deficiencies [in the First Amended Complaint], the Motion to
Dismiss is moot.”); Gotfredson v. Larsen LP,
432 F.Supp.2d 1163, 1172 (D.Colo. 2006) (finding that the
defendants' motions to dismiss were “technically
moot” because they were directed at the plaintiff's
first amended complaint which was “no longer
operative” after he filed his motion to amend). As
such, the Court will first address Plaintiff's Motion to
Amend before ruling on Defendants' Motions.
Plaintiff's Motion to Amend
Rule of Civil Procedure (“Federal Rule”) 15(b)
permits a party to amend his complaint with the opposing
party's consent or with the court's permission.
Consistent with Federal Rule 15, the court may refuse to
grant a party leave to amend if there is 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.” See Warnick v. Cooley, 895 F.3d
746, 755 (10th Cir. 2018). The court's discretion to deny
leave must also be exercised in conjunction with Federal Rule
15(b)'s mandate to “freely give leave when justice
so requires.” Fed.R.Civ.P. 15(b).
addition, when a movant seeks leave to amend after the
court's scheduling order deadline has passed, Federal
Rule 15(b) works in tandem with Federal Rule 16(b), requiring
an additional showing of “good cause” to modify
the court's scheduling order. Chaara v. Intel
Corp., No. 06-278, 2006 WL 4079030, at *4 (D.N.M. May
31, 2006) (unpublished) (aff'd245 Fed.Appx. 784
(10th Cir. 2007) (unpublished)). To satisfy the requirements
under Federal Rule 16(b), the movant must prove that he put