United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's Motion for
Leave to Amend Second Amended Complaint. Doc. 94.
Having reviewed both the Motion and attendant briefing
(docs. 99, 100), I find that the motion to
amend is untimely, presents improper theories
seriatim, and that the proposed amendments would be
futile. I therefore RECOMMEND that the Court DENY
filed the instant Motion for Leave to Amend Second Amended
Complaint on March 1, 2019. Doc. 94. However, as evidenced by
the Motion's title, this is not the first time Plaintiff
has moved to amend his complaint. Plaintiff first amended his
complaint on April 6, 2017. Doc. 15. He then sought leave to
amend his complaint once again (doc. 57), which the Court
granted (doc. 74). Accordingly, Plaintiff filed his Second
Amended Complaint on February 14, 2018. Doc. 75.
the Second Amended Complaint operative, both the NMT
Defendants (Defendants Board of Regents of the New Mexico
Institute of Mining and Technology, Lorie Liebrock, Daniel
Lopez, Warren Ostergren, Kevin Wedeward, and Stephen Wells)
and Saucedo Defendants (SaucedoChavez, P.C. and Christopher
Saucedo), respectively, filed motions to dismiss. Docs. 76,
78. NMT Defendants' motion was granted in part, and
Saucedo Defendants' motion was granted in full, in the
Court's Memorandum Opinion and Order adopting the
Magistrate Judge's PFRD. See doc. 90.
the Court's ruling, Plaintiff's only remaining claims
were Count III (Title VI racial discrimination) and part of
Count V (request for injunctive relief against
discrimination) of the Second Amended Complaint. See
docs. 88, 90. Following the dismissal of most of his claims,
Plaintiff seeks leave to amend his complaint yet again.
According to Plaintiff, the proposed Third Amended Complaint
(“TAC”) includes the following changes:
(1) Count III of the Second Amended Complaint has been
“strengthened, ” and the surviving portion of
Count V has been “split into two independent counts and
reordered for the purpose of
(2) Four new counts (Counts VII, VIII, IX, and X) have been
(3) “[S]everal new pages of important factual
allegations” and a revised version of Exhibit H have
(4) The requested award of damages has been increased from
two million to three million dollars.
Doc. 94 at 2.
of the claims in the proposed TAC are identical or
essentially identical to claims dismissed by the Court's
Order (see doc. 90):
(1) Count I (Malicious and Conspiratorial Defamation by
Slander) (doc. 94-1 at 28) appears identical to Count I of
the Second Amended Complaint (doc. 75 at 19), which was
dismissed in its entirety.
(2) Count II (Malicious and Conspiratorial Defamation by
Libel) (doc. 94-1 at 29) is similarly identical to the
dismissed Count II of the Second Amended Complaint (doc. 75
(3) Count III (Request for Permanent Prospective Injunction
Concerning Counts I and II) (doc. 94-1 at 30) corresponds
exactly to the dismissed portion of Count V in the Second
Amended Complaint (doc. 75 at 23).
(4) Count VI (Malicious and Conspiratorial Deprivation of
Financial Property Right) (doc. 94-1 at 33) is identical in
substance and language to the dismissed Count IV (doc. 75 at
explains in his Reply, however, that his reason for including
the already- dismissed claims in the proposed TAC is not to
relitigate them, but rather to preserve them for appeal.
Doc. 100 at 9 n.2.
Defendants oppose Plaintiff's Motion to
Amend. See doc. 99. All claims against
Saucedo Defendants have been dismissed (see doc.
90), and Saucedo Defendants are not named in any of the
new counts of the proposed TAC (see generally doc.
94-1). Saucedo Defendants are therefore effectively dismissed
from the case and were neither obligated nor permitted to
respond. Following NMT Defendants' Response (doc. 99) and
Plaintiff's Reply (doc. 100), Plaintiff's Motion to
Amend is now before the Court.
Rule 15 of the Federal Rules of Civil Procedure, a party may
amend its pleading once as a matter of course within 21 days
after service of the pleading or of a responsive pleading.
Fed.R.Civ.P. 15(a)(1). Not only has Plaintiff already amended
his complaint once as of right (doc. 15), but the twenty-one
day period, whether measured under Rule 15(a)(1)(A) or
15(a)(1)(B), has long since expired. Plaintiff's current
motion is therefore controlled by Rule 15(a)(2), which reads:
“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)(2). A
court's valid reasons for denying leave to amend may
include “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.” Foman v. Davis,
371 U.S. 178, 182 (1962).
as here, a party is proceeding pro se, the court is
to liberally construe his pleadings. Casanova v.
Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010).
“But the court [is] not [to] ‘assume the role of
advocate for the pro se litigant.'” Baker v.
Holt, 498 Fed.Appx. 770, 772 (10th Cir. ...