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Quarrie v. Wells

United States District Court, D. New Mexico

April 3, 2019

LINDSAY O'BRIEN QUARRIE, Plaintiff,
v.
STEPHEN WELLS, et al., Defendants.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.

         THIS 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 Plaintiff's Motion.

         I. Background

         Plaintiff 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.

         With 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.

         Following 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 clarification.”[1]
(2) Four new counts (Counts VII, VIII, IX, and X) have been added.
(3) “[S]everal new pages of important factual allegations” and a revised version of Exhibit H have been added.
(4) The requested award of damages has been increased from two million to three million dollars.

Doc. 94 at 2.

         Several 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 at 20).
(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 22).

         Plaintiff 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.

         NMT Defendants oppose Plaintiff's Motion to Amend.[2] 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.

         II. Legal Standard

         Under 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).

         Where, 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. ...


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