United States District Court, D. New Mexico
LISA M. REHBURG, Plaintiff,
BOB HUBBARD HORSE TRANSPORTATION, INC., Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
HONORABLE JERRY H RITTER, U.S. MAGISTRATE JUDGE.
matter comes before the Court on Plaintiff's Motion for
Leave to Amend Her Complaint, filed October 9, 2018. [Doc.
23');">23]. The Honorable Martha Vazquez designated the undersigned
“to hear and determine Plaintiff's Motion for Leave
to Amend Her Complaint [Doc. 23');">23].” [Doc. 24];
see 28 U.S.C. §§ 636(b)(1)(B), (b)(3);
Fed.R.Civ.P. 72(b)(1). Having reviewed the Motion and the
relevant law, the Court finds that the Motion is well taken
and should be granted.
FACTUAL AND PROCEDURAL BACKGROUND
filed her Complaint in the Third Judicial District Court in
the county of Dona Ana, New Mexico on May 2, 2017. [Doc. 1,
pp. 16-19]. According to the Complaint, Plaintiff hired
Defendant to transport her race horse, named Full Regalia,
from Del Mar, California to Bosque, New Mexico. [Doc. 1, p.
17]. On August 6, 2016, Full Regalia arrived in Bosque, New
Mexico. [Id.]. As he was unloaded from the trailer
used to transport him, Full Regalia sustained an injury to
his ankle which required surgical treatment. [Id.].
Plaintiff seeks compensatory damages for pain and suffering
and medical expenses resulting from the injury. [Id.
at pp. 17, 18-19]. Plaintiff also seeks damages for an
alleged decrease in Full Regalia's value as a race horse
and potential stud. [Id. at pp. 18-19].
case was removed on June 8, 2018 based on federal question
jurisdiction. [Id. at pp. 1-9]. Specifically,
Defendant asserted that Plaintiff's state law negligence
claim is preempted by the Carmack Amendment, 49 U.S.C. §
14706 et seq. (formerly 49 U.S.C. § 11707 et seq.).
[Id. at pp. 3-8]. In its Scheduling Order the Court
set Plaintiff's deadline to move to amend pleadings or
add additional parties for August 15, 2018. [Doc. 15].
Plaintiff filed a Motion to Remand on August 15, 2018, in
which she acknowledged, to an extent, the applicability of
the Carmack Amendment to her claims. [Doc. 11, pp. 4-9]. On
October 9, 2018, Plaintiff sought leave to amend her
Complaint to encompass the applicability of the Carmack
Amendment to her claims, as acknowledged in her Motion to
Remand. [Doc. 23');">23, p. 2].
accordance with D.N.M. LR-Civ. 7.1(a), Plaintiff advised that
her Motion for Leave to Amend was opposed because (1) the
proposed Amended Complaint was not filed prior to the August
15, 2018 deadline; (2) Defendant timely filed its Amended
Answer (to the original Complaint) by its September 2, 2018
deadline; (3) an Amended Complaint would necessitate the
preparation of a Second Amended Answer by Defendant; and (4)
this would not further judicial economy. [Doc. 23');">23, p. 3].
Notwithstanding Plaintiff's statement of Defendant's
reasons to oppose, Defendant did not file a response to
Plaintiff's Motion for Leave to Amend. Nor did Plaintiff
file a Reply in support of the Motion or a Notice that
briefing on the Motion was complete. However, this does not
preclude the Court from addressing the merits of the Motion,
as “[t]he failure to file and serve a reply in support
of a motion within the time prescribed for doing so
constitutes consent that briefing on the motion is
complete.” D.N.M. LR-Civ. 7.1(b).
Rule of Civil Procedure 15 permits a plaintiff to amend a
complaint as of right within 21 days after serving it or 21
days after service of a Rule 12(b) motion. Fed.R.Civ.P.
15(a)(1). “In all other cases, a party may amend its
pleading only with the opposing party's written consent
or the court's leave.” Fed.R.Civ.P. 15(a)(2).
“The court should freely give leave [to amend] when
justice so requires.” Fed.R.Civ.P. 15(a)(2).
“[T]his mandate is to be heeded.” Foman v.
Davis, 1 U.S. 178');">371 U.S. 178, 182 (1962). “In the absence
of any apparent or declared reason- such as 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.,
” leave should be granted. Id.
case, Plaintiff seeks to amend her Complaint in order to
focus the allegations to the applicable federal question
raised in litigating the Motion to Remand. [Doc. 23');">23, pp. 2-3;
Doc. 42]. There does not appear to be any undue delay,
dilatory motive, or undue prejudice to Defendant relative to
allowing the proposed amendment. See Foman, 371 U.S.
at 182. Although Plaintiff sought leave to amend after the
deadline set forth in the Court's Scheduling Order, the
Order provided that the Court would permit such requests.
[See Doc. 15, p. 2, n.1 (“Federal Rule of
Civil Procedure 16 requires that the Court set a deadline for
amendment of pleadings and joinder of parties. A party
seeking to amend the pleadings after the above dates must
both demonstrate good cause to amend the scheduling order as
required by Federal Rule of Civil Procedure 16(b) and satisfy
the requirements for amendment under Federal Rule of Civil
Procedure 15(a). See, e.g., Gorsuch Ltd., B.C. v. Wells
Fargo Nat. Bank Ass'n, 1 F.3d 123');">230');">771 F.3d 123');">230, 1242 (10th
Defendant has not responded to the Motion, as required under
this Court's local rules, which constitutes
Defendant's consent to grant the Motion. See
D.N.M. LR-Civ. 7.1(b) (“The failure of a party to file
and serve a response in opposition to a motion within the
time prescribed for doing so constitutes consent to grant the
motion.”). While the Court applies this rule cautiously
as a sole basis for granting motions[1"
name="FN1" id="FN1">1], by failing to respond,
Defendant has forgone its opportunity to articulate a reason
“such as 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., ” why leave to amend
should not be granted in this case. Foman, 371 U.S.
foregoing reasons, Plaintiffs Motion for Leave to File Her
Amended Complaint [Doc. 23');">23] is granted. Plaintiff has 10 days
from the entry of the Court's Order in which to file her