United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION TO AMEND
VÁZQUEZ, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Plaintiff's Objections
(doc. 110) to the Magistrate Judge's Proposed
Findings and Recommended Disposition (“PFRD”)
(doc. 104). The Magistrate Judge recommended denying
Plaintiff's Motion for Leave to Amend Second Amended
Complaint (doc. 94). Having conducted an
independent, de novo review of Plaintiff's
Motion, the attendant briefing (docs. 99,
100), and the Magistrate Judge's PFRD (doc.
104), the Court overrules Plaintiff's objections and
adopts the PFRD.
history of this case has been recently detailed, see doc.
90 at 1-3, as has its current posture, see doc.
104 at 1-4. The Court therefore recites only the
following essential facts.
filed his Motion for Leave to Amend Second Amended Complaint
on March 1, 2019. Doc. 94. The proposed Third
Amended Complaint (“TAC”) includes the two
surviving counts from the Second Amended Complaint, with some
alterations (Counts IV, V); four counts previously dismissed
(Counts I, II, III, and VI); and four entirely new counts
(Counts VII, VIII, IX, and X). See generally doc.
94-1. The proposed TAC also includes new factual
information in the form of Exhibit H, id. at 98, and
“several new pages” of factual information not
specifically identified. See doc. 94 at 3. Finally,
the proposed TAC includes an increased request for damages.
Defendants filed a response on March 15, 2019, opposing leave
to amend on the grounds of unexcused untimeliness, inclusion
of already-dismissed claims, inclusion of new claims that
rendered the complaint a “moving target, ” and
futility. See generally doc. 99. Plaintiff filed his
reply on March 29, 2019. Doc. 100.
Magistrate Judge issued his PFRD on April 3, 2019,
recommending denial of leave to amend based on undue delay,
improper presentation of theories seriatim, and, in the
alternative, futility of Plaintiff's newly added claims.
See generally doc. 104. Plaintiff subsequently filed
objections to the PFRD, doc. 110,  and his Motion to
Amend is now before the Court.
Motion (doc. 94) was referred to the Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(B). See doc.
85. Under that referral provision, the Court's
standard of review of a magistrate judge's PFRD is de
novo. See 28 U.S.C. § 636(b)(1)(C). When
resolving objections to a magistrate judge's PFRD,
“[t]he district judge must determine de novo any part
of the magistrate judge's disposition that has been
properly objected to. The district judge may accept, reject,
or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with
instructions.” Fed.R.Civ.P. 72(b)(3). “[A]
party's objections to the magistrate judge's report
and recommendation must be both timely and specific to
preserve an issue for de novo review by the district court or
for appellate review.” United States v. 2121 E.
30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). Moreover,
“[i]ssues raised for the first time in objections to
the magistrate judge's recommendation are deemed
waived.” Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996). See also United States v.
Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)
(“In this circuit, theories raised for the first time
in objections to the magistrate judge's report are deemed
adopting a PFRD, the district court need not “make any
specific findings; the district court must merely conduct a
de novo review of the record.” Garcia v. City of
Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000).
“[T]he district court is presumed to know that de novo
review is required. Consequently, a brief order expressly
stating the court conducted de novo review is
sufficient.” Northington v. Marin, 102 F.3d
1564, 1570 (10th Cir. 1996) (citing In re Griego, 64
F.3d at 583-84). “[E]xpress references to de novo
review in its order must be taken to mean it properly
considered the pertinent portions of the record, absent some
clear indication otherwise.” Bratcher v. Bray-Doyle
Indep. Sch. Dist. No. 42, 8 F.3d 722, 724 (10th Cir.
1993). A “terse” order containing one sentence
for each of the party's “substantive claims,
” which did “not mention his procedural
challenges to the jurisdiction of the magistrate to hear the
motion, ” has been held sufficient. Garcia,
232 F.3d at 766. The Supreme Court has explained that
“in providing for a de novo determination rather than
de novo hearing, Congress intended to permit whatever
reliance a district judge, in the exercise of sound judicial
discretion, chose to place on a magistrate's proposed
findings and recommendations.” United States v.
Raddatz, 447 U.S. 667, 676 (1980) (quoting 28 U.S.C.
§ 636(b)) (citing Mathews v. Weber, 423 U.S.
261, 275 (1976)).
Rule of Civil Procedure 15(a)(2) states that “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 may deny leave where there is
“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). Amendments are futile “if the
complaint, as amended, would be subject to dismissal.”
Anderson v. Merrill Lynch Pierce Fenner & Smith,
Inc., 521 F.3d 1278, 1288 (10th Cir. 2008) (internal
quotation omitted). This includes failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
as here, a party is proceeding pro se, the court is
to liberally construe his pleadings. Casanova, 595
F.3d at 1125. “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. 2012) (unpublished) (quoting Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In other
words, “[t]he broad reading of the plaintiff's
complaint does not relieve the plaintiff of the burden of
alleging sufficient facts on which a recognized legal claim
could be based.” Hall, 935 F.2d at 1110.
Plaintiff's motion is unduly delayed and presents a
Magistrate Judge found that Plaintiff's motion to amend
was untimely because he failed to provide adequate
explanation for his approximately two-year delay in adding
new claims. Doc. 104 at 5-7. As explained in the
PFRD, undue delay alone may justify denial of a
plaintiff's motion to amend. See Wopsock v.
Natchees, 279 Fed.Appx. 679, 689 (10th Cir. 2008)
(citing Pallottino v. City of Rio Rancho, 31 F.3d
1023, 1027 (10th Cir. 1994)); Viernow v. Euripides Dev.
Corp., 157 F.3d 785, 799-800 (10th Cir. 1998); State
Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d
405, 416 (10th Cir. 1984).
argues that his motion was not untimely. Doc. 110 at
10-11. As in his original motion, Plaintiff's only
explanation for the delay in adding new claims is that he did
not undertake the requisite legal research until about six
months ago. Id. at 10 - 11; doc. 100 at 6.
He now asserts, first, that this is adequate justification
because “[i]f the deciding factor in granting a movant
leave to amend is whether or not they could have undertaken
their legal research at an earlier date, then no one would
qualify for leave, since it is arguable that everyone could
have undertaken their research earlier than they did.”
Doc. 110 at 10. It is, indeed, difficult to imagine
any circumstance in which a delay in conducting legal
research would excuse a delay in moving to add new claims.
The discovery of new facts, conversely, may justify
a delay in seeking amendment if the plaintiff did not know
and should not reasonably have known about those facts
before. See, e.g., Minter v. Prime
Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006) (delay
justified where plaintiff was previously unaware of factual
information revealed by defendant's late disclosures);
State Distribs., 738 F.2d at 416 (citation omitted)
(“Where 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.”).
Plaintiff argues that he “could not” previously
have conducted his legal research, either at the time of
filing this action two years ago or at the time of filing his
Second Amended Complaint one year ago, because the additional
research was “instigated by NMT Defendants'
misconstrual of the defamation and financial deprivation
claims in Plaintiff's SAC.” Doc. 110 at
11. However, it was Plaintiff's responsibility to conduct
legal research about his claims at the time of filing suit.
He certainly has not persuaded the Court that he could not
have done so prior to the defense filings he references.
See, e.g., Cresswell v. Sullivan &
Cromwell, 922 F.2d 60 (2d Cir. 1990) (internal citations
omitted) (“The burden is on the party who wishes to
amend to provide a satisfactory explanation for the delay,