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Quarrie v. Wells

United States District Court, D. New Mexico

May 28, 2019

STEPHEN WELLS, et al., Defendants.



         THIS 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.


         The 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.

         Plaintiff 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);[1] 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. Id.

         NMT 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.

         The 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, [2] and his Motion to Amend is now before the Court.


         Plaintiff's 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 waived.”).

         In 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)).

         Federal 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.

         Where, 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.


         I. Plaintiff's motion is unduly delayed and presents a moving target.

         1. Undue Delay

         The 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).

         Plaintiff 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.”).

         Second, 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, ...

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