United States District Court, D. New Mexico
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO
FILE AMENDED COMPLAINT
Kelly, Jr., United States Circuit Judge
MATTER is before the court on Plaintiff Tonya Sutton's
Motion for Leave to File Amended Complaint (ECF No. 50). Upon
consideration thereof, the court finds the motion is not well
taken and should be denied.
court's previous memorandum opinion and order granted
summary judgment in favor of Defendant Heartland Payment
Systems LLC. See Mem. Op. & Order Granting
Def.'s Mot. Summ. J., Sutton v. Heartland Payment
Sys. LLC, No. 1:18-cv-00723-PJK-KK, 2019 WL 1992913
(D.N.M. May 6, 2019) (ECF No. 49) (“Summary Judgment
Order”). Ms. Sutton has now moved for leave to file an
grounds for that motion, she says that the court's
memorandum opinion “clarified” the facts and
legal claims in this case “significantly.”
Pl.'s Mot. for Leave at 1.
opposes leave to amend, Def.'s Resp. Opp'n at 1 (ECF
No. 52), so Ms. Sutton may only amend her complaint if this
court grants her leave. Fed.R.Civ.P. 15(a)(2). While
“[a] court should freely give leave [to amend] when
justice so requires, ” id., the decision is
committed to the district court's discretion.
Alpenglow Botanicals, LLC v. United States, 894 F.3d
1187, 1203 (10th Cir. 2018). District courts assess several
factors when ruling on a motion for leave to amend,
including: (1) whether the amendment will result in undue
prejudice to the defendant, (2) whether the request is
untimely or the result of undue delay, (3) whether the
plaintiff knew or should have known the facts on which the
amendment is based but failed to include them in the original
complaint, and (4) whether amendment of the complaint will be
futile. See id. at 1203-04; Minter v. Prime
Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006);
Las Vegas Ice & Cold Storage Co. v. Far West
Bank, 893 F.2d 1182, 1185 (10th Cir. 1990).
two factors counsel against leave to amend. First, any
amendment of Ms. Sutton's complaint would be futile, and
second, her motion for leave to amend is untimely. An
amendment is futile when the complaint, as amended, would
still “be subject to dismissal for any reason,
including that the amendment would not survive a motion for
summary judgment” or fails to state a claim. Watson
v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001). The
amended complaint includes no new material facts, it merely
rearranges the facts in the original complaint and summary
judgment briefing. See generally Am. Compl. (ECF No.
50, Attach. 1). Likewise, the amended complaint does not
change the legal claim for relief against Heartland, which is
conversion. Accordingly, given the material facts stated in
the Summary Judgment Order, the amended complaint does not
adduce anything new that would change the court's
previous legal determination. The court fails to see, then,
how the amended complaint would be capable of surviving
summary judgment where the original complaint did not.
addition, her motion is untimely. As Heartland points out in
its response to her motion, Ms. Sutton's motion comes
months after the October 12, 2018, deadline for amendment set
by the court's case management order. Joint Status Report
at 1 (ECF No. 14). And to the extent that Ms. Sutton can be
said to have changed her theory regarding Heartland's
liability, the facts and theories she alleges should have
been known to her before the summary judgment motion. In
these circumstances, the time to amend her complaint was
before the court entered summary judgment. She cannot now
move the goalposts, so to speak, to see what will survive
summary judgment where she previously failed. See Combs
v. PriceWaterhouseCoopers LLP, 382 F.3d 1196, 1205-06
(10th Cir. 2004); Trotter v. Regents of Univ. of
N.M., 219 F.3d 1179, 1185 (10th Cir. 2000).
THEREFORE, IT IS ORDERED that Ms. Sutton's Motion for
Leave to File Amended Complaint (ECF No. 50) filed May 10,
2019, is denied.
 In her reply brief, Ms. Sutton argues
that her motion “should more appropriately be
characterized as a Motion for Reconsideration” of the
Summary Judgment Order, or “[i]n the alternative, . . .
a Motion for Leave to Amend out of time.” Pl.'s
Reply at 1 (ECF No. 53). To the extent Ms. Sutton
recharacterizes her motion and relief sought in her reply,
the court declines to consider it. See Pippin v.
Burlington Res. Oil & Gas Co., 440 F.3d 1186, ...