United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING
PLAINTIFF'S MOTION TO AMEND COMPLAINT AND GRANTING IN
PART AND DENYING IN PART DEFENDANTS' MOTION TO
MATTER is before the Court upon Plaintiff's Motion to
Amend Complaint, filed May 13, 2019 (Doc.
97), and Defendants' Motion to Strike
Plaintiff's Expert Disclosures and Expert Report, filed
May 30, 2019 (Doc. 117). Having reviewed the
parties' pleadings and applicable law, the Court finds
that Plaintiff's motion to amend is not well-taken and,
therefore, is DENIED. As for Defendants'
Motion to Strike, the Court finds that it is generally not
well taken and, therefore, is GRANTED IN PART IN AND
DENIED IN PART.
a products liability case arising from the apparent failure
of an airbag to deploy during a car accident. This case was
filed on August 25, 2017. Plaintiff seeks permission to file
a fourth amended complaint. See Docs. 1, 9,
10, 43, 97.
original complaint, Plaintiff alleged that on November 1,
2016, he was driving a 2012 Dodge Ram. He was driving at the
posted speed limit and hit two elk head on. He alleges the
airbag did not deploy despite heavy damage to the front of
his vehicle caused by the collision.
seeks to amend his complaint to allege that he was in fact
traveling in excess of the posted speed limit at 75 or 80 mph
when he struck a large bull elk and female elk. The bull elk
was struck head on, while the female elk was struck with a
glancing blow. He did not have time to apply his brakes or
slow the vehicle before the collision. Plaintiff estimates
the bull elk weighed at least 800 pounds. Therefore,
Plaintiff appears to change his allegation as to his speed
and add more details as to two elk he hit.
Motion to Amend Complaint (Doc. 97).
seeks leave to file a fourth amended complaint. The Court
should freely give leave to amend when justice so requires.
See Fed. R. Civ. P. 15(a)(2). “The purpose of
the Rule is to provide litigants the maximum opportunity for
each claim to be decided on the merits rather than procedural
niceties.” Minter v. Prime Equip. Co., 451
F.3d 1196, 1204 (10th Cir. 2006). That said, “[a]
district court should refuse leave to amend only upon a
showing of undue delay, undue prejudice to the opposing
party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of
amendment.” Wilkerson v. Shinseki, 606 F.3d
1256, 1267 (10th Cir. 2010) (citations omitted). Determining
whether to grant leave to amend a pleading is an exercise in
the Court's discretion. State Distributor's, Inc.
v. Glenmore Distilleries, Co., 738 F.2d 405, 416 (10th
Cir. 1984); see also Foman v. Davis, 371 U.S. 178,
of a plaintiff's motion can be a sufficient reason to
deny leave to amend, particularly when the movant provides no
adequate explanation for the delay. Panis v. Mission
Hills Bank, N.A., 60 F.3d 1486, 1495 (10th Cir.
1995). No. finding of a prejudice to the opposing party is
required. Woolsey v. Marion Lab., Inc., 934 F.2d
1452, 1462 (10th Cir. 1991). “The longer the delay, the
more likely the motion to amend will be denied, as protracted
delay, with its attendant burdens on the opponent and the
court, is itself a sufficient reason for the court to
withhold permission to amend.” Minter v. Prime
Equipment Co., 451 F.3d 1196, 1205 (10th Cir. 2006)
(need not show prejudice); see also First City Bank, N.A.
v. Air Capitol Aircraft Sales, Inc., 820 F.2d 1127, 1133
(10th Cir. 1987) (undue delay may be sufficient ground to
deny motion to amend, even without evidence of prejudice to
defendants). The Tenth Circuit “focuses primarily on
the reasons for the delay.” Minter v. Prime Equip.
Co., 451 F.3d 1196, 1206 (10th Cir. 2006).
“[D]enial of leave to amend is appropriate when the
party filing the motion has no adequate explanation for the
delay.” Id. (internal quotation marks and
citations omitted); see also Durham v. Xerox Corp.,
18 F.3d 836, 840 (10th Cir.1994) (“[U]nexplained delay
alone justifies the district court's discretionary
Plaintiff argued that he remembered these facts late because
he is recovering from a brain injury caused by the crash.
Defendants in their response presented evidence that
Plaintiff reported to his doctor on February 27, 2017 that he
was driving at 70 miles per hour and hit a male elk and a
female elk. Doc. 101-1. Plaintiff reported
this to his doctor before the original complaint was filed on
August 25, 2017. Therefore, Plaintiff knew about these facts
before the case was filed, and yet the apparent wrong
allegations made it into the first complaint. Plaintiff did
not file a reply or give an explanation for failing to
include these allegations in his complaint, when he already
knew about them. Moreover, it is unclear why this proposed
amendment is late, or when Plaintiff discovered the
doctor's report in discovery. The Court concludes that
the failure to plausibly explain the undue delay justifies
denying the motion to amend. See, e.g., McKnight
v. Kimberly Clark Corp., 149 F.3d 1125, 1130 (10th
Cir.1998) (Denying motion to amend where “plaintiff was
aware of all the information on which his proposed amended
complaint was based prior to filing the original
complaint.”); see also Las Vegas Ice & Cold
Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th
Cir. 1990) (“Untimeliness alone may be sufficient basis
for denial of leave to amend, ” particularly
“[w]here 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.”) (internal quotation marks and citations
Defendants' Motion to Strike Plaintiff's Expert
Report and Disclosures (Doc. 117).
Dr. Jahan Rasty's Expert Report.
argues that Plaintiff's expert report from Dr. Jahan
Rasty should be stricken, because it is incomplete. Rule
26(a)(2) provides that expert reports must “contain a
complete statement of all opinions to be expressed.”
Fed.R.Civ.P. 26(a)(2)(B). “If a party fails to provide
information … as required by Rule 26(a)… the
party is not allowed to use that information … to
supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is
harmless.” Fed.R.Civ.P. 37(c)(1). see ClearOne
Commc'ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1176
(10th Cir. 2011) (“As a general rule, when a party
fails to comply with Rule 26(a)'s disclosure
requirements, that party is not allowed to introduce the
expert witness's testimony… at trial”)
(internal quotations omitted).
argue that the expert report should be stricken because it
does not address “(1) whether and how the subject
vehicle and/or its component parts are defective, and (2) how
those alleged defects are ...