United States District Court, D. New Mexico
ORDER GRANTING PLAINTIFF'S THIRD MOTION TO AMEND
SECOND AMENDED COMPLAINT
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Plaintiff's third
successive Motion to Amend Second Amended Complaint and
Memorandum in Support Thereof (doc. 144) and the attendant
briefing (docs. 146, 147). For the reasons stated below,
Plaintiff's Motion is GRANTED.
Motion now before the Court is the third filing in which
Plaintiff has sought leave to amend his currently operative
Second Amended Complaint (doc. 75). The Court denied
Plaintiff's previous two motions on the bases of undue
delay and presentation of theories seriatim.
See docs. 104, 129, 143. In both instances,
Plaintiff sought leave to add new claims without any
demonstration that the new claims were based on information
not previously available. See doc. 143 at 4. The
Court therefore found that granting leave to amend for a
third time would allow Plaintiff to use his complaint as a
“moving target” to the detriment of Defendants.
See docs. 104, 129, 143.
Motion now before the Court, filed on June 25, 2019,
Plaintiff does not seek to add any new claims. Instead he
requests leave to make the following amendments:
(1) Add the word “intentional” to his claim of
Title VI racial discrimination;
(2) Remove the word “conspiratorial” from his
Title VI claim, thereby dropping any separate claim of
(3) Remove Defendant Board of Regents of the New Mexico
Institute of Mining and Technology (“Regents of
NMT”) from his Ex Parte Young claim for
prospective injunctive relief; and
(4) Add a number of new factual allegations (paragraphs 21,
22, 34-39, 57-59, 70, and 72).
See generally doc. 144.
responded in opposition on July 9, 2019, arguing that
Plaintiff's motion is untimely, unduly delayed, and
frivolous, given the Court's denial of Plaintiff's
two previous motions to amend. See doc. 146 at 5-9.
Defendants further ask the Court to sanction Plaintiff under
its inherent authority, in light of Plaintiff's
“pattern and practice of filing frivolous motions to
amend his pleading.” Id. at 9.
filed a reply on July 23, 2019, arguing that, as a pro
se party, he should be allowed to amend his complaint in
order to render his claims meritorious. See doc. 147
at 2- 7. Plaintiff additionally urges the Court to
“reprimand” Defendants for violating Rule
11(c)(2) of the Federal Rules of Civil Procedure, which
requires a twenty-one day “safe harbor” period
before a party may file a motion for sanctions with the
Court. See id. at 7-10. Plaintiff's Motion to
Amend is now before the Court.
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). Whether to grant or deny a motion to
amend is “within the discretion of the trial
court.” Minter v. Prime Equip. Co., 451 F.3d
1196, 1204 (10th Cir. 2006) (quoting Zenith Radio Corp.
v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971)).
However, the purpose of Rule 15 is “to provide
litigants the maximum opportunity for each claim ...