United States District Court, D. Utah, Central Division
SAM, UNITED STATES DISTRICT JUDGE.
the court is Plaintiffs' Revised Motion for Leave to
Further Amend Complaint to Conform to the Evidence. ECF No.
95. Plaintiffs assert that they are requesting leave to
further amend the Complaint to conform to proffered,
uncontested, and/or admitted evidence. For the following
reasons, the court hereby denies the motion.
memorandum decision granting leave for Plaintiffs to file a
Second Amended Complaint, this court observed that
“Plaintiffs have established a pattern of inundating
the Court with multiple, often unmeritorious, filings in
unreasonably close succession. While this is unacceptable,
Plaintiffs insist that allowing them to amend the Complaint
one more time will help to clarify, focus, simplify,
prioritize, and streamline the case, something that is much
needed in this case.” ECF No. 46 at 2. The court
granted the motion, but Plaintiff's amendments did not
serve their purported purpose of streamlining the case. The
court continues to be inundated with incessant filings by
Plaintiffs; since the filing of the Second Amended Complaint,
the docket has nearly doubled in size. This is unacceptable.
their request to again amend the Complaint, Plaintiffs cite
to FRCP 15(a), which provides the following: “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.” While this
is true, there are a number of reasons for denying a motion
to amend, including, “‘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.'” See
Compton v. Rent-A-Center, Inc., 350 Fed.Appx. 216, 2009
WL 3353094 (10th Cir. 2009) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962). Several of these
reasons to deny apply in this case.
motions are untimely. In evaluating timeliness, the Tenth
Circuit “focuses primarily on the reasons for
the delay.” See Minter v. Prime Equip. Co.,
451 F.3d 1196, 1205-06 (10th Cir. 2006) (emphasis
added). The court held that “denial of leave to amend
is appropriate ‘when the party filing the motion has no
adequate explanation for the delay.'” Id.
(quoting Frank v. U.S. West, 3 F.3d 1357, 1365-66
(10th Cir. 1993). The Tenth Circuit has
“often found untimeliness alone a sufficient reason to
deny leave to amend, ” Hayes v. Whitman, 264
F.3d 1017, 1026 (10th Cir. 2001), especially
“[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.'” Nicholas & Co. v. Symetra Life
Ins. Co., 2015 WL 12030092, at *6 n. 2 (D. Utah Nov. 4,
2015) (unpublished) (quoting Las Vegas Ice & Cold
Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185
(10th Cir. 1990). In addition, “[c]ourts
will properly deny a motion to amend when it appears that the
plaintiff is using Rule 15 to make the complaint a moving
target, to salvage a lost case by untimely suggestion of new
theories of recovery, to present theories seriatim in an
effort to avoid dismissal, or to knowingly delay raising an
issue until the eve of trial.” Minter, 451
F.3d at 1206. Plaintiffs have failed to give adequate reasons
for the untimeliness of their proposed amendments because,
contrary to Plaintiffs' assertions, the amendments in the
Proposed Third Amended Complaint are not based on new
proposed amendments are untimely. They are based on facts
known to Plaintiffs when they last sought leave to amend,
some even since the beginning of the case. See
Defendants' Opposition brief, ECF No. 98 at 6-8. The
proposed amendments, which are based on facts previously
known to Plaintiffs, assert untimely legal theories in an
effort to avoid dismissal. Even though Plaintiffs had
previously amended their Complaint twice and filed two
Motions for Partial Summary Judgment, the proposed Third
Amended complaint is the first attempt at pleading a
protected property interest. Plaintiffs had at least five
separate opportunities to assert such an interest, yet failed
to do so until Defendants pointed out the deficiency.
Plaintiffs' proposed amendments relating to property
interests are an untimely attempt at avoiding dismissal.
See Minter, 451 F.3d at 1206.
proposed amendments also demonstrate bad faith. They assert a
property interest that Plaintiffs specifically disavowed in
prior pleadings. A court may “infer bad faith if the
proposed amendment directly contradicted the original
complaint's allegations . . . .” See
Springfield Finance & Mortgage Co., LLC v. Lilley,
2015 WL 12780894 (D. Utah Sept. 29, 2015) (unpublished). In
Plaintiffs' reply memoranda in support of their two prior
motions for partial summary judgment, they stated that
Defendants “misapprehended” their position
regarding a protected property interest. Plaintiffs then
offered the clarification that they “are by no means
taking the position that they have any protected property
interest in the outcome of Millard County procurement
processes-even if Plaintiff(s) happened to be the only
in-county applicant and the low bidder.” ECF
No. 61 at 4; ECF No. 70 at 33. Plaintiffs reaffirmed this
position almost verbatim in their opposition to
defendants' motion for judgment on the pleadings.
See ECF No. 73 at 11.
this explicit characterization of the allegations and claims
in their Second Amended Complaint, Plaintiffs, in their third
motion for partial summary judgment, state that they
“hereby expressly disavow their previous position(s) to
the contrary . . ., and hereby argue and assert that
Plaintiff MacFarlane does in fact claim and possess a
protected property interest in the mandated outcome of the
CRMP contract award process . . . as well as in his appeal
right(s) under MCPP Article 5.” ECF No. 92 at 13.
Plaintiffs' Proposed Third Amended Complaint alleges for
the first time, and in contradiction to their Second Amended
Complaint, that “Plaintiff MacFarlane possesses
legitimate claims of entitlement, and corresponding property
interests, in the mandatory outcome of the CRMP contract
award process under non-discretionary MCPP procurement
provisions, and in his right(s) of appeal under MCPP Article
5….” ECF No. 88-1 (Proposed Third Amended
Complaint) at ¶ 84. Although the original complaint did
not address a property interest, all subsequent pleadings
that did address this issue specifically and unequivocally
disavowed the position Plaintiffs now take of asserting a
property interest in the contract award. Plaintiffs'
proposed amendments thus directly contradict prior pleadings,
creating an inference of bad faith.
argue that no prejudice will result from their proposed
amendments. This court finds, however, that allowing
Plaintiffs to continue their pattern of filing deficient
pleadings, later withdrawing and refiling them, and then
making additional filings in order to cure these deficiencies
by any means, is unduly prejudicial.
above reasons, and good cause appearing, Plaintiffs'
Revised Motion for Leave to Further Amend Complaint to
Conform to the Evidence (ECF No. 95) is hereby DENIED. For
the reasons addressed above, it is further ordered
that the Plaintiff cease filing any further ...