Benavidez v. Sandia National Laboratories et al

Filing 105

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning granting in part and denying in part the Plaintiff's Motion for Partial Reconsideration of this Court's January, 17, 2017 Memorandum Opinion and Order. (kw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LINDA BENAVIDEZ,
Plaintiff,
vs.

No. CIV 15-0922 JB/LF

SANDIA NATIONAL LABORATORIES;
VARICK TUCKER, Personally, and
TIMOTHY GARDNER, Personally,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Plaintiff’s Motion for Partial
Reconsideration of this Court’s January, 17, 2017 Memorandum Opinion and Order, filed
February 3, 2017 (Doc. 87)(“Motion to Reconsider”). The Court held a hearing on March 16,
2017. The primary issue is whether the Court should reconsider its Memorandum Opinion and
Order in Benavidez v. Sandia Nat’l Labs., Memorandum Opinion and Order, filed January 17,
2017 (Doc. 84), 2017 WL 2266854 (D.N.M. Jan. 17, 2017)(“Amendment MOO”), wherein it
granted in part and denied in part Plaintiff Linda Benavidez’ Motion to Withdraw Prior Motion
to Amend and Substituted Motion to Amend Complaint, filed August 31, 2016 (Doc.
71)(“Motion to Withdraw and Amend”), which sought to withdraw the Plaintiff’s Motion for
Leave to Amend Complaint, filed February 10, 2016 (Doc. 30)(“Motion for Leave to Substitute
Second Amended Complaint”), which provided as an attachment the Plaintiff’s Second
Amended Complaint for Damages for Violation of the New Mexico Human Civil Rights Act,
Title I and IV of the American with Disabilities Act of 1964, Retaliation and Intentional
Infliction of Emotional Distress and the Equal Pay Act of 1963, filed February 10, 2016 (Doc.

31)(“Proposed Second Amended Complaint”).

The Motion to Withdraw and Amend also

requested leave to substitute a proposed third amended complaint -- the Second Amended
Complaint for Damages for Violation of Title I and IV of the American with Disabilities Act of
1964, Retaliation and the Equal Pay Act of 1963, filed August 31, 2016 (Doc. 71-1)(“Proposed
Third Amended Complaint”) -- which sought addition of three plaintiffs and federal claims, and
removal of any state-law claims that the Court had already dismissed in its Amended
Memorandum Opinion and Order in Benavidez v. Sandia Nat’l Labs., 212 F. Supp. 1039
(D.N.M. June 27, 2016)(“Preemption MOO”), amending its Memorandum Opinion and Order,
filed June 22, 2016 (Doc. 63).1 In its Amendment MOO, the Court concluded that Benavidez is
free to withdraw the Motion for Leave to Substitute Second Amended Complaint under the local
rules, and the Court thus allowed Benavidez to so withdraw it. See Amendment MOO at 47-50,
2017 WL 2266854, at *1. The Court also granted leave for Benavidez to file the Proposed Third

1

The legal issue that the Court addressed, in the context of Defendants’ Motion to
Dismiss, filed October 21, 2015 (Doc. 7)(“Motion to Dismiss”), was the potential preemption of
Benavidez’ state law claims by the Labor Management Relations Act, 29 U.S.C. § 141
(“LMRA”). The Supreme Court of the United States of America has stated that LMRA § 301
will completely preempt a state law claim when resolution of the state law claim is substantially
dependent upon analysis of the terms of a Collective Bargaining Agreement between the parties.
See Caterpillar Inc. v. Williams, 482 U.S. 386, 395 (1987); Allis-Chalmers Corp. v. Lueck, 471
U.S. 202, 213 (1962)(stating that preemption analysis turns on whether the action confers rights
on employers or employees “independent of any right established by contract, or, instead,
whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of
the labor contract”); Cisneros v. ABC Rail Corp., 217 F.3d 1239, 1302 (10th Cir.
2000)(explaining that § 301 “preempts questions relating to what the parties to a labor agreement
agreed, and what legal consequences were intended to flow from breaches of that agreement, . . .
whether such questions arise in the context of a suit for breach of contract or in a suit alleging
liability in tort”). “Preemption arises only when an ‘evaluation of the . . . claim is inextricably
intertwined with consideration of the terms of the labor contract.’” Mowry v. United Parcel
Service, 415 F.3d 1149, 1152 (10th Cir. 2005)(emphasis in original). “As long as the state-law
claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the
agreement for § 301 pre-emption purposes.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.
399, 410 (1988).

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Amended Complaint with respect to the federal claims she sought to bring, on her behalf, against
Defendant Sandia National Laboratories, because the Court concluded that such leave should
freely be granted. See Amendment MOO at 50-56, 2017 WL 2266854, at *1. The Court did not,
however, grant leave for Benavidez to file her claim under the Equal Pay Act of 1963, 29 U.S.C
§ 10 206(d)(1), because the Court concluded that it fails to state a claim and thus amendment
would be futile. See Amendment MOO at 50-56, 2017 WL 2266854, at *1. As to what the
Court termed the “proposed Plaintiffs,” the Court denies the Motion to Withdraw and Amend as
it pertains to them, because: (i) their Equal Pay Act claim similarly failed to state a claim; and
(ii) the filing date of their other federal claims did not relate back to a date meeting the statutory
limitation for filing such claims, rendering them time barred and futile. See Amendment MOO
at 57-68, 2017 WL 2266854, at *1.
Specifically, Benavidez seeks reconsideration of the Court’s conclusion in the
Amendment MOO that leave to substitute the Proposed Third Amended Complaint would be
futile as to its proposed addition of three new plaintiff-parties -- “proposed Plaintiffs” Patricia
Baca, Rita Luna-Casias, and Thelma Ortiz -- because the filing date of their federal claims did
not relate back to a date meeting the statutory limitation for filing such claims, rendering them
time barred and futile. Benavidez ultimately “requests the opportunity to expand her response on
that issue so that the Court has the opportunity to address the effect of the ‘deemed filed’
doctrine and the tolling case law.” Motion to Reconsider at 6. Because the Court concludes, in
part, that there has not been a manifest injustice, it will deny the Motion to Reconsider in part.
The Court, after a thorough review of all the issues Benavidez raises, determines that its
conclusion in the Amendment MOO is sound. The Court will leave open the possibility of
entering final judgment as to Benavidez’ attempt to add proposed Plaintiffs at a later date.

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FACTUAL BACKGROUND
The Court has already discussed the facts underlying this case in detail. See Preemption
MOO, 212 F. Supp. at 1044-48. The Court takes the following recitation of the relevant facts
from the First Amended Complaint for Damages for Violation of the New Mexico Human Rights
Act, and for Intentional Infliction of Emotional Distress, filed October 15, 2015 (Doc. 1-2)(“First
Amended Complaint”), which Benavidez filed originally in the Second Judicial District Court,
County of Bernalillo, State of New Mexico. First Amended Complaint at 1.2
Sandia Labs employed Benavidez, a United States citizen and a resident of Albuquerque,
New Mexico.

See First Amended Complaint ¶ 8, at 6.

Defendant Varick Tucker was

Benavidez’ Human Resource manager, while Defendant Timothy Gardener was Benavidez’
manager. See First Amended Complaint ¶¶ 11-12, at 6. Sandia Labs had hired Benavidez as a
Neutron Generator Production Specialist on June 1, 2001, see First Amended Complaint ¶ 14, at
7, but she eventually “developed some serious medical conditions which resulted in Plaintiff’s
life activities being affected,” First Amended Complaint ¶ 16, at 7. In 2011, the requirements of
Benavidez’ position changed to include the need for a Trades Degree. See First Amended
Complaint ¶ 17, at 7. To obtain a Trades Degree, Benavidez would have had to return to school
for college-level courses such as physics, trigonometry, and chemistry, which would have
required her to take years of preparatory classes to qualify to take the required classes. See First
Amended Complaint ¶ 19, at 7; id. ¶ 42, at 11; id. ¶ 53, at 12.
Benavidez was told that, if she was unable to obtain the Trades Degree, she would be
“bumped” into another similar position at Sandia Labs with the same grade level and pay. First

2

To cite the First Amended Complaint, the Court will use CM/ECF’s pagination -- i.e.,
the blue number in the top right-hand corner of each page -- because the First Amended
Complaint does not contain internal pagination.
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Amended Complaint ¶ 22, at 8. See id. ¶ 42, at 11; id. ¶ 53, at 12. “Instead of being ‘bumped’
into a similar position at Sandia Labs, though, Plaintiff was ultimately placed in a position
described as a Maintenance Support Technician,” which “included ‘duties requiring working
strenuous positions with exertions of physical effort up to 60 pounds.’”

First Amended

Complaint ¶ 24, at 8. See id. ¶ 43, at 11; id. ¶ 54, at 12. “She and her co-workers that were put
in this position, essentially as tractor/trailer drivers, were the only females working this job.”
First Amended Complaint ¶ 25, at 8. See id. ¶ 43, at 11; id. ¶ 54, at 12. “The only other
employees in this position were men, with the exception of one other woman over the age of 40
who was also being ‘absorbed’ into this new position, and who was ultimately terminated.” First
Amended Complaint ¶ 54, at 12.
“On September 9, 2014, Ms. Benavidez filed a formal charge of discrimination on the
basis of sex, age, and equal pay in violation of the New Mexico Human Rights Act, NMSA § 281-7 (1978), et seq.” First Amended Complaint ¶ 3, at 5-6. On September 30, 2014, a doctor
“with Defendant SNL advised Plaintiff that she was incapable of performing the job duties due
to her permanent medical restrictions.” First Amended Complaint ¶ 31, at 9. See id. ¶ 45, at 11;
id. ¶ 57, at 13. Accordingly, Benavidez “was placed on a realignment process and was not given
any reasonable accommodation.” First Amended Complaint ¶ 32, at 9. See id. ¶ 57, at 13. On
April 16, 2015, Sandia Labs terminated Benavidez’ employment. See First Amended Complaint
¶ 36, at 10; id. ¶ 66, at 13-14.
PROCEDURAL BACKGROUND
On August 27, 2015, Benavidez filed suit in the Second Judicial District Court. See First
Amended Complaint at 1.

Benavidez had originally failed to serve a complaint upon

Defendants, which is why Benavidez instead began the lawsuit by serving the First Amended

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Complaint. See Notice of Removal at 1, filed October 15, 2015 (Doc. 1). About a month and a
half later, on October 15, 2015, the Defendants removed the case to federal court, asserting
federal-question jurisdiction. See Notice of Removal at 1-7. Benavidez asserted three causes of
action against all of the Defendants: (i) discrimination on the basis of age in violation of the New
Mexico Human Rights Act, N.M. Stat. Ann.  §§ 28-1-1 to -14 (“NMHRA”), First Amended
Complaint ¶¶ 38-48, at 10-12 (Count I); (ii) discrimination on the basis of sex in violation of the
NMHRA, see First Amended Complaint ¶¶ 49-62, at 12-13 (Count II); and (iii) intentional
infliction of emotional distress, see First Amended Complaint ¶¶ 63-73, at 13-14 (Count III).
Benavidez asked the Court for judgment against the Defendants “for all actual, compensatory,
nominal, and emotional damages she has suffered . . . [,] punitive damages for Defendants’
willful, wanton, and reckless conduct . . . [,] attorneys’ and other fees, costs, and pre-and postjudgment interest accrued[,] and for such other relief as the Court finds just and proper.” First
Amended Complaint at 14-15.
1.

The January 20, 2016, Hearing.

The Court held a hearing on January 20, 2016. See Transcript of Hearing (taken January
20, 2015)(“January Tr.”).3 At the hearing the Defendants briefly set forth their argument that
federal law preempts Benavidez’ claims, and the Court asked the Defendants whether they agree
that all of Benavidez’ claims are state claims and that there are no federal claims. See January
Tr. at 2:12-3:25 (Court, Poore). The Defendants responded that there are only state law claims in
the First Amended Complaint. See January Tr. at 4:1-2 (Poore). They further stated, however,
that Benavidez had sent them a proposed second amended complaint, in which Benavidez asserts

3

The Court’s citations to the transcripts of each of the hearings refer to the court
reporter’s original, unedited version. Any final version may have slightly different page and/or
line numbers.
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claims on behalf of herself and of three additional former Sandia Labs employees under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”); the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621 to 634 (“ADEA”); and the Americans with Disabilities Act,
42 U.S.C. §§ 12201 to 12213 (“ADA”). January Tr. at 4:3-15 (Court, Poore). The Court stated
that, under the preemption doctrine, one of the bases for federal court jurisdiction is that, even
though the complaint’s face does not raise any federal claims, if there is a preemption defense,
that defense is enough for a defendant to remove a case to federal court. See January Tr. at 4:1924 (Court). The Defendants agreed and argued that, under the artful pleading doctrine, a plaintiff
cannot fail to include factual allegations to avoid federal jurisdiction. See January Tr. at 4:25-5:3
(Poore). They contended that, in this case, Benavidez fails to plead allegations to avoid federal
jurisdiction by omitting the references to the CBAs. See January Tr. at 5:3-5 (Poore). The
Defendants added that, with respect to Benavidez’ request for remand, “there is an alternative
basis for federal jurisdiction, which is that the actions took place on a federal enclave, and so
remand would be inappropriate regardless of how far the Court rules on the preemption claim.”
January Tr. at 5:11-16 (Poore). The Defendants also confirmed that they cited that basis of
jurisdiction in their Notice of Removal. See January Tr. at 5:17-19 (Court, Poore).
Benavidez then argued the Motion to Dismiss. See January Tr. at 6:21-23 (Court,
Higgins, Poore). Benavidez began by emphasizing that “preemption is only required if the state
claim is inextricably intertwined with the consideration of the terms of the labor contract.”
January Tr. at 6:23-7:1 (Higgins).

According to Benavidez, her claims for sex and age

discrimination are not inextricably intertwined with the CBA’s terms, and there is nothing in the
CBA that would have anything to do with discrimination. See January Tr. at 7:5-13 (Higgins).
She maintained, therefore, that § 301 preemption does not apply. See January Tr. at 7:9-20

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(Higgins). Benavidez then largely restated her arguments from her briefing. See January Tr. at
9:3-10:4 (Higgins). The Court expressed concern that the conduct alleged does not appear to
meet the standard of being outrageous.

See January Tr. at 10:5-20 (Court).

Benavidez

responded that it was premature to dismiss the claim and that she would like an opportunity to do
some discovery. See January Tr. at 10:5-11:3 (Higgins). Benavidez also agreed that the Court
can likely decide whether there is § 301 preemption in this case. See January Tr. at 12:11-13:5
(Court, Higgins).
The Court then asked Benavidez where she is going with the case by adding additional
people and bringing federal claims. See January Tr. at 13:6-8 (Court). Benavidez stated that
attorney Rachel Berenson was present and could better address that question. See January Tr. at
13:9-11 (Higgins). Ms. Berenson then argued. See January Tr. at 13:12-17 (Berenson, Court,
Higgins). She agreed that the Defendants will likely prevail on the issue of federal enclave
jurisdiction. See January Tr. at 13:17-15:17 (Berenson, Court). She further stated that they have
received additional Equal Employment Opportunity Commission right-to-sue letters regarding
the three other Plaintiffs, and that they have been trying to draft a complaint to include federal
claims for discrimination both for the three additional Plaintiffs and for Benavidez. See January
Tr. at 14:3-12 (Berenson). Ms. Berenson explained that they could go about it in two separate
ways: (i) file a separate lawsuit for the additional Plaintiffs; or (ii) file a motion for leave to
amend Benavidez’ Complaint to include the federal claims and incorporate the additional
plaintiffs. See January Tr. at 14:7-19 (Berenson). The Court asked whether, given that the
Defendants have not filed an answer, Benavidez has the ability to file an amended complaint as
of right. See January Tr. at 15:18-22 (Court). Ms. Berenson responded that she believed that

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Benavidez would need the Court’s permission, because the time frame had already lapsed even
though the Defendants had not yet filed an answer. See January Tr. at 15:23-16:3 (Berenson).
The Court then asked the Defendants whether, given that the Plaintiffs have indicated that
the Defendants likely will prevail on the remand issue, they might allow the Plaintiffs to bring
their suit here in one case. See January Tr. at 16:9-15 (Court). The Defendants responded that
they would prefer that all of the Plaintiffs and claims be in one case, but that all of the parties
would benefit from the Court ruling on the § 301 preemption question. See January Tr. at 16:1617:2 (Poore). The Defendants also clarified that they are arguing that, as with the intentionalinfliction-of-emotional-distress claim, Benavidez’ sex-and-age discrimination claims do not state
a claim upon which relief can be granted.

See January Tr. at 18:23-19:19 (Poore).

The

Defendants made the final point that, although Benavidez did not concede federal enclave
jurisdiction, she suggested that the intentional infliction of emotional distress claim might
survive even if the Court has such jurisdiction. See January Tr. at 20:7-11 (Poore). According to
the Defendants, however, New Mexico first recognized the tort of intentional infliction of
emotional distress in 1972, well after the New Mexico Legislature passed the NMHRA in 1969.
See January Tr. at 20:7-11 (Poore). They therefore contended that they believe that “all of the
state law claims will ultimately be disposed of under federal enclave jurisdiction.” January Tr. at
20:7-19 (Poore).
Benavidez responded that they were relying on a 1937 case, which they contended
allowed for damages and recognized a claim for emotional distress. See January Tr. at 21:2-10
(Higgins). Benavidez also clarified that the question of sex-and-age discrimination does not rely
on the CBA. See January Tr. at 20:25-22:4 (Higgins). The Court responded:
Does that require any construction of the contract? I mean [what I] understand
the plaintiffs are saying[, i]t’s kind of irrelevant whether the contract required
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bumping or didn’t require bumping, they don’t care, they’re just saying [] the
manager came in and said this is what occurred on the basis of what the manager
said, [and] that’s where the sexual or age discrimination occurred. Does it really
require the Court to construe in any way the CBA[?]
January Tr. at 22:5-14 (Court). The Defendants responded that they read the First Amended
Complaint as arguing that Benavidez should have bumped or displaced another employee. See
January Tr. at 22:15-17 (Poore). They further explained: “I don’t believe an argument that her
supervisor told her one thing and something different ended up happening has anything to do
with [age] or sex discrimination, and so if you actually look at that, it’s at best, a contract claim.
At worst it’s not a claim at all.” January Tr. at 22:17-22 (Poore).
The Court then stated:
Let me take a look at this. I still have a recollection I thought it was maybe that
[T]ru[] [Solutions], that [Westinghouse] case out of the [WIPP] [c]ite[,] maybe it
wasn’t. I thought I had a [§] 301 preemption and I thought I’d construed it
narrowly but let me give that some thought. It sounds like I’m going to [have]
federal jurisdiction one way or another here so I’m inclined to dismiss the
intentional infliction of distress[;] I think I’ve had enough of these in the
employment context. I’ll have to look at the allegation to see whether they satisfy
Iqbal an[d] Twombly. That’s really [what I] understand Sandia to be raising
[about] the state law claims on the substance, but the only one I really have a feel
for is maybe the intentional infliction of emotional distress. So I’ll have to give
that some consideration. It sounds like the plaintiffs are not contesting or at least
indicating that this federal enclave which I have had no experience with, so I’ll
have to take a look at it for the first time, it sounds like that’s sufficient to confer
jurisdiction, so it doesn’t look like it’s a remand situation and the case will remain
here in Federal Court. I understand that the intentional infliction might survive or
be around before the federal enclave but I’m not sure that would save it even
under state law.
I’ll hear the plaintiff[’]s motion to stay. I’ll give you my thoughts. I guess
I was inclined to think that the defendant was right, at some point I’ve got to
decide this 301 issue. It may not be exactly what you[r] next complaint is. But it
sound[s] like I’m going to have to get into it at some point, and I know you may
be amending your complaint and things like that, but . . . those [sort] of things
I’ve got to decide[;] it’s just delaying things for me not to go ahead and decide it.
So I was inclined to deny it. [I will g]o ahead and have Ms. Wild send out a
[notice for an initial scheduling conference] and try to have the opinion out to you
by the time I see you at the initial scheduling conference, so we can keep the case
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moving for all sides and hopefully I’ll have [that] opinion out to you. It will give
you some guidance on whether we’re going to have these state claims in or out
and maybe by that point the plaintiffs will know what they’re going to do with
their complaint and be ready to go on that.
January Tr. at 22:23-24:20 (Court).
Benavidez then noted the Defendants could also raise this § 301 preemption argument as
to the additional claims that she and the three additional Plaintiffs will bring. See January Tr. at
25:4-10 (Berenson). She asserted that the Court would then have to revisit this preemption issue
again with all of the additional Plaintiffs. See January Tr. at 25:10-12 (Berenson). The Court
responded that, even if it might need to decide these § 301 preemption issues as to each Plaintiff,
it might make sense to go ahead and deal with them as to Benavidez. See January Tr. at 25:1321 (Court). The parties would then have the Court’s thoughts on preemption under § 301, and
they could then move onto the three additional Plaintiffs. See January Tr. at 25:13-21 (Court).
Benavidez stated that she understood that rationale, but explained that they had not yet received
right-to-sue letters from the Human Rights Division, which would require additional time before
they could bring forth all of the other Plaintiffs. See January Tr. at 25:24-26:5 (Berenson). The
Defendants expressed concern about having to refile the Motion. See January Tr. at 26:6-17
(Court, Poore). The Court concluded by stating:
Well, I think that it will probably be helpful to the Court and really to the parties
for me to go ahead and get this 301 issue resolved. So I’m going to deny the
motion to stay. Usually if the plaintiffs want to put their [case] on [ice], I’m
pretty sympathetic to that, let them kind of control the case, but I think in this
situation where we’ve had a hearing, we’ve had all the briefing, go ahead and get
this issue decided, and I think it will give guidance to us down the road. I think
once I figure it out it will probably help us more expeditiously decide 301 issues
for the other three plaintiffs.
January Tr. at 26:19-27:16 (Court).

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2.

The Preemption MOO Dismissing Benavidez’ State Claims.

The Court issued the Preemption MOO after the January 20, 2016, hearing.

The

Preemption MOO decides:
First, the Court concludes that the LMRA’s § 301 does not preempt
Benavidez’ age and sex discrimination claims brought pursuant to the NMHRA.
Second, the Court concludes that the LMRA’s § 301 partially preempts
Benavidez’ intentional-infliction-of-emotional-distress claim.
The Court
concludes that, to the extent that Benavidez bases her intentional infliction of
emotional distress claim on Gardener’s “belittl[ing] and berat[ing]” her “for not
being able to complete the course work she took in preparation for attempting to
obtain a Trades Degree,” § 301 does not foreclose Benavidez from asserting an
intentional infliction of emotional distress claim. See Complaint ¶ 64, at 13. The
Court concludes, however, that § 301 preempts Benavidez’ intentional-inflictionof-emotional-distress claim to the extent that it is based on: (i) the Defendants’
downgrading of Benavidez and putting her in a position for which she was not
qualified, either by experience or physical abilities, rather than allowing her to
move into another Grade 8 position, see Complaint ¶ 64, at 13; and (ii) the
Defendants doing nothing to help her find another, more appropriate position after
she complained to management multiple times and asked for help in her new
position, and their ultimate termination of Benavidez for being unable to perform
the new position, see Complaint ¶ 65, at 13. The Court nonetheless dismisses the
portion of Benavidez’ intentional-infliction-of-emotional-distress claim that § 301
preempts, because Benavidez has not demonstrated that she exhausted her
remedies under the CBA.4 See Allis-Chalmers Corp. v. Lueck, 471 U.S. [202,
220-21 (1985)](concluding that complaint should have been dismissed for failure
to make use of the grievance procedure established in a collective-bargaining
agreement or dismissed as pre-empted by § 301). Third, the Court concludes that
Benavidez states a claim for sex and age discrimination under the NMHRA.
Fourth, the Court will dismiss the claims against the individual defendants -Gardner and Tucker -- because Benavidez has not exhausted her administrative
remedies against them. The Court concludes, however, that Benavidez has
exhausted her administrative remedies for the conduct alleged in support of her
NMHRA discrimination claims that took place after she filed her Charge of
Discrimination on September 9, 2014. Fifth, with respect to the portion of
Benavidez’ intentional-infliction-of-emotional-distress claim that § 301 does not
preempt, the Court concludes that Benavidez does not state a claim upon which
relief can be granted. In sum, the Court is left with two state-law discrimination
claims brought under the NMHRA. While the Court concludes that it retains
federal enclave jurisdiction over this action, and therefore denies Benavidez’
4

Meaning “Collective Bargaining Agreement,” something which governs matters such as
priority placement for bargaining unit employees unable to perform their job because of physical
disability developed while a Sandia Labs employee. See Preemption MOO, passim.
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request in the Response that the Court remand this action to state court, it must
dismiss Benavidez’ three claims -- including those brought under the NMHRA -pursuant to the federal enclave doctrine.
Preemption MOO, 212 F. Supp. at 1044-45.
3.

Motion for Leave to Substitute Second Amended Complaint.

Benavidez filed the Motion for Leave to Substitute Second Amended Complaint on
February 10, 2016. See Motion for Leave to Substitute Second Amended Complaint at 1. The
amendment deadline in the Scheduling Order was April 30, 2016. See Scheduling Order, filed
March 2, 2016 (Doc. 35). “The Amended Complaint includes three (3) additional Plaintiffs who
have similar claims arising out the same or similar conduct by their former employer, Defendant
Sandia Corp. and the additional violation charge of the Equal Pay Act[, 29 U.S.C. § 206(d)].”
Motion for Leave to Substitute Second Amended Complaint at 2. The three additional Plaintiffs
have, according to the Motion for Leave to Substitute Second Amended Complaint, received
“Right to Sue letters dated November 24, 2015, November 25, 2015 and November 30, 2015 and
have received their letter of Non Determination from Human Rights Bureau on January 27,
2016.” Motion for Leave to Substitute Second Amended Complaint at 2. The Motion for Leave
to Substitute Second Amended Complaint asserts that the Court and the Defendants were aware
that Benavidez was awaiting the additional Plaintiffs’ “Right to Sue Letters” before she filed this
impending Motion for Leave to Substitute Second Amended Complaint. Motion for Leave to
Substitute Second Amended Complaint at 2-3. “Plaintiff further requests leave to amend the
Complaint such that the caption may be amended to accurately reflect the nature to withdraw
[sic] her claims against Defendant Gardner and Defendant Tucker and to add additional
exhausted claims and additional Parties.” Motion for Leave to Substitute Second Amended
Complaint at 3.

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The Proposed Second Amended Complaint, attached to the Motion for Leave to
Substitute Second Amended Complaint, however, retains the same claims in the First Amended
Complaint that the Court’s Preemption MOO dismissed.

See Proposed Second Amended

Complaint at 1-24. Specifically, the Proposed Second Amended Complaint “essentially re-states
th[e] [Intentional Infliction of Emotional Distress (“IIED”)] claim, as well as the New Mexico
Human Rights Act age and sex discrimination claims that are subject to the [Preemption MOO].”
Defendants’ Response to Plaintiff’s Motion for Leave to Amend Complaint at 2, filed March 7,
2016 (Doc. 38). More specifically, the Proposed Second Amended Complaint alleges “Count I:
Discrimination on the Basis of Serious Medical Condition in Violation of the New Mexico
Human Rights Act and Title I of the American Disability Act,” Proposed Second Amended
Complaint ¶¶ 123-34, at 16-17; “Count II: Discrimination on the Basis of Sex in Violation of the
New Mexico Human Rights Act and/or Title VII of the Civil Rights Act Against Defendant
Sandia Corporation,” Proposed Second Amended Complaint ¶¶ 135-49, at 17-19; “Count III[:]
Retaliation Against Defendant Sandia Corporation,” Proposed Second Amended Complaint ¶¶
150-58, at 19-20; “Count IV: Violation of the Age Discrimination in Employment Act,”
Proposed Second Amended Complaint ¶¶ 159-69, at 20-21; “Count V: Intentional Infliction of
Emotional Distress,” Proposed Second Amended Complaint ¶¶ 170-83, at 21-22; and “Count VI:
The Equal Pay Act of 1963,” Proposed Second Amended Complaint ¶¶ 184-88, at 22-23. On
July 1, 2016 -- following the Court’s issuance of the Preemption MOO -- Benavidez submitted
the Plaintiff’s Supplemental Briefing on Doc. 30, Motion for Leave to Amend Complaint, filed
July 1, 2016 (Doc. 65)(“Supplemental Briefing”), making minor changes to the Proposed Second
Amended Complaint. Supplemental Briefing at 1-2. The Supplemental Briefing, in particular,
renumbers paragraphs, discusses grievances that the Plaintiffs made before the Metal Trade

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Council, makes more specific allegations, adds a punitive damages claim, and changes the
anticipated month of filing. See Supplemental Briefing at 2. Importantly, the Supplemental
Briefing provides that, despite the Preemption MOO, “[i]n order to preserve the record for any
appeal and on behalf of the new proposed Plaintiffs, Plaintiff has not removed the state law
claims that the Court dismissed in the Amended Memorandum Opinion and Order [Doc. 64].”
Supplemental Briefing at 2.
4.

Motion for Leave to Substitute Second Amended Complaint Response.

Sandia Labs responded to the Motion for Leave to Substitute Second Amended
Complaint with the Defendants’ Response to Plaintiff’s Motion for Leave to Amend Complaint,
filed March 7, 2016 (Doc. 38)(“Motion for Leave to Substitute Second Amended Complaint
Response”). The Motion for Leave to Substitute Second Amended Complaint Response objects
to the Motion for Leave to Substitute Second Amended Complaint, because the “Plaintiff’s
proposed amendment would be futile, cause undue delay, and cause undue prejudice to
Defendant Sandia Corporation.” Motion for Leave to Substitute Second Amended Complaint
Response at 1. Essentially, Sandia Labs requests that the Court not allow Benavidez to amend
the First Amended Complaint until after the Court issues its Preemption MOO resolving the
issues Sandia Labs raised in its Motion to Dismiss. See Motion for Leave to Substitute Second
Amended Complaint Response at 3. The Motion for Leave to Substitute Second Amended
Complaint Response concludes by stating:
Plaintiff’s proposed amendment is -- at least as to the state law claims -- futile.
Furthermore, the filing of a second amended complaint before the Court
completes and issues its decision on Defendants’ motion to dismiss would moot
that motion and effectively nullify the work that has gone into arguing and
deciding the motion, causing undue delay and undue prejudice to Sandia.
Defendants’ respectfully request that the Court deny Plaintiff leave to amend her
complaint until after a decision is issued on Defendants’ motion to dismiss, and
in no event should it be granted with regard to state law claims that Sandia has
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already identified as defective.
Motion for Leave to Substitute Second Amended Complaint Response at 3.
5.

The Motion for Leave to Substitute Second Amended Complaint Reply.

Benavidez replied to the Motion for Leave to Substitute Second Amended Complaint
Response with the Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Motion for Leave to
Amend Complaint, filed March 21, 2016 (Doc. 43)(“Motion for Leave to Substitute Second
Amended Complaint Reply”). The Motion for Leave to Substitute Second Amended Complaint
Reply offers a path forward for the Court, stating initially that the “Plaintiff is attempting to
comply with Court’s Scheduling Order [Doc. 35] deadline by moving to amend the pleadings
and to join additional parties in compliance with Fed. R. Civ. P. 15(a).” Motion for Leave to
Substitute Second Amended Complaint Reply at 1. Accordingly, the Motion for Leave to
Substitute Second Amended Complaint Reply explains that the
Plaintiff’s deadline to move to amend the pleadings and to join additional parties
is April 30, 2016. The three (3) proposed joining plaintiffs had a deadline to file
an appeal from the Human Rights Department or the Employee Equal
Opportunity Commission before February 24, 2016 and February 30, 2016, and
therefore it is critical that this Court grant Plaintiff’s motion for leave to amend to
adjoin these additional three (3) plaintiffs. If the Court does not grant Plaintiff’s
motion to amend the complaint the three (3) additional Plaintiffs’ will be forced to
file a new lawsuit and bring Defendant into separate proceedings and waste the
Court’s valuable time and resources.
Motion for Leave to Substitute Second Amended Complaint Reply at 2. Thus, according to the
Motion for Leave to Substitute Second Amended Complaint Reply, Benavidez will, “[u]pon the
Court’s decision on Defendants’ motion to dismiss, . . . again amend their second amended
complaint to properly reflect the court’s decision if it alters the ability to bring any of the
claims.” Motion for Leave to Substitute Second Amended Complaint Reply at 2. Benavidez
also provides that the “[p]roposed Joining Plaintiffs request this Court to allow them to pursue

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their right to adjoin and appeal their decisions of the Employee Equal Opportunity Commission
and the Human Rights Department.”

Motion for Leave to Substitute Second Amended

Complaint Reply at 2.
6.

The May 16, 2016, and June 23, 2016, Hearings.

The Court held hearings on May 16, 2016, and June 23, 2016. See Transcript of Hearing,
taken May 16, 2016 (“May Tr.”); Transcript of Hearing, taken June 23, 2016 (“June Tr.”). At
the May 16, 2016, Hearing, the Court had not yet issued its Preemption MOO, so the Court
suggested:
Since we’ve already argued the motion I’ve already given my inclination
and think I know what I’m going to do is if I could just grant this motion for leave
to amend the complaint and then whatever I say as to Ms. Benavidez in the
motion to dismiss so we don’t have to reinvent everything we’ve done, just apply
that equally to Tucker and Gardener, and I think the big issue is going to be the
intentional infliction of emotional distress and I probably am not going to find in
too many employment context[s] and I did sit down and read the complaint here
last night, I just am not certain I’m going to find it. But then I just enter an order,
the opinion as to I can do it as to the amended complaint or I can just say it’s
going to apply to the amended complaint. But I’m wondering if maybe we can
cut through that by assuring Sandia that they don’t have to reargue this thing,
whatever I say there I’ll apply it to Tucker and Gardener, but go ahead and get the
amended motion on file. But Ms. Berenson it’s your motion if you wish to argue
in support of it.
May Tr. at 3:11-4:7 (Court). Benavidez indicated, then explained, that they had added new facts
to the Proposed Second Amended Complaint, and that they would be happy to have the Court
allow them to file the Proposed Second Amended Complaint and then apply the Preemptive
MOO, once it was filed, to that pleading as well. See May Tr. at 4:18-21 (Berenson). Even
though all parties agreed with that proposal, Benavidez immediately backed away from that
proposal and indicated that “it’s just difficult because we’ve added so many more facts in regards
to other plaintiffs as well. So it would be unjust for them to have a ruling” in this manner. May
Tr. at 6:4-6 (Berenson). The Court agreed that its initial proposal thus would not work and
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instructed Benavidez to “make your own decision whether you want to file separate cases” given
the proposed addition of new Plaintiffs, and
if you need to file separate cases, you can. If I get the opinions out and you want
to bring it back here, us pick this up, I’ll just hold this for the time being, I won’t
rule on it, and then you can make a decision. You’ll just have to be the judge of
your own time.
May Tr. at 6:7-16 (Court). The Court thus did not hear Benavidez’ Motion for Leave to
Substitute Second Amended Complaint at the May 16, 2016, Hearing. See May Tr. at 6:7-16
(Court).
The Court once more heard argument on the Motion for Leave to Substitute Second
Amended Complaint at the June 23, 2016, Hearing. See June Tr. at 1:1 (Court). The Court
issued the Preemption MOO on the evening before the hearing, and the Court inquired of the
parties whether, “if with the opinion out if y’all might be able to . . . agree to whether it should
be amended, but I don’t know.” June Tr. at 3:1-4 (Court). Benavidez responded that they had
not yet talked to Sandia Labs, but that they probably would want the Court to set another hearing
on the Motion for Leave to Substitute Second Amended Complaint, because they may need to
supplement that motion in light of the Preemption MOO’s guidance, for which they needed “a
little more time to digest.” June Tr. at 3:5-16 (Higgins). Sandia Labs agreed, and the Court set a
hearing for August 25, 2016. See June Tr. at 6:10-12 (Poore, Court).
7.

The August 25, 2016, Hearing.

The Court held a hearing on August 25, 2016. At the hearing, the Court addressed, in
part, the Motion for Leave to Substitute Second Amended Complaint.

See Transcript of

Hearing, taken August 25, 2016 at 2:4-5 (Court)(“Tr.”). The Court reminded the parties:
We started a hearing and I tried to work out an agreement [where] we could have
the motion to dismiss that was pending[,] and I have not been able to get the
opinion out[,] [and the opinion] would apply to all the new people, but we weren’t
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able to reach that agreement. So we adjourned that hearing for motion for leave
to amend the complaint.
Tr. at 2:4-11 (Court). The Court continued: “I finished my work on that opinion, so where are
we on the motion for leave to amend? Do you still want to file this complaint?” Tr. at 2:11-14
(Court). Benavidez responded that she wished to argue in favor of the Motion for Leave to
Substitute Second Amended Complaint and Supplemental Briefing, and that one reason that the
Proposed Second Amended Complaint still contains the state claims that the Court has dismissed
is because
[t]he February amended complaint was designed to become a federal complaint.
It was designed to contain the allegations [] necessary not just to bring forth the
state claims that are pending, but also to bring those [] federal claims. And the
intent has been to include everything in this amended complaint so we’re not
hiding the ball so we do not have to amend again . . . .
Tr. at 4:4-17 (Girard). Further, with respect to why Benavidez filed the Motion for Leave to
Substitute Second Amended Complaint instead of waiting for the Preemption MOO, Benavidez
indicated that “we had three additional plaintiffs to add who had been issued their right to sue
letters, and they had a statutory deadline to meet.” Tr. at 3:14-24 (Girard). The Court was hard
pressed, however, to understand “why go through all that motion if I spent a lot of time dealing
with the []motion to dismiss, why put them all back in the case[,] I just don’t get that.” Tr. at
4:18-21 (Court). The Court thus asked Benavidez if she has “a complaint that you can propose
to the Court and parties that conforms to the Court’s opinion,” Tr. at 5:1-3 (Court), to which
Benavidez replied that she could “prepare that pretty quickly,” Tr. at 5:4-5 (Girard).
Sandia Labs then addressed the Court, arguing that its “primary objections are the same
as the courts, which is that they include and in some instances double down on the state law
claims which you have already dismissed.” Tr. at 7:22-25 (Poore). Benavidez then interjected
and explained that “what I would like, at the end of this process, [is] for a ruling that makes clear
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or a complaint that makes clear that the new plaintiffs are also subject to the Court’s prior
ruling.” Tr. at 10:13-17 (Girard). To achieve this goal, Benavidez explained that what she
proposes is
to file this complaint as written, followed by the order that says that the Court’s
ruling applies to all plaintiffs, the Court’s previous ruling in the motion to dismiss
applies to all plaintiffs and claims in this complaint. We thought that that
satisfied it and made it easier, but obviously it has not . . . .
Tr. at 10:21-11:5 (Girard). Benavidez then reiterated that she simply wanted a clean slate, with a
federal-court complaint that brings both her original state claims and the new federal claims, and
includes herself and the three additional Plaintiffs, and that in no way did she expect that the
Preemption MOO would not to apply to that new complaint or to the additional Plaintiffs. See
Tr. at 11:18-25 (Girard).
Accordingly, Benavidez apologized for causing the Court frustration and stated that,
because there was not a complaint before the Court at the present time, she was not prepared to
argue her First Motion to Compel Production of Documents, filed May 2, 2016 (Doc.
52)(“Motion to Compel”). Tr. at 13:1-6 (Girard). The Court then took the Motion to Compel
under advisement, without hearing argument, and stated that it would “get an opinion out to you
and an order denying your motion to amend and then we’ll figure out how to go from there.” Tr.
at 13:7-13 (Court). Upon giving the parties one last chance to address the Court, Sandia Labs
provided:
Your Honor, I do want to make sure we’re also being transparent that if the
motion to amend is denied, it would be our understanding that at least many of the
federal claims on the additional three plaintiffs would be outside the statute of
limitations. So when I indicated that we weren’t filing a motion to dismiss on the
federal claims that was based on this[,] I don’t want to say that that would be our
position for a third amended complaint.
Tr. at 13:15-24 (Poore). Benavidez then took the opportunity to reiterate that the statutory

- 20  

deadline Sandia Labs mentioned was one of the motivating factors in filing the Motion for Leave
to Substitute Second Amended Complaint as it did and when it did. See Tr. at 14:1-9 (Girard).
The Court then denied the Motion for Leave to Substitute Second Amended Complaint “as to the
way it’s filed.” Tr. at 14:10-11 (Court).
8.

The Motion to Withdraw and Amend.

Before the Court had the opportunity to formally deny by opinion and order the Motion
for Leave to Substitute Second Amended Complaint with a Memorandum Opinion and Order,
Benavidez filed the Motion to Withdraw and Amend on August 31, 2016. See Motion to
Withdraw and Amend at 1. The Scheduling Order had been vacated on June 10, 2016. See
Order Granting Plaintiff’s Unopposed Motion to Vacate the Scheduling Order and Reset
Deadlines and Trial Date at a New Scheduling Conference, filed June 10, 2016 (Doc. 62). In the
Motion to Withdraw and Amend, Benavidez seeks to amend the Proposed Second Amended
Complaint, because she recognizes that the Proposed Second Amended Complaint makes claims
that the Court dismissed in the Preemption MOO and that the Court was thus inclined to deny the
Motion for Leave to Substitute Second Amended Complaint. See Motion to Withdraw and
Amend at 1-4. Benavidez relies on rule 15(a) of the Federal Rules of Civil Procedure, and
requests that the Court permit her to file the Second Amended Complaint for Damages for
Violation of Title I and IV of the American with Disabilities Act of 1964, Retaliation and the
Equal Pay Act of 1963, filed August 31, 2016 (Doc. 71-1)(“Proposed Third Amended
Complaint”). Motion to Withdraw and Amend at 1-4. The Proposed Third Amended Complaint
amends the Proposed Second Amended Complaint by eliminating state law claims in accordance
with the Court’s Preemption MOO. See Motion to Withdraw and Amend at 1-2. The Proposed
Third Amended Complaint thus relates to Benavidez, Baca, Luna-Casias, and Ortiz, and asserts:

- 21  

“Count I: Discrimination on the Basis of Serious Medical Condition in Violation of Title I of the
American Disability Act,” Proposed Third Amended Complaint ¶¶ 127-38, at 16-17; “Count II:
Discrimination on the Basis of Sex in Violation of the Civil Rights Act Against Defendant
Sandia Corporation,” Proposed Third Amended Complaint ¶¶ 139-53, at 17-19; “Count III[:]
Retaliation Against Defendant Sandia Corporation,” Proposed Third Amended Complaint ¶¶
154-63, at 19-20; “Count IV: Violation of the Age Discrimination in Employment Act,”
Proposed Third Amended Complaint ¶¶ 164-74; and “Count VI: The Equal Pay Act of 1963,”
Proposed Third Amended Complaint ¶¶ 189-93, at 21-22.
9.

The Response.

Sandia Labs responds to the Motion to Withdraw and Amend with the Defendant’s
Response to Plaintiff’s Motion to Withdraw Prior Motion to Amend and Substituted Motion to
Amend Complaint, filed September 23, 2016 (Doc. 76)(“Response”). The Response largely
reiterates the arguments that Sandia Labs make in the Motion for Leave to Substitute Second
Amended Complaint Response, and further argues that
the most recent motion to amend has been denied, so there is nothing to withdraw,
and further amendment is untimely, dilatory, and futile. Plaintiff Benavidez, Ms.
Baca, Ms. Luna-Casias, and Ms. Ortiz all fail to state prima facie Equal Pay Act
Claims, and the remainder of the causes of action that Ms. Baca, Ms. LunaCasias, and Ms. Ortiz want to bring are time barred.
Response at 1. The Response thus explains that the “amendment deadline for Plaintiff in the
Scheduling Order expired on April 30, 2016. . . . The Scheduling Order was ultimately vacated,
but not until June 10, 2016.” Response at 2. Then, after a recap of the case’s procedural history
of the case, the Response asserts -- with respect to the Proposed Third Amended Complaint -that “using ordinal counting, it marks the fifth attempt by Ms. Benavidez and the third attempt by
the three putative plaintiffs at articulating a complaint.” Response at 5 (emphasis omitted).

- 22  

The Response then argues that the Court should not allow Benavidez to withdraw the
Motion for Leave to Substitute Second Amended Complaint, because “escaping an adverse
ruling is not a legitimate basis for withdrawing a motion.” Response at 5-6 (citing Selman v.
Delta Airlines, 2008 WL 6022017 (D.N.M. 2008)(Browning, J.)(“Selman”). The Response
provides that, in that case:
Rather than suffer an adverse ruling on the law at the start of the case, the movant
preferred to just withdraw its motion. Finding that to be a reason that did not
justify withdrawal, the Court further noted that it had already invested substantial
effort and time in addressing the issues in the underlying motion and that it had an
extensive draft opinion started. It was apparent that the legal questions in the
motion would need to be resolved eventually in the case anyway, and so the Court
in Selman denied leave to withdraw.
Response at 6. Accordingly, the Response contends that this case’s facts are similar and counsel
in favor of denying the Motion for Leave to Substitute Second Amended Complaint under
Selman. See Response at 6.
The Response further argues that the “[t]he Motion to Withdraw should also be denied
for the additional reason that it is moot and untimely.” Response at 6-7 (citing Estate of
Gonzales v. AAA Life Ins. Co., 2012 WL 1684599 (D.N.M. 2012)(Browning J.)(“Gonzales”);
United States v. Thomas, No. CR 03-0569 JB, Memorandum Opinion and Order at 19, filed July
8, 2004 (Doc. 242)(“Thomas”)). The Response thus explains:
In Gonzales, the motion to strike was denied as moot, and in Thomas the motion
to join was denied as untimely. Those concepts apply with full force here. Like
an employee who says she quits after she has already been fired, Plaintiff’s
Motion to Withdraw is moot and late. The motion she seeks to withdraw has
already been denied. Accordingly, for the foregoing reasons alone, the Motion to
Withdraw should be denied and the case dismissed with prejudice.
Response at 6-7.
Next, turning to the “amend” component of the Motion to Withdraw and Amend, the
Response argues the Court should deny amendment, because the “Plaintiff is late, she unduly
- 23  

delayed, and she was dilatory in seeking amendment.” Response at 8. This statement is true, the
Response argues, because the amendment deadline had expired, the Proposed Second Amended
Complaint retains the deficiencies resulting in the Court’s dismissal of the First Amended
Complaint in the Preemption MOO, this amendment is the fifth attempt at some amendment of
her complaint, and Benavidez’ “choice to forgo both a tolling agreement and the option to file
separate lawsuits while they still had time to do so.” Response at 8-9. Additionally, the
Response argues that “amending to add an Equal Pay Act Count is futile because Plaintiffs do
not have a prima facie case.” Response at 9. According to the Response,
[t]he Equal Pay Act, 29 U.S.C § 10 206(d)(1) (“EPA”)[,] prohibits employers
from ‘paying wages to employees . . . at a rate less than the rate which he pays
wages to employees of the opposite sex . . . for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which
are performed under similar working conditions’ unless enumerated exceptions
apply.
Response at 9-10. In this case, the Response argues, Benavidez does “not even allege that they
were paid less than men performing substantially equal work,” Response at 10, and thus
“Plaintiffs cannot establish a prima facie case of discrimination under the EPA,” Response at 11.
Last, the Response argues that amending the First Amended Complaint to add the
additional three Plaintiffs is futile, because “most of their counts are time barred.” Response at
11. The Response explains:
The [Proposed Third Amended Complaint] would add three new plaintiffs to the
case by amendment, with causes of action under Title VII, the Americans With
Disabilities Act, the Age Discrimination in Employment Act, and the New
Mexico Human Rights Act, but . . . the limitations periods under those federal
statutes expired in late February 2016 and for the Human Rights Act, the
limitations period expired in late April 2016. Giving Plaintiffs the benefit of the
doubt and assuming that an amended complaint is deemed filed for statute of
limitations purposes when the motion to amend is filed rather than when it might
be granted, Koch v. Shell Oil, 8 F. Supp. 2d 1264, 1268 (D. Kan. 1998), the filing
date would be August 31, 2016, the date of the Motion to Withdraw [and Amend]
(Doc. No. 71) with its attached [Proposed Third Amended Complaint]. This
- 24  

would still leave the state claims tardy by about four months and federal claims by
about six.
Response at 11-12. Further, while “Sandia recognizes that Rule of Civil Procedure 15 allows for
certain amendments to relate back to the original pleading,” Sandia Labs argues that relation
back is not the case here, because
Although that rule expressly applies to adding new defendants (“the amendment
changes the party or the naming of the party against whom a claim is asserted”),
the drafters contemplated its use in adding new plaintiffs as well. . . .
Accordingly, courts do not dismiss out of hand proposed amendments adding
plaintiffs. Instead, they apply the same standard that would be used to add new
defendants. One key part of that standard -- mistake concerning the proper
party’s identity, Rule 15(c)(1)(C)(ii) -- is absent from this case.
Response at 12. The Response thus argues that, for the proposed additional Plaintiffs, there
should not be relation back of the statute of limitations to the time the First Amended Complaint
was filed. See Response at 12-15. The Response thus concludes by stating that “[e]nough is
enough.” Response at 15.
10.

The Reply.

Benavidez replies to the Response with her Reply in Support of Plaintiff’s Motion to
Withdraw Prior Motion to Amend and Substituted Motion to Amend Complaint, filed September
28, 2016 (Doc. 79)(“Reply”). The Reply begins by recapping the procedural history, specifically
highlighting that Benavidez had initially pursued this lawsuit in state court pro se, that Benavidez
had made sure all parties and the Court were aware of the additional Plaintiffs and their
impending exhaustion of administrative remedies, and that, “[u]ntil this Response, Defendant has
not objected substantively to Plaintiff’s proposed amendments or the addition of the three other
plaintiffs.

In their Response to this Motion, Defendants have attached evidence to attack

Plaintiff’s Equal Pay Act Claim, which was proposed originally in February.

Otherwise,

Defendant’s objections have been procedural.” Reply at 1-5. The Reply then turns to its
- 25  

argument in favor of the Motion to Withdraw and Amend, as that motion pertains to the
withdrawal, arguing that, “[p]ursuant to Local Rule 7.7, Plaintiff may withdraw a document from
consideration by the Court by filing and serving a notice of withdrawal, which identifies the
document to be withdrawn and with the consent of the parties or the Court.” Reply at 5. The
Reply then cites to Selman, as did the Response, explaining that, in Selman, the Court
denied the motion to withdraw, considering the reasons for the plaintiff’s request
to withdraw (to avoid an adverse ruling), the need to decide the motion at a future
date, the parties’ need for an answer to the legal questions, and the effort the
Court had expended in reviewing and working on the motion.
Reply at 5. Here, the Reply argues, the Court has not “entered an order” on the Motion for
Leave to Substitute Second Amended Complaint, and thus “requests this Court to permit Plaintiff
to notice withdrawal of her previous pleadings related to the motion to amend and substitute with
the current briefing on the issue.” Reply at 7. Contrasting this case with Selman, the Reply
contends that Benavidez is not seeking to avoid an adverse ruling, and instead
requests withdrawal in order to (1) conform to the Court’s professed preference
that the proposed amended complaint exclude the state law claims that were the
subject of the June orders and (2) to maintain the pendency of briefing on
amendment that was begun in February 2016. Withdrawal would not prejudice
Defendant -- Plaintiff has eliminated the state law claims. Plaintiff acted as
quickly as possible after the Aug. 25, 2016 hearing to circulate and file a motion
to withdraw so as to avoid the Court investing time and effort in a ruling on the
pending motion to amend.
Reply at 7.
Turning next to the Motion to Withdraw and Amend’s request to amend the Proposed
Second Amended Complaint, the Reply argues that rule 15(a)
permits amendment with leave of court and the court should freely give leave
when justice so requires. Generally, refusal of leave to amend is only justified
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.

- 26  

Reply at 6 (internal quotation marks and citation omitted). The Reply then argues that the
amendment should relate back to the date of the original pleading,
because Plaintiff moved to amend the complaint to add the other plaintiffs, rather
than file a separate lawsuit, because the Court and Defendant expressed a
preference for that course. During the pendency of the motion to amend, until
now, Defendant has not argued that the motion to amend did not toll the time to
file. The matter was discussed in January, May, July, and August, and Defendant
did not raise the issue. Plaintiff relied on Defendant’s acquiescence to the
amendment procedure in late January 2016, at a time when the other proposed
plaintiffs could overcome an objection by filing separate lawsuits.
Reply at 7. Alternatively, the Reply argues, the “limitation period tolled at the filing of the
motion to amend on Feb. 10, 2016.” Reply at 7. Accordingly, the Reply contends that the
“Plaintiff’s motion to amend tolled the time to file and if Plaintiff is permitted to file the
proposed amended complaint, Plaintiff’s claims in the proposed complaint relate back to the
original complaint under Rule 15(c)(1)(B), because Plaintiff’s claims arise from the same facts as
the original complaint.” Reply at 7. The Reply concludes by stating that the “Plaintiff and the
other proposed plaintiffs have not sat on their rights, but have actively pursued amendment and
preservation of claims. Plaintiff asks that the Court view the history of proceedings,” and grant
the Motion to Withdraw and Amend. Reply at 10.
11.

The Hearing.

The Court held a hearing for the Motion to Withdraw and Amend on September 29,
2016. See Transcript of Hearing, taken September 29, 2016 (“September Tr.”). The Court
began the hearing by giving the parties its inclination:
I’m inclined to grant the plaintiff’s motion to withdraw the prior motion to amend.
I orally denied it, but I’m going to have to [put] an opinion together, and it’s
going to be difficult for the Court to you know go back and try to indicate exactly
what it would allow [and] what it wouldn’t allow. It seems to me that there is
close to agreement that the plaintiffs have pulled out most of the state law claims
that the Court dismissed earlier. I know there are some disputes and we’ll get to
those in a moment. But I think just from a Court standpoint it’s going to be a
- 27  

whole lot easier for the Court to deal with the substituted motion to amend
complaint than try to deal with the prior motion to amend. I think I know the
defendants would like an opinion on it, but it just doesn’t seem to me to make
sense for me to go do that work if plaintiffs haven’t ask[ed] me to do it. And I
think the record is clear. So I think as far as preserving the defendant’s arguments
about multiple motions and things, that’s all clear. So I’m inclined to grant that. I
tend to allow plaintiffs to be masters of their pleadings. If they don’t want the
Court to decide that motion, really parties in general, if they don’t want the Court
to decide the motion unless there is good reason. In the case that, where I did
refuse to allow a motion to withdraw in that case I was going to have to reach the
issue anyway so it was one of those things where it wasn’t going to save the Court
any work and the Court was going to have to reach those issues and the parties
were going to have to deal with them sometime. We’d already gotten to that
point, I didn’t think it made sense to allow the plaintiffs to withdraw their motion,
but in this case with so much work ahead, I’m inclined to do it. As far as the
substituted motion to amend the complaint you know I’m always reluctant to
allow or to have claims go by the way side on things other than the merits. So I
probably will try my best where I do have discretion to allow the plaintiffs to file
this amended complaint. I guess the question I have is you know, is it truly time
barred and is there, do I have any discretion here? Is this something where it
would be futile? So I probably will treat the substituted motion to amend largely
as a motion to dismiss and use you know pretty rigorous standards to see if there
is a complaint and case left. So those are my thoughts . . . I need to probably get
that motion to amend, the plaintiffs wanting to withdraw has been on my docket
for a while and I probably need to get it off. So what I’m inclined to do is grant
that motion to withdraw prior motion to amend get that prior motion off my
calendar and then try to turn probably not this week, but next, try to get to it in
October, get you an opinion out on whether we’re going to h[ear] the substituted
motion to amend the complaint and whether we’ve still got a case here or not.
But those are my thoughts.
September Tr. at 2:1-4:9 (Court). At this point, Benavidez indicated that her only hesitation with
the Court’s inclination was whether bifurcating the Motion to Withdraw and Amend in such a
manner would create “a time lapse between the two of them. The hope was that the substituted
motion to amend was sort of simultaneously filed to maintain that pending motion to amend
from February.” September Tr. at 4:16-23 (Wray). Essentially, Benavidez argued that the
analysis for the tolling of the statutory limitation date differs between Benavidez and the
proposed additional Plaintiffs; for Benavidez, she asks “the Court to relate back the new
complaint under 15(a)(1)(b) [because] it arises out of the same causes of action,” and for the new
- 28  

Plaintiffs, Benavidez is “not asking the Court to relate their motion back to the original filing,”
but instead argues that either “the 90-day period [after exhaustion of administrative remedies]
was waived, it was tolled and time actually still remains, or equitable tolling can apply to permit
filing of the substituted amended complaint.” September Tr. at 7:2-8:9 (Wray). The Court then
inquired why, with the potential limitations, Benavidez did not file separate complaints, to which
Benavidez replied that, “[a]t the January hearing, we got a sort of consensus that everybody
preferred for it to happen together. . . . If we filed new complaints even then the 90-day period
had expired and we would have to be standing in front of somebody making these arguments
. . . .” September Tr. at 8:14-24 (Wray). Benavidez then argued that the claims should not be
time barred, because “all the arguments are intertwined . . . and, as defendant noted in their
briefing on this issue, defendant had indicated no opposition to tolling this period.” September
Tr. at 9:3-25 (Wray).
Sandia Labs then took up argument and argued that
a motion to amend that is not granted doesn’t have relation back ability. . . .
[Y]ou can’t toll a statute with a motion to amend that isn’t granted and . . . that’s
what we have here. And so what we’re left with is three plaintiffs who are
untimely and are trying to [ride the coat] tails of one plaintiff.
September Tr. at 10:13-25 (Viets). Sandia Labs further disagreed that the parties had agreed to
toll the limitations period, because, while they had originally “floated” the idea to Benavidez,
“they made a conscience decision not to engage in discussions about a tolling agreement. [And
t]hey made a conscious decision not to file separate lawsuits.” September Tr. at 11:1-19 (Viets).
Sandia Labs then discussed with the Court its alternative arguments why, apart from it being
time barred, the Court should deny the Motion to Withdraw and Amend. See September Tr. at
14:12-15 (Viets). A couple of Sandia Labs’ arguments were that the Motion to Withdraw and
Amend was delayed and dilatory, but the Court quickly indicated that it was not going to agree
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with those arguments. See September Tr. at 14:21-23 (Viets, Court). Sandia Labs thus argued
that Benavidez’ equal-pay argument is futile, because the “plaintiffs have to allege and prove
that there were men who performed [‘]substantially equal work[‘]. . . . [A]nd there aren’t any
allegations in even the latest iteration of the proposed complaint that there were men who
performed substantially equal work, but were paid more.” September Tr. at 16:3-10 (Viets).
After the Court pressed Sandia Labs whether there were futility arguments for the other claims in
the Proposed Third Amended Complaint, Sandia Labs indicated that its only argument on those
claims was that they were time barred, delayed, and dilatory. See September Tr. at 17:18-22
(Viets). To that point, Sandia Labs reminded the Court that: (i) the case management deadlines,
although subsequently vacated, were missed; (ii) the Proposed Second Amended Complaint fails
to remove state law claims; (iii) there have been a large number of amendments; and (iv) Sandia
Labs has not agreed to any waiver or tolling of any statutory limitations. See September Tr. at
17:23-19:22 (Viets). Sandia Labs then turned, specifically, to the concept of relation back to the
original First Amended Complaint, and explained that “when a plaintiff seeks to add another
plaintiff to the lawsuit rule 15(c)(1)(c) . . . applies . . . and the case law under it requires that
there [is] some kind of mistake in the identity of the plaintiffs.” September Tr. at 21:7-18
(Viets). Thus, Sandia Labs argued, the three additional Plaintiffs were untimely, because the
Motion for Leave to Substitute Second Amended Complaint has not been granted -- the only way
that the additional Plaintiffs’ claims could be timely. September Tr. at 22:5-9 (Viets). Sandia
Labs, in conclusion, pointed the Court to remaining references to state law claims in the
Proposed Third Amended Complaint. See September Tr. at 23:2-20 (Viets).
Benavidez then responded, initially ensuring that all parties and the Court knew that she
had intended to remove all state law claims, and that the references remaining were not claims.

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See September Tr. at 24:3-18 (Wray). Benavidez further explained that the additional Plaintiffs
were not sitting on their rights and that instead their strategy simply was to ensure that the Court
“only has to look at one thing in front of it.” September Tr. at 25:1-11 (Wray). Benavidez then
reminded the Court that, in this case, when the Plaintiffs filed the Motion for Leave to Substitute
Second Amended Complaint, their statutory limitation period had not lapsed. See September Tr.
at 26:11-17 (Wray). Last, Benavidez insisted that Sandia Labs’ offer -- in a footnote -- to toll the
limitations period for the claims of the three additional Plaintiffs was not ignored and that Sandia
Labs did not renew their offer in the hearing on the issue. See September Tr. at 27:1-7 (Wray).
According to Benavidez, the offer to toll the limitations is irrelevant, because the parties agreed
to handle the issue by instead amending the First Amended Complaint. See September Tr. at
27:15-28:7 (Wray). Regarding the alleged futility of the Proposed Third Amended Complaint’s
equal-pay argument, Benavidez argued that the claim was well pled and that the issue would be
developed in discovery. See September Tr. at 28:14-29:6 (Wray). In conclusion, Benavidez
indicated that she is content with the Court’s suggestion that it bifurcate the Motion to Withdraw
and Amend so long as, despite withdrawal, her filing of the Motion for Leave to Substitute
Second Amended Complaint “tolled the 90-day period,” and then while the withdrawal
component of the Motion to Withdraw and Amend might have stopped the tolling -- the
simultaneous amendment component of the Motion to Withdraw and Amend restarted the tolling
immediately. September Tr. at 29:17-30:3 (Wray). The Court then took the Motion to Withdraw
and Amend under advisement, indicating that it would issue an order soon after the hearing
granting the Motion to Withdraw and Amend’s request to withdraw the Motion for Leave to
Substitute Second Amended Complaint. See September Tr. at 30:6-31:9 (Court).

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12.

The Order.

On September 30, 2016, the Court issued an Order in which it granted in part the Motion
to Withdraw Prior Motion to Amend. The Order provided:
The Court will grant the part of the Motion to Withdraw and Amend by which
Plaintiff Linda Benavidez seeks to withdraw her prior Motion for Leave to
Amend Complaint, filed February 10, 2016 (Doc. 30). The Court will take the
other part of the Motion to Withdraw and Amend, by which Benavidez seeks
leave to file a substituted, third amended complaint, under advisement.
Order at 1.
13.

The Amendment MOO.

In its Amendment MOO, regarding Benavidez’ request to amend and add the proposed
Plaintiffs, the Court explained:
[T]he Court . . . concludes that amendment adding them to the lawsuit
would be futile, because their claims are time barred. The Court understands that
Benavidez and her attorneys were in a position where they considered the claims
of the three proposed Plaintiffs as being related to Benavidez’ claims, and as
arising from the same circumstances at Sandia Labs, and that Sandia Labs on
numerous occasions indicated that they would prefer to defend one lawsuit, as
opposed to four separate lawsuits. Indeed, Sandia Labs offered to toll the statute
of limitations appurtenant to the potential Plaintiffs’ federal claims -- yet,
Benavidez and her attorneys did not engage in any relevant colloquy with Sandia
Labs on this point or assent to that offer to toll in some other manner. Instead,
Benavidez chose to try to amend her First Amended Complaint to include the
three proposed Plaintiffs as parties to the Proposed Second Amended Complaint.
The Court would not have pursued such a strategy; Benavidez and the proposed
Plaintiffs were more intent on preserving the record for appeal with respect to the
state law claims than they were in timely filing the proposed Plaintiffs’ claims.
The proposed Plaintiffs ought have recognized, or at least considered, that the
Court was going to dismiss Benavidez’ First Amended Complaint in its entirety,
the only complaint before the Court -- particularly after receiving the Court’s
inclination at the January hearing. Thus, the potential Plaintiffs’ decision to
pursue their claims against Sandia Labs in this case by simply waiting for
Benavidez’ receipt of leave to amend the First Amended Complaint to add them
as parties was a risky strategy given that the clock was ticking. The Court gave
Benavidez and the proposed Plaintiffs the power to be the masters of their own
lawsuit -- indeed, the Court specifically instructed Benavidez to “make your own
decision whether you want to file separate cases” given the proposed addition of
new Plaintiffs, and
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if you need to file separate cases, you can. If I get the opinions out
and you want to bring it back here, [we can] pick this up, I’ll just
hold this [Proposed Second Amended Complaint] for the time
being, I won’t rule on it, and then you can make a decision. You’ll
just have to be the judge of your own time.
May Tr. at 6:7-16 (Court). The prudent thing to do would have been to file a
separate lawsuit to beat the statute of limitations and then seek to consolidate if
they wanted to litigate all of the cases together. Because Benavidez’ case was
first filed, and has the lowest number, the tradition and custom in this district is to
consolidate within that lowest number. It took the Court some time to issue the
Preemption MOO, because it had not done a lot of work in the two main areas at
issue -- LMRA preemption and federal enclave jurisdiction -- and had not
extensively written on these, in this context, before. Also, the parties argued the
federal enclave issue at the hearing, but had not extensively briefed that
jurisdictional issue, which was new to the Court. The Court thus had to do a lot
of that research on its own. The proposed Plaintiffs had, however, the opportunity
to file separate cases before the statutory period had lapsed -- although, the Court
is aware that its admonition in May would potentially not have fixed the problem,
as the statutory period had indeed already lapsed at that time. The Court notes,
however, that, in May, the Motion for Leave to Substitute Second Amended
Complaint had not yet been withdrawn -- that is, there may have been an
argument that the statutory period had been tolled by the filing of the state-lawclaim-riddled Proposed Second Amended Complaint which the Court had
indicated it would deny, at least in part, at the August hearing. The decision not
to file separate cases -- or to enter into a tolling agreement with Sandia Labs -before the statutory period’s lapse, now manifesting itself as a risky decision, has
become the operative error rendering the proposed Plaintiffs’ claims futile.
Given that Benavidez has now withdrawn the Motion for Leave to
Substitute Second Amended Complaint, the proposed Plaintiffs’ only chance at
successfully getting a complaint before the Court which is not deficient on
account of the lapse of the statutory period would be if the Proposed Third
Amended Complaint relates back to a time before the lapse. The Court, however,
can see no sound way in which the Proposed Third Amended Complaint might
somehow relate back to the timing of the First Amended Complaint -- in which
the three additional Plaintiffs were not named -- or even the timing of the
withdrawn Proposed Second Amended Complaint, which the Court notes would
satisfy the statutory requirement.
Amendment MOO at 59, 2017 WL 2266854, at *27. As grounds for its conclusion, the Court
provided:
The limitations period for the federal claims brought by the proposed Plaintiffs
- 33  

expired in late February, 2016. See Response at 3-4. The limitations period at
issue in this case is a 90-day deadline to file suit after receipt of a right-to-sue
letter from the EEOC, and that period covers all of Benavidez’ and the proposed
Plaintiffs’ federal claims -- save for the Equal Pay Act [claim]. See 42 U.S.C. §
2000e-5(f)(1)(providing limitation period under Title VII); 42 U.S.C. § 12117(a)
(providing limitation period for the ADA, specifically adopting Title VII’s
deadlines); 29 U.S.C. 626(e)(providing limitation period for ADEA). Baca
received her right-to-sue letter on November 30, 2015; Luna-Casias received hers
on November 30, 2015; and Ortiz received hers on November 30, 2015. See
Proposed Amended Third Complaint ¶¶ 9-18, at 2-3.
Amendment MOO at 59, 2017 WL 2266854, at *27 n.8. The Court then considered rule 15 of
the Federal Rules of Civil Procedure, which governs when an amendment to a complaint will
relate back to the timing of the complaint’s original filing. See Amendment MOO at 57-68,
2017 WL 2266854, at *28. For context, rule 15(c) reads:
(1) When an Amendment Relates Back. An amendment to a pleading relates
back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations
allows relation back;
(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out -- or attempted to be set
out -- in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not
be prejudiced in defending on the merits; and
(ii) knew or should have known that the action
would have been brought against it, but for a
mistake concerning the proper party’s identity.
Fed. R. Civ. P. 15(c). The Court concluded that rule 15(c) does not provide explicit guidance
regarding the addition of new plaintiff-parties. See Amendment MOO at 60-68, 2017 WL
2266854, at *28-29. The Court stated:
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Despite rule 15(c)(1)(C)’s express language, however, the Court notes that it is
apparent that the drafters of rule 15(c) appear to have contemplated its application
to the addition of new plaintiffs. See Fed. R. Civ. P. 15(c) advisory committee’s
notes to 1966 amendment (“The relation back of amendments changing plaintiffs
is not expressly treated in revised Rule 15(c) since the problem is generally easier.
Again the chief consideration of policy is that of the statute of limitations, and the
attitude taken in revised Rule 15(c) toward change of defendants extends by
analogy to amendments changing plaintiffs.”). Accordingly, most courts do not
automatically dismiss amendments proposing to add new plaintiffs and instead
generally apply the same standard used to add new defendants -- rule
15(c)(1)(C)(i) and (ii) -- when such is applicable. See, e.g., Leachman v. Beech
Aircraft Corp., 694 F.2d 1301, 1308-10 (D.C. Cir. 1982)(holding that there is a
“need to limit relation back of claims asserted by new plaintiffs in some way
beyond the ‘conduct, transaction, or occurrence’ test that applies to relation back
of amendments generally. Without some limit, total strangers with claims arising
out of a multi-victim incident might join pending actions long after the statute of
limitations had lapsed. That would allow the tardy plaintiffs to benefit from the
diligence of the other victims and, more importantly, could cause defendants’
liability to increase geometrically and their defensive strategy to become far more
complex long after the statute of limitations had run. Even if, as here, there were
no showing of specific prejudice in the sense of lost or destroyed evidence,
defendants would still be deprived of their interest in repose. At some point,
defendants should have notice of who their adversaries are,” and, further stating
that “[t]he point of the courts’ consideration of identity of interest is that that
factor ensures that the old and new plaintiffs are sufficiently related so that the
new plaintiff was in effect involved in the proceedings unofficially from an early
stage’” (internal citations and quotation marks omitted)(alterations omitted));
Pierce v. Long John Silver, Inc., 1996 WL 153563 (E.D. Pa. 1996)(relying on
Nelson v. Cnty. of Allegheny, 60 F.3d 1010, 1014-16 (3d. Cir. 1995), and holding
that no matter the plaintiff/defendant status of the party to be added, the analysis
entails whether “defendants (A) received such notice that they will not be
prejudiced in maintaining a defense on the merits, and (B) knew or should have
known that, but for a mistake concerning the identity of the proper party, the
action would have been brought with the original claims); Ambraziunas v. Bank
of Boulder, 846 F. Supp. 1459, 1467 (D. Colo. 1994)(Kane, S.J.)(“They have not,
however, established that Defendants had notice of their additional claims or that
there was any mistake in the original complaint to merit the relation back of the
claims of the new Plaintiffs to the filing of the original complaint on June 30,
1993.”). The Court is at a loss as to why rule 15(c)(1)(C)’s plain language is still
at odds with the drafter’s commentary, but concludes, nonetheless, that the
drafter’s commentary does not, anyway, encompass the addition of these
proposed Plaintiffs.
Amendment MOO at 61-63, 2017 WL 2266854, at *28-29. The Court also stated:

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The Court wonders, for example, whether the commentary in fact purports to
create a theory by which the addition of new Plaintiffs might be accomplished by
reference only to rule 15(c)(1)(B), given the general incompatibility between rule
15(c)(1)(C)’s language and the addition of plaintiff-parties -- i.e., there is only a
narrow set of facts, as narrow as that pertaining to party-defendants, upon which
relation back of amendments adding party-plaintiffs exists. Cf. Leachman v.
Beech Aircraft Corp., 694 F.2d at 1308-10.
Amendment MOO at 63-64, 2017 WL 2266854, at *28-29 n.11.

The Court, accordingly,

concluded:
In light of rule 15(c)(1)(C)’s plain language, then, and the incompatibility of this
case with the general body of case law authorizing the relation back of an
amendment adding new plaintiffs under rule 15(c) at large, the Court thus
concludes that the proposed Plaintiffs’ complaints do not relate back to the filing
of the First Amended Complaint. Because of this conclusion, the Proposed Third
Amended Complaint’s addition of the proposed Plaintiffs would be futile, because
-- as all parties agree -- these federal employment discrimination claims are time
barred.
Amendment MOO at 65-68, 2017 WL 2266854, at *30. The Court also counseled the parties
that:
this result may seem harsh, but also notes that the proposed Plaintiffs had every
opportunity to file their respective actions in federal court. Indeed, Sandia Labs -to no avail -- offered to toll the limitations period for these proposed Plaintiffs,
stating -- in response to Benavidez’ Motion to Stay Proceedings, filed November
12, 2015 (Doc. 10) -- that it was “amenable to an agreement tolling the statutes of
limitations for claims that could only be brought after the exhaustion of Plaintiffs’
administrative remedies, which . . . were still unexhausted or newly exhausted.”
Defendants’ Response to Plaintiff’s Motion to Stay Proceedings at 3 n.4, filed
November 25, 2015 (Doc. 19). At the hearing, Benavidez argued that they did not
take Sandia Labs up on the negotiations, because it was offered in a footnote and
they thought everyone would be happy with entry of an amended complaint. See
Tr. at 26:18-28:7 (Wray). The Supreme Court has said, in this context, that
[p]rocedural requirements established by Congress for gaining
access to the federal courts are not to be disregarded by courts out
of a vague sympathy for particular litigants. As we stated in
Mohasco Corp. v. Silver, 447 U.S. 807, 826 [] (1980), “[i]n the
long run, experience teaches that strict adherence to the procedural
requirements specified by the legislature is the best guarantee of
evenhanded administration of the law.”

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Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984). Thus, although
“motions to amend brought in district court should be freely granted,” such favor
for amendment does not exist where “the proposed amendment would result in
unfair prejudice to the non-movant or would be futile.” Thompson v. Colorado,
60 F. App’x 212, 215 (10th Cir. 2003). Additionally, Benavidez and the proposed
Plaintiffs suggest that the Court apply the doctrine of equitable tolling -- which
applies in “exceptional circumstances,” Yang v. Archuleta, 525 F.3d at 928
(“Generally, equitable tolling requires a litigant to establish two elements: (1) that
he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.”) -- or some form of waiver, because the Proposed
Second Amended Complaint was timely filed; the Court, however, sees no such
exceptional circumstances, or sound reason to invent a waiver on these facts
because of the existence of the now-withdrawn Proposed Second Amended
Complaint. Further, the Court has a difficult time saying that the proposed
Plaintiffs acted diligently to protect their rights. Nothing prevented them from
filing separate lawsuits to beat the running of the limitations period or from
engaging in negotiations with Sandia Labs to enter into a tolling agreement. And
Sandia Labs did not do anything to prevent the proposed Plaintiffs from filing
separate lawsuits. Instead, Sandia Labs unequivocally tried to help the proposed
Plaintiffs by suggesting that they enter into tolling agreement negotiations. The
proposed Plaintiffs pursued a different strategy, and the Court should not create
new equitable or waiver doctrines to save them from this deliberate decision.
Here, the amendment to add the proposed Plaintiffs would be futile, because, as in
the case for intervening plaintiffs -- a situation similar to this -- “an intervening
plaintiff should not be permitted to ‘piggyback’ on the claims of an earlier
plaintiff in order to escape the statutory bar that would normally shield the
defendant from liability as to the intervenor.” Weber v. Mobil Oil Corp., 506
F.3d 1311, 1315 (10th Cir. 2007). Under rule 15(c), the Proposed Third Amended
Complaint may not relate back to a time which satisfies the limitations period for
the proposed federal claims, rendering proposed Plaintiffs’ addition futile.
Amendment MOO at 66-68, 2017 WL 2266854, at *30.
14.

The Motion to Reconsider.
The Motion to Reconsider requests partial reconsideration of the Court’s Amendment

MOO under rule 59(e) of the Federal Rules of Civil Procedure, or the Court’s “inherent authority
to reconsider interlocutory rulings.” Motion to Reconsider at 1. Benavidez, specifically,
requests reconsideration of the portion of Court’s ruling that amending the
complaint to include Ms. Baca, Ms. Ortiz, and Ms. Luna-Casias (“Second
Plaintiffs”) is futile. Specifically, Plaintiff Benavidez asserts that (1) the
complaint related to Plaintiffs Ms. Baca, Ms. Ortiz, and Ms. Luna-Casias should
be deemed timely for the purposes of 4 USC Section 2000e-5(f)(1)1; (2) after
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entry of the January 17, 2017 Memorandum Opinion and Order, time remained on
the 90-day period in which the Second Plaintiffs could act; and, (3) the time to file
the Second Plaintiffs’ complaint was tolled until the disposition of the motion to
amend.
Motion to Reconsider at 1. After recapping what she considers were the salient procedural facts
of this case, Benavidez explains that she has filed
an Amended Complaint in this case, which include[s] only Plaintiff Benavidez
and conform[s] to the Court’s instructions, on January 23, 2017. . . . Also on
January 23, 2017, the [proposed] Plaintiffs filed separate federal lawsuits. Those
three separate lawsuits were timely and appropriate, because the February 2016
motion to amend tolled the 90-day period, time remained on the period that began
to run again on the entry of the Court’s January 17, 2017 Order, and those
complaints needed to be filed in order to preserve any time that might remain on
the 90-day period.
Motion to Reconsider at 5. Benavidez asks the Court to “partially reconsider” its Amendment
MOO “for three reasons.” Motion to Reconsider at 5. First, Benavidez argues that the Motion to
Withdraw and Amend attached “a proposed amended complaint that did nothing more than
remove state law claims [from the Proposed Second Amended Complaint] pursuant to the
Court’s expressed preference.

The withdrawal and substitution was simultaneous and the

proposed [Third Amended Complaint] that was attached should have been deemed filed as of
February 2, 2016,” the date Benavidez filed “the original motion to amend [with the Proposed
Second Amended Complaint. Nothing happened between February 2, 2016 and August 31, 2016
that would cause the 90-day period to lapse.” Motion to Reconsider at 5. Second, Benavidez
argues that her filing of the Motion to Withdraw and Amend “tolled the 90-day period, without
lapse from February 2, 2016, until the January 17, 2017 [Order]. After entry of the Order, [the
proposed] Plaintiffs had 26 days remaining in the 90-day period to take action and as a result,
amendment to include [the proposed] Plaintiffs would not be futile.” Motion to Reconsider at 6.
Third, Benavidez contends that if the Motion to Withdraw and Amend

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only tolled the 90-day period until the Court granted or denied the requested
relief, that denial did not happen until January 17, 2017. The tolling therefore
either stopped on January 17, 2017 and the 90-day period continued to run or the
time did not expire until January 17, 2017. Under those circumstances, Plaintiff
requests the Court to reconsider based on the manifest injustice.
Motion to Reconsider at 6. Accordingly, Benavidez suggests:
The parties did not face the question of when the amended complaints were to be
“deemed filed” complaint [sic] and or whether the 90-day period tolled until the
Aug. 25, 2016 hearing or later, until Plaintiff circulated the proposed Motion to
Withdraw and [Amend] prior to filing. With the benefit of the Court’s detailed
explanation of the timing of events as it pertains to the Motion to Withdraw and
[Amend], Plaintiff requests the opportunity to expand her response on that issue
so that the Court has the opportunity to address the effect of the “deemed filed”
doctrine and the tolling case law.
Motion to Reconsider at 6.
Benavidez, then, reaches her legal arguments, and first explains: “The present motion to
reconsider is governed by either Fed. R. Civ. P. 59(e) or by the Court’s inherent discretionary
power, depending on the finality of the order.” Motion to Reconsider at 6-7. Benavidez argues
that, if the Amendment MOO is “a decision on the merits . . . [, a] timely motion filed pursuant
to Rule 59(e) may be granted if there has been an intervening change in controlling law, new
evidence is available, or there is a need to correct clear error or prevent manifest injustice.”
Motion to Reconsider at 7 (internal quotation marks omitted). Benavidez also argues that, if the
Amendment MOO is “considered interlocutory, reconsideration is within the Court’s inherent
authority . . . [and t]he appropriate factors for a court to consider in exercising its inherent
authority to reconsider include conservation of judicial resources and the imposition of relitigation on the party opposing reconsideration.” Motion to Reconsider at 7.
Benavidez then discusses the law regarding what she calls “suspension of the 90-day
filing period and deemed filed” doctrine. Motion to Reconsider at 8 (internal quotation marks
omitted). Benavidez argues “[t]he substance of the claim filed with the EEOC is jurisdictional -- 39  

the district court claim must be within the scope of the administrative claim. ‘[T]he untimeliness
of an administrative claim, although an exhaustion issue, is not jurisdictional.’” Motion to
Reconsider at 8 (quoting Green v. Donahoe, 760 F.3d 1135, 1140 (10th Cir. 2014)).
Consequently, Benavidez contends that “the 90-day filing period for Title VII civil actions ‘is
subject to waiver, estoppel, and equitable tolling.’” Motion to Reconsider at 8 (quoting Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)).

Benavidez also explains that,

“[g]enerally, if a motion to amend attaches the proposed amended complaint, the amended
complaint is deemed filed as of the date of the filing of the motion to amend.” Motion to
Reconsider at 8 (citing Kane County v. United States, 934 F. Supp. 2d 1344, 1363-64 (D. Ut.
2013)(Waddoups, J.)).
Here, Benavidez reiterates that she brings three arguments before the Court as grounds
for reconsideration of the Amendment MOO: (i) “whether the Proposed Third Amended
Complaint should be deemed filed as of Feb. 2, 2016”; (ii) “whether the [Motion for Leave to
Substitute Second Amended Complaint] tolled the 90-day period until the Court ruled on Jan. 17,
2017”; and (iii) “whether time remained on the 90-day clock after the Court’s Jan. 17, 2017
[Amendment MOO].” Motion to Reconsider at 9. Because the Amendment MOO is “an order
that is final” as to the proposed Plaintiffs, Benavidez argues that the “Court should consider
Plaintiff’s request for reconsideration under Rule 1-059(e) [sic], in order to prevent manifest
injustice.” Motion to Reconsider at 9 (internal quotation marks omitted). Regarding her asserted
first ground for reconsideration, Benavidez explains that the Motion for Leave to Substitute
Second Amended Complaint, filed on February 10, 2016, “satisfied the 2000e-5(f)(1)
requirement to commence an action within 90 days of the right-to-sue notice,” because it
“attached the proposed amended complaint, including the Second Plaintiffs’ claims.” Motion to

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Reconsider at 10. Benavidez further explains that the purpose of the Motion to Withdraw and
Amend was merely to remove the state law claims from the Proposed Second Amended
Complaint in accordance with the Court’s Preemption MOO, which the Court filed June 27,
2016. See Motion to Reconsider at 10. Benavidez also asserts that the Motion to Withdraw and
Amend “purported to eliminate the state law claims and was otherwise nearly identical to the
supplemental briefing[5] filed after the Court’s order on the motion to dismiss” in the Preemption
MOO. Motion to Reconsider at 10. Benavidez thus asserts:
Defendant and the Court anticipated a new complaint would be presented that
would eliminate the state law claims. Plaintiff’s Motion to Withdraw and
[Amend] sought withdrawal of the original [Motion for Leave to Substitute
Second Amended Complaint] and simultaneous substitution of a nearly identical
motion to amend. Plaintiff attached a proposed complaint that eliminated the
state law claims and was otherwise identical to the complaint attached to the July
supplemental briefing. For these reasons, the [Proposed] Third Amended
Complaint, which was attached to the Motion to Withdraw and [Amend], should
be deemed filed on the date of the original [Motion for Leave to Substitute
Second Amended Complaint], February 2, 2016.
Motion to Reconsider at 11. According to Benavidez, the proposed Plaintiffs’ Proposed Third
Amended Complaint
should be “deemed filed” on February 2, 2016. The time tolled on February 2,
2017 [sic] when the Plaintiff filed a motion to amend. On August 31, 2016, when
Plaintiff filed the Motion to [Withdraw and] Amend, the time was still tolled.
Nothing happened on August 31, 2016 that could stop the suspension of the 90day period -- Plaintiff did not dismiss a complaint without prejudice and did not
abandon any claim or argument, nor did the Court grant or deny a motion. Thus,
even if the [proposed] Plaintiffs’ [Proposed Third Amended Complaint] is
deemed filed August 31, 2016, the complaints were still timely because on August
31, 2016, [proposed] Plaintiffs had brought an action within the suspended 90-day
period. As a result, the time would not have expired.
5

The Court notes that the Supplemental Briefing makes minor changes to the Proposed
Second Amended Complaint attached to the Motion for Leave to Substitute Second Amended
Complaint. See Supplemental Briefing at 1-2. The Supplemental Briefing, in particular,
renumbers paragraphs, discusses administrative grievances the Plaintiffs made, makes more
specific allegations, adds a punitive damages claim, and changes the anticipated month of filing.
See Supplemental Briefing at 2.
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Motion to Reconsider at 12.
Next, Benavidez argues that she filed the Motion for Leave to Substitute Second
Amended Complaint on February 2, 2016, “and the 90-day clock did not expire until February
29, 2016. As a result 26 days remained on the clock when the [Motion for Leave to Substitute
Second Amended Complaint] was filed and at no time did those days continue to tick until the
January 17, 2017 [Amendment MOO].” Motion to Reconsider at 12. Benavidez states that she
is not seeking additional time or an exception to the 90-day limitations period, but is instead
arguing that the Motion for Leave to Substitute Second Amended Complaint “suspended the
clock on February 17, 2016,” and that
the clock resumed ticking on Jan. 17, 2017, and on that date, time remained for
Second Plaintiffs to filed separate complaints. [The proposed] Plaintiffs filed
separate complaints on Jan. 23, 2017, in order to again stop the clock from
continuing to tick. If time remained on the clocks, amendment to add the
[proposed] Plaintiffs would not have been futile. If, however, the [Motion for
Leave to Substitute Second Amended Complaint] is treated as a dismissal with
prejudice or a denied motion to intervene, the clock may have run out as of Feb.
29, 2016.
Motion to Reconsider at 13-14. If that is the case, and the clock ran, Benavidez requests the
Court “enter a judgment on behalf of Second Plaintiffs so that they can pursue an appeal as a last
resort.” Motion to Reconsider at 13-14.
Third, Benavidez argues that the February 2, 2016, Motion for Leave to Substitute
Second Amended Complaint “tolled the 90-day period until entry of the January 17, 2017,”
Amendment MOO. Motion to Reconsider at 14. According to Benavidez, “the parties do not
appear to disagree that the February 2, 2016 [Motion for Leave to Substitute Second Amended
Complaint] stopped the clock running on the 90 days until the Court could rule.” Motion to
Reconsider at 14. Benavidez clarifies that “the parties disagree about the effect” of the Motion

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to Withdraw and Amend on the Motion for Leave to Substitute Second Amended Complaint, and
that she
does not request the Court to reconsider its ruling that equitable tolling does not
apply because of Plaintiff’s understanding that the parties had stipulated to the
amendment, rather than the separate complaint, procedure . . . [and i]nstead,
Plaintiff relies on the generally accepted principles that a limitation period is
equitably tolled during the pendency of a motion affecting that limitation period.
Motion to Reconsider at 14 n.3; n.4. Benavidez contends: “‘Principles of equitable tolling
usually dictate that when a time bar has been suspended and then begins to run again upon a later
event, the time remaining on the clock is calculated by subtracting from the full limitations
period whatever time ran before the clock was stopped.’” Motion to Reconsider at 14 (quoting
United States v. Ibarra, 502 U.S. 1, 3-4 n.2 (1991)). Benavidez explains that here, however, the
“partial denial of the [Motion for Leave to Substitute Second Amended Complaint] indicates that
the Court viewed Plaintiff’s Motion to Withdraw and Amend as an order that granted dismissal
without prejudice. Complaints that are dismissed without prejudice or denied motions do not toll
a limitation period.” Motion to Reconsider at 15. Benavidez then argues:
In order for the February 2, 2016 [Motion for Leave to Substitute Second
Amended Complaint] to not have continuously suspended the 90-day period . . .
until entry of an order granting or denying relief, this Court would have to either
deem the [Motion for Leave to Substitute Second Amended Complaint] denied as
of August 31, 2016 or deem the August 31, 2016 Motion to Withdraw and
[Amend] to be a voluntary dismissal of the proposed amended complaint without
prejudice.
Motion to Reconsider at 15. Benavidez thus maintains that the Court never dismissed or denied
her Motion for Leave to Substitute Second Amended Complaint, “and, as a result, the suspension
of the limitation period that began of the [sic] Feb. 2, 2016 never lapsed.” Motion to Reconsider
at 15. In conclusion, Benavidez requests, “[o]n this basis, . . . the Court . . . reconsider its ruling
that the 90-day period had already expired and rule that the Proposed Third Amended Complaint

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should be deemed filed February 2, 2016 or otherwise timely filed.” Motion to Reconsider at 16.
15.

Notice of Errata.

Benavidez filed a Notice of Errata, filed February 6, 2017 (Doc. 89). In the Notice of
Errata, Benavidez primarily explains: “The correct date that the [Motion for Leave to Substitute
Second Amended Complaint] was filed was February 10, 2016 and that date should be reflected
throughout the Motion for Partial Reconsideration” in place of the incorrect date February 2,
2016. Notice of Errata at 1. Consequently, Benavidez also explains that she stated in the Motion
to Reconsider that “26 days remained on the 90-day clock. Using the correct filing date of
February 10, 2016, 18 days remained on the clock after the [Motion for Leave to Substitute
Second Amended Complaint] was filed.” Notice of Errata at 1.
16.

The Motion to Reconsider Response.

Sandia Labs filed the Defendants’ Response in Opposition to Plaintiff’s Motion for
Partial Reconsideration of this Court’s January 17, 2017 Memorandum Opinion and Order, filed
February 16, 2017 (Doc. 90)(“Motion to Reconsider Response”).

Sandia Labs opposes

reconsideration of the Amendment MOO, because
[t]he Court correctly determined that the claims asserted by Ms. Baca, Ms. Ortiz,
and Ms. Luna-Casias were untimely. They already had full and fair opportunity
to be heard on the matter, [and] have not presented any supporting authority for
their position, and there is no basis for the Court to reverse itself,
and also opposes Benavidez’ “alternative request for entry of a judgment that might allow them
to take an immediate appeal, because as also explained below, Ms. Baca, Ms. Ortiz, and Ms.
Luna-Casias have filed new lawsuits against Sandia with essentially the same causes of action
that they tried to join to this case.” Motion to Reconsider at 1. Sandia Labs then provides its
theory of the procedural history in this case, stating:
Plaintiffs’ narrative regarding the attempt by Ms. Baca, Ms. Ortiz, and Ms. Luna- 44  

Casias to join this case is incomplete and misleading. Plaintiffs make it seem as if
their decision on August 31, 2016, to withdraw their prior motion to amend and
substitute it with yet another proposed amended complaint was a chivalrous act
intended to expedite the lawsuit and save work for the Court. Plaintiffs present
themselves as if they were simply trying to do the right thing in finally
relinquishing their state law causes of action and have been victimized for it. In
fact, Plaintiffs’ August 31, 2016 Motion to Withdraw Prior Motion to Amend and
Substitute Motion to Amend Complaint (Doc. 71) was the product of a problem
that Plaintiffs created for themselves. Plaintiffs had plenty of opportunity months
earlier to seek a timely amendment with a clean complaint or discuss entry into a
tolling agreement, but instead they chose to gamble.
Motion to Reconsider Response at 2. Sandia Labs also explains that, because it defended
Benavidez and the proposed Plaintiffs’ administrative charges, it was fully aware of the
omnipresent threat of litigation by all parties, and that its
preference was that it happen in a single lawsuit. Accordingly, as early as
November 25, 2015, Sandia offered to discuss the possibility of an agreement to
toll the statutes of limitations so that the causes of action belonging Ms. Baca, Ms.
Ortiz, and Ms. Luna-Casias would not expire while they all waited for the
administrative agencies to finish up and for the Court to rule on a pending motion
to dismiss the case of Ms. Benavidez.
Motion to Reconsider Response at 2. Regarding the Preemption MOO, Sandia Labs explains
that it was “willing to wait,” because those issues would affect Benavidez, Baca, Ortiz, and
Luna-Casias, but that Benavidez and the proposed Plaintiffs “did not respond to the overture
regarding tolling.” Motion to Reconsider Response at 2-3. Sandia Labs also reiterates that on
November 30, 2015, the EEOC dismissed the federal administrative charges of
Ms. Baca, Ms. Ortiz, and Ms. Luna-Casias. . . . The clock, therefore, began to
tick. Under each of the federal statutes they invoke, Ms. Baca, Ms. Ortiz, and Ms.
Luna-Casias had 90 days to sue. . . . Because they never accepted the overture to
toll the limitations periods nor (until a few days ago, after they lost this case) did
they file separate lawsuits, time was wasting. Yet instead of doing the obvious,
Plaintiffs elected to wait for the state agency to end its investigations too. The
New Mexico Human Rights Bureau did so on January 27, 2016. On February 10,
2016, Plaintiff Benavidez moved to amend a first time, the amendment being to
add Ms. Baca, Ms. Ortiz, and Ms. Luna-Casias to the case.
Motion to Reconsider Response at 3. Sandia Labs then identifies that

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[t]he problem was that the attempted amendment included not just the federal
counts that were nearing expiration but also state law causes of action, some of
which the Court had rather plainly stated at hearings on January 20 and May 16,
2016 were not expected to survive as to Plaintiff Benavidez. And indeed, none of
them did. In an opinion on the motion to dismiss issued on June 22, 2016,
amended on June 27, 2016, this Court dismissed all of Plaintiff[] Benavidez’s
state law causes of action.
Motion to Reconsider Response at 3.

Next, Sandia Labs explains, Benavidez -- after the

Preemption MOO -- decided to file
what they called “Supplemental Briefing on Doc. No. 30, Motion for Leave to
Amend Complaint” [wherein] they proposed a new amended complaint. . . .
Instead of excising the state law counts, Plaintiffs kept them in and piled more
allegations on top for good measure. . . . This second proposed amended
complaint was written as if the Court’s June 22 opinion had never been issued.
Motion to Reconsider Response at 4. At an August 25, 2016, hearing, Sandia Labs characterizes
Benavidez and the proposed Plaintiffs as being
as stubborn as ever. They continued to refuse to recognize that state law causes of
action had no place in the case. Not surprisingly, having just recently analyzed
the state law claims carefully and having issued a thorough opinion on the matter,
the Court sounded perplexed. As the January 17, 2017 [Amendment MOO]
recites, “The Court was hard pressed . . . to understand ‘why go through all that
motion if I spent a lot of time dealing with the []motion to dismiss, why put them
all back in the case[,] I just don’t get that.’” [Amendment MOO, 2017 WL
2266864, at *9] (citing Tr. at 14:18-21). The August 25 hearing ended with the
Court verbally denying the motion to amend as filed.
Motion to Reconsider Response at 4. Thus, Sandia Labs explains, before the Court could reduce
its order to writing, Benavidez “moved to withdraw [her] previous motion to amend and
substitute yet another ([her] third) proposed amended complaint.”

Motion to Reconsider

Response at 4-5. Sandia Labs argues that this Proposed Third Amended Complaint “represented
the first real attempt by Ms. Baca, Ms. Ortiz, and Ms. Luna-Casias at removing state law causes
of action from the lawsuit.” Motion to Reconsider Response at 5. Sandia Labs notes, then, that
the Court -- a day after the August hearing regarding Benavidez’ Motion to Withdraw and

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Amend -- granted the “Plaintiffs permission to withdraw the prior motion to amend and took
under advisement the part of the motion requesting substitution of a new complaint.” Motion to
Reconsider Response at 5. Sandia Labs argues that “a substantial part” of the August hearing
was
devoted to argument that by Plaintiffs withdrawing their previous motion, any
new attempt to amend would be time barred. As Sandia pointed out, under the
“deemed filed” doctrine, a motion to amend that is eventually granted will stop
the running of the statute of limitations, but a motion to amend that isn’t granted
won’t, and this is precisely what happened when Plaintiffs squandered their
chances to timely enter into a tolling agreement or timely propose a reasonable
amendment and ended up withdrawing their doomed, over-inclusive amendments.
. . . Plaintiffs’ new request to amend was therefore untimely as to federal
statutory counts -- the 90 day limitations periods expired in late February 2016 -and the proposed amendment did not relate back under Rule 15. . . . Plaintiffs
took a calculated risk in not engaging in discussions about a tolling agreement and
then allowing the limitations periods to run while refusing to let go of their state
law claims. They took a chance, and they lost.
Motion to Reconsider Response at 5.
Sandia Labs then turns to its legal argument and states:
Without taking a definitive position on which standard actually applies, Plaintiffs
invoke both Rule 59(e) and the Court’s inherent authority to review interlocutory
matters. Sandia’s view is that the standard set forth in New Mexico ex rel.
Balderas v. Valley Meat Co., No. CIV 14-1100 JB/KBM, 2015 U.S. Dist. Lexis
175064 (D.N.M. Dec. 14, 201[5)], is probably the better fit, but the point is
academic. Under no standard are Plaintiffs entitled to the relief they seek.
Motion to Reconsider Response at 5-6. According to Sandia Labs,
[a]ll of Plaintiffs’ arguments, however, including their position on equitable
tolling . . . , collapse under the following proposition of law: a motion to amend
that is not granted does not toll the limitations period. Accordingly, when
Plaintiffs chose to withdraw their February 10, 2016 [Motion for Leave to
Substitute Second Amended Complaint], they deprived themselves of the ability
to argue that federal statutory claims were timely because the limitations periods
expired in late February 2016. When the August 31, 2016 [Proposed Third
Amended Complaint] did not relate back under Rule 15 -- a determination as to
which Plaintiffs do not seek reconsideration -- the Court correctly found that their
claims were time barred.

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Motion to Reconsider Response at 8. Sandia Labs thus contends that the effect of Benavidez’
withdrawal of the Motion for Leave to Substitute Second Amended Complaint “is not a new
issue in this case,” and that “there was no error or injustice in the Court’s ruling that Ms. Baca,
Ms. Ortiz and Ms. Luna-Casias are late.” Motion to Reconsider Response at 8. It is Sandia
Labs’ position, therefore, that a motion to reconsider is inappropriate, because “the parties have
already had full and fair opportunity to brief the issue raised by their current motion, and the
Court has addressed it.” Motion to Reconsider Response at 8-9. Sandia Labs specifically points
to the fact that, at the hearing on August 25, 2016, “Sandia explained on the record that if the
[Motion for Leave to Substitute Second Amended Complaint] was denied, a new proposed
amended complaint with federal claims would at that point be outside of the statutes of
limitations,” and that Benavidez “did not even attempt to address the statute of limitations bar” in
her Motion to Withdraw and Amend. Motion to Reconsider Response at 9. Further, Sandia
Labs asserts:
In its brief filed on September 23, 2016, Sandia acknowledged the “deemed filed”
principle regarding motions to amend under which an amended complaint, for
statute of limitations purposes, is deemed filed when the motion is filed rather
than when it is granted -- but only if it is granted. (. . . citing Koch v. Shell Oil
Co., 8 F. Supp. 2d [at] 1268[]). Sandia then explained, “To the extent Ms. Baca,
Ms. Luna-Casias, and Ms. Ortiz will be tempted to argue that the filing date
should really be deemed that of their [Motion for Leave to Substitute Second
Amended Complaint] . . . filed on February 20, 2016, such argument is laid to rest
by Angles v. Dollar Tree Stores, Inc., No. 10-1723, 2012 U.S. App. Lexis 19289
(4th Cir. Sept. 13, 2012)(in case involving serial attempts to amend, Title VII’s
limitations period not tolled by motion to amend that was not granted).” . . . At
the hearing on September 29, 2016, Sandia made [the] same point: “[Y]ou can’t
toll a statute with a motion to amend that isn’t granted . . . and that’s what we
have here.” . . . Counsel’s recollection is that specific reference was made to the
Angles case in open court.
Motion to Reconsider Response at 9.
Sandia Labs next addresses in more detail its contention that a “motion to amend that is

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not granted will not toll the statute,” stating initially that “there is a small body of federal case
law on the effect of a motion to amend that is denied or withdrawn upon a statute of limitations.”
Motion to Reconsider Response at 10. Sandia Labs reiterates, however, that, “of the law that
exists, the cases are uniform in the outcome” and that the Court is already apprised of Angles v.
Dollar Tree Stores, Inc., where “Title VII counts were timely when the plaintiffs moved to
amend, but [when that] motion was not granted, [] the Title VII counts could not be brought.”
Motion to Reconsider Response at 10. In addition to that case, Sandia Labs cites to United
States ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293 (5th Cir. 2003), where the United
States Court of Appeals for the Fifth Circuit concluded that a “timely but failed attempt to amend
did not stop the clock” on the limitations period for an ADEA claim. Motion to Reconsider
Response at 10. Sandia Labs also cites to Goldblatt v. National Credit Union Administration,
11-CV-334, 2011 U.S. Dist. Lexis 103880 (D. Conn. Sept. 14, 2011), aff’d, No. 11-4307, 2012
U.S. App. Lexis 23110 (2d Cir. Nov. 9, 2012), where the district court concluded that “the
limitations period expired . . . because the previous motion to amend had been denied.” Motion
to Reconsider Response at 11. According to Sandia Labs, then, “a motion to amend that is not
granted does not toll the limitations period.” Motion to Reconsider Response at 11.
Sandia Labs also asserts that Benavidez only cites “cases for the uncontested proposition
that an amended complaint is ‘deemed filed’ on the date the successful motion to amend was
filed. They cite nothing supporting the idea that an amended complaint is ‘deemed filed’ on the
date of an unsuccessful motion to amend.” Motion to Reconsider Response at 11. This notion is
important, Sandia Labs argues, because, “[i]f the underlying motion to amend is denied -- or
withdrawn -- the amended complaint is not deemed filed on any date because it is never filed. It
therefore has no legal effect and cannot satisfy a statute of limitations.” Motion to Reconsider

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Response at 11. Sandia Labs elaborates on the legal effect of Benavidez’ withdrawal of her
Motion for Leave to Substitute Second Amended Complaint, stating that her conduct
is actually very similar to a complaint that is withdrawn or a motion to intervene
that is denied. In each case, the relief requested therein is not granted. The [Fifth
Circuit] court in [United States ex rel. Mathews v. HealthSouth Corp.] explained
that a withdrawn or denied document has “no legal effect. Without legal effect, it
cannot toll the statute of limitations.” [United States ex rel. Mathews v.
HealthSouth Corp.], 332 F.3d at 296. The [United States ex rel. Mathews v.
HealthSouth Corp.] court added that this was not a situation in which a contrary
result would be harmless due to a lack of prejudice. Depriving the defendant of
the affirmative defense of the statute of limitations would cause obvious
prejudice, explained the Fifth Circuit. [United States ex rel. Mathews v.
HealthSouth Corp., 332 F.3d] at 296-97. The same, of course, is true in this case.
Motion to Reconsider Response at 12.
Last, Sandia Labs requests that “rule 54(b) judgment should not be entered due to the
three new cases” that the proposed Plaintiffs have recently filed in federal court. Motion to
Reconsider Response at 12. According to Sandia Labs, the proposed “Plaintiffs do not cite any
law . . . nor do they really make an argument, so Sandia will address the matter only briefly to
explain that with the pendency of the three new lawsuits, it seems inappropriate to issue Ms.
Baca, Ms. Ortiz, and Ms. Luna-Casias a ticket to the Tenth Circuit,” because, “under Rule 54(b),
there is a ‘just reason for delay.’” Motion to Reconsider Response at 12-13. Sandia Labs
indicates that it
would indeed like this Court to issue a final judgment in its favor against Ms.
Baca, Ms. Ortiz, and Ms. Luna-Casias once and for all, and Sandia does believe
that would be warranted, albeit not necessary because the Court’s January 17,
2017 [Amendment MOO] appears to be “final in the sense that it is an ultimate
disposition of an individual claim entered in the course of a multiple claims
action.”
Motion to Reconsider Response at 13 (quoting Oklahoma Turnpike Authority v. Bruner, 259
F.3d 1236, 1242 (10th Cir. 2001)). Sandia Labs also indicates:
Ms. Baca, Ms. Ortiz, and Ms. Luna-Casias have promised Sandia that they will
- 50  

dismiss their separate lawsuits upon this Court’s decision on their Motion to
Reconsider no matter what that decision is, but they have not done so yet. In the
present posture, Sandia would be faced with defending against Ms. Baca, Ms.
Ortiz, and Ms. Luna-Casias’s allegations in both the district court and the Tenth
Circuit, so Sandia opposes Rule 54(b) relief at this time. Sandia is willing to
reevaluate its opposition after dismissal with prejudice of Baca v. Sandia, CIV 171088 WPL/LF, Ortiz v. Sandia, No. CIV 17-107 SCY/WPL, and Luna-Casias v.
Sandia, No. CIV 17-111 SMV/LF.
Motion to Reconsider Response at 13. Sandia Labs concludes by reasserting:
Sandia has lost count of how many opportunities Plaintiffs had to file an
appropriate, timely complaint. The Court did not err in finding that time had
expired, there has not been a change in the law, and no new evidence has
emerged. The issue regarding the effect of a withdrawn motion to amend has
been briefed by Sandia and addressed by the Court, and Plaintiffs had a full and
fair opportunity to be heard. Plaintiffs still present no authority and no
compelling arguments for the Court to reverse its decision that Ms. Baca, Ms.
Ortiz, and Ms. Luna-Casias’s proposed amendment was untimely, so their request
for reconsideration of that determination should be denied.
Motion to Reconsider Response at 13-14.
17.

The Motion to Reconsider Reply.

Benavidez replied with her Reply in Support of Plaintiff’s Motion for Partial
Reconsideration of this Court’s January 17, 2017 Memorandum Opinion and Order, filed March
2, 2017 (Doc. 91)(“Motion to Reconsider Reply”).

In the Motion to Reconsider Reply,

Benavidez begins by providing “a more detailed factual recitation in order to respond to and
provide an additional perspective on Defendant’s perception of this case’s development.”
Motion to Reconsider Reply at 1-2. Benavidez explains that she brought suit against Sandia
Labs for the “same or related conduct” as the proposed Plaintiffs and that she individually filed a
pro se Complaint in state court, and Sandia Labs “removed Plaintiff’s complaint to this Court
and moved to dismiss and argued in pertinent part that the federal enclave doctrine precluded
Plaintiff’s state law claims.” Motion to Reconsider Reply at 2. Benavidez states that, at this
point, she attempted to stay her proceedings “until all claims, including the claims of other
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plaintiffs, completed the administrative process and until the motion to dismiss was decided,”
and that, in its briefing on her motion for a stay, Sandia Labs stated: “In the event that all
administrative remedies for the pending charges are exhausted before the court decides the
Motion to Dismiss, the parties could agree to toll the filing periods as necessary to allow the
Court time to issue a decision.” Motion to Reconsider Reply at 2. Apparently, Benavidez
explains, she “informed Defendant on January 19, 2016 that she would either file an amended
complaint or [the proposed] Plaintiffs would file a separate lawsuit and attached drafts of the
amended complaint and separate lawsuit,” and Sandia Labs responded that, “[o]n the question of
whether this should be one lawsuit or two, Sandia’s position is that a single lawsuit seems more
appropriate.” Motion to Reconsider Reply at 2 (internal quotation marks and citation omitted).
Benavidez maintains that, at the January 20, 2016, hearing, she “notified the Court about the
additional plaintiffs and the possibility for separate lawsuits or amendment of the current
lawsuit,” and that Sandia Labs again indicated preference for “one lawsuit.”

Motion to

Reconsider Reply at 2. Benavidez explains that, on February 10, 2016, she filed the Motion for
Leave to Substitute Second Amended Complaint, adding the proposed Plaintiffs and addressing
“other pleading deficiencies,” because the ninety-day period for the proposed Plaintiffs to bring
their federal claims “was set to expire on February 28, 2016.” Motion to Reconsider Reply at 23. Sandia Labs opposed the Motion for Leave to Substitute Second Amended Complaint,
Benavidez explains, because Sandia Labs anticipated a ruling from the Court -- in what would be
the Preemption MOO -- regarding dismissal of Benavidez’ state law claims. See Motion to
Reconsider Reply at 3. When the Court held a hearing on May 18, 2016, Benavidez explains,
the Court and the parties “attempted to reach an agreement to apply the Court’s impending
dismissal order to the [Proposed Second Amended Complaint]” that ultimately resulted in

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Benavidez requesting permission to filing the Supplemental Briefing, which Benavidez says she
intended to use to alter the Proposed Second Amended Complaint as to Benavidez’ IntentionalInfliction-of-Emotional-Distress claim.

Motion to Reconsider Reply at 3.

Next, however,

Benavidez states that the Court issued the Preemption MOO, dismissing all of Benavidez’ statelaw-based claims, causing Benavidez to instead file the Supplemental Briefing to only “note[]
numbering changes, plead[] facts related to grievances, and clarify the punitive damages claim. .
. . Plaintiff did not remove the dismissed state law claims for the new proposed plaintiffs [] to
preserve the record for any appeal.” Motion to Reconsider Reply at 3. Here, Benavidez
provides that, to clarify her perception of the events,
[the Proposed Second Amended Complaint] was intended to bring all claims on
behalf of the new plaintiffs. In hindsight, the Court and Defendant seem to
consider the [S]upplemental [B]riefing to be Plaintiff’s opportunity to eliminate
the state law claims for Plaintiff Benavidez and abandon those claims for [the
proposed] Plaintiffs. Plaintiff intended for the [S]upplemental [B]riefing to be a
chance to argue that the IIED facts pleaded in the [Proposed Second Amended
Complaint] cured any pleading deficiencies pointed out by the Court in the June
2016 [Preemption MOO]. The Court’s June 2016 [Preemption MOO], however,
was clear that the IIED claim would not survive because of the federal enclave
doctrine.
Motion to Reconsider Reply at 4.
At this point, Benavidez asserts:
Plaintiff did not expect or intend for the Court to address the state law claims
again for [the proposed] Plaintiffs. At the August 25, 2016 hearing, however, the
Court indicated it would be necessary to re-visit the state law claims, because
Plaintiff did not remove them from the [Proposed Second Amended Complaint].
Plaintiff explained that she had asked Defendant to stipulate to entry of the
[Proposed Second Amended Complaint] and immediate dismissal of the state law
claims, and she proposed the same procedure to the Court. . . . Plaintiff
repeatedly stipulated to the immediate dismissal of the state law claims as to
[proposed] Plaintiffs. In the May 2016 hearing, when the Court suggested
applying the dismissal order to the [Proposed Second Amended Complaint],
Plaintiff’s only objection related to the facts supporting the IIED claims. At the
end of the August 25, 2016 hearing, the Court indicated the [Motion for Leave to
Substitute Second Amended Complaint] would be denied, “as to the way it was
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filed.”
Motion to Reconsider Reply at 4. Benavidez then states that she, “mindful of the need to
maintain continuity of filing, filed Plaintiff’s Motion to Withdraw [and] Amend,” Motion to
Reconsider Reply at 4, and that her filing the Motion to Withdraw and Amend was not the
product of “a problem that Plaintiffs created for themselves,” as Sandia Labs argues, but instead
“the product of a misunderstanding about the purpose of the [S]upplemental [B]riefing,” Motion
to Reconsider Reply at 4-5. Benavidez further explains that the Motion to Withdraw and Amend
served the purpose, in her opinion, of relieving the Court of the work it would need to do in order
to grant in part and deny in part the Motion for Leave to Substitute Second Amended Complaint
as to the state claims that the Court in the Preemption MOO had already concluded were
preempted. See Motion to Reconsider Reply at 5.
Benavidez then makes her legal argument, stating essentially:
The [Proposed Third Amended Complaint] should be deemed filed February 10,
2016, because the [Motion for Leave to Substitute Second Amended Complaint]
and the Motion to Withdraw and [Amend] tolled the 90-day period until the entry
of the January 2017 [Amendment MOO]. The January 2017 [Amendment MOO]
either stopped the tolling period or caused the time to expire, and Plaintiff asks
the Court to reconsider that result based on manifest injustice.
Motion to Reconsider Reply at 5-6. Benavidez suggests:
First, the Court must decide whether any event stopped or negated the tolling
begun by the February 10, 2016 [Motion for Leave to Substitute Second
Amended Complaint]. Second, the Court may consider whether the time
remaining on the 90-day period continued to tick after denial of the [Motion for
Leave to Substitute Second Amended Complaint]. Defendant offers no authority
on the first point, whether the Motion to Withdraw and [Amend] stopped and
negated the tolling. Defendant’s authority on the second point -- whether time
continued to tick -- is unpersuasive under these circumstances. Plaintiff therefore
requests this Court grant the Motion for Partial Reconsideration and rule that the
[Motion to Withdraw and Amend], filed on August 31, 2016, allows the Second
Plaintiffs to pursue their claims within this lawsuit. Alternatively, this Court
should enter Judgment as to [the proposed] Plaintiffs.

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Motion to Reconsider Reply at 6. Benavidez argues that the Motion to Withdraw and Amend
did not have the effect of stopping or negating the tolling of the limitations period which she
argues was started by her filing of the Motion for Leave to Substitute Second Amended
Complaint on February 10, 2016. See Motion to Reconsider Reply at 6. Benavidez asserts that,
in relevant part, the United States Court of Appeals for the Tenth Circuit “has indicated only that
a complaint is not ‘deemed filed’ if a plaintiff abandons a claim by motion to dismiss without
prejudice or if a motion to intervene is denied.” Motion to Reconsider at 6 (citing Brown v.
Hartshorne Pub. Sch. Dist. # 1, 926 F.2d 959, 960 (10th Cir. 1991); Simons v. Southwest PetroChem, 28 F.3d 1029 (10th Cir. 1994); McIntosh v. Boatman’s First Nat’l Bank, No. 95-5260,
1996 U.S. App. LEXIS 30913 (10th Cir. 1996)). Thus, Benavidez’ argument is that a motion to
withdraw and amend is different than a motion to dismiss without prejudice and a motion to
intervene, and that the Tenth Circuit has not foreclosed tolling in the face of a motion to
withdraw and amend. See Motion to Reconsider Reply at 7. Benavidez states:
A Court’s order on a motion to intervene is final and appealable, and intervention
has criteria of its own under Fed. R. Civ. P. 24. A motion to dismiss without
prejudice is an abandonment of claims. A motion to amend, however, is an
attempt to alter existing claims -- whether to add facts, legal substance, or even
parties. A denial of a motion to amend, which is generally not final or
abandonment, should not be treated as a motion to intervene or motion to dismiss
without prejudice. Plaintiff did not abandon the [Motion for Leave to Substitute
Second Amended Complaint]. The Court did not deny the [Motion for Leave to
Substitute Second Amended Complaint] until January 17, 2017. Time therefore
did not run out before, or cease to toll until, January 17, 2017.
Motion to Reconsider Reply at 7.

Benavidez then concedes that Sandia Labs argues,

alternatively, that the Motion to Withdraw and Amend “stopped and negated the tolling effect of
the February 10, 2016 [Motion for Leave to Substitute Second Amended Complaint] and cites
cases indicating that a motion to amend does not toll the 90-day period unless it is granted.”
Motion to Reconsider Reply at 7. Benavidez ultimately argues that the “Defendant has provided
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no authority -- either before the January 2017 [Amendment MOO] or after -- that the Motion to
Withdraw and [Amend] acted as a denial or abandonment of the amendment request.” Motion to
Reconsider Reply at 9. Benavidez also argues:
Defendant’s cases do not address the effect the Motion to Withdraw and [Amend]
had on the tolling of the 90-day period. Instead, the cases address whether a time
period can be considered to have tolled if the motion that initiated the tolling is
not granted. The concept of “tolling” generally starts and stops the statutory clock
based on an event and begins to run again on a later event.
Motion to Reconsider Reply at 9. Here, according to Benavidez, the
Plaintiff filed the [Motion for Leave to Substitute Second Amended Complaint],
with 18 days remaining on the statutory clock, in order to bring [the proposed]
Plaintiffs into the lawsuit and to raise the state-court pro se complaint to federal
pleading standards. Plaintiff understood the Court and Defendant to prefer the
amendment rather than the separate complaint procedure, and as a result, Plaintiff
did not formalize Defendant’s offer (in the response to Plaintiff’s Motion to Stay)
to toll the 90-day period. Defendant’s response in opposition to the [Motion for
Leave to Substitute Second Amended Complaint] raised no issues of timeliness,
despite its being filed on March 7, 2016, a week after the natural, un-tolled,
expiration of the 90-day period. The expiration argument was not raised until the
end of August and only when [the proposed] Plaintiffs could take no remedial
action. Under these circumstances, [the proposed] Plaintiffs should be credited
the time remaining on the 90-day clock and the [Proposed Third Amended
Complaint], with respect to [the proposed] Plaintiffs, would no longer be futile for
untimeliness.
Motion to Reconsider Reply at 10.
Benavidez next argues regarding her request for final judgment as to the proposed
Plaintiffs, asserting that the “January 2017 Amendment MOO is a final order as to [the proposed]
Plaintiffs because it ends the litigation, and Plaintiff requests this Court to reconsider the January
2017 [Amendment MOO] pursuant to Fed. R. Civ. P[.] 1-059(e) [sic] in order to prevent
manifest injustice.” Motion to Reconsider Reply at 10. Benavidez prefers that the Court grant
her Motion to Reconsider, but if it does not grant the Motion to Reconsider, she avers that the
proposed Plaintiffs will dismiss their federal complaints filed subsequent to the Amendment

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MOO and pursue their claims in the form of appellate relief premised on this Court’s grant of
final judgment as to them. See Motion to Reconsider Reply at 11. Benavidez also argues that, if
the Court thinks the Amendment MOO was interlocutory as to proposed Plaintiffs, those factors
weigh in her favor as well with respect to a grant of reconsideration. See Motion to Reconsider
Reply at 11-12.
18.

The March 16, 2017, Hearing.

The Court held a hearing on March 16, 2017. See Transcript of Hearing at 1:1 (taken
March 16, 2017)(“March Tr.”). The Court began the hearing by giving the parties its thoughts
regarding the Motion to Reconsider, providing:
[W]hy don’t we take up the motion for partial reconsideration first. I’ll hear what
anybody wants to say on this motion. I did read all the briefing and all the
attachments to the briefing. I didn’t really see any arguments that I didn’t
carefully consider the first time around[. A]nd understanding the consequences of
what the Court is doing with its opinion[,] I always like to get things decided on
the merits rather than on procedural matters, but in this case it seems to me I’d
have to be overlooking some law to allow the plaintiffs to bring in Ms. Baca . . .
and Ms. Ortiz and Ms. Luna-Casias, so I’m inclined to still deny the motion. I’m
also not inclined to start piecemeal[ing] this, so I think I would not certify any
order, interlocutory order at this point for the Tenth Circuit review of these three
new plaintiffs [who] have filed separate actions[,] and maybe somebody will look
at their situation differently than I have looked at it. But it seems to me that []
probably the way this should proceed is [to] bring this to conclusion somehow
[and] then that issue of the other three can proceed here or in separate cases. So
I’m inclined to deny the motion but those are my thoughts coming in.
March Tr. at 3:18-4:19 (Court). Benavidez argued that the only issue that she was arguing as
grounds for reconsideration regards which event “stopped past tolling and prevented future
tolling” after the proposed Plaintiffs had started tolling the limitations period by Benavidez’
filing of her Motion for Leave to Substitute Second Amended Complaint. March Tr. at 5:2-6
(Wray). In Benavidez’ estimation, the Amendment MOO suggests that the Court considered the
event to be the Motion to Withdraw and Amend, and she maintained that the Motion to

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Withdraw and Amend “did not have the effect of either an abandonment of the proposed
amended complaints as they had developed over the months, or a denial of the motion to, or a
denial of the original motion to amend.” March Tr. at 5:6-15 (Wray). Benavidez then addressed
that the Court gave an “oral indication at the August 25 hearing that the [m]otion amendment as
filed would be denied,” and how she chose to beat the Court to its issuance of an opinion and
thereby “voluntarily withdrew that proposed amended complaint in order to address the Court’s
concerns that we discussed in August at the August 25 hearing.” March Tr. at 5:15-25 (Wray).
Benavidez reiterated that her argument is that the Motion to Withdraw and Amend did not
abandon the substance of the Motion for Leave to Substitute Second Amended Complaint or the
amendment process in general, “and because plaintiff viewed the issue in the motion to withdraw
and substitute as whether there had been a denial of the motion to amend, plaintiff did not
address whether the motion to withdraw itself somehow stopped the tolling.” March Tr. at 6:110 (Wray). Benavidez then asserted that her position is that “the January 17 opinion and order
assumes that the motion to withdraw stopped and [e]ra[]sed the tolling that had been happening
since February . . . [a]nd Plaintiff wanted to bring to the court’s attention additional analysis on
that topic.” March Tr. at 6:10-15 (Wray).
Benavidez then argued that the proposed Plaintiffs filed their own federal complaints
after the Court’s Amendment MOO, because they were operating on the theory that the
Amendment MOO had ceased the tolling period, but regardless they still had time on the clock,
because the Motion for Leave to Substitute Second Amended Complaint was filed before the
limitations period had run. See March. Tr. at 6:15-7:2 (Wray). Regarding the status of those
complaints in the future, and her thinking in choosing to file them, Benavidez explained that,
if this Court denies the . . . motion to reconsider[, t]hat is a ruling that those 3
plaintiffs’ claims expired and it’s necessarily a ruling that they expired in
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February 2016[,] and those complaints no longer have a good faith basis. If this
court[] grants [the] motion to partially reconsider[] and . . . permitted the plaintiffs
to join this lawsuit those complaints also have no forward momentum[.] [I]n any
case as we’ve stated both to defendants informally and in our pleadings [those]
complaints will be dismissed [r]egardless the outcome of the motion to partially
reconsider. But without having filed them, the argument that time remained on
the clock, that argument would be futile because time would have ticked out at the
beginning of February.
March Tr. at 7:3-18 (Wray). Accordingly, Benavidez argued that, “with respect to those three
plaintiffs, the order, the January 17 order is final, it disposes of their claims and they would like
the opportunity to appeal if they choose.” March Tr. at 8:1-4 (Wray). Benavidez also supposed
that “[i]t doesn’t appear that defendants oppose judgment on behalf of those plaintiffs so long as
they don’t have to litigate the claims in two separate courts in district court and in the appellate
courts.” March Tr. at 8:5-9 (Wray). The Court commiserated, stating that
I probably should have said on that appeal[,] right [now] it seemed to me it was
probably a little premature. I don’t have any problem if the parties are in
agreement that now is the time [to] enter some[] order[,] I don’t have any problem
with that. I’m not trying to make it difficult for you to appeal my order. But I do
think right at the moment with those other cases it may [be we] to need to wait
until those are cleared out. Then it’s not premature anymore.
March Tr. at 8:19-9:3 (Court). Benavidez then inquired: “[I]s the Court indicating that if we do
dismiss those complaints that we can get a judgment on those three plaintiffs in this case?”
March Tr. at 9:19-22 (Wray). The Court answered that it was:
saying that if I denied this motion for reconsideration and you went and dismissed
those three cases, then they wouldn’t have a problem with that and that sounded
reasonable to me and I was just saying I don’t have a problem with that. If
they’re saying they still oppose it, then I guess I need to hear why before I say,
yeah, I’d still go ahead and enter an appealable order at that time.
Mar. Tr. at 9:24-10:6 (Court). The Court indicated that its further understanding was that, should
the Court deny the Motion to Reconsider, and the proposed Plaintiffs then dismiss their other
federal complaints -- assuming Sandia Labs’ non-opposition -- Benavidez need only file with the

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Court an “unopposed motion and proposed order that y’all want to then use to appeal.” March
Tr. at 10:21-22 (Court).
The Court then pressed Benavidez whether “you have one or two or three things that you
think I didn’t review, I think I thought hard about the consequences of what I was doing, but is
there anything that you think I have not addressed yet that you’re raising here that I haven’t
addressed before.” March Tr. at 11:1-6 (Court). Benavidez responded that, first, after reading
the Amendment MOO, “the plaintiff realized that, again, we don’t exactly know what the
triggering event was that stopped future and past tolling.”

March Tr. at 11:8-11 (Wray).

Benavidez also identified that she was not sure “whether the court’s oral ruling constituted a
denial,” when the Court gave its inclination to deny the Motion for Leave to Substitute Second
Amended Complaint -- the event precipitating her filing of the Motion to Withdraw and Amend - and that a relevant issue that “was not addressed is whether a motion to withdraw and substitute
really has the [e]ffect[]” of abandoning the Motion for Leave to Substitute Second Amended
Complaint. March Tr. at 11:22-12:3 (Wray). Benavidez asserted that she did not seek to
abandon anything, but instead -- in her estimation -- the “mechanism of withdrawal was to
reduce the workload for the Court.” March Tr. at 12:14-17 (Wray). Benavidez also argued that
withdrawal should have a different legal effect from denials of motions to intervene or dismiss
without prejudice, and that the Motion to Withdraw and Amend should be considered as only
substituting a new complaint, and not abandoning the Proposed Second Amended Complaint
altogether. See March Tr. at 12:17-15:4 (Wray).
Sandia Labs then argued and addressed why “what occurred” should not constitute a
“break in the tolling.” March Tr. at 15:14-20 (Court, Viets). Sandia Labs cited the Tenth
Circuit’s unpublished opinion in McIntosh v. Boatman’s First Nat’l Bank, which Sandia Labs

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explained advised: “It’s not . . . the filing of the motion which tolls the limitation period, rather
than it’s the fact that the motion is granted.” March Tr. at 15:25-16:3 (Viets). Sandia Labs
provided:
So I’ve heard it said a number of times . . . what was the triggering event, when
was there tolling, when wasn’t there tolling. Unless and until a motion to amend
is granted, there isn’t any tolling. So this question about well, what’s wrong with
you know just viewing it as one continuation, and these claims have been pending
the whole [time] -- or [were] teed up in a proposed amended complaint in some
fashion or other, both before the limitations period ran and after. What’s wrong
with looking at it that way? The problem is the motion under which those claims
were sought to be added to the case was withdrawn. So it’s like it never
happened.
March Tr. at 16:3-16 (Viets). Sandia Labs reiterated that it “cited the Court to a number of cases
dealing with that proposition which [are] really similar to McIntosh, so unless and until there is a
motion to amend that’s actually granted, there is no tolling.” March Tr. at 16:16-20 (Viets).
Sandia Labs then identified that the problem Benavidez had was her choice to focus on the state
law claims and that they ultimately “lost any right to claim timeliness under the deemed filed
doctrine” by withdrawing the motion which the Court said it was going to deny. March Tr. at
17:1-18:7 (Viets). Sandia Labs also argued regarding the concept of abandonment and discussed
Benavidez’ comparison of withdrawal with voluntary dismissal, and suggested that, in voluntary
dismissal cases in the Tenth Circuit the Tenth Circuit said “well, once you do that, it’s as if those
complaints were never filed so they don’t stop the running of any statute of limitations.” March
Tr. at 19:20-22 (Viets). Regarding Benavidez’ attempt to distinguish that case law, Sandia Labs
contended that “intent is not at issue. The question is whether a motion to amend has been
denied or not granted or withdrawn, whatever the reason; if it’s not granted it doesn’t have any
effect, and so I’ll just end with where I started. That’s the whole holding of the McIntosh case.”
March Tr. at 20:16-21 (Viets). Last, regarding Benavidez’ request for an appealable judgment,

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Sandia Labs stated:
[T]he Court understands Sandia’s position correctly. We don’t oppose entry of
final judgment as to the three would be plaintiffs, they never were plaintiffs but I
suppose that doesn’t prevent entry of a judgment against them but only in due
course. I can’t stand here in good conscience knowing that they each have their
own three lawsuits pending in front of three other judges now in this district and
[say] let’s go ahead and certify it so the Tenth Circuit can hear the same issues
that’s going to be in front of 3 other judges here[,] I think that’s inappropriate.
March Tr. at 21:1-11 (Viets). Sandia Labs indicated, in conclusion, that, if the Court denies the
Motion to Reconsider, and the proposed Plaintiffs dismiss their other federal complaints, it did
not “know of any reason right at the moment that [it] could not cooperate with the plaintiffs to
put together a judgment so they could appeal this issue.” March Tr. at 21:25-22:4 (Court, Viets).
Benavidez argued in reply:
McIntosh reads [that] it is not the filing of the motion which tolls the limitation
period rather it is the fact that the motion is granted establishing the intervenor as
a proper party to the lawsuit, which renders the subsequent complaint timely.
And that’s really our question. The motion to amend [--] it wasn’t not granted. It
wasn’t denied, it wasn’t denied until January of 2017. Nothing in this case in my
reading of this case indicates that a motion to withdraw and simultaneously
substitute with another motion is the same thing as the court taking the action to
not grant it. The motion wasn’t denied. It wasn’t denied until January, and we
would like the Court to consider those cases in that light.
March Tr. at 22:12-25 (Wray). In conclusion, Benavidez reiterated:
[B]y August, it was removal of the state law claims. That was the issue. And
that’s what we did. And there was no reason to stop the tolling that started. If the
motion had been granted, we would look back and say, yes, it[] was tolled. Now
[if] the motion [had] been denied in January [then] we look back and say, no, it[]
was never tolled. It’s sort of a metaphysical scenario where something happened
depending on a later action. But plaintiff’s position is along the way there was
nothing that happened, as happened in these other cases, that would have caused
the tolling to not happen until the January 2017 order.
March Tr. at 23:22-24:9 (Wray). The Court then reiterated its inclination that
I probably have given it the best shot I can, and it’s probably time to let the Tenth
review what I’ve done [but] let me take a look at it. I think I tried to think
through all the scenarios when we wrote the first opinion back in January, but I’ll
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take a look at it.
March Tr. at 24:15-23 (Court).
LAW REGARDING RULE 12(b)(6)
Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The nature of a Rule 12(b)(6) motion
tests the sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The sufficiency
of a complaint is a question of law, and, when considering a rule 12(b)(6) motion, a court must
accept as true all well-pled factual allegations in the complaint, view those allegations in the light
most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff’s
favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a
reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would
the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098
(10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all
well-pled factual allegations in a complaint and view these allegations in the light most favorable
to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006))).
A complaint need not make detailed factual allegations, but a “pleading that offers labels
and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. at
555)(internal quotation marks omitted). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at
678. “Factual allegations must be enough to raise a right to relief above the speculative level, on

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the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell
Atl. Corp. v. Twombly, 550 U.S. at 555 (citation omitted).
To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient facts that,
if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v.
Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556).

“Thus, the mere

metaphysical possibility that some plaintiff could prove some set of facts in support of the
pleaded claims is insufficient; the complainant must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The Tenth
Circuit has stated:
“[P]lausibility” in this context must refer to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs “have not nudged their claims across the
line from conceivable to plausible.” The allegations must be enough that, if
assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for
relief.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citations omitted)(quoting Bell Atl.
Corp. v. Twombly, 550 U.S. at 570).
Although affirmative defenses must generally be pled in the defendant’s answer, not
argued on a motion to dismiss, see Fed. R. Civ. P. 8(c), there are exceptions where: (i) the
defendant asserts an immunity defense -- the courts handle these cases differently than other
motions to dismiss, see Glover v. Gartman, 899 F. Supp. 2d 1115, 1137-39, 1141 (D.N.M.
2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223 (2009); Robbins v. Oklahoma,
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519 F.3d at 1242); and (ii) where the facts establishing the affirmative defense are apparent on
the face of the complaint, see Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965)(“Under
Rule 12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to
state a claim. If the defense appears plainly on the face of the complaint itself, the motion may
be disposed of under this rule.”). The defense of limitations is the affirmative defense that is
most likely to be established by the uncontroverted facts in the complaint. See 5 Charles Alan
Wright, Arthur R. Miller, Mary Kay Kane, A. Benjamin Spencer, Richard L. Marcus & Adam N.
Steinman, Federal Practice & Procedure: Civil § 1277, at 643 (3d ed. 2016). If the complaint
sets forth dates that appear, in the first instance, to fall outside of the statutory limitations period,
then the defendant may move for dismissal under rule 12(b)(6). See Rohner v. Union Pac. R.R.
Co., 225 F.2d 272, 273-75 (10th Cir. 1955); Gossard v. Gossard, 149 F.2d 111, 113 (10th Cir.
1945); Andrew v. Schlumberger Tech. Co., 808 F. Supp. 2d 1288, 1292 (D.N.M.
2011)(Browning, J.). The plaintiff may counter this motion with an assertion that a different
statute of limitations or an equitable tolling doctrine applies to bring the suit within the statute;
the Tenth Circuit has not clarified whether this assertion must be pled with supporting facts in the
complaint or may be merely argued in response to the motion. Cf. Kincheloe v. Farmer, 214 F.2d
604 (7th Cir. 1954)(holding that, once a plaintiff has pled facts in the complaint indicating that
the statute of limitations is a complete or partial bar to an action, it is incumbent upon the
plaintiff to plead, either in the complaint or in amendments to it, facts establishing an exception
to the affirmative defense). It appears, from case law in several circuits, that the plaintiff may
avoid this problem altogether -- at least at the motion-to-dismiss stage -- by simply refraining
from pleading specific or identifiable dates, see Goodman v. Praxair, Inc., 494 F.3d 458, 465-66
(4th Cir. 2007); Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006); Harris v. New York,

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186 F.3d 243, 251 (2d Cir. 1999); Honeycutt v. Mitchell, 2008 WL 3833472 (W.D. Okla.
2008)(West, J.), and, although the Tenth Circuit has not squarely addressed this practice, the
Court has permitted this practice, see Anderson Living Trust v. WPX Energy Prod., LLC, 2014
WL 2750652, at *17, *37-39 (D.N.M. 2014)(Browning, J.).
LAW REGARDING MOTIONS TO AMEND
“While Rule 15 governs amendments to pleadings generally, rule 16 of the Federal Rules
of Civil Procedure governs amendments to scheduling orders.” Bylin v. Billings, 568 F.3d 1224,
1231 (10th Cir. 2009)(citing Fed. R. Civ. P. 16(b)). When a court has not entered a scheduling
order in a particular case, rule 15 governs amendments to a plaintiff’s complaint. See Fed. R.
Civ. P. 15. When a scheduling order governs the case’s pace, however, amending the complaint
after the deadline for such amendments implicitly requires an amendment to the scheduling
order, and rule 16(b)(4) governs changes to the scheduling order. See Bylin v. Billings, 568 F.3d
at 1231.
Rule 15(a) of the Federal Rules of Civil Procedure provides:
(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21
days after service of a motion under rule 12(b), (e), or (f),
whichever is earlier.
(2) Other Amendments. In all other cases, 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.

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Fed. R. Civ. P. 15(a)(bold and italics in original). Further, the local rules provide that, with
respect to motions to amend a pleading, “[a] proposed amendment to a pleading must accompany
the motion to amend.” D.N.M.LR-Civ. 15.1.
Under rule 15(a), the court should freely grant leave to amend a pleading where justice so
requires.

See In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. 571, 579-80 (D.N.M.

2010)(Browning, J.); Youell v. Russell, 2007 WL 709041, at *1-2 (D.N.M. 2007)(Browning, J.);
Burleson v. ENMR-Plateau Tele. Coop., 2005 WL 3664299, at *1-2 (D.N.M. 2005)(Browning,
J.). The Supreme Court has stated that, in the absence of an apparent reason such as “undue
delay, bad faith or dilatory motive . . . [,] 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.,” leave to amend should be freely given. Fomen v.
Davis, 371 U.S. 178, 182 (1962). See Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001); In
re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80.
A court should deny leave to amend under rule 15(a) where the proposed “amendment
would be futile.” Jefferson Cnty. Sch. Dist. v. Moody’s Investor’s Serv., 175 F.3d 848, 859
(10th Cir. 1999). See In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80. An
amendment is “futile” if the pleading, “as amended, would be subject to dismissal.” In re
Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80 (citing TV Commc’ns Network, Inc. v.
Turner Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992)). A court may also deny
leave to amend “upon a showing of undue delay, undue prejudice to the opposing party, bad faith
or dilatory motive, [or] failure to cure deficiencies by amendments previously allowed.” In re
Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579 (quoting Frank v. U.S. W., Inc., 3 F.3d
1357, 1365-66 (10th Cir. 1993)). See Youell v. Russell, 2007 WL 709041, at *2-3; Lymon v.

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Aramark Corp., 2009 WL 1299842 (D.N.M. 2009)(Browning, J.). The Tenth Circuit has also
noted:
It is well settled in this circuit that untimeliness alone is a sufficient reason to
deny leave to amend, see Woolsey v. Marion Laboratories, Inc., 934 F.2d 1452,
1462 (10th Cir. 1991); Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893
F.2d 1182, 1185 (10th Cir. 1990); First City Bank v. Air Capitol Aircraft Sales,
820 F.2d 1127, 1133 (10th Cir. 1987), especially when the party filing the motion
has no adequate explanation for the delay, Woolsey, 934 F.2d at 1462.
Furthermore, “[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, the motion to amend is subject to denial.”
Las Vegas Ice, 893 F.2d at 1185.
Frank v. U.S. W., Inc., 3 F.3d at 1365-66.6 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 Equip. Co., 451 F.3d at 1205 (citing Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st
Cir. 2004)). Undue delay occurs where the plaintiff’s amendments “make the complaint ‘a
moving target.’” Minter v. Prime Equip. Co., 451 F.3d at 1206 (quoting Viernow v. Euripides
Dev. Corp., 157 F.3d 785, 799-800 (10th Cir. 1998)). “[P]rejudice to the opposing party need
not also be shown.” Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d at 1185.
“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.” Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d at
1185 (quoting State Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405 (10th Cir. 1984)).
6

The Court notes that there is older authority in the Tenth Circuit that seems to be to the
contrary. See R.E.B., Inc. v. Ralston Purina Co., 525 F.2d 749, 751 (10th Cir. 1975)(“Lateness
does not of itself justify the denial of the amendment.”). Minter v. Prime Equipment Co. seems
to clarify that the distinction is between “delay” and “undue delay.” Minter v. Prime Equipment
Co., 451 F.3d at 1205-06. Delay is undue “when the party filing the motion has no adequate
explanation for the delay.” Minter v. Prime Equipment Co., 451 F.3d at 1206.
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Along the same vein, the court will deny amendment if the party learned of the facts upon which
its proposed amendment is based and nevertheless unreasonably delayed in moving to amend its
complaint. See Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994)(noting
motion to amend filed “was not based on new evidence unavailable at the time of the original
filing”).
Refusing leave to amend is generally justified 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. See Castleglen, Inc. v. Resolution
Trust Corp., 984 F.2d 1571, 1585 (10th Cir. 1993)(citing Foman v. Davis, 371 U.S. at 182).
Again, the matter is left to the Court’s discretion. See Frank v. U.S. W., Inc., 3 F.3d at 1365-66.
See Duncan v. Manager, Dep’t of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315 (10th
Cir. 2005)(quoting Frank v. U.S. West, Inc., 3 F.3d at 1365-66, and stating that resolving the
issue whether to allow a plaintiff to file a supplement to his complaint is “well within the
discretion of the district court”). “The . . . Tenth Circuit has emphasized that ‘[t]he purpose of
[rule 15(a)] is to provide litigants the maximum opportunity for each claim to be decided on its
merits rather than on procedural niceties.’” B.T. ex rel. G.T. v. Santa Fe Pub. Schs., 2007 WL
1306814, at *2 (D.N.M. 2007)(Browning, J.)(quoting Minter v. Prime Equip. Co., 451 F.3d
1196, 1204 (10th Cir. 2006)). “Specifically, the . . . Tenth Circuit has determined that district
courts should grant leave to amend when doing so would yield a meritorious claim.” Burleson v.
ENMR-Plateau Tel. Co-op., 2005 WL 3664299, at *2 (D.N.M. 2005)(Browning, J.)(citing
Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001)).

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THE 90-DAY PERIOD FOR FILING SUIT UNDER TITLE VII
Title VII requires an employee alleging discrimination to exhaust his or her
administrative remedies before filing an action in federal court. See 42 U.S.C. § 2000e-5(b).
The first step is the filing of a Charge of discrimination with the EEOC “by or on behalf of a
person claiming to be aggrieved, or by a member of the Commission.” 42 U.S.C. § 2000e-5(b).
Upon receiving a Charge, the EEOC must provide notice of the Charge to the employer,
investigate the validity of the claim, and, if the claim proves valid, attempt to remedy the
discrimination through “informal methods of conference, conciliation, and persuasion.” 42
U.S.C. § 2000e-5(b). If these efforts fail and the EEOC elects not to bring a lawsuit against the
employer, the employee receives notice of his or her right to sue, and has ninety days to file a
Title VII action. See 42 U.S.C. § 2000e-5(f)(1). The ninety-day period for filing suit under Title
VII normally begins running on the date the complainant receives actual notice of the right to
sue. See 42 U.S.C. § 2000e-5(f)(1). See also Williams v. S. Union Gas Co., 529 F.2d 483, 487
(10th Cir. 1976). Known as the “actual notice” rule, this rule is meant to protect a Title VII
complainant from losing “the right to sue because of fortuitous circumstances or events beyond
his or her control which delay receipt of the EEOC’s notice.” St. Louis v. Alverno Coll., 744
F.2d 1314, 1316 (7th Cir. 1984).
LAW REGARDING EQUITABLE TOLLING
The ninety-day period for filing a Title VII lawsuit is subject to equitable tolling. See
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Equitable tolling may apply
where litigants could not file suit because of an extraordinary event beyond his or her control.
See Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984). Generally, equitable tolling of a
statute of limitations applies only in “rare and exceptional circumstances.” Laurson v. Leyba,

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507 F.3d 1230, 1232 (10th Cir. 2007)(internal quotation marks omitted). “Generally, equitable
tolling requires a litigant to establish two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way.” Yang v. Archuleta,
525 F.3d 925, 928 (10th Cir. 2008)(internal quotation marks omitted). See Ocana v. Am.
Furniture Co., 2004-NMSC-018, ¶¶ 14-15, 91 P.3d 58 (“Equitable tolling typically applies in
cases where a litigant was prevented from filing suit because of an extraordinary event beyond
his or her control.”)(citing Martinez v. Orr, 738 F.2d at 1110). “Such extraordinary event[s]
include conduct by a defendant that caused the plaintiff to refrain from filing an action during the
applicable period.” Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007)(internal quotation
marks omitted). See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)(stating that the
equitable remedy “would be appropriate, for example, when a [plaintiff] is actually innocent,
when an adversary’s conduct -- or other uncontrollable circumstances -- prevents a [plaintiff]
from timely filing, or when a [plaintiff] actively pursues judicial remedies but files a defective
pleading during the statutory period.”); In re Drummond, 1997-NMCA-094, ¶ 13, 945 P.2d 457
(stating that “a party may be estopped from asserting a statute-of-limitations defense if that
party’s conduct has caused the plaintiff to refrain from filing an action until after the limitations
period has expired.”).
LAW REGARDING THE RELATION-BACK DOCTRINE
Rule 15(c) reads:
(1) When an Amendment Relates Back. An amendment to a pleading relates
back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations
allows relation back;

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(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out -- or attempted to be set
out -- in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not
be prejudiced in defending on the merits; and
(ii) knew or should have known that the action
would have been brought against it, but for a
mistake concerning the proper party’s identity.
Fed. R. Civ. P. 15(c).
Rule 15(c) provides that, where an amendment would add a party, “relation back” can
occur if the party to be added by the amendment “has received such notice of the initiation of the
action that the party would not be prejudiced in maintaining a defense on the merits.” Brown v.
Uniroyal, Inc., 108 F.3d 1306, 1307 (10th Cir. 1997). Relation back is dependent upon four
factors, all of which must be satisfied. Brown v. Uniroyal, Inc., 108 F.3d at 1307. The factors
are as follows: (i) the basic claim must have arisen out of the conduct set forth in the original
pleading; (ii) the party to be added must have received such notice that it will not be prejudiced
in maintaining its defense; (iii) that party must or should have known, that but for the mistake
concerning identity, the action would have been brought against it; and (iv) the second and third
requirement must have been fulfilled within the prescribed limitation. Brown v. Uniroyal, Inc.,
108 F.3d at 1307 (citing Schiavone v. Fortune, 477 U.S. 21, 29 (1986)). “Rule 15(c), which
exists to protect defendants from unfair prejudice caused by a plaintiff’s tardiness in naming
them, applies to pro se complaints as to any others.” Pierce v. Amaranto, 276 F. App’x 788, 792
(10th Cir. 2008). In Krupski v. Costa Crociere S.P.A., 560 U.S. 538 (2010), the Supreme Court

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held that “relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or
should have known, not on the amending party’s knowledge or its timeliness on seeking to
amend the pleading.” Krupski v. Costa Crociere S.P.A., 560 U.S. 553-54. The Supreme Court
explained:
[T]he question under Rule 15(c)(1)(C)(ii) is what the prospective defendant
reasonably should have understood about the plaintiff’s intent in filing the
original complaint against the first defendant. To the extent the plaintiff’s postfiling conduct informs the prospective defendant’s understanding of whether the
plaintiff initially made a “mistake concerning the proper party’s identity,” a court
may consider the conduct. Cf. Leonard v. Parry, 219 F.3d 25, 29 (1st Cir.
2000)(“[P]ost-filing events occasionally can shed light on the plaintiff’s state of
mind at an earlier time” and “can inform a defendant’s reasonable beliefs
concerning whether her omission from the original complaint represented a
mistake (as opposed to a conscious choice)”). The plaintiff’s postfiling conduct is
otherwise immaterial to the question whether an amended complaint relates back.
560 U.S. 553-54.
LAW REGARDING MODIFICATION OF SCHEDULING ORDERS
“The District Court has wide discretion in its regulation of pretrial matters.” Si-Flo, Inc.
v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir. 1990). Scheduling orders, however, “may be
modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Accord
Street v. Curry Bd. of Cty. Comm’rs, 2008 WL 2397671, at *6 (D.N.M. 2008)(Browning, J.).
The advisory committee notes to rule 16 observe:
[T]he court may modify the schedule on a showing of good cause if it cannot
reasonably be met despite the diligence of the party seeking the extension. Since
the scheduling order is entered early in the litigation, this standard seems more
appropriate than a “manifest injustice” or “substantial hardship” test. Otherwise,
a fear that extensions will not be granted may encourage counsel to request the
longest possible periods for completing pleading, joinder, and discovery.
Fed. R. Civ. P. 16(b)(4) advisory committee’s note to 1983 amendment.
The Tenth Circuit has held that the concepts of good cause, excusable neglect, and
diligence are related. “The Tenth Circuit . . . has recognized the interrelation between ‘excusable
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neglect’ and ‘good cause.’” Pulsecard, Inc. v. Discover Card Servs. Inc., 168 F.R.D. 295, 301
(D. Kan. 1996)(Rushfelt, J.)(citing In re Kirkland, 86 F.3d 172, 175 (10th Cir. 1996)). “Properly
construed, ‘good cause’ means that scheduling deadlines cannot be met despite a party’s diligent
efforts.” Street v. Curry Bd. of Cty. Comm’rs, 2008 WL 2397671, at *6. See Advanced Optics
Electronics, Inc. v. Robins, 769 F. Supp. 2d 1285, 1313 (D.N.M. 2010)(Browning, J.)(noting that
the “rule 16(b) good-cause inquiry focuses on the diligence of the party seeking [to] amend the
scheduling order.”). In In re Kirkland, the Tenth Circuit dealt with the definition of “good
cause” in the context of a predecessor to modern rule 4(m) of the Federal Rules of Civil
Procedure7 and noted:
[W]ithout attempting a rigid or all-encompassing definition of ‘good cause,’ it
would appear to require at least as much as would be required to show excusable
neglect, as to which simple inadvertence or mistake of counsel or ignorance of the
rules usually does not suffice, and some showing of ‘good faith on the part of the
party seeking the enlargement and some reasonable basis for noncompliance
within the time specified’ is normally required.
86 F.3d at 175 (emphasis in original)(quoting Putnam v. Morris, 833 F.2d 903, 905 (10th Cir.
1987))(internal quotation marks omitted). The Tenth Circuit explained that Putnam v. Morris

7

Rule 4(m) provides:

If a defendant is not served within 120 days after the complaint is filed, the court
-- on motion or on its own after notice to the plaintiff -- must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period. This subdivision (m)
does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).
Fed. R. Civ. P. 4(m). The Tenth Circuit in In re Kirkland interpreted rule 4(j), which was
substantially identical. See 86 F.3d at 174 (“Rule 4(j) requires the court to dismiss a proceeding
if service has not been made upon the defendant within 120 days after filing and the party
responsible for service cannot show good cause why it was not made.”).

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“thus recognized that the two standards, although interrelated, are not identical and that ‘good
cause’ requires a greater showing than ‘excusable neglect.’” In re Kirkland, 86 F.3d at 175.
Where a party is diligent in its discovery efforts and nevertheless cannot comply with the
scheduling order, the Court has found good cause to modify the scheduling order if the
requesting party timely brings forward its request. For example, in Advanced Optics Electronics,
Inc. v. Robins, the Court concluded that, where the defendant did not conduct discovery or make
any good-faith discovery requests, and where the defendant did not make efforts “diligent or
otherwise” to conduct discovery, the defendant did not, therefore, show good cause to modify the
scheduling order. 769 F. Supp. 2d at 1313 n.8. In contrast, in Street v. Curry Board Of County
Commissioners, the Court concluded that the plaintiff had “shown good cause for a delay in
seeking leave to amend,” because she “was diligent in pursuing discovery . . . [and] brought to
the Court’s attention her identification of an additional claim in a timely manner,” where she
discovered the claim through “documents provided in discovery.” 2008 WL 2397671, at *11.
The Court arrived at a similar determination in Abraham v. WPX Production, LLC, 2016 WL
548251 (D.N.M. 2016)(Browning, J.). The Court found good cause to amend a pleading when
the plaintiffs had a very short amount of time to amend the pleadings “even though discovery
had only just begun.” 2016 WL 548251, at *20. “The Plaintiffs may not have obtained or
reviewed all of the documents that might reveal their conspiracy claim’s existence before the
deadline to amend passed.” 2016 WL 548251, at *20. Furthermore, the delay was minimal and
would not prejudice the defendants. 2016 WL 548251, at *20.
Overall, good cause requires diligence and a conscientious attempt to comply with the
Court’s scheduling order. When parties have not done so, the Court has not found good cause.
In Montoya v. Sheldon, 2012 WL 5353493 (D.N.M. 2012)(Browning, J.), the Court did not find

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good cause to modify the scheduling order and reopen discovery where the plaintiffs’ excuse for
not disclosing their expert before the close of discovery was that they thought that the case would
settle and they would thus not require expert testimony. See 2012 WL 5353493, at *14. The
Court noted:
The [plaintiffs] filed this case on April 15, 2010. Because [Plaintiff] D. Montoya
had seen the physician before that date, the fact that the [plaintiffs] are only now
bringing the physician forward as a newly identified expert witness, over two
years later, and over one and a half years after the deadline to disclose expert
witnesses, does not evidence circumstances in which the Court can find excusable
neglect nor good cause.
2012 WL 5353493, at *14.
Similarly, in Scull v. Management & Training Corp., 2012 WL 1596962 (D.N.M.
2012)(Browning, J.), the Court denied a plaintiff’s request for an extension of time to name an
expert witness against a defendant. The plaintiff asserted that he had waited to name an expert
witness until a second defendant joined the case, but a scheduling order was in effect before the
second defendant entered the case. The Court concluded that the plaintiff should have known
that he would need to name an expert witness against the defendant already in the case. See
2012 WL 1596962, at *8. The Court determined that the plaintiff was seeking “relief from his
own disregard” for the deadline. 2012 WL 1596962, at *8. “Despite his knowledge that
[Defendant] PNA had yet to enter the case, [Plaintiff] Scull chose to allow the deadline to pass
without naming expert witnesses against [Defendant] MTC.”

2012 WL 1596962, at *8.

Regarding the defendant who entered the case at a later date, however, the Court allowed the
plaintiff an extension of time to name an expert witness, because it “was not unreasonable for
Scull to expect a new deadline to name expert witnesses upon PNA’s entrance into the case
because he had not yet had the opportunity to engage in discovery against PNA as he had against
MTC.” 2012 WL 1596962, at *9. The Court also noted that not naming an expert witness “is a
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high price to pay for missing a deadline that was arguably unrealistic when it was set,” as Scull
could not have determined the need for an expert witness until after PNA entered the case. 2012
WL 1596962, at *9.
When serious and unforeseen events prevent a party from complying with the Court’s
scheduling order, however, the Court has found good cause. In Stark-Romero v. National
Railroad Passenger Co. (AMTRAK), 275 F.R.D. 544 (D.N.M. 2011)(Browning, J.), the Court
concluded that a lawyer had shown excusable neglect when he missed a scheduling deadline,
because soon after his son’s wedding, his father-in-law developed a tumor in his chest, the
lawyer arranged his father-in-law’s medical care, and, only after the lawyer returned to his work
did he realize that a deadline passed. See 275 F.R.D. 549-50. The Court noted that the lawyer
could have avoided missing the deadline had he not left his work until the last minute, just before
his son’s wedding, but concluded that the lawyer had demonstrated good faith and missed the
deadline because of “life crises,” and not because of his inadvertence. 275 F.R.D. 549-50. In
West v. New Mexico Taxation and Revenue Department, 2010 WL 3834341 (D.N.M.
2010)(Browning, J.), the Court allowed a plaintiff extended time to file a response to a
defendant’s motion for summary judgment, in part because of the difficulty the plaintiff’s
counsel experienced attempting to obtain depositions with certain defense witnesses, and thus it
was not her fault, and in part because cross-motions on summary judgment are particularly
helpful for the Court.

See 2010 WL 3834341, at *4-5.

On the other hand, in Liles v.

Washington Tru Solutions, LLC, 2007 WL 2298440 (D.N.M. 2007)(Browning, J.), the Court
denied a plaintiff’s request for additional time to respond to a defendant’s motion for summary
judgment, when the only rationale that the plaintiff provided was that his counsel’s “family and
medical emergencies” precluded the plaintiff from timely responding. 2007 WL 2298440, at *2.

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LAW REGARDING MOTIONS TO RECONSIDER UNDER RULE 59(e) AND 60
Motions to reconsider in civil cases fall into three categories:
(i) a motion to reconsider filed within [twenty-eight]8 days of the entry of
judgment is treated as a motion to alter or amend the judgment under rule 59(e);
(ii) a motion to reconsider filed more than [twenty-eight] days after judgment is
considered a motion for relief from judgment under rule 60(b); and (iii) a motion
to reconsider any order that is not final is a general motion directed at the Court’s
inherent power to reopen any interlocutory matter in its discretion. See Price v.
Philpot, 420 F.3d 1158, 1167 & n.9 (10th Cir. 2005).
Pedroza v. Lomas Auto Mall, Inc., 258 F.R.D. 453, 462 (D.N.M. 2009)(Browning, J.). See
Computerized Thermal Imaging, Inc. v. Bloomberg. L.P., 312 F.3d 1292, 1296 (10th Cir. 2002).
Courts may treat motions for reconsideration as a rule 59(e) motion when the movant
files within twenty-eight days of a court’s entry of judgment. See Price v. Philpot, 420 F.3d at
1167 n.9. If the movant files outside that time period, courts should treat the motion as seeking
relief from judgment under rule 60(b). See Price v. Philpot, 420 F.3d at 1167 n.9. “[A] motion
for reconsideration of the district court’s judgment, filed within [rule 59’s filing deadline],
postpones the notice of appeal’s effect until the motion is resolved.” Jones v. United States, 355
F. App’x 117, 121 (10th Cir. 2009)(unpublished). The time limit in rule 59(e) is now twenty-

8

Former rule 59 provided for a ten-day period after entry of judgment to file motions to
reconsider. In 2009, the rule was amended, extending the filing period to twenty-eight days:
Experience has proved that in many cases it is not possible to prepare a
satisfactory post-judgment motion in 10 days, even under the former rule that
excluded intermediate Saturdays, Sundays, and legal holidays. These time
periods are particularly sensitive because Appellate Rule 4 integrates the time to
appeal with a timely motion under these rules. Rather than introduce the prospect
of uncertainty in appeal time by amending Rule 6(b) to permit additional time, the
former 10-day periods are expanded to 28 days.
Federal Rules of Civil Procedure, Rule
https://www.law.cornell.edu/rules/frcp/rule_59.

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59,

Legal

Information

Institute,

eight days from the entry of a judgment. See Fed. R. Civ. P. 59(e).
Whether a motion for reconsideration should be considered a motion under rule 59 or rule
60 is not only a question of timing, but also “depends on the reasons expressed by the movant.”
Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194,
1200 (10th Cir. 2011).

Where the motion “involves ‘reconsideration of matters properly

encompassed in a decision on the merits,’” a court considers the motion under rule 59(e). Phelps
v. Hamilton, 122 F.3d 1309, 1323-24 (10th Cir. 1997)(quoting Martinez v. Sullivan, 874 F.2d
751, 753 (10th Cir. 1989)). In other words, if the reconsideration motion seeks to alter the
district court’s substantive ruling, then it should be considered a rule 59 motion and be subject to
rule 59’s constraints. See Phelps v. Hamilton, 122 F.3d at 1324. In contrast, under rule 60,
[o]n motion and just terms, the court may relieve a party or its legal
representatives from a final judgment, order, or proceeding for the following
reasons:
(1)

mistake, inadvertence, surprise, or excusable neglect;

(2)

newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new
trial under Rule 59(b);

(3)

fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;

(4)

the judgment is void;

(5)

the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or

(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Neither a rule 59 nor a rule 60 motion for reconsideration
are appropriate vehicles to reargue an issue previously addressed by the court
when the motion merely advances new arguments, or supporting facts which were
available at the time of the original motion. . . . Grounds warranting a motion to
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reconsider include (1) an intervening change in the controlling law, (2) new
evidence previously unavailable, and (3) the need to correct clear error or prevent
manifest injustice.
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

“[A] motion for

reconsideration is appropriate where the court has misapprehended the facts, a party’s position,
or the controlling law.” Servants of Paraclete v. Does, 204 F.3d at 1012. A district court has
considerable discretion in ruling on a motion to reconsider. See Phelps v. Hamilton, 122 F.3d at
1324.
A motion for reconsideration under rule 59(e) is an “inappropriate vehicle[] to reargue an
issue previously addressed by the court when the motion merely advances new arguments, or
supporting facts which were available at the time of the original motion.” Servants of Paraclete
v. Does, 204 F.3d at 1012.

“Grounds warranting a motion to reconsider include (1) an

intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the
need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d
at 1012. “Thus, a motion for reconsideration is appropriate where the court has misapprehended
the facts, a party’s position, or the controlling law.” Servants of Paraclete v. Does, 204 F.3d at
1012. A district court has considerable discretion in ruling on a motion to reconsider under rule
59(e). See Phelps v. Hamilton, 122 F.3d at 1324.
Rule 60 authorizes a district court to, “[o]n motion and just terms[,] . . . relieve a party or
its legal representative from a final judgment, order, or proceeding for the following reasons,”
including “any other reason that justifies relief.” Fed. R. Civ. P. 60(b). A court cannot enlarge
the time for filing a rule 59(e) motion. See Brock v. Citizens Bank of Clovis, 841 F.2d 344, 347
(10th Cir. 1988)(holding that district courts lack jurisdiction over untimely rule 59(e) motions);
Plant Oil Powered Diesel Fuel Sys., Inc. v. ExxonMobil Corp., 2012 WL 869000, at *2 (D.N.M.

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2012)(Browning, J.)(“The Court may not extend the time period for timely filing motions under
Rule 59(e) . . . .”). “A motion under rule 59 that is filed more than 28 days after entry of
judgment may be treated as a Rule 60(b) motion for relief from judgment.” 12 James Wm.
Moore, Moore’s Federal Practice § 59.11[4][b], at 59-32 (3d ed. 2012)(citations omitted).
Nevertheless, a court will not generally treat an untimely rule 59(e) motion as a rule 60(b)
motion when the party is seeking “‘reconsideration of matters properly encompassed in a
decision on the merits’ contemplated by Rule 59(e).” Jennings v. Rivers, 394 F.3d 850, 854
(10th Cir. 2005).
Under some circumstances, parties can rely on rule 60(b)(1) for a mistake by their
attorney or when their attorney acted without their authority. See Yapp v. Excel Corp., 186 F.3d
1222, 1231 (10th Cir. 1999)(“Rule 60(b)(1) motions premised upon mistake are intended to
provide relief to a party . . . when the party has made an excusable litigation mistake or an
attorney has acted without authority . . . .”). Mistake in this context entails either acting without
the client’s consent or making a litigation mistake, such as failing to file or to comply with
deadlines. See Yapp v. Excel Corp., 186 F.3d at 1231. If the alleged incident entails a mistake,
then it must be excusable, meaning that the party was not at fault. See Pioneer Inv. Servs. v.
Brunswick Assocs. LP, 507 U.S. 380, 394 (1993); Cashner v. Freedom Stores, Inc., 98 F.3d 572,
577 (10th Cir. 1996)(“If the mistake alleged is a party’s litigation mistake, we have declined to
grant relief under Rule 60(b)(1) when the mistake was the result of a deliberate and counseled
decision by the party.”); Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir.
1990)(holding that attorney carelessness is not a basis for relief under rule 60(b)(1)).
Courts will not grant relief when the mistake of which the movant complains is the result
of an attorney’s deliberate litigation tactics. See Cashner v. Freedom Stores, Inc., 98 F.3d at 577.

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This rule exists because a party
voluntarily chose [the] attorney as his representative in the action, and he cannot
now avoid the consequences of the acts or omissions of this freely selected agent.
Any other notion would be wholly inconsistent with our system of representative
litigation, in which each party is deemed bound by the acts of his lawyer agent
and is considered to have notice of all facts, notice of which can be charged upon
the attorney.
Pioneer Inv. Servs. v. Brunswick Assocs. LP, 507 U.S. at 397 (quoting Link v. Wabash R.R. Co.,
370 U.S. 626, 633-34 (1962))(internal quotation marks omitted). The Tenth Circuit has held that
there is nothing “novel” about “the harshness of penalizing [a client] for his attorney’s conduct”
and has noted that those “who act through agents are customarily bound,” even though, when “an
attorney is poorly prepared to cross-examine an expert witness, the client suffers the
consequences.” Gripe v. City of Enid, Okla., 312 F.3d 1184, 1189 (10th Cir. 2002). The Court
has previously stated:
There is a tension between how the law treats attorney actions that are without
authority, thus permitting relief under rule 60(b), and how the law treats those
attorney actions which are inexcusable litigation decisions, thus failing to qualify
for relief; although the distinction between those actions may not always be
logical, it is well established.
Wilson v. Jara, 2012 WL 1684595, at *7 (D.N.M. 2012)(Browning, J.).
Rule 60(b)(6) is a “grand reservoir of equitable power to do justice in a particular case.”
Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir. 1991)(internal quotation marks
omitted). “If the reasons offered for relief from judgment could be considered under one of the
more specific clauses of Rule 60(b)(1)-(5), those reasons will not justify relief under Rule
60(b)(6).” Moore, supra, § 60.48[2], at 60-182. Accord Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 863 n.11 (1988)(“This logic, of course, extends beyond clause (1) and
suggests that clause (6) and clauses (1) through (5) are mutually exclusive.”). “The Rule does
not particularize the factors that justify relief, but we have previously noted that it provides
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courts with authority ‘adequate to enable them to vacate judgments whenever such action is
appropriate to accomplish justice,’ while also cautioning that it should only be applied in
‘extraordinary circumstances.’” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. at 863
(quoting Ackermann v. United States, 340 U.S. 193, 202 (1950)).
Generally, the situation must be one beyond the control of the party requesting relief
under rule 60(b)(6) to warrant relief. See Ackermann v. United States, 340 U.S. 193, 202
(1950)(“The comparison [of prior precedent] strikingly points up the difference between no
choice and choice; imprisonment and freedom of action; no trial and trial; no counsel and
counsel; no chance for negligence and inexcusable negligence. Subsection 6 of Rule 60(b) has
no application to the situation of petitioner.”). Legal error that provides a basis for relief under
rule 60(b)(6) must be extraordinary, as the Tenth Circuit discussed in Van Skiver v. United
States:
The kind of legal error that provides the extraordinary circumstances justifying
relief under Rule 60(b)(6) is illustrated by Pierce [v. Cook & Co., 518 F.2d 720,
722 (10th Cir. 1975)(en banc)]. In that case, this court granted relief under
60(b)(6) when there had been a post-judgment change in the law “arising out of
the same accident as that in which the plaintiffs . . . were injured.” Pierce v. Cook
& Co., 518 F.2d at 723. However, when the post-judgment change in the law did
not arise in a related case, we have held that “[a] change in the law or in the
judicial view of an established rule of law” does not justify relief under Rule
60(b)(6). Collins v. City of Wichita, 254 F.2d 837, 839 (10th Cir. 1958).
Van Skiver v. United States, 952 F.2d at 1244-45.
LAW REGARDING MOTIONS TO RECONSIDER INTERLOCUTORY ORDERS
Considerable confusion exists among the bar regarding the proper standard for a district
court to apply when ruling on a motion to reconsider one of its prior “interlocutory” or “interim”
orders, i.e., an order that a district court issues while the case is ongoing, as distinguished from a
final judgment. This confusion originates from the fact that the Federal Rules of Civil Procedure

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do not mention motions to reconsider, let alone set forth a specific procedure for filing them or a
standard for analyzing them. A loose conflation in terminology in Servants of the Paraclete v.
Does, which refers to rule 59(e) motions -- “motion[s] to alter or amend a judgment” -- as
“motions to reconsider,”9 compounded that baseline confusion. Fed. R. Civ. P. 59(e) (emphasis
added); Servants of the Paraclete v. Does, 204 F.3d at 1005.
Final judgments are different from interlocutory orders.

See Fed. R. Civ. P. 54(a)

(“‘Judgment’ as used in these rules includes a decree and any order from which an appeal
lies.”)(emphasis added). In addition to ripening the case for appeal, see 28 U.S.C. § 1291 (“The
courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district
courts . . . .”), the entry of final judgment narrows the district court’s formerly plenary
jurisdiction over the case in three ways. First, for the first twenty-eight days after the entry of
judgment, when the court can entertain motions under rules 50(b), 52(b), 59, and 60, the district
9

The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the Tenth Circuit, who
authored Servants of the Paraclete v. Does, refers to rule 59(e) motions as “motions to
reconsider” several times throughout the opinion. See, e.g., 204 F.3d at 1005. He uses the term
“motion to reconsider” as an umbrella term that can encompass three distinct motions:
(i) motions to reconsider an interlocutory order, which no set standard governs, save that the
district court must decide them “before the entry of . . . judgment,” Fed. R. Civ. P. 54(b);
(ii) motions to reconsider a judgment made within twenty-eight days of the entry of judgment,
which the Servants of the Paraclete v. Does standard governs; and (iii) motions to reconsider a
judgment made more than twenty-eight days after the entry of judgment, which rule 60(b)
governs. There is arguably a fourth standard for motions to reconsider filed more than a year
after the entry of judgment, as three of the rule 60(b) grounds for relief expire at that point.
Much confusion could be avoided by using the term “motion to reconsider” exclusively
to refer to the first category, “motion to amend or alter the judgment” exclusively to refer to the
second category, and “motion for relief from judgment” exclusively to refer to the third category
(and arguable fourth category). These are the terms that the Federal Rules of Civil Procedure -and other Circuits -- use to describe (ii) and (iii). The Court agrees with Judge Kelly -- and all he
likely meant by using motion to reconsider as an umbrella term is -- that, if a party submits a
motion captioned as a “motion to reconsider” after an entry of final judgment, the court should
evaluate it under rule 59(e) or 60(b), as appropriate, rather than rejecting it as untimely or
inappropriate.
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court’s jurisdiction trumps that of the Court of Appeals. See Fed. R. App. P. 4(a)(4)(B). Even if
a party files a notice of appeal, the Court of Appeals will wait until after the district court has
ruled on the post-judgment motion to touch the case.

See Fed. R. App. P. 4(a)(4)(B).

Second, after twenty-eight days, when the court may consider motions under rule 60, if a party
has filed a notice of appeal, the Court of Appeals’ jurisdiction trumps the district court’s, and the
district court needs the Court of Appeals’ permission even to grant a rule 60 motion. Third, after
twenty-eight days, if no party has filed a notice of appeal, district courts may consider motions
under rule 60.
Final judgments implicate two important concerns militating against giving district courts
free reign to reconsider their judgments. First, when a case is not appealed, there is an interest in
finality. The parties and the lawyers expect to go home, quit obsessing about the dispute, and put
the case behind them, and the final judgment -- especially once the twenty-eight day window of
robust district court review and the thirty-day window of appeal have both closed -- is the
disposition upon which they are entitled to rely. Second, when a case is appealed, there is the
need for a clean jurisdictional handoff from the district court to the Court of Appeals. “[A]
federal district court and a federal court of appeals should not attempt to assert jurisdiction over a
case simultaneously,” as doing so produces a “danger [that] a district court and a court of appeals
w[ill] be simultaneously analyzing the same judgment.” Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58-59 (1982).
The Court of Appeals needs a fixed record on which to base its decisions -- especially
given the collaborative nature of appellate decisionmaking -- and working with a fixed record
requires getting some elbow room from the district court’s continued interference with the case.
The “touchstone document” for this jurisdictional handoff is the notice of appeal, not the final

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judgment, see Griggs v. Provident Consumer Discount Co., 459 U.S. at 58 (“The filing of a
notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of
appeals and divests the district court of its control over those aspects of the case involved in the
appeal.” (citations omitted)); Garcia v. Burlington N. R.R. Co., 818 F.2d 713, 721 (10th Cir.
1987)(“Filing a timely notice of appeal pursuant to Fed. R. App. P. 3 transfers the matter from
the district court to the court of appeals. The district court is thus divested of jurisdiction. Any
subsequent action by it is null and void.” (citations omitted)); Kirtland v. J. Ray McDermott &
Co., 568 F.2d 1166, 1170 (5th Cir. 1978)(“[I]t is the filing of the appeal, not the entering of a
final judgment, that divests the district court of jurisdiction.” (citations omitted)), but, because
the final judgment starts the parties’ thirty-day clock for filing a timely notice of appeal, the
Federal Rules and the Tenth Circuit have chosen to curtail the district court’s jurisdiction over
the case in the roughly month-long period of potentially overlapping trial- and appellate-court
jurisdiction that immediately follows the entry of final judgment, see Servants of the Paraclete v.
Does, 204 F.3d at 1009 (noting that post-final judgment motions at the district court level are
“not intended to be a substitute for direct appeal”).
Basically, rather than suddenly divesting the district court of all jurisdiction over the case
-- potentially resulting in the district court being unable to rectify easily fixable problems with
the final judgment before the case goes to the Tenth Circuit, or even requiring appeal of a case
that might otherwise not need to be appealed -- the Federal Rules set forth a jurisdiction phased
de-escalation process, wherein the district court goes from pre-final judgment plenary
jurisdiction, to limited review for the first twenty-eight days post-final judgment, and, finally, to
solely rule 60 review after twenty-eight days. In defining the “limited review” that rule 59(e)
allows a district court to conduct in the 28-day flux period, the Tenth Circuit, in Servants of the

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Paraclete v. Does, incorporated traditional law-of-the-case grounds -- the same grounds that
inform whether a court should depart from an appellate court’s prior decision in the same case -into rule 59(e). See United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998)(departing
from the law of the case doctrine in three exceptionally narrow circumstances: “(1) when the
evidence in a subsequent trial is substantially different; (2) when controlling authority has
subsequently made a contrary decision of the law applicable to such issues; or (3) when the
decision was clearly erroneous and would work a manifest injustice”)(citation omitted); Servants
of the Paraclete v. Does, 204 F.3d at 1012 (incorporating those grounds into rule 59(e)).
Neither of these concerns -- finality nor jurisdictional overlap -- is implicated when a
district court reconsiders one of its own interlocutory orders.

The Federal Rules do not

specifically mention motions to reconsider interlocutory orders, but rule 54(b) makes the
following open-ended proclamation about their mutability:
When an action presents more than one claim for relief -- whether as a claim,
counterclaim, crossclaim, or third-party claim -- or when multiple parties are
involved, the court may direct entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court expressly determines that there is
no just reason for delay. Otherwise, any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any of the claims or parties
and may be revised at any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.
Fed. R. Civ. P. 54(b) (emphases added). Rule 54(b) thus (i) provides that a district court can
freely reconsider its prior rulings; and (ii) puts no limit or governing standard on the district
court’s ability to do so, other than that it must do so “before the entry of judgment.” Fed. R. Civ.
P. 54(b).
The Tenth Circuit has not cabined district courts’ discretion beyond what rule 54(b)
provides: “[D]istrict courts generally remain free to reconsider their earlier interlocutory orders.”

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Been v. O.K. Indus., 495 F.3d at 1225. In the Tenth Circuit, “law of the case doctrine has no
bearing on the revisiting of interlocutory orders, even when a case has been reassigned from one
judge to another.” Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1252 (10th Cir. 2011)(emphasis
added)(citing Been v. O.K. Indus., Inc., 495 F.3d at 1225). In this context, “the doctrine is
merely a ‘presumption, one whose strength varies with the circumstances.’” Been v. O.K.
Indus., Inc., 495 F.3d at 1225 (quoting Avitia v. Metro. Club of Chi., Inc., 49 F.3d 1219, 1227
(7th Cir. 1995)). In short, a district court can use whatever standard it wants to review a motion
to reconsider an interlocutory order. It can review the earlier ruling de novo and essentially
reanalyze the earlier motion from scratch, it can review the ruling de novo but limit its review, it
can require parties to establish one of the law-of-the-case grounds, or it can refuse to entertain
motions to reconsider altogether.
The best approach, in the Court’s eyes -- and which it announced, as follows, in
Anderson Living Tr. v. WPX Energy Prod., LLC, 308 F.R.D. 410, 430-35 (D.N.M.
2015)(Browning, J.) -- is to analyze motions to reconsider differently depending on three factors.
Cf. Been v. O.K. Indus., Inc., 495 F.3d at 1225 (“[T]he doctrine is merely a ‘presumption, one
whose strength varies with the circumstances.’”)(citation omitted).

First, the Court should

restrict its review of a motion to reconsider a prior ruling in proportion to how thoroughly the
earlier ruling addressed the specific findings or conclusions that the motion to reconsider
challenges. How “thoroughly” a point was addressed depends both on the amount of time and
energy the Court spent on it, and on the amount of time and energy the parties spent on it -- in
briefing and orally arguing the issue, but especially if they developed evidence on the issue. A
movant for reconsideration thus faces a steeper uphill challenge when the prior ruling was on a

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criminal suppression motion, class certification motion, or preliminary injunction,10 than when
the prior ruling is, e.g., a short discovery ruling. The Court should also look, not to the overall
thoroughness of the prior ruling, but to the thoroughness with which the Court addressed the
exact point or points that the motion to reconsider challenges. A movant for reconsideration thus
faces an easier task when he or she files a targeted, narrow-in-scope motion asking the Court to
reconsider a small, discrete portion of its prior ruling than when he or she files a broad motion to
reconsider that rehashes the same arguments from the first motion, and essentially asks the Court
to grant the movant a mulligan on its earlier failure to present persuasive argument and evidence.
Second, the Court should consider the case’s overall progress and posture, the motion for
reconsideration’s timeliness relative to the ruling it challenges, and any direct evidence the
parties may produce, and use those factors to assess the degree of reasonable reliance the
opposing party has placed in the Court’s prior ruling.

See 18B CHARLES ALAN WRIGHT,

ARTHUR R. MILLER, EDWARD H. COOPER, VIKRAM DAVID AMAR, RICHARD D. FREER, HELEN

10

The Court typically makes findings of fact and conclusions of law in ruling on these
motions. At first glance, it appears that the Federal Rules of Civil Procedure set forth additional
standards -- beyond that which applies to other interlocutory orders -- for amending findings of
fact and conclusions of law:
Amended or Additional Findings. On a party’s motion filed no later than 28
days after the entry of judgment, the court may amend its findings -- or make
additional findings -- and may amend the judgment accordingly. The motion may
accompany a motion for a new trial under Rule 59.
Fed. R. Civ. P. 52(b). This rule appears to limit motions to reconsider orders with findings of
fact and conclusions of law to twenty-eight days. The rule’s use of the term “entry of judgment,”
its reference to rule 59, and its adoption of the same time period that applies to motions to alter
or amend a judgment, all lead the Court to conclude, however, that rule 52(b) -- and its 28-day
time limit -- does not apply to interlocutory orders. The time limit applies only to findings of
fact and conclusions of law supporting a case-ending judgment -- such as those entered after a
bench trial -- and to those giving rise to an interlocutory appeal that, if filed, divests the district
court of its jurisdiction -- such as those entered in support of a preliminary injunction.
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HERSHKOFF, JOAN E. STEINMAN & CATHERINE T. STRUVE, FEDERAL PRACTICE & PROCEDURE
§ 4478.1 (2d ed.)(“Stability becomes increasingly important as the proceeding nears final
disposition . . . . Reopening should be permitted, however, only on terms that protect against
reliance on the earlier ruling.”). For example, if a defendant (i) spends tens of thousands of
dollars removing legacy computer hardware from long-term storage; then (ii) obtains a protective
order in which the Court decides that the defendant need not produce the hardware in discovery;
then (iii) returns the hardware to long-term storage, sustaining thousands more in expenses; and
(iv) several months pass, then the plaintiffs should face a higher burden in moving the Court to
reconsider its prior ruling that they faced in fighting the motion for protective order the first time.
Third, the Court should consider the Servants of the Paraclete v. Does grounds. The
Court should be more inclined to grant motions for reconsideration if the movant presents
(i) new controlling authority -- especially if the new authority overrules prior law or sets forth an
entirely new analytical framework; (ii) new evidence -- especially if the movant has a good
reason why the evidence was not presented the first time around; or (iii) a clear indication -- one
that manifests itself without the need for in-depth analysis or review of the facts -- that the Court
erred.
These three factors should influence the degree to which the Court restricts its review of a
prior ruling, but they do not necessarily mean that the Court should always apply a deferential
standard of review. The Court should pause before applying a standard of review to its own
interlocutory orders that is more deferential than the standard that the Court of Appeals will
apply to it, unless the Court concludes that the alleged error in the prior ruling was harmless, or
the party moving for reconsideration waived their right to appeal the alleged error by not raising
the appropriate argument. Even in circumstances where the Court concludes that it is insulated

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from reversal on appeal, there are principled reasons for applying a de novo standard. After all,
if the Court was wrong in its earlier decision, then, generally speaking, it is unjust to maintain
that result -- although the Court should weigh this injustice against any injustice that would result
from upending the parties’ reliance on the earlier ruling, which is the balancing test that the three
factors above represent.
What the Court means by “restricting its review” is less about applying a deferential
standard of review -- although that may be appropriate in some circumstances -- and more about
reducing (i) the depth of the Court’s analysis the second time around -- thus conserving judicial
resources; and (ii) the impositions that relitigation of the prior ruling will impose on the party
opposing the motion for reconsideration. The Court should consider the time and expense that
the party opposing reconsideration spent in winning the earlier ruling, and should try to prevent
that party from having to bear the same impositions again.

Basically, even if the Court

ultimately analyzes a motion to reconsider under the same standard that it analyzed the motion
that produces the earlier ruling, it should analyze the motion in a different way -- one focused on
reducing the litigation burdens of the party opposing reconsideration. For example, when a party
moves the Court for a preliminary injunction, standard practice is that the Court holds an
evidentiary hearing as a matter of course, regardless whether it looks as if the party has a good
chance of prevailing. If the party loses and the Court denies the injunction, however, and the
party moves for reconsideration, the party should not be entitled to the presumption of an
evidentiary hearing merely because he or she received that presumption the first time the Court
considered the motion.
In light of these statements, it is perhaps better to characterize the increased burden that a
movant for reconsideration faces as one of production, and not of persuasion.

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The Court

analyzes motions to reconsider by picking up where it left off in the prior ruling -- not by starting
anew. Parties opposing reconsideration can do the same, and they may stand on whatever
evidence and argument they used to win the earlier ruling. Movants for reconsideration, on the
other hand, carry the full burden of production: they must persuade the Court, using only the
evidence and argument they put before it, that it should change its prior ruling; they must do all
of the legwork, and not rely on the Court to do any supplemental fact-finding or legal research;
and they must convincingly refute both the counterarguments and evidence that the opposing
party used to win the prior ruling and any new arguments and evidence that the opposing party
produces while opposing the motion to reconsider. Unlike the motion that produced the prior
ruling, a motion to reconsider is not -- and is not supposed to be -- a fair fight procedurally. The
deck is stacked against a movant for reconsideration, and if such a movant hopes to prevail, he or
she must have not only a winning legal position, but the work ethic and tenacity to singlehandedly lead the Court to his or her way of thinking. See Pueblo of Pojoaque v. State, 2017
WL 2266857 (D.N.M. 2017)(Browning, J.).
ANALYSIS
The Court will deny the Motion to Reconsider. The Court already considered the issues
that Benavidez now raises in her Motion to Reconsider in the Court’s Amendment MOO. The
Court concluded in the Amendment MOO that Benavidez’ withdrawal of the Motion for Leave
to Substitute Second Amended Complaint rendered leave to amend the First Amended
Complaint futile as to the proposed Plaintiffs, because the limitations period on their federal
claims had lapsed. The Court noted in the Amendment MOO that
it understands that Benavidez and her attorneys were in a position where they
considered the claims of the three proposed Plaintiffs as being related to
Benavidez’ claims, and as arising from the same circumstances at Sandia Labs,
and that Sandia Labs on numerous occasions indicated that they would prefer to
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defend one lawsuit, as opposed to four separate lawsuits. Indeed, Sandia Labs
offered to toll the statute of limitations appurtenant to the potential Plaintiffs’
federal claims -- yet, Benavidez and her attorneys did not engage in any relevant
colloquy with Sandia Labs on this point or assent to that offer to toll in some other
manner. Instead, Benavidez chose to try to amend her First Amended Complaint
to include the three proposed Plaintiffs as parties to the Proposed Second
Amended Complaint. The Court would not have pursued such a strategy;
Benavidez and the proposed Plaintiffs were more intent on preserving the record
for appeal with respect to the state law claims than they were in timely filing the
proposed Plaintiffs’ claims. The proposed Plaintiffs ought have recognized, or at
least considered, that the Court was going to dismiss Benavidez’ First Amended
Complaint in its entirety, the only complaint before the Court -- particularly after
receiving the Court’s inclination at the January hearing. Thus, the potential
Plaintiffs’ decision to pursue their claims against Sandia Labs in this case by
simply waiting for Benavidez’ receipt of leave to amend the First Amended
Complaint to add them as parties was a risky strategy given that the clock was
ticking. The Court gave Benavidez and the proposed Plaintiffs the power to be
the masters of their own lawsuit -- indeed, the Court specifically instructed
Benavidez to “make your own decision whether you want to file separate cases”
given the proposed addition of new Plaintiffs, and
if you need to file separate cases, you can. If I get the opinions out
and you want to bring it back here, [we can] pick this up, I’ll just
hold this [Proposed Second Amended Complaint] for the time
being, I won’t rule on it, and then you can make a decision. You’ll
just have to be the judge of your own time.
May Tr. at 6:7-16 (Court). The prudent thing to do would have been to file a
separate lawsuit to beat the statute of limitations and then seek to consolidate if
they wanted to litigate all of the cases together. Because Benavidez’ case was
first filed, and has the lowest number, the tradition and custom in this district is to
consolidate within that lowest number. It took the Court some time to issue the
Preemption MOO, because it had not done a lot of work in the two main areas at
issue -- LMRA preemption and federal enclave jurisdiction -- and had not
extensively written on these, in this context, before. Also, the parties argued the
federal enclave issue at the hearing, but had not extensively briefed that
jurisdictional issue, which was new to the Court. The Court thus had to do a lot
of that research on its own. The proposed Plaintiffs had, however, the opportunity
to file separate cases before the statutory period had lapsed -- although, the Court
is aware that its admonition in May would potentially not have fixed the problem,
as the statutory period had indeed already lapsed at that time. The Court notes,
however, that, in May, the Motion for Leave to Substitute Second Amended
Complaint had not yet been withdrawn -- that is, there may have been an
argument that the statutory period had been tolled by the filing of the state-lawclaim-riddled Proposed Second Amended Complaint which the Court had
indicated it would deny, at least in part, at the August hearing. The decision not
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to file separate cases -- or to enter into a tolling agreement with Sandia Labs -before the statutory period’s lapse, now manifesting itself as a risky decision, has
become the operative error rendering the proposed Plaintiffs’ claims futile.
Amendment MOO at 57-59, 2017 WL 2266854, at *27. Benavidez argues in the Motion to
Reconsider that the Court did not fully consider the effect of her withdrawal of the Motion for
Leave to Substitute Second Amended Complaint or the nature of the tolling of the limitations
period by her filing the Motion for Leave to Substitute Second Amended Complaint. Benavidez
points, in particular, to the Court’s discussion whether “the statutory period had been tolled by
the filing of the state-law-claim-riddled Proposed Second Amended Complaint which the Court
had indicated it would deny, at least in part, at the August hearing.” Amendment MOO at 58-59,
2017 WL 2266854, at *27. Benavidez, then, ultimately asks the Court to reconsider whether (i)
there was any event that stopped or negated the tolling that she argues occurred during the time
from when she filed the Motion for Leave to Substitute Second Amended Complaint until the
time when the Court entered the Amendment MOO denying that motion (meaning that there
would still be eighteen days after the Amendment MOO left to file within the limitations period);
and, alternatively, whether (ii) the Proposed Third Amended Complaint should be deemed filed
when the Proposed Second Amended Complaint was filed, notwithstanding Benavidez’
withdrawal of the Motion for Leave to Substitute Second Amended Complaint to which the
Proposed Second Amended Complaint was attached. See Motion to Reconsider Reply at 6.
Again, the Court is convinced that it considered -- in full -- the nature and impact of
Benavidez’ withdrawal of the Motion for Leave to Substitute Second Amended Complaint by the
Court’s grant in the Amendment MOO of the withdrawal request in her Motion to Withdraw and
Amend -- which, of course, was only confirming its grant of withdrawal by its September 30,
2016, Order without Opinion. Before reaching its analysis underlying its conclusion, the Court

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must first resolve an apparent dispute amongst the parties regarding the proper standard for
reconsideration of the Court’s order in this case. The Court’s reasoning is as follows.
I.

THE COURT WILL RECONSIDER ITS AMENDMENT MOO AS AN
INTERLOCUTORY ORDER.
Benavidez suggests that “[t]he present motion to reconsider is governed by either Fed. R.

Civ. P. 59(e) or by the Court’s inherent discretionary power, depending on the finality of the
order.” Motion to Reconsider at 6-7. Accordingly, Benavidez argues that, if the Amendment
MOO is “a decision on the merits . . . [, a] timely motion filed pursuant to Rule 59(e) may be
granted if there has been an intervening change in controlling law, new evidence is available, or
there is a need to correct clear error or prevent manifest injustice.” Motion to Reconsider at 7
(internal quotation marks omitted). In particular, Benavidez “asks the Court to reconsider [the
Amendment MOO’s] result based on manifest injustice.” Motion to Reconsider Reply at 6.
Benavidez alternatively argues that, if the Amendment MOO is “considered interlocutory,
reconsideration is within the Court’s inherent authority . . . [and t]he appropriate factors for a
court to consider in exercising its inherent authority to reconsider include conservation of
judicial resources and the imposition of re-litigation on the party opposing reconsideration.”
Motion to Reconsider at 7.
Sandia Labs provides that,
[w]ithout taking a definitive position on which standard actually applies, Plaintiffs
invoke both Rule 59(e) and the Court’s inherent authority to review interlocutory
matters. Sandia’s view is that the standard set forth in New Mexico ex rel.
Balderas v. Valley Meat Co. . . . is probably the better fit, but the point is
academic. Under no standard are Plaintiffs entitled to the relief they seek.
Motion to Reconsider Response at 4-5. The standard to which Sandia Labs refers is the Court’s
inherent authority to reconsider interlocutory orders. See Motion to Reconsider Response at 5.
Notably, according to Sandia Labs, the rule 59 factors nonetheless find their way into the Court’s
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analysis of an interlocutory order, in addition to the Court’s consideration of “how thoroughly
the earlier ruling addressed the specific findings or conclusions that the motion to reconsider
challenges,” “the case’s overall progress and posture [and] the motion for reconsideration's
timeliness relative to the ruling it challenges, and any direct evidence the parties may produce,”
which the Court should consider and use “to assess the degree of reasonable reliance the
opposing party has placed in the Court’s prior ruling.” Motion to Reconsider Response at 6-7.
The Court, here, will consider the Motion to Reconsider in the context of reconsideration
of an interlocutory order. The Court understands that, effectively, the Amendment MOO has
ended this litigation as far as the proposed Plaintiffs are concerned. The Court’s Amendment
MOO, however, is more properly considered as an interlocutory order, as it is premised on
procedural requirements related to the limitations period for the proposed Plaintiffs’ federal
claims, and it did not end the litigation as to all parties and claims. The fact that the proposed
Plaintiffs ask the Court to reconsider its Amendment MOO suggests that they think that the
Court can change its interlocutory ruling and add the proposed Plaintiffs to this case, too, and
Sandia Labs thus argues that the standard should be the one for interlocutory orders. See Motion
to Reconsider Response at 6-7. Rule 54(b) allows a district court to freely reconsider its prior
interlocutory rulings. See Fed. R. Civ. P. 54(b)(stating that any order “that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at
any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities”); Anderson Living Tr. v. WPX Energy Prod., LLC, 308 F.R.D. at 434. Rule 54(b)
puts no limit or governing standard on the district court’s ability to reconsider its prior rulings,
other than that it must do so “before the entry of judgment.” Fed. R. Civ. P. 54(b). Rule 54(b)
also allows a court to enter a final judgment where “it expressly determines that there is no just

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reason for delay.” Fed. R. Civ. P. 54(b). In that sense, the Court “can use whatever standard it
wants to review a motion to reconsider an interlocutory order,” and “it can refuse to entertain
motions to reconsider altogether.” Anderson Living Tr. v. WPX Energy Prod., LLC, 308 F.R.D.
at 434 (describing how the Court reviews motions to reconsider its own interlocutory orders).
Ultimately, the Court also agrees with Sandia Labs that the distinction which Benavidez
identifies, practically, does not noticeably alter the Court’s analysis, because it will nonetheless
take into consideration the rule 59 factors as the Court conducts its reconsideration of the
Amendment MOO.

The Court, accordingly, will reconsider its Amendment MOO in that

context.
II.

THE COURT WILL DENY THE MOTION TO RECONSIDER, BECAUSE IT
HAS ALREADY CONSIDERED THE OPERATIVE EFFECT OF BENAVIDEZ’
MOTION TO WITHDRAW AND AMEND ON HER MOTION FOR LEAVE TO
SUBSTITUTE SECOND AMENDED COMPLAINT, THAT EFFECT BEING
MOST AKIN TO THE EFFECT OF A VOLUNTARY DISMISSAL IN THIS
CONTEXT.
Benavidez has not adduced any legal authority in favor of her position in the Motion to

Reconsider. Ultimately, she requests that the Court rethink its conclusion in the Amendment
MOO granting her Motion to Withdraw and Amend -- which is that the grant of withdrawal had
the procedural effect of withdrawing from the Court’s consideration the content and legal
argument in the Motion for Leave to Substitute Second Amended Complaint and rendering any
tolling effect that motion might have otherwise had inoperative -- and instead conclude that
tolling of the limitations period occurred from the date she filed the Motion for Leave to
Substitute Second Amended Complaint until the date the Court filed the Amendment MOO, or
alternatively, that the Proposed Third Amended Complaint attached to the Motion to Withdraw
and Amend should be deemed filed on the date that she filed the Motion for Leave to Substitute
Second Amended Complaint. In consideration of an opinion as an interlocutory order, as the
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Court provided in Anderson Living Tr. v. WPX Energy Prod., LLC, district courts can use
whatever standard they want to review a motion to reconsider an interlocutory order. See 308
F.R.D. at 434. They can review the earlier ruling de novo and essentially reanalyze the earlier
motion from scratch, review the ruling de novo but limit its review, require parties to establish
one of the law-of-the-case grounds, or refuse to entertain motions to reconsider altogether.
Accordingly, the Court’s approach is generally to analyze motions to reconsider differently
depending on its consideration of three factors. Cf. Been v. O.K. Indus., Inc., 495 F.3d at 1225.
First, the Court can generally restrict its review of a motion to reconsider a prior ruling in
proportion to how thoroughly the earlier ruling addressed the specific findings or conclusions
that the motion to reconsider challenges. See Anderson Living Tr. v. WPX Energy Prod., LLC,
308 F.R.D. at 434. How “thoroughly” a point was addressed depends both on the amount of
time and energy the Court spent on it, and on the amount of time and energy the parties spent on
it -- in briefing and orally arguing the issue, but especially if they developed evidence on the
issue. 308 F.R.D. at 434. In its review, the Court can also look, not to the overall thoroughness
of the prior ruling, but to the thoroughness with which the Court addressed the exact point or
points that the motion to reconsider challenges.

See 308 F.R.D. at 434.

A movant for

reconsideration thus faces an easier task when he or she files a targeted, narrow-in-scope motion
asking the Court to reconsider a small, discrete portion of its prior ruling than when he or she
files a broad motion to reconsider that rehashes the same arguments from the first motion, and
essentially asks the Court to grant the movant a mulligan on its earlier failure to present
persuasive argument and evidence. See 308 F.R.D. at 434. Here, the Court issued a 115-page
opinion concerning the relation back of the claims of plaintiffs seeking to be added to a case, an

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issue the Court reached because it had already disagreed with the precedent analysis which
Benavidez now proffers in her Motion to Reconsider regarding tolling and the like.
Second, the Court can consider the case’s overall progress and posture, the motion for
reconsideration’s timeliness relative to the ruling it challenges, and any direct evidence the
parties may produce, and use those factors to assess the degree of reasonable reliance the
opposing party has placed in the Court’s prior ruling. See 18B Charles Alan Wright, Arthur R.
Miller, Edward H. Cooper, Vikram David Amar, Richard D. Freer, Helen Hershkoff, Joan E.
Steinman & Catherine T. Struve, FEDERAL PRACTICE & PROCEDURE § 4478.1 (2d ed.)(“Stability
becomes increasingly important as the proceeding nears final disposition . . . . Reopening should
be permitted, however, only on terms that protect against reliance on the earlier ruling.”). See
also Anderson Living Tr. v. WPX Energy Prod., LLC, 308 F.R.D. at 434. In this case, the Court
is cognizant of the fact that its Amendment MOO resulted in the inability of the proposed
Plaintiffs to bring their employment discrimination claims before the Court. The Court also
notes, however, that this litigation has been commenced for more than a year, at this point.
Third, the Court can consider the Servants of the Paraclete v. Does grounds.

See

Anderson Living Tr. v. WPX Energy Prod., LLC, 308 F.R.D. at 434. The Court will be more
inclined to grant motions for reconsideration if the movant presents (i) new controlling authority
-- especially if the new authority overrules prior law or sets forth an entirely new analytical
framework; (ii) new evidence -- especially if the movant has a good reason why the evidence
was not presented the first time around; or (iii) a clear indication -- one that manifests itself
without the need for in-depth analysis or review of the facts -- that the Court erred. See
Anderson Living Tr. v. WPX Energy Prod., LLC, 308 F.R.D. at 434. Here, the Court notes that

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the Motion to Reconsider does not present any new controlling law or new evidence, and instead
relies on its proffer of manifest injustice, because proposed Plaintiffs could not enter this case.
In sum, these three factors -- (i) how thoroughly it considered an issue; (ii) the case’s
progression; and (iii) the Servants of the Paraclete v. Does factors (new controlling authority,
new evidence or a clear indication that the Court erred) -- will influence the degree to which the
Court will potentially restrict its review of its prior ruling in the Amendment MOO. To the
extent that the Court will restrict its de novo review, the potential restriction is less about
applying a deferential standard of review -- although that may be appropriate in some
circumstances -- and more about reducing (i) the depth of the Court’s analysis the second time
around -- thus conserving judicial resources; and (ii) the impositions that relitigation of the prior
ruling will impose on the party opposing the motion for reconsideration. See Anderson Living
Tr. v. WPX Energy Prod., LLC, 308 F.R.D. at 434. The Court will consider the time and
expense that the party opposing reconsideration spent in winning the earlier ruling, and should
try to prevent that party from having to bear the same impositions again. See 308 F.R.D. at 434.
Basically, even if the Court ultimately analyzes a motion to reconsider under the same standard
that it analyzed the motion that produces the earlier ruling, it may in places analyze the motion in
a different way -- one focused on reducing the litigation burdens of the party opposing
reconsideration. See 308 F.R.D. at 434. The Court analyzes motions to reconsider by picking up
where it left off in the prior ruling -- not by starting anew. See 308 F.R.D. at 434. Parties
opposing reconsideration can do the same, and they may stand on whatever evidence and
argument they used to win the earlier ruling, and the Court will give Sandia Labs that benefit.
See 308 F.R.D. at 434. Movants for reconsideration, like Benavidez, carry the full burden of
production: they must persuade the Court, using only the evidence and argument they put before

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it, that it should change its prior ruling; they must do all of the legwork, and not rely on the Court
to do any supplemental fact-finding or legal research; and they must convincingly refute both the
counterarguments and evidence that the opposing party used to win the prior ruling and any new
arguments and evidence that the opposing party produces while opposing the motion to
reconsider. See 308 F.R.D. at 434. Unlike the motion that produced the prior ruling, a motion to
reconsider is not -- and is not supposed to be -- a fair fight procedurally. See 308 F.R.D. at 434.
The deck is stacked against the movant for reconsideration, and if the movant hopes to prevail,
he or she must have not only a winning legal position, but the work ethic and tenacity to singlehandedly lead the Court to his or her way of thinking. See 308 F.R.D. at 434. The Court, in its
analysis pursuant to Anderson Living Tr. v. WPX Energy Prod., LLC, is not persuaded that
Benavidez’ Motion to Reconsider has met the requirements for reconsideration. The Court
thoroughly treated the issues in the Amendment MOO, that Sandia Labs has been defending
these claims for some time now and has offered -- at one time -- to toll the proposed Plaintiffs’
limitations period, and Benavidez has only proffered the existence of manifest injustice by
reference to the harsh result of her own procedural decisions in this case.
Thus, while Benavidez’ Motion to Reconsider does not meet any of the standards for
reconsideration of interlocutory orders that the Court established in Anderson Living Tr. v. WPX
Energy Prod., LLC, she also does not establish that the Court has done anything wrong.
Benavidez’ arguments all dovetail into one desired conclusion, that conclusion being that the
proposed Plaintiffs satisfactorily lodged a complaint before the Court within the ninety-day
limitations period. By the Amendment MOO, the Court concluded that they had not timely filed
claims, because they subsequently withdrew the only complaint -- the Proposed Second
Amended Complaint -- that they filed before the limitations period , and the Court was unable to

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reach a conclusion under the Federal Rules of Civil Procedure that the filing date of the Proposed
Third Amended Complaint, which Benavidez and the proposed Plaintiffs filed after the
limitations period had lapsed, otherwise related back to a filing date before the limitations
period’s lapse, as far as the proposed Plaintiffs were concerned. By the Motion to Reconsider,
Benavidez asks the Court to reconsider the effect of her withdrawal of the Proposed Second
Amended Complaint, suggesting that, by virtue of her filing that Proposed Second Amended
Complaint before the limitations period, tolling of that limitations period occurred or,
alternatively, the Proposed Third Amended Complaint should be deemed filed as of the same
date. While it is apparent that Benavidez and the proposed Plaintiffs do not meet the Anderson
Living Tr. v. WPX Energy Prod., LLC requirements for reconsideration of an interlocutory
order, the Court will, to be fully fair to the proposed Plaintiffs, not restrict its review of the
operative legal arguments and issues at stake in this case, because they all depend upon one
another. The Court ultimately concludes, however, that it is not convinced that Benavidez has
made any novel legal or factual arguments in support of the proposed Plaintiffs’ position which
persuade the Court that it erred in its conclusion in the Amendment MOO as to those proposed
Plaintiffs. The Court first addresses, in its reconsideration of the Amendment MOO, why the
tolling which Benavidez espouses did not occur, why withdrawal of the Proposed Second
Amended Complaint counsels against a conclusion that the Proposed Third Amended Complaint
should be deemed filed as of the filing date of the Proposed Second Amended Complaint, and
why the Proposed Third Amended Complaint’s filing date does not relate back to a filing date
which satisfied the limitations period as to the proposed Plaintiffs.

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A.

BENAVIDEZ’ WITHDRAWAL OF THE MOTION FOR LEAVE TO
SUBSTITUTE SECOND AMENDED COMPLAINT AND THE
PROPOSED PLAINTIFFS’ FAILURE TO FILE A FEDERAL
COMPLAINT BEFORE THE LIMITATIONS PERIOD HAD LAPSED
RESULTED IN PROPOSED PLAINTIFFS’ FAILURE TO SATISFY THE
LIMITATIONS
PERIOD
FOR
FILING
THEIR
FEDERAL
DISCRIMINATION CLAIMS, BECAUSE TOLLING DID NOT OCCUR.

Both Benavidez and Sandia Labs devoted considerable space within their Motion to
Reconsider briefing regarding their separate proffers of the abnormal procedural history in this
case. Accordingly, the Court considers it prudent to set forth the salient procedural facts.
Benavidez filed her First Amended Complaint in state court on August 27, 2015, see First
Amended Complaint at 1, and Sandia Labs removed the First Amended Complaint on October
15, 2015, see Notice of Removal at 1. In the First Amended Complaint, Benavidez asserts three
causes of action against Sandia Labs: (i) discrimination on the basis of age in violation of the
NMHRA  §§ 28-1-1 to -14, see First Amended Complaint ¶¶ 38-48, at 10-12 (Count I); (ii)
discrimination on the basis of sex in violation of the NMHRA, see First Amended Complaint ¶¶
49-62, at 12-13 (Count II); and (iii) intentional infliction of emotional distress, see First
Amended Complaint ¶¶ 63-73, at 13-14 (Count III). The Court, after a January 20, 2016,
hearing, dismissed all of Benavidez’ state claims by issuing its Preemption MOO, 212 F. Supp.
at 1044-45, on June 27, 2016. It took the Court some time to issue the Preemption MOO,
because it had not done a lot of work in the two main areas at issue -- LMRA preemption and
federal-enclave jurisdiction -- and had not extensively written on those issues, in this context, in
any of its earlier cases. Also, the parties argued the federal-enclave issue at the hearing, but had
not extensively briefed that jurisdictional issue, which was new to the Court. The Court thus had
to do a lot of that research on its own.
In the meantime, Benavidez filed her Motion for Leave to Substitute Second Amended

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Complaint on February 10, 2016, which, in relevant part, adds claims under federal
discrimination laws and names the proposed Plaintiffs in addition to Benavidez. See Proposed
Second Amended Complaint ¶¶ 123-34, at 16-17; id. ¶¶ 135-49, at 17-19; id. ¶¶ 150-58, at 1920; id. ¶¶ 159-69, at 20-21; id. ¶¶ 170-83, at 21-22; id. ¶¶ 184-88, at 22-23; Supplemental
Briefing at 1-2. It is the Court’s understanding that Benavidez and her attorneys were in a
position where they considered the claims of the three proposed Plaintiffs as being related to
Benavidez’ claims and as arising from the same circumstances at Sandia Labs, and that Sandia
Labs on several informal occasions indicated that they would prefer to defend one lawsuit by the
four women, as opposed to four separate lawsuits. See Amendment MOO at 57, 2017 WL
2266854, at *27.

Indeed, the Court notes that Sandia Labs offered to toll the statute of

limitations appurtenant to the proposed Plaintiffs’ federal claims, yet, Benavidez and her
attorneys did not engage in any meaningful colloquy with Sandia Labs on this point or assent to
that offer to toll in some other manner. See 2017 WL 2266854, at *27. Instead, Benavidez
chose to try to amend her First Amended Complaint to include the three proposed Plaintiffs as
parties to the Proposed Second Amended Complaint. See 2017 WL 2266854, at *27. The
Court’s issue with the Proposed Second Amended Complaint, however, was that it retained all of
the state claims that the Court told Benavidez at the January 20, 2016, hearing that it was going
to dismiss and formally dismissed in June, 2016, with its Preemption MOO. See 2017 WL
2266854, at *27.

The Court would not have pursued such a strategy; Benavidez and the

proposed Plaintiffs were more intent on preserving the record for appeal with respect to the state
law claims than they were in timely filing the proposed Plaintiffs’ claims in a clean federal
complaint. See 2017 WL 2266854, at *27. The proposed Plaintiffs ought have recognized, or at
least considered, that the Court was going to dismiss Benavidez’ First Amended Complaint in its

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entirety, the only complaint before the Court -- particularly after receiving the Court’s inclination
at that January hearing. See 2017 WL 2266854, at *27.
The Court held various hearings subsequent to Benavidez’ filing of the Motion for Leave
to Substitute Second Amended Complaint, as it details in the Procedural Section, supra. At those
hearings, it became apparent that the reason that Benavidez filed the Motion for Leave to
Substitute Second Amended Complaint in the fashion she did -- retaining the state law claims,
but also adding the three proposed Plaintiffs -- was because “we had three additional plaintiffs to
add who had been issued their right to sue letters, and they had a statutory deadline to meet.” Tr.
at 3:14-24 (Girard). For context, the limitations period for the federal claims brought by the
proposed Plaintiffs expired in late February, 2016. See Response at 3-4. The limitations period
at issue in this case is a ninety-day deadline to file suit after receipt of a right-to-sue letter from
the EEOC, and that period covers all of Benavidez’ and the proposed Plaintiffs’ federal claims,
save for the Equal Pay Act claim. See 42 U.S.C. § 2000e-5(f)(1)(providing limitation period
under Title VII); 42 U.S.C. § 12117(a) (providing limitation period for the ADA, specifically
adopting Title VII’s deadlines); 29 U.S.C. 626(e)(providing limitation period for ADEA). Baca
received her right-to-sue letter on November 30, 2015; Luna-Casias received hers on November
30, 2015; and Ortiz received hers on November 30, 2015. See Proposed Third Amended
Complaint ¶¶ 9-18, at 2-3. The limitation period expired on February 29, 2016. See Motion to
Reconsider at 12.
The Court, as it recognized in its Amendment MOO, considered the proposed Plaintiffs’
decision to pursue their claims against Sandia Labs in this case by simply waiting for Benavidez’
receipt of leave to amend the First Amended Complaint to add them as parties was a risky
strategy given that the clock was ticking. See Amendment MOO at 58, 2017 WL 2266854, at

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*27. The Court gave Benavidez and the proposed Plaintiffs the power to be the masters of their
own lawsuit at the January 20, 2016, hearing, and, albeit after the limitations period, admonished
Benavidez in May to “make your own decision whether you want to file separate cases” given
the proposed addition of new Plaintiffs, and
if you need to file separate cases, you can. If I get the opinions out and you want
to bring it back here, [we can] pick this up, I’ll just hold this [Proposed Second
Amended Complaint] for the time being, I won’t rule on it, and then you can
make a decision. You’ll just have to be the judge of your own time.
May Tr. at 6:7-16 (Court). A prudent option would have been to file a separate lawsuit to beat
the statute of limitations and then seek to consolidate if they wanted to litigate all of the cases
together. See Amendment MOO at 58, 2017 WL 2266854, at *27. Because Benavidez’ case
was first filed, and has the lowest number, the tradition and custom in this district is to
consolidate within that lowest number. See 2017 WL 2266854, at *27. The proposed Plaintiffs
had, however, the opportunity to file separate cases before the statutory period had lapsed. The
Court is aware that its admonition in May, 2016, likely could not have fixed the proposed
Plaintiffs’ problem, as the limitations period had already lapsed at that time, but, regardless, at no
point during the January 20, 2016, hearing did the Court counsel Benavidez to pursue the
strategy she chose or in any other way mislead her. See 2017 WL 2266854, at *27. The Court
notes, however, that, in May, 2016, the Motion for Leave to Substitute Second Amended
Complaint had not yet been withdrawn -- that is, there may have been an argument that the
proposed Plaintiffs’ statutory period was tolled by their filing of the state-law-claim-riddled
Proposed Second Amended Complaint that the Court had indicated it would deny, at least in
part, at the August, 2016 motion hearing regarding the Motion for Leave to Substitute Second
Amended Complaint. See 2017 WL 2266854, at *27.

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Following that August, 2016, hearing, wherein the Court expressed frustration that the
Proposed Second Amended Complaint attached to the Motion for Leave to Substitute Second
Amended Complaint still had the state law claims it indicated at the January 20, 2016, hearing,
were preempted, and confirmed were preempted in its June, 2016, Preemption MOO, Benavidez
filed her Motion to Withdraw and Amend. See 2017 WL 2266854, at *27. By her Motion to
Withdraw and Amend, the Court understood Benavidez’ intention to remove from its
consideration the Motion for Leave to Substitute Second Amended Complaint altogether, and to
instead have the Court rule only as to the Proposed Third Amended Complaint -- which removed
the preempted state-law claims -- attached to the Motion to Withdraw and Amend. In its Order
without Opinion, which the Court entered on September 30, 2016, the Court granted Benavidez’
request to withdraw the Motion for Leave to Substitute Second Amended Complaint to which
she had attached her Proposed Second Amended Complaint. See Order at 1. A few months
later, in the Amendment MOO, the Court explained its rationale for entering the September 30,
2016, Order granting Benavidez’ request in the Motion to Withdraw and Amend to withdraw the
Motion for Leave to Substitute Second Amended Complaint, and also granted in part and denied
in part leave to amend the First Amended Complaint with the Proposed Third Amended
Complaint. See Amendment MOO at 47-56, 2017 WL 2266854, at *23-27. In relevant part,
because the Motion for Leave to Substitute Second Amended Complaint had been withdrawn,
the Court concluded that leave to amend to add proposed Plaintiffs to this lawsuit would be
futile, because the proposed Plaintiffs had missed their limitations period. See Amendment
MOO at 56-68, 2017 WL 2266854, at *27-30. The Court concluded that the effect of the
withdrawal of the Motion for Leave to Substitute Second Amended Complaint -- which had been
filed within the limitations period -- was to undo any tolling of that limitations period which

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might have been ongoing.

See 2017 WL 2266854, at *28-30.

The crux of the Court’s

conclusion was that the filing date for the Proposed Third Amended Complaint could not, under
rule 15, relate back to a filing date which satisfied the limitations period. See 2017 WL
2266854, at *28-30. The decision not to file separate cases -- or to enter into a tolling agreement
with Sandia Labs -- before the statutory period’s lapse, the Court concluded, manifested itself as
a risky decision, and became the operative error rendering the proposed Plaintiffs’ claims futile.
See 2017 WL 2266854, at *28-30.
This conclusion brings the Court to the present Motion to Reconsider, by which
Benavidez asks the Court to reconsider its Amendment MOO in two specific respects: (i)
reconsider whether tolling of the limitations period occurred by the filing of the Motion for
Leave to Substitute Second Amended Complaint and whether that tolling persisted through
withdrawal of the Motion for Leave to Substitute Second Amended Complaint; and (ii)
reconsider whether the Proposed Third Amended Complaint should be “deemed filed” on the
date which Benavidez filed the Proposed Second Amended Complaint with her Motion for
Leave to Substitute Second Amended Complaint. As the Court indicated, it will first consider
Benavidez’ arguments in favor of tolling of the limitations period, and then turn to her arguments
about deeming the Proposed Third Amended Complaint filed and her former arguments about
relation back.
To this point, Benavidez simply argues that that, because she filed the Motion for Leave
to Substitute Second Amended Complaint on February 10, 2016, “and the 90-day clock did not
expire until February 29, 2016 . . . [eighteen] days remained on the clock when the [Motion for
Leave to Substitute Second Amended Complaint] was filed and at no time did those days
continue to tick until the January 17, 2017 [Amendment MOO].” Motion to Reconsider at 12.

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See Notice of Errata at 1. Benavidez states that she is not seeking additional time or an
exception to the ninety-day limitations period, but is instead arguing that the Motion for Leave to
Substitute Second Amended Complaint “suspended the clock on February 10, 2016,” and that
the clock resumed ticking on Jan. 17, 2017, and on that date, time remained for
Second Plaintiffs to filed separate complaints. [The proposed] Plaintiffs filed
separate complaints on Jan. 23, 2017, in order to again stop the clock from
continuing to tick. If time remained on the clock[], amendment to add the
[proposed] Plaintiffs would not have been futile. If, however, the [Motion for
Leave to Substitute Second Amended Complaint] is treated as a dismissal with
prejudice or a denied motion to intervene, the clock may have run out as of Feb.
29, 2016.
Motion to Reconsider at 13-14. Accordingly, Benavidez argues that the February 10, 2016,
Motion for Leave to Substitute Second Amended Complaint “tolled the 90-day period until entry
of the January 17, 2017,” Amendment MOO. Motion to Reconsider at 14. According to
Benavidez, “the parties do not appear to disagree that the February [10], 2016 [Motion for Leave
to Substitute Second Amended Complaint] stopped the clock running on the 90 days until the
Court could rule.” Motion to Reconsider at 14. See Notice of Errata at 1. Benavidez also
clarifies that “the parties disagree about the effect” of the Motion to Withdraw and Amend on the
Motion for Leave to Substitute Second Amended Complaint, and that she
does not request the Court to reconsider its ruling that equitable tolling does not
apply because of Plaintiff’s understanding that the parties had stipulated to the
amendment, rather than the separate complaint, procedure . . . [and i]nstead,
Plaintiff relies on the generally accepted principles that a limitation period is
equitably tolled during the pendency of a motion affecting that limitation period.
Motion to Reconsider at 14 n.3; n.4. Benavidez contends: “‘Principles of equitable tolling
usually dictate that when a time bar has been suspended and then begins to run again upon a later
event, the time remaining on the clock is calculated by subtracting from the full limitations
period whatever time ran before the clock was stopped.’” Motion to Reconsider at 14 (quoting
United States v. Ibarra, 502 U.S. at 3-4 n.2). Benavidez explains that here, however, the “partial
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denial of the [Motion for Leave to Substitute Second Amended Complaint] indicates that the
Court viewed Plaintiff’s Motion to Withdraw and Amend as an order that granted dismissal
without prejudice. Complaints that are dismissed without prejudice or denied motions do not toll
a limitation period.” Motion to Reconsider at 15. Benavidez, in sum, concedes:
In order for the February [10], 2016 [Motion for Leave to Substitute Second
Amended Complaint] to not have continuously suspended the 90-day period . . .
until entry of an order granting or denying relief, this Court would have to either
deem the [Motion for Leave to Substitute Second Amended Complaint] denied as
of August 31, 2016 or deem the August 31, 2016 Motion to Withdraw and
[Amend] to be a voluntary dismissal of the proposed amended complaint without
prejudice.
Motion to Reconsider at 15. See Notice of Errata at 1. Benavidez thus maintains that the Court
never dismissed or denied her Motion for Leave to Substitute Second Amended Complaint, “and,
as a result, the suspension of the limitation period that began o[n] Feb. [10], 2016 never lapsed.”
Motion to Reconsider at 15. See Notice of Errata at 1.
Sandia Labs disagrees with Benavidez’ conception of the effect that the Motion to
Withdraw and Amend had as to the proposed Plaintiffs’ complaint. According to Sandia Labs,
[a]ll of Plaintiffs’ arguments, however, including their position on equitable
tolling . . . , collapse under the following proposition of law: a motion to amend
that is not granted does not toll the limitations period. Accordingly, when
Plaintiffs chose to withdraw their February 10, 2016 [Motion for Leave to
Substitute Second Amended Complaint], they deprived themselves of the ability
to argue that federal statutory claims were timely because the limitations periods
expired in late February 2016. When the August 31, 2016 [Proposed Third
Amended Complaint] did not relate back under Rule 15 -- a determination as to
which Plaintiffs do not seek reconsideration -- the Court correctly found that their
claims were time barred.
Motion to Reconsider Response at 8. Sandia Labs thus contends that the effect of Benavidez’
withdrawal of the Motion for Leave to Substitute Second Amended Complaint “is not a new
issue in this case,” and that “there was no error or injustice in the Court’s ruling that Ms. Baca,
Ms. Ortiz and Ms. Luna-Casias are late.” Motion to Reconsider Response at 8. Ultimately, it is
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Sandia Labs position that a “motion to amend that is not granted will not toll the statute”; that
“there is a small body of federal case law on the effect of a motion to amend that is denied or
withdrawn upon a statute of limitations”; and that the small body of case law is uniform in
holding that “a motion to amend that is not granted does not toll the limitations period.” Motion
to Reconsider Response at 10-11.
The Court agreed with Sandia Labs’ position in its Amendment MOO, and, in its
reconsideration of its position, will maintain its conclusion in the Amendment MOO that the
operative effect of its September 30, 2016, Order granting Benavidez’ request to withdraw the
Motion for Leave to Substitute Second Amended Complaint removed from its consideration -for the balance of this litigation -- that motion and its attachment, the Proposed Second Amended
Complaint. Benavidez concedes that “dismissals without prejudice and motions to intervene do
not toll the clock and if such dismissal orders are entered, it is as if the motion were not filed and
the time has simply continued to run.” Motion to Reconsider at 13. That concession credits a
small body of case law which the Court has uncovered adhering to that very maxim.

In

particular, the United States Court of Appeals for the Fourth Circuit, in the unpublished opinion
Angles v. Dollar Tree Stores, which Judge Shedd authored and Judge Diaz joined, concluded
that, although the plaintiffs’ Title VII counts were timely when the plaintiffs moved to amend,
when those plaintiffs’ motion to amend was not granted, those Title VII counts could no longer
be brought, because they had become untimely. See 494 F. App’x at 327-32. The plaintiffs in
that case had filed in 2008 a complaint in federal court under the Equal Pay Act, and, ninety days
after receiving right-to-sue letters regarding other federal discrimination claims, the plaintiffs, in
February, 2009, moved to amend the original complaint to add their Title VII claims. See 494 F.
App’x at 327-29. In June, 2009, however, the district court concluded in a hearing that the

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plaintiffs’ motion to amend would probably be denied for improper venue. See 494 F. App’x at
327-29. After the district court gave its inclination, when fourteen days remained on the ninetyday period for some of the plaintiffs’ federal claims in July, 2009, the plaintiffs chose to file yet
another motion to amend before the very same federal district court. See 494 F. App’x at 32729. In September, 2009, the district court denied the first motion to amend as moot and denied
the second motion for improper venue, and then the Plaintiffs’ voluntarily dismissed their case in
that venue. See 494 F. App’x at 327-29. The plaintiffs then filed a new complaint in the correct
federal venue, arguing that the previous motions to amend had tolled the ninety-day limitations
period, but the new district court disagreed, and “rejected the Plaintiffs’ argument that moving to
amend their complaint in [the first case] tolled Title VII’s statute of limitations and noted that the
case was not one that turns on a plaintiff missing the filing deadline by a few days.” 494 F.
App’x at 327-29 (internal quotation marks omitted). The Court notes that, subsequent to Angles
v. Dollar Tree Stores, that maxim has been followed faithfully in the Fourth Circuit, creating a
“general rule that a Title VII complaint that has been filed but then dismissed without prejudice
does not toll the 90 day limitations period.” Crain v. Gaston Cnty. Bd. of Educ., 2015 WL
6449413, at *3 (W.D.N.C. 2015)(Mullen, J.)(citing Angles v. Dollar Tree Stores, 494 F. App’x
at 329; Birch v. Peters, 25 F. App’x 122, 123 (4th Cir. 2001)(per curiam); Nwaobasi v. First Sec.
Fed. Sav. Bank, Inc., 105 F.3d 647 (4th Cir. 1997); Minnette v. Time Warner, 997 F.2d 1023,
1027 (2nd Cir. 1993); Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992);
Brown v. Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d 959, 961 (10th Cir. 1991), abrogated on
other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002); O’Donnell v.
Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006)(reaching the same holding in Title VII and

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ADEA contexts); Chico-Velez v. Roche Prods., Inc., 139 F.3d 56, 59 (1st Cir. 1998)(reaching
the same holding the same in ADA context)).
The Fifth Circuit, in United States ex rel Matthews v. HealthSouth Corp., also held a
complaint untimely where a plaintiff delivered -- but failed to ultimately receive leave of the
court, because he did not file a concurrent motion for leave to amend -- his amended complaint
before the limitations period ran on an employment discrimination claim. See 332 F.3d at 294.
Although the clerk of the court alerted the plaintiff to the error, when he finally redelivered a
motion for leave to amend, the limitations period had already run. See 332 F.3d at 294. The
Fifth Circuit thus affirmed the district court’s dismissal of the complaint, because it was time
barred -- the timely but failed attempt to amend did not toll the limitations period. See 332 F.3d
at 297.
In another out-of-circuit case involving limitations periods and dismissed complaints, a
Connecticut district court concluded that a motion to amend that it had denied could not toll or
otherwise satisfy a statute of limitations. See Goldblatt v. Nat’l Credit Union Admin., 2011 WL
4101470, at *1-4 (D. Conn. 2011)(Eginton, J.), aff’d 502 F. App’x 53 (2d Cir. 2012). In that
litigation, brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), a plaintiff had
originally sued a number of banks in a different lawsuit and then moved to amend the complaint
to add as a defendant the National Credit Union Administration. See Goldblatt v. Nat’l Credit
Union Admin., 2011 WL 4101470, at *1-2. That district court denied the motion to amend,
positing that a different lawsuit would be the more appropriate forum. See 2011 WL 4101470, at
*1-2. Accordingly, when faced with a complaint that was filed more than six months after the
statute of limitations had expired, the district court concluded that, “[i]n this instance, the motion

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to amend was denied and therefore filing such motion does not toll the Section 2401(b)’s
limitation period.” 2011 WL 4101470, at *3. The district court also suggested that the
Plaintiffs’ motion to amend the prior filed complaint against Wells Fargo does not
constitute commencement of an action against the NCUA. If th[e] Court had
granted the leave to amend the complaint to add the action against the NCUA, the
timeliness of plaintiffs’ NCUA action would have been considered in light of the
strict requirements of Section 2401(b). Plaintiffs’ action would have related back
to the original pleading, which was filed prior to the denial of the administrative
claim. Fed. R. Civ. P. 15 (“An amendment to a pleading relates back to the date of
the original pleading when . . . the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out . . . in the original
pleading”). Accordingly, plaintiffs’ claim would have been untimely and would
have been dismissed.
2011 WL 4101470 at *3.
The Tenth Circuit reached a similar conclusion as that of the Fourth Circuit in Brown v.
Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d at 961. The Tenth Circuit, in that case, was
considering a plaintiff’s suit against the Hartshorne School District, under Title VII and 42
U.S.C. § 1983, which the district court, in relevant part, dismissed, “concluding that the suit was
barred by the applicable statute of limitations.” 926 F.2d at 961. The case had a tortured
procedural history, which the Tenth Circuit described as follows:
We previously considered Brown’s claims and set out the history of her attempts
to seek relief under Title VII and section 1983 in Brown v. Hartshorne Pub.
School Dist. No. 1, 864 F.2d 680, 681 (10th Cir. 1988)(Brown I), as follows:
“She filed her first EEOC charge alleging national origin
discrimination in January 1979, and filed her first suit in April of
that year. That suit was dismissed without prejudice. Brown
refiled the suit in November 1980, and it was again dismissed in
September 1981. She filed a second administrative charge of
discrimination with respect to the 1984-85 school year on August
7, 1984, received a right-to-sue letter from the EEOC October 5,
1985, and filed this action January 2, 1986. In the instant
complaint, Brown seeks relief under Title VII and section 1983,
alleging both that the District has discriminated against her during
the last ten years because she is Mexican-American, and that the

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District refused to hire her for the 1985-86 school year in
retaliation for her previous suits.”
Thus, Brown received her most recent right-to-sue letter on October 5, 1985, and
filed a timely action on January 2, 1986. On appeal in that action we reversed the
district court’s grant of summary judgment in favor of the school district and
remanded for further proceedings. Following our remand and shortly before trial
was to begin, Brown filed a motion for voluntary dismissal because her attorney
was incapacitated with a back injury. The case was dismissed without prejudice
on October 18, 1989, and Brown filed the instant action on November 17, 1989.
Brown v. Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d at 960-61. Without much discussion, the
Tenth Circuit quickly concluded:
The district court was correct . . . in holding Brown’s Title VII claim barred by
the applicable statute of limitations. Title VII requires that a plaintiff bring a
judicial action within ninety days of receipt of a right-to-sue letter. See 42 U.S.C.
§§ 2000e-5(f)(1) (1988). It is hornbook law that, as a general rule, a voluntary
dismissal without prejudice leaves the parties as though the action had never been
brought. See, e.g., Robinson v. Willow Glen Academy, 895 F.2d 1168, 1169 (7th
Cir. 1990); Dupree v. Jefferson, 666 F.2d 606, 611 (D.C. Cir. 1981); 5 J. Moore &
J. Lucas, Moore’s Federal Practice ¶ 41.05[2] at 41-66 to -67 (2d ed. 1990); 9 C.
Wright & A. Miller, Federal Practice & Procedure § 2367 at 186 (1971). In the
absence of a statute to the contrary, the limitation period is not tolled during the
pendency of the dismissed action. See id.; see also Willard v. Wood, 164 U.S.
502, 523[] (1896); Stein v. Reynolds Sec., Inc., 667 F.2d 33, 33-34 (11th Cir.
1982). Courts have specifically held that the filing of a complaint that is
dismissed without prejudice does not toll the statutory filing period of Title VII.
See Price v. Digital Equip. Corp., 846 F.2d 1026, 1027 (5th Cir. 1988)(per
curiam); Wilson v. Grumman Ohio Corp., 815 F.2d 26, 28 (6th Cir. 1987)(per
curiam). We agree.
Brown v. Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d at 961. The Tenth Circuit also concluded,
however, that, with respect to the plaintiff’s § 1983 claim, there was no similar limitations
period, and so it reversed and remanded the judgment as to those claims. See 926 F.2d at 961.
The Court notes that, subsequent to the Tenth Circuit’s opinion in Brown v. Hartshorne Pub.
Sch. Dist. No. 1, the Tenth Circuit has recognized an abrogation of some major employmentdiscrimination precedent that had been applicable at the time of that opinion by the Supreme
Court in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 114.
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[T]he Supreme Court in National Railroad Passenger Corp. v. Morgan . . .
effected fundamental changes to the doctrine allowing administratively
unexhausted claims in Title VII actions. . . . Morgan abrogates the continuing
violation doctrine as previously applied to claims of discriminatory or retaliatory
actions by employers, and replaces it with the teaching that each discrete incident
of such treatment constitutes its own unlawful employment practice for which
administrative remedies must be exhausted.
Keeler v. Cereal Food Processors, 250 F. App’x 857, 860-61 (10th Cir. 2007). The Court also
notes that, in Keeler v. Cereal Food Processors, the Tenth Circuit -- despite recognizing an
abrogation -- reaffirmed that the maxim that “the filing of a complaint that is dismissed without
prejudice does not toll the statutory filing period of Title VII,” as it was announced by Brown v.
Hartshorne Pub. Sch. Dist. No. 1, was unaffected by the abrogation. Keeler v. Cereal Food
Processors, 250 F. App’x at 859 (“Mr. Keeler does not identify any error in this portion of the
district court’s ruling and we therefore affirm the dismissal of his claims alleged in his First,
Second, and Third Charges as untimely.”).
The Tenth Circuit has reached the same conclusion as to the effect of a denied motion to
intervene. In McIntosh v. Boatman’s First Nat’l Bank of Okla., 1996 WL 685655, at *1 (10th
Cir. 1996), which the Tenth Circuit, in an unpublished opinion, considered an untimely
complaint that a plaintiff brought under the Fair Housing Act, 42 U.S.C. § 3601. See 1996 WL
685655, at *1. Although the plaintiff had missed the time to satisfy the statute of limitations, the
plaintiff nonetheless persisted, because, as he argued, “his unsuccessful attempts to intervene as a
party plaintiff in another FHA case against the same Defendant tolled the running of the
limitations period in this action.” 1996 WL 685655, at *1. The Tenth Circuit summarily
disagreed with the plaintiff’s logic, explaining:
It is not the filing of the motion qua motion which tolls the limitations period;
rather, it is the fact that that motion is granted, establishing the intervenor as a
proper party to the lawsuit, which renders the subsequent complaint timely. Mr.
McIntosh’s attempt to intervene in the Parker case was denied because he had no
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standing in that lawsuit -- and his complaint was dismissed without prejudice.
The filing of a complaint that is dismissed without prejudice does not toll the
statutory filing period.
1996 WL 685655, at *1 (citing Simons v. Southwest Petro-Chem, Inc., 28 F.3d 1029, 1030 (10th
Cir. 1994)(holding that the filing of a complaint that is dismissed without prejudice does not toll
Title VII’s statutory filing period); Brown v. Hartshorne Public Sch. Dist. # 1, 926 F.2d at 961)).
More recently the Tenth Circuit has also held:
The purpose of the statute of limitations is to promote justice by preventing
surprises through the revival of claims that have been allowed to slumber until
evidence has been lost, memories have faded, and witnesses have disappeared. In
other words, even if one has a just claim it is unjust not to put the adversary on
notice to defend within the period of limitation. To effectuate this purpose, those
jurisdictions that have adopted the rule have necessarily reasoned that an
intervening plaintiff should not be permitted to “piggyback” on the claims of an
earlier plaintiff in order to escape the statutory bar that would normally shield the
defendant from liability as to the intervenor.
Weber v. Mobil Oil Corp., 506 F.3d 1311, 1315 (10th Cir. 2007).
In light of these resolute maxims -- that neither the filing of a complaint that is dismissed
without prejudice nor a motion to intervene which is not granted will toll a limitations period -Benavidez is asking the Court to distinguish the operative effect of her decision to withdraw the
Motion for Leave to Substitute Second Amended Complaint. See Motion to Reconsider at 1-2.
The Court is convinced that the effect of withdrawal is to remove from its consideration the
withdrawn pleading, which is akin to a voluntary dismissal of an action or a denied attempt to
intervene as a party or to amend a complaint. In either of these cases, it is as though the action or
motion was not brought in the first place. Cf. McIntosh v. Boatman’s First Nat’l Bank of Okla.,
1996 WL 685655, at *1 (“It is not the filing of the motion qua motion which tolls the limitations
period; rather, it is the fact that that motion is granted . . . .”); Brown v. Hartshorne Pub. Sch.
Dist. No. 1, 926 F.2d at 961 (“It is hornbook law that, as a general rule, a voluntary dismissal

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without prejudice leaves the parties as though the action had never been brought.”). Further,
Benavidez provides no authority to support her contention that the principles underlying the
Tenth Circuit authority regarding the effect of a complaint dismissed without prejudice or a
denied motion to intervene should not apply to her initial motion to amend. The Court can see
no sound reason why the effect of the withdrawal of a motion for leave to amend should be
meaningfully distinguished from the effect of a voluntary dismissal in this context. Indeed, when
looking closely at the logic underlying the Fourth Circuit’s opinion in Angles v. Dollar Tree
Stores, the Court is hard pressed to apply a different maxim of law to this case.
In Angles v. Dollar Tree Stores, the district court told the plaintiff it was inclined to deny
a motion to amend a complaint to add Title VII claims, because of improper venue. See 494 F.
App’x at 327-29. After the district court gave its inclination in Angles v. Dollar Tree Stores,
however, the plaintiff chose not to do the prudent thing -- voluntarily dismiss and file a new
complaint in the proper venue (or, perhaps, as the Angles v. Dollar Tree Stores dissent argued,
the district court should have transferred the case on its own) -- but instead hung tough and filed
yet another motion to amend before the very same federal district court. See 494 F. App’x at
327-29. When the district court formally denied the first motion to amend as moot and denied
the second motion to amend for improper venue, the plaintiffs finally voluntarily dismissed their
case in that venue. See 494 F. App’x at 327-29. When the plaintiffs then filed a new complaint
in the correct federal venue, the limitations period had lapsed, leaving them only to argue that the
previous motions to amend and add those claims in the other case had tolled the ninety-day
limitations period, but the new district court disagreed, and “rejected the Plaintiffs’ argument that
moving to amend their complaint in [the first case] tolled Title VII’s statute of limitations and
noted that the case was not one that turns on a plaintiff missing the filing deadline by a few

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days.” 494 F. App’x at 327-29 (internal quotation marks omitted). The facts of this case are not
as dissimilar as Benavidez would like.
Here, the Court gave its inclination at the January, 2016, hearing that it was going to
conclude that the state-law claims which Benavidez had alleged were preempted. See January
Tr. at 22:23-24:20 (Court). Nonetheless, Benavidez, when faced with the proposed Plaintiffs’
need to file their federal employment discrimination claims against Sandia Labs before the
limitations period lapsed, made a decision to file the Motion for Leave to Substitute Second
Amended Complaint and attached a Proposed Second Amended Complaint which failed to
rectify the deficiencies in the First Amended Complaint and added as parties the proposed
Plaintiffs. See Motion for Leave to Substitute Second Amended Complaint at 1. Upon review of
the Proposed Second Amended Complaint, the Court was prepared to deny leave to amend -- at
least in part -- because it failed to rectify any of the First Amended Complaint’s deficiencies.
See Tr. at 14:10-11 (Court)(denying the Motion for Leave to Substitute Second Amended
Complaint as to the way it was filed). Benavidez and the proposed Plaintiffs moved first,
however, and filed their Motion to Withdraw and Amend. See Motion to Withdraw and Amend
at 1. The Court, as requested, then granted withdrawal in its September 30, 2016, Order. See
Order at 1-2. At this point in the litigation, the Court can discern no meaningful distinction
between the effect of the Court’s granted withdrawal of the proposed amended complaint adding
proposed Plaintiffs and their federal employment discrimination claims and, for example, the
denial of multiple motions to amend for lack of venue and subsequent voluntary dismissal -- the
circumstances in Angles v. Dollar Tree Stores. See 494 F. App’x at 327-29. Indeed, as the
Tenth Circuit has stated,“[i]t is hornbook law that, as a general rule, a voluntary dismissal
without prejudice leaves the parties as though the action had never been brought.” Brown v.

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Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d at 961. The Court is thus convinced and concludes
that the effect of withdrawal can similarly be styled as leaving the parties as though the
withdrawn motion for leave to amend the complaint had never been brought. Cf. McIntosh v.
Boatman’s First Nat’l Bank of Okla., 1996 WL 685655, at *1 (“It is not the filing of the motion
qua motion which tolls the limitations period; rather, it is the fact that that motion is granted . . .
.”); Weber v. Mobil Oil Corp., 506 F.3d at 1315 (“[A]n intervening plaintiff should not be
permitted to ‘piggyback’ on the claims of an earlier plaintiff in order to escape the statutory bar
that would normally shield the defendant from liability as to the intervenor.”). Accordingly, no
motion for leave to amend the complaint came before the Court before the proposed Plaintiffs’
deadline and thus there can be no tolling of the proposed Plaintiffs’ claims’ limitations period.
See McIntosh v. Boatman’s First Nat’l Bank of Okla., 1996 WL 685655, at *1. The proposed
Plaintiffs’ limitations period lapsed on February 29, 2016, and the Court has no complaint, or
motion for leave to amend the First Amended Complaint, for its consideration which was filed
before the proposed Plaintiffs’ limitations period lapsed. When the Court granted Benavidez’
request to withdraw the Motion for Leave to Substitute Second Amended Complaint in its
September 30, 2016, Order, it was as if the Proposed Second Amended Complaint had never
been brought, and, consequently, no complaint existed to toll the limitations period.

See

McIntosh v. Boatman’s First Nat’l Bank of Okla., 1996 WL 685655, at *1.
As to Benavidez’ argument regarding the time that might still remain on the clock,
because the Motion for Leave to Substitute Second Amended Complaint was filed on February
10, 2016, and because the limitations period was not going to lapse until February 29, 2016, and
because the Motion to Withdraw and Amend -- as it pertains to the Proposed Third Amended
Complaint -- was not denied until the Court entered the Amendment MOO on January 17, 2017,

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the Court cannot agree that time might still remain. Benavidez, by that argument, essentially
asks the Court to allow her to skirt pleading standards, and authorize a plaintiff to -- in perpetuity
-- (i) hastily file a proposed deficient amended complaint to meet a limitations period deadline;
(ii) realize their proposal’s futility; and then (iii) move to withdraw the deficient complaint and,
contemporaneously, substitute another proposed amended complaint curing the deficiencies. All
the while, the Defendant -- here, Sandia Labs -- must wait and litigate. This procedure is
particularly unfair when, as happened here, the Court alerted the Plaintiffs to their pleading
deficiencies which they have nonetheless maintained in a proposed amended complaint. The
Court, accordingly, considers the best result to be that which it has reached here; when the Court
granted Benavidez’ request to withdraw the Motion for Leave to Substitute Second Amended
Complaint in its September 30, 2016, Order, it was as if the Proposed Second Amended
Complaint had never been brought, and, consequently, no complaint remains to toll the
limitations period.
The Court recognizes that the ninety-day filing period for Title VII civil actions can also
be “subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393 (1982). See Gad v. Kan. State Univ., 787 F.3d 1032, 1036-37 (10th Cir. 2015).
Here, however, although Benavidez does not request that the Court reconsider its conclusion not
to apply equitable tolling, the Court reiterates that it would not reconsider that conclusion. The
doctrine of equitable tolling applies only in “exceptional circumstances.” Yang v. Archuleta,
525 F.3d at 928 (“Generally, equitable tolling requires a litigant to establish two elements: (1)
that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way.”). Benavidez originally requested some form of waiver or equitable tolling,
because the Proposed Second Amended Complaint was timely filed; the Court sees, however, no

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such exceptional circumstances, nor sound reason to invent a waiver on these facts because of
the existence of the now-withdrawn Proposed Second Amended Complaint. Further, the Court
has a difficult time saying that the proposed Plaintiffs acted diligently to protect their rights.
Nothing prevented them from filing separate lawsuits to beat the running of the limitations
period or from engaging in negotiations with Sandia Labs to enter into a tolling agreement.
Sandia Labs did not do anything to prevent the proposed Plaintiffs from filing separate lawsuits.
Instead, Sandia Labs tried to help the proposed Plaintiffs by suggesting that they enter into
tolling agreement negotiations. The proposed Plaintiffs pursued a different strategy, and the
Court will not create new equitable or waiver doctrines to save them from their deliberate
decisions.
B.

THE COURT WILL NOT DEEM FILED THE PROPOSED THIRD
AMENDED COMPLAINT ON THE DATE BENAVIDEZ FILED THE
PROPOSED SECOND AMENDED COMPLAINT.

Benavidez next advances, as grounds for reconsideration of the Amendment MOO, her
argument that the Motion for Leave to Substitute Second Amended Complaint, filed on February
10, 2016, “satisfied the 2000e-5(f)(1) requirement to commence an action within 90 days of the
right-to-sue notice,” because it “attached the proposed amended complaint, including the Second
Plaintiffs’ claims.” Motion to Reconsider at 10. Benavidez’ argument, at its core, is the same as
her argument for continued tolling of the limitations period by her filing of the Motion for Leave
to Substitute Second Amended Complaint. See Motion to Reconsider, passim. According to
Benavidez, the purpose of the Motion to Withdraw and Amend was merely to remove the state
law claims from the Proposed Second Amended Complaint in accordance with the Court’s
Preemption MOO, which the Court filed June 27, 2016, about which it gave its inclination at the
January, 2016, hearing. See Motion to Reconsider at 10. Benavidez thus asserts:

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Defendant and the Court anticipated a new complaint would be presented that
would eliminate the state law claims. Plaintiff’s Motion to Withdraw and
[Amend] sought withdrawal of the original [Motion for Leave to Substitute
Second Amended Complaint] and simultaneous substitution of a nearly identical
motion to amend. Plaintiff attached a proposed complaint that eliminated the
state law claims and was otherwise identical to the complaint attached to the July
supplemental briefing. For these reasons, the [Proposed] Third Amended
Complaint, which was attached to the Motion to Withdraw and [Amend], should
be deemed filed on the date of the original [Motion for Leave to Substitute
Second Amended Complaint], February [10], 2016.
Motion to Reconsider at 11. See Notice of Errata at 1. According to Benavidez, then, the
proposed Plaintiffs’ Proposed Third Amended Complaint
should be “deemed filed” on February [10], 2016. The time tolled on February
[10], 201[6] when the Plaintiff filed a motion to amend. On August 31, 2016,
when Plaintiff filed the Motion to [Withdraw and] Amend, the time was still
tolled. Nothing happened on August 31, 2016 that could stop the suspension of
the 90-day period -- Plaintiff did not dismiss a complaint without prejudice and
did not abandon any claim or argument, nor did the Court grant or deny a motion.
Thus, even if the [proposed] Plaintiffs’ [Proposed Third Amended Complaint] is
deemed filed August 31, 2016, the complaints were still timely because on August
31, 2016, [proposed] Plaintiffs had brought an action within the suspended 90-day
period. As a result, the time would not have expired.
Motion to Reconsider at 12. Further, Benavidez asserts, the Tenth Circuit “has indicated only
that a complaint is not ‘deemed filed’ if a plaintiff abandons a claim by motion to dismiss
without prejudice or if a motion to intervene is denied.” Motion to Reconsider at 6.
Sandia Labs responds to this line of Benavidez’ argumentation with the same arguments
it made against survival of tolling after a motion is withdrawn. See Motion to Reconsider,
passim. In particular, Sandia Labs acknowledges that, regarding the “deemed filed” principle,
for the purposes of a motion to amend, a court will deem filed an amended complaint, for statute
of limitations purposes, on the date the motion is filed rather than when it is eventually granted -but only if the motion is eventually granted. Motion to Reconsider Response at 9 (citing Koch v.
Shell Oil Co., 8 F. Supp. 2d at 1268). Sandia Labs thus rests its opposition on the notion that,

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because a motion or complaint which is denied or dismissed cannot toll a limitations period, the
Proposed Third Amended Complaint should not be deemed filed as of the date of a Proposed
Second Amended Complaint which was withdrawn after the Plaintiffs realized they had made a
mistake by including state law claims that the Court was inclined to conclude were preempted.
The Court, once more, has trouble agreeing with Benavidez. Again, the Court has
already explored case law establishing maxims that that neither the filing of a complaint that is
dismissed without prejudice nor a motion to intervene which is not granted will toll a limitations
period. The Court has also concluded that the withdrawal of a motion for leave to amend,
similarly, will not toll a limitations period given its similarity to the circumstances in those
scenarios. Cf. McIntosh v. Boatman’s First Nat’l Bank of Okla., 1996 WL 685655, at *1 (“It is
not the filing of the motion qua motion which tolls the limitations period; rather, it is the fact that
that motion is granted . . . .”); Weber v. Mobil Oil Corp., 506 F.3d at 1315 (“[A]n intervening
plaintiff should not be permitted to ‘piggyback’ on the claims of an earlier plaintiff in order to
escape the statutory bar that would normally shield the defendant from liability as to the
intervenor.”). What Benavidez asks, essentially, is for the Court to reconsider its conclusion that
the effect of the Court’s grant of withdrawal in the September 30, 2016, Order, be ignored.
Benavidez argues: “Nothing happened on August 31, 2016 that could stop the suspension of the
90-day period -- Plaintiff did not dismiss a complaint without prejudice and did not abandon any
claim or argument, nor did the Court grant or deny a motion.” Motion to Reconsider at 12. To
use Benavidez’ own phrase, the Court did, however, “grant or deny a motion” on September 30,
2016, which withdrew from its consideration the Proposed Second Amended Complaint. Motion
to Reconsider at 12. See Order at 1-2. Benavidez’ support for her argument -- “[i]f a proposed
amended complaint is attached to the motion to amend, the amended complaint is deemed filed

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as of the date of the filing of the motion to amend,” Kane County v. United States, 934 F. Supp.
2d at 1363-64 -- here fails, because, at best, the Court could only conclude that the Proposed
Third Amended Complaint should be deemed filed on August 31, 2016, when Benavidez filed
the Motion to Withdraw and Amend. That date, August 31, 2016, does not satisfy the limitations
period of February 29, 2016. To be sure, the Proposed Second Amended Complaint, attached to
the Motion for Leave to Substitute Second Amended Complaint, would have been deemed filed
on February 10, 2016, and not on the date which the Court eventually granted the Motion for
Leave to Substitute Second Amended Complaint, should the Court have granted it. That is the
process about which Kane County v. United States, 934 F. Supp. 2d at 1363-64, is concerned,
and not, as Benavidez would have the Court conclude, the process by which Benavidez
proceeded in this case. As a consequence, the Court cannot soundly conclude that the Proposed
Third Amended Complaint can be deemed filed as of the filing date of the Proposed Second
Amended Complaint -- Benavidez withdrew the Proposed Second Amended Complaint. As the
Court held with respect to potential tolling, the Court -- in its reconsideration of the Amendment
MOO -- will not change its conclusion regarding the effect of the motion’s withdrawal. The
Court is convinced and concludes that the withdrawal’s effect can be styled as leaving the parties
as though the withdrawn motion for leave to amend the complaint had never been brought. Cf.
McIntosh v. Boatman’s First Nat’l Bank of Okla., 1996 WL 685655, at *1 (“It is not the filing of
the motion qua motion which tolls the limitations period; rather, it is the fact that that motion is
granted . . . .”); Weber v. Mobil Oil Corp., 506 F.3d at 1315 (“[A]n intervening plaintiff should
not be permitted to ‘piggyback’ on the claims of an earlier plaintiff in order to escape the
statutory bar that would normally shield the defendant from liability as to the intervenor.”).

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C.

THE COURT WILL MAINTAIN ITS CONCLUSION THAT THE
PROPOSED THIRD AMENDED COMPLAINT, AS IT PERTAINS TO
THE PROPOSED PLAINTIFFS, WILL NOT RELATE BACK TO A DATE
WHICH SATISFIES THE LIMITATIONS PERIOD.

Last, in the interest of justice -- even though Benavidez does not request the Court
reconsider its conclusion regarding relation back under rule 15(c) -- the Court will take a hard
look at its analysis nonetheless. Essentially, because the Court concluded that the effect of its
grant of the Motion to Withdraw and Amend on September 30, 2016, was to remove from its
consideration the only proposed complaint which was timely filed, the Court further concluded
that amendment adding the proposed Plaintiffs to the lawsuit at this time would be futile, because
their claims are time barred. See Amendment MOO at 57-67, 2017 WL 2266854, at *27-30.
The Court considered that, given that Benavidez had withdrawn the Motion for Leave to
Substitute Second Amended Complaint, the proposed Plaintiffs’ only chance at successfully
getting a complaint before the Court which is not deficient on account of the lapse of the
statutory period would be if the Proposed Third Amended Complaint could relate back to a time
before the limitations period had lapsed. See Amendment MOO at 57-67, 2017 WL 2266854, at
*27-30.

The Court, in the Amendment MOO, however, saw no sound way in which the

Proposed Third Amended Complaint might somehow relate back to the timing of the First
Amended Complaint -- in which the three additional Plaintiffs were not named -- or even to the
timing of the withdrawn Proposed Second Amended Complaint, which the Court has now
reconsidered exhaustively in the present Memorandum Opinion. After reviewing the case law on
the matter, the Court maintains the analysis of the relation-back doctrine upon which it relied in
the Amendment MOO. See Amendment MOO at 57-67, 2017 WL 2266854, at *27-30. The
Court’s reconsideration analysis of this issue is as follows.
Rule 15(c) reads:
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(1) When an Amendment Relates Back. An amendment to a pleading relates
back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations
allows relation back;
(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out -- or attempted to be set
out -- in the original pleading; or11
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not
be prejudiced in defending on the merits; and
(ii) knew or should have known that the action
would have been brought against it, but for a
mistake concerning the proper party’s identity.
Fed. R. Civ. P. 15(c).
Rule 15(c) provides that, where an amendment would add a party, “relation back” can
occur if the party to be added by the amendment “has received such notice of the initiation of the
action that the party would not prejudice in maintaining a defense on the merits.” Brown v.
Uniroyal, Inc., 108 F.3d at 1307. Relation back is dependent upon four factors, all of which
must be satisfied. See Brown v. Uniroyal, Inc., 108 F.3d at 1307. The express factors are as
follows: (i) the basic claim must have arisen out of the conduct set forth in the original pleading;
(ii) the party to be added must have received such notice that it will not be prejudiced in
maintaining its defense; (iii) that party must or should have known that, but for the mistake
concerning identity, the action would have been brought against it; and (iv) the second and third

11

Rule 15(c)(1)(B) is why Benavidez’ claims relate back to the filing date of her First
Amended Complaint, which, as no parties dispute, was timely.
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requirement must have been fulfilled within the prescribed limitation. See Brown v. Uniroyal,
Inc., 108 F.3d at 1307 (citing Schiavone v. Fortune, 477 U.S. 21, 29 (1986)). Of course, in
particular, rule 15(c)(1)(C)(i)-(ii)’s plain language12 purports to regard only the addition of new
defendants by amendment.

As well, the instructions from the Tenth Circuit in Brown v.

Uniroyal, Inc. do not stray from rule 15(c)(1)(C)(i)-(ii)’s express application to the addition of
defendants by amendment. See Brown v. Uniroyal, Inc., 108 F.3d at 1307.
This case, in contrast, involves the addition of new Plaintiffs. See Amendment MOO at
59-66, 2017 WL 2266854, at *28. In the Amendment MOO, the Court concluded that rule
15(c)(1)(C)’s plain language did not apply to allow relation back of an amendment seeking to
add proposed Plaintiffs as parties to this case. See Amendment MOO at 59-66, 2017 WL
2266854, at *28. Despite its exploration of rule 15(c)(1)(C)’s express language, the Court also
noted that it was apparent that 15(c)(1)(C)’s drafters appear to have nonetheless contemplated its
application to the addition of new plaintiffs.

See Amendment MOO at 59-66, 2017 WL

2266854, at *28. The drafter’s amendment notes state:
The relation back of amendments changing plaintiffs is not expressly treated in
revised Rule 15(c) since the problem is generally easier. Again the chief
consideration of policy is that of the statute of limitations, and the attitude taken
in revised Rule 15(c) toward change of defendants extends by analogy to
amendments changing plaintiffs.
Amendment MOO at 61, 2017 WL 2266854, at *28 (quoting Fed. R. Civ. P. 15(c) advisory
committee’s notes to 1966 amendment). Accordingly, the Court provided that most courts do
not automatically dismiss amendments proposing to add new plaintiffs and instead generally
12

“The rules of statutory construction apply to the Federal Rules . . . .” In re Kubler, 2012
WL 394680, at *11 (D.N.M. 2012)(Browning, J.). Accord Leatherman v. Tarrant Cnty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)(applying the expressio
unius est exclusio alterius canon when interpreting rule 9(b) of the Federal Rules of Civil
Procedure); Hillis v. Heineman, 626 F.3d 1014, 1017-18 (9th Cir. 2010)(“This same principle of
statutory construction applies to interpreting the Federal Rules of Civil Procedure.”).
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apply the same standard used to add new defendants -- rule 15(c)(1)(C)(i) and (ii) -- when such is
applicable. See Amendment MOO at 61, 2017 WL 2266854, at *28 (citing Leachman v. Beech
Aircraft Corp., 694 F.2d 1301, 1308-10 (D.C. Cir. 1982)). The Court explained, for example,
that the D.C. Circuit has held that there is a
need to limit relation back of claims asserted by new plaintiffs in some way
beyond the “conduct, transaction, or occurrence” test that applies to relation back
of amendments generally. Without some limit, total strangers with claims arising
out of a multi-victim incident might join pending actions long after the statute of
limitations had lapsed. That would allow the tardy plaintiffs to benefit from the
diligence of the other victims and, more importantly, could cause defendants’
liability to increase geometrically and their defensive strategy to become far more
complex long after the statute of limitations had run. Even if, as here, there were
no showing of specific prejudice in the sense of lost or destroyed evidence,
defendants would still be deprived of their interest in repose. At some point,
defendants should have notice of who their adversaries are . . . [and] [t]he point of
the courts’ consideration of identity of interest is that that factor ensures that the
old and new plaintiffs are sufficiently related so that the new plaintiff was in
effect involved in the proceedings unofficially from an early stage.
Leachman v. Beech Aircraft Corp., 694 F.2d 1301, 1308-10 (internal citations, quotation marks
and alterations omitted). See Pierce v. Long John Silver, Inc., 1996 WL 153564 (E.D. Pa.
1996)(Dalzell, J.)(relying on Nelson v. Cnty. of Allegheny, 60 F.3d 1010, 1014-16 (3d. Cir.
1995), and holding that no matter the plaintiff/defendant status of the party to be added, the
analysis entails whether defendants (i) received such notice that they will not be prejudiced in
maintaining a defense on the merits; and (ii) knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would have been brought with the original
claims); Ambraziunas v. Bank of Boulder, 846 F. Supp. 1459, 1467 (D. Colo. 1994)(Kane,
S.J.)(“They have not, however, established that Defendants had notice of their additional claims
or that there was any mistake in the original complaint to merit the relation back of the claims of
the new Plaintiffs to the filing of the original complaint on June 30, 1993.”). After that analysis,
the Court noted its uncertainty why rule 15(c)(1)(C)’s plain language would be at odds with the
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drafter’s commentary in that fashion,13 but concluded, nonetheless, that even the drafter’s
commentary did not, anyway, encompass the addition of the proposed Plaintiffs to this case. See
Amendment MOO at 63, 2017 WL 2266854, at *28. The Court explained:
The Court’s research has uncovered authority across various Courts of
Appeals having the opportunity to address this issue that indicates that deviation
from rule 15(c)(1)(C)(i) and (ii)’s express language, to account for the distinct
nature of a plaintiff as compared to a defendant, is commonplace. See, e.g.,
Wright, Miller, Kane, Marcus, Spencer & Steinman, 6A Fed. Prac. & Civ. Proc. §
1501, Relation Back of Amendments Changing Parties -- New Plaintiffs (3d
ed.)(April, 2016)(collecting cases and explaining that some courts liberally read
rule 15 to account for the addition of plaintiffs in amended complaints).
Courts deciding whether to allow amendments changing plaintiffs
to relate back to the filing of the original complaint seem to
concentrate on the notice and identity-of-interest factors as they do
in the case of amendments changing defendants. Relation back
thus will be permitted unless the court finds that defendant did not
have adequate notice or that the new and the existing plaintiffs did
not share a sufficient identity of interest. Thus, an amendment
substituting a new plaintiff has been held to relate back if the
added plaintiff is the real party in interest. As the Advisory
Committee Note to the 1966 amendment to Rule 15(c) indicates,
the liberal attitudes toward substitution of the real party in interest
prescribed by both Rule 17(a) and Rule 15(c) are closely related.
Wright, Miller, Kane, Marcus, Spencer & Steinman, 6A Fed. Prac. & Civ. Proc. §
1501, Relation Back of Amendments Changing Parties -- New Plaintiffs (3d
ed.)(April, 2016). See Plubell v. Merck & Co., Inc., 434 F.3d 1070, 1074 (8th
Cir. 2006)(involving an amended pleading, substituting a new class representative
in a class action against a manufacturer of a prescription-pain drug alleging
deceptive trade practices, and holding the amendment related back to the original
filing, and thus the Class Action Fairness Act, 28 U.S.C. § 1322(d), did not apply
to allow federal jurisdiction, when the claims were exactly the same in both
pleadings and the newly named class representative was a member of the putative
class in the original petition); Slaughter v. Southern Talc Co., 949 F.2d 167, 17475 (5th Cir. 1991)(involving amendment to substitute widows for workers who
13

The Court questions, for example, whether the commentary in fact purports to create a
theory by which the addition of new Plaintiffs might be accomplished by reference only to rule
15(c)(1)(B), given the general incompatibility between rule 15(c)(1)(C)’s language and the
addition of plaintiff-parties -- i.e., there is only a narrow set of facts, as narrow as that pertaining
to party-defendants, upon which relation back of amendments adding party-plaintiffs exists. Cf.
Leachman v. Beech Aircraft Corp., 694 F.2d at 1308-10.
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had allegedly suffered asbestos-related injury in a products-liability and wrongfuldeath action, and holding that such claim unquestionably arose out of same injury
as the original pleadings and thus related back to the original pleadings for
purposes of the limitations period where the widows were plaintiffs in the original
complaint, and the manufacturers were not prejudiced by the amendment -- also
noting, however, that the result might be different if the “amendment sought to
introduce an entirely unrelated party”); Avila v. I.N.S., 731 F.2d 616, 620 (9th
Cir. 1984)(involving an adult incompetent’s father who amended a claim against
the federal government to add himself as a claimant to be reimbursed for expenses
he incurred in the search for his son who had been deported, where the agency did
not deny the claim as amended until two weeks later, and where the son’s claim
was filed within the two-year statute of limitations for the presentation of claims
to the agency involved, and holding that the amendment related back to the
original claim in the absence of showing prejudice accruing to the government);
Brauer v. Republic Steel Corp., 460 F.2d 801, 804 (10th Cir. 1972)(involving, in a
products liability suit against a defendant, what appears to be a unit operator of an
oil field/owner of an oil lease (the original plaintiff), an owner of an adjacent oil
lease (added plaintiff), and the retained engineering firm for a waterflood project
(added plaintiff), and holding that “a close identity of interest existed among [] the
original plaintiff, and [] the added plaintiffs. They owned the leases covered by
the waterflood. The issues presented by the original complaint and by the
amended complaint arose out of the same transaction or occurrence”).
Amendment MOO at 63-65, 2017 WL 2266854, at *28-29. Accordingly, although Sandia Labs
can fairly be said to have notice of the potential claims against it by the proposed Plaintiffs, see
rule 15(c)(1)(C)(i), the Court determined that the requirement enumerated by rule 15(c)(1)(C)(ii)
was not met in this case -- there has not been a “mistake concerning the proper party’s identity,”
Amendment MOO at 65, 2017 WL 2266854, at *30 (citing Fed. R. Civ. P. 15(c)(1)(C)(ii)).
While some courts appear to have endeavored to liberally construe rule 15(c)’s language, the
Court is still hard pressed to conclude that the case law regarding those additions of plaintiffs and
relation back of their amendments is favorably comparable to this case. See Amendment MOO
at 65-67, 2017 WL 2266854, at *30 (citing, e.g., Plubell v. Merck & Co., Inc., 434 F.3d 1070;
Slaughter v. Southern Talc Co., 949 F.2d at 167; Avila v. I.N.S., 731 F.2d at 616; Brauer v.
Republic Steel Corp., 460 F.2d at 804). The Court’s conclusion in the Amendment MOO
regarding this issue is as follows:
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Generally, those cases that have allowed relation back involve factual scenarios
where the added-plaintiff was a successor-in-interest, custodian, or had a closeidentity interest to a victim of the same incident -- i.e., an engineering company
retained by an oil-field unit operator, see Brauer v. Republic Steel Corp., 460 F.2d
at 804. In this case, each of the proposed Plaintiffs’ cases is unique -- each
proposed Plaintiff has her own claims against Sandia Labs, wholly independent
from the other. They are not closely intertwined, as far as the Court can tell, and
are not necessary parties to each other’s case. Indeed, the Court is not yet
convinced that the proposed Plaintiffs’ allegations even arise out of the same
occurrences under rule 15(c)(1)(B) and suffice compulsory joinder, as the drafters
suggested might be the lodestar under rule 15(c) regarding the addition of
Plaintiffs. In light of rule 15(c)(1)(C)’s plain language, then, and the
incompatibility of this case with the general body of case law authorizing the
relation back of an amendment adding new plaintiffs under rule 15(c) at large, the
Court thus concludes that the proposed Plaintiffs’ complaints do not relate back to
the filing of the First Amended Complaint. Because of this conclusion, the
Proposed Third Amended Complaint’s addition of the proposed Plaintiffs would
be futile, because -- as all parties agree -- these federal employment
discrimination claims are time barred.
Amendment MOO at 65-66, 2017 WL 2266854, at *30. The Court, in its reconsideration of the
case law underpinning rule 15, is still not persuaded that the guidance of Wright and Miller, upon
whom it relied on in the Amendment MOO, should be undone at this time. Wright and Miller
explain that:
Courts deciding whether to allow amendments changing plaintiffs to relate back
to the filing of the original complaint seem to concentrate on the notice and
identity-of-interest factors as they do in the case of amendments changing
defendants. Relation back thus will be permitted unless the court finds that
defendant did not have adequate notice or that the new and the existing plaintiffs
did not share a sufficient identity of interest. Thus, an amendment substituting a
new plaintiff has been held to relate back if the added plaintiff is the real party in
interest. As the Advisory Committee Note to the 1966 amendment to Rule 15(c)
indicates, the liberal attitudes toward substitution of the real party in interest
prescribed by both Rule 17(a) and Rule 15(c) are closely related.
Wright, Miller, Kane, Marcus, Spencer & Steinman, 6A Fed. Prac. & Civ. Proc. § 1501, Relation
Back of Amendments Changing Parties -- New Plaintiffs (3d ed.)(April 2016). Here, Benavidez
has not appeared to argue in her Motion to Reconsider that the Court reached a deficient
conclusion when it provided that, at this time,
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[i]n this case, each of the proposed Plaintiffs’ cases is unique -- each proposed
Plaintiff has her own claims against Sandia Labs, wholly independent from the
other. They are not closely intertwined, as far as the Court can tell, and are not
necessary parties to each other’s case. Indeed, the Court is not yet convinced that
the proposed Plaintiffs’ allegations even arise out of the same occurrences under
rule 15(c)(1)(B) and suffice compulsory joinder, as the drafters suggested might
be the lodestar under rule 15(c) regarding the addition of Plaintiffs.
Amendment MOO at 65, 2017 WL 2266854, at *30. The Court has also not uncovered any new
case law or controlling authority pressuring the Court to reconsider its rule 15 analysis.
Accordingly, the Court will not undo its Amendment MOO analysis on the issue at this time,
because neither rule 15(c)’s plain language -- which does not purport to consider relation back as
to new plaintiffs -- nor the body of case law nonetheless allowing relation back for new plaintiffs
have changed at this time to comport with the proposed Plaintiffs’ dilemma in this case. Indeed,
the body of case law nonetheless allowing relation back for new plaintiffs still generally entails
factual scenarios where the added-plaintiff is a successor-in-interest, custodian, or had a closeidentity interest to a victim of the same incident -- i.e., an engineering company retained by an
oil-field unit operator. See Plubell v. Merck & Co., Inc., 434 F.3d at 1074 (involving an
amended pleading, substituting a new class representative in a class action against a
manufacturer of a prescription-pain drug alleging deceptive trade practices, and holding the
amendment related back to the original filing, and thus the Class Action Fairness Act, 28 U.S.C.
§ 1322(d), did not apply to allow federal jurisdiction, when the claims were exactly the same in
both pleadings and the newly named class representative was a member of the putative class in
the original petition); Slaughter v. Southern Talc Co., 949 F.2d at 174-75 (involving amendment
to substitute widows for workers who had allegedly suffered asbestos-related injury in a
products-liability and wrongful-death action, and holding that such claim unquestionably arose
out of same injury as the original pleadings and thus related back to the original pleadings for

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purposes of the limitations period where the widows were plaintiffs in the original complaint,
and the manufacturers were not prejudiced by the amendment; also noting, however, that the
result might be different if the “amendment sought to introduce an entirely unrelated party”);
Avila v. I.N.S., 731 F.2d at 620 (involving an adult incompetent’s father who amended a claim
against the federal government to add himself as a claimant to be reimbursed for expenses he
incurred in the search for his son who had been deported, where the agency did not deny the
claim as amended until two weeks later, and where the son’s claim was filed within the two-year
statute of limitations for the presentation of claims to the agency involved, and holding that the
amendment related back to the original claim in the absence of showing prejudice accruing to the
government); Brauer v. Republic Steel Corp., 460 F.2d at 804 (involving, in a products liability
suit against a defendant, what appears to be a unit operator of an oil field/owner of an oil lease
(the original plaintiff), an owner of an adjacent oil lease (added plaintiff), and the retained
engineering firm for a waterflood project (added plaintiff), and holding that “a close identity of
interest existed among [] the original plaintiff, and [] the added plaintiffs. They owned the leases
covered by the waterflood. The issues presented by the original complaint and by the amended
complaint arose out of the same transaction or occurrence”).
The Court, in its Amendment MOO, also noted the apparent harshness of the result of its
analysis, but reiterated that the proposed Plaintiffs had every opportunity to file their respective
actions in federal court. See Amendment MOO at 66-67, 2017 WL 2266854, at *30. The Court
also reiterated that Sandia Labs -- to no avail -- had offered to toll the limitations period for these
proposed Plaintiffs, stating -- in response to Benavidez’ Motion to Stay Proceedings, filed
November 12, 2015 (Doc. 10) -- that it was “‘amenable to an agreement tolling the statutes of
limitations for claims that could only be brought after the exhaustion of Plaintiffs’ administrative

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remedies, which . . . were still unexhausted or newly exhausted.’” Amendment MOO at 66-67,
2017 WL 2266854, at *30 (quoting Defendants’ Response to Plaintiff’s Motion to Stay
Proceedings at 3 n.4, filed November 25, 2015 (Doc. 19)). The Court also reminds the parties
that the Supreme Court has said, in this context, that
[p]rocedural requirements established by Congress for gaining access to the
federal courts are not to be disregarded by courts out of a vague sympathy for
particular litigants. As we stated in Mohasco Corp. v. Silver, 447 U.S. 807, 826 []
(1980), “[i]n the long run, experience teaches that strict adherence to the
procedural requirements specified by the legislature is the best guarantee of
evenhanded administration of the law.”
Amendment MOO at 66-67, 2017 WL 2266854, at *30 (quoting Baldwin Cty. Welcome Ctr. v.
Brown, 466 U.S. 147, 152 (1984)). The Court maintains that, although “‘motions to amend
brought in district court should be freely granted,’” such favor for amendment does not exist
where “‘the proposed amendment would result in unfair prejudice to the non-movant or would be
futile.’”

Amendment MOO at 66-67, 2017 WL 2266854, at *30 (quoting Thompson v.

Colorado, 60 F. App’x 212, 215 (10th Cir. 2003)).
Ultimately, in her Motion to Reconsider, Benavidez does not proffer any reason for the
Court to reconsider its conclusion that, under rule 15(c), the Proposed Third Amended Complaint
may not relate back to a time which satisfies the limitations period for the proposed federal
claims, rendering the proposed Plaintiffs’ addition futile. See Motion to Reconsider, passim;
March Tr. at 5:2-6 (Wray). Instead, Benavidez has contested only the Court’s conclusion
regarding the effect of the withdrawal of the Proposed Second Amended Complaint. The Court
has, however, endeavored to undergo a thorough review regarding its conclusion pertaining to
rule 15 and has reached the same conclusion at this time.

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III.

THE COURT IS OPEN TO ENTERING A FINAL JUDGMENT AT A LATER
DATE WHEN THE PROPOSED PLAINTIFFS NO LONGER HAVE
COMPLAINTS PENDING WHICH THEY FILED SUBSEQUENT TO THE
AMENDMENT MOO.
Benavidez, in the event that the Court declines to agree with her arguments in its

reconsideration of its Amendment MOO, also requests final judgment as to the proposed
Plaintiffs, asserting that the “January 2017 Amendment MOO is a final order as to [the proposed]
Plaintiffs because it ends the litigation . . . .” Motion to Reconsider Reply at 10. Benavidez
prefers that the Court grants her Motion to Reconsider, but if it does not grant the Motion to
Reconsider, she explains that the proposed Plaintiffs will dismiss their federal complaints which
they have filed in federal court subsequent to the Amendment MOO to pursue solely their claims
in the form of appellate relief from this Court’s Amendment MOO. See Motion to Reconsider
Reply at 11. At the hearing, the Court discovered that Sandia Labs’ only reason for objecting to
the Court entering a final judgment as to the proposed Plaintiffs was the pendency of the actions
that the proposed Plaintiffs filed subsequent to the Amendment MOO. See March Tr. at 21:1-11
(Viets). Sandia Labs stated:
[T]he Court understands Sandia’s position correctly. We don’t oppose entry of
final judgment as to the three would be plaintiffs, they never were plaintiffs but I
suppose that doesn’t prevent entry of a judgment against them but only in due
course. I can’t stand here in good conscience knowing that they each have their
own three lawsuits pending in front of three other judges now in this district and
[say] let’s go ahead and certify it so the Tenth Circuit can hear the same issues
that’s going to be in front of 3 other judges here[,] I think that’s inappropriate.
March Tr. at 21:1-11 (Viets). Sandia Labs also suggested that, if the Court denies the Motion to
Reconsider, and the proposed Plaintiffs dismiss their other federal complaints, it did not “know
of any reason right at the moment that [it] could not cooperate with the plaintiffs to put together a
judgment so they could appeal this issue.” March Tr. at 21:25-22:4 (Court, Viets). The Court,
accordingly, will deny the Motion to Reconsider and, if the proposed Plaintiffs dismiss their
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other federal complaints, Benavidez and the proposed Plaintiffs need only file with the Court an
“unopposed motion and proposed order” upon which an appeal may be premised. March Tr. at
10:21-22 (Court).
IT IS ORDERED that the Plaintiff’s Motion for Partial Reconsideration of this Court’s
January, 17, 2017 Memorandum Opinion and Order, filed February 3, 2017 (Doc. 87), is granted
in part and denied in part. The Court has reconsidered its Memorandum Opinion and Order,
filed January 17, 2017 (Doc. 84), and the Court will not alter its analysis of these issues at this
time or its order in the Amendment MOO.

________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Timothy L. White
Valdez & White Law Firm, LLC
Albuquerque, New Mexico
-- and -Rachel E. Higgins
Rachel E. Higgins Attorney at Law
Albuquerque, New Mexico
-- and -Rachel Berenson
Berenson & Associates, P.C.
Albuquerque, New Mexico
-- and -Katherine A. Wray
Jane Katherine Girard
Wray & Girard P.C.
Albuquerque, New Mexico

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Attorneys for the Plaintiff Linda Benavidez and for the Proposed Plaintiffs Patricia Baca,
Rita Luna-Casias, and Thelma Ortiz
Justin E. Poore
Sandia Corporation
Albuquerque, New Mexico
-- and -Aaron C. Viets
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Albuquerque, New Mexico
Attorneys for the Defendants

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