Sabeerin et al v. Albuquerque Police Department et al
Filing
151
MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera denying 134 Plaintiffs' Motion to Amend Complaint (Third Amended Complaint) and Correct Caption. (baw)
Case 1:16-cv-00497-JCH-LF Document 151 Filed 08/03/20 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BOBACK SABEERIN, MICHELLE
ROYBAL, J.R. and S.S.
Plaintiffs,
v.
No. 1:16-cv-00497 JCH-LF
ALBUQUERQUE POLICE DEPARTMENT
DETECTIVE TIMOTHY FASSLER, in his individual capacity,
ALBUQUERQUE POLICE DEPARTMENT
DETECTIVE JOHN DEAR, in his individual capacity,
CITY OF ALBUQUERQUE,
STATE OF NEW MEXICO,
SECRETARY GREGG MARCANTEL, in his official and
individual capacity,
NEW MEXICO CORRECTIONS DEPARTMENT,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Amend Complaint (Third Amended
Complaint) and Correct Caption (Pls.’ Mot., ECF No. 134). Defendants City of Albuquerque and
Albuquerque Police Department Detectives Timothy Fassler and John Dear (Defendants)
responded in opposition (Defs.’ Resp., ECF No. 138.).1 2 Plaintiffs filed no reply brief and the time
1
Plaintiffs have misspelled Detective Dear’s surname as “Deer” in pleadings and the case
caption. The Court will use the correct spelling of the detective’s name.
2
Defendants the State of New Mexico, Secretary Gregg Marcantel, and the New Mexico
Corrections Department (the State Defendants) have been dismissed as parties. See Mem. Op.
and Order, ECF No. 83.
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to do so has passed. See D.N.M.LR-Civ. 7.4(a). The Court, having carefully considered the motion,
response, relevant law, and being otherwise fully advised, concludes that the motion will be
DENIED.
I.
BACKGROUND
Familiarity with the facts of this case is presumed. The Court has already detailed the
relevant facts in two previous Memorandum Opinion and Orders, see ECF Nos. 38, 83, and one
Order concerning pretrial matters, see ECF No. 56. Briefly stated, in 2014 the New Mexico Court
of Appeals reversed Plaintiff Boback Sabeerin convictions for auto theft and similar charges
because the search warrant affidavit used to obtain a property search of Boback’s business was
invalid for lack of probable cause.3 See State v. Sabeerin, 2014-NMCA-110, 336 P.3d 990. The
affiant officer who authored the affidavit was Detective Timothy Fassler. Detective Fassler
allegedly told Boback, who is of Iranian descent, “[f]oreigners like you don’t belong in this
country,” and other inappropriate statements. ECF No. 69 ¶ 21 at 5.
Plaintiffs have filed a total of three iterations of their complaint. In two of the Court’s
previous Orders (ECF Nos. 38 and 56), the Court granted Plaintiffs leave to file amended
complaints to substantiate their allegations concerning their injuries. In addition, ECF No. 56
granted Plaintiffs leave to conduct limited discovery to establish and name the identity of certain
defendants. On May 25, 2020 – four-years after the original complaint was filed – Plaintiffs moved
to amend their complaint for a third time. They wish to correct several non-substantive clerical or
“housekeeping” matters. For instance, they want the new complaint and docket to accurately spell
3
Because some of the Plaintiffs share a common surname, the Court will refer to the individual
Plaintiffs by their first names.
2
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Detective Dear’s name, to omit facts and references to dismissed parties, and they wish to
reorganize their complaint to make it more coherent.
In addition, they also seek to add substantive material to their complaint. First, their motion
says that they want to add a cause of action and supporting factual allegations for conspiracy under
42 U.S.C. § 1985. Second, they ask permission to add Mr. Shayan Sabeerin as a party. Shayan is
Boback’s son. Plaintiffs tell the Court that “S.S.,” one of the named Plaintiffs in the case, “is in
fact two children of … Boback.” Pls.’ Mot. at 2. “S.S.” was a “placeholder” for both Soheila and
Shayan Sabeerin, Boback’s daughter and son, respectively. Because “both children … were minors
… and … ha[d] the same initials,” the “S.S.” designation represented both siblings, they say. Id.
at 3. Plaintiffs attached to their motion a declaration from Boback. He explained that when he met
with his former lawyer’s paralegal at the inception of this case in 2015, he told the her that he had
two minor children and that his understanding was that all claims would be asserted on behalf of
the two children. Plaintiffs therefore ask the Court to add the siblings to the case caption as
individual parties. They argue that the Court may construe their request in one of three ways: a
motion for joinder under Fed. R. Civ. P. 20(a)(1); a motion to correct clerical errors under Fed. R.
Civ. P. 60(a); or as a motion for the Court to use its “inherent power” to correct clerical errors.
Pls.’ Mot. at 4.
Attorney James K. Gilman filed the motion on behalf of Plaintiffs. Before the deadline to
reply occurred, Mr. Gilman withdrew his appearance of representation for Plaintiffs. Plaintiffs,
proceeding pro se, filed no reply.
Defendants oppose the motion. They argue that the proposed amendments are untimely,
futile, and that their inclusion would be prejudicial to Defendants. The Court will present
additional facts and argument as needed in the sections that follow.
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II.
STANDARD OF REVIEW
Fed. R. Civ. P. 15(a)(2) provides for liberal amendment of pleadings, instructing courts to
“freely give leave” to amend “when justice so requires.” “The grant of leave to amend the
pleadings pursuant to Rule 15(a) is within the discretion of the trial court.” Minter vs. Prime
Equipment Co., 451 F.3d. 1196, 1204 (10th Cir. 2006). Subsection 15(a)(2) provides that after a
party has amended a pleading once as a matter of course or the time for amendments of that type
has expired, a party may amend only by obtaining leave of court or if the adverse party consents.
Leave should be “freely give[n] … when justice so requires,” but leave need not be granted on “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.” Duncan v.
Manager, Dep’t of Safety, City & Cty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005).
“It is well settled in this circuit that untimeliness alone is a sufficient reason to deny leave
to amend.” Frank v. U.S. W., Inc., 3 F.3d 1357, 1365. (10th Cir. 1993) (citations omitted). This is
especially true “when the party filing the motion has no adequate explanation for the delay.” Id.
“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.’” Gerald v. Locksley, 849 F. Supp. 2d 1190, 1209 (D.N.M. 2011)
(quoting Minter, 451 F.3d at 1205) (other citation omitted). “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.” Frank, 3 F.3d at 1366 (alteration in original) (quotation marks omitted).
“While Rule 15 governs amendments to pleadings generally, Rule 16 governs amendments
to scheduling orders.” Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009) (citing Fed. R. Civ.
4
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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. Gerald, 849 F. Supp. 2d at 1208 (citing Fed. R. Civ. P.
15)). “When a scheduling order governs the pace of the case, 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.” Id. (citing Bylin, 568 F.3d at 1231).
“The Tenth Circuit has interpreted rule 16 as imposing a ‘good cause’ standard to untimely
motions to amend when a scheduling order governs the case.” Gerald, 849 F. Supp. 2d at 1210.
(citing Minter, 451 F.3d at 1205 n. 4.).4 “This requires the moving party to show that it has been
diligent in attempting to meet the deadlines, which means it must provide an adequate explanation
for any delay.” Minter, 451 F.3d at 1205 n. 4. The Tenth Circuit has “noted the ‘rough similarity’
between the ‘undue delay’ standard of Rule 15 and the ‘good cause’ standard of Rule 16.” Bylin,
568 F.3d at 1231 (citing Minter, 451 F.3d at 1205 n. 4.).
III.
DISCUSSION
A. Adding a Party
The Court concludes that adding a new party at this late stage in the litigation would be
unduly prejudicial to Defendants. Despite Plaintiffs’ argument that “S.S” was merely a
“placeholder” for two distinct persons, all three previous iterations of the complaint referred to
S.S. as one person – namely, Boback’s daughter. See, e.g., ECF No. 1 ¶ 5, at 2 (stating that
“Plaintiff S.S. is the daughter of Boback Sabeerin and is an individual ….”); ECF No. 40 ¶ 6, at 2
(same); ECF No. 69 ¶ 6, at 2 (same). Moreover, in initial disclosures Plaintiffs referred to S.S.
4
This standard applies because the Court has entered scheduling orders in this case. Plaintiffs’
deadline to add parties was in November 2016. The most recent scheduling order entered in
January 2020 provided no extension or amendment of that deadline.
5
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using female pronouns. Plaintiffs’ own representations therefore show that S.S. was meant to refer
to Boback’s daughter – not that it was a placeholder for daughter and son.
As noted earlier, leave should not be granted when the record shows a party’s “failure to
cure deficiencies by amendments previously allowed.” Duncan, 397 F.3d at 1315. Plaintiffs had
numerous opportunities to disclose and name Boback’s son as a party, including the two times
Plaintiffs were given leave to amend their complaints. Moreover, “[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.”
Frank, 3 F.3d at 1366. Boback states in his declaration that he believed the claims would be
asserted on behalf of both children. Yet over four-years, Plaintiffs made no attempt to correct the
record of pleadings and discovery in which Plaintiffs themselves expressly referred to S.S. as
Boback’s daughter. Finally, in the Tenth Circuit, “untimeliness alone is a sufficient reason to deny
leave to amend.” Id. at 1365. This is especially true where, as here, “the party filing the motion
has no adequate explanation for the delay.” Id. This litigation is four years old. During the periods
to amend their complaints, along with their numerous pretrial conferences with the Court, Plaintiffs
never identified Boback’s son as a party. Their request to add a party is untimely and therefore
denied.
The Court does not adjudicate or decide whether Plaintiffs’ motion to add Shayan should
be construed as one for joinder under Fed. R. Civ. P. 20(a)(1), or to correct clerical errors under
Fed. R. Civ. P. 60(a), or for the Court to use its inherent power to correct clerical errors. Plaintiffs
devoted one sentence to this argument. However, merely invoking legal rules is not a substitute
for legal analysis. Inadequately briefed issues like this are forfeited because the Court is unable to
meaningfully analyze a request unsupported by legal arguments. See Bronson v. Swensen, 500
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F.3d 1099, 1105 (10th Cir. 2007) (“cursory statements, without supporting analysis and case law,
fail to constitute the kind of briefing that is necessary to avoid application of the forfeiture
doctrine.”) (citing Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments
inadequately briefed in the opening brief are waived....”)).
B. Adding or Altering Substantive Claims for Relief
According to Plaintiffs, their proposed amended complaint includes “a specific count for
conspiracy pursuant to 42 U.S.C. § 1985 that relates to the claims of conspiracy in the former
complaints including paragraphs 31, 33, of the original complaint and 15 and 18 of the second
amended complaint where these paragraphs mention comments by the Defendants that are
suggestive of bias based upon ethnicity and national origin.” Pls.’ Mot. at 2.
However, as Defendants correctly point out, Plaintiffs’ proposed amendments assert much
more than just a conspiracy claim. Defendants bring to the Court’s attention the following claims
for relief in the proposed amended complaint that Defendants contend are new: Count III, which
packages together (1) state-law claims against Detectives Fassler and Dear for malicious
prosecution and abuse of process pursuant to the New Mexico Tort Claims Act; (2) a claim for
relief for subjecting Boback to an unreasonable search and seizure (the count does not identify if
the claim is brought under the federal or state constitution); and (3) a claim against the City of
Albuquerque for its failure to properly train and supervise law enforcement officers located at
Count IV of the proposed amended complaint.
The Court does not agree with Defendants that all this material is new. Count I of the
Second Amended Complaint, which is the operative complaint, sought § 1983 relief against
Defendants for a violation of the Fourth Amendment right to be free from unreasonable searches
and seizures. Count VI of the Second Amended Complaint asserted an abuse of process claim
7
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against Detectives Dear and Fassler. And Count II of the Second Amended Complaint asserted a
cause of action for conspiracy, albeit on perhaps a different theory of liability. Nonetheless, leave
is not granted to Plaintiffs because they have had two previous opportunities to cure deficiencies,
their request is made four years into the litigation, and they knew or should have known of the
facts giving rise to their new claims or new allegations in support of existing claims. This is
especially true concerning their request to add Count IV against the City of Albuquerque on a
“failure to train” theory of liability. Their central allegation there is that the City “had a duty to …
train and supervise its police officers in order to deter and prevent discrimination against citizens
because of their race or national origin and to … prevent officers from making false statements
and affidavits or provide false testimony that might cause a person to be unjustly accused of
criminal acts and suffer unjust and false convictions and imprisonment.” ECF No. 134 ¶ 72, at 19.
However, each of the three prior iterations of the Plaintiffs’ complaints set forth facts concerning
Detective Fassler’s and Dear’s alleged animus towards foreigners, suggesting that Plaintiffs knew
or should have known to assert a failure to train theory long ago. Allowing the amendments now
would be prejudicial to Defendants by making the complaint “a moving target.” Gerald, 849 F.
Supp. 2d at 1209 (internal quotation marks omitted). Plaintiffs’ request is therefore denied.
C. Miscellaneous Amendments
As noted earlier, Plaintiffs wish to correct certain non-substantive clerical matters, such as
accurately spelling Detective Dear’s name, omitting facts and references to dismissed parties, and
to reorganize their complaint to make it more coherent. The Court denies this request. The Court’s
docket keeps track of dismissed parties and it is not standard practice to remove a dismissed party
from the case caption and documents. Going forward, the Court and the parties will accurately
spell Detective Dear’s name.
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IV.
CONCLUSION
Plaintiffs’ motion to amend their complaint is denied in its entirety. The record does not
indicate that S.S. was a placeholder for two persons. Plaintiffs’ additional proposed amendments
are untimely and based on facts that Plaintiffs knew or should have known. The Second Amended
Complaint (ECF No. 69) remains the operative complaint.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Amend Complaint (Third
Amended Complaint) and Correct Caption (ECF No. 134) is DENIED.
IT IS SO ORDERED.
_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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