Johnson v. Sierra County Board of County Commissioners et al

Filing 75

ORDER by Magistrate Judge Lourdes A. Martinez GRANTING in part 63 Motion for Extension of Time to Amend Complaint. (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

BRIAN JOHNSON,
Plaintiff,

v.

No. CIV-16-0011 LAM/GJF

SIERRA COUNTY BOARD OF
COUNTY COMMISSIONERS, CURTIS CHERRY,
GLENN HAMILTON, and JOE BACA,
Defendants.

ORDER GRANTING IN PART MOTION
TO EXTEND TIME TO AMEND COMPLAINT [Doc. 63]
THIS MATTER is before the Court on Plaintiff’s Motion to Extend Time to Add
Additional Defendants or Amend Complaint (Doc. 63), filed on November 30, 2016.
Defendants Sierra County Board of County Commissioners and Curtis Cherry filed a response to
the motion on December 13, 2016. [Doc. 71]. No other defendant filed a response to the
motion, and Plaintiff has not filed a reply, and the times for doing so have passed. Having
considered the motion, response, record of the case, and relevant law, the Court finds that the
motion is well-taken and should be GRANTED.
The deadline for Plaintiff to amend pleadings and/or join additional parties was
December 19, 2016. See [Doc. 51 at 1]. In his motion, Plaintiff states that he diligently sought
to take Defendant Baca’s deposition, but that the earliest mutually available date was
January 18, 2017. [Doc. 63 at 2]. Plaintiff, therefore, asks the Court to allow him an additional
forty (40) days from December 19, 2016 (or until January 30, 2017) to add additional parties or

amend the complaint. Id. at 3. Plaintiff states that counsel for Defendants Baca and Hamilton
oppose the motion (id. at 2); however, as noted above, Defendants Baca and Hamilton did not
file a response to the motion. Plaintiff further states that counsel for Defendants Sierra County
Board of County Commissioners and Cherry take no position on the motion (id. at 3). The
response filed by Defendants Sierra County Board of County Commissioners and Cherry state
that the reason their counsel took no position on the motion was because “[t]he asserted basis for
the Motion appears to be the inability to set the deposition of . . . [Defendant] Baca.” [Doc. 71
at 1]. However, Defendants Sierra County Board of County Commissioners and Cherry state
that “Fed. R. Civ. P. 15 provides Plaintiff the mechanism for amendment at this stage in the
litigation of this matter.” Id.
Pursuant to Rule 15(a)(1) a party may amend its pleading once as a matter of course
under certain circumstances, and Rule 15(a)(2) provides that “[i]n all other cases, a party may
amend its pleading only with the opposing party’s written consent or the court’s leave.” Here,
Plaintiff has already amended his complaint twice (see Docs. 19 and 62), so Plaintiff may only
amend his complaint with either the opposing parties’ written consent or leave of Court pursuant
to Rule 15(a)(2). Therefore, the Court will deny the motion to the extent Plaintiff is asking to
add additional parties or amend the complaint as a matter of course, and the Court will allow
Plaintiff an extension of time of forty (40) days to move to amend his complaint under
Rule 15(a)(2).
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Extend Time to Add
Additional Defendants or Amend Complaint (Doc. 63) is GRANTED in part, and Plaintiff is
granted an extension of time in which to file a motion to amend his complaint pursuant to
Rule 15(a)(2), until February 7, 2017, in accordance with the Court’s order filed concurrently
regarding Document 74.
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IT IS SO ORDERED.

__________________________________
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE

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