Doe 1 et al v. Eastern New Mexico University Board of Regents et al

Filing 300

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Jerry H. Ritter to DENY 130 Plaintiffs' Motion for Leave to File Second Amended Complaint. Objections to PF&RD due by 3/21/2025. Add 3 days to the deadline if s ervice is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (ama)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
JANE DOE 1, JANE DOE 2,
and JANE DOE 3,
Plaintiffs,
v.

No. 23-cv-00362-GBW-JHR

EASTERN NEW MEXICO UNIVERSITY
BOARD OF REGENTS,
MEGHAN DE LOS REYES in her individual
capacity,
PAUL WEIR in his individual capacity,
GLEN’S FITNESS LAB, and
GLEN DE LOS REYES,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION TO DENY [130]
PLAINTIFFS’ MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
This matter is before the me on Plaintiffs’ Motion for Leave to File Second Amended
Complaint. [Doc. 130]. Defendants jointly responded [Doc. 136], and Plaintiffs replied [Doc. 150].
An oral argument hearing was also held. [Doc 173]. The Court referred this motion to the
undersigned for analysis and a proposed disposition. [Doc 276]. For the reasons stated below, I
recommend the Court deny the motion and filing of the proposed second amended complaint.
I.

BACKGROUND

A. Plaintiffs’ Claims.
Plaintiffs allege that Glen De Los Reyes sexually assaulted them under the guise of physical
therapy and massage treatments while they played collegiate basketball at ENMU for head coach
Meghan De Los Reyes, Glen De Los Reyes’ wife. [Doc. 38, at 2, 3]. They contend that Meghan
De Los Reyes retaliated against them if they resisted or told anyone about the alleged abuse. Id.
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Plaintiffs further allege that athletic director Weir and ENMU officials were aware of the alleged
abuse but repeatedly failed to act. Id. at 4. As a result, Plaintiffs allege that they were forced to
transfer from ENMU, missed a season of NCAA eligibility, and suffered serious mental-health
injury. Id. at 5. Plaintiffs’ first amended complaint pleads violations of the New Mexico Civil Right
Act, the New Mexico Human Rights Act, New Mexico Tort Claims Act (“NMTCA”), battery and
assault, New Mexico privacy law, and their Title IX rights. Id. Plaintiffs now seek leave to amend
to add additional federal constitutional and a state “voyeurism” claim. [Doc. 130-1].
B. Briefing Summary.
1. Plaintiffs’ motion for leave to file second amended complaint [Doc. 130].
Plaintiffs argue they again should be allowed to amend their complaint because of recently
discovered evidence they could not have procured prior to the pleading amendment deadline on
September 20, 2023. [Doc. 130, at 3]. The purportedly new evidence concerns when reports of
abuse by Glen De Los Reyes’ reached Weir and ENMU employees. Id. at 5–6. Plaintiffs believe
this evidence gives rise to federal constitutional claims which could not have been asserted earlier.
They argue no prejudice will befall Defendants because Plaintiffs have already pled state
constitutional claims and therefore new federal allegations will not “assert novel or unforeseeable
claims and [will] not substantively alter or change the issues confronting Defendants.” Id. at 6.
Plaintiffs attach a proposed Second Amended Complaint with new claims of violation of
procedural and substantive due process and equal protection under the Fourteenth Amendment,
retaliation under the First Amendment, and state law “voyeurism.” [Doc. 130-1]; [Docs. 130-2,
130-3].
2. Defendants’ joint response in opposition [Doc. 136].
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Defendants vociferously dispute the premise that discovery has given rise to these new
claims. [Doc. 136, at 4, 5]. They maintain Plaintiffs could have included federal constitutional and
voyeurism claims in earlier pleadings but chose not to, opting instead to plead only state law
claims. Id. Defendants argue Plaintiffs lack good cause under Rule 16(b)(4) to modify the
scheduling order to allow these new claims to proceed. Id. at 8. They allege Plaintiffs have long
“possessed information regarding the timing of [Defendant] Weir’s supposed knowledge of alleged
sexual assaults” and “specifically included those factual allegations in their initial and amended
complaints.” Id. at 9. Defendants dispute Plaintiffs’ assertion that deposition scheduling difficulties
stymied earlier discovery of the alleged new evidence. Id. For example, they point out Plaintiffs’
initially requested a fast track for discovery. Id. Defendants also note the futility of the proposed
voyeurism claim against Meghan De Los Reyes due to unwaived immunity under the New Mexico
Tort Claims Act. Id. at 10.
Defendants also argue that the proposed amendment would cause undue delay and undue
prejudice under Rule 15, primarily because of their lost opportunity to seek a meaningful stay of
litigation under qualified immunity at this late stage. Id. at 10. They argue “it is well settled” in
this circuit that leave to amend may be denied based solely on untimeliness “especially when the
party filing the motion has no adequate reason for the delay.” Id. (citing Bugg v. Benson, 2023 WL
6609304, at *1 (D. Utah Oct. 10, 2023)). Because Plaintiffs could have asserted the new claims in
previous complaints, Defendants decry Plaintiffs’ assertion of “logistical and scheduling delays”
precluding earlier amendment as “disingenuous.” Id.
Weir and Meghan de los Reyes argue undue prejudice stems from permitting amendment
now since they “would have raised the affirmative defense of qualified immunity and would have
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pursued dispositive motions and a stay of discovery” had Plaintiffs timely pled federal
constitutional claims. Id. at 12. They say Plaintiffs have obviated a properly raised qualified
immunity defense by “conveniently waiting until after both [Paul Weir and Meghan de los Reyes]
have been deposed” and answered written discovery. Id. Defendants warn of significant case delay
and prejudice because the “scope of the case and the discovery process” would expand with new
“complex federal constitutional claims,” particularly for the Fourteenth Amendment equal
protection claim which adds “substantially different factual issues” to those already litigated. Id.
Turning to the substance of the claims, Defendants emphasize the lack of any meaningful
differences between Plaintiffs’ earlier pleadings and the proposed amendment as it relates to the
critical issue of when sexual assault reports reached Defendant Weir. Id. at 13. They contend
circumstances show Plaintiffs waited to add federal constitutional claims until Weir and Meghan
de los Reyes could “no longer avail themselves” of qualified immunity. Id. In sum, Defendants
remind that the proposed claims are not novel but “based upon allegations of sexual assault and
abuse by Glen de los Reyes while Plaintiffs were ENMU students, based upon allegations of
gender discrimination, and based upon alleged retaliation for reporting the abuse.” Id. (citing the
Proposed Second Amended Complaint).
3. Plaintiffs’ reply.
Plaintiffs do not deny that the proposed amendments “largely track” the operative
complaint but argue as a result the amendments “do[] not inject novel theories” or change the
central disputes. [Doc. 150, at 2]. They believe recent depositions have made pleading federal
constitutional claims more “viable” now than at the initial pleading stage. Id. at 3. In this regard,
they say crucial information concerning the extent and timing of Defendant Weir’s knowledge was
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“uniquely available to Defendants,” and by implication, only discoverable after depositions. Id. at
3, 4. In Plaintiffs’ view, Defendants essentially prevented Plaintiffs’ discovery of key facts and thus
prevent Plaintiffs from timely amendment. Id. at 4.
Plaintiffs say they satisfy the Rule 16 good-cause standard for a scheduling order extension
several ways. Id. at 4, 5. First, in retrospect, the six weeks between entry of the scheduling order
and the pleading amendment deadline was insufficient to timely develop and file the federal
constitutional claims. Id. at 4, 5. Second, timely deposition scheduling was beyond their control.
Id. at 5. Third, deposition testimony “supports” the proposed claims and “differs materially” from
deposition testimony of Weir and Meghan de los Reyes obtained back in 2023. Id. Plaintiffs says
this shows diligence in discovery and thus good cause under Rule 16. Id.
Plaintiffs also assert the proposed amendments are neither futile nor unduly prejudicial.
Regarding prejudice, Plaintiffs say the added claims place “no substantially greater burden” on
Weir or Meghan de los Reyes. Id. at 9. They reason any prejudice is mitigated because Defendants
may still raise qualified immunity notwithstanding the amendment, noting that Defendants did not
move to dismiss the “identical” pending claims. Id. at 9. Regarding futility, Plaintiffs say they
prevail because the standard permits amendment “unless a defendant clearly shows []
implausibility” meaning that the amended claim “fails on its face.” Id. at 9.
II.
A.

LEGAL STANDARDS

Rule 16(b)(4) Governs Extension of Scheduling Order Deadlines.
Scheduling order modification requires good cause and the judge’s consent. Fed. R. Civ. P.

16(b)(4). The movant must show that “the scheduling order deadlines cannot be met despite the
movant’s diligent efforts.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230,
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1240 (10th Cir. 2014). This requires the movant to “provide an adequate explanation for any
delay,” Minter v. Prime Equip. Co., 451 F.3d 1196, 1214 n.4 (10th Cir. 2006), such as when the
movant “learns new information through discovery or the underlying law has changed,” Gorsuch,
771 F.3d at 1240. Critically, no adequate explanation exists where “the movant knew of the
underlying conduct but simply failed to raise [its] claims.” Husky Ventures, Inc. v. B55 Invs., Ltd.,
911 F.3d 1000, 1020 (10th Cir. 2018) (bracket in original). The district court is tasked with using
its discretion to make such a determination. Gorsuch, 771 F.3d at 1240.
B.

Rule 15(a)(2) Governs When Amendment is Proper.
“A party may amend its pleading only with the opposing party’s written consent or the

court’s leave” and directs the court to “freely give leave when justice so requires.” Fed R. Civ. P.
15(a)(2). Rule 15 intends to provide parties with “maximum opportunity for each claim to be
decided on the merits” instead of “procedural niceties.” Minter, 451 F.3d at 1204. While courts
generally favor granting leave to amend, permission may be denied in the case of undue delay, bad
faith, dilatory motive, undue prejudice to the opposing party, futility of amendment, or failure to
cure prior deficiencies. Id.; Frank v. U.S. W., Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). The district
court enjoys discretion to make this call. Minter, 451 F.3d at 1204.
III. ANALYSIS
A.

I Recommend the Court Deny Plaintiffs’ Motion for Leave to Amend Because
Plaintiffs Fail to Establish Good Cause to Extend the Pleading Amendment
Deadline.
1. Relevant law.
Protracted delay “is itself a sufficient reason” to deny leave to amend. Minter, 451 F.3d at

1205. “At some point, delay will become undue, placing an unwarranted burden on the court or
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will become prejudicial, placing an unfair burden on the opposing party.” Id. (quoting USX Corp
v. Barnhart, 395 F.3d 161, 167 (3rd Cir. 2004)). The Tenth Circuit places primacy on the reason
for delay: a district court does not abuse its discretion by denying amendment “when the party
filing the motion has no adequate explanation for the delay.” Id. (collecting Tenth Circuit cases).
Courts may also deny leave to amend when “the moving party was aware of the facts on which the
amendment was based for some time prior to filing the motion to amend.” Id.; see also Husky
Ventures, 911 F.3d at 1020; Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994).
2. Application.
Plaintiffs argue good cause exists based on discovery of new information underpinning the
proposed amendments. However, the complaints and proffered evidence show otherwise. As early
as May, 2023, Plaintiffs knew when Defendant Weir first heard about Glen de Los Reyes’ alleged
abuse: “at least two trainers reported the abuse to Defendant Weir in February 2022.” [Doc. 12, at
6] (First Amended Complaint) (emphasis added). Plaintiffs’ proposed second amended complaint
reduces precision and moves the critical date at least three weeks later: “at least two trainers
reported the abuse to Defendant Weir in the spring of 2022.” [Doc. 130-1, at 10] (emphasis added).
In context, this is a distinction without a difference. Otherwise, the two complaints mirror the
timing of allegations against Weir: those concerning Jane Doe 3’s abuse in September and October
2022, compare [Doc 12, at 9, 10], with [Doc. 130-1, at 14, 15]; and that athletic trainers reported
Jane Doe 1 and 2’s suspicious bruising to Defendant Weir in October 2022. Compare [Doc. 12, at
13, 14], with [Doc. 130-1, at 19, 20].
The deposition excerpts do not present a different timeline from that originally pled.
Defendant Weir testified that he received reports of Glen do los Reyes’ treatments as a medical
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liability issue during the spring of 2022. [Doc 130-2, at 3]. Athletic trainer Danielle Torossi
testified that she reported sexual assault to Weir during that time. [Doc. 130-3, at 4]. But Weir
denied that Torossi specifically reported an allegation of inappropriate touching to him in the
spring of 2022 [Doc. 130-2, at 4]. The conflicting accounts of when and from whom Weir first
learned of the alleged abuse present a factual dispute for the jury to assess. They do not, however,
materially change the allegation against Weir, i.e., what did he know and when did he know it?
The only new inference from the deposition excerpts is that Weir may (or may not) have become
aware of relevant allegations in “spring” rather than “February.”
Plaintiffs had the relevant allegations underpinning their proposed federal constitutional
claims—the suspicious nature of Glen de los Reyes’ treatments, Weir’s alleged knowledge of same,
and potential gender discrimination—when they asserted state law and Title IX claims based on
the same facts. Plaintiffs therefore have no adequate explanation for the delay. I propose finding
there is not good cause for granting leave and recommend denying the motion.
B.

Alternatively, I recommend the Court Deny Plaintiffs’ Motion for Leave to Amend
Because the Proposed Amendments Show Undue Delay and Would Be Unduly
Prejudicial to Defendants.
1. Relevant law.
Similar to the test for altering a scheduling order, a court may properly deny amendment

under Rule 15(a) if a plaintiff does not supply an adequate explanation for bringing new claims in
a timely fashion. Smith v. Aztec Well Servicing Co., 462 F.3d 1274, 1285 (10th Cir. 2006). The
court’s primary focus is thus the reason for delay. Minter, 451 F.3d at 1206. If a plaintiff requesting
amendment could have included the proposed facts or claims in the original pleading or subsequent
amendments but failed to do so, denial of leave to amend is appropriate. Riggs v. Baca, No. 18-cv8

00485, 2019 WL 6877558, at *3 (D.N.M. Dec. 17, 2019) (citing Pallotino, 31 F.3d at 1027)
(affirming the denial of leave to amend where the proposed amendment was not based on new
evidence unavailable at the time of the original filing)). Denial is moreover appropriate when it
appears “that the plaintiff is using Rule 15 to make the complaint a moving target.” Minter, 451
F.3d at 1206. In sum, the liberal amendment spirit of Rule 15(a) does not ignore bedrock principles
of efficient and thoughtful pleading practice.
2. Application.
i. Undue delay counsels against granting leave to amend.
The alleged conduct upon which Plaintiffs base their proposed federal constitutional claims
for substantive due process, equal protection, and retaliation is the same upon which Plaintiffs
based their original state law claims for negligence, sexual battery, sex and gender discrimination,
retaliation, substantive due process, invasion of privacy, and Title IX discrimination. [Doc. 12].
The focus of the analysis is the reason for delay in seeking an amendment. As discussed above,
Plaintiffs assert the proposed claims were not ripe for earlier pleadings because deposition
testimony was necessary to make them actionable. That assertion is unconvincing because the
factual basis of the new claims is not materially advanced by the new information: while a witness
is now on record that she made a report of inappropriate sexual touching to defendant Weir, Weir
himself is now on record that she did not. Regardless of that new dispute of fact, Plaintiffs relied
in their original complaint on information in their possession that such a report was made. The
Court is not persuaded that the proposed new claims could not have been brought in either of the
previous complaints. Effectively, Plaintiffs’ change in strategy arrives too late in the litigation.

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Plaintiffs urge that any delay in their late motion to amend is mitigated by the fact the suit
has already been delayed for several other reasons. But previous delays do not make the next delay
less burdensome to parties under Rule 15(a). If anything, the opposite is true. The bottom line is
Plaintiffs’ reason for delay is insufficient given the preexisting foundational factual basis and thus
I recommend the Court deny leave to amend due to undue delay,
ii. Undue prejudice justifies denying leave to amend.
Undue prejudice is the “most important” factor in the pleading amendment analysis.
Minter, 451 F.3d at 1208. “Courts typically find prejudice only when the amendment unfairly
affects the defendants in terms of preparing their defense to the amendment,” chiefly where new
subject matter and new facts belie the proposed amendments. Id. (internal citation omitted).
Although the proposed second amended complaint does not arise from a separate factual basis as
discussed above, allowing new federal constitutional claims after substantial discovery has
occurred unfairly affects Defendants’ ability to adequately prepare a defense. Namely, any
colorable qualified immunity defense Defendants could mount would essentially be toothless
because the burdens of litigation and discovery are ongoing.
Qualified immunity is not only a liability defense but a protection from the burdens of
litigation until the resolution of dispositive motions. See Pearson v. Callahan, 555 U.S. 223, 237
(2009); Workman v. Jordan, 958 F.2d 332, 226 (10th Cir. 1992). This protection is now
substantially lost to Weir and Meghan de los Reyes, who have already been deposed. That loss is
particularly onerous to Weir, whose testimony provides the liability hook for the institution.
Moreover, qualified immunity requires a distinct procedural and analytical process from the
defenses available on Plaintiffs’ state law claims. Forcing Defendants to mount a qualified
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immunity defense after stripping the protections of that immunity is unduly prejudicial to
Defendants. I therefore recommend the Court deny leave to amend based on undue prejudice.
iii. No private right of action for voyeurism.
Plaintiffs’ proposed complaint amends a claim for damages for invasion of privacy against
Glen de los Reyes and Meghan de los Reyes,’ [Doc. 47, p. 27], to blend in a claim for “voyeurism,”
newly citing as authority the Restatement (Second) of Torts, § 652B and NMSA 1978, § 30-9-20.
The latter is a statute creating a New Mexico crime where none existed before. Otherwise,
Plaintiffs say nothing at all about voyeurism, neither in the proposed amended complaint nor in
the motion whose purpose is to demonstrate the basis for the amendment.
Plaintiffs do not establish, nor can the Court, that New Mexico has recognized a private
right of action for voyeurism. The New Mexico criminal statute cited has no language suggesting
that intent by the New Mexico Legislature. Nor does the Restatement support an argument for
creation of a cause of action under that label. The United States District Court for the District of
New Mexico has relied upon the Restatement to define the contours of a subcategory of New
Mexico’s tort of invasion of privacy: false light, intrusion, publication of private fact, and right of
publicity or appropriation. New Mexico ex rel Balderas v. Tiny Lab Productions, 457 F.Supp.3d
1103, 1123 (D.N.M. 2020) (citing Moore v. Sun Pub. Corp., 118 N.M. 375, 382-83, 881 P.2d 735,
742-43 (Ct.App. 1994)). In sum, a separate tort of “voyeurism” is not indicated by the criminal
statute, by New Mexico precedent, by the Restatement, nor by federal precedent or practice in this
District.

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In the absence of any discussion by Plaintiffs, the Court is unable to conclude that New
Mexico law recognizes a tort by the name of “voyeurism,” nor that it is shorthand for a recognized
form of invasion of privacy (and, if so, why the recognized description should not be preferred).
See Moore, 881 P.2d at 742–43. Without first resolving those questions, the Court cannot determine
whether Plaintiffs have properly pled waiver of sovereign immunity that would allow the claim
against Meghan de los Reyes. See [Doc. 136, p. 10].
IV. CONCLUSION
For the foregoing reasons, I RECOMMEND Plaintiffs’ Motion for Leave to File Second
Amended Complaint [Doc. 130] be DENIED for lack of good cause to modify the scheduling
order under Rule 16(b)(4) and for undue delay and undue prejudice under the Rule 15(a) standards.
IT IS SO ORDERED.

The Honorable Jerry H. Ritter
United States Magistrate Judge

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE
of a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen-day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.

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