Hurtado et al v. AM Transport Services, Inc. et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LILLIAN HURTADO, et al.,
Plaintiffs
v. No. 1:22-cv-00599-KG-JFR
FNF CONSTRUCTION INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant FNF Construction Inc.’s motion for
summary judgment, Doc. 241, and Plaintiffs’ motion to file a fourth amended complaint. Doc.
252. For the reasons below, the Court denies both motions.
I. Background1
This case concerns a fatal car crash on Interstate 40 in McKinley County, New Mexico,
that took place in June 2021 around 10:30 p.m. Doc. 241 at 3. The crash occurred in an
“advanced warning area” approaching a construction zone controlled by FNF under a contract
with the New Mexico Department of Transportation (“NMDOT”). Id. Traffic was backed up to
nearly a complete stop from two other car crashes that night in other nearby areas controlled by
FNF. Doc. 253 at 21; see Doc. 241-4 at 5. While attempting to pass another truck, commercial
1 “The facts in this section are either undisputed or stated in light most favorable to the
nonmovants, Plaintiffs.” Parraz v. UNM Bd. of Regents, 2024 WL 3676928, at *1 (D.N.M.).
FNF’s reply supporting its summary judgment motion does not contain the required responsive
statement of material facts, set out in lettered paragraphs. D.N.M.LR-Civ. 61.1(b). “All material
facts” set out in lettered paragraphs in Plaintiffs’ response motion are therefore “deemed
undisputed” for purposes of this motion, as FNF did not “specifically controvert[]” them as
Local Rule 61.1(b) requires. The parties are reminded to follow this Court’s Local Rules. See
Strickland v. Las Cruces, 2025 WL 932183, at *1 (D.N.M).
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truck driver Larie Aparicio crashed the tractor-trailer that he was operating at over 60 miles per
hour into the back of another vehicle that was traveling at around three miles per hour. Doc. 122
at 12–15. The tragic result was a five-car pileup that killed three people and severely injured
several others (Plaintiffs in this case). Doc. 122 at 12–15.
FNF blames Mr. Aparicio’s alleged inattention for the crash. At his deposition, Mr.
Aparicio testified that he was “paying attention to any traffic coming from behind in order to
make that lane change safely” and only saw the “lights” of the vehicle that he crashed into “when
[he] made the lane change,” at which point he “knew there was not time to brake.” Doc. 253-4 at
96:2–22. Davin Barela, a State Police accident reconstructionist, concluded in his September
2021 report that Mr. Aparicio was “not paying attention to the traffic in front of him and failed to
notice traffic was slow moving”; that dash camera footage showed that traffic was “clearly seen
traveling at a low rate of speed and red taillights [could] be seen illuminating”; and that “[a]ll
other vehicles in front of [Mr.] Aparicio were able to see the slow-moving traffic in front of them
and slow safely with the flow of traffic.” Doc. 241-4 at 6.
Plaintiffs, in contrast, blame the crash on FNF’s alleged mismanagement of the areas
surrounding the construction zone despite FNF’s knowing that its conduct could endanger
drivers. See Doc. 122 at 10–32. For example, only one FNF project manager was
simultaneously overseeing two different construction zones that night and had never received
FNF’s Traffic Control Management Plan. Doc. 253 at 10–11. FNF also gave no advanced
warning signals to drivers about the earlier crashes and resulting traffic issues, deviating from
FNF’s own Traffic Plan, industry standards, NMDOT requirements, and representations made to
NMDOT in March 2021 that it would revise its Traffic Plan to include better warnings. Id. at
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11–12, 19. Likewise, FNF kept the speed limit at 75 miles per hour, even though it had the
ability to recommend a lower speed limit to protect motorists. Id. at 29.
The procedural history of this case is lengthy, so the Court describes only what is relevant
to the motions at hand. Plaintiffs sued Defendants for negligence in New Mexico state court, and
Defendants removed the case to this Court in August 2022. Doc. 1. Plaintiffs filed their
operative complaint (the third amended complaint) in May 2024, Doc. 122, and after multiple
orders dismissing other Defendants on various grounds, FNF is the only remaining Defendant.
E.g., Hurtado v. AM Transp. Servs., 2023 WL 5726014, at *1 (D.N.M.); Hurtado v. AM Transp.
Servs., 2023 WL 5726194, at *1 (D.N.M.); see also, e.g., Docs. 102, 121, 213, 249.
After granting three extensions, the Court entered its final stipulated scheduling order in
March 2025, setting the discovery deadline for July 1, 2025; the dispositive motions deadline for
August 1, 2025; and trial for December 8, 2025. Doc. 212. Because the parties did not move to
extend the deadlines in the Court’s July 2023 scheduling order to amend their pleadings, Doc.
168 at 5, those deadlines remained in effect after the Court entered its final scheduling order.
Doc. 142 at 2 (setting August 16, 2025, as Plaintiffs’ amendment deadline).
After discovery closed, FNF filed the summary judgment motion at issue on August 1,
2025, seeking dismissal of the entirety of Plaintiffs’ negligence case on causation and duty
grounds. Doc. 241. Plaintiffs opposed the motion, Doc. 253, and FNF replied. Doc. 257.
Two weeks later, on August 15, 2025, Plaintiffs filed the present motion to amend their
complaint a fourth time, seeking to reflect that FNF is the only remaining defendant and to
“conform the pleadings to the evidence” adduced during discovery. Doc. 252. FNF opposed the
motion, Doc. 260, and Plaintiffs replied. Doc. 262.
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II. Analysis
For the reasons below, the Court denies (A) FNF’s summary judgment motion and (B)
Plaintiffs’ motion to amend the complaint.
A. FNF’s summary judgment motion is denied.
FNF’s arguments for summary judgment on Plaintiffs’ negligence claim do not persuade
the Court, and the motion is denied accordingly. Doc. 241.
The summary judgment standard is well established. Summary judgment is warranted if
there is “no genuine dispute of material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The movant “bears the initial responsibility” to identify evidence
demonstrating the “absence of a genuine dispute of material fact,” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986), meaning that the “record taken as a whole could not lead a rational trier of
fact to find” for the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). The burden then shifts to the nonmovant to “go beyond the pleadings and by
[its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue for trial.” Id. at 324.
New Mexico negligence doctrine is likewise settled. Negligence “requires the existence
of a duty from a defendant to a plaintiff, breach of that duty, which is typically based upon a
standard of reasonable care, and the breach being a proximate cause and cause in fact of the
plaintiff’s damages.” Armijo v. Affilion, LLC, 2020 WL 2797685, at *3 (D.N.M.) (quoting
Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6). “To impose a duty, a relationship must exist
that legally obligates [d]efendant to protect [p]laintiff’s interest,” id. (quoting Johnstone v.
Albuquerque, 2006-NMCA-119, ¶ 7), and the “existence and scope of a defendant’s duty of care
is a question of law.” Reservations Unlimited v. Newtek Small Bus. Fin., 2020 WL 6158135, at
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*3 (D.N.M.). Highway contractors, for example, owe drivers a duty of care as a matter of law.
Cumming v. Nielson’s, Inc., 1988-NMCA-095, ¶ 9. For causation, an “act or omission is a
‘cause’ of a plaintiff’s harm if it contributes to bringing about the harm and the harm would not
have occurred without it,” but the act or omission “need not be the only explanation for the
injury.” Parraz, 2024 WL 3676928, at *4 (quoting U.J.I. § 13-305). “Unless the facts are
undisputed and reasonable minds can draw only one conclusion from the proffered evidence, the
issue of causation is generally a question of fact for the jury.” Shultzaberger v. State Farm Mut.
Auto. Ins. Co., 2018 WL 5085706, at *2 (D.N.M.) (alterations omitted).
1. Causation
Applying these principles, the Court first rejects FNF’s arguments on causation. FNF
contends that no rational jury could conclude that FNF had any part to play in causing the crash
because it is undisputed that Mr. Aparacio’s “inattention was the sole proximate cause of this
accident.” Doc. 241 at 9, 16. The Court disagrees. True, Mr. Aparicio testified that he did not
see the vehicle that he crashed into until it was too late, and the State Police accident
reconstructionist noted his belief that Mr. Aparicio was not paying attention. Doc. 253-4 at
96:2–22; see Doc. 241-4 at 6. But Plaintiffs adduced significant evidence (viewed favorably at
summary judgment) that FNF mismanaged the areas surrounding the construction zone by, for
example, not providing motorists with adequate signals. Doc. 253 at 10–33. Would better
warnings or a slower speed limit have made a difference? If so, to what extent? Those are
quintessential jury questions that the Court declines to resolve through summary judgment.
FNF cites three causation cases, but they do not change the Court’s conclusion. See Doc.
241 at 9–15. First, Pals v. Weekly relied on Nebraska law holding that “creators of roadway
hazards are not expected to foresee any extraordinarily negligent driving.” 12 F.4th 878, 881–83
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(8th Cir. 2021). Nebraska law does not apply here, so Pals is inapposite. Second, Nichols v.
Berles applied Illinois law (in a non-precedential ruling) to conclude that two contractors did not
proximately cause the death of a pedestrian whom a motorist ran over during the day. 2015 WL
5451430 (Ill. App. Ct.). Nichols is distinguishable, however, because the motorist there
specifically admitted fault and acknowledged that there were warning signs in the construction
zone. Id. at *10–18. Last, New Mexico State Highway Department v. Van Dyke rejected a
driver’s attempt to hold a state agency liable for a crash where the agency violated safety
standards that were unrelated to the crash (stopping-sight distance and inadequate shoulder).
1977-NMSC-027, ¶¶ 3–12. Here, in contrast, there are genuine disputes of material fact about
whether FNF’s alleged safety violations contributed to the crash.
The Court also rejects FNF’s “independent intervening cause” argument. First, this is a
“simple dispute over causation in fact (i.e., whether [FNF’s alleged] negligence did or did not
cause in fact the injuries suffered by [Plaintiffs]),” meaning the “issue for the jury is causation
alone, not independent intervening cause.” Chamberland v. Roswell Osteopathic Clinic, 2001-
NMCA-045, ¶ 19. Second, the independent intervening cause doctrine requires evidence that the
independent event was “unforeseeable,” and it is a quintessential jury question here whether this
crash, at least in part, was the foreseeable result of FNF’s alleged mismanagement. Id. ¶ 23.
FNF’s causation arguments therefore lack merit.
2. Duty
The Court likewise rejects FNF’s arguments on duty. FNF contends, in just three
paragraphs and after its causation analysis, that no reasonable jury could conclude that FNF
owed motorists a “duty to warn of the slowed and backed up traffic” because the traffic was
“open and obvious.” Doc. 241 at 20. The Court again disagrees. To start, FNF was charged
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with managing the safety of the area that night and therefore owed motorists a duty of care under
settled New Mexico law. Cumming, 1988-NMCA-095, ¶ 9 (“Highway contractors have a duty at
common law to take adequate measures to protect the safety of the traveling public,” including
“appropriate warning signs.”). The open and obvious doctrine, moreover, “has been abolished in
New Mexico” since the early 1990s. Smith ex rel. Smith v. Bryco Arms, 2001-NMCA-090, ¶ 41.
Instead, a “pure comparative negligence” system applies, where the “‘open and obvious’ nature
of the risk would merely affect the comparative fault of the parties instead of completely
absolving [d]efendant of liability.” Betsuie v. United States, 65 F. Supp. 2d 1218, 1222 (D.N.M.
1999). FNF’s “open and obvious” arguments therefore lack merit as well, and the motion for
summary judgment is denied.
B. Plaintiffs’ motion to amend the complaint is denied.
The Court also denies Plaintiffs’ motion to file a fourth amended complaint at this late
stage of the proceedings. Doc. 252.
The rules governing amended pleadings are not in dispute. After the 21-day deadline to
amend as a matter of course passes, a party may amend its pleadings “only with the opposing
party’s written consent or the court’s leave,” and the court “should freely give leave when justice
so requires.” Fed. R. Civ. P. 15(a)(2). “When,” however, “a party seeks to amend pleadings
after a deadline imposed by a scheduling order, Rule 15(a)’s liberal ‘freely give [leave]’ standard
is superseded by Rule 16(b)’s requirement of good cause for modifying a scheduling order,” and
“[t]o amend under such circumstances, a party must show good cause for missing the deadline.”
Wright & Miller, Fed. Prac. & Proc. § 1488 (2025) (“Wright & Miller”); see, e.g., Tesone v.
Empire Mktg. Strategies, 942 F.3d 979, 989 (10th Cir. 2019) (“A party seeking leave to amend
after a scheduling order deadline must satisfy both the Rule 16(b) and Rule 15(a) standards.”).
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“[P]laintiffs have been denied leave to amend to add new claims or theories when the
amendment is sought after the case has been pending for some time, discovery has closed, and
the court is about to rule on defendant’s summary-judgment motion.” Wright & Miller § 1488.
Under these standards, Plaintiffs’ amendment motion lacks merit because it is untimely.
The deadline for Plaintiffs to amend their pleadings under the Court’s July 3, 2024, scheduling
order was August 16, 2024, see Doc. 142 at 2, yet Plaintiffs did not file their motion to amend
until August 15, 2025—nearly a year later. Doc. 252. Rule 16(b)’s “good cause” standard
therefore governs the Court’s analysis. Tesone, 942 F.3d at 989. Plaintiffs improperly rely on
Rule 15(a)’s “freely give leave” standard in their motion and do not satisfy Rule 16(b)’s “good
cause” standard. See Doc. 252 at 1–4. Indeed, this case has been “pending for some time” (since
August 2022), “discovery has closed,” the Court is “about to rule on [FNF’s earlier-filed]
summary-judgment motion,” and trial is looming—all reasons to reject Plaintiffs’ amendment
motion at this late stage of the case. Wright & Miller § 1488.
Plaintiffs’ counterarguments lack merit. Plaintiffs, for example, contend that the
“scheduling order does not provide a deadline by which to file an amended complaint”—but that
is incorrect. Doc. 262 at 3. As stated above, the Court’s July 3, 2024, scheduling order set an
August 16, 2024, amendment deadline, Doc. 142 at 2, and the parties did not move to extend that
deadline in their final joint motion to modify the scheduling order. Doc. 168 at 5. The Court
therefore did not alter that deadline in its final scheduling order, and it remained in effect as a
result. See Doc. 212.
Plaintiffs’ motion to amend is therefore denied. Denial is without prejudice, as the Court
“may permit the pleadings to be amended” at trial if a “party objects that evidence is not within
the issues raised in the pleadings.” Fed. R. Civ. P. 15(b)(1); see Wright & Miller § 1495.
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III. Conclusion
FNF’s summary judgment motion, Doc. 241, and Plaintiffs’ motion to amend the
complaint, Doc. 252, are denied.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its
authenticity, please refer to the Digital File
Stamp on the NEF (Notice of Electronic
Filing) accompanying this document.
Electronically filed documents can be found
on the Court’s PACER public access
system.
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