Tharp et al v. Utah Division of Child and Family Services

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
JONATHAN THARP; and LAUREN LUBY,
Plaintiffs,
v.
UTAH DIVISION OF CHILD AND FAMILY
SERVICES,
Defendant.
ORDER DENYING PLAINTIFFS’
MOTION FOR LEAVE TO FILE
AMENDED COMPLAINT
(DOC. NO. 34) WITHOUT PREJUDICE
Case No. 2:25-cv-00304
District Judge Dale A. Kimball
Magistrate Judge Daphne A. Oberg
Jonathan Tharp and Lauren Luby, proceeding without an attorney, filed this civil
rights action against the Utah Division of Child and Family Services (DCFS), claiming
the agency violated federal laws and international treaties by interfering with their
custodial rights and relationship with Ms. Luby’s children.1 DCFS moved to dismiss the
complaint, arguing it has immunity, the court lacks subject-matter jurisdiction, and the
plaintiffs fail to state a claim.2 Mr. Tharp and Ms. Luby have since moved for leave to
amend their complaint to add allegations and name individual defendants.3 The motion
1 (Compl., Doc. No. 1 at 1.)
2 (Def.’s Mot. to Dismiss, Doc. No. 23.)
3 (Pls.’ Mot. for Leave to File Am. Compl. (Mot.), Doc. No. 34.) Mr. Tharp and Ms. Luby
filed the proposed amended complaint nearly one month after their motion. (See Notice
of Proposed Am. Compl. (Proposed Am. Compl.), Doc. No. 39.)
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for leave to amend is denied without prejudice because the proposed amended
complaint contains claims against DCFS that should be dismissed.
Under Rule 15 of the Federal Rules of Civil Procedure, a party may amend its
pleading “once as a matter of course,” within twenty-one days after serving it or
twenty-one days after a responsive pleading or motion.4 “In all other cases, a party may
amend its pleading only with the opposing party’s written consent or the court’s leave.”5
Courts must “freely give leave when justice so requires.”6 The purpose of this rule is “to
provide litigants the maximum opportunity for each claim to be decided on its merits
rather than on procedural niceties.”7 Denying leave to amend is “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.”8 Prejudice to the opposing party is the most important factor in deciding
whether to allow leave to amend.9
4 Fed. R. Civ. P. 15(a)(1). The proposed amendment here is not permitted as a matter
of course, where Mr. Tharp and Ms. Luby filed the motion to amend well after their
original complaint and DCFS’s motion to dismiss.
5 Fed. R. Civ. P. 15(a)(2).
6 Id.
7 Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (internal quotation
marks omitted).
8 Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (internal quotation marks
omitted).
9 Minter, 451 F.3d at 1207.
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In their proposed amended complaint, Mr. Tharp and Ms. Luby seek to add
several new defendants10 and new claims and allegations, while also maintaining their
original claims against DCFS. But the undersigned has recommended the district judge
grant DCFS’s motion to dismiss the original complaint.11 Where the proposed amended
pleading asserts the claims against DCFS which should be dismissed, the motion to
amend must be denied.12
For instance, the proposed amended complaint asserts claims against DCFS
under 42 U.S.C. § 1983 in counts I, III, XIII and XV, which are barred by the Eleventh
Amendment.13 It also asserts count VI under 42 U.S.C. § 671(a)(15), a statute under
which there is no private cause of action.14 And it fails to allege Mr. Tharp’s standing,
where each claim is based on injuries to Ms. Luby’s rights during the child custody
dispute and only asserts generalized harm to Mr. Tharp. Permitting the plaintiffs to file
10 (Proposed Am. Compl., Doc. No. 39 at 1 (naming DCFS, Ashley Tyron, Samantha
Manwill, Adrija Allred, Tori Christiansen, Judge Tupoc Renteria, Sandi Clemons,
Candace Roach, Jacee Ballard, Dannon Branagin, Allan Luby, Sheila McRae, Russell
Gray, James Hunnicutt, Brent Hall, and “Utah State Courts (Administrative Office of the
Courts)”).)
11 (See R. & R. to Grant Mot. to Dismiss, Doc. No. 44.) The undersigned also
recommended the district judge permit Mr. Tharp and Ms. Luby to file a new proposed
amended complaint to add individual defendants, given that they are proceeding pro se
and have not yet been permitted to amend their complaint.
12 (See Proposed Am. Compl., Doc. No. 39 at 16, 18, 19, 23, 24.)
13 (Id. at 16, 18, 23, 24.)
14 (Id. at 19.)
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this proposed amended complaint would cause undue prejudice because it would cause
DCFS to re-litigate claims that should be dismissed.15
At the same time, Mr. Tharp and Ms. Luby proceed pro se. Where they also
seek to add new individual defendants and they have not yet been permitted to amend
their complaint, amendment consistent with the recommendations in the undersigned’s
Report and Recommendations is justified.16 Accordingly, while the motion for leave to
amend the complaint is denied, it is denied without prejudice.17
DATED this 28th day of January, 2026.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
15 See Rycar Trust v. Yates Family Invests., 799 F. Supp. 3d 1178, 1207 (D. Utah 2025)
(denying leave to amend because amended claims would still be legally barred and
would prejudice defendants who had “already been burdened by having to respond” to
prior pleadings).
16 (See R. & R. to Grant Mot. to Dismiss 23, Doc. No. 44.)
17 (Doc. No. 34.)
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