Gardner v. New Mexico Board of Dental Health et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIAM GARDNER,
Plaintiff,
v. 	No. 1:25-cv-00421-SMD-SCY
NEW MEXICO BOARD OF DENTAL HEALTH, et al.,
Defendants.
ORDER DENYING MOTION TO AMEND COMPLAINT
AND STRIKING AMENDED COMPLAINT
Plaintiff asks the Court for permission to amend his Complaint. See Motion for Leave to
Amend Complaint, Doc. 25, filed June 12, 2025 (“Motion”). Plaintiff states that during a hearing
on June 11, 2025, Plaintiff asked United States Magistrate Judge Steven C. Yarbrough for
permission to amend the Complaint and Judge Yarbrough responded that Plaintiff must file a
motion. Motion at 1. Plaintiff also states that at that hearing counsel for Defendant Daniel Rubin,
an attorney with Defendant New Mexico Department of Justice (“NMDOJ”), “does not object to
filing of this amendment.” Motion at 1.
Counsel for NMDOJ, who is also counsel for Defendant Rubin, filed a response stating
that Plaintiff has not requested the position of NMDOJ as to whether it would oppose a motion to
amend. 	See Response at 1, Doc. 26, filed June 13, 2025 (stating that Defendant Rubin has
challenged the sufficiency of service in this case). NMDOJ opposes Plaintiff’s Motion to amend
because Plaintiff did not attach a proposed amended complaint to the Motion as required by Local
Rule of Civil Procedure 5.1 and “NMDOJ cannot analyze the proposed amendments to determine
whether the request to amend is futile, the claims are time-barred, or even whether NMDOJ may
not oppose an amended complaint.” Response at 2.
Case 1:25-cv-00421-SMD-SCY Document 74 Filed 03/29/26 Page 1 of 3

2
The Court denies Plaintiff’s Motion for leave to file an amended complaint without
prejudice because Plaintiff did not attach the proposed amended complaint to the Motion. 	See
D.N.M.LR-Civ. 15.1 (“A proposed amendment to a pleading must accompany the motion to
amend”).
Plaintiff filed an Amended Complaint on June 25, 2025. 	See Plaintiff’s Amended
Complaint for Violations of the New Mexico Civil Rights Act, 1983 Claims, Prima Facie Tortious
Claim of Civil Aiding, Abetting, Civil Conspiracy, Spoilation [sic] of Evidence for Damages and
Injunctive Relief, Doc. 28.
The federal rule governing amended pleadings provides:
(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course no later than:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days
after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's leave. The court should
freely give leave when justice so requires.
Fed. R. Civ. P. 15(a). Because Defendants filed motions to dismiss on May 9, 2025, Plaintiff was
allowed to amend as a matter of course until May 30, 2025. Consequently, Plaintiff may amend
his Complaint only with the opposing parties’ written consent or the Court’s leave. Plaintiff did
not demonstrate that he obtained the opposing parties’ written consent. 	Plaintiff thus may only
amend his Complaint with the Court’s leave. The Court’s Local Rules of Civil Procedure require
that a proposed amended complaint “must accompany the motion to amend.” 	D.N.M.LR-
Civ. 15.1. 	The Court strikes Plaintiff’s Amended Complaint because the Court has denied
Plaintiff’s motion to amend based on Plaintiff’s failure to attach a proposed amended complaint to
his motion to amend. See Bunn v. Perdue, 966 F.3d 1094, 1099 (10th Cir. 2020) (“a [c]ourt may
Case 1:25-cv-00421-SMD-SCY Document 74 Filed 03/29/26 Page 2 of 3

3
choose to strike a filing that is not allowed by local rule ....’ Id. (quotations omitted); see Bustillo
v. Hawk, 44 F. App'x 396, 400-01 (10th Cir. 2002) (unpublished) (upholding district court's
decision to strike filing based on local rules); In re Hopkins, No. 98-1186, 1998 WL 704710, at *3
n.6 (10th Cir. Oct. 5, 1998) (unpublished) (noting ‘it was well within the discretion of the district
court to strike’ briefs that did not comply with local rules”).
IT IS ORDERED that:
(i) 	Plaintiff’s Motion for Leave to Amend Complaint, Doc. 25, filed June 12, 2025, is
DENIED without prejudice.
(ii) 	The Court STRIKES Plaintiff’s Amended Complaint for Violations of the New
Mexico Civil Rights Act, 1983 Claims, Prima Facie Tortious Claim of Civil Aiding,
Abetting, 	Civil 	Conspiracy, 	Spoilation [sic] 	of 	Evidence for 	Damages 	and
Injunctive Relief, Doc. 28, filed June 25, 2025.
_________________________________
UNITED STATES DISTRICT JUDGE
Case 1:25-cv-00421-SMD-SCY Document 74 Filed 03/29/26 Page 3 of 3