MEMORANDUM OPINION AND ORDER

M. CHRISTINA ARMIJO, Chief District Judge.

This case comes before the Court upon Plaintiffs' Motion to Amend Regarding Due Process Claim [Doc. 82]. The Court has considered the written submissions of the parties, the record in this case and the pertinent law, and is otherwise fully advised.

"Leave [to amend] should be `freely give[n], but a court may properly deny leave for various reasons, including . . . `futility of amendment.' `A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.'" Bauer v. City and County of Denver, 642 Fed. App'x 920, 925 (10th Cir. 2016).

In its July 28, 2016 Memorandum Opinion and Order [Doc. 77] the Court concluded that Plaintiffs had not pleaded facts giving rise to a constitutionally-protected property interest, an essential element of a procedural due process claim. The Court deferred ruling on Defendant NMHSD's Motion to Dismiss Complaint [Doc. 22] in order to afford Plaintiffs an opportunity to amend their Complaint to reflect the provisions of certain documents that were unavailable at the time Plaintiffs filed their original Complaint. Plaintiffs timely filed their Motion to Amend Regarding Due Process Claim to which they have attached their proposed Second Amended Complaint [Doc. 82-1].

Plaintiffs proposed Second Amended Complaint incorporates the following policies:

[Doc. 82-1 at 4-5]. Plaintiffs argue that these policies limit the "sole discretion" clause and create a constitutionally-protected substantive right to continuation of their status as a healthcare provider.

In citing additional policy and procedure provisions, Plaintiffs continue to confuse procedural rights with the substantive restrictions on the exercise of official discretion required to give rise to a protected property interest.

Elliot v. Martinez, 675 F.3d 1241, 1245 (10th Cir. 2012) (citations omitted). "[A] state-created interest is not protected by the procedural component of the Due Process Clause unless the interest is an entitlement—that is, unless the asserted right to property or liberty is mandated by state law when specified substantive predicates exist." Id. at 1244. Notwithstanding Plaintiffs' numerous references to DentaQuest's policies, one looks in vain in the proposed Second Amended Complaint for "substantive predicates" that, if established, would mandate the continuation of Plaintiffs' status as a Medicaid provider. Moreover, the record now includes the Provider Service Agreement1 between DentaQuest and Rainbow Dental, [Doc. 91-1] which allows either party to terminate the provider agreement upon 30 days notice. This termination provision further undermines Plaintiffs' claim of a constitutionally protected property interest in the continuation of their contractual relationship with DentaQuest.

Where the government retains the right to terminate a contractual relationship in its sole discretion, the party contracting with the government does not have a constitutionally-protected property interest in the continuation of the relationship. Glover v. Mabrey, 384 Fed. App'x 763, 777 (10th Cir. 2010) ("There is no protected property or liberty interest when the outcome of the process is within the government official's complete discretion."); Schueller, v. Goddard, 631 F.3d 460, 463 (8th Cir. 2011) (no protected property interest in continued employment as emergency room physician where public hospital retained right "in its sole discretion, to request the immediate removal of plaintiff); Med Corp., Inc. v. City of Lima, 296 F.3d 404, 409 (6th Cir. 2002) ("[A] party cannot possess a property interest in the receipt of a benefit when the state's decision to award or withhold the benefit is wholly discretionary."); Anderson v. Bd. of Regents of Univ. Sys. of Ga., 822 F.Supp.2d 1342, 1350 (2011) ("Although the Handbook provides examples of conduct that could lead to an employee's dismissal, it expressly reserves [the University's] `right to immediately terminate the employment of any employee, if in the sole discretion of the University administration, the circumstances warrant.' The Eleventh Circuit has held that there is no property interest in continued employment when a state employer has such broad discretion to terminate the employee.") (citations to record omitted); Waltentas v. Lipper, (S.D. N.Y. 1986) (no constitutionally protected property interest in opportunity to develop publicly-owned property where governmental entities retained right to terminate negotiations "if, in their sole discretion, they are not satisfied with the progress of negotiation. . . .").

Plaintiffs' argument that DentaQuest is constrained by a duty of good faith in exercising its right to terminate its at-will contractual relationship with Plaintiffs is not supported by New Mexico law. See Melnick v. State Farm. Mut. Auto. Ins. Co., 1988-NMSC-012, ¶ 13 ("[W]e do not recognize a cause of action for breach of an implied covenant of good faith and fair dealing in an at-will employment relationship.").

Plaintiffs' argument based on the "sole discretion" language in the DentaQuest Provider Manual misapprehends the effect of an illusory promise. "Under current orthodoxy, a bilateral contract is void if there is no mutuality of consideration. If the promise made by one or both parties is illusory or indefinite it does not constitute consideration." Joseph M. Perillo, Calamari and Perillo on Contracts § 4.12 at 179 (6th ed. 2009). New Mexico follows this rule. Heuser v. Kephart, 215 F.3d 1186, 1192 (10th Cir. 2000) (citing and quoting Bd. of Educ. v. James Hamilton Constr. Co., 119 N.M. 415, 420 (Ct. App. 1994)). However, a New Mexico court would not, as Plaintiffs propose, rewrite the parties' agreement by striking the words "sole discretion," see Smith v. Price's Creameries, 1982-NMSC-102, ¶ 17(observing that "it is not province of the courts to alter or amend a contract made by the parties for themselves"); rather, a New Mexico Court would refuse to enforce the agreement due to the lack of mutuality of consideration. Thus, if Plaintiffs' analysis were correct and DentaQuest's promise to purchase professional services from Plaintiffs were found to be illusory, Plaintiffs' due process claim would fail for lack of an enforceable contract.

Plaintiffs have not alleged substantive predicates that override DentaQuest's right to terminate its relationship with Plaintiffs "without cause" in the exercise of its "sole discretion," and, therefore, their proposed Second Amended Complaint fails to allege a constitutionally protected interest in the continuation of their status as a provider of professional services. The Court will deny Plaintiffs' motion to amend their due process claim on the ground that their proposed amended claim would be subject to dismissal for failure to state a claim.2

"When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims." Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) (citing 28 U.S.C. § 1367(c)(3)). Having dismissed Plaintiffs' sole federal claim, the Court declines to exercise jurisdiction over Plaintiff's remaining state-law claims and Defendant DentaQuest's state-law counterclaims.

WHEREFORE, IT HEREBY IS ORDERED that Plaintiffs' Motion to Amend Regarding Due Process Claim [Doc. 82] is denied;

IT FURTHER IS ORDERED that Defendant New Mexico Human Services Department's Motion to Dismiss [Doc. 22] is granted as to Plaintiffs' First Cause of Action, and that Plaintiffs' First Cause of Action is dismissed with prejudice;

IT FURTHER IS ORDERED that Plaintiffs' remaining claims and this action are dismissed without prejudice.

So ordered