STEPHAN M. VIDMAR, Magistrate Judge.
THIS MATTER is before the Court on the following motions: Defendants' Motion to Strike Plaintiff's Amended Complaints, filed on September 19, 2017 [Doc. 56]; Plaintiff's Motion Seeking Leave to Amend Complaint Nunc Pro Tunc, filed on October 1, 2017 [Doc. 59]; Plaintiff's Second Motion Seeking Leave to Amend Complaint, filed on November 26, 2017 [Doc. 76]; Plaintiff's [Third]
In January 2013, Plaintiff began working for the New Mexico General Services Department ("GSD") as an "IT Generalist." [Doc. 49-1] at 2. In that position, she "provid[ed] IT support and customer services for GSD." Id. She alleges a number of violations of state and federal law stemming from her employment in that position.
Plaintiff appealed to the Tenth Circuit, which affirmed in part and reversed in part. 696 F. App'x 325 (10th Cir. 2017); [Doc. 49-1]. The Tenth Circuit affirmed the dismissal of Plaintiff's claims except as to her WPA claim against Defendant Burckle, Secretary of the General Services Department, in his official capacity.
[Doc. 50] at 1-2. He ordered Plaintiff to file her amended complaint within 21 days. Id. at 1.
On September 5, 2017, Plaintiff filed a 46-page amended complaint. [Doc. 53]. The amended complaint stated FPWA and EPA claims against GSD; § 1983 claims for violation of the Fourth Amendment against Defendants Burckle and Baltzley in their individual capacities; and a WPA claim against GSD. Plaintiff also asserted several new claims that she had never previously raised. She alleged violation of the New Mexico Human Rights Act ("NMHRA") for gender discrimination and harassment, disability discrimination, and failure to accommodate; violation of the New Mexico Fraud Against Taxpayers Act ("FATA"); violation of the New Mexico Inspection of Public Records Act ("IPRA"); breach of contract and breach of the implied covenant of good faith and fair dealing; and violation of the Family and Medical Leave Act ("FMLA").
Defendants move to strike both amended complaints pursuant to Fed. R. Civ. P. 15(f). [Doc. 56]. They assert that the Tenth Circuit "narrowly set the parameters under which" Plaintiff could file an amended complaint. Id. at 6. Defendants argue that the amended complaints exceed the scope of the Tenth Circuit's order and Judge Junell's corresponding order on remand granting Plaintiff leave to file an amended complaint. Id. at 6-9. Those orders "made clear" that "the only permissible defendants in Plaintiff's Amended Complaint are the GSD and Defendant Burckle (official capacity only) and the only permissible causes of action are" a § 1983 privacy claim, a FPWA/EPA discrimination claim, and a WPA claim. Id. at 5. The amended complaints, they argue, "add[] additional allegations, claims, and defendants beyond that permitted by the Court and without seeking leave to do so under Rule 15(a)(2)." Id. at 2. Defendants suggest that allowing the amended complaints to stand would contravene the "law-of-the-case" doctrine and the mandate rule, which require trial courts to conform to the terms of the remand. Id. at 6. Where the amended complaints exceed the scope of the leave to amend granted, Defendants argue, they should be struck. Additionally, with respect to the second amended complaint, Defendants argue that it was not filed within the 21-day period and that Plaintiff did not seek leave of the court to file it. Id. at 9-10.
Plaintiff disputes Defendants' assessment of the scope of her leave to amend following remand. As an initial matter, Plaintiff argues that she was granted leave to amend her § 1983 privacy claim to cure the deficiencies noted by the Tenth Circuit; amending that claim necessarily entails re-asserting claims against Defendants Burckle and Baltzley in their individual capacities. [Doc. 57] at 5-8. More broadly, Plaintiff argues that she should be permitted to add new claims and defendants in her amended complaint. In the order granting her leave to amend, she was directed not to "include any other previously dismissed claims in her Amended Complaint," except as specified. She argues that the order was silent as to new claims not previously raised. Id. at 2. Therefore, she contends, she was free to file an amended complaint that asserted new claims in addition to the claims explicitly allowed to proceed, so long as she did not re-assert claims that were properly dismissed. And, even if she were required to obtain leave of the Court to add the new claims and amendments, she argues that leave should be granted "nunc pro tunc." Id. at 5. She further argues that her second amended complaint was proper pursuant to Fed. R. Civ. P. 15(a)(1), which permits amendment once as a matter of course. Id. at 4-5.
Shortly after the motion to strike was filed, Plaintiff filed a motion seeking leave to amend her complaint nunc pro tunc.
Plaintiff has subsequently filed two additional motions for leave to amend, even though her first motion for leave to amend and Defendants' motion to strike are still pending. Plaintiff's second motion for leave to amend seeks to add several additional claims beyond those already asserted in her amended complaints. [Doc. 76]. In addition to the claims alleged in her second amended complaint, see [Docs. 54, 59-1], Plaintiff seeks to add new claims for violation of the Stored Communications Act ("SCA"), violation of her "freedom of speech and association" pursuant to § 1983, and conspiracy to violate her civil rights pursuant to 42 U.S.C. § 1985. [Doc. 76]. This proposed third amended complaint also seeks to add counsel for Defendants, Jaclyn McLean, as a Defendant. Finally, Plaintiff's third motion for leave to amend seeks to correct errors in the caption and title of the proposed third amended complaint. [Doc. 77].
Instead of responding to these latest motions to amend, Defendants have moved the Court for an order staying any further filings by Plaintiff in this matter pending resolution of Defendants' motion to strike the amended complaints. [Doc. 78]. Defendants argue that Plaintiff's successive motions, violations of the discovery rules, and noncompliance with the rules of procedure have burdened them as well as the Court. Id. at 5. Plaintiff's "unauthorized attempts at early discovery and her barrage of motions and constantly changing complaints are harassing and vexatious" such that the Court's intervention is necessary, they argue. Id. at 7. Defendants further request that, to the extent a decision on their motion to strike does not make moot Plaintiff's latest motion to amend, they be given 21 days from the filing of such decision to respond. Id. at 7.
Defendants urge the Court to strike Plaintiff's amended complaints and suggest that doing so may render moot Plaintiff's latest motion to amend. See [Doc. 78] at 4. In fact, Plaintiff's latest motion to amend renders moot her preceding motions to amend as well as Defendants' motion to strike. Therefore, the Court will deny as moot the motion to strike [Doc. 56] and Plaintiff's first two motions to amend [Docs. 59, 76]. And the Court will order Defendants to respond to Plaintiff's most recent motion for leave to amend. [Doc. 77].
At bottom, the parties' disputes—and the pending motions—center on the scope of the Tenth Circuit's remand order and whether and how Plaintiff may assert new claims and add new defendants for the first time on remand. Defendants argue that the amended complaints should be struck because Plaintiff seeks to assert claims and name defendants beyond the scope of the Tenth Circuit's mandate and Judge Junell's order on remand granting leave to amend. There is no real question that Plaintiff seeks to add new claims and defendants. And it is true that Plaintiff filed her amended complaints without first seeking leave of the court to add the additional claims and parties. But Plaintiff has since sought leave of the Court to so amend her complaint. Thus, it is not enough for Defendants simply to point out that Plaintiff failed to obtain leave of the Court before adding the additional claims.
Moreover, to the extent Defendants suggest that the question of post-remand amendment may be resolved entirely by the "law-of-the-case" doctrine and the mandate rule, they have not convinced me at this juncture. The law-of-the-case doctrine "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Huffman v. Saul Holdings Ltd. P'ship, 262 F.3d 1128, 1132 (10th Cir. 2001) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). When a case is on remand, the doctrine provides that "the decision of the appellate court establishes the law of the case and ordinarily will be followed by both the trial court on remand and the appellate court in any subsequent appeal." Id. The doctrine "is intended to prevent continued re-argument of issues already decided." Id. A corollary to the law-of-the-case doctrine is the mandate rule, which provides that "a district court must comply strictly with the mandate rendered by the reviewing court." Id. (quoting Ute Indian Tribe v. Utah, 114 F.3d 1513, 1520-21 (10th Cir. 1997)). "[T]he scope of the mandate on remand in the Tenth Circuit is carved out by exclusion: unless the district court's discretion is specifically cabined, it may exercise discretion on what may be heard." Dish Network Corp. v. Arrowood Indem. Co., 772 F.3d 856, 864 (10th Cir. 2014). Thus, "[a]lthough a district court is bound to follow the mandate, and the mandate controls all matters within its scope, . . . a district court on remand is free to pass upon any issue which was not expressly or impliedly disposed of on appeal." Procter & Gamble v. Haugen, 317 F.3d 1121, 1126 (10th Cir. 2003).
The Tenth Circuit remanded this case "for further proceedings as to violation of privacy, wage discrimination, and whistleblowing that are consistent with this Order and Judgment." [Doc. 49-1] at 21. The law-of-the-case doctrine and the mandate rule provide that Plaintiff cannot re-assert, for example, her equal-protection or due process claims, which the Tenth Circuit held had been properly dismissed without leave to amend. See id. at 7-9, 11-13. But the mandate from the Tenth Circuit did not specifically address whether Plaintiff could seek to add new claims in the case. It is unclear to the Court whether Defendants argue that Plaintiff may never seek leave to amend her complaint on remand, or whether they argue that Plaintiff erred by adding the new claims and defendants without first seeking leave of the Court to do so. To the extent they argue the former, the Court finds the argument unpersuasive. And to the extent they argue the latter, the point is moot because Plaintiff has since sought leave to amend. Because Plaintiff has now requested such leave, the Court is inclined to consider whether amendment should be granted pursuant to Fed. R. Civ. P. 15(a)(2).
Therefore, the Court will order Defendants to respond to Plaintiff's most recent motion to amend [Doc. 77], addressing whether leave to amend should be granted pursuant to Fed. R. Civ. P. 15(a)(2) with respect to all claims and parties Plaintiff seeks to add beyond those specifically permitted by the Tenth Circuit and Judge Junell's order on remand. In their response, Defendants are permitted to refine or re-assert their arguments regarding the law of the case and the mandate rule. However, as noted above, the Court is unpersuaded by the cursory argument they have presented in their briefing to date.
Finally, the Court cautions Plaintiff that she must adhere to the rules of procedure moving forward in this litigation. Individuals are entitled to represent their own interests as pro se litigants in federal court. 28 U.S.C. § 1654; see also Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986). While a pro se litigant is entitled to a liberal reading of her pleadings, she is still held to the same rules of practice and procedure that are applicable to any licensed attorney. See Murray v. City of Tahlequah, Okla., 312 F.3d 1196, 1199 n.3 (10th Cir. 2002); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Failure to adhere to the rules of procedure or the directives of the Court can result in the imposition of sanctions. Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir. 2010). The Court thus cautions Plaintiff against any unnecessary, frivolous, or procedurally improper filings. Since this case was remanded from the Tenth Circuit, Plaintiff has filed two amended complaints and three motions to amend. The Court warns Plaintiff that any further motions to amend filed while her most recent motion [Doc. 77] is pending may be subject to summary denial.