United States District Court, D. New Mexico
Counsel Henry Ortiz and Sophie Ortiz Ribera, New Mexico Pro
R. Dolan II Dolan & Associates, P.C. Albuquerque, New
Mexico Attorneys for Defendants New Mexico Department of
Cultural Affairs, New Mexico Museum of Natural History,
Adrian P. Hunt, Spencer G. Lucas, Kaye Toolson, Philip Huber,
Phil Bircheff, D. Baird, K. Kietzke, and Allan Lerner
Butzier Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Albuquerque, New Mexico Attorneys for Defendant New Mexico
Romero Ribera, New Mexico Pro se Defendant
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on: (i) the Magistrate
Judge's Proposed Findings and Recommended Disposition,
filed April 11, 2017 (Doc. 23)(“PFRD”); (ii) the
Plaintiffs' Motion to Remand Case to Fourth Judicial
District Court in Las Vegas, New Mexico, filed January 5,
2017 (Doc. 10)(“First Motion to Remand”); (iii)
the Plaintiffs' Argument Against Second Removal to United
States District Court, Invalidation of Attorney Daniel R.
Dolan's Defense, Appeal/Petition for Mediation, filed
January 6, 2017 (Doc. 11)(“Second Motion to
Remand”); (iv) the Plaintiffs' Response to Proposed
Findings and Recommended Disposition, and Demand for
Injunctive Relief of New Publications of New-Mexico
Museum-of-Natural-History-Locality 1339 (Plaintiffs'
Property), filed April 14, 2017 (Doc.
24)(“Objections”); (v) the Plaintiffs' Appeal
for Review of Attorney Dolan's Failed Attempts at Removal
to Federal Court, filed February 3, 2017 (Doc.
17)(“Appeal for Review”); (vi) the
Plaintiffs' Motion to Remand to Fourth Judicial District
Court in Las Vegas New Mexico, Demand for Discovery, Response
to Defendants' (State's) Motion to Dismiss, filed
July 7, 2017 (Doc. 26)(“Third Motion to Remand”);
and (vii) the Plaintiffs' Motion for Judgement [sic] as a
Matter of Law, filed August 7, 2017 (Doc. 32)(“Motion
for JMOL”). Because the Court agrees with the
conclusion of the Honorable William P. Lynch, United States
Magistrate Judge for the District of New Mexico, the Court
will adopt the PFRD, deny the First, Second, and Third
Motions to Remand, deny the Request for Injunctive Relief in
the Objections, deny the Appeal for Review, and deny the
Plaintiffs' Motion for JMOL.
AND PROCEDURAL BACKGROUND
case presents a lengthy procedural history and complicated
set of factual allegations spanning nearly thirty years. The
Court has done its best to distill these matters into a
digestible and comprehensible statement of the case. The
Court draws its facts from the Plaintiffs, ' Petition For
Compensation For A Continuous Crime of Trespass and Theft of
Private Paleontological Property in the Form of Newly
Discovered Fossils, Keeping Same, and Continually Publicizing
New Scientific Information Thereof, in Ortiz v. New
Mexico Dept. of Cultural Affairs, et al., No.
D-412-CV-2016-00227, filed May 5, 2016 (Fourth Judicial
District Court, County of San Miguel, State of New Mexico),
filed in federal court December 23, 2016 (D.N.M. Doc.
1-2)(“Complaint”), to provide a factual
background. While the Court does not adopt the
Plaintiffs' factual allegations, the Court nonetheless
accepts them as true for the limited purpose of deciding the
matters before it. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)(clarifying the “tenet that a court must
accept as true all of the [factual] allegations contained in
a complaint”)(alteration added).
Ortizes are siblings. They have each owned the same parcel of
land in San Miguel County, New Mexico, at different times
during the events described below. See Complaint,
¶¶ 1-3, at 1-2. Beginning in 1990, the Defendants
“participated directly or indirectly in the removal of
fossils” from the Ortizes' land. Complaint, ¶
2, at 1. The Ortizes bring several claims: (i) Count One is a
claim for “[i]llegal trespass into real estate property
owned by Plaintiffs, ” in which the Ortizes' allege
that workers and volunteers of the New Mexico Museum of
Natural History visited their property “on several
occasions” “to do field research, ” that
these workers and volunteers never obtained permission to be
on the Ortizes' land, and that the “study and
research” of fossils found on their land
“constitute a carry over of theft and trespass because
fossils and study information were technically obtained
through theft, ” Complaint ¶ 5, at 2; (ii) Count
Two is a claim for “[t]heft of private property in the
form of trace fossils, ” and alleges that the continued
use and possession of fossils found on the Ortizes' land
constitutes a continuous crime of possession of stolen
property by the New Mexico Museum of Natural History,
Complaint ¶ 6, at 2; (iii) Count Three is a claim for
“[t]he illegal and continued keeping and utilization of
stolen property, . . . namely fossils for study, publication
and probable exhibition” by the New Mexico Museum of
Natural History. Complaint ¶ 7, at 3. Finally, (iv) the
Ortizes assert that the Takings Clause of the Fifth Amendment
to the Constitution of the United States of America applies
to this case, based on allegations that the Ortizes' were
not justly compensated for the taking of their property.
Complaint ¶ 8, at 3.
REGARDING FEDERAL QUESTION JURISDICTION
courts have limited jurisdiction, and there is a presumption
against the existence of federal jurisdiction. See Basso
v. Utah Power & Light Co., 495 F.2d 906, 909 (10th
Cir. 1974). A federal district court has “original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. Whether a case arises under a federal
law is determined by the “well-pleaded complaint
rule.” Franchise Tax Bd. Of State of Cal. v.
Construction Laborers Vacation Trust for Southern Cal.,
463 U.S. 1, 9 (1983)(“Franchise Tax
Bd.”). When “a federal question is presented
on the face of the plaintiff's properly pleaded
complaint, ” the case arises under federal law.
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
(1987)(citing Gully v. First Nat'l Bank, 299
U.S. 109, 112-13 (1936)). This determination is made by
examining the plaintiff's complaint, “unaided by
anything alleged in anticipation of avoidance of defenses
which it is thought the defendant may interpose.”
Franchise Tax Bd., 463 U.S. at 10 (citing Taylor
v. Anderson, 234 U.S. 74, 75-76 (1914)).
Supreme Court of the United States has emphasized that
“the mere presence of a federal issue in a state cause
of action does not automatically confer federal-question
jurisdiction.” Merrell Dow Pharmaceuticals, Inc. v.
Thompson, 478 U.S. 804, 813 (1986). See Sandoval v.
New Mexico Technology Group L.L.C., 174 F.Supp.2d 1224,
1232 n.5 (D.N.M. 2001)(Smith, M.J.)(explaining that
“Merrell Dow is the controlling law when
invoking subject matter jurisdiction” and when a right
under state law turns on construing federal law). District
courts must exercise “prudence and restraint”
when determining whether a state cause of action presents a
federal question, because “determinations about federal
jurisdiction require sensitive judgments about congressional
intent, judicial power, and the federal system.”
Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478
U.S. at 810.
addition to the requirement that the federal question appear
on the complaint's face, “plaintiff's cause of
action must either be (1) created by federal law, or (2) if
it is a state-created cause of action, ‘its resolution
must necessarily turn on a substantial question of federal
law.'” Nicodemus v. Union Pacific Corp.,
318 F.3d 1231, 1235 (10th Cir. 2003)(quoting Rice v.
Office of Servicemembers' Group Life Ins.,
260 F.3d 1240, 1245 (10th Cir. 2001)). If the resolution
turns on a substantial question of federal law, the federal
question must also be “contested.” Grable
& Sons Metal Products Inc. v. Darue Engineering &
Mfg., 545 U.S. 308, 313 (2005)(“Grable &
Sons”). Finally, the exercise of federal-question
jurisdiction must also be “consistent with
congressional judgment about the sound division of labor
between state and federal courts governing § 1331's
application.” Grable & Sons, 545 U.S. at
313. Particularly, the Court must determine whether
recognition of federal-question jurisdiction will federalize
a “garden variety” state-law claim that will
result in the judiciary being bombarded with cases
traditionally heard in state courts. Grable &
Sons, 545 U.S. at 318. See Bonadeo v. Lujan,
No. CIV 08-0812 JB/ACT, 2009 WL 1324119, at *7-9 (D.N.M. Apr.
30, 2009)(Browning, J.).
REGARDING SUPPLEMENTAL JURISDICTION
federal-question requirement does not prohibit the federal
courts from ever hearing a state-law claim.
Pendent jurisdiction, in the sense of judicial power, exists
whenever there is a claim “arising under [the]
Constitution, the Laws of the United States, and Treaties
made, or which shall be made, under their Authority . . . .,
” and the relationship between that claim and the state
claim permits the conclusion that the entire action before
the court comprises but one constitutional
“case.” The federal claim must have substance
sufficient to confer subject matter jurisdiction on the
court. The state and federal claims must derive from a common
nucleus of operative fact. But if, considered without regard
to their federal or state character, a plaintiff's claims
are such that he would ordinarily be expected to try them all
in one judicial proceeding, then, assuming substantiality of
the federal issues, there is power in federal courts to hear
United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
original)(quoting U.S. Const. art. III, § 2)(citing
Levering & Garrigues Co. v. Morrin, 289 U.S.
103, 104 (1933)).
considering supplemental state claims, the United States
Court of Appeals for the Tenth Circuit has followed the
Supreme Court's lead in classifying supplemental
jurisdiction as a matter of judicial discretion. See
Estate of Harshman v. Jackson Hole Mountain Resort
Corp., 379 F.3d 1161, 1165 (10th Cir. 2004)(citing
City of Chicago v. Int'l College of Surgeons,
522 U.S. 156, 173 (1997); Gibbs, 383 U.S. at 726).
Where supplemental jurisdiction may apply, the district court
retains discretion to decline to exercise that jurisdiction.
See Estate of Harshman v. Jackson Hole Mountain Resort
Corp., 379 F.3d at 1165. The supplemental jurisdiction
statute enumerates four factors that the court should
consider in determining whether to decline jurisdiction:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or
claims over which the district court has original
(3) the district court has dismissed all claims over which it
has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.
28 U.S.C. § 1367(c). 28 U.S.C. § 1367(c) changed
the district courts' supplemental jurisdiction discretion
analysis to prohibit courts from declining to exercise
jurisdiction unless one of the conditions of these four
factors exists. See Mirzai v. State of N.M. Gen. Servs.
Dep't, 506 F.Supp.2d 767, 779 (D.N.M.
2007)(Browning, J.); Gudenkauf v. Stauffer Commc'ns,
Inc., 896 F.Supp. 1082, 1084 (D. Kan. 1995)(Crow, J.).
in specific and narrow instances, some state issues must be
left for the state tribunal's resolution. In cases in
which some of the causes of action in a complaint are
removable as claims “arising under the Constitution,
laws, or treaties of the United States, ” 28 U.S.C.
§ 1441(c)(1)(A), but other causes of action include
“a claim not within the original or supplemental
jurisdiction of the district court, or a claim that has been
made nonremovable by statute, the entire action may be
removed if the action would be removable without the
inclusion of the claim described [here].” 28 U.S.C.
§ 1441(c)(1)(B). “Upon removal of an action
described in paragraph (1), the district court shall sever
from the action all claims described in paragraph (1)(B) and
shall remand the severed claims to the State court from which
the action was removed.” 28 U.S.C. § 1441(c)(2).
Wright and Miller explain that the statute
applies when a federal question claim, within the meaning of
28 U.S.C.A. § 1331, is joined with a claim that is not
itself such a federal question and that is not within the
supplemental jurisdiction of the federal courts -- which is
to say that the claim does not form part of the same case or
controversy (under Article III of the United States
Constitution) as the federal question claim.
14B Charles Alan Wright & Arthur Miller, Federal
Practice and Procedure § 3722.3, at 208 (2017
Supplement). They also note that “Section 1441(c) no
longer authorizes removal where jurisdiction over the anchor
claim would be based on diversity jurisdiction.” 14B
Charles Alan Wright & Arthur Miller, Federal Practice
and Procedure § 3722.3, at 219 (2017 Supplement).
REGARDING REMOVAL TO FEDERAL COURT
a civil action filed in state court satisfies the
requirements for original federal jurisdiction, the defendant
may invoke 28 U.S.C. § 1441(a) to remove the action to
the federal district court ‘embracing the place where
such action is pending.'” Thompson v. Intel
Corp., No. CIV 12-0620, 2012 WL 3860748, at *4 (D.N.M.
Aug. 27, 2012)(Browning, J.)(citing 28 U.S.C. §
1441(a)). See Huffman v. Saul Holdings Ltd.
P'ship, 194 F.3d 1072, 1076 (10th Cir. 1999). The
Defendants may remove a civil action to federal court where
the district court would have original jurisdiction over the
case based upon diversity of citizenship. See Huffman v.
Saul Holdings Ltd. P'ship, 194 F.3d at 1076 (quoting
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)).
The Defendants may also remove a civil action to federal
court based upon the district court's “original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331.
Removal's Procedural Requirements.
1446 of Title 28 of the United States Code governs the
procedure for removal. See 28 U.S.C. § 1446.
“Because removal is entirely a statutory right, the
relevant procedures to effect removal must be
followed.” Thompson v. Intel Corp., 2012 WL
3860748, at *5. A removal which does not comply with the
express statutory requirements is defective and must be
remanded to state court. See Huffman v. Saul Holdings
Ltd. P'ship, 194 F.3d at 1077. See also Chavez
v. Kincaid, 15 F.Supp.2d 1118, 1119 (D.N.M.
1998)(Campos, J.)(“The [r]ight to remove a case that
was originally in state court to federal court is purely
statutory, not constitutional.”).
1446(a) of Title 28 of the United States Code provides that a
party seeking removal of a matter to federal court shall file
a notice of removal in the district and division where the
state action is pending, “containing a short and plain
statement of the grounds for removal, together with a copy of
all process, pleadings, and orders served upon such defendant
or defendants in such action.” 28 U.S.C. §
1446(a). Such notice of removal is proper if filed within
thirty days from the date when the case qualifies for federal
jurisdiction. See 28 U.S.C. § 1446(b);
Caterpillar Inc. v. Lewis, 519 U.S. at 68-69. The
Tenth Circuit has further elaborated that, for the thirty-day
period to begin to run, “this court requires clear and
unequivocal notice from the pleading itself, or a subsequent
‘other paper'” that federal jurisdiction is
available. Akin v. Ashland Chem. Co., 156 F.3d 1030,
1036 (10th Cir. 1998). The Tenth Circuit specifically
disagrees with “[c]ases from other jurisdictions which
impose a duty to investigate and determine removability where
the initial pleading indicates that the right to remove may
exist.” Akin v. Ashland Chem. Co., 156 F.3d at
1036. See Carrillo v. MCS Indus., Inc., 2012 WL
5378300, at *6-9.
Amendment of the ...