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Ortiz v. New Mexico Department of Cultural Affairs

United States District Court, D. New Mexico

September 20, 2017

HENRY ORTIZ and SOFIE ORTIZ, Plaintiffs,
v.
NEW MEXICO DEPARTMENT OF CULTURAL AFFAIRS; NEW MEXICO MUSEUM OF NATURAL HISTORY; NEW MEXICO GEOLOGICAL SOCIETY; ADRIAN HUNT; PHILIP HUBER; SPENCER LUCAS; KAYE TOOLSON; PHIL BIRCHEFF; D. BAIRD; K. KIETZKE; ALLAN LERNER, and TOMAS ROMERO, Defendants.

          Counsel Henry Ortiz and Sophie Ortiz Ribera, New Mexico Pro se Plaintiffs

          Daniel 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

          Stuart Butzier Modrall, Sperling, Roehl, Harris & Sisk, P.A. Albuquerque, New Mexico Attorneys for Defendant New Mexico Geological Society

          Tomas Romero Ribera, New Mexico Pro se Defendant

          MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         This 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).

         The 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.

         LAW REGARDING FEDERAL QUESTION JURISDICTION

         Federal 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)).

         The 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.

         In 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.).

         LAW REGARDING SUPPLEMENTAL JURISDICTION

         The 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 the whole.

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)(“Gibbs”)(alterations original)(quoting U.S. Const. art. III, § 2)(citing Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 104 (1933)).

         In 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 jurisdiction,
(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.).

         Nevertheless, 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).

         LAW REGARDING REMOVAL TO FEDERAL COURT

         “If 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.

         1. Removal's Procedural Requirements.

         Section 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.”).

         Section 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.

         2. Amendment of the ...


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