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Armstrong v. New Mexico Disability Determination Services

United States District Court, D. New Mexico

September 30, 2017

NEW MEXICO DISABILITY DETERMINATION SERVICES, DANIEL ROPER, Director, New Mexico Disability Determination Services, in his official capacity, and MIRIAM FERNANDEZ-RICE, Administrative Law Judge, United States Social Security Office of Disability Adjudication and Review, in her individual capacity Defendants.

          Maureen A Sanders Brian L. Moore Sanders & Westbrook, PC Albuquerque, New Mexico Attorneys for the Plaintiffs.

          James D. Tierney Acting United States Attorney Manuel Lucero Assistant United States Attorney District of New Mexico United States Attorney's Office Albuquerque, New Mexico and Gregory E. White Special Assistant United States Attorney Office of General Counsel Social Security Administration Dallas, Texas Attorneys for the Defendants.


         THIS MATTER comes before the Court on: (i) the Defendant's Motion to Dismiss Complaint, filed March 15, 2016 (Doc. 8)(“First Motion”); and (ii) the Defendant's Motion to Dismiss Complaint Against Administrative Law Judge Miriam Fernandez-Rice, filed April 19, 2016 (Doc. 18)(“Second Motion”).[1] The Court held a hearing on August 14, 2017. The primary issues are: (i) whether the Social Security Administration (“SSA”) must provide reasonable notice of the name of the person who will conduct a consultative examination or, alternatively, whether it suffices that the SSA makes that information available upon request; and (ii) whether Administrative Law Judges (“ALJs”) are entitled to absolute judicial immunity when they refer attorneys who appear before them to the SSA's Office of Disability Adjudication and Review (“ODAR”) for investigation. The Court concludes that the SSA needs to make the name of the person who will conduct a consultative evaluation available only upon request and that ALJs are entitled to absolute judicial immunity when making referrals to ODAR for investigation. Consequently, the Court will grant both the First Motion and the Second Motion.


         The SSA works with states “to provide and maintain an effective system for processing claims of those who apply for and who are receiving” disability benefits. 20 C.F.R. § 404.1603. State agencies generally make initial “determinations of disability with respect to all persons in the State.” 20 C.F.R. § 404.1613. In New Mexico, the Defendant New Mexico Disability Determination Services (“NMDDS”) makes those determinations. First Amended Complaint for Writ of Mandamus, For Damages For Violation of Civil Rights and for Declaratory Judgment ¶ 4, at 2, filed January 4, 2016 (Doc. 3)(“Complaint”). See First Motion at 2. NMDDS must comply with SSA regulations. See 20 C.F.R. § 404.1603(a)(“The State will comply with our regulations and other written guidelines.”). To help it make disability determinations, NMDDS may ask someone applying for disability benefits to have a consultative examination, i.e., “one or more physical examinations or tests, ” and NMDDS must give “reasonable notice of the date, time, and place the examination or test will be given, and the name of the person or facility who will do it.” 20 C.F.R. § 404.1517. An applicant may object to the person that NMDDS designates to perform the consultative examination and, “if there is a good reason for the objection, ” NMDDS will designate someone else. 20 C.F.R. § 404.1519j. Defendant Daniel Roper is the NMDDS Director. See Complaint ¶ 5, at 2.

         Plaintiff Michael Armstrong is an attorney who represents individuals seeking Social Security benefits, including disability benefits. See Complaint ¶ 2, at 2. On April 29, 2014, the SSA's Office of General Counsel told Armstrong that someone had filed an anonymous complaint against Armstrong alleging that his objections to the consultative evaluations that NMDDS scheduled for his clients “are ethical misconduct, . . . cause delay in the processing of claims, and cause a disruption of proceedings in violation of 20 C.F.R. § 404.1740.” Complaint ¶ 27, at 5. The anonymous complaint also alleged that “Armstrong's conduct constituted advisement to his clients not to comply with Social Security rules and regulation.” Complaint ¶ 28, at 6. “On July 22, 2014, the Office of General Counsel advised Plaintiff Armstrong that his actions ‘did not appear to violate the Rules of Conduct and Standards of Responsibility for Representatives, ' and identified the formerly anonymous complainant as Defendant Fernandez-Rice.” Complaint ¶ 30, at 6. ODAR employs Fernandez-Rice as an ALJ. See Complaint ¶ 7, at 3.

         Plaintiff Beryl Ann Griego is one of Armstrong's clients who seeks Social Security disability benefits. See Complaint ¶ 3, at 2. She currently has a claim pending before NMDDS for disability benefits. See Complaint ¶ 39, at 7. NMDDS arranged for a consultative examination for Griego, scheduled the examination for July 25, 2015, and provided notice of the examination to Griego on June 16, 2015, but NMDDS did not tell Griego the name of the doctor who would perform the examination. See Complaint ¶¶ 42-43, at 7. On July 14, 2015, Armstrong objected to NMDDS' failure to provide the name of the doctor who would conduct Griego's consultative examination, because that information was required to exercise Griego's right to object to the person designated to perform her examination. See Complaint ¶ 44, at 7-8. Armstrong advised Griego not to attend the July 25, 2015 examination, and she did not attend. See Complaint ¶¶ 45-46, at 8. NMDDS then scheduled two more consultative examinations; it scheduled one for August 29, 2015, and it scheduled another for November 28, 2015. Complaint ¶ 47, at 8. NMDDS did not provide notice of who would conduct either examination, Armstrong objected to NMDDS's failure to provide that information, and Griego did not attend either examination. See Complaint ¶¶ 48-50, at 8. While none of the three consultative-examination notices listed the name of the doctor who would conduct the examination, all three identified the facility that would perform the examination as “ADVANCED MEDICAL CONSULTANTS SILVERMAN SPINE & INJURY CENTER, ” and provided its address. Notice of Disability Examination(s) at 1, dated June 16, 2015, filed March 15, 2016 (Doc. 8-1)(“June Notice”); Notice of Disability Examination(s) at 1, dated August 19, 2015, filed March 15, 2016 (Doc. 8-1)(“August Notice”); Notice of Disability Examination(s) at 1, dated November 18, 2015, filed March 15, 2016 (Doc. 8-1)(“November Notice”).[3]


         The Plaintiffs petition the Court for “a writ of mandamus . . . ordering Defendant Roper to perform his non-discretionary duty as Director of [NMDDS] to Social Security disability applicants with timely notice of the name” of the person who NMDDS has selected to perform a consultative evaluation. Complaint ¶ 56, at 9. The Plaintiffs also seek monetary damages under both 42 U.S.C. § 1983 and under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)(“Bivens”). See Complaint ¶ 1, at 1.

         1. The First Motion to Dismiss.

         On March 15, 2016, “Defendant, Acting Commissioner of Social Security, standing in place of the named-defendant[s]” NMDSS and Roper, in his official capacity as NMDSS Director, moved to dismiss the Complaint. First Motion at 1. The Defendants assert that the “Plaintiffs cannot show that a writ of mandamus is appropriate or necessary.” First Motion at 3. According to the Defendants, mandamus relief is inappropriate, because the “Plaintiffs did not show that any avenues of relief, much less all, were exhausted to ascertain any medical provider's name, ” First Motion at 10, and because, “[h]ad either Ms. Griego or Mr. Armstrong contacted the NMDSS, the NMDSS could easily have provided the physician's name, ” First Motion at 12. See First Motion at 3 (“[T]he NMDDS is fully amenable to providing the information upon request . . . .”). According to the Defendants, the Plaintiffs' failure to inquire about the names of examining physicians should bar mandamus relief, because “[o]ther courts have refused to grant a writ of mandamus when, like in the case at bar, the petitioner presents no evidence that other adequate non-judicial remedies were sought before filing the petition.” First Motion at 15-16 (citing Maddalino v. West, 13 Vet.App. 475 (2000), and Costanza v. West, 12 Vet.App. 133, 134 (1999)).

         In the Plaintiffs' Response to Defendant's Motion to Dismiss Complaint, filed April 16, 2016 (Doc. 16)(“First Response”), the Plaintiffs argue that mandamus relief is appropriate, because NMDSS has a nondiscretionary “duty to provide reasonable notice of the names of medical providers assigned to perform consultative evaluations, ” First Response at 6, and because NMDSS has failed to execute that duty, see First Response at 10-14. According to the Plaintiffs, that nondiscretionary duty stems from an SSA regulation requiring NMDSS to provide “reasonable notice . . . of the person or facility who will” perform a consultative examination, 20 C.F.R. § 404.1517, and from another SSA regulation that permits people “to object to your being examined by a medical source we have designated to perform a consultative examination, ” 20 C.F.R. § 404.1519j. The Plaintiffs also maintain that the SSA's Program Operation Manual System (“POMS”) -- “the SSA's administrative manual that dictates agency procedure at the initial determination a[n]d reconsideration stages, ” First Response at 8 n.4 -- indicates that the initial notice should contain the name of the doctor conducting the consultative evaluation, because POMS contains a model appointment notice template, and “[t]hat template contains a field for ‘Name and Address' of the medical evaluator, ” First Response at 8.

         The Plaintiffs also observe that, “[i]n 2011, Plaintiff Armstrong brought a petition for a writ of mandamus very similar to this one, ” because the SSA “failed to timely disclose the names of medical providers assigned to perform consultative evaluations” for two of his clients “therefore denying his clients of their rights to object to those providers under § 404.1519j.” First Response at 7 (citing Memorandum Opinion and Order, Albers v. Social Security Administration, No. CIV 11-0092 (D.N.M. 2011)(Johnson, J.)(Doc. 8-10)(“Albers MOO”)). The Plaintiffs emphasize that the Albers MOO concluded “that SSA has ‘a nondiscretionary duty . . . under [20 C.F.R.] § 404.1517 to disclose the names of the [physicians performing consultative evaluations], and by not doing so, was in violation of its own regulation.'” First Response at 7 (alterations and omissions made by the Plaintiffs)(quoting Albers MOO at 5). The Plaintiffs also note that the Defendants “have already been ordered that compliance with their regulations requires them to ‘provide thirty (30) days written notice . . . prior to the date of any consultative evaluation . . . [including] the name of the evaluating doctor.'” First Response at 9-10 (alterations and omissions made by the Plaintiffs)(quoting Albers MOO at 7).

         The Plaintiffs acknowledge that the named parties in the case at bar are different from the parties in Albers; neither Armstrong nor Griegos were plaintiffs in Albers and the SSA, not the NMDSS, was the Albers defendant. See First Response at 8. The Plaintiffs contend, however, that “[t]he reasoning that led Judge Johnson[] to his ruling in Albers should not be discarded solely on the basis that the parties have changed.” First Response at 8.

         In the Defendant's Reply to Plaintiffs' Response to Defendant's Motion to Dismiss Complaint, filed May, 3, 2016 (Doc. 21)(“First Reply”), the Defendants argue that the Albers MOO is limited to the two Albers plaintiffs, because the Albers MOO determined that those plaintiffs had no standing to seek “prospective injunctive relief which would affect all notices that DDS sends out to all social security claimants.” Albers MOO at 6. See Reply at 5 (quoting Albers MOO at 6). The Defendants also argue the “Plaintiffs' current attempt to make 30 days as the new court-mandated standard based on Albers is without foundation, ” Reply at 5, because the Albers MOO's specific notice requirements come from a “mutually-agreed draft Order” that the parties submitted and not from SSA regulations, Albers MOO at 7. See Reply at 5. Finally, the Defendants respond to the Plaintiffs' argument based on the POMS model notice template by noting that “[t]he Agency's POMS are merely internal guidelines and operating instructions and are not regulatory requirements.” Reply at 6 (citing Washington Dep't of Soc. and Health Servs. v. Keffeler, 537 U.S. 371, 385 (2003)).

         2. The Second Motion to Dismiss.

         On April 19, 2016, “Defendant, Acting Commissioner of Social Security, standing in place of the named-defendant Miriam Fernandez-Rice, ” moved the Court to dismiss the Plaintiffs' claims against Fernandez-Rice. Second Motion at 1. The Defendants argue that the Court should dismiss those claims, because Fernandez-Rice “performed her actions as an administrative judge, and administrative judges are protected by absolute immunity.” Second Motion at 2. The Defendants also argue that, even if Fernandez-Rice is not entitled to absolute immunity, at least qualified immunity protects her and requires the Court to dismiss the claims against her. See Second Motion at 2.

         In Plaintiff Armstrong's Response to Defendant Rice's Motion to Dismiss Complaint, filed May 27, 2016 (Doc. 25)(“Second Response”), Armstrong argues that, by relying on attached exhibits in support of its factual allegations, the Second Motion “has presented ‘matters outside the pleadings'” such that, under rule 12(d) of the Federal Rules of Civil Procedure, the Second Motion should be converted to a motion for summary judgment. See Second Response at 3 (quoting Fed.R.Civ.P. Rule 12(d)). Armstrong also argues that Fernandez-Rice is not entitled to absolute immunity as a judge, because “an ALJ referring a suspected violation of the SSA rules pertaining to a representative's conduct acts more akin to a ‘complaining witness, ' than the prosecutor or adjudicator of the suspected violation.” Second Response at 9. He further argues that Fernandez-Rice is not entitled to absolute immunity as a federal official exercising discretion -- vis-à-vis Armstrong's federal claims -- because such immunity applies only to state-tort liability such that “‘only a qualified immunity is available to federal officials who have violated constitutional or federal statutory rights.'” Second Response at 8 (quoting Strothman v. Gefreh, 739 F.2d 515, 520 (10th Cir. 1984)).

         Qualified immunity does not protect Fernandez-Rice, according to Armstrong, because she violated Armstrong's clearly established constitutional rights. See Second Response at 10. Armstrong says that, by the time Fernandez-Rice reported him to ODAR, the Albers MOO clearly established that “required notices of consultative evaluations to SSA applicants were required to include the name of the individual medical provider who would be conducting the evaluation.” Second Response at 12. Armstrong argues that, consequently, clearly established law indicated that Armstrong's right to “petition the Government for a redress of grievances” protected his right to object to inadequate notices. U.S. Const. amend. I. See Second Response at 11.

         In a brief reply, the Defendants reiterate that Fernandez-Rice is entitle to absolute immunity as an ALJ, because she “performed her actions in the scope of her employment.” Defendant's Reply to Plaintiffs' Response to Defendant's Motion to Dismiss Complaint Against Administrative Law Judge Miriam Fernandez-Rice at 4, filed June 14, 2016 (Doc. 26)(“Second Reply”). The Defendants again assert that, even if Fernandez-Rice is not entitled to absolute immunity, qualified immunity protects her. See Second Reply at 4.

         3. The Hearing.

         The Court held a hearing on August 14, 2017. See Transcript of Hearing (taken August 14, 2017)(“Tr.”).[4] The Defendants, speaking first, acknowledged that the Albers MOO addressed the Plaintiffs' argument that consultative-examination notices must contain the name of the doctor who will perform the examination. See Tr. at 7:6-13 (Lucero). The Defendants noted, however, that “[J]udge Johnson limited that case to that client and for that determination of disability only.” Tr. at 8:2-4 (Lucero). The Defendants elaborated:

Mr. Armstrong continues to argue the Albers decision as if that were the law of the case, that that was what mandates the way the Social Security Administration will respond to notices and that it requires New Mexico Disability Determination Services to act in accordance with that opinion. It's not. It's pretty clear that [J]udge Johnson only wanted and only decided that case for that case only. He didn't want and didn't feel that it was appropriate for him to decide on prospective remedies down the line.

         Tr. at 10:19-11:4 (Lucero).

         The Defendants then turned to the Second Motion and argued that absolute immunity protects Fernandez-Rice, because absolute immunity “has also been found by the Tenth Circuit to fall to ALJs, just like it falls to magistrate judges, Bankruptcy judges. All federal judges have absolute immunity. If they are doing their job and they are rendering decisions, then they have absolute immunity from suit.” Tr. at 14:3-8 (Lucero). According to the Defendants, Fernandez-Rice was acting as a judge when she referred Armstrong to ODAR for investigation, because “[s]he saw something in her official duty while sitting on a case that required some kind of investigation. . . . So she was acting within the scope of her employment as a judge to refer Mr. Armstrong for an investigation.” Tr. at 14:16-23 (Lucero).

         The Plaintiffs then began by noting that, while the briefing on the First Motion only addresses whether mandamus relief would be appropriate, the Complaint requests not just mandamus relief but also declaratory and injunctive relief. See Tr. at 19:19-20:1 (Sanders). Consequently, the Plaintiffs indicate that deciding the mandamus issue in the Defendants' favor would not “dispose of this case entirely.” Tr. at 20:1-4 (Sanders). The Plaintiffs then articulated their view that “[t]he primary issue in this case comes back to the Albers decision, which . . . is dispositive of at least the declaratory judgment and mandamus and injunctive relief requests that we have made.” Tr. at 20:5-9 (Sanders). The Plaintiffs then indicated that they sought a declaratory judgment to “expand the ruling in Albers to apply to all those seeking benefits under Social Security disability, ” because the reasoning of the Albers MOO applied beyond the facts of that particular case. Tr. at 20:14-19 (Sanders).

         That statement prompted the Court to inquire whether the Plaintiffs viewed the Albers MOO as persuasive or binding authority. See Tr. at 20:20-25 (Court). The Plaintiffs replied that “there is an argument that . . . defendants are collaterally estopped from making arguments regarding what is sufficient notice under these regulations.” Tr. at 21:2-10 (Moore). The Plaintiffs maintained, however, that, even if the Albers MOO is not binding authority, its reasoning “is at least highly persuasive.” Tr. at 21:10-11 (Moore).

         The Plaintiffs later turned to the absolute-immunity issue. See Tr. at 44:2-6 (Moore). They argued that, while ALJs are entitled to absolute immunity, that absolute immunity applies only to their judicial acts. See Tr. at 44:6-45:4 (Moore). It follows, according to the Plaintiffs, that Fernandez-Rice is not entitled to absolute immunity, because “she merely referred the case to the prosecuting agency” and “had [not] been assigned to oversee the hearing about whether Mr. Armstrong had violated SSA's code of ethics.” Tr. at 45:9-12 (Moore). The Court then challenged the Plaintiffs by inquiring whether, under their understanding of judicial immunity, a Magistrate Judge's referrals could subject the Magistrate Judge to suit. See Tr. at 16-21(Court). The Plaintiffs replied that the key distinction between ALJs and Magistrate Judges is that Magistrate Judges “have some power to sanction attorneys for improper conduct. They have that power in and of themselves, or at least to make those recommendations, ” while ALJs do not. Tr. at 45:22-46:4(Moore). According to the Plaintiffs, a Magistrate Judge referral is an extension of the Magistrate Judge's judicial power, whereas ALJs do not have a judicial power to discipline attorneys. See Tr. at 45:2-12 (Moore).

         On qualified immunity, the Plaintiffs began to argue that Fernandez-Rice referred Armstrong to ODAR for exercising a right that the Albers MOO clearly established, but the Court interrupted and suggested that only the United States Court of Appeals for the Tenth Circuit or the Supreme Court of the United States can make clearly established law. See Tr. at 48:4-16 (Moore, Court). The Plaintiffs contended that district court opinions could clearly establish law if “no reasonable officer in the position of the defendant would [think] that the conduct is constitutional.” Tr. at 48:17-21 (Moore).

         After a brief recess, the Court indicated that it wanted to revisit the Plaintiffs' contention that, even if they failed on the mandamus issue, they might still have a claim for declaratory or injunctive relief. See Tr. at 55:19-56:1 (Court). The Plaintiffs said that they might have a claim for declaratory or injunctive relief if the Court concludes that the Defendants have a duty to provide notice of the names of the doctors who will conduct consultative examination even if the Court concludes that mandamus relief is not appropriate, because it concludes that the duty is discretionary and not ministerial. See Tr. at 56:2-17 (Moore). The Plaintiffs conceded, however, that, “[i]f the court . . . found that [the] Albers decision was mistaken, and that the regulations do not require . . . the timely notice of the names of the providers, then that would be dispositive of the declaratory judgment, and the injunctive relief.” Tr. at 56:17-23 (Moore).

         On rebuttal, the Defendants attacked the idea that the Albers MOO has collateral estoppel effect, because “Judge Johnson was pretty darned clear that this only -- that case only applied to Albers.” Tr. at 68:18-21 (Lucero). The Court suggested that there might be a doctrine that “makes it very difficult to estop the federal government, ” Tr. at 70:8-9 (Court), and the Defendants' counsel agreed that, “when I started working for the government they said, the United States can't be collaterally estopped, ” Tr. at 70:16-18 (Lucero). The Court later indicated that a Supreme Court case held that non-mutual, offensive collateral estoppel does not apply to the federal government, and the Court indicated that it would likely treat the Albers MOO as persuasive authority. See Tr. at 82:17-84:2 (Court)(citing United States v. Mendoza, 464 U.S. 154 (1984)).


         Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)(Brorby, J.). The complaint's sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(Briscoe, J.)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”)(citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).

         A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp v. Twombly, 550 U.S. at 555 (citation omitted).

         To survive a motion to dismiss, a plaintiff's complaint must allege facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010)(Seymour, J.). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d at 1177 (emphasis omitted). The Tenth Circuit has stated:

“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570)(citations omitted).

         Although affirmative defenses must generally be pled in the defendant's answer, not argued on a motion to dismiss, see Fed.R.Civ.P. 8(c), there are two exceptions: (i) cases where the defendant asserts an immunity defense, see Glover v. Gartman, 899 F.Supp.2d 1115, 1137-39, 1141 (D.N.M. 2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223 (2009), and Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008)); and (ii) cases where the facts establishing an affirmative defense are apparent on the complaint's face, see Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965)(Hill, J.)(“Under Rule 12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to state a claim. If the defense appears plainly on the face of the complaint itself, the motion may be disposed of under this rule.”).

         “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). Without converting a motion to dismiss into a motion for summary judgment, a court can consider a document that is “referred to in the complaint and is central to the plaintiff's claim” even though the plaintiff “does not incorporate by reference or attach a document to its complaint” if the defendant “submit[s] an indisputably authentic copy to the court to be considered on a motion to dismiss.” GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)(Kelly, J.). See Genesee Cty. Emps.' Retirement Sys. v. Thornburg Mortg. Secs. Trust 2006-3, 825 F.Supp.2d 1082, 1150-51 (D.N.M. ...

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