United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
H. RITTER UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on “State
Defendants'” (denoted as New Mexico Department of
Cultural Affairs, New Mexico Museum of Natural History, and
the “other individual named [including unserved] state
defendants”) Motion to Dismiss (Doc. 25),
Plaintiffs' “Submission and Application of the
Delayed Discovery Rule” (Doc. 31), “Motion to
Strike ‘Notice and Application of the Delayed Discovery
Rule' (Document 30) by Plaintiff” (Doc. 33), and
Plaintiffs' “Request for Admissions” (Doc.
39). The undersigned has thoroughly reviewed the parties'
submissions and attachments in the pending filings referenced
above as well as the other filings in this case and the
corresponding previously removed case. The undersigned hereby
finds that Defendants' Motion to Strike lacks merit and
should be DENIED, Plaintiffs' Request for Admission fails
to comply with the Federal Rules of Civil Procedure and
should also be DENIED, but the Motion to Dismiss (Doc. 25)
has merit; therefore, the Court recommends that the Motion be
GRANTED and the case be dismissed with prejudice.
and Procedural History
Complaint alleges that in 1984, Plaintiff Henry Ortiz
discovered trace fossils on a parcel of property referenced
as “NMMNH San Miguel Locality 1339, ” which
Plaintiffs allege belongs to Sofie Ortiz and himself. (Doc.
1-2 at ¶ 4). Plaintiffs allege that sometime in 1990 and
on several other unspecified occasions, all named defendants
participated “directly or indirectly” in removing
fossils from their property without their permission.
Id. at ¶¶ 2, 5. Plaintiffs further allege
that Defendants published paleontological reports,
guidebooks, and other literature referencing the
paleontological site discovered by Plaintiff Henry Ortiz and
exhibited the fossils exhumed from Plaintiffs' property
without their permission and without ascribing the property
and the discovery of the fossils to Plaintiffs. Id.
at ¶¶ 7, 8, 9, 11.
case was originally filed in the Fourth Judicial District
Court of New Mexico on May 5, 2016. See Henry Ortiz and
Sofie Ortiz v. NM Dept. of Cultural Affairs, et al.,
Case No. D-412-CV-2016-00227. Defendants New Mexico
Department of Cultural Affairs (“NMDCA”), New
Mexico Museum of Natural History (“NMMNH”),
Adrian P. Hunt, Spencer G. Lucas, Philip Huber, Phil
Bircheff, Kaye Toolson, D. Baird, K. Kietzke, and Allan
Lerner removed the case to federal court on July 5, 2016.
See Ortiz et al. v. NM Dept. of Cultural Affairs, et
al., 1:16-cv-00773 KG/LF, ECF No. 1. The Court later
found, sua sponte, that the Notice of Removal failed
to comply with the procedural requirement for a defendant to
file “a notice of removal within 30 days after receipt
by or service on that defendant of the initial pleading or
summons, ” and remanded the case back to state court.
Id. at ECF No. 39 (citing 28 U.S.C. §
1446(b)(2)(B)). On December 23, 2016, Defendants Kaye Toolson
Bridge, Spencer Lucas, NMDCA, and NMMNH filed another Notice
of Removal, initiating the instant case. See (Doc.
1). Plaintiffs made several demands to this court to remand
again back to state court. See (Doc. 10, Doc. 11,
Doc. 17, Doc. 26, Doc. 28). On March 29, 2017, Magistrate
Judge William P. Lynch issued an Order to Show Cause why the
case should not be remanded for failure to comply with the
procedural requirement for removal to state in the Notice of
Removal when each individual defendant was served, under 28
U.S.C. § 1446. (Doc. 20). The Court subsequently entered
its Proposed Findings and Recommended Disposition on
Plaintiffs' Motion to Remand, ultimately determining that
Defendants' procedural defects were not jurisdictional
and could therefore be waived, and that the Court has
original jurisdiction over Plaintiffs' federal claim for
a violation of the Fifth Amendment Takings Clause pursuant to
28 U.S.C. § 1331. (Doc. 23).
filings remain pending,  which the undersigned has been directed
to address, namely: (1) State Defendants' Motion to
Dismiss (Doc. 25) (“Motion to Dismiss”), filed on
June 30, 2017; (2) New Mexico Geological Society's
Notice of Completion of Briefing for Its Motion to Dismiss
(Doc. 27), filed on July 12, 2017; (3) “State
Defendants'” “Motion to Strike ‘Notice
and Application of the Delayed Discovery Rule' (Document
30) by Plaintiff, ” filed on August 9, 2017 (Doc. 33)
(“Motion to Strike”); and (4) Plaintiffs'
“Request for Admissions, ” filed on September 8,
2017 (Doc. 39).
to discussing the merits of the Motion to Strike and Motion
to Dismiss, the undersigned first recommends that
Plaintiffs' “Request for Admissions” (Doc.
39) be denied to the extent that it can be construed as a
discovery request pursuant to Rule 36 of the Federal Rules of
Civil Procedure. Such requests must be served on the other
party, not filed with the court. Fed.R.Civ.P. 36(a)(1). To
the extent that the Request for Admissions requests the Court
to compel information from Defendants pursuant to
Fed.R.Civ.P. 37, the undersigned also recommends that the
motion be denied for failing to comply with Rule 37(a)(1)
requiring certification “that the movant has in good
faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to
obtain it without court action.” Fed.R.Civ.P. 37(a)(1).
Standard for Motion to Strike
“court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter” under Fed.R.Civ.P. 12(f).
“‘Immaterial' matter is that which has no
essential or important relationship to the claim for relief
or the defenses being pleaded, or a statement of unnecessary
particulars in connection with and descriptive of that which
is material.” Daye v. Cmty. Fin. Serv. Centers,
LLC, 233 F.Supp.3d 946, 988 (D.N.M. 2017) (Browning, J.)
(citing 5C Wright & Miller, Federal Practice &
Procedure, § 1382, at 458- 60 (3d ed. 2004)). While the
district court has considerable discretion in striking
redundant, immaterial, impertinent, or scandalous matters,
Rule 12(f) motions to strike are not favored, and may be seen
as either a dilatory tactic, or “purely cosmetic or
‘time wasters, '” and such motions
“should be denied unless the challenged allegations
have no possible relation or logical connection to the
subject matter of the controversy.” Id. at
987, 988 (quoting 5C C. Wright & A. Miller, Federal
Practice & Procedure § 1382, at 433-36).
The Motion to Strike Fails to Provide a Proper Basis for the
Court to Strike Plaintiff's ‘Submission and
Application of the Delayed Discovery Rule' (Doc.
Submission and Application of the Delayed Discovery Rule
(“Submission”), which is the filing that the
State Defendants request the Court to strike, Plaintiffs
argue that the statute of limitations has not expired on
their claims based on their reading of what they have termed
the “delayed discovery rule.” The Submission was
filed twenty-five days after State Defendants filed their
Motion to Dismiss, in which they argue that the statute of
limitations has expired on Plaintiffs' claims. (Doc. 25
at 3-5). While the Submission may be technically procedurally
improper, it is nonetheless responsive to Defendants'
Motion to Dismiss and therefore relevant.
a party may only seek to strike material from a
“pleading, ” and other filings such as
“motions, briefs, memoranda, objections, or affidavits
may not be attacked by the motion to strike.”
Daye, 233 F.Supp.3d at 988 (citing Dubrovin v.
Ball Corp. Consol. Welfare Ben. Plan for Emps., 2009 WL
5210498, at *1 (D. Colo. Dec. 23, 2009) and Ysais v. N.M.
Judicial Standard Comm'n, 616 F.Supp.2d 1176, 1184
(D.N.M. 2009)) (internal markings omitted). Plaintiffs'
Submission is not a pleading - i.e., it is not
“a complaint or third-party complaint; an answer to a
complaint, a third-party complaint, a counterclaim, [ ] a
crossclaim; [or] … a reply to an answer, ” and
is therefore not subject to being stricken by the Court
pursuant to Rule 12(f). Id.
only exception to the rule that only pleadings may be
stricken is “that a Court may choose to strike a filing
that is not allowed by local rule, such as a surreply filed
without leave of court.” Id. (citing several
cases thereafter, however, in which the court denied a motion
to strike filings that were not technically allowed by local
rules) (internal markings omitted). Nevertheless, Plaintiffs
are pro se litigants whose pleadings are construed liberally
and held to a less stringent standard than lawyers. Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). As
such, even though the Submission does not fully comply with
the Federal Rules of Civil Procedure or the local rules,
because it directly responds to Defendants' argument in
their Motion to Dismiss, and is not redundant, immaterial,
impertinent, or scandalous, the undersigned recommends that
the Motion to Strike be denied.
Standard for Motion to Dismiss
motion to dismiss under Rule 12(b)(6) allows parties to seek
dismissal of an action based on the “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6) (2017). “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) (internal citation omitted). In reviewing a
motion to dismiss under Rule 12(b)(6), the undersigned is
directed to review the complaint for plausibility.
Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215
(10th Cir. 2007). In particular, the Court “look[s] to
the specific allegations in the complaint to determine
whether they plausibly support a legal claim for
relief.” Id. at 1215, n. 2. The question is
not whether the claim is “improbable, ” but
whether the factual allegations are sufficient to
“raise a right to relief above the speculative
level.” Kay v. Bemis, 500 F.3d 1214, 1218
(10th Cir. 2007) (quoting Bell Atl. Corp., 550 U.S.
544 (2007)). A court must accept all well-pleaded allegations
within the complaint as true and construe them in the light
most favorable to the plaintiff. Safe Streets All. v.
Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017);
David v. City & County of Denver, 101 F.3d 1344,
1352 (10th Cir.1996).
Plaintiffs Fail to State a Plausible Claim for a Taking
Within the Statute of Limitations.
contend that the statute of limitations on Plaintiffs'
claims has expired and that the case should be dismissed for
failure to state a claim within the applicable statute of
limitations. (Doc. 25 at 2). Defendants argue that the
statute of limitations passed “more than 14
years” ago under the New Mexico Tort Claims Act
(“NMTCA”). (Id. at 3). Defendants argue that
Plaintiffs' claims arose in 1990, when “Defendants
participated directly or indirectly in the removal of fossils
from…a paleontological site…belonging to
Plaintiffs.” (Id. at 4; Doc. 1-2 at ¶ 2).
Under the NMTCA, “[a]ctions against a governmental
entity or a public employee for torts shall be forever
barred, unless such action is commenced within two years
after the date of occurrence resulting ...