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Ortiz v. New Mexico Department of Cultural Affairs

United States District Court, D. New Mexico

December 13, 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, PHILLIP HUBER, SPENCER LUCAS, KAYE TOOLSON, PHIL BERCHEFF, D. BAIRD, K. KIETZKE, ALLEN LERNER, and TOMAS ROMERO, Defendants.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          JERRY H. RITTER UNITED STATES MAGISTRATE JUDGE.

         THIS 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”)[1] 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.

         Background and Procedural History

         Plaintiffs' 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.

         This 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).

         Several filings remain pending, [2] 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;[3] (2) New Mexico Geological Society's Notice of Completion of Briefing for Its Motion to Dismiss (Doc. 27), filed on July 12, 2017;[4] (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”);[5] and (4) Plaintiffs' “Request for Admissions, ” filed on September 8, 2017 (Doc. 39).

         Prior 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).

         Legal Standard for Motion to Strike

         The “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).

         I. 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. 30)

         In the 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.

         Moreover, 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.

         The 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.

         Legal Standard for Motion to Dismiss

         A 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).

         II. Plaintiffs Fail to State a Plausible Claim for a Taking Within the Statute of Limitations.

         Defendants 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”).[6] (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 ...


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