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Ortiz v. New Mexico Department of Cultural Affairs

United States District Court, D. New Mexico

January 5, 2018

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. BARID, 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 Defendant New Mexico Geological Society's (“NMGS'”) Motion to Dismiss Plaintiffs' Complaint against New Mexico Geological Society for Failure to State Any Claim Upon Which Relief Can Be Granted (“Motion to Dismiss”), filed in the previously removed case on July 12, 2016. (CIV 16-00773 KG/LF, ECF Doc. No. 18). No timely responsive briefing was filed by any party in either the previously removed case (CIV 16-00773 KG/LF) or the instant case.[1] NMGS filed a Notice of Completion of Briefing on July 12, 2017 in the instant case (Doc. 27). Plaintiffs then filed a responsive brief to the Motion to Dismiss on July 19, 2017 (Doc. 28). The undersigned has thoroughly reviewed the parties' submissions related to the Motion to Dismiss in the corresponding previously removed case and the instant case. The undersigned hereby finds that the Motion to Dismiss has merit and recommends that it be GRANTED, and any claims against Defendant New Mexico Geological Society be dismissed with prejudice.

         Background and Procedural History

         The factual background and procedural history was discussed thoroughly in the undersigned's previous Proposed Findings and Recommended Disposition (Doc. 43), and is incorporated herein. It is therefore unnecessary to restate the full background and procedural history of this case. However, it is necessary to elucidate the precise allegations Plaintiffs make against NMGS in order to decide the merits of the Motion to Dismiss, and therefore, the undersigned provides such allegations herein.

         Plaintiffs initially allege that “[i]n 1990, the above Defendants [including NMGS] participated directly or indirectly in the removal of fossils…from a paleontological site… belonging to the Plaintiffs.” (Doc. 1-2 at ¶ 2). Plaintiffs next allege in Count One of their Complaint that “workers and volunteers of the New Mexico Museum of Natural History” illegally trespassed on Plaintiffs' property and “quarr[ied] or remove[d] flagstone or fossils from the paleontological site owned by Plaintiffs.” (Id. at ¶ 5). Unlike the allegation in Paragraph 2, NMGS is not specifically mentioned in Count One. Likewise, NMGS is not specifically mentioned in Counts Two or Three, where Plaintiffs allege that trace fossils were stolen to “catalog, research and [] store, ” for “study, publication, and probable exhibition…in the New Mexico Museum of Natural History building or buildings.” (Id.at ¶¶ 6, 7). In Paragraph 8, however, while NMGS is not named, the New Mexico Bureau of Geology and Mineral Resources, a non-party to the action, is alleged to have been “overseers or employers of volunteers and invitees from other states or countries who removed, cataloged, researched or [t]ook, the private property specified above, physically or scientifically.”[2] (Id. at ¶ 8).

         In Paragraphs 9, 11, and 14, Plaintiffs reference articles that appear to be published by NMGS in 1990 and 2015, which either refer to the legal description of Plaintiffs' Property or the fossils discovered thereon. (Id. at ¶¶ 9, 11, 14, and p. 7-9). NMGS is also referenced in the exhibit associated with Paragraph 10, with Plaintiffs stating that “[i]nformation about [their] site was published in the New Mexico Geological Guidebook and also surfaced on the Web, ” and “[t]he NMMNH and the NM [G]eological Society have gone so far as to claim copyright for Plaintiffs' fossils, paleontological site and recent scientific information derived thereof, even after being informed of the rightful property owners.” (Id.at ¶10, and p. 11). NMGS is also mentioned in Paragraph 15, where Plaintiffs discuss “commercially available books, ” including the New Mexico Geological Guidebook, that “contain information and references from Plaintiffs' fossil site.” (Id. at ¶ 15). NMGS is not specifically mentioned in any of the remaining allegations within Plaintiffs' Complaint.

         As noted in the Proposed Findings and Recommended Disposition previously issued by Magistrate Judge William P. Lynch, Plaintiffs' only claims other than the Fifth Amendment Takings claim are for “criminal trespass, criminal theft, criminal possession and use of stolen property, conversion, and nuisance.” (Doc. 23 at 1). Plaintiffs' criminal claims are converted into civil claims to the extent that such civil claims exist. Therefore, the undersigned will evaluate whether Plaintiff has made sufficiently plausible allegations to state a claim for civil trespass, conversion, and nuisance.

         NMGS filed its Motion to Dismiss in the previously removed case, CIV 16-00773 KG/LF, on July 12, 2016. Plaintiffs did not file a response to the Motion to Dismiss. The case was subsequently remanded to state court without the Motion to Dismiss being heard in federal court. Id. at ECF No. 39. No response or other additional briefing was filed in state court, and apparently the Motion to Dismiss was not heard in the state court case. See Ortiz v. The New Mexico Department of Cultural Affairs et al., Civ. No. D-412-CV-2016-227. Defendants once again removed the case to federal court in December 2016. (Doc. 1). On July 12, 2017, seven months after the case was removed and a year after the Motion to Dismiss was filed, NMGS filed a Notice of Completion of Briefing (“Notice”) in the instant case. (Doc. 27). Plaintiffs then filed a Response to New Mexico Geological Society's Notice on Completion of Briefing for its Motion to Dismiss (Document 27), Further Argument against Removal, and Arguments of Eminent Domain and of Continuous Transgression on July 19, 2017. (Doc. 28).[3] United States District Judge James O. Browning referred the case to United States Magistrate Judge Jerry H. Ritter pursuant to 28 U.S.C. § 636(b)(1)(B) and (b)(3) on September 7, 2017. (Doc. 38). No other briefing has been submitted by the parties, and this matter is now before the Court for a recommended disposition.

         Legal Standard

         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., No. 06-2001, 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).

         Analysis

         I. Plaintiffs have failed to state a claim against NMGS for allegations regarding the entry on their Property and removal of the fossils.

         A. Plaintiffs' Potential Claims Related to Entry and Removal of Property

         NMGS makes several related arguments asserting that Plaintiffs' allegations do not implicate NMGS in any of their trespass/conversion claims. Primarily, NMGS argues that “Plaintiffs' complaint does not allege sufficient facts to put NMGS on notice of Plaintiffs' claims, nor does the complaint tell a story from which the essential elements of Plaintiffs' claims could be inferred.” CIV 16-00773 KG/LF, ECF No. 18 at 3. Next, NMGS contemplates Plaintiffs' “potential” claim for trespass, arguing its insufficiency because “Plaintiffs' count of ...


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