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 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. 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.
and Procedural History
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.
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.” (Id. at ¶ 8).
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.
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.
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.
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.
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).
Plaintiffs have failed to state a claim against NMGS for
allegations regarding the entry on their Property and removal
of the fossils.
Plaintiffs' Potential Claims Related to Entry and Removal
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 ...