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Ortiz v. New Mexico Department of Cultural Affairs

United States District Court, D. New Mexico

January 31, 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. BAIRD, K. KIETZKE, ALLEN LERNER, and TOMAS ROMERO, Defendants.

          Henry Ortiz Ribera, New Mexico Plaintiff pro se.

          Sofie Ortiz Ribera, New Mexico Plaintiff pro se.

          Daniel R. Dolan II Albuquerque, New Mexico Attorney for Defendants New Mexico Department of Cultural Affairs, New Mexico Museum of Natural History, Adrian P. Hunt, Spencer G. Lucas, Philip Huber, Phil Bircheff Kaye Toolson, D. Baird, K. Kietzke, and Allan Lerner.

          Stuart Butzier Modrall, Sperling, Roehl, Harris & Sisk, P.A. Albuquerque, New Mexico Attorney for Defendant New Mexico Geological Society.

          Tomas Romero Ribera, New Mexico Defendant pro se.

          MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER comes before the Court on: (i) the Honorable Jerry H. Ritter's Proposed Findings and Recommended Disposition, filed January 5, 2018 (Doc. 46)(“PFRD”); (ii) Defendant New Mexico Geological Society's (“the Geological Society”) Motion to Dismiss Plaintiffs' Complaint Against New Mexico Geological Society for Failure to State Any Claim Upon Which Relief Can Be Granted, see Ortiz v. N.M. Dept. of Cultural Affairs No. CIV 16-0773 KG/LF, filed July 12, 2016 (Doc. 18)(“Motion to Dismiss”);[1] and (iii) the Plaintiffs' Arguments in Opposition to Magistrate Judge's Proposed Findings and Recommended Disposition, filed January 11, 2018 (Doc. 48)(“Objections”), which the Court interprets as objections to the PFRD. Having conducted a de novo review of the record, the Court overrules the Ortizes' objections, adopts the Honorable Jerry Ritter, United States Magistrate Judge's recommendations, and dismisses the claims brought against the Geological Society with prejudice.

         PROCEDURAL BACKGROUND

         The Court's two previous Memorandum Opinions and Orders meticulously discussed this case's factual and procedural background, and the Court will not repeat that background here. See Memorandum Opinion and Order Adopting the Magistrate Judge's Proposed Findings and Recommended Disposition, filed September 20, 2017 (Doc. 40); Memorandum Opinion and Order Adopting Magistrate Judge's Proposed Findings and Recommended Disposition, filed January 31, 2018 (Doc. 49).

         The Geological Society filed its Motion to Dismiss in the previously removed case, see No. CIV 16-0773 KG/LF, on July 12, 2016. The Geological Society argues that the “Plaintiffs' complaint does not allege sufficient facts to put the Geological Society on notice of Plaintiffs' claims, nor does the complaint tell a story from which the essential elements of Plaintiffs' claims could be inferred.” Motion to Dismiss at 3. The Geological Society further argues, however, that even considering the causes of action that the Ortizes assert in their Complaint, see Petition for Compensation For a Continuous Crime of Trespass and Theft of Private Paleontological Property in the Form of Newly Discovered Fossils, Keeping Same, and Continually Publicizing New Scientific Information Thereof, filed May 5, 2016 (Doc. 1-2)(“Complaint”), under the liberal standard afforded pro se claimants, the Ortizes fail to state any claim upon which relief can be granted. See Motion to Dismiss at 3. The Geological Society also argues that, because “NMGS is a nonprofit organization, not a governmental entity, ” and only governmental entities have taking powers under the Fifth Amendment of the Constitution of the United States of America, the Plaintiffs' Fifth Amendment Takings claim against the Geological Society as a non-governmental entity fails. Motion to Dismiss at 6-7. Finally, regarding the Ortizes' allegations that the Defendants wrongfully published information concerning the Ortizes' property, the Geological Society argues that the Ortizes' purported copyright claim based on these allegations fails, and that the Ortizes are not entitled to the injunctive relief they seek to stop the Defendants from publishing articles concerning their property. See Motion to Dismiss at 7-8.

         The Ortizes did not file a responsive brief to the Motion to Dismiss, and neither the federal or state court heard the Motion to Dismiss. The Defendants once again removed the case to federal court in December, 2016. See Notice of Removal at 1-3, filed December 23, 2016 (Doc. 1). On July 12, 2017, the Geological Society filed a Notice of Completion of Briefing in this federal case. See New Mexico Geological Society's Notice of Completion of Briefing for its Motion to Dismiss, filed July 12, 2017 (Doc. 27)(“Notice”). The Ortizes 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, filed July 19, 2017 (Doc. 28).

         Before issuing its decisions on the pending motions before it, the Court, in accordance with 28 U.S.C. §§ 636(b)(1)(B), (b)(3), and Va. Beach Fed. Sav. & Loan Ass'n v. Wood, 901 F.2d 849 (10th Cir. 1990), referred the case to Magistrate Judge Ritter for recommended findings and final disposition on September 7, 2017. On December 13, 2017, Magistrate Judge Ritter issued his first Proposed Findings and Recommended Disposition, filed December 13, 2017 (Doc. 43), recommending that the Court deny the State Defendants'[2] Motion to Strike ‘Notice and Application of the Delayed Discovery Rule' by Plaintiff, filed August 9, 2017 (Doc. 33), grant the State Defendants' Motion to Dismiss, filed June 30, 2017 (Doc. 25), and dismiss the case against the State Defendants with prejudice. The Court adopted Magistrate Judge Ritter's proposed findings and recommendations on January 31, 2018. See Memorandum Opinion and Order Adopting Magistrate Judge's Proposed Findings and Recommended Disposition, filed January 31, 2018 (Doc. 49).

         On January 5, 2018, Magistrate Judge Ritter filed a second Proposed Findings and Recommended Disposition, recommending that the Court grant the Geological Society's Motion to Dismiss. See PFRD at 13. On January 11, 2018, the Ortizes filed their Objections. See Objections at 1. None of the Defendants filed objections to the PFRD or responded to the Ortizes' Objections by the January 19, 2018 deadline.

         The Court, having thoroughly considered Magistrate Judge Ritter's PFRD, the Ortizes' Objections, as well as reviewing the record de novo, has determined that Magistrate Judge Ritter's PFRD is sound, and therefore will adopt it in full.

         LAW REGARDING DISMISSAL

         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). A 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-pleaded 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)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”)(quoting 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)(“Ashcroft”)(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, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the ...


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