United States District Court, D. New Mexico
Ortiz Ribera, New Mexico Plaintiff pro se.
Ortiz Ribera, New Mexico Plaintiff pro se.
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
Butzier Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Albuquerque, New Mexico Attorney for Defendant New Mexico
Romero Ribera, New Mexico Defendant pro se.
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
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”); 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.
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
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
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).
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' 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).
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,
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
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)).
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 ...