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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 Attorney for Defendant

          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 Magistrate Judge's Proposed Findings and Recommended Disposition, filed December 13, 2017 (Doc. 43)(“PFRD”); (ii) the State Defendants'[1] Motion to Dismiss, filed June 30, 2017 (Doc. 25)(“MTD”); (iii) the Plaintiffs' Submission and Application of the Delayed Discovery Rule, filed July 25, 2017 (Doc. 31)(“Discovery Motion”); (iv) the Defendants' Motion to Strike Notice and Application of the Delayed Discovery Rule (Document 30) by Plaintiff, filed August 9, 2017 (Doc. 33); (v) the Plaintiffs' Request for Admissions, filed September 8, 2017 (Doc. 39)(“Request for Admissions”); and (vi) the Plaintiffs' Explanation of Ongoing Illegal Seizure of Paleontological Property in Response to Magistrate Judge's Proposed Findings and Recommended Disposition, filed December 18, 2017 (Doc. 44)(“Objections”), which the Court interprets as objections to the PFRD. Having conducted a de novo review of the record, the Court overrules the Plaintiffs' Objections and will adopt the Honorable Jerry H. Ritter, United States Magistrate Judge's PFRD and dismiss the Plaintiffs' claims brought against the State Defendants with prejudice.

         PROCEDURAL BACKGROUND

         The Court's previous Memorandum Opinion and Order, filed September 20, 2017 (Doc. 40) thoroughly stated the case's facts, and the Court will not repeat that background here. The complicated procedural history may be more useful to navigate the issues before the Court. This case was originally filed in the Fourth Judicial District Court, State of New Mexico, on May 5, 2016. See Henry Ortiz and Sofie Ortiz v. NM Dept. of Cultural Affairs, et al., 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, Notice of Removal at 1, filed July 5, 2016 (Doc. 1). The Court later found, sua sponte, that the Notice of Removal failed to comply with a defendant's procedural requirement 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 to state court. See Ortiz et al. v. NM Dept. of Cultural Affairs, et al., 1:16-cv-00773 KG/LF, Order of Remand at 1, filed October 20, 2016 (Doc. 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 this case. See Notice of Removal, filed December 23, 2016 (Doc. 1). The Plaintiffs made several demands to the Court to remand again to state court. See Motion to Remand Case to Fourth Judicial District Court in Las Vegas, New Mexico at 1, filed January 5, 2017 (Doc. 10); Plaintiffs' Argument Against Second Removal to United States District Court, Invalidation of Attorney Daniel R. Dolan's Defense, Appeal/Petition for Mediation at 1, filed January 6, 2017 (Doc. 11); Appeal for Review of Attorney Dolan's Failed Attempts at Removal to Federal Court at 1, filed February 3, 2017 (Doc. 17); Motion to Remand to Fourth Judicial District Court in Las Vegas, New Mexico, Demand for Discovery, Response to Defendants' Motion to Dismiss at 1, filed July 7, 2017 (Doc. 26); Response to New Mexico Geological Society's Notice on Completion of Briefing for its Motion to Dismiss, Further Argument against Removal, and Arguments of Eminent Domain and Continuous Transgression at 1, filed July 19, 2018 (Doc. 28). On March 29, 2017, the Honorable William P. Lynch, United States Magistrate Judge, issued an Order to Show Cause why the Court should not remand the case for failure to state, in the Notice of Removal, when each individual defendant was served. See Order to Show Cause at 1-2, filed March 29, 2017 (Doc. 20). The Court subsequently entered its Proposed Findings and Recommended Disposition on the Plaintiffs' Motion to Remand, ultimately determining that the Defendants' procedural defects were not jurisdictional and could therefore be waived, and that the Court has original jurisdiction over the Plaintiffs' federal claim for a violation of the Fifth Amendment Takings Clause pursuant to 28 U.S.C. § 1331. See Proposed Findings and Recommended Disposition at 3-4, filed April 11, 2017 (Doc. 23).

         On June 30, 2017, the State Defendants filed their Motion to Dismiss, arguing, inter alia, that the statute of limitations on the Plaintiffs' claims had expired and the Plaintiffs failed to allege sufficient facts to state a claim upon which relief may be granted. See MTD at 3-6. On July 7, 2017, the Plaintiffs filed another Motion to Remand to State Court, Demand for Discovery, and Response to Defendants' Motion to Dismiss. See Motion to Remand to Fourth Judicial District Court in Las Vegas, New Mexico, Demand for Discovery, Response to Defendants' Motion to Dismiss at 1, filed July 7, 2017 (Doc. 26). The Plaintiffs next filed an Appendix/Supplement to their Motion to Remand on July 19, 2017. See Plaintiffs' Completion of Motion to Remand to State Court at 1, filed July 19, 2017 (Doc. 29). On July 24, 2017, the State Defendants filed a Reply in support of their Motion to Dismiss. See State Defendants' Reply in Support of Motion to Dismiss and Response in Opposition to Plaintiffs' Motion for Remand at 1, filed July 24, 2017 (Doc. 30). The Plaintiffs then filed the Plaintiffs' Submission and Application of the Delayed Discovery Rule. See Discovery Motion at 1. On August 9, 2017, the State Defendants filed a Motion to Strike Notice and Application of the Delayed Discovery Rule by Plaintiff, filed August 9, 2017 (Doc. 33). The Plaintiffs filed their response in opposition to the Motion to Strike on August 15, 2017. See State of New Mexico Defendants' Response to Plaintiffs' Motion for Judgment as a Matter of Law and Defendants' Motion to Strike False Statements and Manufactured Evidence, filed August 22, 2017 (Doc. 35). On September 8, 2017, the Plaintiffs filed a brief entitled Request for Admission. See Request for Admissions at 1.

         On September 20, 2017, the Court issued a Memorandum Opinion and Order, disposing of the parties' following filings: (i) the Plaintiff's Motion to Remand Case to Fourth Judicial District Court in Las Vegas, New Mexico, filed January 5, 2017 (Doc. 10); (ii) the Plaintiffs' Argument Against Second Removal to United States District Court, Invalidation of Attorney Daniel R. Dolan's Defense, Appeal/Petition for Mediation, filed January 6, 2017 (Doc. 11); (iii) the Plaintiffs' Appeal for Review of Attorney Dolan's Failed Attempts at Removal to Federal Court, filed February 3, 2017 (Doc. 17); (iv) the Plaintiffs' Response to Proposed Findings and Recommended Disposition, and Demand for Injunctive Relief of New Publications of New-Mexico Museum-of-Natural-History-Locality 1339 (Plaintiffs' Property), filed April 14, 2017 (Doc. 24); (v) the Plaintiffs' Motion to Remand to Fourth Judicial District Court in Las Vegas New Mexico, Demand for Discovery, Response to Defendants' (State's) Motion to Dismiss, filed July 7, 2017 (Doc. 26); and (vi) the Plaintiffs' Motion for Judgment as a Matter of Law, filed August 7, 2017 (Doc. 32).

         In the Plaintiffs' Request for Admissions, the Plaintiffs “request that the court compel Defendants to render documentation (or explanations) that answer the above requests for Admissions.” Request for Admissions at 1. The Plaintiffs provide no indication whether the requests for admission they seek were served via discovery or otherwise before the filing.

         In the State Defendants' MTD, Defendants New Mexico Department of Cultural Affairs, New Mexico Museum of Natural History, and individual Defendants other than Defendant Tomas Romero argue that “[n]othing in Plaintiffs' Complaint provides clear legal basis for the allegations” therein; that, even if there were a legal basis, “the statute of limitations has long since passed”; and that the Court should therefore dismiss the case. MTD at 2. The State Defendants argue that the two-year statute of limitations under the New Mexico Tort Claims Act (“NMTCA”) applies and has expired. See MTD at 3. They further argue that the Plaintiffs have made a claim for copyright infringement, and that such a claim fails as a matter of law. See MTD at 4-5.

         In the State Defendants' Motion to Strike, they assert that the Plaintiffs' Discovery Motion, is “not allowed by the Rules of Civil Procedure because it is neither a Motion, Response, or Reply following the Complaint and Answer it is [] another failed attempt by Plaintiff[s] to change the law of the case into something the Court will find compelling and which law(s) are clearly misunderstood by Plaintiff, ” and the Court should therefore strike. Motion to Strike Notice and Application of the Delayed Discovery Rule (Document 30) by Plaintiff at 1, filed August 9, 2017 (Doc. 33). In the Discovery Motion, the 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.” Discovery Motion at 1. The Plaintiffs filed the Discovery Motion twenty-five days after the State Defendants filed their Motion to Dismiss, in which they argue that the statute of limitations has expired on the Plaintiffs' claims. See MTD at 3-5.

         Before issuing its Memorandum Opinion and Order, filed September 20, 2017 (Doc. 40), the Court referred the case to Magistrate Judge Ritter on September 7, 2017, in accordance with the provisions of 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). On December 13, 2017, Magistrate Judge Ritter issued his PFRD, recommending that the Court deny the Motion to Strike, grant the Motion to Dismiss and dismiss the State Defendants with prejudice. See PFRD at 16. The deadline for the parties to file Objections to the PFRD was December 27, 2017. See PFRD at 16. The Plaintiffs filed their Objections on December 18, 2018. See Objections at 1. None of the Defendants filed Objections to the PFRD or a response to the Plaintiffs' Objections by the December 27, 2017 deadline. The Plaintiffs also filed the Plaintiffs' Application and Attachment of Discovery Evidence to Original Petition Under Human Rights Law, and Entry of Default for Tomas Romero for Non-Response Under Federal Rules of Civil Procedure, Rule 55, Default, Default Judgment on December 28, 2017 (Doc. 45). Because, however, the Plaintiffs' December 28, 2017 brief was not timely filed within the deadline for Objections, the Court does not have to consider the arguments made therein. See United States v. One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, and Contents, 73 F.3d 1057, 1060 (10th Cir.1996)(“One Parcel”)(“[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.”). Nonetheless, in the interest of completeness, the Court will consider the Plaintiffs' arguments.

         The Court, having thoroughly reviewed the PFRD, the Plaintiffs' Objections, as well as reviewing the record de novo, determines that 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)(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 v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp v. Twombly, 550 U.S. at 555 (citation omitted).

         To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The United States Court of Appeals for the Tenth Circuit has stated:

“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570)(internal citations omitted).

         In reviewing a pro se complaint, the Court applies the same legal standards applicable to pleadings that counsel drafts, but it is mindful that the complaint must be liberally construed.See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, “[t]he broad reading of the plaintiff's complaint does not relieve the plaintiff of alleging ...


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