United States District Court, D. New Mexico
JAMES O. DEMENTE, Plaintiff,
GEICO GENERAL INSURANCE COMPANY; VICTORIA DILUCENTE; ANTHONY DILUCENTE; and DERICA DUNN-GROSS, Defendants.
P. Lyle Law Offices of James P. Lyle Albuquerque, New Mexico
Attorneys for the Plaintiff
L. Chapman Jessica Singer Chapman and Priest, P.C.
Albuquerque, New Mexico Attorney for the Defendant GEICO
General Insurance Co.
Kathleen M. Mixon Doughty, Alcaraz, & deGraauw PA
Albuquerque, New Mexico Attorney for the Defendants Victoria
Dilucente and Anthony Dilucente
W. Lewis Allen, Shepard, Lewis & Syra, P.A. Albuquerque,
New Mexico Attorney for the Defendant Derica Dunn-Gross
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on: (i) Defendant Derica
Dunn-Gross' Second Motion to Dismiss for Insufficient
Process, filed April 18, 2017 (Doc. 12) (“Service of
Process MTD”); and (ii) Defendant GEICO General
Insurance Company's Motion to Dismiss with Prejudice
Under Rule 12(b) and Memorandum in Support Thereof, filed
April 21, 2017 (Doc. 13)(“MTD”). The Court held a
hearing on July 27, 2017. The primary issues are: (i) whether
the Court should dismiss Plaintiff James Demente's claims
against Defendant Derica Dunn-Gross, because Demente's
summons on Dunn-Gross lacked the United States District Court
of New Mexico's name, the time within which Dunn-Gross
must appear and defend, the Clerk of the Court's
signature, and the District of New Mexico's seal; and
(ii) whether Demente's settlement with Defendants
Victoria Dilucente and Anthony Dilucente precludes
Demente's claims under the Unfair Insurance Practice Act
(“UIPA”), N.M. Stat. Ann. §§ 59a-16-1
to 30, against GEICO Insurance. The Court concludes that
Demente's summons on Dunn-Gross was defective under rule
4(a) of the Federal Rules of Civil Procedure. Nevertheless,
the Court, in its discretion, may grant a party additional
time to effect proper service and the Court does so here. The
Court also concludes that, under Hovet v. Allstate Ins.
Co., 2004-NMSC-010, ¶ 26, 89 P.3d 69, 76-77,
Demente's UIPA claim is precluded. The Court, therefore,
grants the MTD.
Court takes the facts from the Complaint for Damages
Resulting from Personal Injury, Insurance Bad Faith,
Violations of the New Mexico Unfair Trade Practices Act and
Punitive Damages, filed May 13, 2016, in Demente v.
Dilucente, D-1329-CV-2016-00743, (Thirteenth Judicial
District Court, County of Sandoval, State of New Mexico),
filed in federal court on March 8, 2017 (Doc.
1)(“Complaint”). As the Court must, it accepts
the Complaint's factual allegations as true for the
purposes of a motion to dismiss. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The Court may also
consider facts judicially noticed on a motion to dismiss
without converting the motion into one for summary judgment.
See Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 322 (2007)(“[C]ourts must consider
the complaint in its entirety, as well as . . . matters of
which a court may take judicial notice.”); S.E.C.
v. Goldstone, 952 F.Supp.2d 1060, 1191 (D.N.M.
August 7, 2014, Demente was driving his vehicle in Rio
Rancho, New Mexico. See Complaint ¶ 6, at 2. As
he approached NM 528 from Sara Road, the intersection's
light changed from green to yellow. See Complaint
¶ 7, at 2. Demente attempted to clear the intersection
before the light turned red, but, before he could, A.
Dilucente turned his 1993 Ford vehicle in front of Demente.
See Complaint ¶¶ 3, 8, at 1-2. The two
cars collided. See Complaint ¶ 8, at 2. At the
scene, A. Dilucente accepted responsibility for driver
inattention and failure to yield the right of way.
See Complaint ¶ 10, at 2.
Demente attempted several times to resolve an insurance claim
against V. Dilucente -- the 1993 Ford vehicle's owner.
See Complaint ¶¶ 2, 12, at 1-2. GEICO
Insurance --V. Dilucente's insurance provider -- covers
$100, 000.00 per occurrence in property damage and bodily
injury for an accident involving V. Dilucente's vehicle.
See Complaint ¶ 22, at 4. GEICO Insurance made
several different requests for Demente's medical records
and for other information to evaluate Demente's claim.
See Complaint ¶ 13, 23 at 3-4. Demente promptly
and accurately responded to each GEICO Insurance request.
See Complaint ¶ 13, at 3.
filed his complaint in the Thirteenth Judicial District
Court, County of Sandoval, State of New Mexico. See
Complaint ¶ 1, at 1. Demente sued the Dilucentes for
negligence, and he sued GEICO Insurance and its agent,
Dunn-Gross, under the UIPA. See Complaint
¶¶ 17-24, at 3-5. GEICO Insurance moved to
bifurcate the action and stay the suit as to it pursuant to
Martinez v. Reid, 2002-NMSC-015, ¶ 29, 46 P.3d
1237, 1244. See Defendant Geico General Insurance
Company's Unopposed Motion to Bifurcate and Stay, filed
August 24, 2016, in Demente v. Dilucente,
D-1329-CV-2016-00743 (Thirteenth Judicial District Court,
County of Sandoval, State of New Mexico), filed in federal
court on April 5, 2017 (Doc. 11)(“Stay and Bifurcation
Motion”). The state court granted the Stay and
Bifurcation Motion which would remain in effect until the
underlying negligence cause of action against the Dilucentes
was resolved. See Order Granting Defendant Geico
General Insurance Company's Unopposed Motion to Bifurcate
and Stay, filed September 7, 2016, in Demente v.
Dilucente, D- 1329-CV-2016-00743 (Thirteenth Judicial
District Court, County of Sandoval, State of New Mexico),
filed in federal court on April 5, 2017 (Doc. 11).
subsequently moved to dismiss Demente's claim for
insufficiency of service of process. See Defendant
Derica Dunn-Gross's Motion to Dismiss for Insufficiency
of Service of Process, filed November 14, 2016, in
Demente v. Dilucente, D-1329-CV-2016-00743
(Thirteenth Judicial District Court, County of Sandoval,
State of New Mexico), filed in federal court on April 5, 2017
(Doc. 11)(“Dunn-Gross MTD”). Dunn-Gross argues
that, under the New Mexico Rules of Civil Procedure, Demente
failed to properly serve her, because: (i) Demente did not
serve her at a location where she was found after she had
refused to accept service personally; (ii) Demente did not
serve her at her home; (iii) Demente did not mail her a copy
of the summons and complaint via first class mail to her home
or to her workplace; and (iv) Demente's attempt to serve
her through an executive secretary at GEICO Insurance was
insufficient, because GEICO Insurance's executive
secretary was not authorized to accept service on
Dunn-Gross' behalf. See Dunn-Gross MTD at 3.
Dunn-Gross filed the Dunn-Gross MTD, Demente settled his
negligence claims against the Dilucentes. See MTD
¶ 6, at 2. The state court dismissed those claims with
prejudice, but left unresolved those “claims filed
against Geico General Insurance Company in relation to . . .
insurance bad faith, unfair trade practices, unfair insurance
practices, and punitive damages.” Stipulated Order of
Partial Dismissal With Prejudice at 1, filed February 24,
2017, in Demente v. Dilucente, D-1329-CV-2016-00743
(Thirteenth Judicial District Court, County of Sandoval,
State of New Mexico), filed in federal court on April 5, 2017
(Doc. 11)(“State Order”). GEICO Insurance
subsequently removed the case to federal court. See
Notice of Removal at 1, filed March 8, 2017 (Doc.
1)(“Notice of Removal”).
Service of Process MTD.
argues that Demente's attempt to serve her after removal
is defective, so the Court lacks personal jurisdiction over
her. See Service of Process MTD at 3. She contends
that the summons is defective in five ways. See
Service of Process MTD at 3-4. First, the summons did not
contain the federal court's name. See Service of
Process MTD at 3-4 (citing Fed.R.Civ.P. 4(a)(1)(A);
Fed.R.Civ.P. 12(b)(4)). Second, the summons does not refer to
the Federal Rules of Civil Procedure. See Service of
Process MTD at 4. Third, it does not contain the time that
Dunn-Gross needs to appear to defend herself. See
Service of Process MTD at 4. Fourth, the summons does not
bear the District of New Mexico's seal. See
Service of Process MTD at 4. Fifth, and finally, the Clerk of
the Court did not sign the summons. See Service of
Process MTD at 4.
also argues that the Court should dismiss the Complaint,
because Dunn-Gross was not served within ninety days of the
Complaint's filing. See Service of Process MTD
at 4 (citing Fed.R.Civ.P. 4(m)). According to Dunn-Gross,
Demente first attempted to serve Dunn-Gross five months after
he filed the Complaint -- albeit, while the Complaint was
pending in state court -- and then attempted to serve
Dunn-Gross once the case was removed to federal court --
eleven months after he filed his Complaint. See
Service of Process MTD at 4. Dunn-Gross concludes that
Demente has not shown good cause for his delay in serving
Dunn-Gross, so the Court should dismiss the Complaint.
See Service of Process MTD at 4-5.
Insurance argues that the Court should dismiss the UIPA
claims, because, under Hovet v. Allstate,
2004-NMSC-010, ¶ 26, 89 P.3d 69, 76-77, a third party
claimant does not have a cause of action under N.M. Stat.
Ann. 59A-16-20 “unless and until there has been a
judicial determination of the insured's fault.” MTD
at 4. According to GEICO Insurance, Hovet v.
Allstate precludes Demente's claim, because
“the parties settled.” MTD at 4 (citing Hovet
v. Allstate, 2004-NMSC-010, ¶ 26, 89 P.3d at
76-77). Moreover, according to GEICO Insurance, the claim is
precluded, because Demente stipulated to dismissal of those
claims before a judicial determination of A. Dilucente's
fault. See MTD at 5.
responds to the MTD. See Plaintiff's Response to
Defendant's Geico's Motion to Dismiss with Prejudice
Under Rule 12(b) and Request that Defendant be Compelled to
Comply with the Terms of the Order it Submitted on September
7, 2016 for Bifurcation and Stay in the Thirteenth Judicial
District Court (Document No. 13) at 1, filed May 12, 2017
(Doc. 15)(“MTD Response”). Demente argues that
GEICO Insurance is liable under N.M. Stat. Ann. §
59A-16-20, which requires insurers to “attempt in good
faith to effectuate prompt, fair and equitable settlements of
an insured's claims in which liability has become
reasonably clear.” MTD Response at 5 (citing N.M. Stat.
Ann. § 59A-16-20(E)). Demente contends that he has a
statutory right to sue for damages if an insurer violates
N.M. Stat. Ann. § 59A-16-20(E). See MTD
Response at 5-6 (citing N.M. Stat. Ann. § 59A-16-30).
Demente adds that these laws' purposes are to
“protect innocent accident victims from financial
hardship.” MTD Response at 7-8 (citing Estep v.
State Farm Mutual Automobile Insurance Co.,
1985-NMSC-069, ¶ 17, 703 P.2d 882, 887).
concedes that a “third-party claimant will not even
have an action under Section 59A-16-20(E), unless and until
there has been a judicial determination of the insured's
fault and the amount of damages awarded in the underlying
negligence action.” MTD Response at 9. He argues,
however, that the Court should enforce GEICO Insurance's
Stay and Bifurcation motion. See MTD Response at 10.
Demente argues that, by enforcing that Stay and Bifurcation
motion, GEICO Insurance will remain liable under N.M. Stat.
Ann. § 59A-16-20(E). See MTD Response at 10-12.
Demente concludes that GEICO Insurance's attorney should
be sanctioned or, at least, “chastised” for their
“frivolous defense.” MTD Response at 12.
Service of Process MTD Response.
also responds to Dunn-Gross' Service of Process MTD.
See Plaintiff's Response to Defendant
Dunn-Gross' Motion to Dismiss for Insufficient Process
(Document No. 12), filed May 16, 2017 (Doc.
17)(“Service of Process MTD Response”). Demente
argues that Dunn-Gross was aware of the lawsuit “as
early as March, 2016, ” and was served not once, but
four different times before GEICO Insurance removed the case
to federal court. Service of Process MTD Response at 1. He
argues that the process served on Dunn-Gross satisfies the
New Mexico Rules of Civil Procedure. See Service of
Process Response at 5 (citing N.M. Rules Ann. 1-004). First,
he argues that process was proper, because it included the
court's name, where he brought the action, the county,
the docket number, the names of the parties, and the names of
the person to whom process is directed. See Service
of Process Response at 5 (citing N.M. Rules Ann.
1-004(A)-(B)). Second, he argues that service was made by
mail and in person upon someone who was authorized to accept
service. See Service of Process Response at 5.
Third, Demente argues that he served Dunn-Gross several times
“at her usual place of abode.” Service of Process
MTD Response at 6. He contends that, because Dunn-Gross has a
“mobile lifestyle and can be found in multiple
locations, ” serving her in many locations satisfies
New Mexico's service of process rules. Service of Process
MTD Response at 6. Demente concludes that Dunn-Gross
“has been dodging service, ” and he asks the
Court to deny the Service of Process MTD and award fees.
Service of Process MTD Response at 6.
Insurance replies. See Reply in Support of Motion to
Dismiss with Prejudice Under Rule 12(b)(6), filed May 23,
2017 (Doc. 18)(“MTD Reply”). It reiterates its
argument that Demente's UIPA claims fail, because there
was no judicial determination of fault in the underlying
negligence case against the Dilucentes. See Reply at
2-4. GEICO Insurance also argues that its payment of the
entire available policy limit does not amount to a judicial
fault determination. See Reply at 5. It concludes
that Hovet v. Allstate Inc. Co., 2004-NMSC-010,
¶ 26 89 P.3d 69, 76-77 dictates that the Court should
dismiss the Complaint. See Reply at 6.
Service of Process Reply.
replies. See Defendant Derica Dunn-Gross' Reply
in Support of Her Second Motion to Dismiss for Insufficient
Process, filed June 9, 2017 (Doc. 20)(“Service of
Process Reply”). Dunn-Gross argues that Demente did not
respond to any of her arguments. See Service of
Process Reply at 1. She contends that there is no dispute
that Demente attempted to serve her on March 31, 2017, but
that the summons did not comply with the Federal Rules of
Civil Procedure. See Service of Process Reply at
1-2. She adds that Demente did not argue that there was good
cause for an extension under rule 4(m), so the Court should
not allow Demente to amend his summons. See Service
of Process Reply at 2-3. Dunn-Gross concludes that, for the
foregoing reasons, the Court should dismiss Demente's
Complaint. See Service of Process Reply at 3.
Court held a hearing. See Draft Transcript of Motion
Proceedings (taken July 27,
2017)(“Tr.”). Dunn-Gross first argued that service on
her was improper. See Tr. at 3:5-12 (Lewis). She
argued that, while the case was still pending in state court,
service “was attempted at [Dunn-Gross'] place of
employment in Richardson, Texas, ” Tr. at 3:10-11
(Lewis), and, in response to that service, Dunn-Gross filed a
motion “point[ing] out the defects” in service,
Tr. at 3:18-19 (Lewis). According to Dunn-Gross, the New
Mexico rules allow for service of process on a person's
place of employment, “but only after two other attempts
or kinds of service have been attempted.” Tr. at
3:24-4:3 (Lewis). Dunn-Gross then argues that the service
attempted at her place of employment was also defective,
because it was served on a Laura Hernandez -- a GEICO
Insurance executive secretary -- who was not authorized to
accept service for Dunn-Gross; according to Dunn-Gross,
Hernandez told the process server that she was not authorized
to accept for Dunn-Gross. See Tr. at 4:11-24
also argued that the attempt to serve her after the case was
removed to federal court is also defective. See Tr.
at 5:11-13 (Lewis). Dunn-Gross conceded that she was served
the second time at her home, see Tr. at 5:10-11
(Lewis), but contended that this service was defective,
because the summons did not “put her on notice in any
way, shape, or form that the matter is pending in this court,
” Tr. at 6:1-3 (Lewis). Dunn-Gross pressed, however,
that “notice is not simply the test. Because that's
essentially what plaintiff argues in the response.” Tr.
at 6:5-7 (Lewis). Instead, Dunn-Gross argued,
“technical compliance with rule 4 is required.”
Tr. at 6:8-9 (Lewis). Dunn-Gross also contended that the
service of process' timing is defective, see Tr.
at 7:11-13 (Lewis), but she conceded that “maybe the
removal complicates that somewhat, ” Tr. at 7:13-14
those arguments, Dunn-Gross conceded that “the court
has discretion to give plaintiff a time period in which to
effect proper service, ” Tr. at 10:5-7 (Lewis), and
agreed that she did not have an issue with the Court setting
a time for Demente to serve Dunn-Gross, see Tr. at
10:16-11:1 (Lewis)(“[If] the court in its discretion
wants to give a reasonable time period for them to effect
proper service, . . . that's certainly allowable and I
wouldn't object to that.”). Dunn-Gross suggested
twenty or twenty-one days as a reasonable time frame.
See Tr. at 11:5-7 (Lewis).
asserted that service of process was properly executed, but
did not see “any reason to waste more time on
this.” Tr. at 11:21-22 (Lyle). Demente proposed a sixty
day window to re-execute proper service. See Tr. at
11:25-12:1 (Lyle). The Court, accordingly gave the
“plaintiff 60 days” to properly serve Dunn-Gross.
Tr. at 13:15-17 (Court).
Insurance then argued the MTD. See Tr. at 14:5
(Singer). It reiterated its argument that the Court should
dismiss Demente's UIPA claim, because “plaintiff
has failed to obtain a judicial determination of
liability.” Tr. at 14:8-10 (Singer). GEICO Insurance
contends that the State Order dismissing Demente's
negligence claims against the Dilucentes did not
“indicate that a determination of liability or fault
had been reached.” Tr. at 15:12-15 (Singer). According
to GEICO Insurance, Demente's “claim did not become
ripe nor will they ever do so because plaintiff chose to
settle rather than litigate his claims.” Tr. at 16:1-3
(Singer). Dunn-Gross added that, although she had not yet
been served, “as a practical effect, your ruling on
this would have the same [ef]fect on her.” Tr. at
Court asked whether there was “any way to settle with a
judicial determination or do you have to go to a jury
trial.” Tr. at 22:8-10 (Court). Dunn-Gross mused that
it was “conceivable, ” but expressed that she is
not sure why an “insurance company would agree to do
that.” Tr. at 22:13-16 (Lewis). She argued that an
insurance company's motivation for settling would be to
“avoid this very kind of claim.” Tr. at 22:16-20
(Lewis). She argued that, for the Stay and Bifurcation Motion
to have the effect of keeping the UIPA claims alive, the
State Order dismissing the negligence claims would need
explicit language to that effect. See Tr. at
rejoined that “[w]hat makes this situation unique is
that GEICO . . . set the rules as to how things would happen.
GEICO . . . drafted the orders that were approved in the
state district court.” Tr. at 26:4-9 (Lyle). He
contended that this situation is “not addressed in any
New Mexico case law, ” and, therefore, that New Mexico
precedent does not bind the Court. Tr. at 26:10-13. According
to Demente, GEICO Insurance's low settlement offer is
exactly why the “Insurance Practices Act” exists.
Tr. at 29:7-8 (Lyle). Demente also argued that the Court
could hold an evidentiary hearing on whether there was fault,
so that the claims could proceed against GEICO Insurance.
See Tr. at 29:21-30:8 (Lyle). Demente conceded
again, as he did in his MTD Response, see MTD
Response at 9, that there must be a judicial determination of
fault before a plaintiff may proceed on an UIPA claim,
see Tr. at 30:18 (Lyle), but reiterated that GEICO
Insurance's control over the State Order dismissing
Demente's claims allows Demente to proceed with his UIPA
claim, see Tr. at 30:21-31:5 (Lyle). Demente also
argued that New Mexico caselaw does not bind the Court,
because GEICO Insurance had settled for the policy limits.
See Tr. 33:13-18 (Lyle). Responding to whether the
Court should dismiss Dunn-Gross on the same grounds if the
Court dismisses GEICO Insurance, Demente noted that “it
would seem to make se[nse], but there may be some other
considerations.” Tr. at 41:15-16 (Lyle). The Court
concluded by signaling its inclination to dismiss the UIPA
claims. See Tr. at 43:2-4 (Court).
REGARDING RULE 12(B)(6)
12(b)(6) of the Federal Rules of Civil Procedure 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). The 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-pled factual allegations in the
complaint, view those allegations in the light most favorable
to the nonmoving 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-pled factual allegations
in a complaint and view these allegations in the light most
favorable to the plaintiff.”)(citing 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. at 678 (2009)(citing Bell Atl. Corp. v.
Twombly, 550 U.S. at 555). “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.
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
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008)(citations omitted)(quoting Bell Atl. Corp. v.
Twombly, 550 U.S. at 570). See Gallegos v.
Bernalillo Cty. Board of Cty. Comm'rs, __ F.Supp.3d
__, 2017 WL 4402422, at *9 (D.N.M. 2017)(Browning, J.).
a party presents matters outside of the pleadings for
consideration, as a general rule ‘the court must either
exclude the material or treat the motion as one for summary
judgment.'” Brokers' Choice of America,
Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th
Cir. 2017)(quoting Alexander v. Oklahoma, 382 F.3d
1206, 1214 (10th Cir. 2004)). There are three limited
exceptions to this general principle: (i) documents that the
complaint incorporates by reference, see Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007); (ii) “documents referred to in the complaint if
the documents are central to the plaintiff's claim and
the parties do not dispute the documents' authenticity,
” Jacobsen v. Deseret Book Co., 287 F.3d at
941; and (iii) “matters of which a court may take
judicial notice, ” Tellabs, Inc. v. Makor Issues
& Rights, Ltd. 551 U.S. at 322. See also
Brokers' Choice of America, Inc. v. NBC
Universal, Inc., 861 F.3d at 1103 (holding that the
district court did not err by reviewing a seminar recording
and a TV episode on a rule 12(b)(6) motion, which were
“attached to or referenced in the amended complaint,
” central to the plaintiff's claim, and
“undisputed as to their accuracy and
authenticity”). “[T]he court is permitted to take
judicial notice of its own files and records, as well as
facts which are a matter of public record.” Van
Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir.
2000), abrogated on other grounds by McGregor v.
Gibson, 248 F.3d 946, 955 (10th Cir. 2001).
Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the
defendants “supported their motion with numerous
documents, and the district court cited portions of those
motions in granting the [motion to dismiss].” 627 F.3d
at 1186. The Tenth Circuit held that “[s]uch reliance
was improper” and that, even if “the district
court did not err initially in reviewing the materials, the
court improperly relied on them to refute Mr. Gee's
factual assertions and effectively convert the motion to one
for summary judgment.” 627 F.3d at 1186-87. In other
cases, the Tenth Circuit has emphasized that,
“[b]ecause the district court considered facts outside
of the complaint, however, it is clear that the district
court dismissed the claim under Rule 56(c) and not Rule
12(b)(6).” Nard v. City of Okla. City, 153 F.
App'x 529, 534 n.4 (10th Cir.
2005)(unpublished). In Douglas v. Norton, 167 F.
App'x 698 (10th Cir. 2006)(unpublished), the Tenth
Circuit addressed an untimely filed charge with the Equal
Employment Opportunity Commission -- which the Tenth Circuit
analogized to a statute of limitations -- and concluded that,
because the requirement was not jurisdictional, the district
court should have analyzed the question under rule 12(b)(6),
and “because the district court considered evidentiary
materials outside of Douglas' complaint, it should have
treated Norton's motion as a motion for summary
judgment.” 167 F. App'x at 704-05.
Court has previously ruled that, when a plaintiff references
and summarizes statements from defendants in a complaint for
the purpose of refuting the statements the Court cannot rely
on documents the defendants attach to a motion to dismiss
which contain their un-redacted statements. See Mocek v.
City of Albuquerque, No. Civ. 11-1009, 2013 WL 312881,
at *50-51 (D.N.M. Jan. 14, 2013)(Browning, J.). The Court
reasoned that the statements were neither incorporated by
reference nor central to the plaintiff's allegations in
the complaint, because the plaintiff cited the statements
only to attack their reliability and truthfulness.
See 2013 WL 312881, at *50-51. The Court has also
previously ruled that, when determining whether to toll a
statute of limitations in an action alleging fraud and
seeking subrogation from a defendant, the Court may not use
interviews and letters attached to a motion to dismiss, which
show that a plaintiff was aware of the defendant's
alleged fraud before the statutory period expired. See
Great Am. Co. v. Crabtree, No. 11-1129, 2012 WL 3656500,
at *3, *22-23 (D.N.M. Aug. 23, 2012)(Browning, J.). The Court
determined that the documents did not fall within any of the
Tenth Circuit's exceptions to the general rule that a
complaint must rest on the sufficiency of its contents alone,
as the complaint did not incorporate the documents by
reference or refer to the documents. See 2012 WL
3656500, at *22-23; Mocek v. City of Albuquerque,
2013 WL 312881, at *50 (refusing to consider statements that
were not “central to [the plaintiff's]
other hand, in a securities class action, the Court has ruled
that a defendant's operating certification, to which
plaintiffs refer in their complaint, and which is central to
whether the plaintiffs' adequately alleged a loss, falls
within an exception to the general rule, so the Court may
consider the operating certification when ruling on the
defendant's motion to dismiss without converting the
motion into one for summary judgment. See Genesee Cty.
Emps.' Retirement Sys. v. Thornburg Mortg. Secs. Trust
2006-3, 825 F.Supp.2d 1082, 1150-51 (D.N.M.
2011)(Browning, J.); Mata v. Anderson, 760 F.Supp.2d
1068, 1101 (D.N.M. 2009)(Browning, J.)(relying on documents
outside of the complaint because they were “documents
that a court can appropriately view as either part of the
public record, or as documents upon which the Complaint
relies, and the authenticity of which is not in
dispute”); S.E.C. v. Goldstone, 952 F.Supp.2d
1060, 1217-18 (D.N.M. 2013)(Browning, J.)(considering, on a
motion to dismiss, electronic mail transmissions referenced
in the complaint as “documents referred to in the
complaint, ” which are “central to the
plaintiff's claim” and whose authenticity the
plaintiff did not challenge).
REGARDING JUDICIAL NOTICE OF DOCUMENTS WHEN RULING ON A
MOTION TO DISMISS
201 of the Federal Rules of Evidence allows a court to, at
any stage of the proceeding, take notice of
“adjudicative” facts that fall into one of two
categories: (i) facts that are “generally known within
the territorial jurisdiction of the trial court”; or
(ii) facts that are “capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.” Fed.R.Evid. 201(b), (f).
“Adjudicative facts are simply the facts of the
particular case.” United States v. Wolny, 133
F.3d 758, 764 (10th Cir. 1998)(quoting Advisory Committee
Notes to rule 201). A court has discretion to take judicial
notice of such facts, regardless whether requested.
See Fed.R.Evid. 201(c). On the other hand, if a
party requests that the court take judicial notice of certain
facts, and supplies the necessary information to the court,
judicial notice is mandatory. See Fed.R.Evid.
201(d). Also, if the parties timely request an opportunity to
be heard, the Court must grant such an opportunity “as
to the propriety of taking judicial notice and the tenor of
the matter noticed.” Fed.R.Evid. 201(e). That judicial
notice may be taken during any stage of the judicial
proceeding includes the motion to dismiss stage. See
21 B C. Wright & K. Graham, Jr., Fed. Prac. & Proc.
Evid. § 5110, at 294 & n.17 (2d ed. 2005). Moreover,
while ordinarily a motion to dismiss must be converted to a
motion for summary judgment when the court considers matters
outside the complaint, see Fed.R.Civ.P. 12(d),
matters that are judicially noticeable do not have that
effect, see Duprey v. Twelfth Judicial Dist. Court,
No. 08-0756, 2009 WL 2482171, at *7 (D.N.M. July 27,
2009)(Browning, J.)(citing Grynberg v. Koch Gateway
Pipeline Co., 390 F.3d 1276, 1279 n.1 (10th Cir. 2004)).
Also, when considering a motion to dismiss, “the court
is permitted to take judicial notice of its own files and
records, as well as facts which are a matter of public
record.” Van Woudenberg v. Gibson, 211 F.3d
560, 568 (10th Cir. 2000), abrogated on other grounds
by, McGregor v. Gibson, 248 F.3d 946, 955 (10th
Cir. 2001). The documents judicially noticed, however, should
not be considered for the truth of the matters asserted
therein. See Tal v. Hogan, 453 F.3d 1244, 1265 n.24