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Doe v. Albuquerque Public Schools

United States District Court, D. New Mexico

August 27, 2018

JANE DOE "VICTIM", Plaintiff,
v.
ALBUQUERQUE PUBLIC SCHOOLS "APS,"; MONTE VISTA ELEMENTARY SCHOOL, JOHN AND JANE DOE APS OFFICIALS AND EMPLOYEES, AMY LAUER,[1] AND WILLIAM BEEMS, Defendants.

          MEMORANDUM OPINION AND ORDER (1) GRANTING DEFENDANT'S MOTION TO DISMISS ON PLAINTIFF'S FEDERAL CLAIMS; (2) DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION OVER STATE LAW CLAIMS; (3) DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION FOR SANCTIONS; AND (4) REMANDING CASE TO STATE COURT

         THIS MATTER comes before the Court upon Defendant William Beems' Motion to Dismiss, filed June 12, 2018 (Doc. 35). Having reviewed the parties' briefs and applicable law, the Court grants Defendant's motion with respect to Plaintiff's federal claims, but denies the motion with respect to the state law claims for the reason that the Court declines to exercise supplemental jurisdiction. Therefore, the state law claims are remanded to state court in the Second Judicial District, County of Bernalillo.

         BACKGROUND

         Plaintiff filed this action pursuant to Title IX, Title VII and other federal statutory provisions alleging that she was sexually assaulted by Defendant William Beems (“Defendant”) while she was a student at Monte Vista Elementary School approximately twenty years ago. Plaintiff alleges misconduct by Defendant involving inappropriate touching of Plaintiff's intimately private areas that was “overtly sexual in nature.” Compl., Doc. 1-2, ¶¶140-141. She filed this lawsuit on December 20, 2017 in the Second Judicial District, County of Bernalillo. Defendants removed the case to federal court under federal question jurisdiction (28 U.S.C. §1331). The Complaint contains six counts:

Count I: Sexual Assault, Abuse and Battery against Defendant Beems;
Count II: Negligence and Premises Liability;
Count III: Vicarious Liability and Premises Liability;
Count IV: Negligent and Intentional Infliction of Emotional Distress;
Count V: Violations of Plaintiff's Due Process, Equal Protection and Constitutional Rights (state and federal);[2] and
Count VI: Outrage, Systemic Failure and Prima Facie Tort.

         DISCUSSION

         In this motion, Defendant Beems (“Defendant”) moves to dismiss Plaintiff's federal and state claims for lack of subject matter jurisdiction, under Fed.R.Civ.P. 12(b)(1).

         I. Federal Claims Asserted Under 42 U.S.C. §1983 (Count V)

         Defendant contends that this Court lacks subject matter jurisdiction over Plaintiff's federal claims because they are time-barred under any applicable statutes of limitations and toward this end, challenges the actual facts upon which subject-matter jurisdiction is based. Doc. 36 at 4.[3] Defendant also moves for dismissal of Plaintiff's claims under Rule 12(b)(6).

         Challenging a claim based on a statute of limitations must be asserted as an affirmative defense under Rule 8(e), and Defendant did assert this defense in his answer. See Doc. 7 at 29 (Fifth Defense). Statutes of limitations are generally subject to equitable tolling, and are therefore not jurisdictional. See U.S. v. Kwai Fun Wong, 135S.Ct. 1625 (2015); see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990) (statutes of limitations applicable to claims against the government are presumed to be subject to equitable tolling); 5B Fed. Prac. & Proc. Civ. § 1357 (3d ed.) (a complaint also is subject to dismissal under Rule 12(b)(6) when its allegations indicate the existence of an affirmative defense that will bar the award of any remedy). While there are exceptions to the non-jurisdictional nature of limitations issues, this case does not present one of them, since Defendant contends that Plaintiff's claims are not subject to any relevant tolling statutes. Cmp. e.g., Aloe Vera of America, Inc. v U.S., 580 F.3d 867, 871-872 (9th Cir. 2009 (limitations period for filing suit for IRS' wrongful disclosure of tax information is jurisdictional). Therefore, the Court considers Defendant's arguments using a Rule 12(b)(6) standard rather than a Rule 12(b)(1) standard challenging subject matter jurisdiction.

         To survive a motion to dismiss, a complaint must contain sufficient factual allegations to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Legal conclusions are not to be considered by the Court in evaluating a motion to dismiss. Id. Mere labels, conclusions or “a formulaic recitation of the elements of a cause of action” do not suffice to state a claim. Id. at 555 (a complaint's factual allegations must “raise a right to relief above the speculative level”). In ruling on a motion to dismiss a complaint or specific claims, the Court should “disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable.” Kansas Penn. Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). Here, the Court must determine whether Plaintiff has alleged a plausible claim that falls within the limitations period, based on the facts alleged and assuming those facts to be true.

         A. Tolling Statutes

         Plaintiff alleges that Defendant sexually assaulted her throughout the period of 1998-2003. Compl., Doc. 1-2, ¶133. She brings all of her federal claims in Count V, which is a mixed bag of (a) federal constitutional claims asserted under §1983 (due process, equal protection), (b) federal statutory claims (e.g., Title IX), [4] and (c) state constitutional claims. In this discussion, the Court addresses Plaintiff's §1983 claims, although all of Plaintiff's federal claims will ultimately be dismissed on timeliness grounds.

         Plaintiff alleges that this lawsuit was brought “within the time limits set forth under New Mexico and Federal law for initiation of causes of action arising out of and surrounding the sexual battery, abuse and molestation she suffered as a minor child.” Compl. at ¶5. Defendant contends that Plaintiff's §1983 claims are time-barred, even when considering relevant state tolling provisions.

         Section 1983 does not have its own statute of limitations. The Tenth Circuit noted in Varnell v. Dora Consol. Sch. Dist., that the United States Supreme Court settled the law on this issue in Wilson v. Garcia, which held that for §1983 claims arising in New Mexico-as well as Title IX claims-the limitations period is three years for personal injury claims. Varnell, 756 F.3d 1208, 1212 (10th Cir. 2014) (citing Wilson v. Garcia, 471 U.S. 261, 269 (1985)). The Varnell court further noted that not only the length of the limitations period, but also “closely related questions of tolling and application” are determined by state law in §1983 actions. Id.

         Plaintiff acknowledges that she filed this lawsuit outside of the three-year limitations period. The question here is whether any of the relevant state tolling provisions apply, namely, the New Mexico child abuse tolling statute, NMSA 1978, ¶37-1-30; or the New Mexico infancy statute, §37-1-10.

         1. Child Abuse Tolling Statute, §37-1-30

         This statute provides that an action for damages based on personal injury caused by childhood sexual abuse shall be commenced by a ...


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