United States District Court, D. New Mexico
TANYA HALLUM, Personal Representative of the Estate of Charlie Hallum, TANYA HALLUM, Individually, and JESSE HALLUM, Individually, Plaintiffs
FOUR CORNERS OB-GYN, A PROFESSIONAL LLP, and DR. MARECA PALLISTER, Individually, Defendants.
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant Four Corners,
OB/GYN's Motion for Partial Dismissal of Plaintiffs'
Claims Pursuant to Fed.R.Civ.P. 12(b)(6). Doc. 19. The Court,
having considered the motion and relevant law, finds that the
motion is well-taken in part and will be granted in part and
denied in part.
Tanya Hallum and Jesse Hallum are residents of San Juan
County. Doc. 1 (Complaint) at ¶¶ 3-5. Tanya Hallum
is the Personal Representative of Charlie Hallum's
estate. Id. at ¶ 4. On or about September 1,
2014, Tanya Hallum learned she was pregnant with Charlie
Hallum and became a patient of Defendants Four Corners OB/GYN
(“FC”) and Dr. Mareca Pallister. Id. at
¶ 16. FC is a professional LLP in a Colorado
corporation. Id. at ¶ 7. Dr. Pallister was a
member of FC and employed as a gynecologist at FC.
Id. at ¶ 9. Dr. Pallister classified Tanya
Hallum's pregnancy as high risk. Id. at ¶
18. Tanya Hallum followed her gynecologist's
recommendations and consistently went in for pre-natal
examinations. Id. at ¶ 17.
about January 6, 2015, Tanya Hallum went in to FC's
Aztec, New Mexico office for an unscheduled examination due
to pain in her reproductive system and was seen by Nancy
Rhien. Doc. 1 at ¶¶ 20-21. Ms. Rhien is an employee
of FC. Id. at ¶ 21. Ms. Rhien
checked Tanya Hallum's vital signs but did not examine
her to determine the cause of her pain, nor did she refer her
to a doctor for further investigation of the pain.
Id. at ¶¶ 21-23. Instead, Ms. Rhien
informed Tanya Hallum that everything was fine. Id.
at ¶ 24.
Hallum's symptoms continued and she visited FC's
Durango, Colorado office on January 8, 2015. Id. at
¶ 26. Ms. Rhien again checked Tanya Hallum's vital
signs but did not examine her or refer her to a doctor for
further care. Id. at ¶¶ 27-29. Tanya
Hallum was again told everything was fine with her pregnancy,
and was not instructed to take any precautions. Id.
at ¶ 30.
about January 11, 2015, Tanya Hallum gave birth to Charlie
Hallum, who was born approximately four months premature and
“lived for a short duration.” Id. at
point thereafter, Dr. Pallister advised Tanya Hallum to
receive an Essure birth control device. Id. at
¶ 33. Tanya Hallum consented and underwent a procedure,
on or about March 19, 2015, to implant the Essure birth
device. Id. at ¶¶ 34-36. However, on or
about May 6, 2015, Tanya Hallum was informed that Dr.
Pallister had implanted three Essure birth devices, which had
to be removed. Id. at ¶ 37. As a result of the
implantation of the three devices, Tanya Hallum underwent an
unwanted hysterectomy. Id.
on these allegations, Plaintiffs commenced the instant action
on January 5, 2017. The Complaint alleges medical malpractice
(Count I); negligent failure to publish safety protocols
(Count II); wrongful death/loss of chance of life (Count
III); loss of consortium (Count IV); unfair trade practices
(Count V); medical negligence (Count VI); physician battery
(Count VII); negligent infliction of emotional distress
(Count VIII); negligent hiring, retention, and
training/supervision of Dr. Pallister (Count IX); and
negligent hiring, retention, and training/supervision of
Nancy Rhien (Count X). Plaintiffs seek punitive damages
(Count XI). Except for Count VII directed towards Dr.
Pallister specifically, and Counts VII, IX, and X referring
only to a singular defendant, each count appears to be
alleged against both Dr. Pallister and FC.
Pallister filed a Motion to Dismiss for Lack of Personal
Jurisdiction Pursuant to Federal Rule of Civil Procedure
12(b)(2). Doc. 20. On September 28, 2018, this Court granted
the Motion. Doc. 132. Therefore, the only claims that remain
are as to FC.
March 17, 2017, FC filed this partial motion to dismiss,
under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
for failure to state a claim upon which relief can be
granted. Doc. 19. On April 17, 2017, Plaintiffs filed a
response in opposition to FC's motion. Doc. 42. FC filed
a reply on June 1, 2017. Doc. 45.
Rule 12(b)(6), a Court may 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.” Mobley
v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). When
considering a Rule 12(b)(6) motion, the 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. Smith v. United States, 561
F.3d 1090, 1097 (10th Cir. 2009), cert. denied, 558
U.S. 1148 (2010).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Where a
complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
entitlement to relief.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
Court in Iqbal identified “two working
principles” in the context of a motion to dismiss.
Id. First, “the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. Accordingly,
Rule 8 “does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”
Id. at 678-79. “Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Id. at 679; see Twombly,
550 U.S. at 570 (holding that a plaintiff must
“nudge” her claims “across the line from
conceivable to plausible”). Accordingly, “where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged-but it has not shown-that the pleader is entitled to
relief.” Id. (citation omitted).
keeping with these two principles, the Court explained:
A court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Id. at 679.
Choice of Law
plaintiff invokes a federal district court's diversity
jurisdiction, as is the case here, the district court looks
to the forum state's choice-of-law rules to determine
which state's substantive law to apply. See Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97
(1941). The first step in New Mexico choice-of-law analysis
is to characterize the claim by “area of substantive
law-e.g., torts, contracts, domestic relations-to which the
law of the forum assigns a particular claim or issue.”
Terrazas v. Garland & Loman, Inc., 142 P.3d 374,
377 (N.M. Ct. App. 2006).
Plaintiffs' Complaint relies not on a contract, but on a
common-law theory of tort liability. When a claim is
categorized as a tort, “New Mexico courts follow the
doctrine of lex loci delicti commissi-that is, the
substantive rights of the parties are governed by the law of
the place where the wrong occurred.” Id. Where
the elements of the underlying claim include harm, the place
of the wrong is the place where the harm occurred.
Id. (citing First Nat'l Bank in Albuquerque
v. Benson, 553 P.2d 1288 (N.M. Ct. App. 1976)). The
place of the wrong has been clarified to be the
“location of the last act necessary to complete the
injury.” Torres v. State, 894 P.2d 386, 390
(N.M. 1995) (citing Wittkowski v. State, 710 P.2d
93, 95 (N.M. Ct. App. 1985), cert. quashed, 708 P.2d
1047 (N.M. 1985), overruled on other grounds by Silva v.
State, 745 P.2d 380, 385 (N.M. 1987)).
Torres, New Mexico's place-of-wrong rule is not
utilized if such application would violate New Mexico public
policy. Id.; see also In re Estate of
Gilmore, 946 P.2d 1130, 1135 (N.M. Ct. App. 1997)
(“[P]olicy considerations may override the
place-of-the-wrong rule.”). However, a court should
“begin with a strong presumption in favor of
application of the place-of- wrong rule, but  not close
[its] eyes to compelling policy arguments for departure from
the general rule in specific circumstances.”
Gilmore, 946 P.2d at 1136.
Documents Outside of the Pleadings
support of its motion to dismiss, especially as related to
Counts III (Wrongful Death/Loss of Chance of Life) and Count
IV (Loss of Consortium), FC attaches Exhibit A, which is a
certificate of Charlie Hallum's death estimating the
gestational age as 21 weeks and noting that he “[d]ied
during labor, after [the] first assessment.” Doc. 19-1,
Ex. A. As noted above, on a 12(b)(6) motion, the court
considers only “the four corners” of the
plaintiff's complaint, as it is tasked with
“reviewing the sufficiency of the complaint
alone.” Moffett v. Halliburton Energy Servs.,
Inc., 291 F.3d 1227, 1231 (10th Cir. 2002); see also
Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010).
Thus, the general rule is that the court cannot consider
materials attached to a defendant's motion to dismiss
without converting the motion into one for summary judgment.
Fed.R.Civ.P. 12(b). Exceptions to this rule include:
“(1) documents that the complaint incorporates by
reference; (2) documents referred to in the complaint and
central to the plaintiff's claim and the parties do not
dispute the documents' authenticity; and (3) matters of
which a court may take judicial notice.” Gee,
627 F.3d at 1186 (internal citations omitted). When one of
these exceptions applies, a court may take judicial notice of
some facts without triggering conversion of a 12(b)(6) motion
to a motion for summary judgment. Id.; Tal v.
Hogan, 453 F.3d 1244, 1264 fn.24 (10th Cir. 2006).
the first and second exceptions, the court may consider not
only the complaint itself, but also attached exhibits,
Indus. Constructors Corp. v. U.S. Bureau of
Reclamation, 15 F.3d 963, 964-65 (10th Cir. 1994), and
documents incorporated into the complaint by reference.
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007). A defendant may submit for
consideration an “indisputably authentic copy” of
a document referred to by plaintiff in the complaint that is
“central to” the plaintiff's claim. GFF
Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381,
1385 (10th Cir. 1997); see also Jacobsen v. Deseret Book
Co., 287 F.3d 936, 941- 42 (10th Cir. 2002) (noting that
a court may consider documents to which the complaint refers
if the documents are central to the plaintiff's claim and
the parties do not dispute their authenticity); Alvarado
v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).
the third exception, a court may “take judicial notice
of its own files and records, as well as facts which are a
matter of public records.” Schendzielos v.
Silverman, 139 F.Supp.3d (2015) (citing Van
Woudenberg ex rel. Foor 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. 2011)). While
the court may take judicial notice of documents that are a
matter of public record, it may not take the facts asserted
in the filings to be true. Id. In other words, a
court may take notice of public records to show their
contents, but not to prove the truth of matters asserted