United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Defendant Board of County
Commissioners for the County of Taos' Motion to Dismiss
in Lieu of an Answer under Rule 12(b)(6), 12(b)(5), Rule 15,
and Rule 4 (Doc. 34), filed December 6, 2018.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b),
the parties have consented to have me serve as the presiding
judge and enter final judgment. See Docs. 3, 43.
case arises from Plaintiff's employment with the Taos
County Sheriff's Office between August 2008 and July
2015. Plaintiff filed suit on July 26, 2017, in the Eighth
Judicial District Court of Taos County, State of New Mexico,
alleging discrimination and retaliation in violation of the
New Mexico Human Rights Act ("NMHRA"), the
Americans with Disabilities Act ("ADA"), and Title
VII of the Civil Rights Act of 1964 ("Title VII").
Doc. 1, Ex. A, at 5-8. Additionally, Plaintiff
alleged a state law claim for retaliatory termination against
public policy. Id. at 8-9. Plaintiff later filed his
First and Second Amended Complaints. Doc. 16-1 at
14-23; Doc. 28. Defendant Board of County
Commissioners for the County of Taos ("the Board")
now moves for dismissal of the Second Amended Complaint
pursuant to Federal Rules of Civil Procedure 12(b)(6),
12(b)(5), 15, and 4.
context of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court accepts as true "all
well-pleaded factual allegations in a complaint and views
these allegations in the light most favorable to the
plaintiff." Smith v. United States, 561 F.3d
1090, 1098 (10th Cir. 2009); Morris v. City of Colorado
Springs, 666 F.3d 654, 660 (10th Cir. 2012). To survive
a motion to dismiss brought under Rule 12(b)(6), "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). The Court may resolve a statute of limitations
defense under Rule 12(b)(6) when the "critical dates
appear plainly on the face of [plaintiff's]
complaint." Lee v. Rocky Mountain UFCW Unions &
Employers Jr. Pension Plan, 13 F.3d 405, at *1 (10th
Rule of Civil Procedure 12(b)(5), in turn, allows a defendant
to defend against a claim based upon insufficiency of service
of process. Whitsell v. United States, 198 F.3d 260,
at *1 (10th Cir. 1999). "A Rule 12(b)(5) motion is the
proper vehicle for challenging" the sufficiency of the
service of process, i.e. "the mode of delivery
or lack of delivery of the summons and complaint."
See 5B Charles Alan Wright & Arthur R. Miller,
Fed. Prac. & Proc. Civ.3d § 1353 (2008
Supp.). "In opposing a motion to dismiss for
insufficient service of process, plaintiff bears the burden
to make a prima facie case that he has satisfied
statutory and due process requirements so as to permit the
court to exercise personal jurisdiction over defendant."
Fisher v. Lynch, 531 F.Supp.2d 1253, 1260 (D. Kan.
2008). That is, he must demonstrate that the procedure he
employed has satisfied applicable service of process
requirements. Light v. Wolf, 816 F.2d 746, 751 (D.C.
Cir. 1987). Where a plaintiff does not meet this burden, a
court may dismiss for failure to properly serve or it may
quash the process without dismissing the action and give the
plaintiff an opportunity to re-serve the defendant. Pell
v. AzarNutCo., Inc., 711 F.2d 949, 950 n.2 (10th Cir.
1983) ("when a court finds that service is insufficient
but curable, it generally should quash the service and give
the plaintiff an opportunity to re-serve the
filed a Charge of Discrimination with the Equal Employment
Opportunity Commission ("EEOC"), and concurrently
with the New Mexico Human Rights Division
("NMHRD"), and he received a right to sue letter
from the EEOC on April 27, 2017, (Doc. 28 at ¶
1 & Ex. A), and an Order of Non-Determination from the
NMHRD on May 4, 2017, (Doc. 28 at ¶ 1 & Ex.
B). Both the right to sue letter and the Order of
Non-Determination gave him 90 days to file suit. Doc.
28, Ex. A at 1 ("Your lawsuit must be filed
WITHIN 90 DAYS of your receipt of this notice; or
your right to sue based on this charge will be lost.");
Doc. 28, Ex. B at 1 ("You have ninety (90) days
from the date of service of this Order of Non-Determination
to file notice of appeal in the district court of the county
where the alleged discriminatory practices occurred or where
the respondent does business.").
filed his initial Complaint against the Taos County
Sheriff's Office and John Does 1-10 in state court on
July 26, 2017, 90 days from his receipt of the EEOC letter
and 83 days from the date of the NMHRD order. See Doc.
16-1. He did not, however, serve that Complaint on the
Sheriff's Office or on any John Does, instead, on January
4, 2018, he filed his First Amended Complaint. See Doc.
16-1 at 14-23. He served the Undersheriff for Taos
County with the amended complaint on January 19, 2018.
Doc. 16-1, 30-32. Because the Board was not yet a
party to the action, it was not served with the First Amended
Sheriff's Office removed the case to this Court on
February 18, 2018, Doc. 1, and shortly thereafter,
moved to dismiss Plaintiff's First Amended Complaint on
the ground that it is not a suable entity. Doc. 4.
Following an April 19, 2018 hearing and supplemental briefing
by the parties, the Court determined, pursuant to Federal
Rule of Civil Procedure 17 and N.M. Stat. Ann. § 4-46-1,
that the Sheriff's Office lacked the capacity to be sued,
even under federal statutes such as the ADA and Title VII.
Doc. 24. Accordingly, the Court dismissed
Plaintiff's claims against the Sheriff's Office but
granted Plaintiff leave to move to amend his complaint to add
the Board as a defendant. Id. at 14. Plaintiff filed
his Second Amended Complaint, naming the Board as a
defendant, on October 3, 2018. Doc. 28. He attempted
service on the Board the following month, on November 15,
2018, (Doc. 33), and the instant motion to dismiss
maintains that because Plaintiff delayed serving any
complaint on any defendant for 177 days from the filing of
his initial Complaint, and after the expiration of the
statute of limitations, his Second Amended Complaint should
now be dismissed pursuant to the Federal Rules of Civil
Procedure. Indeed, Defendant contends that Rule 15(c)(1)(C)
compels as much.
party must typically file an amended complaint within the
period allowed under the applicable statute of limitations,
Rule 1-015(c)(1)(C) provides an exception by allowing an
amendment to a pleading that is filed after the statute of
limitations has run to relate back to the date the original
complaint was filed, but only when specific conditions are
met. Rule 15(c)(1)(C) provides:
An amendment to a pleading relates back to the date of the
original pleading when: [... ] the amendment changes the
party or the naming of the party against whom a claim is
asserted, if [the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out
- or attempted to be set out - in the original pleading], and
if, within the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by
(i) received such notice of the action that it will not be
prejudiced in defending ...