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Lamendola v. Board of County Commissioners for the County of Taos

United States District Court, D. New Mexico

June 5, 2019

NICOLAS LAMENDOLA, Plaintiff,
v.
THE BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF TAOS and JOHN DOES 1-10, Defendants.

          MEMORANDUM OPINION AND ORDER

         THIS 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.

         This 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.

         I. Legal Standard

         In the 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 Cir. 1993).

         Federal 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 defendant").

         II. Background

         Plaintiff 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.").

         Plaintiff 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 Complaint.

         The 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 followed.

         III. Analysis

         Defendant 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.

         While a 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 amendment:
(i) received such notice of the action that it will not be prejudiced in defending ...

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