United States District Court, D. New Mexico
KRISTY LOPEZ, as parent and next friend, and on behalf of her minor child, J.L., Plaintiff,
HOBBS MUNICIPAL SCHOOL DISTRICT, a political subdivision of the State of New Mexico; TJ PARKS, in his official capacity as Superintendent of the Hobbs Municipal School District; JOSE MARES, in his official capacity as the Hobbs High School Boys Varsity Head Soccer Coach; GREG HASTON, in his official capacity as Athletic Director of Hobbs High School; BRENDA WILSON, in her official capacity as Athletic Director of Hobbs High School; ZEKE KANEY, in his official capacity as Assistant Principal of Hobbs High School; JOHN DOES I-X; JANE DOES I-X; BLACK and WHITE ENTITIES I-X, Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO SUPPLEMENT
RESPONSE TO DEFENDANTS' MOTION TO DISMISS
KELLY, JR. UNITED STATES CIRCUIT JUDGE.
MATTER is before the court on Plaintiff's Motion to
Supplement Exhibits to Plaintiff's Response to
Defendants' Rule 12(b)(6) Motion to Dismiss (ECF No.
56).Upon consideration thereof, the court finds
the motion is not well taken and should be denied.
Kristy Lopez, on behalf of her son, J.L. (a minor), brought
federal and state law claims against Defendants alleging that
during the fall 2016 soccer season, various older players
engaged in repeated acts of hazing younger players with the
knowledge and acquiescence of school officials. According to
Plaintiff, the hazing involved acts of sexual misconduct
including slapping or grabbing the younger players'
testicles, “grabbing their butts, ” so-called
“tea bagging” the younger players, and digitally
penetrating them. Second Am. Compl. at 5-6 (ECF No. 19).
According to the complaint, these acts occurred on the
playing field during practice, the school bus, and hotel
rooms during away games. The Plaintiff alleges that J.L. was
the target of one one such incident in late-September 2016
and became withdrawn, irritated, and lost interest in playing
soccer. Id. at 6-7.
seeks compensatory and punitive damages alleging a denial of
substantive due process (Count I); negligent operation of a
public building or park under the New Mexico Tort Claims Act
(NMTCA) (Count II); violation of Title IX (Count III); civil
conspiracy to deprive J.L. of his Fourteenth Amendment and
Title IX rights (Count IV); negligence for failure to protect
J.L. under the NMTCA (Count V); failure to report sexual
misconduct by Defendant Mares (Count VI); school district and
municipal liability based on a failure to train and supervise
Defendant Mares (Count VII); school district and municipal
liability for negligent hiring (Count VIII); failure to
comply with National Federation of State High School
Associations policy against hazing, sexual misconduct, and
other forms of harassment (Count IX); assault and battery
against J.L. (Count X); and intentional infliction of
emotional distress (Count XI).
Hobbs Municipal School District, TJ Parks, Jose Mares, Greg
Haston, Brenda Wilson, and Zeke Kaney moved to dismiss the
second amended complaint pursuant to Rule 12(b)(6).
Defs.' Mot. to Dismiss (ECF No. 20). The motion is fully
briefed. Plaintiff now moves to supplement her response with
additional exhibits obtained in discovery.
motion to dismiss pursuant to Rule 12(b)(6), the court must
look to the complaint itself and determine if it contains
sufficient facts, as opposed to legal conclusions, to state a
claim for relief that is plausible on its face. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). The role of the
court at this stage is not to determine the substantive
merits of Plaintiff's case or to “weigh the
potential evidence that the parties might present at
trial.” Jacobsen v. Deseret Book Co., 287 F.3d
936, 941 (10th Cir. 2002). Instead, a court reviewing a
motion to dismiss must “test the sufficiency of the
allegations” by looking only “within the four
corners of the complaint.” Mobley v.
McCormick, 40 F.3d 337, 340 (10th Cir. 1994).
limited exception to the general rule, however, allows courts
to consider documents that are specifically referenced in the
complaint “if the documents are central to the
plaintiff's claim and the parties do not dispute the
documents' authenticity.” Alvarado v. KOB-TV,
L.L.C., 493 F.3d 1210, 1215-16 (10th Cir. 2007); see
also Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir.
2010) (may also consider matters judicially noticed). This
exception, though, merely allows the court to
consider extrinsic documents - it is within the court's
discretion to decline to consider extrinsic materials even
when referenced in the complaint and central to a party's
claim. Prager v. LaFaver, 180 F.3d 1185, 1189 (10th
Cir. 1999). Outside of that exception, when parties attempt
to submit materials not included or referenced in the
pleadings, the court need not consider them. See
Brokers' Choice of Am., Inc. v. NBC Universal, Inc.,
861 F.3d 1081, 1103 (10th Cir. 2017) (noting courts have
“broad discretion” whether to consider documents
outside the pleadings). And if the court does consider
documents outside the pleadings, the court must convert the
motion to dismiss into a motion for summary judgment.
Price v. Philpot, 420 F.3d 1158, 1167 (10th Cir.
2005); see also Fed.R.Civ.P. 12(d).
Plaintiff seeks to supplement her response by submitting
three new exhibits obtained through discovery: (1) an
investigative report conducted by members of the Hobbs
Municipal School District on September 4, 2018; (2) the
deposition testimony of Hobbs Police Detective Mark Munro;
and (3) the hand-written statement of Sergio Robles, a former
Hobbs High School soccer player. None of these exhibits are
referenced in the complaint (the complaint has been amended
twice and the deadline to amend has passed) so the court
would not be able to consider them without converting
Defendants' motion to dismiss into a motion for summary
judgment. This the court declines to do. The Defendants have
made their motion to dismiss based on the second amended
complaint (they have yet to answer) and discovery is still in
THEREFORE, IT IS ORDERED that Plaintiff's Motion to
Supplement Exhibits to Plaintiff's Response to
Defendants' Rule 12(b)(6) Motion to Dismiss (ECF No. 56)
filed June 27, 2019, is denied.
 Plaintiff has not filed a reply in
support of her motion to supplement. Under the local rules,
such failure constitutes consent that the briefing is