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Moody v. Dollar Tree Store 2967

United States District Court, D. New Mexico

July 24, 2019

LYLE MOODY, Plaintiff,
v.
DOLLAR TREE STORE 2967, Defendant.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court[1] on the Motion and Memorandum in Support of Defendant's Motion to Dismiss Plaintiff's Complaint, filed December 21, 2018. (Doc. 5.) Plaintiff filed a response on January 11, 2019. (Doc. 14.) And Defendant filed a reply on January 28, 2019. (Doc. 15.) While this Motion was pending, Plaintiff filed a pleading on June 14, 2019, titled “Plaintiff's Motion to Dismiss Without Prejudice or, in the Alternative, to Transfer Plaintiff's Case to State District Court. Plaintiff Also Alleges a Willingness to Reduce Damages to Seventy-Five Thousand Dollars” (Plaintiff's Motion to Dismiss). (Doc. 18.) On June 27, 2019, Defendant filed a Response, opposing Plaintiff's Motion to Dismiss. (Doc. 20.) Plaintiff's Motion, and Defendant's Response are also considered herein. The Court has reviewed the parties' submissions, the record, and the relevant law and for the reasons that follow, recommends that the Court GRANT Defendant's Motion to dismiss, and deny as moot Plaintiff's Motion to Dismiss.

         I. Background

         The following facts taken from Plaintiff's Complaint are accepted as true. In May 2018 Plaintiff was shopping at Dollar Tree Store # 2967 in Albuquerque, New Mexico. (Doc. 1-2 at 6.) Plaintiff approached the first cash register, where he encountered a “female cashier” (identified in Plaintiff's Reply as “Audrey”). (Doc. 1-2 at 7.) Combined, the items that Plaintiff sought to purchase cost five or six dollars. (Id.) Plaintiff told the cashier that he wanted to pay cash for two of the items and pay for the remaining items with his debit card. (Doc. 1-2 at 7.) Plaintiff tried to give the cashier a twenty-dollar bill for the two items, but instead of accepting the bill, the cashier “stared at . . . Plaintiff in anger.” (Id.)

         Plaintiff could see that something was wrong, and as the cashier continued to stare at him, he told her that he would go to the next register. (Id.) The cashier responded by “yelling and screaming ‘Get out of here!” (Id.) When Plaintiff asked the cashier what he had done to anger her, she “shouted ‘I am the manager get out of here!'” and pointed at the front door indicating that Plaintiff should leave the store. (Id. at 4, 7) Plaintiff requested a grievance form, but his request was refused (by whom it is not clear). (Id. at 7.) Fearing that something else would go wrong, Plaintiff left the store. (Id.)

         Plaintiff alleges, further, that he

believes that this action by the female employee was not an extraordinary circumstance and contends that this was just a simple transaction gone wrong. Plaintiff also believes the female cashier was unlawfully disrespectful and[] unnecessarily[] unprofessional and did violate Plaintiff's protected class and age status[2] on the part of the Dollar Tree Store's management.

(Doc. 1-2 at 7.)

         Based on these events, Plaintiff pro se filed a “Civil Complaint” in the Second Judicial District Court, County of Bernalillo, State of New Mexico. (Doc. 1-2 at 3.) Pursuant to 28 U.S.C. § 1332, Defendant[3] removed the matter to this Court on the basis of diversity jurisdiction-noting that Plaintiff is a citizen of the State of New Mexico, and Defendant is incorporated and has its principal place of business in the Commonwealth of Virginia, and the amount in controversy is in excess of $75, 000 because Plaintiff is seeking $135, 000 in damages. (Doc. 1 at 2.)

         In his Complaint, Plaintiff seeks to recover $135, 000 in damages based on (1) NMSA 1978, Section 57-12-3, prohibiting unfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce (Doc. 1-2 at 1); (2) NMSA 1978, Section 28-1-7(F) prohibiting any person in any public accommodation from refusing to offer its services to any person based, in relevant part, on the person's race (Doc. 1-2 at 4, 6); and (3) a theory of prima facie tort (Doc. 1-2 at 5.)

         Defendant seeks dismissal of Plaintiff's Complaint pursuant to Federal Rule of Procedure 12(b) on the grounds that (1) Plaintiff's NMHRA claim must be dismissed under Rule 12(b)(1) for lack of jurisdiction because Plaintiff failed to exhaust his administrative remedies, and (2) Plaintiff's claims are subject to dismissal under Rule 12(b)(6) for failure to state a claim. (Doc. 5 at 1.) For the reasons discussed in the proceeding section, the Court concludes that Plaintiff's NMHRA claim should be dismissed for lack of jurisdiction, and that Plaintiff's prima facie tort claim and his UPA claim should be dismissed for failure to state a claim. Because the Court recommends dismissing this matter pursuant to Defendant's Motion, the Court recommends, further, that Plaintiff's Motion to Dismiss should be denied.

         II. ANALYSIS

         A. Plaintiff's NMHRA Claim Should be Dismissed Pursuant to Rule 12(b)(1)

         1. Legal Standards Governing Dismissal Under Rule 12(b)(1)

         “Federal courts are courts of limited jurisdiction, and the presumption is that they lack jurisdiction unless and until a plaintiff pleads sufficient facts to establish it.” Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994). Generally, a plaintiff may satisfy this pleading standard by alleging generally that the jurisdictional prerequisites have been satisfied. Fed.R.Civ.P. 9(c) (“In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed.”). But if the defendant challenges the court's jurisdiction, the plaintiff has the burden to show “by a preponderance of the evidence” that the Court has subject matter jurisdiction over his claim. Celli, 40 F.3d at 327; Michelson v. Enrich Intern., Inc., 6 Fed.Appx. 712, 716 (10th Cir. 2001) (“When a Rule 12(b)(1) motion challenges . . . a complaint's jurisdictional allegations, the plaintiff must present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.”). “Where a party attacks the factual basis for subject matter jurisdiction, the court does not presume the truthfulness of factual allegations in the complaint, but may consider evidence to resolve disputed jurisdictional facts.” Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004). Federal Rule of Civil Procedure 12(b)(1) empowers the Court to dismiss a claim for lack of subject matter jurisdiction.

         2. The Court Does Not Have Subject Matter Jurisdiction Over Plaintiff's NMHRA Claim

         Under the NMHRA, it is an unlawful discriminatory practice for any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services . . . or goods to any person because of race[.]” NMSA 1978, § 28-1-7(F).[4] While an aggrieved person may file a lawsuit to vindicate his rights under the NMHRA, before doing so, “the putative plaintiff must exhaust a detailed grievance and administrative reconciliation process set out in the NMHRA and administered by the Human Rights Commission.” Williams v. Mann, 388 P.3d 295, 300 (N.M. Ct. App. 2016). Of relevance here, the first step in the NMHRA grievance process is a requirement that the aggrieved person file a complaint with the human rights division of the labor department within three hundred days after the alleged unlawful discriminatory act was committed. NMSA 1978, § 28-1-10(A). The New Mexico Supreme Court and the New Mexico Court of Appeals “have consistently held that full compliance with NMHRA grievance procedures is a prerequisite for filing an NMHRA claim in district court.” Mitchell-Carr v. McLendon, 980 P.2d 65, 70 (N.M. 1999) (alterations omitted). Thus, this Court's jurisdiction over a claim brought under the NMHRA is contingent upon a plaintiff's satisfactory compliance with the grievance process, and the Court must dismiss an NMHRA claim as to which this requirement has not been satisfied. Id.

         In response to Defendant's argument that his NMHRA claim must be dismissed for failure to exhaust the grievance process, Plaintiff argues that he “appealed to the Human Rights Bureau” in November 2018 by speaking with a representative of the Bureau about his complaint. (Doc. 14 at 1.) Plaintiff argues that by this “appeal[]” he satisfied the exhaustion requirement, and since he “cannot be held responsible for the actions of the Human Rights Bureau” the Court has jurisdiction over his claim. (Id.) Additionally, in an ostensible attempt to satisfy his obligation to submit evidence demonstrating that he exhausted his administrative remedies, Plaintiff attached to his Response a letter that he wrote to Dollar Tree Store # 2967 captioned “This Notice Of Civil Complaint Against Dollar Tree Store # 2967, By Mr. Lyle Moody Is Proving his Exhaustion of Administrate Remedies: And Is Proceeding Under Rule 12(8)(6), Section 28-1-10 Rist v. Design Ctr. At Floor Concepts, 2013-NMCA-109.” (Doc. 14 at 3.) In the letter, Plaintiff informs “Dollar Tree Store Management” “of his intent to sue them, as required under the exhaustion of his administrative remedies in order to proceed in court.” (Id.) Consistent with the allegations in the Complaint, Plaintiff's letter relates that the events at issue occurred in May 2018. (Id.)

         However, Plaintiff's letter, and the corresponding allegations in his Complaint concerning the date on which the incident occurred conflict with documents from the New Mexico Human Rights Bureau which are attached as an exhibit to Defendant's Reply.[5] To that end, a “New Mexico Human Rights Bureau Questionnaire” reflects that on September 7, 2018 Plaintiff reported to the Human Rights Bureau that “sometime in May 2017” Plaintiff “went into dollar tree and the cashier . . . told him she would not take his money.” (Doc. 15 at 7.) The Questionnaire reflects, further, that the Bureau advised Plaintiff that it would not accept the complaint because ...


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