United States District Court, D. New Mexico
SHANNON SZUSZALSKI, as personal representative for the ESTATE OF LINDA BARAGIOLA, and SHANNON SZUSZALSKI, individually, Plaintiff,
RUDY FIELDS, SANDOVAL COUNTY, SHERIFF DOUGLAS C. WOOD, and JANET LOPEZ, Defendants.
MEMORANDUM OPINION AND ORDER
C. BRACK, SENIOR U.S. DISTRICT JUDGE
lawsuit arises out of the tragic death of Ms. Linda
Baragiola, who was a close friend and neighbor of Defendant
Janet Lopez. At Ms. Lopez's request, Ms. Baragiola went
onto Ms. Lopez's property to check on her dogs after her
home's security alarm was triggered. Law enforcement
officials also arrived at the home and questioned Ms.
Baragiola. As Ms. Baragiola was walking home, Defendant Rudy
Fields, a law enforcement officer who was preparing to
respond to a non-emergency call, backed his police vehicle
into Ms. Baragiola and ran her over.
Shannon Szuszalski, on behalf of herself and as personal
representative of the Estate of Ms. Baragiola (Plaintiffs),
have filed a claim against Ms. Lopez based on
negligence/premises liability. Ms. Lopez has moved to dismiss
the claim. For the reasons discussed herein, the Court will
grant Ms. Lopez's motion.
Baragiola and Ms. Lopez were friends and neighbors. (Doc.
1-A-3 (Am. Compl.) ¶¶ 16, 22.) Ms. Lopez has a
security system installed in her home through a company
called The Alarm Store. (Id. ¶ 25.) She gave
Ms. Baragiola the key to her home “and designated her
as the back-up contact person with . . . The Alarm
Store.” (Id.) Whenever the security system was
triggered and the alarm company could not reach Ms. Lopez,
the company would contact Ms. Baragiola instead.
(Id. ¶ 26.)
Lopez also owned dogs and frequently asked Ms. Baragiola to
check on the dogs when she was not at home. (Id.
¶ 24.) On September 28, 2017, Ms. Lopez's security
system was triggered and the Alarm Store contacted Ms.
Baragiola. (Id. ¶ 27.) Ms. Lopez also contacted
Ms. Baragiola and asked her to go to the residence, enter her
home, and check on the dogs. (Id. ¶¶
27-30.) Ms. Baragiola was on Ms. Lopez's property when
law enforcement officers arrived to investigate the alarm.
(Id. ¶ 32.) Detective Tomlinson, one of the
officers who responded to the alarm, questioned Ms. Baragiola
during the investigation. (Id. ¶¶ 32-33.)
Fields also responded to the alarm and parked his truck in
the U-shaped driveway of Ms. Lopez's “residence, a
considerable distance from the street.” (Id.
¶¶ 39, 77.) Deputy Fields's vehicle was
equipped with a front camera, the footage of which shows that
Detective Tomlinson spoke with Ms. Baragiola in front of the
vehicle, then they walked toward the back of the truck.
(Id. ¶¶ 132-33.) Deputy Fields was sitting
in the vehicle's driver's seat at this time.
(Id. ¶¶ 34, 37, 131-33.) Ms. Baragiola
walked directly behind the truck and toward her own home
across the street. (Id. ¶¶ 67, 79, 141.)
“Fields received a call for service from dispatch for a
non-emergency matter.” (Id. ¶ 40.) He
wanted to tell another officer, Detective Salas, that he was
leaving to respond to the matter. (Id. ¶ 43.)
Although Deputy Fields could have driven through the U-shaped
driveway toward Detective Salas, he instead chose to reverse
approximately 50 feet toward the street. (Id.
¶¶ 76-78.) While he was reversing his vehicle
“at a relatively slow rate of speed” without his
emergency lights or sirens activated, he hit Ms. Baragiola
with the rear bumper and tailgate of the truck. (Id.
¶¶ 45, 47, 50.) The tire of the truck then drove
over Ms. Baragiola, who was still on Ms. Lopez's
driveway, causing her death. (Id. ¶ 53.)
reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court “must accept all the well-pleaded allegations
of the complaint as true and must construe them in the light
most favorable to the plaintiff.” In re Gold Res.
Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015)
(citation omitted). “To survive a motion to dismiss,
” the complaint does not need to contain
“detailed factual allegations, ” but it
“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) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007)). “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. (citing Twombly, 550 U.S. at 556).
Plausibility does not equate to probability, but there must
be “more than a sheer possibility that a defendant has
acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 556.)
addressing the substance of Ms. Lopez's motion, the Court
will consider Plaintiffs' request to deny the motion for
failure to comply with Local Rule 7.1(a), which requires the
movant to determine whether its motion is opposed. (Doc. 8 at
2-3 (citing D.N.M. LR-Civ. 7.1(a)).) Ms. Lopez notes that she
originally filed her motion to dismiss in state court before
Defendants removed the case. (Doc. 17 at 2.) “In New
Mexico state court, a party is not required to seek . . .
concurrence on a dispositive motion . . . .”
(Id. (citing NMRA, Rule 1-007.1(C)).) Ms. Lopez
amended her motion “[o]nly to cite the Federal Rules of
Civil Procedure rather than the state court rules” and
refiled the motion in this Court. (Id.) Ms. Lopez
assumed that because the removed action represents a
continuation of the state action, “the motion was
already before the Court” and she did not need to seek
concurrence. (Id. (citing Jenkins v. MTGLQ
Inv'rs, 218 Fed.Appx. 719, 723 (10th Cir. 2007)).)
In an effort to cure any oversight, Ms. Lopez's counsel
also sought Plaintiffs' position on the motion and was
“informed that had concurrence been sought, concurrence
would not have been given.” (Id. (citing Doc.
Court has discretion to summarily deny a motion if a party
fails to establish that it sought concurrence. D.N.M. LR-Civ.
7.1(a) (“a motion that omits recitation of a good-faith
request for concurrence may be summary
denied”) (emphasis added); see also United States
v. 16 Mounts, Rugs & Horns Protected by the
Endangered Species Act, 124 F.Supp.3d 1174, 1176 (D.N.M.
2015). Because Ms. Lopez has attempted to cure her error and
it is clear that Plaintiffs would have opposed the motion,
the Court prefers to move to the merits of the matter.
Ms. Lopez has failed to define a policy reason-detached from