Cordero v. Froats
| Decision Date | 20 May 2016 |
| Docket Number | Civ. No. 13-031 JCH/GBW |
| Parties | ELVIA CORDERO, as Personal Representative of the ESTATE OF ROBERT MONTES, Plaintiff, v. TODD FROATS, PETER BRADLEY, JOSE SANCHEZ and CODY AUSTIN, Individually and in Their Official Capacity as Members of the Las Cruces Police Department, and CITY OF LAS CRUCES, Defendants. |
| Court | U.S. District Court — District of New Mexico |
This matter is before the Court on City of Las Cruces's Motion & Supporting Memorandum To Dismiss Count III's State Law Claim for Lack of Subject Matter Jurisdiction. [Doc. 80] Plaintiff filed a Response [Doc. 92], and Defendant City of Las Cruces ("City") filed a Reply [Doc. 99]. Having reviewed the motion, briefs, and relevant law, the Court concludes that the motion should be granted.
FACTS ALLEGED IN FIRST AMENDED COMPLAINT
The following is a statement of factual allegations in the First Amended Complaint ("FAC"). [Doc. 71]
On December 17, 2011, the Individual Defendants were involved in a stop of a vehicle driven by Jessica Anto, in which Robert Montes was a passenger.
Defendant Sanchez and other officers were advised that the occupants of the Anto vehicle might have been involved in some type of altercation at a nearby apartment.1 About six minutes before the stop, radio traffic announced there was no evidence of any fight or altercation at that apartment. Neither Sanchez nor any other law enforcement officer witnessed Anto or Montes commit any misdemeanor or other crime before the vehicle was stopped. Despite the fact that no officer had witnessed Anto or Montes commit any crime, Anto was removed from the vehicle against her will, was handcuffed by Sanchez, and was placed in Sanchez's unit.
During the stop, officers placed Montes in investigative detention, during which time they removed him from the vehicle and placed him in handcuffs. After a short time, Montes got up and tried to run away from the scene. As he ran, handcuffed, the individual Defendants shot and killed him.
Plaintiff filed the original complaint on January 11, 2013, against: Todd Froats, Peter Bradley, and Cody Austin (current or former employees of the Las Cruces Police Department) in their individual and official capacities; and also against the City of Las Cruces ("City"). [Doc. 1] The original complaint asserted three claims: (1) Count I—excessive force causing the death of Montes, in violation of his federal constitutional rights; (2) Count II—gross negligence in use of deadly force under the New Mexico Tort Claims Act ("NMTCA"), NMSA 1978, §§ 41-4-1 to -27 (2015); (3) Count III—supervisory liability of the City and spoliation of evidence; and (4) Count IV—an independent claim of punitive damages. [Doc. 1]
Defendants moved for qualified immunity and summary judgment. [Doc. 18] On January 9, 2015, the Court issued a Memorandum Opinion and Order. [Doc. 34] The Court denied Defendants qualified immunity, thus denying summary judgment on Counts I and II, anddenying summary judgment on the same basis with respect to the excessive force claim under Count III. The Court granted Defendants' motion for summary judgment on Count III with respect to the spoliation of evidence claim. The Court granted Defendants' motion as to the assertion of punitive damages under Count IV as an independent cause of action; the Court dismissed Count IV as a separate count, but made no ruling on the availability of punitive damages in future proceedings.
Defendants filed for interlocutory appeal on February 9, 2015. [Doc. 37] On September 2, 2015, the Tenth Circuit issued an Order dismissing Defendants' appeal for lack of jurisdiction. [Doc. 50]
On December 4, 2015, Plaintiff filed a motion to amend the complaint, adding Sanchez as a Defendant and making additional changes. [Doc. 65] Defendants filed a response, stipulating to filing of an amended complaint under the following conditions: (1) Count III's claim for spoliation and Count IV's claim for an independent cause of action for punitive damages must be removed, based on this Court's January 9, 2015, Memorandum Opinion and Order [Doc. 34]; (2) Officer Sanchez shall not waive any defense by virtue of this stipulation—including any claims based on sufficiency of the complaint, statute of limitations, relation back to the original filing date, or notice under Federal Rule of Civil Procedure 15. [Doc. 67] Based on this agreement, the Court issued the Stipulated Order Granting Plaintiff's Motion To File First Amended Complaint (Doc. 65). [Doc. 70 (filed 1/6/16)] On January 7, 2016, Plaintiff filed the First Amended Complaint ("FAC").2 [Doc. 71]
On February 1, 2016, Defendant Sanchez filed a motion to dismiss the FAC. [Doc. 78] Contemporaneously with this Memorandum Opinion and Order, the Court is filing a separateMemorandum Opinion and Order which grants Sanchez's motion to dismiss him as a Defendant but does not dismiss the FAC itself.
Federal courts are courts of limited jurisdiction and may only exercise jurisdiction as specifically authorized. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Once a district court has original jurisdiction in the action, it may exercise supplemental jurisdiction over an additional claim that is part of the same case or controversy. Id.; United Mine Workers v. Gibbs, 383 U.S. 715 (1966). When adjudicating a supplemental state law claim, the federal court applies state substantive law. Gibbs, 383 U.S. at 726.
A motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) may be either a "facial attack" or a "factual attack." Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). A facial attack questions the sufficiency of the complaint's allegations of subject matter jurisdiction; the court must accept the allegations in the complaint as true. Id. at 1002.
A factual attack goes beyond the complaint's allegations and challenges the facts upon which subject matter jurisdiction depends; the court may not then presume the truth of the complaint's factual allegations. Id. at 1003. In considering a factual attack, the district court "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts." Id. The court's consideration of evidence outside the pleadings does not convert such a motion into a Rule 56 motion. Id.
The City brought the motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). [Doc. 80] The court must, however, convert a Rule 12(b)(1) motion into a Rule 12(b)(6) motion or a Rule 56 motion if resolution of the jurisdictional question is intertwined with the merits of the case. The Tenth Circuit stated in Holt: "The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case." Holt, 46 F.3d at 1003. The Tenth Circuit later clarified this point, explaining: "'[T]he focus of the inquiry is not merely on whether the merits and the jurisdictional issue arise under the same statute, ... [but] whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.'" Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002) (quoting Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir. 2000)).
In Sizova, the plaintiff argued that subject matter jurisdiction and the merits were intertwined, so that the defendant's Rule 12(b)(1) motion should have been treated as a Rule 56 motion; the plaintiff argued that the defendant moved for dismissal under Title VII, the same statute under which she asserted her cause of action. Id. at 1324. The Tenth Circuit rejected this argument, stating that the jurisdictional issue3 was whether the plaintiff exhausted her administrative remedies, which was "simply not an aspect of her substantive claim of discrimination." Id. at 1325. In contrast, in Wheeler the Tenth Circuit held that a motion under Rule 12(b)(1) to dismiss claims under federal antidiscrimination statutes for lack of subject matter jurisdiction was properly treated as a summary judgment motion, because determinationof whether the plaintiff qualified as an employee under those statutes was both a jurisdictional question and a part of the substantive claims. Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987).
Plaintiff's claim under Count III is that the City is liable under the NMTCA and under § 1983 for the officers' use of excessive force and their decision to use deadly force. The City moves to dismiss the NMTCA claim under Count III.
The motion to dismiss is based on Section 41-4-16 of the NMTCA, which provides that no court has jurisdiction unless notice has been given as required under that section. The City's argument is that this Court lacks jurisdiction because the required notice was not given. The NMTCA thus contains the statute on which subject matter jurisdiction depends and also the statute on which Plaintiff's substantive claim depends. But, as the Tenth Circuit clarified in Sizova, the issue is not merely whether the same statute is involved, but "whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.'" Sizova, 282 F.3d at 1324 (quoting Pringle, 208 F.3d at 1223). The Court concludes that the jurisdictional question here is not intertwined with the merits of the case. Whether the City had notice under Section 41-4-16 of the NMTCA is not an aspect of Plaintiff's substantive claim of excessive force. Plaintiff does not contend otherwise, and does not argue that the motion should be treated as a motion under Rule 12(b)(6) or Rule 56.
The Court concludes that the City's motion constitutes a factual attack under Rule 12(b)(1). In deciding this motion under Rule 12(b)(1), the Court does not presume the...
To continue reading
Request your trial