Herndon v. Best Buy Co., CIV 14-0162 KBM/RHS

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Docket NumberCIV 14-0162 KBM/RHS
Decision Date12 August 2014
PartiesTHOMAS HERNDON, Plaintiff, v. BEST BUY CO., INC., Defendant.

BEST BUY CO., INC., Defendant.

CIV 14-0162 KBM/RHS


August 12, 2014


THIS MATTER comes before the Court on Defendant Best Buy Stores L.P.'s1 Motion to Dismiss (Doc. 11), filed on February 27, 2014, and fully briefed on April 9, 2014, and Plaintiff's Motion to Certify Question to the Supreme Court of New Mexico (Doc. 16), filed March 20, 2014, and fully briefed on May 8, 2014. Pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 73, the parties have consented to me serving as the presiding judge and conducting all proceedings, including trial. Doc.15. Having read the submissions of the parties and reviewed the relevant law, the Court will grant Defendant's Motion to Dismiss and deny Plaintiff's Motion to Certify.

I. Background Facts2

Plaintiff Thomas Herndon was employed as general manager of the Best Buy store in Farmington, New Mexico. During his tenure as general manager, Herndon

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hired James McBride, who had previously been convicted of a felony for armed bank robbery and had recently finished serving his sentence of imprisonment. Herndon subjected Mr. McBride to the usual hiring process required by Best Buy, including a background check and drug test, both of which he passed. Other employees interviewed Mr. McBride and agreed that he should be hired. Herndon did not consult with other management before hiring Mr. McBride, and Best Buy does not have a written policy requiring that he do so.

Best Buy terminated Herndon's employment on September 6, 2013, because his offer of employment to Mr. McBride given the prospective employee's armed robbery conviction was a "questionable hiring decision without partnering with appropriate leadership that could have put the company at risk." Doc. 1-1 at 2, ¶ 7. In response, Herndon sued Best Buy in the First Judicial District Court for the State of New Mexico for retaliatory discharge grounded in the public policy stated in the Criminal Offender Employment Act ("COEA" or "the Act"), N.M. Stat. Ann § 28-2-1 et seq. (1978). Defendant Best Buy removed this action based upon diversity of citizenship and has moved to dismiss Herndon's Complaint. As an alternative to dismissal, Herndon asks this Court to certify a question to the New Mexico Supreme Court. For the following reasons, the Court will decline Herndon's request and dismiss this case for failure to state a viable claim.

II. Legal Standards

A. Motion to Dismiss pursuant to Rule 12(b)(6)

In order to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the United States Supreme Court has held that:

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[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Id. at 679. Additionally, "[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.

Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement." Id. at 678. "While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim." Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). Finally, "[a] court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991).

B. Motion to Certify

The New Mexico State Supreme Court "may answer a question of law certified to it by a court of the United States . . . if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision or statute of this state." N.M. Stat. Ann. § 39-7-4 (1978); see

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also Hartford Ins. Co. of the Midwest v. Cline, 367 F. Supp. 2d 1342, 1344 (D.N.M. 2005). "The decision to certify 'rests in the sound discretion of the federal court.'" Kansas Judicial Review v. Stout, 519 F.3d 1107, 1119 (10th Cir. 2008) (quoting Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S. Ct. 1741, 1744 (1974).

Moreover, the Tenth Circuit has cautioned that "[c]ertification is not to be routinely invoked whenever a federal court is presented with an unsettled question of state law." Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988). As the Supreme Court has directed,

In the absence of some recognized public policy or defined principle guiding the exercise of the jurisdiction conferred, which would in exceptional cases warrant its non-exercise, it has from the first been deemed to be the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions of state law whenever necessary to the rendition of a judgment.

Meredith v. City of Winter Haven, 320 U.S. 228, 234 (1943). Thus, "the federal courts have the duty to decide questions of state law even if difficult or uncertain. . . ." Copier, 138 F.3d 833, 838 (10th Cir. 1998). A federal court should "'apply judgment and restraint before certifying,' and 'will not trouble our sister state courts every time an arguably unsettled question of state law comes across our desks.'" Colony Ins. v. Burke, 698 F.3d 1222, 1236 (quoting Pino v. United States, 507 F.3d 1233, 1236 (10th Cir. 2007)). 'When we see a reasonably clear and principled course, we will seek to follow it ourselves." Pino v. United States, 507 F.3d 1233, 1236 (10th Cir. 2007).

III. Discussion

A. Herndon's Motion to Certify

Herndon requests that this Court certify the following question to be answered by

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the New Mexico Supreme Court:

Does NMSA 28-2-1 et seq. apply to the hiring process used by private employers or only to employment with the state?

Because the Court is able to settle the question without requesting guidance from the New Mexico courts, certification of the proposed question is unwarranted.

B. Best Buy's Motion to Dismiss

In New Mexico, "an employee who [does] not have a contract of employment for a definite term [can] be discharged at will, with or without cause." Chavez v. Manville Products Corp., 108 N.M. 643, 647, 777 P.2d 371, 375 (citations omitted). Retaliatory discharge constitutes an exception to this employment "at-will" doctrine and permits "a discharged at-will employee to recover in tort when his discharge contravenes a clear mandate of public policy." Id.

For an employee to recover under [a claim

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