South v. Lujan

• Decision Date: 11 August 2014
• Docket Number: 32,015.
• Citation: 336 P.3d 1000
• Parties: Tiffany SOUTH, Plaintiff–Appellant, v. Police Chief Isaac LUJAN, Police Captain Will Duran, and Mary–Alice Brogdon, in their individual capacities, Defendants–Appellees.
• Court: Court of Appeals of New Mexico

336 P.3d 1000

Tiffany SOUTH, Plaintiff–Appellant

v.Police Chief Isaac LUJAN, Police Captain Will Duran, and Mary–Alice Brogdon, in their individual capacities, Defendants–Appellees.

32,015.

Court of Appeals of New Mexico.

Aug. 11, 2014.

Law Office of George Geran, George T. Geran, Santa Fe, NM, for Appellant.

Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, David C. Mielke, Albuquerque, NM, for Appellees.

OPINION

BUSTAMANTE, Judge.

{1} Plaintiff–Appellant Tiffany South—a former officer with the Sandia Pueblo Police Department (Plaintiff) filed a complaint for violation of the New Mexico Human Rights Act (NMHRA), retaliatory discharge, and tortious inference with contract against Defendants–Appellees Isaac Lujan, William Duran, and Mary–Alice Brogdon (collectively, Defendants) in their individual capacities. The district court granted Appellees' motion to dismiss based on lack of jurisdiction. Because the record on appeal is insufficient to permit review, we reverse and remand for factual development on the issues relevant to state court jurisdiction.

BACKGROUND

{2} Plaintiff, who had been an officer with the Sandia Pueblo Police Department (the Department), alleged that Defendants Lujan and Duran, the Chief and Captain of the Department, respectively, had sexually harassed her and that, together with Defendant Brogdon, the employee relations manager for Sandia Pueblo, had retaliated against her after she complained of the sexual harassment. She also maintained that Defendants interfered with her employment contract with Sandia Pueblo “with the explicit motive of terminating [her employment] for false reasons[.]”

{3} Plaintiff is not Indian. Defendant Lujan is Indian and a member of the Pueblo. Defendants Duran and Brogdon are neither Indian nor members of the Pueblo. Sandia Pueblo is not named as a party in the complaint.

{4} Defendants moved for dismissal of the complaint, arguing that the NMHRA did not apply to the Pueblo and its employees and that, in any case, Plaintiff's claims were barred by the Pueblo's sovereign immunity and, therefore, the district court lacked jurisdiction to hear the complaint. See Rule 1–012(B)(1), (2) NMRA. They also argued that the suit must be dismissed because the Pueblo is a necessary party to the suit which cannot be joined.See Rule 1–019 NMRA. After a hearing, the district court granted Defendants' motion and dismissed the complaint with prejudice. Plaintiff appealed. Additional facts are provided as pertinent to our discussion.

DISCUSSION

{5} This case involves a suit by a non-Indian Plaintiff against one Indian and two non-Indian employees of the Department, in their individual capacities, for conduct that allegedly occurred both within and outside of Indian country. See 18 U.S.C. § 1151 (2012) (defining “Indian country” to include “all land within the limits of any Indian reservation under the jurisdiction of the United States Government”). Because our jurisprudence on state court jurisdiction over matters involving Indians or tribes frequently depends on factors such as the location or source of the underlying transaction or occurrence, whether the parties are Indian or not, and the interests at stake, the overarching question presented—does the state court have subject matter jurisdiction over these claims?—itself depends on the answers to a number of components. See, e.g., Found. Reserve Ins. Co., Inc. v. Garcia, 1987–NMSC–024, ¶ 8, 105 N.M. 514, 734 P.2d 754 (relying on fact that the transaction giving rise to the claim occurred outside of the reservation); State Sec., Inc. v. Anderson, 1973–NMSC–017, ¶ 14, 84 N.M. 629, 506 P.2d 786 (“In this case there is not a proprietary interest in land, one Indian is not suing another Indian and the transaction did not arise in Indian country.”); Alexander v. Cook, 1977–NMCA–069, ¶¶ 17–19, 90 N.M. 598, 566 P.2d 846 (holding that state court jurisdiction over a suit for damages between non-Indians for “business activities” that occurred on Indian land did not infringe on tribal sovereignty). Here, these include, for instance, whether the conduct complained of occurred on the reservation, whether the conduct complained of occurred within the scope of employment, whether the Pueblo is a necessary party, and to what extent the Pueblo has sought to regulate disputes between its employees when employees are sued in tort in their individual capacities. These questions are fact-intensive inquiries. See, e.g., Rivera v. N.M. Highway & Transp. Dep't, 1993–NMCA–057, ¶ 6, 115 N.M. 562, 855 P.2d 136 (“Generally, whether an employee is acting in the course and scope of employment is a question of fact.”); Gallegos v. Pueblo of Tesuque, 2002–NMSC–012, ¶ 42, 132 N.M. 207, 46 P.3d 668 (“The determination of whether a particular nonparty should be joined under Rule 1–019 is heavily influenced by the facts and circumstances of each case.” (internal quotation marks and citation omitted)).

{6} The parties argued these issues below and reiterate them on appeal. In addition, they dispute whether the Pueblo's sovereign immunity applies to shield Defendants from suit in state court. However, because the district court neither made factual findings nor indicated the legal basis for its decision, there is no transcript of the hearing in the record, and the parties did not develop a factual record to support the district court's ruling or adequately develop their arguments on appeal, we are unable to review whether the district court properly granted Defendants' motion to dismiss.

{7} We begin by explaining our standard of review and why we do not accept as true the facts alleged in the complaint. When considering motions to dismiss based on a failure to state a claim under Rule 1–012(B)(6) or lack of standing, we “accept as true all material allegations of the complaint and construe the complaint in favor of the complaining party.”Forest Guardians v. Powell, 2001–NMCA–028, ¶ 5, 130 N.M. 368, 24 P.3d 803 (lack of standing); Delfino v. Griffo, 2011–NMSC–015, ¶ 9, 150 N.M. 97, 257 P.3d 917 (“In reviewing a district court's decision to dismiss for failure to state a claim, we accept all well-pleaded factual allegations in the complaint as true and resolve all doubts in favor of sufficiency of the complaint.” (internal quotation marks and citation omitted)). Similarly, “[w]hen reviewing a district court's grant of a motion [for judgment on the pleadings based on sovereign immunity], we accept as true the facts pleaded in the complaint, and we review de novo the district court's application of the law to those facts.” Guzman v. Laguna Dev. Corp., 2009–NMCA–116, ¶ 16, 147 N.M. 244, 219 P.3d 12 ; see Rule 1–012(C).

{8} But this standard does not always apply when reviewing the district court's ruling on a motion to dismiss for lack of subject matter jurisdiction under Rule 1–012(B)(1). The difference lies in the type of attack—facial or factual—mounted by the movant.

In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. [In contrast, in a factual attack,] a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations.

Holt v. United States, 46 F.3d 1000, 1002–03 (10th Cir.1995) (citations omitted); see Hamaatsa, Inc. v. Pueblo of San Felipe, 2013–NMCA–094, ¶ 9, 310 P.3d 631, cert. granted, 2013–NMCERT–009, 311 P.3d 452 (“As conceded by the Pueblo in its argument to the district court and in its brief in chief on appeal, the Pueblo's purely facial challenge to jurisdiction compels us to accept as true all material allegations of the complaint and also to construe the complaint in favor of the complaining party.”); see also Genberg v. Porter, 935 F.Supp.2d 1094, 1102 (D.Colo.2013), aff'd in part, appeal dismissed in part, No. 13–1140, 566 Fed.Appx. 719, 2014 WL 1876246 (10th Cir. May 12, 2014) (“When a party moves to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), the attack is either a facial attack to the allegations of the complaint or a factual attack.”) This rule is based on the fundamental nature of jurisdictional questions: “Because at issue in a factual [1–012(B)(1) ] motion is the [district] court's jurisdiction—its very power to hear the case—there is substantial authority that the [district] court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Osborn v. United States, 918 F.2d 724, 730 (8th Cir.1990).

{9} When the challenge is factual, “[a] court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule [1–012(B)(1) ]. In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a ... motion [for summary judgment].” Holt, 46 F.3d at 1003 (citations omitted). “However, a court is required to convert a Rule [1–012(B)(1) ] motion to dismiss into a Rule [1–012(B)(6) ] motion or a ... summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case.” Id.

{10} Here, Defendants challenge several factual allegations in the complaint that bear on subject matter jurisdiction, such as whether the alleged conduct was in Defendants' scope of employment and the location of the alleged conduct, and thus their attack is a factual one. We do not, therefore, presume the truthfulness of the complaint and instead rely on factual findings by the district court pertaining to subject matter jurisdiction.

{11} Where factual determinations are essential to a district court's ruling but are inadequately developed for appeal, this Court may remand for entry of findings of fact because “[a]s an appellate court, we will not originally determine the...