Talamante v. Pino

• Decision Date: 24 March 2014
• Docket Number: Civ. No. 12-01218 MV/GBW
• Court: U.S. District Court — District of New Mexico
• Parties: ANDREA TALAMANTE & ELDON TALAMANTE, Plaintiffs, v. BRENT PINO & SCOTT SOLIS, Defendants.

ANDREA TALAMANTE & ELDON TALAMANTE, Plaintiffs, v. BRENT PINO & SCOTT SOLIS, Defendants.

Civ. No. 12-01218 MV/GBW

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

March 24, 2014

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Defendants' Motion to Dismiss Pursuant to Rules 12(b)(1), 12(b)(3), and 12(b)(6) ("Motion to Dismiss"), filed March 5, 2013 [Doc. 23]. The Court, having considered the motion, briefs, and relevant law, and being otherwise fully informed, finds that the Motion to Dismiss is not well taken and will be denied.

BACKGROUND

Plaintiff Andrea Talamante, the biological mother of the minor child CV/CT (born 2005), and Plaintiff Eldon Talamante, Andrea Talamante's husband as of June 4, 2009, and CV/CT's adoptive father as of October 20, 2011, filed their Petition to Vacate Order Appointing Guardian of Minor ("Petition"), on November 26, 2012 [Doc. 1]. Plaintiffs bring their Petition pursuant to 25 U.S.C. Section 1914 of the Indian Child Welfare Act ("ICWA"), 2 U.S.C. §§ 1901 et seq., seeking to invalidate an order entered by the Superior Court of California, County of Santa Clara, on March 30, 2010, appointing Defendant Brent Pino, Andrea Talamante's brother, and Defendant Scott Solis, Brent Pino's partner, guardians of CV/CT ("Guardianship Order").

The Petition alleges that Andrea Talamante and CV/CT are enrolled members of the Comanche Nation, that Andrea Talamante has resided on the Jicarilla Apache National Reservation since February 2009, that Eldon Talamante is an enrolled member of the Jicarilla Apache Nation, that a non-Indian Joshua Vielleux is CV/CT's biological father, that Andrea Talamante and Joshua Vielleux were married on April 14, 1999, and divorced on or about February 20, 2009, and that Joshua Vielleux's parental rights regarding CV/CT were terminated by the Jicarilla Apache Tribal Court on April 8, 2011. The Petition further alleges that in July 2009, Andrea Talamante's parents took CV/CT to California to visit Defendants without Andrea Talamante's permission and that CV/CT thereafter remained in Defendants' care and custody.¹

The Petition alleges that in December 2009, Brent Pino informed Andrea Talamante that he would be keeping CV/CT in California under his care indefinitely. CV/CT has remained in California under the guardianship of Defendants from July 2009 through the present. Andrea Talamante alleges that she wanted her daughter back, but that she did not have the funds to travel from New Mexico to California to retrieve her daughter.

Plaintiffs allege that on December 23, 2009, Defendants filed a petition to become the legal guardians of CV/CT in the Superior Court of California, County of Santa Clara ("GuardianshipPetition"). Plaintiffs allege that on March 27, 2010, Plaintiffs received notice via the United States Postal Service of a March 30, 2010, hearing on the Guardianship Petition, but that it was not possible for Plaintiffs to attend the hearing with only three days advance notice. On March 30, 2010, the Superior Court of California entered the Guardianship Order, appointing Defendants as the legal guardians of CV/CT. On November 26, 2012, Plaintiffs filed their Petition seeking to vacate the Guardianship Order.

In support of their request to vacate the Guardianship Order, the Plaintiffs allege that the California Superior Court did not have jurisdiction over CV/CT, an Indian child, because CV/CT's domicile followed that her of biological mother, and therefore Section 1911(a) of the ICWA vests exclusive jurisdiction over matters involving CV/CT's custody in the tribal court. The Petition also alleges that the Court should vacate the Guardianship Order because the guardianship proceedings failed to comply with various ICWA requirements, including the provision of remedial or rehabilitative services to Andrea Talamante as required by Section 1912(d), a showing accompanied by testimony of a qualified expert that the continued custody of CV/CT by Andrea Talamante would likely result in serious emotional or physical damage to CV/CT as required by Section 1912(e), and notice of the guardianship hearings via registered mail with return receipt as required by Section 1912(a).

STANDARD

I. Federal Question Jurisdiction.

Federal district courts "have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "A case arises under federal law if its well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantialquestion of federal law." Nicodemus v. Union Pac. Corp., 440 F.3d 1227, 1232 (10th Cir. 2006) (internal quotation marks and citation omitted).

II. Motions to Dismiss.

A. Federal Rule of Civil Procedure 12(b)(1).

Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of jurisdiction over the subject matter." Fed. R. Civ. P. 12(b)(1). "The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).

Whenever it appears that a district court lacks jurisdiction over the subject matter involved in an action, the court must dismiss the action. See Tuck v. United Servs. Auto. Ass'n, 859 F.2d 842, 844 (10th Cir. 1988) (citation omitted), cert. denied, 489 U.S. 1080 (1989). "The party seeking the exercise of jurisdiction in his favor must allege in his pleading the facts essential to show jurisdiction." U.S. ex rel. Gen. Rock & Sand Corp. v. Chuska Dev. Corp., 55 F.3d 1491, 1495 (10th Cir. 1995). In determining whether a party has adequately presented facts sufficient to establish jurisdiction, the court should look to the complaint's face, see Whitelock v. Leatherman, 460 F.2d 507, 514 (10th Cir. 1972), accepting the well-pleaded factual allegations as true, see United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001), but ignoring conclusory allegations of jurisdiction, see Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). On a jurisdictional motion, a court may also look at documents and evidence not contained in the pleadings. See Davis ex rel. Davis v. U.S., 343 F.3d 1282, 1296 (10th Cir. 2003), cert. denied, 542 U.S. 937 (2004).

The Supreme Court of the United States has instructed that district courts should not dismiss a complaint "so drawn as to seek recovery directly under the Constitution or laws of the United States . . . but for two possible exceptions." Bell v. Hood, 327 U.S. 678, 681-82 (1946).The two "possible exceptions" are claims that "clearly appear[ ] to be immaterial and made solely for the purpose of obtaining jurisdiction" or claims that are "wholly insubstantial and frivolous." Id. at 682-83.

B. Federal Rule of Civil Procedure 12(b)(6).

Rule 12(b)(6) authorizes a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Smith v. U.S., 561 F.3d 1090, 1098 (10th Cir. 2009) (citation omitted), cert. denied, 558 U.S. 1148 (2010).

A complaint need not set forth detailed factual allegations, yet a "pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action" is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (citation omitted).

To survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See id. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). "A claim has facialplausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis omitted). The Tenth Circuit has explained,

"[P]lausibility" in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs "have not nudged their claims across the line from conceivable to plausible." The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570) (internal citations omitted).

C. Federal Rule of Civil Procedure 12(b)(3).

Rule 12(b)(3) authorizes a court to dismiss a complaint for improper venue. See Fed. R. Civ. P. 12(b)(3). In a federal civil action, venue is...