Ramirez v. SMG et al

Filing 24

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez GRANTING 9 MOTION to Dismiss . IT IS THEREFORE ORDERED that the Motion to Dismiss [Doc. 9 ] filed by SMG is GRANTED. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

VICTOR RAMIREZ,
Plaintiff,
v.

CV 16-1023 MV/LF

SMG, LLC, JAMES HICE (Executive Chef),
CHRISTOPHER CARDENAS (Banquet Coordinator),
CARLOS MARTINEZ (Sous Chef),
GREG YOUNG, JORDAN RIVERA,
Defendants.

MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Motion to Dismiss [Doc. 9] filed by
SMG.

The Court, having considered the motion, briefs, and relevant law, and being otherwise

fully informed, finds that the Motion is well-taken and will be granted.
BACKGROUND
In October of 2012, Plaintiff Victor Ramirez filed a Charge of Discrimination against his
employer, SMG.
Discrimination.
Id.

Doc. 12 at 1.
Id. at 2.

On April 23, 2013, he filed an Amended Charge of

On August 4, 2015, the EEOC issued Plaintiff a right to sue letter.

At that point, Plaintiff had 90 days within which to file an action in court on his

discrimination claims.

Id.

Within the 90-day statutory period, on November 3, 2015, Plaintiff commenced an action
in the Second Judicial District Court of the State of New Mexico, Bernalillo County, alleging
that he was subject to discrimination in violation of federal and state laws by his employer and

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individuals who worked for that employer.

Doc. 1-1.

Although Plaintiff’s employer is SMG,

the Complaint names “SMG, LLC,” an entirely unrelated entity, as Defendant.
After filing the Complaint, “Plaintiff’s attorney lost contact with the Plaintiff and no
attempt to serve the Complaint on the Defendants was made until contact was reestablished in
August 2016.”

Id.

After determining that Plaintiff did, in fact, wish to continue with his

action, on August 18, 2016 – nine months after the action was commenced – Plaintiff’s attorney
mailed a copy of the Complaint to SMG “for the purposes of effecting service.”
1-2.

SMG received the Complaint on August 23, 3016.

any of the individual Defendants.

Id. at 2, Doc.

Doc. 1 at ¶ 3. Plaintiff never served

Doc. 12 at 2.

On September 14, 2016, SMG removed the action to this Court.
filed the instant motion to dismiss Plaintiff’s claims in their entirety.

Doc. 1.

Doc. 9.

SMG then

On October 21,

2016, Plaintiff filed a response in which he agreed that his federal claims against the individual
Defendants should be dismissed, but argued that his state claims against the individual
Defendants and all of his claims against SMG remain viable.

Doc. 12.

On March 7, 2017,

Plaintiff filed a Notice of Voluntary Dismissal under Rule 41 of the Federal Rules of Civil
Procedure, dismissing all of his claims against the individual Defendants.

Doc. 20.

It thus

remains for this Court to determine the merits of SMG’s motion to dismiss Plaintiff’s claims
against SMG.
DISCUSSION
SMG argues that because the Complaint fails to name it as a party to this lawsuit, the
Complaint fails to state a claim upon which relief can be granted against SMG.

SMG further

argues that the Complaint must be dismissed on this basis, because the 90-day limitations period
for Plaintiff to file an action ran in November 2015, and thus amendment of his Complaint would
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be futile.

Plaintiff acknowledges that he did not properly name SMG as Defendant, and that the

statute of limitations bars him from commencing an action on his discrimination claims.

He

contends, however, that his failure to name the proper party is a “minor discrepancy,” that SMG
had notice of this action and thus is not prejudiced by the discrepancy, and that under Rule 15(c)
of the Federal Rules of Civil Procedure, he should be permitted to file an amended complaint,
properly naming SMG as Defendant, and have that amended complaint “relate back” to
November 3, 2015, the date on which the original Complaint was filed.
The Court need not opine as to the severity of Plaintiff’s mistake concerning SMG’s
identity or the prejudice caused to SMG as a result thereof, as the plain language of Rule 15(c)
dictates the outcome of SMG’s motion. Specifically, Rule 15(c) provides:
(c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment to a pleading relates back
to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out--or attempted to be set out--in the original
pleading; or
(C) the amendment changes the party or the naming of the party against whom a
claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided
by Rule 4(m) for serving the summons and complaint, the party to be brought in by
amendment:
(i) received such notice of the action that it will not be prejudiced in defending on
the merits; and
(ii) knew or should have known that the action would have been brought against it,
but for a mistake concerning the proper party's identity.
Fed. R. Civ. P. 15(c).

By its terms, Rule 15(c)(1)(C) requires that, in order for an amended

complaint to relate back, Plaintiff must demonstrate that the party who is to be brought in by
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amendment received notice of the action, and knew or should have known that the action would
have been brought against it but for a mistake concerning the proper party’s identity, “within the
period provided by Rule 4(m) for serving the summons and complaint.” Autry v. Cleveland
Cty. Sheriff’s Dep’t, No. 15-cv-1167, 2018 WL 846093, at *7 (W.D. Okla. Feb. 12, 2018).

In

turn, Rule 4(m) provides that a defendant must be served within 90 days after a complaint is filed.
Fed. Civ. P. 4(m).
It is undisputed that SMG did not receive notice of the instant action within 90 days after
the Complaint was filed. Specifically, Plaintiff admits that he did not serve a copy of the
Complaint on SMG until his counsel mailed it on August 18, 2016, and that SMG received the
Complaint on August 23, 2016 – nine months after the action was commenced on November 3,
2015. Accordingly, because SMG did not receive notice of the action “within the time limit for
service of the Complaint, Rule 15(c)(1) does not apply, and relation-back is not authorized.” Id.
It follows that any amendment of Plaintiff’s Complaint to name SMG would not relate back to the
original date of filing, and thus would run afoul of the statute of limitations. Under these
circumstances, allowing Plaintiff to amend his Complaint to name SMG would be futile.
CONCLUSION
SMG is not named as a Defendant in this action.

Allowing Plaintiff to amend the

Complaint to properly name SMG as a party would be futile, as the limitations period for his
discrimination claims has already run.

Further, because SMG did not receive notice of this

action within the time period proved by Rule 4(m) for serving the summons and complaint,
amendment of Plaintiff’s Complaint would not relate back to the original filing date. For these
reasons, dismissal of Plaintiff’s claims against SMG is warranted.

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IT IS THEREFORE ORDERED that the Motion to Dismiss [Doc. 9] filed by SMG is
GRANTED.

DATED this 27th day of March, 2018.

MARTHA VÁZQUEZ
United States District Judge

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