Ortiz et al v. New Mexico Department of Cultural Affairs et al

Filing 23

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge William P. Lynch re 17 MOTION to Review filed by Henry Ortiz, Sofie Ortiz, 10 MOTION to Remand filed by Henry Ortiz, Sofie Ortiz. Objections to PFRD due by 4/25/2017. < FONT SIZE=-1>Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (mej)

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

HENRY ORTIZ and SOFIE ORTIZ,
Plaintiffs,
v.

16-cv-1396 JB/WPL

NEW MEXICO DEPARTMENT OF
CULTURAL AFFAIRS, NEW MEXICO
MUSEUM OF NATURAL HISTORY,
NEW MEXICO GEOLOGICAL SOCIETY,
ADRIAN HUNT, PHILLIP HUBER,
SPENCER LUCAS, KAYE TOOLSON,
PHIL BIRCHEFF, D. BARID, K. KIETZKE,
ALLEN LERNER, and TOMAS ROMERO,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Plaintiffs Henry and Sofie Ortiz filed a motion to remand (Doc. 10) and supporting
memorandum (Doc. 11). The Ortizes contend that this Court lacks diversity jurisdiction over the
case. The Defendants respond that the Court has federal question jurisdiction because the Ortizes
assert copyright claims. (Doc. 13 at 3.) The Ortizes filed a reply (Doc. 14) and a subsequent
“Appeal for Review of Attorney Dolan’s Failed Attempts at Removal to Federal Court” (Doc.
17). This action arises out of certain scientific and paleontological activity that allegedly
occurred on the Ortizes’s property without their consent. The Ortizes bring claims of criminal
trespass, criminal theft, criminal possession and use of stolen property, conversion, nuisance, and
violation of the Fifth Amendment takings clauses. Upon reviewing the Notice of Removal (Doc.
1), I entered an Order to Show Cause directing the Defendants to explain certain procedural

defects in the removal. (Doc. 21.) As explained herein, I recommend that the Court deny the
motion to remand and the “appeal for review.”
Because the Ortizes are pro se litigants, I must construe their pleadings liberally and hold
them to a less stringent standard than is required of a party represented by counsel. See
Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir. 2008) (citing Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991)). Liberal construction requires courts to make some
allowance for a pro se litigant’s “failure to cite proper legal authority, his confusion of various
legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)
(quoting Hall, 935 F.2d at 1110) (alterations omitted). However, “the court cannot take on the
responsibility of serving as the litigant’s attorney in constructing arguments and searching the
record.” Id.
Removal of civil actions may be based on diversity jurisdiction, 28 U.S.C. § 1332, or
federal question jurisdiction, 28 U.S.C. § 1331, and is governed by 28 U.S.C. §§ 1441 and 1446.
Section 1441(a) provides that any civil action brought in state court, over which a federal district
court has original jurisdiction, may be removed by the defendant or defendants to the relevant
district court. Diversity jurisdiction under § 1332(a)(1) requires an amount in controversy in
excess of $75,000 and complete diversity of citizenship between plaintiffs and defendants.
Federal question jurisdiction under § 1331 exists whenever the “civil action[] aris[es] under the
Constitution, laws, or treaties of the United States.” “Federal jurisdiction is determined based on
the facts as they existed at the time the complaint was filed.” Ravenswood Inv. Co., L.P. v.
Avalon Corr. Servs., 651 F.3d 1219, 1223 (10th Cir. 2011) (citing Smith v. Sperling, 354 U.S. 91,
93 n.1 (1957)).

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Having reviewed the Defendants’ response to my Order to Show Cause, I will not
recommend remand for procedural defects. I note that the Defendants did not satisfactorily
establish that they complied with the procedural requirements of 28 U.S.C. § 1441. However,
procedural defects in removal are not jurisdictional and may be waived. Huffman v. Saul
Holdings Ltd. P’ship, 194 F.3d 1072, 1077 (10th Cir. 1999). The Ortizes did not address the 30day period for removal in their motion to remand and thus have waived the argument.
The Ortizes assert that this case should be remanded because the parties are all citizens of
the same state and because the Ortizes stipulate that the claim is worth less than $75,000, thus,
the Court lacks diversity jurisdiction. The Defendants compounded confusion by discussing the
$75,000 threshold in their Notice of Removal. (Doc. 1 at 2.)
While the Ortizes are correct that diversity jurisdiction does not exist in this case, that is
the wrong inquiry. The Notice of Removal was explicitly based on 28 U.S.C. § 1331 – federal
question jurisdiction – because of the Fifth Amendment takings clause allegation and a claim for
copyright violations. (Id.)
It does not appear from the face of the Complaint that the Ortizes in fact bring claims for
copyright violations. Instead, the Ortizes attached several exhibits to the Complaint, including a
handwritten note that says, “Note illegal copyright of Plaintiffs’ property” (Doc. 1-2 at 7),
another handwritten note that says, “Note illegality of copyright in respect to Plaintiffs’
property” (Doc. 1-2 at 13), and an underlined explanation that reads, “The [Defendants] have
gone so far as to claim copyright in Plaintiffs’ fossils, paleontological site and recent scientific
information derived thereof, even after being informed of the rightful property owners” (Doc. 12 at 11). None of these instances suggest that the Ortizes are pursing any remedy for copyright
violation or misappropriation of copyrighted material.

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Although the Ortizes did not bring a claim under copyright law, they did explicitly
invoke the takings clause of the Fifth Amendment. (Doc. 1-2 at 3); see Chicago, B. & Q.R. Co. v.
City of Chicago, 166 U.S. 226, 239 (1897) (incorporating the Fifth Amendment’s takings clause
to the states by operation of the Fourteenth Amendment; “[t]he conclusion of the court on this
question is that, since the adoption of the fourteenth amendment, compensation for private
property taken for public uses constitutes an essential element in ‘due process of law,’ and that
without such compensation the appropriation of private property to public uses, no matter under
what form of procedure it is taken, would violate the provisions of the federal constitution.”).
Because the Ortizes invoked the Constitution as a basis for their claim, the Court has subject
matter jurisdiction pursuant to 28 U.S.C. § 1331.
The Ortizes also suggest that the consent or unanimity requirements of 28 U.S.C. § 1446
have not been satisfied, and removal is therefore deficient. All defendants who had been properly
served “must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). While
the Defendants did not attach individually signed consent forms, defense counsel represents, on
penalty of Rule 11 sanctions, that the defendants concurred in removal. This is sufficient.
Because the Ortizes assert constitutional claims, and because the procedural defects in
removal are not jurisdictional, I recommend that the Court deny the motion to remand.
Additionally, I recommend that the Court construe the “Appeal for Review” as a
supplement to the motion to remand and deny the same.

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THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any
objections with the Clerk of the District Court within the fourteen-day period if that party
wants to have appellate review of the Proposed Findings and Recommended Disposition. If
no objections are filed, no appellate review will be allowed.

______________________________
William P. Lynch
United States Magistrate Judge

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.
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