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

Filing 40

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning, adopting 23 the Magistrate Judge's Proposed Findings and Recommended Disposition, denying 10 the Plaintiffs' Motion to Remand Case to Fourth Judicial District Court in Las Vegas, New Mexico, denying 11 Plaintiffs' Argument Against Second Removal to United States District Court, Invalidation of Attorney Daniel R. Dolan's Defense, Appeal/Petition for Mediation, denying 24 the Plaintiffs' Respon se to Proposed Findings and Recommended Disposition, and Demand for Injunctive Relief of New Publications of New-Mexico Museum-of-Natural-History-Locality 1339 (Plaintiffs Property), denying 17 Plaintiffs' Appeal for Review of Attorney Do lan's Failed Attempts at Removal to Federal Court, denying 26 Plaintiffs' Motion to Remand to Fourth Judicial District Court in Las Vegas New Mexico, Demand for Discovery, Response to Defendants' (State's) Motion to Dismiss and denying 32 Plaintiffs' Motion for Judgement as a Matter of Law. The Court returns this matter to the Magistrate Judge for proposed findings and recommended disposition as to the four remaining motions. (meq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
HENRY ORTIZ and SOFIE ORTIZ,
Plaintiffs,
vs.

No. CIV 16-1396 JB/WPL

NEW MEXICO DEPARTMENT OF
CULTURAL AFFAIRS; NEW MEXICO
MUSEUM OF NATURAL HISTORY;
NEW MEXICO GEOLOGICAL SOCIETY;
ADRIAN HUNT; PHILIP HUBER;
SPENCER LUCAS; KAYE TOOLSON;
PHIL BIRCHEFF; D. BAIRD; K. KIETZKE;
ALLAN LERNER, and TOMAS ROMERO,
Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on: (i) the Magistrate Judge’s Proposed
Findings and Recommended Disposition, filed April 11, 2017 (Doc. 23)(“PFRD”); (ii) the
Plaintiffs’ Motion to Remand Case to Fourth Judicial District Court in Las Vegas, New Mexico,
filed January 5, 2017 (Doc. 10)(“First Motion to Remand”); (iii) the Plaintiffs’ Argument
Against Second Removal to United States District Court, Invalidation of Attorney Daniel R.
Dolan’s Defense, Appeal/Petition for Mediation, filed January 6, 2017 (Doc. 11)(“Second
Motion to Remand”); (iv) the Plaintiffs’ Response to Proposed Findings and Recommended
Disposition, and Demand for Injunctive Relief of New Publications of New-Mexico Museum-ofNatural-History-Locality

1339

(Plaintiffs’

Property),

filed

April

14,

2017

(Doc.

24)(“Objections”); (v) the Plaintiffs’ Appeal for Review of Attorney Dolan’s Failed Attempts at
Removal to Federal Court, filed February 3, 2017 (Doc. 17)(“Appeal for Review”); (vi) the

Plaintiffs’ Motion to Remand to Fourth Judicial District Court in Las Vegas New Mexico,
Demand for Discovery, Response to Defendants’ (State’s) Motion to Dismiss, filed July 7, 2017
(Doc. 26)(“Third Motion to Remand”); and (vii) the Plaintiffs’ Motion for Judgement [sic] as a
Matter of Law, filed August 7, 2017 (Doc. 32)(“Motion for JMOL”). Because the Court agrees
with the conclusion of the Honorable William P. Lynch, United States Magistrate Judge for the
District of New Mexico, the Court will adopt the PFRD, deny the First, Second, and Third
Motions to Remand, deny the Request for Injunctive Relief in the Objections, deny the Appeal
for Review, and deny the Plaintiffs’ Motion for JMOL.
FACTUAL AND PROCEDURAL BACKGROUND
This case presents a lengthy procedural history and complicated set of factual allegations
spanning nearly thirty years. The Court has done its best to distill these matters into a digestible
and comprehensible statement of the case. The Court draws its facts from the Plaintiffs,’ Petition
For Compensation For A Continuous Crime of Trespass and Theft of Private Paleontological
Property in the Form of Newly Discovered Fossils, Keeping Same, and Continually Publicizing
New Scientific Information Thereof, in Ortiz v. New Mexico Dept. of Cultural Affairs, et al., No.
D-412-CV-2016-00227, filed May 5, 2016 (Fourth Judicial District Court, County of San
Miguel, State of New Mexico), filed in federal court December 23, 2016 (D.N.M. Doc. 12)(“Complaint”), to provide a factual background. While the Court does not adopt the Plaintiffs’
factual allegations, the Court nonetheless accepts them as true for the limited purpose of deciding
the matters before it. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(clarifying the “tenet that a
court must accept as true all of the [factual] allegations contained in a complaint”)(alteration
added).

-2-

The Ortizes are siblings. They have each owned the same parcel of land in San Miguel
County, New Mexico, at different times during the events described below. See Complaint, ¶¶
1-3, at 1-2. Beginning in 1990, the Defendants “participated directly or indirectly in the removal
of fossils” from the Ortizes’ land. Complaint, ¶ 2, at 1. The Ortizes bring several claims: (i)
Count One is a claim for “[i]llegal trespass into real estate property owned by Plaintiffs,” in
which the Ortizes’ allege that workers and volunteers of the New Mexico Museum of Natural
History visited their property “on several occasions” “to do field research,” that these workers
and volunteers never obtained permission to be on the Ortizes’ land, and that the “study and
research” of fossils found on their land “constitute a carry over of theft and trespass because
fossils and study information were technically obtained through theft,” Complaint ¶ 5, at 2; (ii)
Count Two is a claim for “[t]heft of private property in the form of trace fossils,” and alleges that
the continued use and possession of fossils found on the Ortizes’ land constitutes a continuous
crime of possession of stolen property by the New Mexico Museum of Natural History,
Complaint ¶ 6, at 2; (iii) Count Three is a claim for “[t]he illegal and continued keeping and
utilization of stolen property, . . . namely fossils for study, publication and probable exhibition”
by the New Mexico Museum of Natural History. Complaint ¶ 7, at 3. Finally, (iv) the Ortizes
assert that the Takings Clause of the Fifth Amendment to the Constitution of the United States of
America applies to this case, based on allegations that the Ortizes’ were not justly compensated
for the taking of their property. Complaint ¶ 8, at 3.
LAW REGARDING FEDERAL QUESTION JURISDICTION
Federal courts have limited jurisdiction, and there is a presumption against the existence
of federal jurisdiction. See Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974). A federal district court has “original jurisdiction of all civil actions arising under the

-3-

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Whether a case arises
under a federal law is determined by the “well-pleaded complaint rule.” Franchise Tax Bd. Of
State of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 9
(1983)(“Franchise Tax Bd.”). When “a federal question is presented on the face of the plaintiff’s
properly pleaded complaint,” the case arises under federal law. Caterpillar, Inc. v. Williams, 482
U.S. 386, 392 (1987)(citing Gully v. First Nat’l Bank, 299 U.S. 109, 112-13 (1936)). This
determination is made by examining the plaintiff’s complaint, “unaided by anything alleged in
anticipation of avoidance of defenses which it is thought the defendant may interpose.” Franchise
Tax Bd., 463 U.S. at 10 (citing Taylor v. Anderson, 234 U.S. 74, 75-76 (1914)).
The Supreme Court of the United States has emphasized that “the mere presence of a
federal issue in a state cause of action does not automatically confer federal-question
jurisdiction.” Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813 (1986). See
Sandoval v. New Mexico Technology Group L.L.C., 174 F. Supp. 2d 1224, 1232 n.5 (D.N.M.
2001)(Smith, M.J.)(explaining that “Merrell Dow is the controlling law when invoking subject
matter jurisdiction” and when a right under state law turns on construing federal law). District
courts must exercise “prudence and restraint” when determining whether a state cause of action
presents a federal question, because “determinations about federal jurisdiction require sensitive
judgments about congressional intent, judicial power, and the federal system.” Merrell Dow
Pharmaceuticals, Inc. v. Thompson, 478 U.S. at 810.
In addition to the requirement that the federal question appear on the complaint’s face,
“plaintiff’s cause of action must either be (1) created by federal law, or (2) if it is a state-created
cause of action, ‘its resolution must necessarily turn on a substantial question of federal law.’”
Nicodemus v. Union Pacific Corp., 318 F.3d 1231, 1235 (10th Cir. 2003)(quoting Rice v. Office

-4-

of Servicemembers’ Group Life Ins., 260 F.3d 1240, 1245 (10th Cir. 2001)). If the resolution
turns on a substantial question of federal law, the federal question must also be “contested.”
Grable & Sons Metal Products Inc. v. Darue Engineering & Mfg., 545 U.S. 308, 313
(2005)(“Grable & Sons”). Finally, the exercise of federal-question jurisdiction must also be
“consistent with congressional judgment about the sound division of labor between state and
federal courts governing § 1331’s application.” Grable & Sons, 545 U.S. at 313. Particularly, the
Court must determine whether recognition of federal-question jurisdiction will federalize a
“garden variety” state-law claim that will result in the judiciary being bombarded with cases
traditionally heard in state courts. Grable & Sons, 545 U.S. at 318. See Bonadeo v. Lujan, No.
CIV 08-0812 JB/ACT, 2009 WL 1324119, at *7-9 (D.N.M. Apr. 30, 2009)(Browning, J.).
LAW REGARDING SUPPLEMENTAL JURISDICTION
The federal-question requirement does not prohibit the federal courts from ever hearing a
state-law claim.
Pendent jurisdiction, in the sense of judicial power, exists whenever there is a
claim “arising under [the] Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority . . . . ,” and the
relationship between that claim and the state claim permits the conclusion that the
entire action before the court comprises but one constitutional “case.” The federal
claim must have substance sufficient to confer subject matter jurisdiction on the
court. The state and federal claims must derive from a common nucleus of
operative fact. But if, considered without regard to their federal or state character,
a plaintiff’s claims are such that he would ordinarily be expected to try them all in
one judicial proceeding, then, assuming substantiality of the federal issues, there
is power in federal courts to hear the whole.
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)(“Gibbs”)(alterations
original)(quoting U.S. Const. art. III, § 2)(citing Levering & Garrigues Co. v. Morrin, 289 U.S.
103, 104 (1933)).

-5-

In considering supplemental state claims, the United States Court of Appeals for the
Tenth Circuit has followed the Supreme Court’s lead in classifying supplemental jurisdiction as a
matter of judicial discretion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp.,
379 F.3d 1161, 1165 (10th Cir. 2004)(citing City of Chicago v. Int’l College of Surgeons, 522
U.S. 156, 173 (1997); Gibbs, 383 U.S. at 726). Where supplemental jurisdiction may apply, the
district court retains discretion to decline to exercise that jurisdiction. See Estate of Harshman v.
Jackson Hole Mountain Resort Corp., 379 F.3d at 1165. The supplemental jurisdiction statute
enumerates four factors that the court should consider in determining whether to decline
jurisdiction:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
28 U.S.C. § 1367(c). 28 U.S.C. § 1367(c) changed the district courts’ supplemental jurisdiction
discretion analysis to prohibit courts from declining to exercise jurisdiction unless one of the
conditions of these four factors exists. See Mirzai v. State of N.M. Gen. Servs. Dep’t, 506 F.
Supp. 2d 767, 779 (D.N.M. 2007)(Browning, J.); Gudenkauf v. Stauffer Commc’ns, Inc., 896 F.
Supp. 1082, 1084 (D. Kan. 1995)(Crow, J.).
Nevertheless, in specific and narrow instances, some state issues must be left for the state
tribunal’s resolution.

In cases in which some of the causes of action in a complaint are

removable as claims “arising under the Constitution, laws, or treaties of the United States,” 28
U.S.C. § 1441(c)(1)(A), but other causes of action include “a claim not within the original or
-6-

supplemental jurisdiction of the district court, or a claim that has been made nonremovable by
statute, the entire action may be removed if the action would be removable without the inclusion
of the claim described [here].”

28 U.S.C. § 1441(c)(1)(B).

“Upon removal of an action

described in paragraph (1), the district court shall sever from the action all claims described in
paragraph (1)(B) and shall remand the severed claims to the State court from which the action
was removed.” 28 U.S.C. § 1441(c)(2). Wright and Miller explain that the statute
applies when a federal question claim, within the meaning of 28 U.S.C.A. § 1331,
is joined with a claim that is not itself such a federal question and that is not
within the supplemental jurisdiction of the federal courts -- which is to say that
the claim does not form part of the same case or controversy (under Article III of
the United States Constitution) as the federal question claim.

14B Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 3722.3, at 208
(2017 Supplement). They also note that “Section 1441(c) no longer authorizes removal where
jurisdiction over the anchor claim would be based on diversity jurisdiction.” 14B Charles Alan
Wright & Arthur Miller, Federal Practice and Procedure § 3722.3, at 219 (2017 Supplement).
LAW REGARDING REMOVAL TO FEDERAL COURT
“If a civil action filed in state court satisfies the requirements for original federal
jurisdiction, the defendant may invoke 28 U.S.C. § 1441(a) to remove the action to the federal
district court ‘embracing the place where such action is pending.’” Thompson v. Intel Corp., No.
CIV 12-0620, 2012 WL 3860748, at *4 (D.N.M. Aug. 27, 2012)(Browning, J.)(citing 28 U.S.C.
§ 1441(a)). See Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1076 (10th Cir. 1999).
The Defendants may remove a civil action to federal court where the district court would have
original jurisdiction over the case based upon diversity of citizenship. See Huffman v. Saul
Holdings Ltd. P’ship, 194 F.3d at 1076 (quoting Caterpillar Inc. v. Lewis, 519 U.S. 61, 68
(1996)). The Defendants may also remove a civil action to federal court based upon the district
-7-

court’s “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331.
1.

Removal’s Procedural Requirements.

Section 1446 of Title 28 of the United States Code governs the procedure for removal.
See 28 U.S.C. § 1446. “Because removal is entirely a statutory right, the relevant procedures to
effect removal must be followed.” Thompson v. Intel Corp., 2012 WL 3860748, at *5. A
removal which does not comply with the express statutory requirements is defective and must be
remanded to state court. See Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d at 1077. See also
Chavez v. Kincaid, 15 F. Supp. 2d 1118, 1119 (D.N.M. 1998)(Campos, J.)(“The [r]ight to
remove a case that was originally in state court to federal court is purely statutory, not
constitutional.”).
Section 1446(a) of Title 28 of the United States Code provides that a party seeking
removal of a matter to federal court shall file a notice of removal in the district and division
where the state action is pending, “containing a short and plain statement of the grounds for
removal, together with a copy of all process, pleadings, and orders served upon such defendant
or defendants in such action.” 28 U.S.C. § 1446(a). Such notice of removal is proper if filed
within thirty days from the date when the case qualifies for federal jurisdiction. See 28 U.S.C. §
1446(b); Caterpillar Inc. v. Lewis, 519 U.S. at 68-69. The Tenth Circuit has further elaborated
that, for the thirty-day period to begin to run, “this court requires clear and unequivocal notice
from the pleading itself, or a subsequent ‘other paper’” that federal jurisdiction is available. Akin
v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir. 1998). The Tenth Circuit specifically
disagrees with “[c]ases from other jurisdictions which impose a duty to investigate and
determine removability where the initial pleading indicates that the right to remove may exist.”

-8-

Akin v. Ashland Chem. Co., 156 F.3d at 1036. See Carrillo v. MCS Indus., Inc., 2012 WL
5378300, at *6-9.
2.

Amendment of the Notice of Removal.

In Caterpillar Inc. v. Lewis, the Supreme Court held that a defect in subject-matter
jurisdiction cured before entry of judgment did not warrant reversal or remand to state court. See
519 U.S. at 70-78. Similarly, citing Caterpillar Inc. v. Lewis, 519 U.S. at 77, the Tenth Circuit
has held that “a defect in removal procedure, standing alone, is not sufficient to warrant vacating
judgment and remand to state court if subject matter jurisdiction existed in the federal court.”
Browning v. Am. Family Mut. Ins. Co., 396 F. App’x 496, 505-06 (10th Cir.
2010)(unpublished)1 (citing Caterpillar Inc. v. Lewis, 519 U.S. at 77). In McMahon v. Bunn-OMatic Corp., 150 F.3d 651 (7th Cir. 1998), the United States Court of Appeals for the Seventh
Circuit noticed on appeal defects in the notice of removal, including that the notice failed to
properly allege diversity of citizenship. See 150 F.3d at 653 (“As it happens, no one paid
attention to subject-matter jurisdiction . . . .”). The Seventh Circuit permitted the defective
notice of removal to be amended on appeal to properly establish subject-matter jurisdiction. See
150 F.3d at 653-54.

1

Browning v. Am. Family Mut. Ins. Co. is an unpublished opinion, but the Court can rely
on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it.
See 10th Cir. R. 32.1(A), 28 U.S.C. (“Unpublished opinions are not precedential, but may be
cited for their persuasive value.”). The Tenth Circuit has stated: “In this circuit, unpublished
orders are not binding precedent, . . . and . . . citation to unpublished opinions is not favored . . . .
However, if an unpublished opinion . . . has persuasive value with respect to a material issue in a
case and would assist the court in its disposition, we allow a citation to that decision.” United
States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that Browning v.
Am. Family Mut. Ins. Co., Jenkins v. MTGLQ Investors, 218 F. App’x 719 (10th Cir.
2007)(unpublished), and Pevehouse v. Scibana, 229 F. App’x 795 (10th Cir. 2007)(unpublished)
have persuasive value with respect to a material issue, and will assist the Court in its disposition
of this Memorandum Opinion and Order.
-9-

The Tenth Circuit has allowed defendants to remedy defects in their petition or notice of
removal.

See Jenkins v. MTGLQ Investors, 218 F. App’x 719, 723 (10th Cir.

2007)(unpublished)(granting unopposed motion to amend notice of removal to properly allege
jurisdictional facts); Watkins v. Terminix Int’l Co., Nos. CIV 96-3053, 96-3078, 1997 WL
34676226, at *2 (10th Cir. May 22, 1997)(per curiam)(reminding the defendant that, on remand,
it should move to amend the notice of removal to properly allege jurisdictional facts); Lopez v.
Denver & Rio Grande W.R.R. Co., 277 F.2d 830, 832 (10th Cir. 1960)(“Appellee’s motion to
amend its petition for removal to supply sufficient allegations of citizenship and principal place
of business existing at the time of commencement of this action is hereby granted, and diversity
jurisdiction is therefore present.”).
The Tenth Circuit has further reasoned that disallowing amendments to the notice of
removal, even after the thirty-day removal window has expired, when the defendant made simple
errors in its jurisdictional allegations, “would be too grudging with reference to the controlling
statute, too prone to equate imperfect allegations or jurisdiction with the total absence of
jurisdictional foundations, and would tend unduly to exalt form over substance and legal flawpicking over the orderly disposition of cases properly committed to federal courts.” Hendrix v.
New Amsterdam Cas. Co., 390 F.2d 299, 301 (10th Cir. 1968). The Tenth Circuit noted that an
error in a jurisdictional allegation included failing to identify a corporation’s principal place of
business or referring to an individual’s state of residence rather than citizenship. Hendrix v. New
Amsterdam Cas. Co., 390 F.2d at 301. In McEntire v. Kmart Corp., No. CIV 09-0567, 2010 WL
553443 (D.N.M. Feb. 9, 2010)(Browning, J.), when faced with insufficient allegations in the
notice of removal -- allegations of “residence” not “citizenship” -- the Court granted the
defendants leave to amend their notice of removal to cure the errors in some of the “formalistic

- 10 -

technical requirements.” 2010 WL 553443, at *8 (citing Hendrix v. New Amsterdam Cas. Co.,
390 F.2d at 300-02). Further, in Thompson v. Intel Corp., the Court permitted the defendant,
Intel Corporation, to amend its notice of removal to include missing jurisdictional elements,
including evidence that its principal place of business and corporate headquarters -- the center of
Intel Corp.’s direction, control, and coordination of activities -- was out of state, so that the
diversity requirements were met. See 2012 WL 3860748, at *1.
There are limits to the defects which an amended notice of removal may cure, as
Professors Wright and Miller have explained:
[A]n amendment of the removal notice may seek to accomplish any of several
objectives: It may correct an imperfect statement of citizenship, state the
previously articulated grounds more fully, or clarify the jurisdictional amount. In
most circumstances, however, defendants may not add completely new grounds
for removal or furnish missing allegations, even if the court rejects the firstproffered basis of removal, and the court will not, on its own motion, retain
jurisdiction on the basis of a ground that is present but that defendants have not
relied upon.
14C Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 3733, at 651-659
(4th ed. 2009)(footnotes omitted). Professor Moore has similarly recognized: “[A]mendment
may be permitted after the 30-day period if the amendment corrects defective allegations of
jurisdiction, but not to add a new basis for removal jurisdiction.” 16 James William Moore,
Moore’s Federal Practice, § 107.30[2][a][iv], at 107-184 (3d ed. 2012). Thus, where diversity
jurisdiction is asserted as a basis for removal of an action to federal court, the district court may
permit the removing defendant to amend its removal notice, if necessary, to fully allege facts
which satisfy diversity jurisdiction’s requirements by a preponderance of the evidence. See
Carrillo v. MCS Indus., Inc., 2012 WL 5378300, at *6-9.

- 11 -

3.

Consideration of Post-Removal Evidence.

As the Court has previously explained, the Tenth Circuit looks to both evidence in the
complaint and submitted after the complaint in determining whether the criteria necessary for
removal are met. See Thompson v. Intel Corp., 2012 WL 3860748, at *8 (citing McPhail v.
Deere & Co., 529 F.3d at 956). The Tenth Circuit explained in McPhail v. Deere & Co. that a
district court may have evidence presented to it after a notice of removal has been filed, even if
produced at a hearing on subject-matter jurisdiction, to determine if the jurisdictional
requirements are met. See 529 F.3d at 953. “[B]eyond the complaint itself, other documentation
can provide the basis for determining the amount in controversy -- either interrogatories obtained
in state court before removal was filed, or affidavits or other evidence submitted in federal court
afterward.” McPhail v. Deere & Co., 529 F.3d at 956 (citing Meridican Secs. Ins. Co. v.
Sadowski, 441 F.3d 536, 541-42 (7th Cir. 2006), and Manguna v. Prudential Prop. & Cas. Ins.
Co., 276 F.3d 720, 723 (5th Cir. 2002)). As this Court has explained, “the Seventh Circuit, on
which the Tenth Circuit has heavily relied when addressing the amount in controversy, has
recognized that ‘events subsequent to removal may clarify what the plaintiff was actually
seeking when the case was removed.’” Aranda v. Foamex Int’l, 884 F. Supp. 2d 1186, 1208
(D.N.M. 2012)(Browning, J.)(quoting Carroll v. Stryker Corp., 658 F.3d 675, 681 (7th Cir.
2011)). Thus, when determining if the requirements for federal jurisdiction are met in a matter
removed from state court, a district court may consider evidence submitted after removal. See
Thompson v. Intel Corp., 2012 WL 3860748, at *14 (“[I]t is appropriate to consider postremoval evidence to determine whether subject-matter jurisdiction exists.”); Carrillo v. MCS
Indus., Inc., 2012 WL 5378300, at *6-9.

- 12 -

LAW REGARDING REMAND
If a defendant has removed a matter to federal court, the plaintiff may object to the
removal by filing a motion to remand the case to state court. See Caterpillar Inc. v. Lewis, 519
U.S. at 69. A defect in the removal procedure is one of the grounds for remand that 28 U.S.C. §
1447(c) specifies. See Moreno v. Taos County Bd. of Comm’rs, 778 F. Supp. 2d 1139, 1141
(D.N.M. 2001)(Johnson, J.); McShares, Inc. v. Barry, 979 F. Supp. 1338, 1341 (D. Kan.
1997)(Crow, J.)(citation omitted). Specifically, § 1447(c) provides that “[a] motion to remand
the case on the basis of any defect other than lack of subject matter jurisdiction must be made
within 30 days after the filing of the notice of removal under section 1446(a).” 28 U.S.C. §
1447(c). Lack of subject-matter jurisdiction is a second ground for remand specified in §
1447(c). Section 1447(c) provides that, “[i]f at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
LAW REGARDING DISMISSAL
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). A complaint’s
sufficiency 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)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the
alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561

- 13 -

F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept
as true all well-pleaded factual allegations in a complaint and view these allegations in the light
most favorable to the plaintiff.”)(quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.
2006)).
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.” Ashcroft v. Iqbal, 556 U.S. at 678. “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).” Bell Atl.
Corp v. Twombly, 550 U.S. at 555 (citation omitted).
To survive a motion to dismiss, 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 Bell Atl. Corp. v.
Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has
facial plausibility when the pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at
678 (citing Bell Atl. Corp. v. 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 United States Court
of Appeals for the Tenth Circuit has stated:

- 14 -

“[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. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(quoting Bell Atl. Corp. v.
Twombly, 550 U.S. at 570)(internal citations omitted).
In reviewing a pro se complaint, the court applies the same legal standards applicable to
pleadings that counsel drafts, but is mindful that the complaint must be liberally construed. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, “[t]he broad reading of the
plaintiff’s complaint does not relieve the plaintiff of alleging sufficient facts on which a
recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d at 1110.
[T]he [pro se] plaintiff whose factual allegations are close to stating a claim but
are missing some important element that may not have occurred to him, should be
allowed to amend his complaint. Nevertheless, conclusory allegations without
supporting factual averments are insufficient to state claim on which relief can be
based. This is so because a pro se plaintiff requires no special legal training to
recount the facts surrounding his alleged injury, and he must provide such facts if
the court is to determine whether he makes out a claim on which relief can be
granted. Moreover, in analyzing the sufficiency of the plaintiff’s complaint, the
court need accept as true only the plaintiff’s well-pleaded factual contentions, not
his conclusory allegations.
Hall v. Bellmon, 935 F.2d at 1110 (citations omitted).
LAW REGARDING INJUNCTIVE RELIEF
Injunctive relief is an “extraordinary remedy,” and the movant must demonstrate a “clear
and unequivocal right” to have a request granted. Leviton Mfg. Co., Inc. v. Nicor, Inc., Nos.
CIV 04-0424 JB/RHS, CIV 04-1295 JB/ACT, 2007 WL 505796 (D.N.M. Jan. 8,
2007)(Browning, J.)(citing Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10th
Cir. 2003)). The Supreme Court and the Tenth Circuit have explained that “[t]he purpose of a

- 15 -

preliminary injunction is merely to preserve the relative positions of the parties until a trial on the
merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). See Keirnan v.
Utah Transit Auth., 339 F.3d 1217, 1220 (10th Cir. 2003)(“In issuing a preliminary injunction, a
court is primarily attempting to preserve the power to render a meaningful decision on the
merits.”)(quoting Tri-State Generation & Transmission Ass’n v. Shoshone River Power, Inc.,
805 F.2d 351, 355 (10th Cir. 1986)). The Tenth Circuit has emphasized that “a preliminary
injunction is an extraordinary remedy, and thus the right to relief must be clear and
unequivocal.” Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1298 (10th Cir. 2006)(quoting
Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005))(internal brackets omitted).
To establish its right to a preliminary injunction, a moving party must demonstrate: (i) the
injunction is necessary to prevent irreparable harm; (ii) there is a substantial likelihood the
movant ultimately will prevail on the merits; (iii) the threatened injury to the movant outweighs
any harm the proposed injunction may cause the opposing party; and (iv) the injunction would
not be contrary to public policy. See Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1254-55
(10th Cir. 2006)(quoting Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1171 (10th Cir.
1998)). In the Tenth Circuit, “any modified test which relaxes one of the prongs for preliminary
relief and thus deviates from the standard test is impermissible.” Dine v. Citizens Against
Ruining our Env’t v. Jewell, 839 F.3d 1276, 1282 (10th Cir. 2016).
LAW REGARDING JUDGMENT ON THE PLEADINGS
“After the pleadings are closed -- but early enough not to delay trial -- a party may move
for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A rule 12(c) motion is designed to
provide a means of disposing of cases when the material facts are not in dispute between the
parties. See Kruzitis v. Okuma Mach. Tool, Inc., 40 F.3d 52, 54 (3d Cir. 1994)(“Under Rule

- 16 -

12(c), we will not grant judgment on the pleadings unless the movant clearly establishes that no
material issue of fact remains to be resolved and that he is entitled to judgment as a matter of
law.” (citation and internal quotation marks omitted)). A “[j]udgment on the pleadings should
not be granted unless the moving party has clearly established that no material issue of fact
remains to be resolved and the party is entitled to judgment as a matter of law.’” Park Univ.
Enters., Inc. v. Am. Cas. Co. of Reading, Pa., 442 F.3d 1239, 1244 (10th Cir. 2006)(citing
United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462
(8th Cir. 2000)). Claims dismissed pursuant to a motion under rule 12(c) are dismissed with
prejudice. See In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 209 (5th Cir. 2010).
“Any party may move for judgment on the pleadings if no material facts are in dispute
and the dispute can be resolved on both the pleadings and any facts of which the Court can take
judicial notice.” Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304 (citing Fed. R. Civ. P.
12(c)). A motion pursuant to rule 12(c) is generally treated in the same manner as a motion to
dismiss under rule 12(b)(6). See Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304 (citing
Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998)). A court will grant a
motion for a judgment on the pleadings if the pleadings demonstrate that the moving party is
entitled to judgment as a matter of law. See Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at
304.
A court considering a motion for judgment on the pleadings should “accept all facts
pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings
in favor of the same.” Park Univ. Enters. Inc. v. Am. Cas. Co. of Reading, Pa., 442 F.3d at 1244.
The court must view the facts presented in the pleadings and draw the inferences therefrom in the
light most favorable to the nonmoving party. See Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D.

- 17 -

at 304. All of the nonmoving parties’ allegations are deemed to be true, and all of the movants’
contrary assertions are taken to be false. See Nat’l Metro. Bank v. United States, 323 U.S. 454,
456-57 (1945); Ramirez v. Dep’t of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000); Freeman v.
Dep’t of Corr., 949 F.2d 360, 361 (10th Cir. 1991).
The same standards that govern a motion to dismiss under rule 12(b)(6) also govern a
motion for judgment on the pleadings under rule 12(c). See Atl. Richfield Co. v. Farm Credit
Bank, 226 F.3d 1138, 1160 (10th Cir. 2000). Under rule 12(b)(6), a court may 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). A complaint’s sufficiency is a question of law, and when
considering and addressing a rule 12(b)(6) motion, a court must accept as true all of the
complaint’s well-pleaded factual allegations, view those allegations in the light most favorable to
the nonmoving party, and draw all reasonable inferences in the plaintiff’s favor. See Moore v.
Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006); Hous. Auth. of Kaw Tribe v. City of Ponca City,
952 F.2d 1183, 1187 (10th Cir. 1991).
A complaint challenged by a rule 12(b)(6) motion to dismiss does not require detailed
factual allegations, but a plaintiff’s obligation to set forth the grounds of his or her entitlement to
relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “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).” Bell Atl.
Corp. v. Twombly, 550 U.S. at 555 (citation omitted). “[T]he Supreme Court recently . . .

- 18 -

prescribed a new inquiry for us to use in reviewing a dismissal: whether the complaint contains
‘enough facts to state a claim to relief that is plausible on its face.’” Ridge at Red Hawk, LLC v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(quoting Bell Atl. Corp. v. Twombly, 550 U.S.
at 558, 562). “The [Supreme] Court explained that a plaintiff must ‘nudge his claims across the
line from conceivable to plausible’ in order to survive a motion to dismiss.” Ridge at Red Hawk,
LLC v. Schneider, 493 F.3d at 1177 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at
570)(alterations omitted). “Thus, the mere metaphysical possibility that some plaintiff could
prove some set of facts in support of the pleaded claims is insufficient; the complaint 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 at 1177. The Tenth
Circuit has stated:

“[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.
This requirement of plausibility serves not only to weed out claims that do
not (in the absence of additional allegations) have a reasonable prospect of
success, but also to inform the defendants of the actual grounds of the claim
against them. “Without some factual allegation in the complaint, it is hard to see
how a claimant could satisfy the requirement of providing not only ‘fair notice’ of
the nature of the claim, but also ‘grounds’ on which the claim rests.” Bell Atl.
Corp. v. Twombly, 127 S. Ct. at 1965 n.3. See Airborne Beepers & Video, Inc. v.
AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007)(“[A]t some point the
factual detail in a complaint may be so sketchy that the complaint does not
provide the type of notice of the claim to which the defendant is entitled under
Rule 8.”). The Twombly Court was particularly critical of complaints that
“mentioned no specific time, place, or person involved in the alleged
conspiracies.” 127 S. Ct. at 1971 n.10. Given such a complaint, “a defendant
seeking to respond to plaintiffs’ conclusory allegations . . . would have little idea
where to begin.” Id.
Robbins v. Oklahoma, 519 F.3d at 1247-48 (footnote and citations omitted).
- 19 -

In determining the complaint’s sufficiency, all well-pleaded factual allegations are to be
taken as true. See Timpanogos Tribe v. Conway, 286 F.3d 1195, 1204 (l0th Cir. 2002).
“Nevertheless, conclusory allegations without supporting factual averments are insufficient to
state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d at 1110. “Moreover, in
analyzing the sufficiency of the plaintiff’s complaint, the court need accept as true only the
plaintiff’s well-pleaded factual contentions, not his conclusory allegations.” Hall v. Bellmon,
935 F.2d at 1110. Only well-pleaded facts, as distinguished from conclusory allegations, are
admitted when considering a motion to dismiss for failure to state a claim upon which relief can
be granted. See Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001).
A court must convert a motion to dismiss into a motion for summary judgment if
“matters outside the pleading are presented to and not excluded by the court,” and “all parties . . .
[are] given reasonable opportunity to present all material made pertinent to such a motion by
Rule 56.” Fed. R. Civ. P. 12(d). Facts subject to judicial notice may be considered without
converting a motion to dismiss into a motion for summary judgment. See Grynberg v. Koch
Gateway Pipeline Co., 390 F.3d 1276, 1279 n.1 (10th Cir. 2004)(citing 27A Federal Procedure,
Lawyers’ Ed. § 62:520 (2003)). Furthermore, when considering a motion to dismiss, “the court
is permitted to take judicial notice of its own files and records, as well as facts which are a matter
of public record.” Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated
on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001). A court may
consider documents to which the complaint refers if the documents are central to the plaintiff’s
claim and the parties do not dispute the documents’ authenticity. See Jacobsen v. Deseret Book
Co., 287 F.3d 936, 941-42 (10th Cir. 2002). If, however, a complaint does not reference or attach
a document, but the complaint refers to the document and the document is central to the

- 20 -

plaintiff’s claim, the defendant may submit an “indisputably authentic copy to the court to be
considered on a motion to dismiss.” GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d
1381, 1384 (10th Cir. 1997). See 5A Charles Alan Wright & Arthur Miller, Federal Practice &
Procedure § 1327, at 438-39 (3d ed. 2004)(“[W]hen the plaintiff fails to introduce a pertinent
document as part of her pleading . . . the defendant may introduce the document as an exhibit to a
motion attacking the sufficiency of the pleading.”).
LAW REGARDING JUDGMENT AS A MATTER OF LAW
Rule 50(a) of the Federal Rules of Civil Procedure provides for judgment as a matter of
law. The rule states:
(1) In General. If a party has been fully heard on an issue during a jury trial and
the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a
claim or defense that, under the controlling law, can be maintained or
defeated only with a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be made at any time
before the case is submitted to the jury. The motion must specify the judgment
sought and the law and facts that entitle the movant to the judgment.
Fed. R. Civ. P. 50(a).
Judgment as a matter of law is proper where “a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)(1). This standard for a
directed verdict mirrors the standard for summary judgment. See Anderson v. Liberty Lobby,
477 U.S. 242, 250 (1986)(concluding “that this [rule 56] standard mirrors the standard for
directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must

- 21 -

direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the
verdict.”)(internal citation omitted); Wiles v. Michelin No. America, Inc., 173 F.3d 1297, 1303
(10th Cir. 1999)(“We review the district court’s ruling on a motion for JMOL under a standard
that is essentially identical to the ‘genuine issue’ requirement in the summary judgment
context.”)(internal citation omitted). A court may grant judgment as a matter of law, however,
even though it has denied summary judgment, because the parties have been able to address all
relevant,

available

evidence.

See

Lee

v.

Glassing,

51

F.

App’x

31,

32

(2d Cir. 2002)(unpublished).
In determining whether to grant judgment as a matter of law, a court may not weigh the
evidence or make its own credibility determination, see Shaw v. AAA Eng’g. & Drafting, 213
F.3d 519, 529 (10th Cir. 2000), and must draw all reasonable inferences in the nonmoving
party’s favor, see Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 941 (10th Cir. 1994).
Such a judgment is warranted if the evidence permits only one rational conclusion.

See

Crumpacker v. Kan. Dep’t of Human Res., 474 F.3d 747, 751 (10th Cir. 2007). In other words,
“‘[t]he question is not whether there is literally no evidence supporting the [nonmoving] party
. . . but whether there is evidence upon which the jury could properly find [for that party].’”
Century 21 Real Estate Corp. v. Merj Int’l Inv. Corp., 315 F.3d 1271, 1278 (10th Cir.
2003)(alterations in original)(quoting Hurd v. Am. Hoist & Derrick Co., 734 F.2d 495, 499 (10th
Cir. 1984)).
LAW REGARDING PROPOSED FINDINGS AND RECOMMENDATIONS
District courts may refer dispositive motions to a Magistrate Judge for a
recommended disposition.

See Fed. R. Civ. P. 72(b)(1)(“A magistrate judge must

promptly conduct the required proceedings when assigned, without the parties’ consent, to

- 22 -

hear a pretrial matter dispositive of a claim or defense . . . .”).

Rule 72(b)(2) governs

objections: “Within 14 days after being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the proposed findings and
recommendations.” Finally, when resolving objections to a Magistrate Judge’s proposal, “[t]he
district judge must determine de novo any part of the magistrate judge’s disposition that has
been properly objected to. The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C. § 636 provides:
A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1).
“‘The filing of objections to a magistrate’s report enables the district judge to focus
attention on those issues -- factual and legal -- that are at the heart of the parties’ dispute.’”
United States v. One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, and
Contents, 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel”)(quoting Thomas v. Arn, 474 U.S.
140, 147 (1985)). As the Tenth Circuit has noted, “the filing of objections advances the
interests that underlie the Magistrate’s Act,2 including judicial efficiency.” One Parcel, 73
F.3d at 1059 (citing Niehaus v. Kan. Bar Ass’n, 793 F.2d 1159, 1165 (10th Cir. 1986);
United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)).
The Tenth Circuit h a s held “that a party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
2

28 U.S.C. §§ 631 to -39.
- 23 -

review by the district court or for appellate review.” One Parcel, 73 F.3d at 1060. “To further
advance the policies behind the Magistrate’s Act, [the Tenth Circuit], like numerous other
circuits, have adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely
objections to the magistrate’s findings or recommendations waives appellate review of both
factual and legal questions.’” One Parcel, 73 F.3d at 1059 (citations omitted). In addition to
requiring specificity in objections, the Tenth Circuit has stated that “[i]ssues raised for the first
time in objections to the magistrate judge’s recommendation are deemed waived.” Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). See United States v. Garfinkle, 261 F.3d 1030,
1031 (10th Cir. 2001)(“In this circuit, theories raised for the first time in objections to the
magistrate judge’s report are deemed waived.”). In an unpublished opinion, the Tenth Circuit
stated that “the district court correctly held that [a petitioner] had waived [an] argument by
failing to raise it before the magistrate.” Pevehouse v. Scibana, 229 F. App’x 795, 796 (10th
Cir. 2007)(unpublished).
In One Parcel, the Tenth Circuit, in accord with other courts of appeals, expanded the
waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060.
The Supreme Court -- in the course of approving the United States Court of Appeals for the
Sixth Circuit’s use of the waiver rule -- noted:
It does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings. The House and Senate Reports
accompanying the 1976 amendments do not expressly consider what sort of
review the district court should perform when no party objects to the magistrate’s
report. See S. Rep. No. 94-625, pp. 9-10 (1976)(hereafter Senate Report); H.
R. Rep. No. 94-1609, p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p.
6162 (hereafter House Report). There is nothing in those Reports, however, that
demonstrates an intent to require the district court to give any more consideration
to the magistrate’s report than the court considers appropriate. Moreover, the
Subcommittee that drafted and held hearings on the 1976 amendments had before
it the guidelines of the Administrative Office of the United States Courts
- 24 -

concerning the efficient use of magistrates. Those guidelines recommended to the
district courts that “[w]here a magistrate makes a finding or ruling on a motion or
an issue, his determination should become that of the district court, unless specific
objection is filed within a reasonable time.” See Jurisdiction of United States
Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in
Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st
Sess., 24 (1975)(emphasis added)(hereafter Senate Hearings). The Committee
also heard Judge Metzner of the Southern District of New York, the chairman of a
Judicial Conference Committee on the administration of the magistrate system,
testify that he personally followed that practice. See id., at 11 (“If any objections
come in, . . . I review [the record] and decide it. If no objections come in, I
merely sign the magistrate’s order.”). The Judicial Conference of the United
States, which supported the de novo standard of review eventually incorporated in
§ 636(b)(1)(C), opined that in most instances no party would object to the
magistrate’s recommendation, and the litigation would terminate with the judge’s
adoption of the magistrate’s report. See Senate Hearings, at 35, 37. Congress
apparently assumed, therefore, that any party who was dissatisfied for any reason
with the magistrate’s report would file objections, and those objections would
trigger district court review. There is no indication that Congress, in enacting
§ 636(b)(1)(C), intended to require a district judge to review a magistrate’s report
to which no objections are filed. It did not preclude treating the failure to object
as a procedural default, waiving the right to further consideration of any sort. We
thus find nothing in the statute or the legislative history that convinces us that
Congress intended to forbid a rule such as the one adopted by the Sixth Circuit.
Thomas v. Arn, 474 U.S. at 150-52 (emphasis in original)(footnotes omitted).
The Tenth Circuit also noted, “however, that ‘[t]he waiver rule as a procedural bar need
not be applied when the interests of justice so dictate.’” One Parcel, 73 F.3d at 1060 (quoting
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)(“We join those circuits that have
declined to apply the waiver rule to a pro se litigant’s failure to object when the magistrate’s
order does not apprise the pro se litigant of the consequences of a failure to object to findings and
recommendations.” (citations omitted))). Cf. Thomas v. Arn, 474 U.S. at 154 (noting that,
while “[a]ny party that desires plenary consideration by the Article III judge of any issue
need only ask,” a failure to object “does not preclude further review by the district judge, sua
sponte or at the request of a party, under a de novo or any other standard”). In One Parcel, the
Tenth Circuit noted that the district judge had decided sua sponte to conduct a de novo review

- 25 -

despite the lack of specificity in the objections, but the Tenth Circuit held that it would deem
the issues waived on appeal because it would advance the interests underlying the waiver
rule. See 73 F.3d at 1060-61 (citing cases from other circuits where district courts elected to
address merits despite potential application of waiver rule, but circuit courts opted to enforce
waiver rule).
Where a party files timely and specific objections to the Magistrate Judge’s
proposed findings and recommendation, on “dispositive motions, the statute calls for a de
novo determination, not a de novo hearing.” United States v. Raddatz, 447 U.S. 667, 674
(1980). “[I]n providing for a ‘de novo determination’ rather than de novo hearing, Congress
intended to permit whatever reliance a district judge, in the exercise of sound judicial
discretion, chose to place on a magistrate’s proposed findings and recommendations.” United
States v. Raddatz, 447 U.S. at 676 (quoting 28 U.S.C. § 636(b) and citing Mathews v.
Weber, 423 U.S. 261, 275 (1976)). The Tenth Circuit requires a “district court to consider
relevant evidence of record and not merely review the magistrate judge’s recommendation”
when conducting a de novo review of a party’s timely, specific objections to the Magistrate
Judge’s report. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “When objections are made
to the magistrate’s factual findings based on conflicting testimony or evidence . . . the
district court must, at a minimum, listen to a tape recording or read a transcript of the
evidentiary hearing.” Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987).
A district court must “clearly indicate that it is conducting a de novo determination”
when a party objects to the Magistrate Judge’s report “based upon conflicting evidence or
testimony.” Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet 28
U.S.C. § 636(b)(1)’s requirements when it indicates that it gave “considerable deference to the

- 26 -

magistrate’s order.” Ocelot Oil Corp. v. Sparro Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). A
district court need not, however, “make any specific findings; the district court must merely
conduct a de novo review of the record.” Garcia v. City of Albuquerque, 232 F.3d 760, 766
(10th Cir. 2000). “[T]he district court is presumed to know that de novo review is required.
Consequently, a brief order expressly stating the court conducted de novo review is sufficient.”
Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996)(citing In re Griego, 64 F.3d
at 583- 84). “[E]xpress references to de novo review in its order must be taken to mean it
properly considered the pertinent portions of the record, absent some clear indication
otherwise.” Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722, 724 (10th Cir. 1993).
The Tenth Circuit has previously held that a district court properly conducted a de novo review
of a party’s evidentiary objections when the district court’s “terse” order contained one
sentence for each of the party’s “substantive claims” and did “not mention his procedural
challenges to the jurisdiction of the magistrate to hear the motion.”

Garcia v. City of

Albuquerque, 232 F.3d at 766. The Tenth Circuit has explained that brief district court orders
that “merely repeat[] the language of § 636(b)(1) to indicate its compliance” are sufficient to
demonstrate that the district court conducted a de novo review:
It is common practice among district judges in this circuit to make such a
statement and adopt the magistrate judges’ recommended dispositions when they
find that magistrate judges have dealt with the issues fully and accurately and that
they could add little of value to that analysis. We cannot interpret the district
court’s statement as establishing that it failed to perform the required de novo
review.
In re Griego, 64 F.3d at 584.
Notably, because “Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and
recommendations,” United States v. Raddatz, 447 U.S. at 676 (emphasis omitted), a district court

- 27 -

“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate,” 28 U.S.C. § 636(b)(1). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d
at 724-25 (holding that the district court’s adoption of the Magistrate Judge’s “particular
reasonable-hour

estimates”

is

consistent

with

the

de

novo

determination

that

28 U.S.C. § 636(b)(1) and United States v. Raddatz require).
Where no party objects to the Magistrate Judge’s proposed findings and
recommended disposition, the Court has, as a matter of course and in the interests of
justice, reviewed the Magistrate Judge’s recommendations. In Pablo v. Soc. Sec. Admin., No.
CIV 11-0132 JB/ACT, 2013 WL 1010401 (D.N.M. February 27, 2013)(Browning, J.), the
plaintiff failed to respond to the Magistrate Judge’s proposed findings and recommended
disposition, and thus waived his right to appeal the recommendations, but the Court
nevertheless conducted a review. 2013 WL 1010401, at *1, *4. The Court generally does
not, however, “review the PF&RD de novo, because the parties have not objected thereto,
but rather review[s] the recommendations to determine whether they are clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion.” Pablo v. Soc. Sec. Admin.,
2013 WL 1010401, at *4. The Court, thus, does not determine independently what it would
do if the issues had come before the Court first, when there is no objection, but rather
adopts the proposed findings and recommended disposition where “‘the Court cannot say
that the Magistrate Judge’s recommendation . . . is clearly erroneous, arbitrary, obviously
contrary to law, or an abuse of discretion.’” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at
*3 (footnote and internal brackets omitted)(quoting Workheiser v. City of Clovis, No. CIV 120485 JB/GBW, 2012 WL 6846401, at *3 (D.N.M. December 28, 2012)(Browning, J.)). See
Alexandre v. Astrue, No. CIV 11-0384 JB/SMV, 2013 WL 1010439, at *4 (D.N.M. February

- 28 -

27, 2013)(Browning, J.)(“The Court rather reviewed the findings and recommendations . . . to
determine if they are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion. The Court determines that they are not, and will therefore adopt the PFRD.”);
Trujillo v. Soc. Sec. Admin., No. CIV 12-1125 JB/KBM, 2013 WL 1009050, at *5 (D.N.M.
February 28, 2013)(Browning, J.)(adopting the proposed findings and conclusions, and noting:
“The Court did not review the ARD de novo, because Trujillo has not objected to it, but rather
reviewed the . . . findings and recommendation to determine if they are clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion, which they are not.”). This
review, which is deferential to the Magistrate Judge’s work when there is no objection,
nonetheless provides some review in the interest of justice, and seems more consistent with the
waiver rule’s intent than no review at all or a full-fledged review. Accordingly, the Court
considers this standard of review appropriate. See Thomas v. Arn, 474 U.S. at 151 (“There is
nothing in those Reports, however, that demonstrates an intent to require the district court to give
any more consideration to the magistrate’s report than the court considers appropriate.”). The
Court is reluctant to have no review at all if it must sign its name at the bottom of the order
adopting the Magistrate Judge’s proposed findings and recommendations.
ANALYSIS
The Ortizes concede, repeatedly, that they bring a claim under the Fifth Amendment
Takings Clause, although they seem to misunderstand the import of such a claim. See, e.g.,
Objections at 2 (“A Petition asking for payment of property removed by state workers . . . is not
a federal issue. . . .”). Although the Ortizes disagree, a claim for payment of property removed
by state workers is a federal issue and is a claim brought under the Fifth Amendment Takings
Clause. The Ortizes assert no clear or colorable objection to the PFRD’s recommendation that

- 29 -

the Court should deny the Motion to Remand. The Court has reviewed the PFRD and agrees with
Judge Lynch that the Ortizes bring a claim under the Takings Clause. Accordingly, the Court
adopts the recommendation that the Court should deny the First Motion to Remand. The Court
also denies the Ortizes’ Second and Third Motions to Remand.
The Court construes the Plaintiffs’ “Appeal for Review” as a supplement to the Plaintiffs’
Motion to Remand. This “Appeal for Review” “reiterate[s] previous arguments as presented in
Documents, 10, 11, 12, 13, and 14 inclusive of Motion to Remand.” Appeal for Review at 1.
The Appeal for Review still fails, however, to acknowledge that a claim under the Takings
Clause is a federal question. The Court thus denies the Appeal for Review for the same reasons
as it does the First, Second, and Third Motions to Remand.
In their Objections, the Ortizes demand “Injunctive Relief of New Publications of New
Mexico Museum of Natural History Locality 1339 (Plaintiff’s Property).” Objections at 3. The
Court construes this request as a motion for a preliminary injunction. The Ortizes did not
address any of the four relevant factors.
It is well established that in order to obtain a preliminary injunction, the moving
party must establish four factors: (1) it will suffer irreparable harm if the
injunction is not granted, (2) its threatened injury outweighs the harm caused to
the opposing party as a result of the injunction, (3) the injunction is not adverse to
the public interest, and (4) it has a substantial likelihood of success on the merits
of the case.
Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th. Cir.
2004).
The Ortizes’ only argument is that the New Mexico Museum of Natural History’s
publications inaccurately represent the trace fossil site allegedly found on the Ortizes’ property.
See Objections at 3. It is unclear how this request constitutes “irreparable harm.” Dominion
Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d at 1260. Additionally, the Ortizes
- 30 -

make no showing that they are likely to prevail on the merits, that the claimed injury outweighs
the harm an injunction would cause the Defendants, or that an injunction would not be contrary
to public policy. The Court, therefore, will deny the motion for a preliminary injunction without
prejudice to refile if the circumstances change.
The Ortizes also filed a motion for judgment as a matter of law. It is unclear whether the
Ortizes meant to bring this motion pursuant to rule 50(a) of the Federal Rules of Civil Procedure
or as a motion for judgment on the pleadings pursuant to rule 12(c) of the Federal Rules of Civil
Procedure. To the extent that the Ortizes bring this motion under rule 50(a) of the Federal Rules
of Civil Procedure, the Court also denies the motion because there has been no jury trial in this
matter and thus, by its terms, Rule 50(a) is inapplicable to this case at this time.
Similarly, to the extent Plaintiffs bring this Motion as one for judgment on the pleadings,
the Court will deny it. A “[j]udgment on the pleadings should not be granted ‘unless the moving
party has clearly established that no material issue of fact remains to be resolved and the party is
entitled to judgment as a matter of law.’” Park Univ. Enters., Inc. v. Am. Cas. Co. of Reading,
Pa., 442 F.3d 1239, 1244 (10th Cir. 2006)(citing United States v. Any & All Radio Station
Transmission Equip., 207 F.3d 458, 462 (8th Cir. 2000)). Here, Plaintiffs’ Motion fails to clearly
establish that no material issue of fact remains to be resolved. Instead, the Motion contains
unclear arguments regarding spoliation and copyright issues. See Motion for JMOL at 1-2.
Further, Defendants allege that “Plaintiff uses clearly false attachments to . . . his Motion (Doc.
32).” State of New Mexico Defendants’ Response to Plaintiffs’ Motion For Judgment as a
Matter of Law and Defendants’ Motion to Strike False Statements And Manufactured Evidence,
at 1, filed August 22, 2017 (Doc. 35). Plaintiffs have thus not clearly established that no material
issue of fact exists. The Court will deny the Motion.

- 31 -

IT IS ORDERED that: (i) the Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed April 11, 2017 (Doc. 23), is adopted; (ii) the Plaintiffs’ Motion to Remand
Case to Fourth Judicial District Court in Las Vegas, New Mexico, filed January 5, 2017
(Doc. 10), is denied; (iii) Plaintiffs’ Argument Against Second Removal to United States
District Court, Invalidation of Attorney Daniel R. Dolan’s Defense, Appeal/Petition for
Mediation, filed January 6, 2017 (Doc. 11), is denied; (iv) the Plaintiffs’ Response to Proposed
Findings and Recommended Disposition, and Demand for Injunctive Relief of New Publications
of New-Mexico Museum-of-Natural-History-Locality 1339 (Plaintiffs’ Property), filed April 14,
2017 (Doc. 24), is denied; (v) the Plaintiffs’ Appeal for Review of Attorney Dolan’s Failed
Attempts at Removal to Federal Court, filed February 3, 2017 (Doc. 17), is denied; (vi) the
Plaintiffs’ Motion to Remand to Fourth Judicial District Court in Las Vegas New Mexico,
Demand for Discovery, Response to Defendants’ (State’s) Motion to Dismiss, filed July 7, 2017
(Doc. 26), is denied; and (vii) the Plaintiffs’ Motion for Judgement [sic] as a Matter of Law, filed
August 7, 2017 (Doc. 32), is denied. The Court returns this matter to the Magistrate Judge for
proposed findings and recommended disposition as to the four remaining motions: (i) the State
Defendants’ Motion to Dismiss, filed June 30, 2017 (Doc. 25); (ii) the New Mexico Geological
Society’s Notice of Completion of Briefing for its Motion to Dismiss, filed July 12, 2017 (Doc.
27); (iii) the Plaintiffs’ Submission and Application of the Delayed Discovery Rule, filed July
25, 2017 (Doc. 31); and (iv) the State Defendants’ Motion to Strike Plaintiffs’ “Notice and
Application of the Delayed Discovery Rule,” filed August 9, 2017 (Doc. 33).

________________________________
UNITED STATES DISTRICT JUDGE

- 32 -

Counsel:
Henry Ortiz and Sophie Ortiz
Ribera, New Mexico
Pro se Plaintiffs
Daniel R. Dolan II
Dolan & Associates, P.C.
Albuquerque, New Mexico
Attorneys for Defendants New Mexico Department of Cultural Affairs, New Mexico
Museum of Natural History, Adrian P. Hunt, Spencer G. Lucas, Kaye Toolson, Philip
Huber, Phil Bircheff, D. Baird, K. Kietzke, and Allan Lerner
Stuart Butzier
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Albuquerque, New Mexico
Attorneys for Defendant New Mexico Geological Society
Tomas Romero
Ribera, New Mexico
Pro se Defendant

- 33 -