Sanchez v. City of Belen et al

Filing 30

MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson GRANTING 14 Plaintiff's Motion to Remand to State Court; DENYING AS MOOT 4 Defendant City of Belen's Motion to Dismiss; DENYING AS MOOT 5 Defendant Estate of Michae l Esquibel's Motion to Dismiss; and DENYING AS MOOT 27 Plaintiff's Motion to Amend/Correct Complaint. Clerk of Court is hereby directed to remand this case to the Thirteenth Judicial District, County of Valencia, State of New Mexico. (mag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________
M. FELICIA SANCHEZ,
Plaintiff,
v.

Case No. 16cv01410 WJ/WPL

CITY OF BELEN, and
ESTATE OF MICHAEL ESQUIBEL,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND
And
DENYING OTHER PENDING MOTIONS AS MOOT
THIS MATTER comes before the Court upon the following motions:


Plaintiff’s Motion to Remand to State Court, filed January 27, 2017 (Doc. 14);



Plaintiff’s Motion to Amend/Correct Complaint, filed February 24, 2017 (Doc. 27);



Defendant City of Belen’s Motion to Dismiss, filed January 4, 2017 (Doc. 4); and



Defendant Estate of Michael Esquibel’s Motion to Dismiss, filed January 4, 2017 (Doc.
5).
Having reviewed the parties’ briefs and applicable law, the Court finds that Plaintiff’s

motion to remand is well-taken and, therefore, is GRANTED, and that the other motions are
denied as moot based on the Court granting Plaintiff’s motion to remand.
BACKGROUND
On September 7, 2016, Plaintiff filed this case in the Thirteenth Judicial District, County
of Valencia, State of New Mexico. Doc. 1-2. Defendants removed the case to federal court on
December 28, 2016, asserting federal question jurisdiction under 28 U.S.C. §1331. Plaintiff in

this case (hereinafter, “M.S.”) was at all relevant times a student at Belen Middle School and
Belen High School and alleges conduct on the part of Defendant Esquibel (“Defendant” for
purposes of this Order) which was inappropriate and harmful.1
DISCUSSION
In order to establish federal question jurisdiction, the federal question must be “presented
on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987). Except for narrow circumstances not present here, a case may not be removed
to federal court solely because of a defense or counterclaim arising under federal law. Topeka
Housing Auth. v. Johnson, 404 F.3d 1245, 1247 (10th Cir.2005); see also Holmes Group, Inc. v.
Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830-31 & n.2 (2002). Generally, the
presumption is “against removal jurisdiction.” Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th
Cir. 1995). The removing party has the burden to demonstrate the appropriateness of removal
from state to federal court. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189
(1936). Thus, doubtful cases must be resolved in favor of remand. “If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, it shall be remanded.”
28 U.S.C. § 1447(c) (emphasis added).
I.

Whether Remand is Proper
The complaint is captioned as a “Complaint for Personal Injuries” and contains a single

count brought under the New Mexico Tort Claims Act (“Tort Claims Act”), §41-4-12. Doc. 1-2.
This Count alleges that M.S. suffered personal injuries “resulting from the deprivation of M.S.’
Constitutional Rights” based on Defendant Esquibel’s actions in threatening and intimidating

1

The Court assumes that the named plaintiff in this lawsuit is a personal representative or next of kin, although the
complaint does not specify this. Plaintiff’s counsel should have identified exactly who is the named Plaintiff and her
relationship to M.S.

2

M.S. and removing her from class and unlawfully detaining her in his office at Belen Middle
School.
Defendants contend that while Plaintiff did not expressly cite to 42 U.S.C. §1983 in her
complaint, she nevertheless alleges federal claims in the following allegations:2
29. At all times material hereto, the City of Belen and Esquibel owed M.S. a duty
to act reasonably so as not to deprive her of her constitutional rights . . .
30. Esquibel’s conduct in using his position to threaten, intimidate and silence
M.S. from reporting the sexual abuse was a deprivation of her First
Amendment rights secured by the Constitution of the United States and the
State of New Mexico . . .
31. Esquibel’s conduct silenced M.S. from further attempts to report the sexual
abuse restraining her constitutionally protected speech.
Compl., Doc. 1-2, ¶¶29, 30 & 31 (emphasis added).
A plaintiff is considered to be the “master of the claim” since “he or she may avoid
federal jurisdiction by exclusive reliance on state law.” Garley v. Sandia Corp., 236 F.3d 1200,
1207 (10th Cir. 2001). Plaintiff insists that she is not alleging any federal claims. The question is
whether a federal question appears on the face of the complaint. While Defendant chooses to
focus on a few allegations that do reference the United States Constitution, Plaintiff points to
parts of the complaint showing that she has taken pains to avoid federal jurisdiction. The
complaint is captioned as a “Complaint for Personal Injuries” without any reference to or
mention of civil rights violations (Doc. 1, Ex. 2 at 1), and the Jurisdiction and Venue section is
limited to the waiver of immunity under the Tort Claims Act. The claims brought against the
Estate of Esquibel and the City of Belen are framed in the context of state tort law. For example,
the sole count asserts a claim brought under the Tort Claims Act and asserts vicariously liability
2

The City of Belen filed a response, in which Defendant Estate of Michael Esquibel joined. Docs. 18 & 24.
Esquibel killed himself before the investigation of this case was complete. See Doc. 42 at 2.

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against the City of Belen based on Defendant Esquibel’s conduct, which is available as a theory
under the Tort Claims Act but not against a governmental entity under 42 U.S.C. §1983.3
Plaintiff also claims that the references in the complaint to the “First Amendment” and the
“Constitution of the United States” are from the language enumerating the torts listed in §41-412 of the Tort Claims Act:
The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978
does not apply to liability for personal injury, bodily injury, wrongful death or
property damage resulting from assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, defamation of character,
violation of property rights or deprivation of any rights, privileges or immunities
secured by the constitution and laws of the United States or New Mexico
when caused by law enforcement officers while acting within the scope of their
duties.
§ 41-4-12. Liability; law enforcement officers (emphasis added). Plaintiff maintains that despite
the reference in the compliant to the “First Amendment of the Constitution of the United States,”
she is not actually asserting a federal claim under §1983. Instead, Plaintiff states that these
allegations support the second pleading requirement for state tort claims brought under the Tort
Claims Act, namely “that the plaintiff’s injuries arose out of either a tort enumerated in this
section or a deprivation of a right secured by law.” Malone v. Bd. of Cnty. Comm’rs for the Cnty.
of Dona Ana, No. CIV 15-0876 JB/GBW, 2016 WL 5400381 at * 58 (emphasis) (quoting
Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep’t, 1996-NMSC-021, ¶ 7 916 P.2d
1313)).
The language in §41-4-12 referring to “the constitution and laws of the United States”
does not refer to an enumerated tort but has been interpreted to mean that a plaintiff is not
prohibited from bringing an action for damages under the Tort Claims Act where the plaintiff
3

See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ([V]icarious liability is inapplicable to . . . § 1983 suits” (citing,
e.g., Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)); Dodds v. Richardson, 614 F.3d 1185, 1197 (10th Cir.
2010) (Although municipal liability for constitutional violations may exist under § 1983, it may not be premised on
a theory of respondeat superior.).

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also pursues, “by reason of the same occurrence or chain of events, an action against the same
government under §1983.” Benavidez v. Shutiva, 2015 NMCA-065, 350 P.3d 1234; Wells v.
Valencia County, 98 N.M. 3, 655 P.2d 517 (1982) (legislature did not make the Tort Claims Act
“the exclusive remedy for a constitutional violation” because common law tort rules “may not
provide a complete solution in every Section 1983 case”). So, while the language “constitution
. . . of the United States” means that a plaintiff is not precluded by the Tort Claims Act in
bringing a §1983 claim, neither is it meant to automatically invoke a federal basis for a §1983
claim.
Given the limited jurisdiction of federal courts, jurisdiction is presumed not to exist
absent proof by the party asserting jurisdiction. Penteco Corp. v. Union Gas Sys., Inc., 929 F.2d
1519, 1521 (10th Cir.1991). Federal jurisdiction does not happen by accident, but by the wellpleaded complaint. While §41-4-12 refers to federal constitutional rights, there is no reason to
believe that a plaintiff is required to engage in a talismanic recital of the complete language in a
particular section waiving a state’s sovereign immunity in the Tort Claims Act. Citing to the
provision and listing the facts should be sufficient, and Plaintiff’s inclusion of language referring
to the United States Constitution for pleading purposes was unnecessary, inartful and even
somewhat misleading, but in the context of the plain language in the rest of the complaint, does
not assert a federal claim.
The Court makes an observation that is not part of the “well-pleaded complaint” analysis,
but it is nevertheless helpful because it supports Plaintiff’s argument that the intent was to limit
this case to state claims. About a year prior to filing this lawsuit in state court, Plaintiff filed a
related case in federal court which is now pending in front of Chief Judge M. Christina Armijo,
M.S. v. Belen Consolidated School district et al., No. 15-CV-00912 MCA/SCY (“related case”).

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That case is styled as a “Complaint for Civil Rights Violations, Personal Injuries and Violations
of the New Mexico Tort Claims Act.” Id., Doc. 1. Counts I and II of that complaint allege claims
brought under the Tort Claims Act. Count II is brought under §41-4-12 and alleges that
Esquibel’s conduct “inflicted assaults and batteries upon M.S. “as well as deprived her of her
rights secured by the Constitution of the United States and New Mexico.” No. 15-CV-00912,
Doc. 1, ¶80.4 Counts III to VII in the related case plainly assert five federal claims under §1983,
such as substantive due process and equal protection under the Fourteenth Amendment and
municipal liability claims based on those alleged constitutional violations.
Count II in both cases assert claims brought under §41-4-12 of the Tort Claims Act,
except that Count II in the related case is based on conduct by Esquibel that is different from the
conduct described in the sole count in the instant case. However, Count II in the related case
includes the same language lifted from §41-4-12 stating that Esquibel’s conduct “deprived
[Plaintiff] of her rights secured by the Constitution of the United States and New Mexico.” Doc.
1, ¶80; Doc. 14 (Am. Compl.), ¶86. This comparison of the complaints in the instant case and
the related case supports Plaintiff’s position that she never intended to assert federal claims in
this lawsuit. Therefore, remand of this lawsuit is proper.
II.

Motion to Amend Complaint
A month after filing this motion to remand, Plaintiff subsequently filed a Motion to

Amend Complaint (Doc. 27) which “merely clarifies her claims so that there is no question that
Plaintiff is exclusively raising state tort claims against [Defendants].” Doc. 27 at 1, ¶5. The
attached proposed amended complaint makes changes to the complaint which removes the
references to the United States Constitution:

4

In the related case, Plaintiff has since amended the complaint to claims of battery and intentional infliction of
emotional distress. See Doc. 14.

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29. At all times material hereto, the City of Belen and Esquibel owed M.S. a duty
to act reasonably so as not to deprive her of her constitutional rights pursuant to
the New Mexico Constitution.
30. Esquibel’s conduct in using his position to threaten, intimidate and silence
M.S. from reporting the sexual abuse was a deprivation her of her state
constitutional rights secured by the Constitution of the State of New Mexico and
constituted assault, false imprisonment and false arrest pursuant to the New
Mexico Tort Claims Act.
31. Esquibel’s conduct silenced M.S. from further attempts to report the sexual
abuse restraining her constitutionally protected speech under the Constitution
of the State of New Mexico.
Proposed Am. Compl. (Doc. 27-1), ¶¶39, 30 & 31. However, an amended complaint does not
affect the analysis in determining whether federal jurisdiction exists, since jurisdiction is based
on the complaint at the time of filing. See Pfeiffer v. Hartford fire Ins. Co., 929 F.2d 1484, 1488
(10th Cir. 1991) (it is error to assume that a party may force remand of an action after its removal
from state court by amending the complaint to destroy the federal court's jurisdiction over the
action; instead, the propriety of removal is judged on the complaint as it stands at the time of the
removal) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939)). The Court has already
found that the original complaint does not assert a basis for federal jurisdiction, and so the
proposed amended complaint is gratuitous for that reason as well. Therefore, Plaintiff’s motion
to amend the complaint (Doc. 27) is denied as moot.
III.

Supplemental Claims
Having found that no basis for federal jurisdiction exists in this case, the Court will

remand the entire case. It is worth mentioning here for Defendants’ benefit, that had the Court
found federal jurisdiction to exist based on the initial complaint, the Court would have permitted
Plaintiff to amend the complaint to clarify the absence of federal claims, at which point the Court
would have declined to exercise supplemental jurisdiction over the remaining state law claims.

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See U.S. v. Botefuhr, 309 F.3d 1263, 1273-73 (10th Cir. 2002) (district court should normally
dismiss supplemental state law claims after all federal claims have been dismissed particularly
when those claims are dismissed before trial); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
357 (1988) (preference for remand “is especially strong when the federal question drops out of
the case shortly after removal”). Thus, this lawsuit would have been remanded eventually.
Here, however, the Court has found that federal jurisdiction never existed. Under 28
U.S.C. §1447(c), a case “shall be remanded” if “at any time before final judgment it appears that
the district court lacks subject matter jurisdiction . . . .”
CONCLUSION
In sum, the Court finds and concludes that subject matter jurisdiction does not exist over
this matter because Plaintiff’s complaint is brought entirely under state law, and the case will be
remanded. In light of this ruling, Plaintiff’s motion to amend is denied as moot.
Both the City of Belen and the Estate of Michael Esquibel have filed motions to dismiss
(Docs. 4 and 5). Both motions are denied as moot based on the Court’s findings herein.
THEREFORE,
IT IS ORDERED that Plaintiff’s Motion to Remand to State Court (Doc. 14) is hereby
GRANTED for reasons described in this Memorandum Opinion and Order; the CLERK OF
COURT IS HEREBY DIRECTED TO REMAND THIS CASE TO THE THIRTEENTH
JUDICIAL DISTRICT, COUNTY OF VALENCIA, STATE OF NEW MEXICO;
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend/Correct Complaint
(Doc. 27) is hereby DENIED as MOOT;
IT IS FURTHER ORDERED that Defendant City of Belen’s Motion to Dismiss (Doc.
4) is hereby DENIED as MOOT; and

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IT IS FINALLY ORDERED that Defendant Estate of Michael Esquibel’s Motion to
Dismiss (Doc. 5) is hereby DENIED as MOOT.

________________________________
UNITED STATES DISTRICT JUDGE

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