CNSP, Inc. v. City of Santa Fe

Filing 51

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales denying 17 Plaintiff's Motion to Strike Defendant City of Santa Fe's Rule 12(b)(1) Motion to Dismiss, Motion to Dismiss Plaintiff's Claims for Violations of the New Mexico Constitution, and Motion to Dismiss for Failure to States a Claim. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CNSP, INC. D/B/A NMSURF,
Plaintiff,
vs.

Civ. No. 17-355 KG/SCY

CITY OF SANTA FE,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon “Plaintiff’s Motion to Strike Defendant City of
Santa Fe’s Rule 12(b)(1) Motion to Dismiss, Motion to Dismiss Plaintiff’s Claims for Violations
of the New Mexico Constitution, and Motion to Dismiss for Failure to State a Claim” (Motion to
Strike), filed April 13, 2017. (Doc. 17). Defendant filed a response on April 17, 2017, and
Plaintiff filed a reply on April 19, 2017. (Docs. 19 and 20). Having considered the Motion to
Strike and accompanying briefing, the Court denies the Motion to Strike.
A. Relevant Procedural Background
On March 22, 2017, Plaintiff served its complaint and summons on Defendant. (Doc. 6).
Rather than serving an answer to the complaint within 21 days of being served the complaint and
summons, Defendant filed three Fed. R. Civ. P. 12(b) motions to dismiss: one on March 28,
2017, and two on April 11, 2017. (Docs. 7, 13, and 14). See Fed. R. Civ. P. 12(b) (allows
defendants to file a Rule 12(b) motion instead of filing answer).
In the first motion to dismiss (Motion to Dismiss One), Defendant moves for dismissal of
the entire action under Rule 12(b)(1) asserting that the Court lacks federal subject matter
jurisdiction. (Doc. 7). In the second motion to dismiss (Motion to Dismiss Two), Defendant

moves to dismiss state claims under Rule 12(b)(1), 12(b)(6) (failure to state a claim upon which
relief can be granted), or Rule 12(b)(7) (failure to join an indispensable party). (Doc. 13).
Finally, in the third motion to dismiss (Motion to Dismiss Three), Defendant moves to dismiss
federal claims under Rule 12(b)(6). (Doc. 14).
B. Discussion
Plaintiff makes two arguments in support of its Motion to Strike. Plaintiff argues first
that the Court should strike Motion to Dismiss Two and Motion to Dismiss Three under Rule
12(g)(2). Second, Plaintiff argues that the Court should dismiss all three motions to dismiss,
which collectively total 46 pages, because D.N.M.LR-Cv 7.5 limits a motion to 27 pages.
1. Rule 12(g)(2)
Rule 12(g)(2) states:
Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under [Rule 12]
must not make another motion under [Rule 12] raising a defense or objection that was
available to the party but omitted from its earlier [Rule 12] motion.
Plaintiff correctly contends that Defendant’s Rule 12(b) arguments in Motion to Dismiss Two
and Motion to Dismiss Three were available to Defendant at the time Defendant filed Motion to
Dismiss One. Defendant asserts, however, that Rule 12(g)(2) does not bar Motion to Dismiss
Two and Motion to Dismiss Three, because those motions are excepted under Rule 12(h)(2) and
(3).
Rule 12(h)(2) allows a defendant to raise a Rule 12(b)(6) defense of “[f]ailure to state a
claim upon which relief can be granted” and a Rule 12(b)(7) defense of failure “to join a person
required by Rule 19(b)” either in a Fed. R. Civ. P. 7(a) pleading, in a Rule 12(c) motion for
judgment on the pleadings, or “at trial.” Rule 12(h)(3) states that “[i]f a court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action.”

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a. Defendant’s Successive Rule 12(b)(1) Assertions
Defendant raises Rule 12(b)(1) assertions of lack of subject matter jurisdiction in both
Motion to Dismiss One and Motion to Dismiss Two. Rule 12(h)(3) clearly allows the Court to
consider subject matter jurisdiction issues at any time. Hence, the Court may consider the Rule
12(b)(1) assertion raised in Motion to Dismiss Two.
b. Defendant’s Successive Rule 12(b)(6) Assertions
Defendant raises Rule 12(b)(6) assertions of failure to state a claim upon which relief can
be granted in Motion to Dismiss Two and Motion to Dismiss Three. Although Rule 12(h)(2)
states that a party can raise successive Rule 12(b)(6) assertions in only three ways, i.e., in a Rule
7(a) pleading, in a Rule 12(c) motion for judgment on the pleadings, or “at trial,” the Tenth
Circuit has recognized that “district courts have struggled with the question of whether a party
may raise a previously available argument in a successive motion to dismiss for failure to state a
claim under Rule 12(b)(6) before first filing a responsive pleading.” Albers v. Bd. of Cty.
Comm'rs of Jefferson Cty., Colo., 771 F.3d 697, 702 (10th Cir. 2014). The Tenth Circuit
resolved this question by simply considering a successive Rule 12(b)(6) motion to dismiss as a
Rule 12(c) motion for judgment on the pleadings. Id. at 704 (finding that defendant could have
presented Rule 12(b)(6) argument in Rule 12(c) motion); Brokers' Choice of Am., Inc. v. NBC
Universal, Inc., 861 F.3d 1081, 1102 (10th Cir. 2017) (reasoning that district court’s
consideration of successive Rule 12(b)(6) “motion was proper under Rule 12(g)(2) and Rule
12(h)(2) because the court could have considered the motion as a motion for judgment on the
pleadings under Rule 12(c).”). After all, courts evaluate a Rule 12(b)(6) motion to dismiss under
the same standard that governs a Rule 12(c) motion for judgment on the pleadings. Jacobsen v.
Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002) (citing Atl. Richfield Co. v. Farm

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Credit Bank, 226 F.3d 1138, 1160 (10th Cir. 2000)). Rules 12(g)(2) and 12(h)(2), therefore, do
not preclude the Court from considering Defendant’s successive Rule 12(b)(6) assertions raised
in Motion to Dismiss Two and Motion to Dismiss Three so long as the Court evaluates those
assertions under Rule 12(c). See In re Opus E., L.L.C., 480 B.R. 561, 569 (Bankr. D. Del. 2012)
(finding that many courts permit “successive motions to dismiss to avoid unnecessary delays”
because they believe “hypertechnical approach [to Rules 12(g)(2) and 12(h)(2)] does not make
sense”); F.T.C. v. Innovative Mktg., Inc., 654 F. Supp. 2d 378, 383–84 (D. Md. 2009) (“a
permissive reading [of Rules 12(g) and 12(h)(2)] has been justified as comporting with the
general spirit of the rules and as promoting the interests of efficiency”).
c. Defendant’s Rule 12(b)(7) Assertion
Defendant raises its Rule 12(b)(7) assertion of failure to join an indispensable party for
the first time in Motion to Dismiss Two. In the Tenth Circuit, “[t]he issue of indispensability,
generally, is not waivable, and is one which courts have an independent duty to raise sua
sponte.” Symes v. Harris, 472 F.3d 754, 760 (10th Cir. 2006). In other words, “the issue of
indispensability can be raised at any time.” Mescalero Apache Tribe v. State of N.M., 131 F.3d
1379, 1383 (10th Cir. 1997). Considering this Tenth Circuit law, the Court must analyze
Defendant’s Rule 12(b)(7) assertion raised in Motion to Dismiss Two.
In sum, Rule 12(g)(2) does not foreclose the Court from deciding Motion to Dismiss Two
and Motion to Dismiss Three.
2. Violation of Local Rule 7.5
As an initial matter, the Court notes that the Federal Rules of Civil Procedure do not
provide for motions to strike motions, briefs, or memoranda. Ysais v. New Mexico Judicial
Standard Comm'n, 616 F. Supp. 2d 1176, 1184 (D.N.M. 2009), aff'd sub nom. Ysais v. New

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Mexico, 373 F. App'x 863 (10th Cir. 2010) (observing that Rule 12(f) applies only to striking
material contained in pleading such as complaint, answer, counterclaim, or crossclaim). A court,
nonetheless, has the discretion to strike a filing, including a motion, when it does not comply
with local rules. Id. (citing among other cases In re Hopkins, 162 F.3d 1173, 1998 WL 704710,
*3 n. 6 (10th Cir.) (holding that district court had discretion to strike party’s briefs which “were
non-complying”)). Here, each individual motion to dismiss complies with the page limitations
set forth in Local Rule 7.5. Following Ysais, the Court finds that Plaintiff’s request to strike the
three motions to dismiss for collectively violating Local Rule 7.5 is not well-taken.
IT IS ORDERED that “Plaintiff’s Motion to Strike Defendant City of Santa Fe’s Rule
12(b)(1) Motion to Dismiss, Motion to Dismiss Plaintiff’s Claims for Violations of the New
Mexico Constitution, and Motion to Dismiss for Failure to State a Claim” (Doc. 17) is denied.

_____________________________________
UNITED STATES DISTRICT JUDGE

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