Lucero v. United States of America

Filing 96

MEMORANDUM OPINION AND ORDER by Magistrate Judge Steven C. Yarbrough denying 92 Motion to Dismiss. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
THEODORE LUCERO and
VALERIE STEWARD,
Plaintiffs,
vs.

CIV 17-0634 SCY/JHR

THE UNITED STATE OF AMERICA and
PATRICIA HENRY,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING UNITED STATES OF
AMERICA’S MOTION TO DISMISS
THIS MATTER comes before the Court on Defendant United States of America’s
Motion to Dismiss the Claim Asserted By Valerie Steward, filed September 10, 2019. Doc. 92.
Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P 73(b), the parties have consented to me
serving as the presiding judge and entering final judgment. Docs. 3, 13, 14. Having considered
the arguments and all relevant authority, the Court denies Defendant United States’ Motion to
Dismiss.
BACKGROUND
This case arises from an automobile accident that occurred in Gallup, New Mexico on
December 28, 2015. Doc. 49 ¶ 35.1 On that day, Plaintiff Theodore Lucero proceeded through a
green light to make a left-hand turn when Defendant Patricia Henry, driving a Navajo Nation
police vehicle, ran a red light and struck Mr. Lucero’s vehicle. Doc. 49 ¶ 36. Plaintiff Lucero
filed suit in federal court on June 9, 2017 against only the United States of America under the

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The following allegations are taken from Plaintiffs’ operative complaint. The Court accepts
these allegations as true and recites them in a light most favorable to Plaintiffs.

Federal Tort Claims Act (“FTCA”). Doc. 1. He later amended his Complaint to add Patricia
Henry as a Defendant. Doc. 37. His wife, Valerie Steward, thereafter joined the lawsuit as a
Plaintiff. Doc. 49. The operative Complaint alleges seven counts: negligence (Count I) and
negligence per se (Count II) against both Defendants; negligent training and supervision (Count
III), vicarious liability (Count IV), and negligent retention (Count V) against Defendant United
States; and property damage (Count VI) and loss of consortium (Count VII, but labeled as Count
VIII) which are not specifically brought against either Defendant. See Doc. 49. Plaintiff Steward
brings only a claim for loss of consortium. See Doc. 49, ¶ 2 (“Plaintiff Valerie Steward . . .
brings her claims for loss of consortium injuries and damages that occurred on December 28,
2015 in Gallup, New Mexico, when Plaintiff Theodore Lucero was struck by a Navajo police
vehicle driven by Patricia Henry.”).
On January 29, 2019, Plaintiffs moved for summary judgment on the issue of liability.
Doc. 67. In response, Defendant United States argued that certain claims should be dismissed for
lack of subject matter jurisdiction. Doc. 71. The Court issued a Memorandum Opinion and Order
on July 3, 2019, granting in part Plaintiffs’ Motion for Summary Judgment. Doc. 88. In that
Order, that Court (1) dismissed without prejudice Plaintiff Lucero’s claims against Defendant
United States for failure to exhaust his administrative remedies; (2) found that Plaintiff Steward
properly exhausted her claim for loss of consortium; (3) denied Plaintiff Steward’s motion for
summary judgment; (4) denied Plaintiff Lucero’s motion for summary judgment against
Defendant Henry as to Count I: negligence; and (5) granted Plaintiff Lucero’s motion for
summary judgment against Defendant Henry as to Count II: negligence per se, based on
Defendant Henry’s act of leaving the scene of the accident. Doc. 88. Regarding Plaintiff
Lucero’s claims against the United States, the Court found that Mr. Lucero did not wait the

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required six months after submitting a request for reconsideration to the agency needed to deem
the claim denied before filing a lawsuit. Doc. 88 at. 7. Accordingly, the Court found that Plaintiff
Lucero failed to exhaust his administrative remedies and that it lacked subject matter jurisdiction
over his claims asserted against the United States. Doc. 88 at 11-12.
On April 18, 2019, prior to receiving a ruling on Plaintiffs’ Motion for Summary
Judgment, Defendant United States filed a Motion to Dismiss. Doc. 81. The United States made
similar arguments in the Motion to Dismiss as those it made in response to the Motion for
Summary Judgment. Compare Doc. 71, with Doc. 81. Accordingly, in its Order on Plaintiffs’
Motion for Summary Judgment, the Court denied without prejudice the Motion to Dismiss,
explaining that it would not require Plaintiffs to parse through which arguments the Court
addressed in its Order and which arguments are still pending. Doc. 88 at 21. However, the Court
noted that Defendant United States was free to file another motion to dismiss, within the case
management deadlines set by the Court, on any remaining issues. Doc. 88 at 22.
Defendant United States has now filed another motion to dismiss, seeking to dismiss the
only remaining claim against it, Plaintiff Steward’s loss of consortium claim. Plaintiff Steward,
who is currently proceeding pro se, Docs. 82, 84, did not respond, and the United States filed a
Notice of Completion of Briefing on September 29, 2019, Doc. 93. Although failure to respond
“in opposition to a motion within the time prescribed for doing so constitutes consent to grant the
motion,” D.N.M.LR-CIV 7.1(b), the Court will consider the United States’ motion on its merits.
See Wiatt v. State Farm Ins. Co., No. CIV 07-0526 JB/ KBM, 2008 WL 2229631, at *2 (D.N.M.
Mar. 24, 2008) (deciding a case on the merits instead of granting the motion as unopposed when
the defendant failed to respond according to local rule 7.1(b)).

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STANDARD OF REVIEW
Defendant United States moves to dismiss Plaintiff Steward’s loss of consortium claim
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can
be granted. “[T]o withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough
allegations of fact, taken as true, to state a claim to relief that is plausible on its face.” Khalik v.
United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A court considering a challenge under Rule 12(b)(6) may proceed
according to a “two-pronged approach.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, a
court “can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.” Id.
Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement to relief.” Id. For purposes
of this second prong, the Court “accept[s] the well-pled factual allegations in the complaint as
true, resolve[s] all reasonable inferences in the plaintiff’s favor, and ask[s] whether it is plausible
that the plaintiff is entitled to relief.” Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013)
(internal citations and quotation marks omitted). “A claim is facially plausible when the
allegations give rise to a reasonable inference that the defendant is liable.” Mayfield v. Bethards,
826 F.3d 1252, 1255 (10th Cir. 2016).
DISCUSSION
The United States asserts that Plaintiff Steward’s claim for loss of consortium is
dependent on Plaintiff Lucero’s FTCA claims and because the Court previously dismissed Mr.

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Lucero’s claims, it must also dismiss Ms. Steward’s claim. True, under New Mexico law,2 loss
of consortium claims are derivative of an injury to another person. Thompson v. City of
Albuquerque, 2017-NMSC-021, ¶ 9, 397 P.3d 1279. And “a plaintiff who sues for loss of
consortium damages must prove– as an element of loss of consortium damages– that the alleged
tortfeasor caused the wrongful injury or death of someone who was in a sufficiently close
relationship to the plaintiff, resulting in harm to the relationship.” Id. ¶ 14; see also Turpie v. Sw.
Cardiology Assoc., 1998-NMCA-042, ¶ 7, 944 P.2d 716 (“[T]he defendant must be at least
potentially liable to the injured spouse before it can be liable to the spouse seeking loss of
consortium damages.”). “However, this does not mean that the loss of consortium claim must
always be brought with the underlying tort claim, or that actual recovery for the underlying tort
is a prerequisite for the recovery of loss of consortium damages.” Thompson, 2017-NMSC-021,
¶ 14. Indeed, a plaintiff may bring a derivative claim for loss of consortium separate from the
underlying tort “because loss of consortium claimants suffer a direct injury separate from the
physical injury to another.” Id. ¶ 17. Accordingly, Plaintiff Steward may bring a stand-alone
claim for just loss of consortium.
To be successful on her claim, Plaintiff Steward must prove the underlying tort, i.e. that
Defendant Henry caused wrongful injury to Plaintiff Lucero. Had the Court dismissed Plaintiff
Lucero’s FTCA claims on the merits, such as finding that Mr. Lucero had not plead facts
sufficient to establish negligence, Plaintiff Steward’s claim would also fail because the Court

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“[T]he FTCA makes the United States liable on tort claims ‘in the same manner and to the
same extent as a private individual under like circumstances,’ 28 U.S.C. § 2674, and ‘in
accordance with the law of the place where the act or omission occurred,’ 28 U.S.C. § 1346(b).”
Franklin v. United States, 992 F.2d 1492, 1495 (10th Cir. 1993). Accordingly, the Court must
“resolve questions of liability under the FTCA in accordance with the law of the state where the
alleged tortious activity took place.” Id.
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would have already ruled on an element of loss of consortium. See, e.g., Amparan v. Lake Powell
Car Rental Co., 882 F.3d 943, 951 (10th Cir. 2018) (finding a loss of consortium claim also fails
when the plaintiff did not advance sufficient evidence to make out a prima facie case for the
underlying negligent entrustment claim); Sabeerin v. Fassler, No. 16-cv-497 JCH/LF, 2017 WL
5311647, at *8 (D.N.M. Nov. 13, 2017) (dismissing loss of consortium claims when the
plaintiffs had not plead facts demonstrating liability on the underlying claims). But that is not the
case here. Here, the Court did not address the merits of Plaintiff Lucero’s tort claims; instead, the
Court concluded that Plaintiff Lucero prematurely filed his lawsuit before exhausting all his
administrative remedies. Doc. 88 at 11-12.
Defendant United States cites Danforth v. Medtronic, No. CIV 08-432 BB/LFG, 2008
WL 11322213 (D.N.M. July 30, 2008) to support its argument that Plaintiff Steward’s derivative
loss of consortium claim must be dismissed because the Court dismissed Plaintiff Lucero’s
claims. In Danforth, the court dismissed nine counts of the plaintiffs’ complaint as time-barred
under the applicable statutes of limitation. Id. at *1. The court went on to dismiss plaintiffs’ loss
of consortium claim, finding that it was “entirely derivative of the other claims and will fail by
operation of law to the extent plaintiffs’ other claims fail.” Id. at *2. Danforth is distinguishable
because in the present case the Court has not decided that the underlying tort claim will fail.
Rather, the Court dismissed without prejudice Plaintiff Lucero’s FTCA claims because he
prematurely filed his lawsuit, thereby failing to exhaust his administrative remedies and
depriving the Court of jurisdiction over the claims. The Court also found that Plaintiff Steward
properly exhausted her administrative remedies for her loss of consortium claim, which
necessarily includes the underlying tort. The jurisdictional defect in Plaintiff Lucero’s claims

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does not impact the legal viability of the underlying tort when brought by Plaintiff Steward, who
properly exhausted her administrative remedies.
The case the United States cites out of the District of Connecticut does not undermine
this conclusion. In that case, the district court noted that, under Connecticut law, a loss of
consortium claim is “dependent for its assertion on the legal viability of the cause of action of the
injured party.” Doc. 92 at 6 (quoting Freeman v. United States, 166 F. Supp. 3d 215, 223 (D.
Conn. 2016)). In contrast, in New Mexico a loss of consortium claim “may be brought as an
independent claim . . . .” Thompson, 2017-NMSC-021, ¶ 7 (emphasis omitted). Accordingly, the
Court does not agree that Plaintiff Steward’s loss of consortium claim fails simply because it
dismissed Plaintiff Lucero’s claims for failure to exhaust.
The Court also finds that Plaintiff Steward has stated a claim for loss of consortium upon
which relief can be granted. The operative Complaint sufficiently pleads the underlying tort by
alleging that Defendant Henry, an on-duty Navajo police officer, ran a red light and struck
Plaintiff Lucero’s vehicle, causing damage to Plaintiff Lucero that includes loss of earnings, pain
and suffering, and loss of quality of life. Doc. 49 ¶¶ 35, 36, 45. The operative Complaint also
alleges that Plaintiff Steward, the wife of Plaintiff Lucero, has been “deprived of the
companionship, society, aid, association and comfort of her husband.” Doc. 49 ¶¶ 89-90. The
Court finds these allegations, assumed to be true, plausibly give rise to an entitlement of relief
for loss of consortium.

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CONCLUSION
For the above stated reasons United State of America’s Motion to Dismiss the Claim
Asserted by Valerie Steward (Doc. 92) is DENIED.

____________________________________
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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