Quintana v. State of New Mexico Department of Health
Filing
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MEMORANDUM OPINION AND ORDER by Magistrate Judge Jerry H. Ritter dismissing this case WITHOUT PREJUDICE (see Order for specifics). All pending Motions are denied as MOOT. (mlt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SHANNON QUINTANA,
Plaintiff,
v.
CIV 17-1142 JHR/LF
STATE OF NEW MEXICO
DEPARTMENT OF HEALTH,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court sua sponte and on Defendant’s Motion to Dismiss (Doc.
14), filed January 24, 2018. For the reasons stated below, the Court concludes that it lacks
subject-matter jurisdiction over this case and, therefore, will dismiss this case without prejudice
and deny Defendant’s Motion as moot.
BACKGROUND
As stated in the Complaint and supplements thereto, see Docs. 1, 3, 8, & 10, Plaintiff
Shannon Quintana was the proprietor of Bad Ass Sandwich Company, located in Santa Fe, New
Mexico, until his reputation was ruined after he agreed to cater a holiday luncheon for the
Defendant, the Department of Health for the State of New Mexico, in December 2016. Doc. 10
at 1. Without delving into the minutia of the Complaint, the facts are as follows: Plaintiff was
hired to cater the event in question in November, 2016. Id. at 1. Plaintiff was hired despite the
fact that he does not have a catering license and did not regularly cater events, a fact that he
made known to Defendant. Id. at 2. Additionally, none of the food items requested by Defendant
were on Plaintiff’s regular menu. Id. In order to keep certain hot items at the proper temperature,
Plaintiff requested and was permitted access to the on-site kitchen in advance of the event. Id. On
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the day of the event, however, Plaintiff was denied access to the on-site kitchen. Id. at 3.
Nonetheless, Plaintiff set up and served the food that he had prepared. Id. at 4.
A few days later Plaintiff got “slapped” with a permit violation from the New Mexico
Environmental Department for serving food without a catering license. Id. at 5. More
importantly, he was called by a Department of Health staffer who reported that a few Department
employees complained of stomach aches after the event. Id. at 5. Ultimately, the Department
reported to the news media that seventy-one employees reported food poisoning and
gastrointestinal issues linked to the food from Plaintiff’s restaurant. Id. at 11. Plaintiff
vehemently asserts that these claims are false.
As such, Plaintiff claims that the Department knowingly and purposely destroyed his
reputation and business by its negligence in preparing for the holiday event, and through
misstatements to the media thereafter. Id. at 10. On November 15, 2017, he filed a “Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983.” Doc. 1. In this Complaint, Plaintiff brought
negligence and defamation claims against the Department and various employees. Id. at 7, 17,
19. As jurisdictional grounds, Plaintiff cited 28 U.S.C. § 1343(3), 42 U.S.C. § 1983, and 28
U.S.C. § 1346(b). As amended, Plaintiff’s Complaint purports to bring a negligence claim related
to the Department’s handling of the event under the Federal Tort Claims Act and the New
Mexico Tort Claims Act, slander/libel claims stemming from its statements to the media
thereafter, and a claim for defamation of character.
Defendant moved to dismiss the case on various grounds, including that none of its
employees were acting under color of state law, that it is not a “person” subject to suit under 42
U.S.C. § 1983, that the Federal Tort Claims Act does not apply to state entities, and, in a
footnote, that this Court does not have subject matter jurisdiction over Plaintiff’s claims under
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the New Mexico Tort Claims Act. The Court ultimately agrees that it does not have subject
matter jurisdiction over this case.
ANALYSIS
Under Federal Rule of Civil Procedure 12(h)(3), “[i]f the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P.
12(h)(3). “Insofar as subject-matter jurisdiction is concerned, it has long been recognized that a
federal court must, sua sponte, satisfy itself of its power to adjudicate in every case and at every
stage of the proceedings and the court is not bound by the acts or pleadings or the parties.”
Tafoya v. U.S. Dept. of Justice, 748 F.2d 1389, 1390 (10th Cir. 1984) (citation omitted). The
existence of subject matter jurisdiction is a threshold inquiry which must precede any meritsbased determination. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998).
Unlike the state district court in New Mexico, “[f]ederal courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). As the party seeking to
invoke the jurisdiction of this Court, Plaintiff bears the burden of alleging facts that support
jurisdiction. See Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013) (“Since federal courts
are courts of limited jurisdiction, we presume no jurisdiction exists absent an adequate showing
by the party invoking federal jurisdiction.”) (quoted authority omitted). Federal subject-matter
jurisdiction is generally premised upon diversity of the parties or the presence of a federal
question. See 28 U.S.C. §§ 1331, 1332. However, neither appears to be present here.
A) Diversity Jurisdiction
Federal courts may have jurisdiction where parties are citizens of different states and the
amount in controversy exceeds $75,000.00. See generally 28 U.S.C. § 1332. Because Plaintiff’s
Complaint was filed on a court form, he did not assert diversity jurisdiction. However, diversity
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does not appear to exist, as Plaintiff is a citizen and resident of the State of New Mexico, and he
is suing a state entity. See Depex Reina 9 P’ship v. Texas Intern. Petroleum Corp., 897 F.2d 461,
463 (10th Cir. 1990) (Under Section 1332, the plaintiff must be “of a different citizenship from
all parties on the other side of the litigation[.]”). Thus, Section 1332 cannot be relied upon as a
basis for jurisdiction.
B) Federal Question Jurisdiction
Pursuant to 28 U.S.C. § 1331, “[t]he district courts . . . have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §
1331. Under this statute, “federal question jurisdiction must appear on the face of a plaintiff’s
well-pleaded complaint.” Martinez v. United States Olympic Comm., 802 F.2d 1275, 1280 (10th
Cir. 1986) (citations omitted). “The complaint must identify the statutory or constitutional
provision under which the claim arises, and allege sufficient facts to show that the case is one
arising under federal law.” Id. “Merely alleging that ‘federal questions are involved’ is
insufficient to convert what appears to be a common-law negligence claim into a federal
question.” Id. “[T]he complaint must identify the statutory or constitutional provision under
which the claim arises, and allege sufficient facts to show that the case is one arising under
federal law.” Sac & Fox Nation v. Cuomo, 193 F.3d 1162, 1165-66 (10th Cir. 1999) (quoted
authority omitted).
Here, Plaintiff relied upon a form Section 1983 Complaint which states that
“[j]urisdiction is invoked pursuant to 28 U.S.C. § 1343(3), 42 U.S.C. § 1983.” Doc. 1 at 2. The
form further invites a plaintiff to write in “different or additional statutes” if he seeks to invoke
them. Id. Plaintiff wrote in “28 U.S.C. § 1346(b) FTCA – Federal Tort Claims Act[.]” Id.
Unfortunately, Plaintiff’s claims do not fit within these statutes.
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First, the Court does not have jurisdiction over Plaintiff’s claims under 28 U.S.C. § 1343
or 42 U.S.C. § 1983. Section 1343(a)(3) provides that
[t]he district courts shall have original jurisdiction of any civil action authorized
by law to be commenced by any person . . . [t]o redress the deprivation . . . of any
right, privilege or immunity secured by the Constitution of the United States or by
any Act of Congress providing for equal rights of citizens or of all persons within
the jurisdiction of the United States[.]
28 U.S.C. § 1343(a)(3). Likewise, Section 1983 provides:
[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress….
42 U.S.C. § 1983. The Court would ordinarily have federal question jurisdiction over this case if
these statutes applied. However, there are no allegations that Defendant deprived Plaintiff of any
right, privilege or immunity secured by the Constitution or any federal law. See Baker v.
McCollan, 443 U.S. 137, 140 (1979) (deprivation of a right “secured by the Constitution and
[federal] laws” is a “threshold requirement of § 1983”). Rather, Plaintiff brings only commonlaw claims for negligence, slander/libel, and defamation.
Nor can Plaintiff’s claims be brought under the Federal Tort Claims Act. See 28 U.S.C. §
2674. Under the Act, the “United States shall be liable . . . in the same manner and to the same
extent as a private individual under like circumstances[.]” Id. (emphasis added). Put simply,
Defendant and its employees are not subject to the Federal Tort Claims Act because they are not
federal agencies or employees. See 28 U.S.C. § 2671 (defining federal agency and employee);
see, e.g., Whayne v. City of Topeka, 959 F. Supp. 1373, 1375 (D. Kan. 1997) (“Although the
district court does have federal question jurisdiction to decide claims properly related to the
FTCA, Mr. Whayne has provided no facts to support any allegation that the Shawnee County
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District Court or any of its employees are federal agencies or employees subject to the FTCA.”).
As such, this Court does not have jurisdiction under 28 U.S.C. § 1346(b), which confers
“exclusive jurisdiction of civil actions on claims against the United States[.]” Id.
Finally, insofar as the Department of Health is an agency of the State of New Mexico, it
is likely that the Eleventh Amendment provides it with immunity from a suit for damages. See
Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002), cert. denied, 123 S.Ct. 1908 (2003)
(“an assertion of Eleventh Amendment immunity concerns the subject matter of the district
court”). “The eleventh amendment generally bars lawsuits in federal court seeking damages
against states as well as against state agencies, departments, and employees acting in their
official capacity.” Bishop v. John Doe 1, 900 F.2d 809, 810 (10th Cir. 1990) (citation omitted).
Granted, “[u]nder its Tort Claims Act, the State of New Mexico has consented to suits against its
entities and employees acting within the scope of their duty for enumerated unintentional torts. . .
. But that consent is limited to actions commenced in the state district courts.” Id. (citing NMSA
1978, § 41-4-18(A)). As stated in Section 41-4-18(A): “[e]xclusive original jurisdiction for any
claim under the Tort Claims Act shall be in the district courts of New Mexico.” Id. (emphasis
added). Thus, to the extent that Plaintiff brings his claims under the New Mexico Tort Claims
Act, those claims are “relegated to the state district court[.]” Bishop, 900 F.2d at 810; see, e.g.,
Encinias v. New Mexico Highlands Univ., CIV 12-0835 WJ/KBM, 2012 WL 13076200, *5
(D.N.M. 2012) (“[E]ven where there is a waiver of sovereign immunity under the Tort Claims
Act, claims based on that waiver cannot be brought or heard in federal court.”).
CONCLUSION
The Court lacks subject matter jurisdiction over this case. Accordingly, this matter must
be dismissed without prejudice pursuant to Rule 12(h)(3) of the Federal Rules of Civil
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Procedure. See Kelly v. Wilson, 426 F. App’x 629, 633 (10th Cir. 2011) (unpublished) (“A
dismissal for lack of subject matter jurisdiction must be without prejudice because ‘the court,
having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition
on the merits of the underlying claims.’”) (quoting Brereton v. Bountiful City Corp., 434 F.3d
1213, 1216 (10th Cir. 2006)). Accordingly, the Court will enter a judgment of dismissal without
prejudice.
SO ORDERED.
____________________________________
Jerry H. Ritter
United States Magistrate Judge
Presiding by Consent
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