Ortega v. New Mexico Legal Aid, Inc. et al

Filing 63

ORDER ADOPTING 58 REPORT AND RECOMMENDATIONS by District Judge Martha Vazquez; OVERRULING 59 Objections, filed by Siempre Unidos En Progreso, UAW Local 2320 International United Auto Workers; and DENYING 60 Motion for Extension of Time to File. See Order for Specifics. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MINA ORTEGA,
Plaintiff,
vs.

USDC Civ. No. 18-111 MV/KK

NEW MEXICO LEGAL AID, INC.;
ED MARKS; SIEMPRE UNIDOS EN
PROGRESO; UAW LOCAL 2320
INTERNATIONAL UNITED AUTO
WORKERS; DONIS BORKS; GORDON
DEANE; ALICIA CLARK; AFL-CIO,
Defendants.
ORDER OVERRULING UNION DEFENDANTS’ OBJECTIONS TO
MAGISTRATE JUDGE’S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION
THIS MATTER is before the Court on (1) Defendants Union, Borks, Deane and Clark’s
Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to Federal Rule of Civil Procedure
12(b)(6), filed on April 24, 2018 (Doc. 15); (2) the Motion to Dismiss Plaintiff’s Claims Against
New Mexico Legal Aid & Ed Marks and Memorandum Brief in Support, filed on April 24, 2018
(Doc. 16); (3) the Motion to Dismiss Plaintiff’s Claims Against Ed Marks, Individually and as
Director of New Mexico Legal Aid, Inc., and Memorandum Brief in Support, filed on April 24,
2018 (Doc. 17); (4) Plaintiff’s Motion for Leave to File Surreply to NMLA Defendants’ Motion
to Dismiss Plaintiff’s Amended Complaint (Doc. 52) filed on August 6, 2019); (5) the Magistrate
Judge’s Proposed Findings and Recommended Disposition (PFRD) (Doc. 58) filed on February
27, 2019; (6) Union Defendants’ Objection to Magistrate’s Proposed Findings and Recommended
Disposition Concerning Union Defendants’ Motion to Dismiss (Doc. 59) filed on March 13, 2019;
and (7) Plaintiff’s Motion for Extension of Time (Doc. 60) filed on March 18, 2019.

The Court, having considered the record and the relevant law, finds that the Union
Defendants’ Objections are not well taken and shall be overruled. The Court will adopt the
Magistrate Judge’s PFRD. The Court also concludes that Plaintiff has failed to demonstrate good
cause in support of her Motion for Extension of Time, which shall be denied accordingly.
I.

Introduction1

On August 3, 2018, this Court issued an Order of Reference referring this case to United
States Magistrate Judge Kirtan Khalsa for a recommended disposition. (Doc. 51.) The Magistrate
Judge filed a PFRD (Doc. 58) pursuant to the Order of Reference on February 27, 2019,
recommending that: (1) Defendants Union, Borks, Deane and Clark’s Motion to Dismiss
Plaintiff’s Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 15)
should be Granted insofar as it seeks dismissal of Plaintiff’s claims against Donis Borks, Alicia
Clark, and Gordon Deane in their individual capacities; and it should be Denied to the extent that
it seeks dismissal of Plaintiff’s claim that the Union breached its duty of fair representation; (2)
the Motion to Dismiss Plaintiff’s Claims Against New Mexico Legal Aid & Ed Marks and
Memorandum Brief in Support (Doc. 16) should be Denied insofar as it seeks dismissal of Count
I; and it should be Granted insofar as it seeks dismissal of Count II; (3) the Motion to Dismiss
Plaintiff’s Claims Against Ed Marks, Individually and as Director of New Mexico Legal Aid, Inc.,
and Memorandum Brief in Support (Doc. 17) should be Granted; and (4) Plaintiff’s Motion for
Leave to File Surreply to Union Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint
(Doc. 47) should be summarily Denied.

1

The Magistrate Judge’s PFRD thoroughly discussed the standard of review, the applicable law, and the
factual background and procedural history of this case. (Doc. 30 at 1-7.) The Court will therefore refrain from
repeating this information here.

The Union Defendants timely filed Objections to the PFRD on March 13, 2019, and a
response is not required. (Doc. 59.) Plaintiff filed a Motion for Extension of Time seeking to
expand the time within which she may file objections to the PFRD. (Doc. 60.) The Defendants’
several motions to dismiss, the Magistrate Judge’s PFRD, the Union Defendants’ Objections, and
Plaintiff’s motion for an extension are now before the Court.
II.

Analysis

A. The Union Defendants’ Objections
When a party files timely written objections to a magistrate judge’s recommendation on a
dispositive matter, the district court must conduct a de novo review, and “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C). De novo review requires the district judge to consider relevant evidence in
the record and not merely to review the magistrate judge’s recommendation. In re Griego, 64 F.3d
580, 583-84 (10th Cir. 1995). “[A] party’s objections to the magistrate judge’s [PFRD] must be
both timely and specific to preserve an issue for de novo review by the district court or for appellate
review.” U.S. v. One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, &
Contents, 73 F.3d 1057, 1060 (10th Cir. 1996). The failure to make timely objections to the
Magistrate Judge’s Proposed Findings and Recommended Disposition waives appellate review of
both factual and legal questions. Id. at 1059.
The Union Defendants object to Part B.2 of the PFRD in which Judge Khalsa
recommended holding that Plaintiff’s allegations regarding the Union’s conduct in handling her
grievance are sufficient to support a breach of the duty of fair representation claim. (Doc. 58 at
15-21; Doc. 59 at 1.) The Union Defendants’ objection is founded on the notion that the allegations
in Plaintiff’s Compliant—which, they argue, were incoherent, out of chronological order, and

confusing—were rearranged in the PFRD to create a more coherent narrative than that presented
by Plaintiff and to “imply” causation that was not alleged by Plaintiff in her Complaint. (Doc. 59
at 2, 5.) The Court does not find these objections persuasive, and they shall be overruled
accordingly.
The Federal Rules of Civil Procedure provide for a liberal notice pleading standard
pursuant to which “no technical form” of pleading is required, and all “[p]leadings must be
construed so as to do justice.” Fed. R. Civ. P. 8(d)(1), (f); Swierkiewicz v. Sorema N.A., 534 U.S.
506, 513-14 (2002). Accordingly, the “harsh remedy” of dismissal under Rule 12(b)(6) “must be
cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect
the interests of justice.” Cottrell, Ltd. v. Biotrol Intern., Inc., 191 F.3d 1248, 1251 (10th Cir. 1999).
In addition to these standards, in considering a motion to dismiss, the Court must assume that
allegations in a complaint—even those “doubtful in fact” are true, Bell Atlantic v. Twombly, 550
U.S. 544, 555-56 (2007), and construe them in the light most favorable to the plaintiff. Requena
v. Roberts, 893 F.3d 1195, 1204-05 (10th Cir. 2018).
The Union Defendant’s primary objection to the PFRD is that by organizing Plaintiff’s
non-chronological factual allegations into a coherent narrative, Judge Khalsa substantially
recharacterized the content of Plaintiff’s Complaint.

(Doc. 59 at 3-4.)

As Judge Khalsa

acknowledged in the PFRD, this Court recognizes that Plaintiff’s Complaint was not artfully
drafted. (Doc. 58 at 3 n.2, 27.) This notwithstanding, the Court does not share the Union
Defendants’ view that by setting forth, in chronological order, the very facts alleged in Plaintiff’s
Complaint, and which indisputably support her breach of duty of fair representation claim, Judge
Khalsa altered the meaning or effect of those allegations. Instead, it is evident from the PFRD that
Judge Khalsa, placing substance over form, undertook a comprehensive analysis of Plaintiff’s

allegations with the ultimate effect of discerning the theories upon which Plaintiff’s Complaint is
based. In so doing, Judge Khalsa construed Plaintiff’s allegations so as to do justice to and
effectuate the spirit of the liberal rules of pleading in accord with the governing legal standards.2
Cottrell, Ltd., 191 F.3d at 1251; Fed. R. Civ. P. 8(d)(1), (f).
Union Defendants further object on their unfounded assertion that Judge Khalsa
improperly “claim[ed]” or “suggest[ed] that Plaintiff alleged that the Union treated Plaintiff
differently from other employees.” (Doc. 59 at 4.) In support of this objection, the Union
Defendants cite a portion of the PFRD in which Judge Khalsa summarized the arguments made by
the Union Defendants in support of their motion to dismiss. (Doc. 58 at 17; Doc. 59 at 4.) And
indeed, among other things, the Union Defendants argued in their Motion to Dismiss that
Plaintiff’s allegations did not establish that the Union treated Plaintiff differently from other
employees when it handled her grievance.3 (Doc. 15-1 at 10-11; Doc. 58 at 17.) Having
acknowledged their argument, Judge Khalsa’s recommendation that the Union Defendants’
Motion be denied is not grounded in this theory because Plaintiff did not plausibly allege
discrimination in the form of disparate treatment.

2

As an alternative to this approach, Judge Khalsa could have recommended that the Court exercise its discretion to
dismiss Plaintiff’s Complaint for failure to comply with Federal Rule of Civil Procedure 8(a)(2)’s “short and plain
statement of the claim” requirement, and order Plaintiff to file an amended complaint, presenting her allegations in
chronological order. See Carbajal v. City & Cty. of Denver, 502 F. App’x 715, 716 (10th Cir. 2012) (recognizing the
trial court’s discretion to dismiss a complaint without prejudice and to order the plaintiff to file an amended complaint
that complies with the pleading requirements of Rule 8). However, the approach taken by Judge Khalsa in the PFRD
furthers the interests of efficiency, judicial economy, and fairness, and avoids further delay in this already protracted
proceeding.

3

Although the Union Defendants’ decision to include this argument in their Motion to Dismiss was ostensibly not
based on an allegation to the contrary (Plaintiff did not allege that she was treated differently from other Union
members), insofar as this argument was presented, among others, in the context of a survey of the relevant legal
standards, the Court presumes that the Union Defendants sought to establish that, although there are several ways in
which Plaintiff could have shown that the Union breached its duty, she failed to demonstrate any of them—including
disparate treatment. See e.g., Vaca v. Sipes, 386 U.S. 171, 190 (1967) (indicating that a union breaches its duty of fair
representation to a member if its actions are arbitrary, discriminatory, or in bad faith). (Doc. 15-1 at 9-10.)

Instead, Judge Khalsa recommended denying the Motion on the ground that Plaintiff
plausibly alleged that the Union “failed to take requisite steps in its pursuit of Plaintiff’s
grievance[,]” “treated Plaintiff’s grievance with cursory or indifferent attention, and failed to
adequately investigate or prepare to defend her grievance.” (Doc. 58 at 19.) Assuming the truth
of these allegations, Judge Khalsa recommended concluding that the Union engaged in what
amounted to unreasonable, irrational, or arbitrary conduct in violation of the duty of fair
representation.

(Doc. 58 at 19-20.)

This recommendation is well-supported by relevant

authorities—none of which are controverted in the Union Defendants’ objections, and it is clearly
based upon the plausible allegations, and the reasonable inferences drawn from the allegations, in
Plaintiff’s Complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (“[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court [exercising its judicial
experience and common sense] to draw the reasonable inference that the defendant is liable for the
misconduct alleged”). The Union Defendants’ objection to the contrary is unavailing.
B. Plaintiff’s Motion for an Extension of Time
The PFRD was filed on February 27, 2019. (Doc. 58.) Because Plaintiff receives notice
by mail to her post office box, the deadline for Plaintiff to file objections to the PFRD was March
18, 2019. (Doc. 60 ¶ 3; Doc. 58 at 30.) Plaintiff argues that she received the PFRD by mail on
Tuesday, March 12, 2019, and that she was ill the following weekend through half of the day on
Monday. (Doc. 60 at 2 ¶¶ 5-7.) Owing to the alleged delay in mail delivery and her illness,
Plaintiff seeks an extension of time within which to file objections to the PFRD.
Throughout the pendency of this case, Plaintiff has sought several extensions, all of which
have been liberally granted. (Doc. 24, 27-28, 32, 44.) In this instance, the Court does not find that
good cause exists to grant the requested extension. Even assuming the truth of Plaintiff’s

representation that the PFRD mailed from Albuquerque, New Mexico on February 27, 2019 had
not yet been delivered to her post office mailbox in Albuquerque, New Mexico by March 8, 2019,
which would be unusual, she still had five business days from receipt within which to prepare and
file objections. She did not do so. Nor has she provided any other reason sufficient to constitute
good cause to grant her opposed motion for an extension of time. For these reasons, and to avoid
further delay in this case, Plaintiff’s Motion for an Extension shall be denied.
III.

Conclusion

For the foregoing reasons, and for the additional reasons stated in the Magistrate Judge’s
PFRD, the Court finds that Plaintiff’s Objections are without merit, and that the Magistrate Judge’s
PFRD should be adopted in whole. IT IS THEREFORE ORDERED as follows:
1.

The Union Defendants’ Objections to Magistrate’s Recommendation (Doc. 59) are

OVERRULED;
2.

The Magistrate Judge’s Proposed Findings and Recommended Disposition

(Doc. 58) is ADOPTED; and,
3.

Plaintiff’s Motion for Extension of Time (Doc. 60) is DENIED.

IT IS SO ORDERED.
________________________________________
MARTHA VÁZQUEZ
United States District Judge