Opinion
Civ. No. 00-0005 JP/DJS
October 5, 2000
MEMORANDUM OPINION AND ORDER
On July 6, 2000 Plaintiffs filed a Motion to Alter or Amend Judgment Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure (Doc. No. 17). Plaintiffs motion will be granted.
On March 3, 2000 Defendant Correctional Services Corporation (CSC) filed a motion to dismiss for lack of subject matter jurisdiction based on Plaintiffs inclusion as Defendants Unknown Persons 1 through 100. I agreed with Defendant CSC that diversity jurisdiction could not properly be assessed where one hundred of the one hundred one Defendants were unknown. Therefore the case was dismissed for lack of jurisdiction. Instead of refiling their case without the unknown Defendants, Plaintiffs moved under Rule 59(e) for reconsideration of only that part of the June 21, 2000 Memorandum Opinion and Order denying Plaintiffs request for leave to amend or to strike reference to the unknown Defendants. In their motion under Rule 59(e) Plaintiffs presented, for the first time, an array of persuasive authority for granting the alternative relief sought. Defendant CSCs response is based primarily on an alleged lack of timeliness of Plaintiffs motion under Rule 59.
Rule 59(e) states, in its entirety, that Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment. The judgment which Plaintiff seeks to alter or amend was filed on June 21, 2000. Plaintiffs motion invoking Rule 59(e) was filed on July 6, 2000. Defendant CSC argues that Plaintiffs motion was untimely because more than 10 days elapsed between June 21, 2000 and July 6, 2000. Therefore, Defendant CSC contends, Plaintiffs motion under Rule 59(e) is converted by the rule in Elsken v. Network Multi-Family Sec. Corp., 49 F.3d 1470, 1476 (10th Cir. 1995) (citing Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991)) to a motion under Rule 60(b), which measures post-judgment motions by a different standard.
Interestingly, Defendant CSCs argument is itself untimely. By Order filed July 17, 2000 I granted Defendant additional time, until July 28, 2000, to respond to Plaintiffs motion under Rule 59(e). Defendants response, however, bears the file date of August 2, 2000. Defendants counsel has orally represented to a member of my staff that his runner on July 28, 2000 presented the motion to the Court Clerk but for reasons unexplained that motion was not filed by the Court Clerk until several days later. Because Plaintiffs specifically request that I not strike Defendants response for untimeliness, I will address the merits of Defendants tardy response.
Rule 6(a) indicates that when computing periods of time less than 11 days, intermediate Saturdays, Sundays and legal holidays, such as Independence Day, are not included in the computation. Rule 6(a) operates in this case to exclude Saturday June 24, Sunday June 25, Saturday July 1, Sunday July 2, and Tuesday July 4. Therefore Plaintiffs motion was timely filed under Rule 59(e) when Plaintiffs filed it on July 6, 2000, the tenth day after entry of judgment on June 21, 2000. A motion under Rule 59(e) should be granted to correct manifest errors of law. See Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). In support of their claim that a manifest legal error was committed, Plaintiffs cite, for the first time, to Varley v. Tampax, 855 F.2d 696, 700-01 (10th Cir. 1988), a case involving similar procedural issues. In Varley, a womans parents and administratrix filed separate suits stemming from the womans death. The district court then consolidated the cases and permitted the addition of another defendant. The net result was one suit with multiple plaintiffs, one of whom was from Kansas, suing Tampax and other defendants, two of whom were also from Kansas. Later, the district court granted summary judgment for Tampax on the merits. But then, in the same order, the district court dismissed the case without prejudice for lack of jurisdiction. Within the requisite time period, Tampax moved under Rule 59(e) for an order dismissing the non-diverse defendants and entry of summary judgment as to the diverse defendants. The Tenth Circuit held that it was error for the district court not to adopt this course. Citing Rule 21, the Tenth Circuit concluded that the district court abused its discretion by failing to grant Tampax motion under Rule 59(e). The Tenth Circuit noted that neither non-diverse defendant was indispensable and that they were already, at that point, named defendants in a substantially similar state court proceeding. Plaintiffs in this case point to other similar decisions, also for the first time, which are in accord with Varley and its use of Rule 21. See, e.g., Bhatla v. U.S. Capital Corp., 990 F.2d 780, 786 (3d Cir. 1993); Miller v. Leavenworth-Jefferson Electric Cooperative, Inc., 653 F.2d 1378, 1381-83 (10th Cir. 1981) (employing now-superseded analysis as to whether motion characterized as one under Rule 59(e) or Rule 60). Varley, with its reliance on Rule 21, and the weight of other similar authority indicates that the proper course is to allow this case to proceed to the merits by deleting reference to Unknown Persons 1 through 100." Those unknown Defendants are hardly indispensable.
Day 1 — Thursday June 22; Day 2 — Friday June 23; Day 3 — Monday June 26; Day 4 — Tuesday June 27; Day 5 — Wednesday June 28; Day 6 — Thursday June 29; Day 7 — Friday June 30; Day 8 — Monday July 3; Day 9 — Wednesday July 5; Day 10 — Thursday July 6.
Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. Fed.R.Civ.P. 21.
Plaintiffs cite to still other cases, yet again for the first time, invoking Rules of Civil Procedure other than Rule 21 to dismiss defendants as to whom jurisdiction is improper. Because of the result reached here under Rule 21, there is no need to consider Plaintiffs alternative arguments.
Moreover, as noted in the June 21, 2000 Memorandum Opinion and Order, Plaintiffs may be permitted to add presently unknown Defendants at some future time, if justice so requires.
Without the unknown Defendants, what remains is a suit involving Plaintiffs who are all either citizens of New Mexico or Arizona bringing state law claims against a Delaware corporation with its principal place of business in Florida, for alleged damages in excess of $75,000. Diversity jurisdiction, under 18 U.S.C. § 1332(a), is thus proper.
IT IS THEREFORE ORDERED THAT
(1) Plaintiffs Motion to Alter or Amend Judgment Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure (Doc. No. 17) is granted;
(2) that portion of the June 21, 2000 Memorandum Opinion and Order dismissing the case for lack of jurisdiction is amended;
(3) Defendants Unknown Persons 1 through 100" are dismissed under Federal Rule of Civil Procedure 21.
MEMORANDUM OPINION AND ORDER
On July 11, 2000, Defendants County of Otero and John Lee (Defendants) filed a Motion to Dismiss No. I: State Constitutional Claims, State Law Tort Claims, Punitive Damages and Pre-and Post-Judgment Interest Claims Under the New Mexico Tort Claims Act (Doc. No. 16).
After a careful review of the briefs and the relevant law, I have determined that the Defendants motion to dismiss should be granted in part.
I. Background
The Plaintiffs allege that on February 11, 1998, Defendant Rudy Castro, a deputy sheriff, stopped Plaintiff Clara Perez for speeding and issued her a traffic citation. Clara Perez child, Plaintiff Christina Perez, was in the car with her mother. After Clara Perez drove away from the scene of the traffic citation, Defendant Castro stopped Clara Perez again and ordered her out of the car and questioned her. At this time, a law enforcement heliocopter and SWAT team/K-9 unit arrived at the scene. The Plaintiffs allege that machine guns were pointed at them. Defendant Castro then arrested Clara Perez and cited her for resisting, obstructing and evading an officer.
Count I of the Complaint alleges that Defendant Castros actions amounted to assault and battery, and false imprisonment under state tort law. The Plaintiffs also allege that Defendant Castro violated the Fourth and Fourteenth Amendments of the United States Constitution, and that he violated Article II, § 10 of the New Mexico Constitution (right to be free from an unreasonable search and seizure) and Article II, § 18 of the New Mexico Constitution (right to equal protection of the law). Counts II and III are brought against the Defendant County under the doctrine of respondeat superior and NMSA 1978, § 41-4-4(D) (1976) of the New Mexico Tort Claims Act (NMTCA). Count IV is a 42 U.S.C. § 1983 claim against Defendant Castro in his individual capacity for alleged violations of the Fourth and Fourteenth Amendments. Count V is a 42 U.S.C. § 1983 claim against Defendant Lee in his individual capacity for failure to adequately train and supervise Defendant Castro. Count VI is a 42 U.S.C. § 1983 claim against Defendant County for failure to adequately train and supervise Defendant Castro as well as its custom, policy and/or practice of deliberate indifference to and reckless disregard of the Plaintiffs constitutional rights. The Plaintiffs pray for an award of punitive damages from Defendants Castro and Lee plus prejudgment and postjudgment interest.
The Defendants argue in this motion to dismiss that 1) they are entitled to qualified immunity with respect to the state constitutional claims; 2) the state tort claims fail to meet the two year statute of limitations; 3) the NMTCA prohibits an award of punitive damages for state torts brought against persons in their official capacities; and 4) prejudgment or postjudgment interest is not allowed for state tort awards against state entities and state employees acting in their official capacities. The Defendants also ask for an award of attorneys fees and costs incurred in bringing this motion.
II. Standard for a Motion to Dismiss
In considering a motion to dismiss for failure to state a claim, I must liberally construe the pleadings, accept as true all factual allegations in the complaint, and draw all reasonable inferences in the plaintiff's favor. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). I may dismiss the complaint if it appears to a certainty that the plaintiff can prove no set of facts in support of the plaintiffs claim which would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
III. Discussion A. Qualified Immunity and the State Constitutional Claims
The Defendants argue first that they are entitled to qualified immunity with respect to the state constitutional claims. A state constitutional claim against a public entity or employee must be brought within the structure of the NMTCA. See Chavez v. City of Albuquerque, 124 N.M. 479, 482, 952 P.2d 474, 477 (Ct.App. 1997) (plaintiff may not seek damages from the city for violations of state constitutional rights unless immunity is waived under the NMTCA). Whether the doctrine of qualified immunity applies to the NMTCA is still an unanswered question in the State of New Mexico. Romero v. Sanchez, 119 N.M. 690, 696, 895 P.2d 212, 218 (1995).
Since the Plaintiffs state constitutional claims raise a novel and perhaps complex issue of state law, I decline to exercise supplemental jurisdiction over those claims. See 28 U.S.C. § 1367 (c)(1).
In addition to the question of whether qualified immunity applies to the NMTCA, the New Mexico courts have not yet addressed whether the NMTCA waives sovereign immunity for Article II, § 18 claims made under the New Mexico constitution. Blea v. City of Española, 117 N.M. 217, 221-22, 870 P.2d 755, 759-60 (Ct.App. 1994).
B. Statute of Limitations
The Defendants argue next that the Plaintiffs state tort claims are barred by the two year statute of limitations under the NMTCA, NMSA 1978, § 41-4-15(A) (1976). The statute of limitations distinguishes between minors and adults. [A] minor under the full age of seven years shall have until his ninth birthday in which to file. Id. The statute of limitations may be raised in a motion to dismiss where it is clearly apparent on the face of the pleading that the action is barred. Apodaca v. Unknown Heirs of Following Persons Who Are Adjudged to be Owners and Proprietors of Tome Land Grant, 98 N.M. 620, 623-24, 651 P.2d 1264, 1267-68 (1982) (citation omitted). The Complaint in this case does not state how old Christina Perez was at the time of her mothers arrest. Consequently, it is not clearly apparent from the face of the Complaint that the state tort claims brought by Christina Perez are time barred. The Defendants motion to dismiss Christina Perez state tort claims as time barred is, therefore, inappropriate and will be denied.On the other hand, I find that the motion to dismiss is proper with respect to the statute of limitations defense raised against Clara Perez and her state tort claims. The Defendants contend that Clara Perez filed her lawsuit one day after the statute of limitations deadline. According to the Defendants, the last day for filing a lawsuit is the day before the anniversary date of when Clara Perez knew or should have known of the injury which is the basis for her lawsuit. The New Mexico Supreme Court appears to agree with that method of calculating the statute of limitations. See Marrujo v. New Mexico State Highway Transp. Dept., 118 N.M. 753, 756, 887 P.2d 747, 750 (1994) (final day of statute of limitations is the day before the anniversary date of a car accident which gave rise to the lawsuit); Townsend v. State ex rel. State Highway Dept., 117 N.M. 302, 306, 871 P.2d 958, 962 (1994) (damage or takings that occurred before June 30, 1984, three years before the action was filed on June 30, 1987, are barred by three year statute of limitations). Applying this method of calculating the statute of limitations, Clara Perez was indeed one day late in filing her personal lawsuit. The state tort claims brought by Clara Perez are barred by the statute of limitations.
C. Punitive Damages
The Defendants also argue that the Plaintiffs are prohibited by the NMTCA from asking for punitive damages with respect to the state tort claims. Since I already found that the state tort claims brought by Clara Perez are barred by the statute of limitations, I need not address this issue regarding her. I, nonetheless, find that Christina Perez cannot obtain punitive damages from Defendants Castro and Lee in their official capacities on the state tort claims. See NMSA 1978, § 41-4-19(B) (1976) (No judgment against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act shall include an award for exemplary or punitive damages. . . .).
D. Prejudgment and Postjudgment Interest on a State Tort Claim Judgment
As with the punitive damages issue, since the state tort claims brought by Clara Perez are barred by the statute of limitations, I need not address the prejudgment and postjudgment interest issue with respect to her. I, however, find that Christina Perez is not entitled to prejudgment interest on a state tort judgment entered against the Defendant County and the individual Defendants in their official capacities. See NMSA 1978, § 41-4-19(B) (1976) (No judgment against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act shall include an award for . . . interest prior to judgment.). Moreover, Christina Perez is not entitled to postjudgment interest on a state tort judgment against the Defendant County and the individual Defendants in their official capacities. See Trujillo v. City of Albuquerque, 1998-NMSC-041, ¶¶ 46-47, 125 N.M. 721.
E. Attorneys Fees and Costs
Finally, the Defendants ask for an award of attorneys fees and costs incurred in bringing this motion to dismiss. I find that an award of attorneys fees and costs is not warranted. The Defendants request for attorneys fees and costs will be denied. IT IS ORDERED that the Defendants Motion to Dismiss No. I: State Constitutional Claims, State Law Tort Claims, Punitive Damages and Pre-and Post-Judgment Interest Claims Under the New Mexico Tort Claims Act (Doc. No. 16) is granted in part. IT IS FURTHER ORDERED that:
1) the state constitutional claims are dismissed without prejudice;
2) the Defendants motion to dismiss Christina Perez state tort claims as time barred is denied;
3) the state tort claims brought by Clara Perez are dismissed with prejudice;
4) Christina Perez claim for punitive damages against Defendants Castro and Lee in their official capacities is dismissed with prejudice; and 5) Christina Perez claims for prejudgment and postjudgment interest against the Defendant County and Defendants Castro and Lee in their official capacities are dismissed with prejudice.
IT IS ALSO ORDERED that the Defendants request for attorneys fees and costs is denied.