Seeberger v. Goodman

RICK J. SEEBERGER and SUSAN SEEBERGER, doing business as BUILD A STRONG FUTURE, Plaintiffs, v. PETTER POWERS GOODMAN, et al., Defendants.

Case No. 2:14-cv-1063-GBW-WPL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

August 25, 2015

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiffs' Motion of [sic] Leave to File Amended Complaint, doc. 117, Defendants' Motions to Dismiss, docs. 13, 16, 32, & 89, and Plaintiffs' requests for default and default judgment, docs. 21-23, 90-92, & 103. Having reviewed the requests and Motions, and the attendant briefing, and being otherwise fully advised, the Court will DENY Plaintiffs' Motion of Leave to File Amended Complaint, doc. 117, and Plaintiffs' requests for default and default judgment, docs. 90-92, & 103, and will GRANT Defendants' Motions to Dismiss, docs. 13, 16, 32, & 89. Furthermore, having dismissed the federal claims, the Court declines to exercise supplemental jurisdiction over the state counterclaims brought by Defendants Lerma, Long, and Kinney. Those counterclaims will, therefore, be dismissed without prejudice.

I. PROCEDURAL POSTURE

Plaintiff Rick Seeberger (Plaintiff¹) is a consultant employed by Build a Strong Future, a company owned by his wife, Plaintiff Susan Seeberger. This case arises from various alleged wrongdoings by Defendants in connection with Plaintiff's service as a consultant to the Doña Ana County Sheriff's Office (DASO) and later as Chief of Staff to Sheriff Todd Garrison, a position from which he was eventually terminated. Plaintiffs bring claims against members of DASO, various County officials, a contributor to the Las Cruces Sun-News newspaper, and the company that owns Sun-News.

Plaintiffs are proceeding pro se in this action. Plaintiffs' Original Complaint was filed in state court in October 2014 and was removed to this Court on November 21, 2014. Doc. 1. Since then, Plaintiffs have filed multiple "notices" asserting that various Defendants are in default for failing to timely file responsive pleadings. See, e.g., docs. 21-23. Plaintiffs also attempted to file an amended complaint, doc. 105, but it was stricken for failure to comply with the Federal Rules. Doc. 116. Subsequently, Plaintiffs filed the instant Motion of Leave to File Amended Complaint, doc. 117. All of the Defendants² opposed the motion on futility grounds. Doc. 120-122. Defendants alsorequest that the Court grant their Motions to Dismiss Plaintiffs' Original Complaint. Docs. 13, 16, 32, & 89.

Because the motion for leave to file an amended complaint is opposed on futility grounds, both it and the motions to dismiss hinge on the same question - are Plaintiffs' allegations sufficient to state claims under Fed. R. Civ. P. 8 and 12. Plaintiffs' proposed Amended Complaint incorporates by reference all of the factual allegations contained in the Original Complaint and adds some new factual allegations. Doc. 119 at 5 ("Plaintiffs reallege and incorporate by reference each of the facts and allegations asserted in ¶¶ 17 through 34" of their Original Complaint, which includes the entire "Factual Background" section of that Complaint). Moreover, it raises substantially all of the claims raised in the Original Complaint. Therefore, the Court will review the sufficiency of all Plaintiffs claims based on the allegations contained the operative Complaint and the proposed Amended Complaint. If Plaintiffs' claims are insufficient, even as augmented by the proposed Amended Complaint, the motions to dismiss would be well taken and the motion for leave to file Amended Complaint would be futile. Finally, the Court will address Plaintiffs' assertions that several Defendants are in default.

II. FACTUAL ALLEGATIONS

A. Scope of Allegations Considered

At the outset, because the Amended Complaint seeks to draw from sources outside of the document itself, the Court must consider the scope of the factual allegations to be construed as part of Plaintiffs' Amended Complaint. Under Federal Rule of Civil Procedure 10, "[a] statement in a pleading may be adopted by reference elsewhere . . . in any other pleading or motion." FED. R. CIV. P. 10(c) (emphasis added); see also FED. R. CIV. P. 10(b) ("A later pleading may refer by number to a paragraph in an earlier pleading"). Plaintiffs seek to incorporate by reference the entire fact section of their Original Complaint into their Amended Complaint. Doc. 119 at 4. In light of Rule 10(c), and given the Court's mandate to liberally construe pro se pleadings, Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010), the Court will consider the entire fact section in the Original Complaint in conjunction with facts pleaded in the Amended Complaint. Cf. Clayton v. ConocoPhillips Co., 722 F.3d 279, 300 (5th Cir. 2013) (incorporating by reference entire background and jurisdictional information in earlier complaint insufficient to provide notice of breach of contract claim). Similarly, because "[a] copy of a written instrument that is an exhibit to a pleading is part of the pleading for all purposes," FED. R. CIV. P. 10(c), and all of the exhibits attached to Plaintiffs' Original Complaint are referenced in the portions incorporated into the Amended Complaint, see doc. 1, Ex. A-1 at 6, 9, 13, 14, & 18, the Court will also consider theexhibits attached to both of Plaintiffs' Complaints. Cf. Galloway v. City of Abbeville, 871 F. Supp. 1298, 1304-05 (M.D. Ala. July 02, 2012) (refusing to consider exhibits attached to an abandoned pleading because plaintiff could have attached the same exhibits to his amended pleading).

The Federal Rules, however, do not provide for incorporating non-pleadings into a complaint, as Plaintiffs attempt to do here. Pleadings typically consist of complaints and answers, but do not include motions, responses, or replies. FED. R. CIV. P. 7(a)-(b) (creating as distinct categories (a) pleadings and (b) motions and other papers); see also Black's Law Dictionary (10th ed. 2014) (defining "pleading" as "[a] formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or defenses. In federal civil procedure, the main pleadings are the plaintiff's complaint and the defendant's answer."). Accordingly, the Court will not consider the portions of the non-pleadings referenced in Plaintiffs' Amended Complaint. See, e.g., doc. 119 at 11 (incorporating "¶¶ 1 through 19 of Plaintiffs' Amended Response and Opposed Motion to Strike Defendant MNG's Motion to Dismiss Claims") (emphasis in original), 17 (incorporating ¶¶ 1 through 49 of Plaintiffs' Response and Objection to Defendant DAC Parties I Motion to Dismiss Claims and Memorandum in Support") (emphasis in original). "After all, even liberal notice pleading still requires at least some pleading." Clayton, 722 F.3d at 300 (emphasis omitted). And, the Court is of the opinion that collating the litany of documents referenced by Plaintiff in order toascertain the viability of his claims would be more akin to "assum[ing] the role of advocate for the pro se litigant," Baker v. Holt, 498 F. App'x 770, 772 (10th Cir. 2012) (unpublished), which is improper, than liberally construing pleading, which is not.

In short, the balance struck by the Court is to consider the facts pleaded in the Original Complaint that were incorporated into the Amended Complaint, as well as the exhibits attached to both Complaints, but not the portions of non-pleadings Plaintiffs attempt to incorporate.

B. General Factual Allegations

On February 7, 2013, Build a Strong Future, "a 100% woman-owned socially conscious proprietorship" founded by Plaintiff's wife, Plaintiff Susan Seeberger, entered into "a professional services contract" with DASO under which Plaintiff Rick Seeberger was to serve as "the lead provider" of "consulting, training, and coaching services to [DASO]." Doc. 1, Ex. A-1 at 12. Among other things, Plaintiff was to "[c]onduct[] a Strategic Leadership Course wherein a strategic plan for DASO utilizing a proprietary system known as PRIMEGPS would be created." Id. Between May 2013 and January 2014, Build a Strong Future was awarded additional "professional services contracts [task orders]." Id. (brackets in original). The "contracts [task orders] were to advance the processes initiated with the first professional services contract," with Plaintiff Rick Seeberger again serving as a "key person to deliver the service . . . ." Id. (brackets in original).

On February 24, 2014, Plaintiff was hired as Sheriff Todd Garrison's Chief of Staff. Id. The position had a defined end date of December 31, 2014, but Defendant Brown terminated Plaintiff on August 29, 2014. Id. at 21. Plaintiff alleges various wrongdoings by each set of Defendants—(1) County, (2) DASO, and (3) Media—during his time with DASO.

In their Original Complaint, Plaintiffs' First Cause of Action alleges violations of Plaintiffs' civil rights by all Defendants. Specifically, Plaintiffs bring claims pursuant to Art. II §§ 13 and 18 of the New Mexico Constitution, the Fourteenth Amendment of the United States Constitution, and Title VII of the Civil Rights Act of 1964. Id. at 23-24. The Second Cause of Action brings claims for breach of contract, breach of duty of good faith and fair dealing, and wrongful discharge. Id. at 25-26. The Third Cause of Action alleges malfeasance and common law fraud. The fourth and final section raises tort claims under the New Mexico Tort Claims Act, N.M. STAT. ANN. §§ 41-4-1, 41-4-4 (2001). The Amended Complaint raises the same claims as the Original Complaint with two exceptions: the Amended Complaint (1) omits Plaintiffs' cruel and unusual punishment claim, ³ and (2) adds a Federal Whistle Blower Act claim.⁴

The Court addresses each set of Defendants separately. Factual allegations specific to each set of Defendants are discussed in greater detail in their respective sections. Unless otherwise indicated, factual allegations in...