Willis et al v. United States Department of The Treasury, Internal Revenue Service et al

MOTION to dismiss for lack of jurisdiction and Memorandum in Support

W.D. Mo.August 17, 2016

54459232.1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI BOBBY L. WILLIS and CARRIE S. WILLIS, individually and as trustees of the TRUST OF JAMES C. AND NORMA D. WILLIS, Plaintiffs, vs. UNITED STATES DEPARTMENT OF THE TREASURY, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 6:16-CV-03251-SRB FARMINGTON POLICE DEPARTMENT AND DETECTIVE RUSSELL BRADFORD’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND MEMORANDUM IN SUPPORT Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 1 of 19 i 54459232.1 TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................................i TABLE OF AUTHORITIES ............................................................................................. ii I. FACTS PLED IN THE COMPLAINT ............................................................................. 1 II. POINTS AND AUTHORITIES.................................................................................... 2 A. Standard for Reviewing Whether the Missouri Court has Personal Jurisdiction over FPD and Detective Bradford. ........................................................................ 2 B. The Complaint Does Not Satisfy Missouri’s Long-Arm Statute. ...................................... 3 C. The Complaint Does Not Comply With Due Process. ..... . ............................................ 7 D. The Eleventh Amendment Prohibits Suit in Missouri Against FPD and Detective Bradford. ............................................................................................................. 10 1. The Federal Tort Claims Act does not abrogate New Mexico’s sovereign immunity. ........................................................................................................... 10 2. There has been no waiver by New Mexico. ....................................................... 11 III. CONCLUSION ........................................ ................................................................. 13 Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 2 of 19 ii 54459232.1 TABLE OF AUTHORITIES Page(s) Cases Alden v. Maine, 527 U.S. 706 (1999) ................................................................................................. 10 Archuleta v. Lacuesta, 131 F.3d 1359 (10th Cir. 1997)................................................................................. 10 Begay v. State, 723 P.2d 252 (N.M. Ct. App. 1985), rev’d on other grounds, Smialek v. Begay, 721 P.2d 1306 (N.M. 1986)........................................................................... 12 Bryant v. Smith Interior Design Grp., 310 S.W.3d 227 (Mo. banc 2010) ..................................................................................... 4 Clark v. Barnard, 108 U.S. 436 (1883) ................................................................................................. 10 College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666 (1999) ........................................................................................... 11, 13 Cromeans v. Morgan Keegan & Co., No. 2:12-CV-04269-NKL, 2014 WL 1375038 (W.D. Mo. Apr. 8, 2014) ............................... 3 Dever v. Hentzen Coatings, Inc., 380 F.3d 1070 (8th Cir. 2004) .................................................................................... 3 Digi-Tel Holdings v. Proteq Telecomm. (PTE), Ltd., 89 F.3d 519 (8th Cir. 1996) ....................... ................................................................. 5 Downing v. Goldman Phipps, 764 F.3d 906 (8th Cir. 2014) .................................................................................. 7, 8 Epps v. Stewart Info. Servs. Corp., 327 F.3d 642 (8th Cir. 2003) ...................................................................................... 3 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ................................................................................................. 10 Flores v. Long, 926 F. Supp. 166 (D.N.M. 1995) .............................................................................. 13 Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) ................................................................................................. 10 Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 3 of 19 iii 54459232.1 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) ................................................................................................... 4 Hogan v. Cosmic Concepts, No. 4:11CV565, 2011 WL 5976105 (E.D. Mo. Nov. 30, 211) ............................................. 7 International Shoe Co. v. Washington, 326 U.S. 310 (1945) ................................................................................................... 5 Johnson v. Arden, 614 F.3d 785 (8th Cir. 2010) .................................................................................. 2, 3 KC Ravens, LLC v. Micah Energy Corp., No. 4:13-00870-CV-DGK, 2014 WL 4471395 (W.D. Mo. Sept. 11, 2014) ........................ 2, 3 Miller v. Nippon Carbon Co., Ltd., 528 F.3d 1087 (8th Cir. 2008) .................................................................................... 3 Moog World Trade Corp. v. Bancomer, S.A., 90 F.3d 1382 (8th Cir. 1996) ...................................................................................... 5 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) ................................................................................................. 11 Myers v. Casino Queen, Inc., 689 F.3d 904 (8th Cir. 2012) ...................................................................................... 4 Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984) ................................................................................................... 11 Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299 (1990) ................................................................................................. 11 Portnoy v. Defiance, Inc., 951 F.2d 169 (8th Cir. 1991) ...................................................................................... 5 Redding v. City of Truth or Consequences, 693 P.2d 594 (N.M. Ct. App. 1984) ................. ......................................................... 12 Scullin Steel Co. v. Nat’l Ry. Utilization Corp., 676 F.2d 309 (8th Cir. 1982) ...................................................................................... 4 Senate Select Comm. on Pres. Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973) ................................................................................... 9 Speraneo v. Zeus Tech., Inc., No. 4:12-CV-578-JAR, 2012 WL 2885592 (E.D. Mo. July 13, 2012) .................................... 7 Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 4 of 19 iv 54459232.1 Steinbuch v. Cutler, 518 F.3d 580 (8th Cir. 2008) .................................................................................. 3, 8 Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d 589 (8th Cir. 2011 ................................................................................ 3, 4, 7 Ward v. Presbyterian Health Care Services, 72 F. Supp. 2d 1285 (D.N.M. 1999) ......................................................................... 13 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) ................................................................................................... 7 Zotos v. Lindbergh Sch. Dist., 121 F.3d 356 (8th Cir. 1997) ...................................................................................... 5 Statutes Fed. R. Civ. P. 12(b)(6) .......................................................................................................... 1 28 U.S.C. § 1346(b) ....................................................................................................... 11 42 U.S.C. § 1983 ............................................................................................................ 13 R.S. Mo. § 506.500.1(1)−(3) ....................... ................................................................. 3, 4 R.S. Mo. § 513.647 .......................................................................................................... 2 N.M.S.A. 1978, § 41-4-2(A) ........................................................................................... 13 N.M.S.A. 1978, § 41-4-4(A) ........................................................................................... 13 New Mexico Tort Claims Act, N.M.S.A. 1978, § 41-4-1 et seq. .......................................... 12, 13 NMSA § 41-4-18(A) ...................................................................................................... 12, 13 Other Authorities Fourteenth Amendment .................................................................................................... 3, 10 Eleventh Amendment of the United States Constitution ................................................ 10, 11, 13 Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 5 of 19 1 54459232.1 FARMINGTON POLICE DEPARTMENT AND DETECTIVE RUSSELL BRADFORD’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND MEMORANDUM IN SUPPORT New Mexico Defendants Farmington Police Department (“FPD”) and Detective Russell Bradford (“Detective Bradford”) move to dismiss the Complaint for Damages under the Federal Tort Claims Act, for Civil Rights Violations and Other Claims [Doc. 1] (“Complaint”) against them because this Court lacks personal jurisdiction over them.1 In support of this Motion, FPD and Detective Bradford state: I. FACTS PLED IN THE COMPLAINT Pursuant to Fed. R. Civ. P. 12(b)(6), for purposes of this Motion only, FPD and Detective Bradford will assume arguendo that relevant facts as pled are true. The facts in he Complaint provide the following with respect to the actions of these Defendants: 1. Defendant FPD “is a New Mexico Governmental agency. Defendant Farmington Police Department (“Farmington Police”) can be served at 900 Municipal Drive, Farmington, New Mexico 87401.” 2. Detective Bradford “is an individual over the age of 18 residing in the State of New Mexico. Defendant Bradford can be served at Farmington Police Department, 900 Municipal Drive, Farmington, New Mexico 87401. At all times mentioned herein, Defendant Bradford was acting under the color of law s a law enforcement officer and employee of Defendant Farmington Police and at all times relevant was acting within the course and scope of said employment.” Complaint ¶ 11. 3. The claims against FPD are allegedly as a result of its “failure to train and supervise, and for promulgating policies and procedur s that result/are a moving force in 1 Plaintiffs consented to an extension of time through August 17, 2016 for Defendants FPD and Detective Bradford to answer or otherwise respond t Plaintiffs’ Complaint. Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 6 of 19 2 54459232.1 constitutional deprivations, including but not limited to promulgating a pattern and practice of seizing an individual’s property without due process of law and by circumventing the forfeiture and due process requirements of the Missouri and United States Constitutions and Missouri law by transferring the property to the Federal Governme t, including the IRS.” Complaint ¶ 25. 4. Defendant Sergeant Nash, an officer with the Missouri State Highway Patrol, “conferred, conspired, and came to an agreement with Detective Bradford to seize the Coins and Personal Property without having a search warrant or any legal authority that authorized the seizure.” Complaint ¶¶ 9, 37. 5. “After seizing the property and the coins, Defendant Nash, in conjunction with Defendant Bradford, contacted the IRS.” Complaint ¶ 38. 6. Defendants Nash and Detective Bradford “purposefully, willfully, recklessly, and with a conscious disregard for Plaintiffs’ right to their property, transferred the seized Coins and Personal Property to Defendant IRS, and employees and agents of the Defendant IRS to circumvent Missouri and United States Constitutional and Statutory laws, including but not limited to R.S. Mo. § 513.647.” Complaint ¶ 40. 7. Plaintiffs reside in New Mexico. Complaint ¶¶ 1, 2. These are the only allegations relevant to the claims against FPD and Detective Bradford in the Complaint and this Motion. II. POINTS AND AUTHORITIES A. Standard for Reviewing Whether the Missouri Court has Personal Jurisdiction over FPD and Detective Bradford. It is well settled that in a diversity action, “a federal court may exercise personal jurisdiction over a non-resident defendant only to the extent permitted by the forum state’s long- arm statute and the Due Process Clause.” KC Ravens, LLC v. Micah Energy Corp., No. 4:13- Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 7 of 19 3 54459232.1 00870-CV-DGK, 2014 WL 4471395, at *1 (W.D. Mo. Sept. 11, 2014) (citing Johnson v. Arden, 614 F.3d 785, 794 (8th Cir. 2010). For this Court to exercise personal jurisdiction over FPD and Detective Bradford, (1) Missouri’s long-arm statute must be satisfied, and (2) FPD and Detective Bradford must have sufficient contacts with Missouri to satisfy due process concerns. Id. “Although similar in nature, these are separate inquiries.” Id. (citations omitted). A plaintiff bears the burden of making a prima facie showing that a court possesses personal jurisdiction over a defendant. Steinbuch v. Cutler, 518 F.3d 580, 585 (8th Cir. 2008); Miller v. Nippon Carbon Co., Ltd., 528 F.3d 1087, 1090 (8th Cir. 2008). The evidence required for a prima facie showing is minimal and can be established by the affidavits and exhibits supporting or opposing the motion. Johnson, 614 F.3d at 794; Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072−73 (8th Cir. 2004). This Court must view the facts in the light most favorable to the nonmoving party and resolve all factu l conflicts in favor of the nonmoving party. Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 647 (8th Cir. 2003). See also Cromeans v. Morgan Keegan & Co., No. 2:12-CV-04269-NKL, 2014 WL 1375038, at *1 (W.D. Mo. Apr. 8, 2014). B. The Complaint Does Not Satisfy Missouri’s Long-Arm Statute. Plaintiffs in this case are New Mexico residents. Complaint ¶¶ 1, 2. Detective Bradford is a New Mexico resident. Complaint ¶ 11. FPD is a department of the City of Farmington, New Mexico, which is a political subdivision of the State of New Mexico. Complaint ¶ 40. The Complaint fails to set facts to support specific or general jurisdiction. Specific personal jurisdiction refers to jurisdiction over causes of action arising from or related to a defendant’s actions within the forum state. Specific personal jurisdiction exists only to the extent permitted by Missouri’s long-arm statute, Mo. Rev. Stat. § 506.500.1(1)−(3), and the Due Process Clause of the Fourteenth Amendment. Viasystems, Inc. v. EBM-Papst St. Georgen Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 8 of 19 4 54459232.1 GmbH & Co., KG, 646 F.3d 589, 593 (8th Cir. 2011) (quotation omitted). General jurisdiction refers to the power of a state to adjudicate any cause of action involving a particular defendant, regardless of where the cause of action arose. Id. General jurisdiction exists where a defendant has contacts with the forum state that are so “continuous and systematic” as to render them at home in the forum state. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). A defendant’s continuous operations must be “so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” Id. at 924. Missouri has no general jurisdiction over FPD and Detective Bradford. Missouri’s long-arm statute provides for personal jurisdiction over any person or firm who, either in person or through an agent, transacts business, makes a contract, or commits a tort within Missouri. Mo. Rev. Stat. § 506.500.1(1)−(3). As a question of Missouri law, the Missouri Supreme Court’s interpretation of the statute is binding. Scullin Steel Co. v. Nat’l Ry. Utilization Corp., 676 F.2d 309, 311 (8th Cir. 1982). The Missouri Supreme Court has held that Missouri’s long-arm statute covers a tort, such as fr udulent misrepresentation, committed in another state that yields consequences in Missouri. Bryant v. Smith Interior Design Grp., 310 S.W.3d 227, 232 (Mo. banc 2010) (holding that the statute reaches an out-of-state-resident who defrauds a Missouri resident by sending misleading documents into Missouri). The facts establishing jurisdiction under this “commission of a tort” provision are identical to the merits of the tort claim itself. See Myers v. Casino Queen, Inc., 689 F.3d 904, 909 (8th Cir. 2012). Missouri’s long-arm statute is also silent as to its application to another sovereign State. Missouri therefore cannot subject New Mexico or its agencies to its jurisdiction here. To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing that the defendant has committed the tort alleged in the Complaint. Id. The nonresident’s Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 9 of 19 5 54459232.1 commission of one of the statute’s enumerated acts is an absolute prerequisite to jurisdiction, “and the cause of action must arise from the nonresident defendant’s activities in Missouri.” Moog World Trade Corp. v. Bancomer, S.A., 90 F.3d 1382, 1384 (8th Cir. 1996). “The federal court in a diversity case must determine whether [the] defendant is subject to the court’s jurisdiction under the state long-arm statute, and if so, whether exercise of that jurisdiction comports with due process.” Id. This two-part analysis requires a court to first determine whether the activity of the defendant falls within the scope of the state statute. Portnoy v. Defiance, Inc., 951 F.2d 169, 171 (8th Cir. 1991). Second, a court m st determine whether the assertion of jurisdiction violates federal due process by considering the defendant’s minimum contacts with the forum: The suit must not “offend traditional notions of fair play and substantial justice.” Id. (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “Jurisdiction must be based on the act or conduct set forth in the statute . . . and the cause of action must arise from the nonresident defendant’s activities in Missouri.” Moog World Trade Corp., 90 F.3d at 1384 (internal quotations omitted). To survive a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating, by a prima facie showing, that personal jurisdiction exists. Id.; Digi-Tel Holdings v. Proteq Telecomm. (PTE), Ltd., 89 F.3d 519, 522 (8th Cir. 1996). A federal court reviews de novo the issue of whether the plaintiff has presented a prima facie showing of personal jurisdiction, Digi-Tel Holdings, 89 F.3d at 522, and “we may affirm the district court’s judgment on a y basis supported by the record.” Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 362 (8th Cir. 1997) (internal quotati ns omitted). In this case, Plaintiffs do not describe an action hat took place in Missouri by FPD or Detective Bradford that would subject them to the Court’s jurisdiction. Nor does the Complaint describe an action, sounding in tort, committed by either the FPD or Detective Bradford. Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 10 of 19 6 54459232.1 The only act alleged in the Complaint relating to the FPD is that it failed to train and supervise some unidentified individual who may or may not be named as a defendant in this case. Complaint ¶ 25. There is no allegation in the Complaint that the FPD failed to train or supervise someone in Missouri. There is no allegation in the Complaint that the FPD committed any act in Missouri. There is no allegation in theComplaint that an act outside of Missouri by these Defendants caused harm in Missouri. There is no allegation that the FPD had a continuous operation in Missouri that is so substantial and of such nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities. Thus, personal jurisdiction in Missouri is not warranted over FPD. The same is true for Detective Bradford. The only actions alleged in the Complaint against Detective Bradford are that he conspired or came to some type of unidentified agreement with Defendant Nash, a member of a law enforcement agency in Missouri, to deprive Plaintiffs of their property by transferring the property to the IRS to circumvent Missouri law. Complaint ¶¶ 37, 40. There is no allegation of where this alleged conspiracy took place. There is no allegation that any act by Detective Bradford caused injury in Missouri. There is no allegation in the Complaint of a continuous operation that is so ubstantial and of such nature as to justify suit against Detective Bradford in Missouri. The Complaint alleges that Missouri State Highway P trol “in conjunction with” the San Juan County Sheriff’s Department served a search warrant in Missouri that permitted the seizure of documents and records from Plaintiffs. Complaint ¶¶ 26−29. While FPD is located in San Juan County, New Mexico, FPD is entirely separate and unrelated to the San Juan County Sheriff’s Department. Neither San Juan County nor the San Juan County Sheriff’s Department are named as defendants in this action. There is no allegation of any cooperation or agreement Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 11 of 19 7 54459232.1 between San Juan County, its Sheriff’s Department, FPD or Detective Bradford, and none can be made. C. The Complaint Does Not Comply With Due Process. Even if a defendant’s contacts satisfy the requirements of specific or general personal jurisdiction, jurisdiction only exists if it comports with requirements of the Due Process Clause. Viasystems, 646 F.3d at 594. Due process analysis requires a determination of whether these defendants have sufficient “minimum contacts” with Missouri such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Id. “Minimum contacts” exist when “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). A court lacks personal jurisdiction if the defendant’s contacts with the forum are “random, fortuitous, or attenuated.” Downing v. Goldman Phipps, 764 F.3d 906, 912 (8th Cir. 2014). To establish the requisite minimum contacts, the Plaintiff must show either “general” or “specific” personal jurisdiction. Hogan v. Cosmic Concepts, No. 4:11CV565, 2011 WL 5976105, at *2 (E.D. Mo. Nov. 30, 2011). If the Plaintiffs claim specific jurisdiction, they must show that “the defendant has purposely directed its activities at the forum state, and the cause of action relates to those activities.” Speraneo v. Zeus Tech., Inc., No. 4:12-CV-578-JAR, 2012 WL 2885592, at *2 (E.D. Mo. July 13, 2012). To determine this, courts in the Eighth Circuit use a five factor test which considers: “(1) the nature and quality of the defendant’s contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interests of the forum state in providing a forum for its residents; and (5) the convenience of the parties.” Steinbuch, 518 F.3d at 585. The last two factors carry less weight in the analysis. Downing, 764 F.3d at 912. Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 12 of 19 8 54459232.1 Regarding the first factor, the Complaint does notallege FPD and Detective Bradford have minimum contacts with Missouri. The Complaint alleges FPD failed to train and/or supervise. The Complaint does not allege that the failure to train and/or supervise occurred in Missouri. Against Detective Bradford, the Complaint alleges that he entered into some undefined agreement, certainly not a contract, withDefendant Nash to transfer seized property to the IRS. There is no indication in the Complaint of where this agreement took place; there is no allegation that the agreement was reached in Missouri or carried out in Missouri. Thus, the contacts with Missouri by FPD and Detective Bradfor a e nonexistent to minimal and do not support jurisdiction. The second factor requires assessment of the quantity of such contacts. The Complaint is unclear as to the quantity. The Complaint is unclear as to whether any such contacts occurred in Missouri or where such contacts actually occurred. This factor therefore does not support the assumption of jurisdiction by the courts in Missouri. The Complaint is not clear on how or whether the cause of action against these Defendants has any relationship to the activities allegedly occurring in Missouri to assess the third factor. There is no allegation that any act by these Defendants took place in Missouri. Regarding the fourth factor, the interests of the forum state in providing a forum for its residents mitigate against the Missouri courts asserting jurisdiction over this case. According to the Complaint, Plaintiffs Bobby and Carrie Willis are residents of New Mexico, not Missouri. Complaint ¶¶ 1, 2. Some of the named defendants are residents of Missouri. Complaint ¶¶ 5, 6, 8, 9. Missouri courts do not have any interest in providing a forum to Plaintiffs, who are not Missouri residents. Missouri courts may have an interest in providing a forum to certain of the Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 13 of 19 9 54459232.1 other Defendants, but not the moving Defendants. This factor does not support the assumption of jurisdiction by this Court. The final factor, the convenience of the parties, is undetermined. Plaintiffs, who filed the lawsuit in Missouri, are willing to litigate the case in Missouri. FPD and Detective Bradford are not. If these defendants remain in this case, it will be most inconvenient and unconstitutional to force them to litigate in Missouri. For the federal courts, jurisdiction is not automatic nd cannot be presumed. Thus, the presumption in each instance is that a federal court lacks jurisdiction until it can be shown that a specific grant of jurisdiction applies. Federal courts may exercise only that judicial power provided by the Constitution in Article III and conferred by Congress. All other judicial power or jurisdiction is reserved to the states. And although plaintiffs may urge otherwise, t seems settled that federal courts may assume only that portion of the Article III judicial power which Congress, by statute, entrusts to them. Simply stated, Congress may impart as much or as little of the judicial power as it deems appropriate and the Judiciary may not thereafter on its own motion recur to the Article III storehouse for additional jurisdiction. When it comes to jurisdiction of the federal courts, truly, to paraphrase the scripture, the Congress giveth, and the Congress taketh away. Senate Select Comm. on Pres. Campaign Activities v. Nixon, 366 F. Supp. 51, 55 (D.D.C. 1973) (footnotes omitted). The allegations in the Complaint do not support the assumption of jurisdiction by this Court. There is no basis stated in the Complaint for this Court to assume jurisdiction over Defendants FPD and Detective Bradford. Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 14 of 19 10 54459232.1 D. The Eleventh Amendment Prohibits Suit in Missouri Against FPD and Detective Bradford. FPD is a department of the City of Farmington, New Mexico, which is a political subdivision of the State of New Mexico. The Eleventh Amendment of the United States Constitution bars suit against states in federal courts for damages caused by states, state agencies or state officials in their official capacities unless the state unequivocally waives its immunity or Congress expressly abrogates the state's immunity i creating a statutory cause of action. Archuleta v. Lacuesta, 131 F.3d 1359, 1361 (10th Cir. 1997). The Eleventh Amendment evidences and exemplifies the concept of state sovereign immunity implicit in the original Constitution. Alden v. Maine, 527 U.S. 706, 728 (1999). FPD is an arm of the State of New Mexico; FPD and Detective Bradford, as a FPD law enforcement officer, are therefore clothed with Eleventh Amendment immunity. There are two circumstances in which a state, or an arm of a state, such as FPD, may be subject to suit by an individual in federal court, notwithstanding the Eleventh Amendment. They are: (1) if Congress abrogates the state’s immunity i the exercise of its power of enforcement under § 5 of the Fourteenth Amendment, Fi zpatrick v. Bitzer, 427 U.S. 445 (1976); or (2) if the state voluntarily waives its immunity, Clark v. Barnard, 108 U.S. 436, (1883). 1. The Federal Tort Claims Act does not abrogate New Mexico’s sovereign immunity. To determine whether a congressional enactment validly abrogates New Mexico’s sovereign immunity, a court must answer two question : (1) whether Congress has unequivocally expressed its intent to abrogate the immunity; and (2) whether Congress has acted pursuant to a valid exercise of power. Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 635 (1999) Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 15 of 19 11 54459232.1 The Federal Tort Claims Act (“FTCA”) does not meet the first part of the test, in that it contains nothing that can be construed as unequivocal expression of an intent to abrogate Eleventh Amendment immunity for a state municipality or its police department. It does not even apply to tort claims against state entities. The FTCA waives sovereign immunity to allow suits against the United States for injuries caused by negligence or wrongful conduct by federal employees if a private person would be liable for the same conduct. See 28 U.S.C. § 1346(b). Since there has been no abrogation, the second part of the test, requiring the Court to determine whether Congress acted under a valid exercise of power, is not triggered. There has been no abrogation. 2. There has been no waiver by New Mexico. The immunity articulated in the Eleventh Amendment prohibits federal courts from entertaining suits against states that their own citizens or citizens of another state bring without their consent. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990). State agencies are likewise provided immunity as “an arm of the state.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280−81 (1977). This Court does not have jurisdiction to hear a suit against FPD and Detective Bradford, unless an exception to the Eleventh Amendment immunity applies. The test for determining whether a state has waived its immunity from federal court jurisdiction is a stringent one. College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 675 (1999). A waiver will be found only if the state voluntarily invokes the federal court’s jurisdiction, or else makes a “clear declaration” that it intends to submit to that jurisdiction. Id. at 675−76. The state’s consent must be “unequivocally expressed.” Id. at 676 (citing Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99 (1984). Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 16 of 19 12 54459232.1 The New Mexico Tort Claims Act, N.M.S.A. 1978, § 41- -1 et seq., (“NMTCA”) provides in relevant part: “[I]t is declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act.” Id. at § 41-4-2. Further, § 41-4-4 declares that governmental entities, like FPD, and public employees acting within the scope of their duties, like Detective Bradford, shall be immune from liability from any tort, except as waived by the NMTCA. With the adoption of the NMTCA, New Mexico’s state appellate courts concluded that a cause of action does not exist against the State or governmental entity unless immunity has been specifically waived. In Begay v. State, the court stated “the public policy declaration of Section 41-4-2, and the immunities proviso of Section 41-4-4, taken together, require that plaintiffs’ cause of action must fit within one of the exceptions to the immunity granted to governmental entities and public employees.” Begay v. State, 723 P.2d 252, 255 (N.M. Ct. App. 1985), rev’d on other grounds, Smialek v. Begay, 721 P.2d 1306 (N.M. 1986). Under the requirements of NMTCA, a federal court must first determine whether immunity has been waived for the claim against the governmental entities and public employees acting within the scope of their employment. Consent to be sued under the NMTCA may not be implied, but must be specifically found within one of the exceptions under the NMTCA. See Redding v. City of Truth or Consequences, 693 P.2d 594, 595 (N.M. Ct. App. 1984). There is no waiver under the NMTCA for taking of personal property (Count I), assumpsit of money had and received (Count II), conversion (Count III), unjust enrichment (Count IV), replevin (Count V), civil conspiracy (Count VII) or negligence (Count VIII). These Counts must all be dismissed. Even if these torts are covered by the NMTCA, New Mexico has not waived its sovereign immunity in any forum other than state court. NMSA § 41-4-18(A). A state’s sovereign Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 17 of 19 13 54459232.1 immunity is to be accorded great deference, and any waiver is to be narrowly construed. Thus, the federal courts are bound by the New Mexico’s waiver limiting its tort exposure to cases brought in state court. See College Savings, 527 U.S. at 676 (“[A] State does not consent to suit in federal court merely by consenting to suit in the courts of its own creation.”). The NMTCA does not save Plaintiffs’ federal cause of action under 42 U.S.C. § 1983. The NMTCA contains an express statement that it does not consent to federal jurisdiction: “Exclusive original jurisdiction for any claim under the Tort Claims Act shall be in the district courts of New Mexico.” N.M.S.A. 1978, § 41-4-18(A). In addition, the NMTCA states, “it is declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the NMTCA and in accordance with the principles established in that act,” N.M.S.A. 1978, § 41-4-2(A), and the waivers of sovereign immunity in the NMTCA are “limited to and governed by the provisions of” the NMTCA. N.M.S.A. 1978, § 41-4-4(A). These are very clear statements that the State of New Mexico does not intend to waive its sovereign immunity for tort claims in any forum other than New Mexico state courts. III. CONCLUSION Plaintiffs failed to show the minimum contacts necessary for this Court to assume jurisdiction without violating the Missouri long-arm statute or due process. Further, there has been no exception, abrogation or waiver of the Eleventh Amendment immunity that subjects FPD and Detective Bradford to suit in this Court. For these reasons, FPD and Detective Bradford respectfully request that the Court dismis the case against them for lack of jurisdiction. Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 18 of 19 14 54459232.1 Respectfully submitted, /s/ G. Gabriel Zorogastua G. Gabriel Zorogastua (MO #59643) Brisa Wolfe (MO #67028) POLSINELLI PC 900 W. 48th Place, Suite 900 Kansas City, Missouri 64112 Telephone: (816) 753-1000 Facsimile: (816) 753-1536 gzorogastua@polsinelli.com bwolfe@polsinelli.com Patricia G. Williams (pro hac vice to be filed) WIGGINS, WILLIAMS & WIGGINS, P.C. 1803 Rio Grande Boulevard NW Albuquerque, New Mexico 87103-1308 Telephone: (505) 764-8400 Facsimile: (505) 764-8585 pwilliams@wwwlaw.us COUNSEL FOR DEFENDANTS FARMINGTON POLICE DEPARTMENT AND DETECTIVE RUSSELL BRADFORD CERTIFICATE OF SERVICE I hereby certify that on the 17th day of August 2016, the above and foregoing was electronically filed with the Clerk of the Court using CM/ECF system, which sent notice of electronic filing to all counsel of record. /s/ G. Gabriel Zorogastua COUNSEL FOR DEFENDANTS FARMINGTON POLICE DEPARTMENT AND DETECTIVE RUSSELL BRADFORD Case 6:16-cv-03251-SRB Document 13 Filed 08/17/16 Page 19 of 19