Marquez v. Baker-Chavez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANTOINETTE MARQUEZ,
Plaintiff,
v. No. 1:24-cv-00423-KG-JMR
AMBER BAKER-CHAVEZ, et al.,
Defendants.
ORDER REGARDING CLAIMS OF REMAINING DEFENDANTS
This case arises from events occurring in conjunction with child custody proceedings in state
court. See Fifth Amended Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 110, filed
January 31, 2025 (“Fifth Amended Complaint”).1 Pro se Plaintiff asserts claims against several state
officials including judges, judicial employees and case workers, the Children, Youth and Families
Department (“CYFD”) and the State of New Mexico (collectively “the State Defendants”),
Albuquerque Public Schools, All Faiths Children’s Advocacy Center and some of its employees, a
teacher at Albuquerque Public Schools and the director of a daycare. See Fifth Amended Complaint
at 1 (naming 26 Defendants).
The Court has, after briefing by the Parties, dismissed Plaintiff’s federal-law claims against
20 Defendants with prejudice for failure to state a claim and dismissed Plaintiff’s state-law claims
against those Defendants after declining to exercise supplemental jurisdiction. See Order Granting
State Defendants’ Motion to Dismiss, Doc. 173, filed September 19, 2025 (15 Defendants); Orders
Granting in part Albuquerque Public Schools’ Motion to Dismiss, Doc. 174, filed September 23, 2025,
and Doc. 190, filed January 20, 2026; Order Granting in part all Faiths Defendants’ Motion to
Dismiss, Doc. 175, filed September 25, 2025 (four Defendants).
1 The docket incorrectly refers to the Fifth Amended Complaint as the Sixth Amended Complaint.
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Plaintiff’s claims against Defendants Stephen Matthews Torres, the law firm he is associated
with and Teresa Hanlon, an employee of the law firm, (collectively the “Torres Defendants”), and
against Defendants Billy Cobos and Jennifer Lopez remain pending. It appears that the Fifth
Amended Complaint fails to state claims pursuant to federal law against the Torres Defendants and
Defendants Cobos and Lopez for the same reasons why the Fifth Amended Complaint failed to state
federal-law claims against the other 20 Defendants. The Court orders, as described below, Plaintiff
and the Torres Defendants to address whether the Fifth Amended Complaint states federal-law claims
against the Torres Defendants and Defendants Cobos and Lopez.
Defendants Cobos and Lopez
Defendant Billy Cobos apparently is the father of the children that form part of the basis for
the state-court proceeding. See Fifth Amended Complaint at 28, ¶ 193 (“Defendant Cobos
participated in the unlawful kidnapping of his two oldest Children and has abandoned his youngest
child, actions that constitute parental interference and significant emotional harm to the Children
involved”). Defendant Jennifer Lopez is the Director at Busy Bee Daycare in Albuquerque, New
Mexico. See Fifth Amended Complaint at 8, ¶ 34; at 28, ¶¶ 197-198 (alleging Defendant Lopez
“unlawfully held the Children hostage for over 625 days” and “den[ied Plaintiff] access to the
Children”).
United States Magistrate Judge Jennifer M. Rozzoni granted Plaintiff’s motion for service on
Defendants Cobos and Lopez stating:
Because Plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915,
the Court orders the Clerk of the Court to notify Defendants, at the addresses provided
by Plaintiff in her Second Motion for Service, that an action has been commenced and
request that Defendants waive service pursuant to Fed. R. Civ. P. 4(d).
Order Granting Motion for Service at 2, Doc. 132, filed April 4, 2025. Defendants Cobos and Lopez
have not returned the waiver and have not otherwise appeared in this case.
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Plaintiff states she cannot move for entry of default due to the filing restrictions the Court has
imposed on her. See Objection at 17, Doc. 181, filed October 10, 2025. Plaintiff may file a motion
for entry of default and a motion for default judgment as to Defendants Cobos and Lopez.
The Court notifies Plaintiff that:
Default judgments are a harsh sanction. M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d
869, 872 (10th Cir.1987).
[S]trong policies favor resolution of disputes on their merits: “[T]he
default judgment must normally be viewed as available only when the
adversary process has been halted because of an essentially
unresponsive party. In that instance, the diligent party must be protected
lest he be faced with interminable delay and continued uncertainty as
to his rights. The default judgment remedy serves as such a protection.”
H.F. Livermore, 432 F.2d at 691, quoted in Cessna Fin. Corp. v. Bielenberg Masonry
Contracting, Inc., 715 F.2d 1442, 1444 (10th Cir.1983).
We do not favor default judgments because the court's power is used to
enter and enforce judgments regardless of the merits of the case, purely
as a penalty for delays in filing or other procedural error. However, a
workable system of justice requires that litigants not be free to appear
at their pleasure. We therefore must hold parties and their attorneys to
a reasonably high standard of diligence in observing the courts' rules of
procedure. The threat of judgment by default serves as an incentive to
meet this standard.
Cessna Fin. Corp., 715 F.2d at 1444-45 (citations omitted); see also Gomes v.
Williams, 420 F.2d 1364, 1366 (10th Cir.1970).
In re Rains, 946 F.2d 731, 732-33 (10th Cir. 1991). Furthermore,
[D]efault judgments are not automatic once a defendant has defaulted. See Bixler v.
Foster, 596 F.3d 751, 762 (10th Cir. 2010) (“Once default is entered, it remains for the
court to consider whether the unchallenged facts constitute a legitimate cause of
action, since a party in default does not admit mere conclusions of law.” (internal
quotation marks omitted)). Thus, in determining whether to enter a default judgment,
the district court could have conducted a hearing to establish the truth of [Plaintiff’s]
allegations. Fed. R. Civ. P. 55(b)(2)(C).
Shell v. Henderson, 622 Fed.Appx. 730, 733-34 (10th Cir. 2015) (emphasis added).
It is not clear that the facts alleged in the Fifth Amended Complaint constitute legitimate
causes of actions pursuant to federal law against Defendants Cobos and Lopez. Plaintiff is proceeding
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in forma pauperis pursuant to 28 U.S.C. § 1915 which states “the court shall dismiss the case at any
time if the court determines that . . .the action . . . fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2); Order at 3, Doc. 9, filed June 17, 2024 (granting Plaintiff’s motion
to proceed in forma pauperis). The Court orders Plaintiff to show cause why the Court should not
dismiss Plaintiff’s federal law claims against Defendants Cobos and Lopez.
The Torres Defendants
The Torres Defendants represented Defendant Billy Cobos in the state-court case. See Fifth
Amended Complaint at 11, ¶ 54 (stating attorney Stephen Matthew Torres entered his appearance as
counsel in the state-court case as counsel for Billy Cobos).
The Torres Defendants moved for dismissal of Plaintiff’s claims against them because
“[s]ervice of process was never properly executed by the Plaintiff on these Defendants.” Defendants
Stephen Matthew Torres, Teresa Hanlon and Trujillo Dodd, Torres & O’Brien, LLC, d/b/a Family
Law Firm, LLC’s (“Torres Defendants”) Joint Third Motion to Dismiss, Doc. 119, filed February 28,
2025.
Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915 which provides that
the “officers of the court shall issue and serve all process, and perform all duties in [proceedings in
forma pauperis]”). 28 U.S.C. § 1915(d). After Plaintiff filed her Fifth Amended Complaint, United
States Magistrate Judge Jennifer M. Rozzoni ordered the Clerk to request that the Torres Defendants
waive service pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. See Order, Doc. 132,
filed April 4, 2025.
The Torres Defendants waived service of the summonses and accepted service of the Fifth
Amended Complaint. See Waiver of the Service of Summons, Doc. 139, filed April 29, 2025. “A
defendant who, before being served with process, timely returns a waiver need not serve an answer
to the complaint until 60 days after the request was sent.” Fed. R. Civ. P. 4(d)(3). The Clerk’s Office
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sent a request for waiver on April 7, 2025, making the Torres Defendants’ answer due on June 6, 2025.
The Torres Defendants did not timely file an answer or motion pursuant to Rule 12 of the Federal
Rules of Civil Procedure.
The Court ordered the Torres Defendants to file an answer to the Fifth Amended Complaint
or a motion pursuant to Rule 12 of the Federal Rules of Civil Procedure. See Order Regarding
Response to Fifth Amended Complaint at 2, Doc. 176, filed October 2, 2025.
The Torres Defendants filed a “Response” but did not identify whether the Response was an
answer or a motion to dismiss. See Defendants’ Joint Response to Fifth Amended Civil Rights
Complaint Filed January 31, 2025, Doc. 179, filed October 8, 2025 (“Response”). The Court
construes the Response as an answer because the Torres Defendants “den[y] all the numbered
allegations” in the Fifth Amended Complaint. Response at 1. Although the Torres Defendants ask
the Court to “[d]eny the relief requested by the Plaintiff in its entirety and dismiss this entire matter”
the Court does not construe the Torres Defendants’ Response as a motion to dismiss because the
Torres Defendants did not file a separate brief supporting their request to deny the relief requested by
Plaintiff. See D.N.M.LR-Civ. 7.1(a) (“A motion must . . . state with particularity the grounds and the
relief sought”); D.N.M.LR-Civ. 7.3(a) (“A motion, response or reply must cite authority in support of
the legal positions advanced. Movant’s authority may be submitted in a separate brief filed and served
contemporaneously with the motion”).
The deadline for the Torres Defendants to file a motion to dismiss for failure to state a claim
has passed. See Fed. R. Civ. P. 12(b) (“A motion [to dismiss] asserting any of these defenses [listing,
among others “failure to state a claim upon which relief can be granted”] must be made before
pleading if a responsive pleading is allowed”). However, the deadline for filing a motion for judgment
on the pleadings has not yet passed. See Fed. R. Civ. P. 12(c) (“After the pleadings are closed—but
early enough not to delay trial—a party may move for judgment on the pleadings”);
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Fed. R. Civ. P. 12(h)(2)(B) (“Failure to state a claim upon which relief can be granted . . . may be
raised . . . by a motion under Rule 12(c) [motion for judgment on the pleadings]”). Because a ruling
on a motion for judgment on the pleadings may dispose of all the claims against the Torres
Defendants, the Court orders the Torres Defendants, if they intend to file a motion for judgment on
the pleadings, to file the motion within 21 days of entry of this Order, to avoid any unnecessary pretrial
proceedings. The Court declines to evaluate the Fifth Amended Complaint for failure to state a claim
pursuant to Section 1915(e)(2), as it is for Defendants Cobos and Lopez, because the Torres
Defendants have appeared in this action. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th
Cir. 1998) (“we, like the district courts, have a limited and neutral role in the adversarial process, and
are wary of becoming advocates who comb the record of previously available evidence and make a
party's case for it”).
The Court has imposed filing restrictions on Plaintiff and listed several exceptions to the filing
restrictions. See Order Imposing Filing Restrictions at 8, Doc. 156, filed June 24, 2025 (stating the
Court may order additional exceptions later). The Court now orders the following additional
exception to the filing restrictions. Plaintiff may file documents related to her claims against the
Torres Defendants including responses to any documents the Torres Defendants file. The Court
reminds Plaintiff that failure to comply with Court Orders and the Federal and Local Rules of Civil
Procedure may result in monetary and non-monetary sanctions including filing restrictions and
dismissal of this case. See Fed. R. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to dismiss the action”); Gustafson v. Luke, 696
Fed.Appx. 352, 354 (10th Cir. 2017) (“Although the language of Rule 41(b) requires that the
defendant file a motion to dismiss, the Rule has long been interpreted to permit courts to dismiss
actions sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or
court's orders.”) (quoting Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)).
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IT IS ORDERED that:
(i) Plaintiff may file a motion for entry of default and a motion for default judgment as to
Defendants Cobos and Lopez.
(ii) Plaintiff shall, within 21 days of entry of this Order, show cause why the Court should
not dismiss Plaintiff’s federal-law claims against Defendants Billy Cobos and Jennifer
Lopez for failure to state a claim. Failure to timely show cause may result in dismissal
of those claims.
(iii) The Torres Defendants may, within 21 days of entry of this Order, file a motion for
judgment on the pleadings. Failure to timely file a motion for judgment on the
pleadings may result in the Court proceeding with pretrial matters.
(iv) Plaintiff may file documents related to her claims against the Torres Defendants
including responses to any documents the Torres Defendants file.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its authenticity,
please refer to the Digital File Stamp on the
NEF (Notice of Electronic Filing)
accompanying this document. Electronically
filed documents can be found on the Court’s
PACER public access system.
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