Kruskal v. Melliger

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 KERRY KRUSKAL,

3 Plaintiff-Appellant,

4 v. NO. 34,229

5 MIKE MELLIGER AND
6 SABROSO RESTAURANT,
7 d/b/a SABROSO L.L.C.,

8 Defendants-Appellees.

9 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
10 Sarah C. Backus, District Judge

11 Kerry Kruskal
12 Arroyo Seco, NM

13 Pro Se Appellant

14 Walcott & Henry P.C.
15 Charles V. Henry, IV
16 Santa Fe, NM

17 for Appellees

18 MEMORANDUM OPINION
 1 WECHSLER, Judge.

2 {1} Plaintiff Kerry Kruskal (Plaintiff), in a self-represented capacity, appeals from

3 the district court’s order dismissing with prejudice his complaint against Defendants

4 Mike Mellinger and Sabroso Restaurant (Defendants). [RP 38] This Court issued a

5 calendar notice proposing to affirm. Plaintiff has filed a “response to proposed

6 disposition,” which we duly considered. Unpersuaded, we affirm.

7 {2} In this Court’s calendar notice, we noted that the New Mexico Human Rights

8 Act (NMHRA) does not provide for de novo trial in district court where a person has

9 not first exercised the process available through the NMHRA. See NMSA 1978, § 28-

10 1-10 (2005) (providing for trial de novo in district court in lieu of a hearing before the

11 division); NMSA 1978, § 28-1-13 (2005) (providing for trial de novo in district court

12 on an appeal from an order of the division). [CN 2] This Court further noted that the

13 district court does not have jurisdiction of a NMHRA matter until Plaintiff has

14 exercised the administrative remedies available to him under the NMHRA. See

15 Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶ 10, 127 N.M. 282, 980 P.2d 65

16 (providing that under the NMHRA, a plaintiff must exhaust his or her administrative

17 remedies against a party before bringing an action in district court against that party);

18 see also In re Application of Angel Fire Corp., 1981-NMSC-095, ¶ 5, 96 N.M. 651,

2
 1 634 P.2d 202 (“Jurisdiction of the matters in dispute does not lie in the courts until the

2 statutorily required administrative procedures are fully complied with.”). [CN 2–3]

3 {3} In response, Plaintiff asserts that he has filed a complaint with an administrative

4 agency other than the Human Rights Commission (Commission). [Response 1]

5 Plaintiff does not, however, assert that he filed a complaint with the Commission and

6 either completed the procedure to waive a hearing before the Commission in favor of

7 a trial de novo in district court pursuant to Section 28-1-10, or sought a trial de novo

8 in district court on appeal from an unfavorable decision by the Commission as

9 permitted by Section 28-1-13. Plaintiff thus has not shown that he exhausted his

10 administrative remedies and that the district court had jurisdiction of his claim.

11 {4} For the reasons set forth in our notice and above, we affirm.

12 {5} IT IS SO ORDERED.

13 ________________________________
14 JAMES J. WECHSLER, Judge

15 WE CONCUR:

16 ________________________________
17 JONATHAN B. SUTIN, Judge

18 ________________________________
19 M. MONICA ZAMORA, Judge

3