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Payne v. Wilder

United States District Court, D. New Mexico

January 3, 2017

CARA PAYNE, Plaintiff,

          Miguel Garcia John R. Hakanson, P.C. Alamogordo, New Mexico Attorneys for the Plaintif.

          Damian L. Martinez Holt Mynatt Martinez, P.C. Las Cruces, New Mexico Attorneys for Defendant Lee Wilder.

          Lee M. Rogers Carla Neush Williams Atwood, Malone, Turner, & Sabin, P.A. Roswell, New Mexico Attorneys for Defendants David Ceballes and Mayfritz Bucag.


         THIS MATTER comes before the Court on Defendant Ceballes' Motion and Memorandum to Dismiss Plaintiff's Declaratory and Injunctive Relief Claims, filed September 27, 2016 (Doc. 10)(“MTD”). The primary issues are: (i) whether Plaintiff Cara Payne has demonstrated that she has standing to bring her claims for prospective injunctive relief against Defendant David Ceballes, the District Attorney for the State of New Mexico in Otero County, where her alleged injury is the threat of prosecution by Ceballes pursuant to NMSA § 30-6-4; and (ii) whether Payne has stated a claim that § 30-6-4 is either unconstitutional on its face or is unconstitutional as applied to Payne. Because the Court concludes that Payne's claim against Ceballes is not ripe for review, the Court will dismiss Ceballes from this case.


         The Court draws its recitation of the relevant facts from Payne's Amended Complaint for Damages and Petition for Declaratory and Injunctive Relief, filed April 19, 2016 (Doc. 1-2)(“Complaint”). On July 8, 2015, Defendant Lee Wilder, a law enforcement officer in Otero County, New Mexico, stopped and seized Payne in Alamogordo, New Mexico, for driving with a suspended license. See Complaint ¶ 7, at 1. Wilder represented that he was conducting a child abuse investigation, forced Payne to do a field sobriety test, and attempted to force Payne to allow him to search a home that Payne was house sitting. See Complaint ¶¶ 7-11, at 2-3. Wilder, Payne alleges, did not have reasonable suspicion to support the notion that Payne was intoxicated. See Complaint ¶¶ 8-9, at 2. Regarding the home search, Payne refused to allow the search, and told Wilder that she had previously been under investigation by the State of New Mexico Children, Youth, and Families Department, but that the investigation did not support allegations of abuse. See Complaint ¶¶ 10-11, at 2-3. Upon the refusal, Wilder contacted Defendant Mayfritz Bucag, a CYFD investigator, who then contacted Payne's ex-husband and ordered him to not allow Payne custody of their children. See Complaint ¶¶ 12-14, at 3. Payne did not have custody or visitation rights after this traffic stop, despite having the right to custody and visitation. See Complaint ¶¶ 15-16, at 3.

         Wilder and Bucag then petitioned the district attorney's office in Otero County to file criminal charges against Payne for refusing to allow the search of the house where she was house sitting. See Complaint ¶¶ 18, at 4. In particular, the criminal charges would flow pursuant to § 30-6-4, which relates to obstruction of reporting or investigating child abuse or neglect. See Complaint ¶¶ 19, at 4. Wilder expects that charges will be filed against Payne. See Complaint ¶ 20, at 4.


         With respect to Ceballes, Payne has petitioned the Twelfth Judicial District Court, County of Otero, for declaratory and injunctive relief against Ceballes' filing of criminal charges against her under § 30-6-4. See Complaint at 1. Wilder, one of Ceballes' co-Defendants, removed the case to federal court. See Notice of Removal, filed April 19, 2016 (Doc. 1). Payne alleges that Wilder and Bucag have committed a violation of her due process rights under the Constitution of the United States of America and the Constitution of the State of New Mexico. See Complaint ¶¶ 22-32, at 4-6. Payne also alleges that § 30-6-4 is unconstitutional, because it violates the Fourth Amendment to the Constitution of the United States of America and Article II, § 10, of the New Mexico Constitution. See Complaint ¶ 21, at 4. Additionally, in response, Ceballes has filed his MTD, arguing that Payne lacks an injury in fact, and therefore standing, to bring this suit against him, and also that Payne has failed to state a claim of § 30-6-4's unconstitutionality. See MTD at 1.

         1. The MTD.

         The MTD argues that, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court should dismiss Payne's Complaint against Ceballes requesting injunctive and declaratory relief from Ceballes' filing of criminal charges against her under § 30-6-4. See MTD at 1-2. According to the MTD, Payne lacks “standing to petition this Court for prospective injunctive and declaratory relief” against Ceballes, because Payne has not established an injury in fact. MTD at 2-3. Such standing is lacking, the MTD argues, because “[c]oncrete fear of prosecution that has a chilling effect on one's freedom is insufficient to support standing, unless there is a credible threat of prosecution.” MTD at 3 (citing Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir. 2006)). The MTD provides that, in Winsness v. Yocom, the United States Court of Appeals for the Tenth Circuit

ruled that mere fear of prosecution was not enough without a credible threat of prosecution. . . . [and that] brief prosecution does not change the fact that he faces no credible threat of future prosecution [because] it is no more than speculation to predict that Mr. Winsness will again face criminal proceedings for altering the flag.

         MTD at 4 (citing Winsness v. Yocom, 433 F.3d at 733). Accordingly, the MTD argues that Payne has similarly “pled insufficient facts of actual or imminent threat of prosecution.” MTD at 4. Payne “has not alleged that (1) she has been arrested; (2) there is an actual or imminent threat of prosecution; (3) Defendant Ceballes, or anyone on his behalf, has filed charges or even threatened charges; or (4) Plaintiff has received threats of any kind from Defendant Ceballes.” MTD at 4.

         The MTD next argues that, while Payne has not shown that she has suffered an injury in fact, she has also pled insufficient facts to satisfy the second requirement of standing, causation. See MTD at 4. The MTD argues that because Payne has “merely pled that Defendants Wilder and Bucag have asked Defendant Ceballes to file charges, ” and “has not alleged that Ceballes performed or took any action that can be traced back to Plaintiff's alleged injury, ” Payne has failed to plead sufficient facts that her alleged injuries are traceable to Ceballes. MTD at 5. Accordingly, the MTD also argues that, because Payne has suffered no injury in fact that is traceable to Ceballes, she cannot “show that an injunction or declaratory relief will redress a nonexistent injury.” MTD at 5.

         The MTD last argues that Payne “has failed to plead sufficient facts to support that” § 30-6-4 “is unconstitutional” on its face or as applied to Payne. MTD at 5. Ceballes argues: “Rather, Plaintiff only alleges that [§] 30-6-4 is unconstitutional on its face because, according to Plaintiff, the statute allows for law enforcement to perform illegal searches of a residence without probable cause or risk criminal prosecution.” MTD at 5.

         2. The Response.

         The Plaintiff's Response to Defendant Ceballes' Motion to Dismiss, filed October 10, 2016 (Doc. 11)(“Response”), argues that Payne “has proven standing in this case as there has been a credible threat made against Plaintiff.” Response at 1. The Response argues that, in Payne's Complaint, she alleged that “[s]ince Wilder and Bucag's interactions with this case, both have petitioned the district attorney's office for the Twelfth Judicial District to file criminal charges against Plaintiff for Plaintiff failing to allow a search of the house that she was house sitting.” Response at 1. The Response also provides that “Wilder expects that charges will be filed against Plaintiff.” Response at 2. Thus, the Response argues, “the allegations show that Wilder and Bucag have petitioned the District Attorney's Office and that Wilder expects that charges will be filed.” Response at 2. Accordingly, the Response argues that Payne has demonstrated standing. See Response at 1.

         Next, the Response argues that the “allegations in the complaint support a claim having been stated for the statute being unconstitutional.” Response at 2. This adequacy is so, the Response argues, because the Complaint alleges that § 30-6-4 “violates the New Mexico Constitution on its face and as it is applied to Plaintiff as it requires Plaintiff to allow a search of the home in which she is staying without a warrant and without probable cause or any proper justification.” Response at 2. Last, the Response requests that, should the Court determine that the Complaint has not stated a claim, it allow Payne to amend her Complaint to meet the federal standard of pleading instead of the state standard, under which Payne originally pled the Complaint. See Response at 3.

         3. The Reply.

         The Reply of Defendant David Ceballes in Support of his Motion to Dismiss Plaintiff's Declaratory and Injunctive Relief Claims, filed October 11, 2016 (Doc. 12)(“Reply”), argues, again, that the “Plaintiff lacks standing to petition this court for prospective injunctive and declaratory relief . . . against Defendant Ceballes, ” because Payne has not proved standing. Reply at 1. The Reply insists that the Response's assertion that Payne proved standing by pleading “that co-defendants Wilder and Bucag have petitioned the district attorney's office to file charges against Plaintiff . . . [and] Wilder expects that charges will be filed, ” fails to satisfy the standard for demonstrating an injury in fact that is traceable to Ceballes. Reply at 1. The Reply reiterates that Payne has not “alleged that Defendant Ceballes has taken any action, much less threatened prosecution.” Reply at 2.

         The Reply also reiterates that the “Plaintiff has failed to plead sufficient facts to support that” § 30-6-4 “is unconstitutional.” Reply at 2. With respect to the Response, the Reply argues that Payne has not responded to Ceballes' arguments and has only repeated the allegations that the MTD argues pleaded insufficient facts. See Reply at 3. With respect to the Response's request for leave to amend, the Reply argues that any such amendment would be futile, because the request identifies no additional facts that would support a claim that § 30-6-4 is unconstitutional. See Reply at 3.

         4. The Hearing.

         The Court held a hearing on October 28, 2016. See Transcript of Hearing, taken October 28, 2016 (“Tr.”).[1] At the hearing, Ceballes reiterated his position that “the plaintiff does not have any standing to sue the district attorney for the prospective injunctive relief that she seeks, because she has not suffered any injury in fact, which is the first of three prongs under the standing analysis.” Tr. at 3:18-24 (Evans). Ceballes argued that “the reason that she has not suffered any injury in fact . . . is there is in the complaint no clear credible imminent threat of prosecution.” Tr. at 3:25-4:2 (Evans). According to Ceballes, all “the complaint says is that the district attorney has been asked by investigating officers over a year ago to bring charges.” Tr. at 4: 2-5 (Evans). Accordingly, Ceballes concluded that “there is according to the face of the complaint no clear imminent threat of prosecution, therefore Ms. Payne has not suffered injury in fact.” Tr. at 4:9-12 (Evans). The Court then confirmed with Ceballes that, although his MTD was called a rule 12(b)(6) motion, it was really a rule 12(b)(1) motion alleging that the Court lacked jurisdiction over this case. See Tr. at 4:15-19 (Court). Ceballes then explained that the claims against Wilder and Bucag are under 42 U.S.C. § 1983, whereas the only claim against Ceballes is for prospective injunctive relief. See Tr. at 5:3-6 (Evans). According to Ceballes, then, “in a situation like this, where . . . in the complaint there is nothing more than the investigating officers asking that charges be brought . . . the plaintiff has not established standing.” Tr at 6:6-10 (Evans). That conclusion is important, Ceballes argued, because

I would hazard to guess that the investigating officers in almost every situation where a person is involved with the criminal law asked the DA to bring charges and if that were enough to allow a person to move for injunctive relief against being charged, then we would have, could have a lawsuit similar to this in every situation.

Tr. at 6:10-17 (Evans). Then, in response to the Court's query why the prosecutorial office had not simply said it was not going to bring these charges, Ceballes' attorney said that he had not yet heard from Ceballes on this matter, and could not, as of yet, tell the Court why the prosecution had not happened. See Tr. at 7:21-8:2 (Evans).

         Payne then took up argument, and told the Court that “we made a claim against the district attorney, based upon the deposition testimony of deputy Wilder who had stated that he had presented these charges to the district attorney for charging, and expected that those charges would be filed.” Tr. at 8:20-25 (Garcia). Payne then reiterated her argument in the Response that she had pled sufficient facts to demonstrate that there is a credible threat of prosecution, because investigating officers asked Ceballes to bring the charges and expected that he would. See Tr. at 9:1-25 (Garcia). Payne argues that she has pled a credible threat of prosecution, because, until Ceballes files the charges, this situation is the closest one may come to a credible threat that the charges will indeed be filed against Payne. See Tr. at 10:3-9 (Garcia). Payne then turned to her constitutional argument, explaining that “we alleged that any prosecution under this statute as it is applied to plaintiff would violate the Fourth Amendment, ” because the statute authorizes a search by officers on a lesser modicum of evidence than is typically required when executing a warrant. Tr. at 10:22-11:10 (Garcia).

         The Court then gave its inclination, stating that “I'm skeptical you can bring a case like this. I don't know if it's a standing issue but it seems to me not many people poke a sleeping dog and say hey are you going to charge me about a criminal proceeding.” Tr. at 12: 2-6 (Court). Further, the Court said it would not have any power to do much with a pending state case, so “it would surprise me that I've got any more power to start enjoining state prosecutors . . . from bringing a state case.” Tr. at 12:10-14 (Court). The Court also indicated that the state courts were an effective forum to voice the constitutional claims should charges ultimately be filed. See Tr. at 12:14-25 (Court). “It's going to surprise me if this case survives.” Tr. at 12:25 (Court). The Court then took the MTD under advisement, indicating that it was not certain standing was the problem, but that it was skeptical a claim such as this one could survive. See Tr. at 14:10-15:9 (Court).


         “Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir. 1994)(citations omitted). A plaintiff generally bears the burden of demonstrating the court's jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998)(“[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”). “[Because] federal courts are courts of limited jurisdiction, we presume no jurisdiction exists absent an adequate showing by the party invoking federal jurisdiction.” United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999). Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to raise by motion the defense of the court's “lack of jurisdiction over the subject matter.” Fed.R.Civ.P. 12(b)(1). The Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject-matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).

On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court must consider the complaint's allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981). But when the attack is aimed at the jurisdictional facts themselves, a district court may not presume the truthfulness of those allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 [summary-judgment] motion.

Alto Eldorado Partners v. City of Santa Fe, 2009 WL 1312856, at *8-9 (D.N.M. 2009)(Browning, J.)(citations omitted), aff'd on other grounds by 634 F.3d 1170 (10th Cir. 2011). The United States Court of Appeals for the Fifth Circuit has stated:

[T]he trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction --its very power to hear the case -- there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981)(quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).

         When making a rule 12(b)(1) motion, a party may go beyond the complaint's allegations to challenge the facts upon which jurisdiction depends, and may do so by relying on affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). In those instances, a court's reference to evidence outside the pleadings does not necessarily convert the motion to a rule 56 motion for summary judgment. See Holt v. United States, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). Where, however, the court determines that jurisdictional issues raised in a rule 12(b)(1) motion are intertwined with the case's merits, the court should resolve the motion under either rule 12(b)(6) or rule 56. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir. 1999); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir. 1997). “When deciding whether jurisdiction is intertwined with the merits of a particular dispute, ‘the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.'” Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir. 2003)(quoting Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002)).


         Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)(Brorby, J.). The complaint's sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(Briscoe, J.)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”)(citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).

         A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp v. Twombly, 550 U.S. at 555 (citation omitted).

         To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010)(Seymour, J.). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d at 1177 (emphasis omitted). The Tenth Circuit has stated:

“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570)(citations omitted).

         Although affirmative defenses must generally be pled in the defendant's answer, not argued on a motion to dismiss, see Fed.R.Civ.P. 8(c), there are exceptions where: (i) the defendant asserts an immunity defense -- the courts handle these cases differently than other motions to dismiss, see Glover v. Gartman, 899 F.Supp.2d 1115, 1137-39, 1141 (D.N.M. 2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223 (2009) and Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008)); and (ii) where the facts establishing the affirmative defense are apparent on the face of the complaint, see Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965)(Hill, J.)(“Under Rule 12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to state a claim. If the defense appears plainly on the face of the complaint itself, the motion may be disposed of under this rule.”).


         A federal court may hear cases only where the plaintiff has standing to sue. Standing has two components. First, standing has a constitutional component arising from Article III's requirement that federal courts hear only genuine cases or controversies. Second, standing has a prudential component. See Habecker v. Town of Estes Park, Colo., 518 F.3d 1217, 1224 n.7 (10th Cir. 2008)(Lucero, J.)(noting that prudential standing concerns may prevent judicial resolution of a case even where constitutional standing exists). The burden of establishing standing rests on the plaintiff. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998). The plaintiff must “allege . . . facts essential to show jurisdiction. If they fail to make the necessary allegations, they have no standing.” FW/PBS v. City of Dallas, 493 U.S. 215, 231 (1990)(internal citations and quotations omitted). Moreover, where the defendant challenges standing, a court must presume lack of jurisdiction “unless the contrary appears affirmatively from the record.” Renne v. Geary, 501 U.S. 312, 316 (1991)(quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986))(internal quotation marks omitted). “It is a long-settled principle that standing cannot be inferred argumentatively from averments in the pleadings but rather must affirmatively appear in the record.” Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997)(Henry, J.)(quoting FW/PBS v. City of Dallas, 493 U.S. at 231)(citations omitted)(internal quotation marks omitted).

         1. Article III Standing.

         “Article III of the Constitution limits the jurisdiction of federal courts to Cases and Controversies.” San Juan Cty., Utah v. United States, 503 F.3d 1163, 1171 (10th Cir. 2007)(en banc). See U.S. Const. art. III, § 2. “In general, this inquiry seeks to determine ‘whether [the plaintiff has] such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.'” Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1241 (10th Cir. 2008)(Ebel, J.) (quoting Massachusetts v. EPA, 549 U.S. 497, 539 (2007))(internal quotation marks omitted). “[A] suit does not present a Case or Controversy unless the plaintiff satisfies the requirements of Article III standing.” San Juan Cty., Utah v. United States, 503 F.3d at 1171. To establish standing, a plaintiff must show three things: “(1) an injury in fact that is both concrete and particularized as well as actual or imminent; (2) a causal relationship between the injury and the challenged conduct; and (3) a likelihood that the injury would be redressed by a favorable decision.” Protocols, LLC v. Leavitt, 549 F.3d 1294, 1298 (10th Cir. 2008)(Hartz, J.)(internal quotation marks omitted).

         “Standing is determined as of the time the action is brought.” Smith v. U.S. Court of Appeals, for the Tenth Circuit, 484 F.3d 1281, 1285 (10th Cir. 2007)(Seymour, J.) (quoting Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005)(Ebel, J.)). In Smith v. U.S. Court of Appeals, for the Tenth Circuit, the Tenth Circuit rejected a plaintiff's standing to challenge the Colorado appellate courts' practice of deciding cases in non-precedential, unpublished opinions, which the plaintiff asserted allowed courts to affirm incorrect decisions without interfering with official, “published” law. 484 F.3d at 1285. The Tenth Circuit noted that the plaintiff had recently taken his state appeal and, therefore,

was in no position to challenge the adequacy of state appellate review in cases culminating in unpublished opinions unless he could show that he would in fact receive such review from the state court of appeals (and from the state supreme court as well, if it took the case on certiorari).

484 F.3d at 1285.

         By contrast, in Nova Health Sys. v. Gandy, the Tenth Circuit found that abortion providers had standing to challenge an Oklahoma parental-notification law on the grounds that they were in imminent danger of losing patients because of the new law. See 416 F.3d 1154. Although finding standing, the Tenth Circuit was careful to frame the issue as whether, “as of June 2001 [the time the lawsuit was filed], ” Nova Health faced any imminent likelihood that it would lose some minor patients seeking abortions. 416 F.3d at 1155. Moreover, while focusing on the time of filing, the Tenth Circuit allowed the use of evidence from later events --prospective patients lost because of the notification law after the lawsuit began -- to demonstrate that the plaintiff faced an imminent threat as of the time of filing. See 416 F.3d at 1155.

         The mere presence on the books of an unconstitutional statute, in the absence of enforcement or credible threat of enforcement, does not entitle anyone to sue, even if they allege an inhibiting effect on constitutionally protected conduct that the statute prohibits. See Winsness v. Yocom, 433 F.3d at 732. “This does not necessarily mean that a statute must be enforced against the plaintiff before he can sue.” Winsness v. Yocom, 433 F.3d at 732 (quoting Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003)). Where a plaintiff can show a “credible threat of prosecution, ” they can sue for prospective relief against enforcement. Winsness v. Yocom, 433 F.3d at 732 (quoting Ward v. Utah, 321 F.3d at 1267). Thus, to satisfy Article III, the “plaintiff's expressive activities must be inhibited by an objectively justified fear of real consequences, which can be satisfied by showing a credible threat of prosecution or other consequences following from the statute's enforcement.” Winsness v. Yocom, 433 F.3d at 732 (internal quotations omitted). See Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir.1987)(holding that the plaintiff has standing where he suffers “an ongoing injury resulting from the statute's chilling effect on his desire to exercise his First Amendment rights”).

         2. Prudential Standing.

         “Prudential standing is not jurisdictional in the same sense as Article III standing.” Finstuen v. Crutcher, 496 F.3d 1139, 1147 (10th Cir. 2007)(Ebel, J.). Prudential standing consists of “a judicially-created set of principles that, like constitutional standing, places limits on the class of persons who may invoke the courts' decisional and remedial powers.” Bd. of Cty. Comm'rs v. Geringer, 297 F.3d 1108, 1112 (10th Cir. 2002)(Ebel, J.) (internal quotation marks omitted). Generally, there are three prudential-standing requirements: (i) “a plaintiff must assert his own rights, rather than those belonging to third parties”; (ii) “the plaintiff's claim must not be a generalized grievance shared in substantially equal measure by all or a large class of citizens”; and (iii) “a plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.” Bd. of Cty. Comm'rs v. Geringer, 297 F.3d at 1112 (internal quotation marks and citations omitted).

         Traditionally, federal courts framed the zone-of-interests test as an issue of prudential standing. The Supreme Court recently clarified that the zone-of-interests analysis “is an issue that requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff's claim.” Lexmark Int'l v. Static Control Components, 134 S.Ct. 1377, 1387 (2014). Statutory standing “extends only to plaintiffs whose interests fall within the zone of interests protected by the law invoked.” Lexmark Int'l v. Static Control Components, 134 S.Ct. at 1387. Notably, the Supreme Court stated that it “often ‘conspicuously included the word ‘arguably' in the test to indicate that the benefit of any doubt goes to the plaintiff.'” Lexmark Int'l v. Static Control Components, 134 S.Ct. at 1389 (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199 (2012)). Moreover, the test “forecloses suit only when a plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized the plaintiff to sue.” Lexmark Int'l v. Static Control Components, 134 S.Ct. at 1389 (internal quotation marks and citations omitted). This “lenient approach” preserves the APA's flexible judicial-review provisions. Lexmark Int'l v. Static Control Components, 134 S.Ct. at 1389.


         “In order for a claim to be justiciable under Article III, it must be shown to be a ripe controversy.” New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995). Ripeness pertains to the timing of a case and is intended “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” New Mexicans for Bill Richardson v. Gonzales, 64 F.3d at 1499 (citation omitted)(internal quotation marks omitted). Ripeness is a component of the Article III requirement that limits judicial review to “cases or controversies.” U.S. Const. art. III, § 2. See U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1208 (10th Cir. 1999). A controversy must be “definite and concrete, touching the legal relations of parties having adverse legal interests, ” and “a real and substantial controversy admitting of specific relief through a decree of a conclusive character.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937). “[T]he question in each case is whether the facts alleged, under all circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007)(citation omitted).

         In MedImmune, Inc. v. Genentech, Inc., a patent licensee, who continued to pay royalties for use of the patent, brought a declaratory-judgment action against the patent holder to determine whether the patent was invalid or unenforceable. See 549 U.S. at 121-25. What appeared to be missing in the case was the requisite immediacy -- there was little likelihood that the patent holder would ever bring suit against the licensee, because the licensee was continuing to pay royalties. See 549 U.S. at 121-25. Nevertheless, the Supreme Court held that there was an actual case or controversy, because the looming threat of the licensee having to pay treble damages, if it halted payments and the patent was ultimately upheld, “coerced” the licensee's payment of royalties. 549 U.S. at 129. Avoidance of such dilemmas “was the very purpose of the Declaratory Judgment Act.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. at 129. See 28 U.S. Code § 2201. Two cases concerning foreign policy illustrate the need for the facts to mature before declaratory-judgment jurisdiction arises. In Rabinowitz v. Kennedy, 376 U.S. 605 (1964), the Supreme Court held that the petitioner attorneys were not exempt from registration under the Foreign Agents Registration Act, but it refused to consider whether the questions asked on the registration forms were proper. See 376 U.S. at 610. See also 22 U.S.C. § 611. Noting that the forms advised registrants that federal regulations allowed them to apply for waivers of inappropriate or unduly burdensome requirements, it said: “Since petitioners have made no attempt to determine which questions must be answered and how much information disclosed, this issue is not ripe for adjudication.” Rabinowitz v. Kennedy, 376 U.S. at 610. In Zemel v. Rusk, 381 U.S. 1 (1965), the Supreme Court refused to consider Zemel's claim that he was constitutionally entitled to travel to Cuba. See 381 U.S. at 3. The Supreme Court explained that it would need to know the specifics of the travel:

The complaint filed in this case does not specify the sort of travel to Cuba appellant has in mind -- e.g., whether he plans to proceed to Cuba directly or travel there via one or more other countries. Nor can we tell from the papers filed whether the Government will, in the event appellant journeys to Cuba, charge him under § 215(b) with leaving the United States on a carrier bound for Cuba with a passport not validated for Cuba; leaving the United States with such a passport with the intent of traveling to Cuba before he returns home; leaving the United States with such a passport on a journey which in fact takes him to Cuba; re-entering the United States with such a passport after having visited Cuba; some other act -- or whether it will charge him at all. Whether each or any of these gradations of fact or charge would make a difference as to criminal liability is an issue on which the District Court wisely took no position. Nor do we. For if we are to avoid rendering a series of advisory opinions, adjudication of the reach and constitutionality of § 215(b) must await a concrete fact situation.

381 U.S. at 19-20.

         In Eccles v. Peoples Bank, 333 U.S. 426 (1948), the Supreme Court held that a declaratory-judgment action was not ripe. See 333 U.S. at 427. The bank sought to challenge a condition imposed on its membership in the Federal Reserve System that restricted Transamerica Corporation's ownership of its stock. See 333 U.S. at 428-29. Transamerica Corporation had acquired a few shares of stock, but only for investment, and not to obtain any control over the bank, which was what the membership condition was meant to prevent. See 333 U.S. at 430-31. The bank filed suit, because it feared that, if it lost its membership, its deposits would not be insured. See 333 U.S. at 427. When the bank brought suit, however, the bank failed to show “[t]he actuality of the plaintiff's need for a declaration of his rights.” 333 U.S. at 432. The Federal Reserve Board “disavow[ed] any action to terminate the Bank's membership” under the existing circumstances. 333 U.S. at 432. The Supreme Court described the suit:

[T]he Bank seeks a declaration of its rights if it should lose its independence [from Transamerica Corporation], or if the Board of Governors should reverse its policy and seek to invoke the condition even though the Bank remains independent and if then the Directors of the Federal Deposit Insurance Corporation should not change their policy not to grant deposit insurance to the Bank as a non-member of the Federal Reserve System.

333 U.S. at 432. In the Supreme Court's view, “[t]he concurrence of these contingent events, necessary for injury to be realized, is too speculative to warrant anticipatory judicial determinations.” 333 U.S. at 432. It concluded: “[The] Bank's grievance here is too remote and insubstantial, too speculative in nature, to justify an injunction against the Board of Governors, and therefore equally inappropriate for a declaration of rights.” 333 U.S. at 434. Addressing these Supreme Court cases, the Tenth Circuit has held: “The Court made clear that generally one cannot bring a declaratory judgment action just to resolve one isolated issue in a possible future controversy.” Columbian Fin. Corp. v. BancInsure, Inc., 650 F.3d 1372, 1380 (10th Cir. 2011).

         In Plant Oil Powered Diesel Fuel Systems, Inc. v. ExxonMobil Corp., 801 F.Supp.2d 1163 (D.N.M. 2011)(Browning, J.), the Court held that certain claims that a proposed fit-for-purpose guideline violated antitrust principles was not ripe, because the plaintiff had not shown a hardship, and because the claims were based on “uncertain or contingent future events.” 801 F.Supp.2d at 1184. The Court found that, “[b]ecause the Fit-for-Purpose Guidelines are both in their early stages and because their development is on-going, creating uncertainty what form they will ultimately take if and when they are submitted for approval, the Court concludes that POP Diesel's claims based on the Fit-for-Purpose Guidelines are premature.” Plant Oil Powered Diesel Fuel Sys., Inc. v. ExxonMobil Corp, 801 F.Supp.2d at 1185. In Carroll v. Los Alamos National Security, LLC, 704 F.Supp.2d 1200 (D.N.M. 2010)(Browning, J.), the Court concluded that negligent misrepresentation claims were ripe for adjudication. See 704 F.Supp.2d at 1219. There, the defendant conceded that an employee gave the plaintiff incorrect information when the plaintiff was deciding on a pension plan. See 704 F.Supp.2d at 1219. The Court concluded that the plaintiff had a legally protected interest in being given correct information regarding his pension-plan options and in making a fully informed selection. See 704 F.Supp.2d at 1220. The Court held that, because the plaintiff had a legally protected interest in receiving accurate information and there was no dispute that he did not, he was injured, and the matter was ripe for adjudication. See 704 F.Supp.2d at 1220. With respect to the cause of action's accrual, the Court concluded that the claim had accrued, because the plaintiff had suffered an injury, which gave rise to a claim, even though he had not yet suffered damages. See 704 F.Supp.2d at 1221. Ultimately, however, the Court granted the defendants' motion for summary judgment on the negligent misrepresentation claims, because the plaintiff had not established that the defendants caused him harm or that the defendants' conduct would harm him in the future. See 704 F.Supp.2d at 1226.


         The Federal Declaratory Judgment Act provides that “[i]n a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). “[D]istrict courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995). In Brillhart v. Excess Insurance Co. of America, 316 U.S. 491 (1942), the Supreme Court explained that district courts are “under no compulsion to exercise . . . jurisdiction” under the Federal Declaratory Judgment Act. 316 U.S. at 494. The Supreme Court explained:

Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties. Gratuitous interference with the orderly and comprehensive disposition of a state court litigation should be avoided.

316 U.S. at 495. A court should determine whether the lawsuit “can be better settled in the proceeding pending in the state court.” Brillhart v. Excess Ins. Co. of Am., 316 U.S. at 495.

         The Tenth Circuit has adopted a five-factor test for evaluating whether a district court should exercise its discretionary jurisdiction over a declaratory judgment action:

[1] whether a declaratory action would settle the controversy; [2] whether it would serve a useful purpose in clarifying the legal relations at issue; [3] whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an arena for a race to res judicata ”; [4] whether use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and [5] whether there is an alternative remedy which is better or more effective.

St. Paul Fire and Marine Ins. Co. v. Runyon, 53 F.3d 1167, 1169 (10th Cir. 1995)(quoting State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 983 (10th Cir. 1994)). In St. Paul Fire and Marine Insurance Co. v. Runyon, the plaintiff, an insurance company, sought a declaratory judgment that it had no obligation to defend the defendant under the terms of a professional liability insurance policy. See 53 F.3d at 1168. The defendant sought indemnification and defense for claims that his coworkers brought. See 53 F.3d at 1168. The insurance-company plaintiff refused to provide a defense. See 53 F.3d at 1168. After three years of negotiation, the defendant told the insurance-company plaintiff that he would initiate a state court suit for breach of contract and bad faith by February 18, 1994 if it did not assume his defense. See 53 F.3d at 1168. On February 17, 1994, the insurance-company plaintiff filed a federal court diversity action for declaratory judgment. See 53 F.3d at 1168. The defendant filed a complaint for bad faith and breach of contract in state court on February 18, 1994. See 53 F.3d at 1168.

         The Tenth Circuit noted that the federal declaratory-judgment statute, 28 U.S.C. § 2201, “vests the federal courts with power and competence to issue a declaration of rights.” St. Paul Fire and Marine Ins. Co. v. Runyon, 53 F.3d at 1168. “[W]hether this power should be exercised in a particular case is vested in the sound discretion of the district courts.” 53 F.3d at 1168. The federal district court in St. Paul Fire and Marine Insurance Co. v. Runyon had abstained from exercising jurisdiction, “because the same issues were involved in the pending state proceeding, and therefore, there existed a more effective alternative remedy.” 53 F.3d at 1169.

         The Tenth Circuit explained in St. Paul Fire and Marine Insurance Co. v. Runyon:

The parties have a pending state contract action, which incorporates the identical issue involved in the declaratory judgment action. [The defendant's] state breach of contract complaint against [the insurance-company plaintiff] alleges the coworkers' lawsuit is a “covered claim” pursuant to the insurance policy. In resolving the insurance contract, the state court will necessarily determine rights and obligations under the contract. [The insurance-company plaintiff] is seeking a declaration by the federal court that the coworkers' lawsuit is not a covered claim. The issue in the federal declaratory judgment action is identical to what would be a defense to the state court contract action -- whether [the defendant]'s insurance contract with [the insurance-company plaintiff] protects him from the coworkers' lawsuit. Because the state court will determine, under state contract law, whether the tort action is covered by the insurance contract, it is not necessary for the federal court to issue a declaration on the insurance contract.

53 F.3d at 1169. A federal court is not required to refuse jurisdiction, but it “should not entertain a declaratory judgment action over which it has jurisdiction if the same fact-dependent issues are likely to be decided in another pending proceeding.” 53 F.3d at 1170. A federal court may abstain from exercising jurisdiction over a declaratory judgment action if “the plaintiff is using the action for procedural fencing.” 53 F.3d at 1170. The Tenth Circuit noted that the insurance-company plaintiff's timing of filing suit “may not necessarily be bad faith on [its] part, ” but found that the insurance-company plaintiff was unable to show error in the district court's perception that it was using the declaratory judgment action for procedural fencing or “to provide an arena for a race to res judicata.” 53 F.3d at 1170 (emphasis in original).

         In State Farm Fire & Casualty Co. v. Mhoon, Robert Mhoon's shooting of Takuro Fujiwara resulted in three lawsuits. See 31 F.3d at 981. Fujiwara and his wife filed suit in state court on November 2, 1990, alleging that Mhoon committed intentional torts against them. See 31 F.3d at 982. State Farm, Mhoon's insurer, agreed to defend him against the Fujiwaras, “but only under a reservation of rights which left State Farm free to seek a judicial determination of its contractual obligations to Mhoon.” 31 F.3d at 982. On June 12, 1991, State Farm filed a declaratory judgment action under 28 U.S.C. § 2201 and sought declaration that the policy did not cover Mhoon because he shot Fujiwara intentionally. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d at 982. “Though the state tort suit between Mhoon and [Fujiwara] was still in progress at the time, the federal district judge agreed to hear State Farm's declaratory action.” 31 F.3d at 982. The federal district court ruled, as a matter of law, that Mhoon intentionally shot Fujiwara. See 31 F.3d at 982.

The critical question whether Mhoon acted intentionally was before both the state and federal courts simultaneously and the federal court's failure to await the state court's resolution of the issue opened the possibility that the state court would be foreclosed from deciding that Mhoon behaved only negligently and was, thus, entitled to be insured and defended.

31 F.3d at 983.

         The Tenth Circuit in State Farm Fire and Casualty Co v. Mhoon held that the federal district court did not abuse its discretion by hearing the case, because “a live need for declaration of State Farm's rights and duties did, in fact, exist.” 31 F.3d at 983-84. The Tenth Circuit based its decision on three factors: (i) neither party suggested that State Farm could have been or was a party to the state tort action, “thus obviating the need for an independent declaratory action and providing a simpler and more efficient resolution of State Farm's obligations towards Mhoon”; (ii) there was substantial interest in deciding the question of duty to defendant without delay; and (iii) the federal district court was an available forum to State Farm. 31 F.3d at 984. The Tenth Circuit noted that the federal court's exercise of jurisdiction did not unduly interfere with the state proceeding. See 31 F.3d at 984. The federal court's decision on State Farm's duty “involved no matter, factual or legal, at issue in the state case.” 31 F.3d at 984. The coverage issue was not a complicated one and involved only a search of the record to determine whether Mhoon's conduct was accidental under the insurance policy. See 31 F.3d at 984. “[It] was not a case, therefore, where the district court found a material factual dispute and proceeded to resolve it in the face of ongoing state proceedings on the same subject.” 31 F.3d at 984. The Tenth Circuit stated that this scenario would have presented a different issue, especially if the state proceedings were quite far along. See 31 F.3d at 984. Under those circumstances, a stay or dismissal might be proper. See 31 F.3d at 984.

         In 2006, the Honorable Bobby Baldock, Senior United States Circuit Judge, sitting by designation on the United States District Court for the District of New Mexico, denied the defendants' motion to dismiss, but granted the defendants' request to stay the proceedings. See Progressive Specialty Ins. Co. v. Thakur, Order Denying Defendants' Motion to Dismiss But Allowing Defendants' Alternative Motion to Stay Proceedings, No. CIV 06-0542 BRB/RHS (D.N.M. November 14, 2006)(Doc. 14)(“Thakur Order”). In Progressive Specialty Ins. Co. v. Thakur, the insurance company sought declaratory judgment that the total amount of coverage owed to the insured was $50, 000.00. See Thakur Order at 2. The insured counterclaimed, seeking a declaration of rights and obligations, reformation of the insurance contract, and monetary damages for breach of contract, negligence, bad-faith dealing, and violation of the New Mexico Insurance Code and Unfair Practices Act, N.M. Stat. Ann. §§ 57-12-1 et seq., 59A-16-20. See Thakur Order at 2. The insured also responded to the insurance company's suit in federal court by filing his own suit against the insurance company in state court. See Thakur Order at 2. The insured named an additional defendant that he contended was a necessary and indispensable party to the federal lawsuit. See Thakur Order at 2. The additional defendant was the insurance agency that sold the insurance policy to the insured. See Thakur Order at 2. Both the insured and the agency were New Mexico residents, and the joinder of the insurance agency “effectively destroyed diversity jurisdiction and the possibility of removal from state court.” Thakur Order at 2. Although the insured's state lawsuit was “broader in scope, ” it essentially raised issues identical to the insurance company's federal lawsuit. Thakur Order at 3.

         Judge Baldock determined that “the state proceeding, unlike [the federal lawsuit], appear[s] to encompass the entire controversy by addressing both [the insurance company's] and [the insurance agent's] potential liability to [the insured].” Thakur Order at 5. “In other words, the rights and obligations of all concerned parties may be adjudicated only in the state action, ” while the federal lawsuit “might lead to piecemeal litigation thereby undermining both federal and state interests in practicality and wise judicial administration.” Thakur Order at 5 (internal quotations omitted and emphasis in original). Judge Baldock explained that, for the same reasons, “the state remedy appears to be the most effective. Because the state action [would] likely decide the rights of all interested parties, including the parties to the [federal action], such remedy necessarily is more comprehensive and cohesive.” Thakur Order at 6. Judge Baldock did not believe that the federal lawsuit provided the insured with an effective remedy, “because he might very well have to argue factually and legally similar issues against [the insurance agency] in state court.” Thakur Order at 6.

         More importantly, Judge Baldock explained that the case presented “purely questions of state law including the interpretation of the state's insurance code.” Thakur Order at 6. “The State of New Mexico has the predominant interest in deciding a matter involving an insurance policy issued within the state to a state resident involved in an auto accident on a state thoroughfare.” Thakur Order at 6. Judge Baldock did not dismiss the case, but stayed it, because “a stay avoids problems which might arise if application of a time bar might prevent [the insurance company] from refiling its federal action.” Thakur Order at 7.

         The Supreme Court resolved a dispute among the Courts of Appeals concerning whether the discretionary standard of Brillhart v. Excess Insurance Co. or the “exceptional circumstances” test in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976), governs a district court's decision to dismiss a federal declaratory judgment action in favor of parallel state litigation. See Wilton v. Seven Falls Co., 515 U.S. 277, 285 (1995)(“Wilton”); Youell v. Exxon Corp., 74 F.3d 373, 375 (2d Cir. 1996). The Supreme Court held that district courts should apply the test in Brillhart v. Excess Insurance Co., concluding that “[d]istinct features of the Declaratory Judgment Act . . . justify a standard vesting district courts with greater discretion in declaratory judgment actions than that permitted under the ‘exceptional circumstances' test of Colorado River.” Wilton, 515 U.S. at 286.

         LAW REGARDING ...

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