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Simon v. Taylor

United States District Court, D. New Mexico

May 12, 2017

RICHARD SIMON; JANELLE SIMON; ERIC CURTIS and JOSE VEGA, Plaintiffs, [1]
v.
HEATH TAYLOR; JERRY WINDHAM; PAT WINDHAM; MARTY L. COPE; ARNOLD J. RAEL; B. RAY WILLIS; THOMAS FOWLER; LARRY DELGADO and THE NEW MEXICO RACING COMMISSION, Defendants.

          Robert H. Fritz, III Fritz Law Firm Houston, Texas, Chad W. Dunn Brazil & Dunn Houston, Texas Attorneys for the Plaintiffs

          Brian O'Toole Brian O'Toole, P.C. Austin, Texas, Billy R. Blackburn Blackburn Law Office Albuquerque, New Mexico Attorneys for Defendants Heath Taylor, Jerry Windham, and Pat Windham.

          Nicholas Sydow Assistant Attorney General Albuquerque, New Mexico Attorneys for Defendants Marty L. Cope, Arnold J. Rael, B. Ray Willis, Thomas Fowler, Larry Delgado, and the New Mexico Racing Commission.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Defendants' First Motion for Summary Judgment as to Claim for Intentional Interference with Prospective Economic Advantage and Memorandum in Support Thereof, filed December 21, 2016 (Doc. 136)(“Defendants' Intentional Interference with Prospective Economic Advantage MSJ”); (ii) the Defendants' Second Motion for Summary Judgment as to Claim of Fraud and Memorandum in Support Thereof, filed December 21, 2016 (Doc. 137)(“Defendants' Fraud MSJ”); (iii) the Defendants' Third Motion for Summary Judgment as to Prima Facie Tort Claim and Memorandum in Support Thereof, filed December 21, 2016 (Doc. 138)(“Defendants' Prima Facie Tort MSJ”); (iv) the Defendants' Fourth Motion for Summary Judgment as to Negligence Claim and Memorandum in Support Thereof, filed December 21, 2016 (Doc. 139)(“Defendants' Negligence MSJ”); and (v) the Plaintiffs' Motion for Summary Judgment, filed December 22, 2016 (Doc. 140)(“Plaintiffs' MSJ”). The Court held a hearing on January 25, 2017. The primary issues are whether: (i) the Defendants are entitled to summary judgment on the Plaintiffs' claims for intentional interference with prospective economic advantage, fraud, prima facie tort, and negligence, because the Plaintiffs did not adduce sufficient evidence for a reasonable jury, based upon the preponderance of the evidence, to return a verdict for the Plaintiffs on those claims; (ii) whether two laboratory test results indicating the presence of caffeine in a urine sample taken from Stolis Winner after the 2008 All American Futurity are sufficient evidence for a reasonable jury, based upon the preponderance of the evidence, to return a verdict for the Plaintiffs on the Plaintiffs' claims for intentional interference with prospective economic advantage, fraud, prima facie tort, and negligence; (iii) whether, on this record, the Plaintiffs can recover on an implied private cause of action arising under the New Mexico Horse Racing Act, N.M. Stat. Ann. §§ 60-1A-1 to 60-1A-30, and the Racing Commission's rules, N.M. Admin. Code § 15.2.6; and (iv) whether, based on the record evidence, the Plaintiffs are entitled to summary judgment on their intentional interference with prospective economic advantage, fraud, prima facie tort, and negligence claims.

         The Court concludes: (i) that the Defendants are entitled to summary judgment on the Plaintiffs' intentional interference with prospective economic advantage claim, because the two positive tests results indicating the presence of caffeine in Stolis Winner's urine establish such a miniscule caffeine concentration so as not to amount to even a scintilla of evidence supporting the Defendants' intentional administration of caffeine to the horse with a purpose to interfere with the Plaintiffs' prospective contractual relations; (ii) that the Defendants are entitled to summary judgment on the Plaintiffs' fraud claim, because the two test results indicating trace amounts of caffeine in Stolis Winner's urine are insufficient for a reasonable jury to find that the any of the Defendants knew that the horse had ingested caffeine and, consequently, knowingly made a false misrepresentation; (iii) that the Defendants are entitled to summary judgment on the Plaintiffs' prima facie tort claim, because the two test results indicating trace amounts of caffeine are insufficient for a reasonable jury to find that the Defendants improperly trained Stolis Winner with a purpose to harm the Defendants; (iv) that the Defendants are entitled to summary judgment on the Plaintiffs' negligence claim, because a reasonable jury could not find by a preponderance of the evidence that the two test results establish a breach of the standard of care reflected by New Mexico Administrative Code §§ 15.2.6.9(B)(2) and 15.2.6.9(L)(3)(c); (v) that, even if the Plaintiffs could establish breach, a reasonable jury could not find by a preponderance of the evidence that the miniscule amount of caffeine present in Stolis Winner caused the Plaintiffs any injury; (vi) that the Plaintiffs cannot recover on an implied private cause of action under the New Mexico Horse Racing Act, N.M. Stat. Ann. §§ 60-1A-1 to 60-1A-30, and the Racing Commission's rules, N.M. Admin. Code § 15.2.6, because Stolis Winner's two test samples do not exceed the Racing Commission's promulgated “regulatory threshold” for caffeine as an “environmental contaminant[] and substance[] of human use” of “100 nanograms per milliliter of plasma or serum [equivalent to ~ 300 ng/ml in urine], below which the Racing Commission does not impose any disciplinary action for the presence of caffeine in a race horse, N.M. Admin. Code § 15.2.6.9(L)(3)(c); and (vii) that the Plaintiffs are not entitled to summary judgment on their claims, because the Plaintiffs have not met their burden to demonstrate that they are entitled to judgment as a matter of law on any of their claims based on the record evidence of the two positive results indicating trace amounts caffeine in Stolis Winner's urine. Accordingly, the Court (i) grants the Defendants' Intentional Interference with Prospective Economic Advantage MSJ, the Defendants' Fraud MSJ, the Defendants' Prima Facie Tort MSJ, and the Defendants' Negligence MSJ; and (ii) denies Plaintiffs' MSJ.

         FACTUAL BACKGROUND

         The Court draws the factual background from the parties' assertions of undisputed material fact in their cross motions for summary judgment. See Defendants' Intentional Interference with Prospective Economic Advantage MSJ at 1-4; Defendants' Fraud MSJ at 1-4; Defendants' Prima Facie Tort MSJ at 1-3; Defendants' Negligence MSJ at 1-3; Plaintiffs' Response to Defendants' Motions for Summary Judgment at 2-20, filed January 4, 2017 (Doc. 143)(“Plaintiffs' Response”); Plaintiffs' MSJ at 1-3; Defendants' Response to Plaintiffs' Motion for Summary Judgment at 1-3, filed January 23, 2017 (Doc. 146)(“Defendants' Response”).[2]

         1. The 2008 All American Futurity.

         This dispute arises out of the tenth and final round of the 2008 All American Futurity, a quarter-horse[3] race at Ruidoso Downs, New Mexico on September 1, 2008. See Plaintiffs' MSJ ¶ 1, at 1 (asserting this fact); Defendants' Response at 1 (not disputing this fact). The winning horse in the 2008 All American Futurity entitled the owners of the winning horse to a purse of one million dollars. See Plaintiffs' MSJ ¶ 5, at 2 (asserting this fact); Defendants' Response at 1 (not disputing this fact). The owners of the second-place horse were entitled to a purse of $285, 000.00. See Plaintiffs' MSJ ¶ 5, at 2 (asserting this fact); Defendants' Response at 1 (not disputing this fact).

         Defendants Jerry and Pat Windham (“the Windhams”) owned a horse, Stolis Winner. See Plaintiffs' MSJ ¶ 2, at 2 (asserting this fact); Defendants' Intentional Interference with Prospective Economic Advantage MSJ ¶ 1, at 1 (asserting this fact). At all relevant times, Defendant Heath Taylor trained Stolis Winner. See Plaintiffs' MSJ ¶ 2, at 2 (asserting this fact); Defendants' Intentional Interference with Prospective Economic Advantage MSJ ¶ 2, at 1 (asserting this fact). Plaintiffs Richard and Janelle Simons (“the Simons”) also owned a horse, Jet Black Patriot. See Plaintiffs' MSJ ¶ 4, at 2 (asserting this fact); Defendants' Intentional Interference with Prospective Economic Advantage MSJ ¶ 3, at 1 (asserting this fact). “Stolis Winner held the fastest qualifying time out of all 145 entrants for the 2008 All American Futurity.” Defendants' Prima Facie Tort MSJ ¶ 5, at 2 (asserting this fact). See Plaintiffs' Response at 2-4 (not disputing this fact). “Stolis Winner was the strong favorite to win the 2008 All American Futurity.” Defendants' Prima Facie Tort MSJ ¶ 7, at 2 (asserting this fact). See Plaintiffs' Response at 2-4 (not disputing this fact).

         On September 1, 2008, at Ruidoso Downs, immediately before and after the race, many people were in close proximity to Stolis Winner under circumstances that did not control for ambient caffeine contamination. See Videotaped Deposition of Heath Taylor at 181:11-25 (taken April 26, 2016), filed January 4, 2017 (Doc. 143-11)(“Taylor Depo.”).[4]

A. . . . To pet the horse if it's standing there or something I don't think is a prohibited activity, but usually the horse is walking or getting ready to run.
Q. In the day of the running of the All American, how many owners usually appear -- at least in 2008 how many owners that you're aware of appeared in the paddock before the race?
A. Oh, countless. It's like opening the gate at a rock concert. You don't have to have pass credentials or any credentials in order to get in the infield of a racetrack. So it was just -- you couldn't hardly walk, basically.

Taylor Depo. at 181:13-25 (Taylor, Blackburn).[5] At the race, Stolis Winner barely crossed the finish line ahead of Jet Black Patriot. See Plaintiffs' MSJ ¶ 4, at 2 (asserting this fact); Defendants' Intentional Interference with Prospective Economic Advantage MSJ ¶ 9, at 2 (asserting this fact).[6]

         A licensed veterinarian collected test samples from each of the horses that competed in the 2008 All American Futurity. See Plaintiffs' MSJ ¶ 6, at 2 (asserting this fact); Defendants' Response at 1-3 (not disputing this fact).[7] Following the race, blood and urine samples were drawn from all ten horses that had run the race, see Unruh Depo. at 57:14-58:20, and the samples were sent to the Iowa State University Veterinary Diagnostic Laboratory (the “Iowa Lab”), see Videotaped Deposition of Walter Hyde at 56:20-23 (taken June 18, 2009), filed January 4, 2017 (Doc. 143-4)(“Hyde Depo.”).[8] Among the ten horses that ran the 2008 All American Futurity, at most three horses, including Stolis Winner, provided the blood or urine samples that the Iowa Lab tested. See Hyde Depo. at 127:20-128:8 (testifying that the Iowa Lab tested samples from only three horses that ran any race at the Ruidoso Downs racetrack on September 1, 2008).[9]

         The Iowa Lab determined a positive finding and estimated that there were 125 nanograms per milliliter (“ng/ml”) of caffeine in Stolis Winner's urine sample. See Hyde Depo. at 67:19-68:7; Letter from Wolfgang F. Mueller, Ph.D. to Julian Luna re: Caffeine in horse urine, #28428 at 1 (executed October 29, 2008), filed January 4, 2017 (Doc. 143-17 at 38)(“Mueller Letter”).[10] The New Mexico Horsemen's Association also directed the Louisiana State University Equine Medication Surveillance Laboratory (the “LSU Lab”) to determine whether the same urine sample taken from Stolis Winner contained caffeine. See Letter from Brenda Gabaldon to Steven Barker re: Split Samples for Testing at 1 (executed October 9, 2008), filed January 4, 2017 (Doc. 143-17 at 35)(“Gabaldon Letter”).[11] The LSU Lab confirmed the presence of caffeine in Stolis Winner's urine sample at an estimated concentration of 84.2 ng/ml. See Letter from Steven Barker to Brenda Gabaldon at 1 (executed October 16, 2008), filed January 4, 2017 (Doc. 143-17 at 37)(“Barker Letter”); Mueller Letter at 1.[12]

         The rules and regulations promulgated by Defendant New Mexico Racing Commission list caffeine as a Class 2 prohibited substance.[13] See Plaintiffs' MSJ ¶ 6, at 2 (asserting this fact); Defendants' Response at 1-3 (not disputing this fact). Caffeine is a banned substance under the Racing Commission's policy regarding Class 2 prohibited substances. See Plaintiffs' MSJ ¶ 6, at 2 (asserting this fact); Defendants' Response at 1-3 (not disputing this fact). Given the Iowa Lab's and the LSU Lab's results, Stolis Winner tested positive for caffeine. See Plaintiffs' MSJ ¶ 6, at 2 (asserting this fact); Defendants' Response at 2 (not disputing this fact). See also Videotaped Deposition of Julian Luna at 17:19-22 (taken May 18, 2009), filed January 4, 2017 (Doc. 143-9)(“Luna Depo.”)(“[W]e had a caffeine positive . . . .”). Indeed, the Defendants state that, “[f]ollowing the running of the race, a tiny amount of caffeine was found to be present in Stolis Winner.” Defendants' Response at 2 (asserting this fact).[14]

         The positive tests taken after the race from a sample of Stolis Winner's urine are the only evidence that Stolis Winner allegedly was under the influence of a substance that the Racing Commission prohibits. See Defendants' Intentional Interference with Prospective Economic Advantage MSJ ¶ 11, at 2 (asserting this fact); Plaintiffs' Response at 2-4 (not disputing this fact). Taylor, J. Windham, and P. Windham did not “knowingly or intentionally provide Stolis Winner with caffeine and did not instruct anyone acting on [his or her] behalf to provide Stolis Winner with caffeine.” Defendants' Intentional Interference with Prospective Economic Advantage MSJ ¶¶ 10-12, at 2-3 (alterations added)(asserting this fact)(citing Defendant Heath Taylor's Answers to Plaintiffs' First Set of Interrogatories to All Defendants at 3, filed December 21, 2016 (Doc. 136-5)(“Taylor's First Answers”); Defendant Jerry Windham's N.M. Admin. Code § 15.2.6.9(C)(1).

         Answers to Plaintiffs' First Set of Interrogatories to All Defendants at 3-4, filed December 21, 2016 (Doc. 136-6)(“J. Windham's First Answers”); Defendant Pat Windham's Answers to Plaintiffs' First Set of Interrogatories to All Defendants at 3, filed December 21, 2016 (Doc. 136-7)(“P. Windham's First Answers”)). See Affidavit of Pat Windham ¶ 5, at 1 (executed April 10, 2015), filed December 21, 2016 (Doc. 136-8)(“P. Windham Aff.”). See also Plaintiffs' Response at 2-4 (not disputing this fact).[15] Moreover, Taylor, J. Windham, and P. Windham have “no knowledge as to ingestion of caffeine by Stolis Winner.” Defendants' Fraud MSJ ¶¶ 14-16, at 3. See Plaintiffs' Response at 2-4 (not disputing this fact).[16] Furthermore, the Windhams were not aware of any prospective economic relationship between the Simons and any third party relating to Jet Black Patriot. See Defendants' Intentional Interference with Prospective Economic Advantage MSJ at 3 (citing Affidavit of Jerry Windham ¶ 8, at 1 (executed April 10, 2015), filed December 21, 2016 (Doc. 136-3)(“J. Windham Aff.”); P. Windham Aff. ¶¶ 3-4, at 1); Plaintiffs' Response at 5-8 (not disputing this fact).[17] Taylor, however, has been, “and continues to be, suspended from racing and fined for substance violations similar to the violation at issue in this matter.” Plaintiffs' MSJ ¶ 3, at 2 (asserting this fact). See Defendants' Response at 1-3 (not disputing this fact).

         Caffeine is a known environmental contaminant. See Defendants' Negligence MSJ ¶ 10, at 2 (alleging this fact); Plaintiffs' Response at 2-4 (not disputing this fact).[18] “There is a standard within the horse racing industry to consider levels of caffeine of 100 ng/mL in blood serum (a level greater than alleged in this case) to be environmental contamination.” Defendants' Negligence MSJ ¶ 10, at 2 (alleging this fact). See Plaintiffs' Response at 2-4 (not disputing this fact).[19] “Stolis Winner was not under the influence of caffeine at the time of the 2008 All American Futurity because the minimal amount of caffeine detected in the sample could not have had any possible effect on the performance of a horse during a sprint race.” Defendants' Fraud MSJ ¶ 12, at 3 (asserting this fact). See Plaintiffs' Response at 2-4 (not disputing this fact).[20]

         2. The Stewards' Decision and the Resulting Appeal to the Racing Commission.

         The Racing Commission held a hearing of stewards[21] on January 8, 2009, to consider disciplinary action against Taylor and the Windhams. See Plaintiffs' MSJ ¶ 7, at 2-3 (asserting this fact); Defendants' Response at 1 (not disputing this fact). The stewards disqualified Stolis Winner, declared Jet Black Patriot the winner, and issued penalties against Taylor. See Plaintiffs' MSJ ¶ 7, at 3 (asserting this fact)(citing Order of the Sunland Park Board of Stewards at 17-18, filed December 22, 2016 (Doc. 140-16)(“Stewards Order”)); Defendants' Response at 1 (not disputing this fact). The stewards, having declared Jet Black Patriot the winner, also issued an order requiring redistribution of the first-place purse. See Plaintiffs' MSJ ¶ 7, at 3 (asserting this fact)(citing Stewards Order at 17-18); Defendants' Response at 1 (not disputing this fact).

         Taylor appealed the stewards' decision and requested a de novo review of the evidence. See Plaintiffs' MSJ ¶ 8, at 3 (asserting this fact); Defendants' Response at 1 (not disputing this fact). The Racing Commission appointed a three-judge administrative panel to hear Taylor's appeal. See Defendants' Negligence MSJ ¶ 15, at 3 (asserting this fact); Plaintiffs' MSJ ¶ 9, at 3 (not disputing this fact). The Racing Commission excluded the Plaintiffs from the administrative proceedings. See Plaintiffs' MSJ at 18 (alleging this fact)(citing Racing Commission Order Denying Application to Appear as Parties and Motion for Continuance at 22-27, filed December 22, 2016 (Doc. 140-16)(“Racing Commission Order”); Videotaped Deposition of Julian Luna at 31:1-24, 32:14-33:2 (dated May 18, 2009), filed February 22, 2016 (Doc. 140-10)(“Luna Depo.”)); Defendants' Response at 2-4 (not disputing this fact). The Racing Commission also denied the Plaintiffs any right to intervene. See Plaintiffs' MSJ at 18 (alleging this fact); Defendants' Response at 2-4 (not disputing this fact). Plaintiffs' counsel appeared at the administrative panel hearing, but the administrative panel denied him the opportunity to participate or to provide the panel with documentation and evidence that had been excluded from the proceedings. See Plaintiffs' MSJ at 18 (alleging this fact)(citing Oral Deposition of Leasa Johnson at 28:23-29:12 (dated September 6, 2016), filed February 22, 2016 (Doc. 140-7)(“Johnson Depo.”)); Defendants' Response at 2-4 (not disputing this fact). The Plaintiffs refer to the procedure surrounding the appeal of the stewards' decision as “highly questionable, ” which “deviated in important respects from the prior adopted rules, as well as the traditions and notions of due process . . . .” Plaintiffs' MSJ ¶ 9, at 3 (alleging this fact); Defendants' Response at 2-4 (not disputing this fact). The Plaintiffs allege that “the Commission, for the first time ever, allowed Stolis Winner to remain the winner and therefore overturned the ruling of the Stewards.” Plaintiffs' MSJ ¶ 9, at 3 (alleging this fact); Defendants' Response at 2-4 (not disputing this fact). The three-judge administrative panel recommended that the Racing Commission conclude that the Defendants did not violate the rules of racing. See Defendants' Negligence MSJ ¶ 15, at 3 (asserting this fact); Plaintiffs' MSJ ¶ 9, at 3 (not disputing this fact). See also Report of the Hearing Officer Panel at 21, filed December 21, 2016 (Doc. 137-7)(“Hearing Officer Panel Report”)(“The disciplinary rulings issued in this proceeding do not meet the regulatory test necessary to be sustained because the prima facie evidence that a prohibited drug was administered to Stolis Winner prior to winning the 2008 All American Futurity has been rebutted”). The Racing Commission adopted the three-judge administrative panel's recommendation and determined that the Defendants did not violate any applicable rule. See Defendants' Negligence MSJ ¶ 15, at 3 (asserting this fact); Plaintiffs' MSJ ¶ 9, at 3 (not disputing this fact).

         3. The Plaintiffs' Texas Complaint.

         The Plaintiffs filed a complaint in the United States District Court for the Western District of Texas on November 11, 2008. See Simon v. Taylor, No. CIV 08-0827 LY (W.D. Tex., filed Nov. 11, 2008)(“Texas Complaint”). On November 4, 2010, the Honorable Lee Yeakel, United States District Judge for the Western District of Texas, entered an order dismissing the Texas Complaint for failure to state a claim upon which relief could be granted. See Order, filed Nov. 5, 2010 (Doc. 1-1), Simon v. Taylor, No. CIV 08-0827 LY (W.D. Tex.)(“Texas Order”). The Texas Order was based, in part, on the Racing Commission's decision that no violation of racing rules had occurred. See Texas Order at 5. The Plaintiffs appealed to the United States Court of Appeals for the Fifth Circuit. See Simon v. Taylor, No. 10-51148 (5th Cir., filed April 29, 2011)(Doc. 1-2). On December 22, 2011, the United States Court of Appeals for the Fifth Circuit vacated the district court opinion and ordered the case dismissed without prejudice for lack of diversity jurisdiction. See Simon v. Taylor, 455 F. App'x 444, 445-46 (5th Cir. 2011).

         PROCEDURAL BACKGROUND

         1. The Plaintiffs' New Mexico Complaint.

         On January 31, 2012, the Plaintiffs filed a complaint in the District of New Mexico. See Complaint at 1. In the Complaint, the Plaintiffs assert claims against Taylor and the Windhams for: (i) intentional interference with prospective economic advantage, see Complaint ¶¶ 127-32, at 23; (ii) fraud, see Complaint ¶¶ 133-39, at 24; and (iii) prima facie tort, see Complaint ¶¶ 140-44, at 24-25. The Plaintiffs also assert a count against Taylor and the Windhams for what the Plaintiffs alternatively describe as negligence or breach of contract, see Complaint ¶¶ 146-52, at 26.[22] Further, the Plaintiffs assert two claims under the Fourteenth Amendment to the Constitution of the United States of America, alleging that Marty L. Cope, Arnold J. Real, B. Ray Willis, Thomas Fowler, Larry Delgado (“the Racing Commissioners”), and the Racing Commission (collectively, “the State Defendants”) violated the Plaintiffs' procedural and substantive due process rights. Complaint ¶¶ 153-73, at 26-29. The Plaintiffs also request a jury trial. See Complaint ¶ 174, at 30. The Complaint seeks the following relief: (i) an order to the Racing Commission to release all the blood and urine samples taken from any horse on the day of the race so that the samples can be tested for the presence of caffeine to determine whether contamination occurred; (ii) an order prohibiting the Defendants from stating, advertising, or declaring Stolis Winner is the winner of the 2008 All American Futurity; (iii) an order declaring Jet Black Patriot the winner of the 2008 All American Futurity; (iv) an order requiring the Defendants to state that a court has declared Jet Black Patriot the winner of the 2008 All American Futurity when inquired; (v) an order awarding the Plaintiffs the difference in purse between the first and second place finishers at the All American Futurity; (vi) an order awarding the Plaintiffs the difference in value of Jet Black Patriot had he been declared the winner of the All American Futurity without court intervention; (vii) an order awarding the Plaintiffs reasonable stud fees and other income Jet Black Patriot would have earned but for the Defendants' wrongful conduct; (viii) in the alternative to an order awarding the race purse and a declaration of the race order, an order requiring the Racing Commission to conduct a new hearing, allowing the Plaintiffs to present evidence and argument, and granting the Plaintiffs the right to appeal the decision of the hearing if necessary; and (ix) an order awarding the Plaintiffs their reasonable attorneys' fees and costs incurred in prosecuting this suit. See Complaint ¶ 175, at 30.

         2. The Court Granted in Part and Denied in Part the Defendants' Motion to Dismiss.

         The Defendants moved to dismiss the Plaintiffs' claims. See Defendants Heath Taylor, Jerry Windham and Pat Windham's Motion to Dismiss Under Rule 12(b) and Memorandum in Support Thereof at 1-13, filed May 9, 2012 (Doc. 7)(“Defendants' MTD”). On September 26, 2013, the Court granted in part and denied in part Defendants' MTD. See Simon v. Taylor, No. 1:12-cv-0096, 2013 WL 5934420, at *65 (D.N.M. Sept. 26, 2013)(Browning, J.). First, the Court rejected the Defendants' argument that the Racing Commission's decision collaterally estopped all of the Plaintiffs' claims. See Simon v. Taylor, 2013 WL 5934420, at *56-65. Second, the Court rejected the Defendants' argument that the Plaintiffs failed to state a claim for prospective economic loss or prima facie tort, because “the Supreme Court of New Mexico would hold that the Complaint states a valid claim for intentional interference with prospective contractual relations and a valid claim for prima facie tort to the extent the prima facie tort claim is premised on the intentional act of improperly training Stolis Winner.” 2013 WL 5934420, at

         *27. The Court concluded, however, that,

to the extent the Plaintiffs' prima facie tort claim is premised on the intentional act of providing Stolis Winner with a performance enhancing substance, the Supreme Court of New Mexico would hold that that claim does not satisfy the first element of prima facie tort, because that element requires the commission of an intentional lawful act.

2013 WL 5934420, at *27. Third, the Court held that the Supreme Court of New Mexico would find an implied right of action under the New Mexico Horse Racing Act and “that the legislative intent behind the Horse Racing Act supports an implied private right of action.” Simon v. Taylor, 2013 WL 5934420, at *27 (citing Nat'l Trust for Historical Pres. v. City of Albuquerque, 1994-NMCA-057, ¶ 10, 874 P.2d 798, 801)). Accordingly, the Court granted the Defendants' motion to dismiss the prima facie tort claim “to the extent that the claim is premised on the intentional act of providing Stolis Winner with a performance enhancing substance, ” and the Court denied the motion as to the remaining claims. Simon v. Taylor, 2013 WL 5934420, at *65.

         3. The Court Dismissed the Plaintiffs' Claims Against the State Defendants.

         The Court dismissed the Plaintiffs' claims against the State Defendants. See Simon v. Taylor, 981 F.Supp.2d 1020, 1058 (D.N.M. 2013); Simon v. Taylor, No. CIV 12-0096 JB/WPL, 2014 WL 3563268, at *3 (D.N.M. July 11, 2014). On October 29, 2013, the Court held that Eleventh Amendment immunity bars the Plaintiffs' claims against the Racing Commission and that the Racing Commissioners are entitled to quasi-judicial immunity from the Plaintiffs' claims for damages. See 981 F.Supp.2d at 1064. The Court also held that immunity did not, however, shield the Racing Commissioners from injunctive relief. See 981 F.Supp.2d at 1064. The Court dismissed the Plaintiffs' due process claims, because the Plaintiffs failed to “demonstrate that they ‘possessed a property interest to which due process protection was applicable[.]'” 981 F.Supp.2d at 1064 (quoting Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir. 2006)). The Court did not allow the Plaintiffs leave to amend the Complaint, because the Plaintiffs did not comply with D.N.M. LR-Civ 15.1. See 981 F.Supp.2d at 1070 (“A proposed amendment to a pleading must accompany the motion to amend.”)(quoting D.N.M. LR--Civ. 15.1). At the October 29, 2013, scheduling conference, however, the Court allowed the Plaintiffs to file a motion to amend that complied with D.N.M. LR-Civ 15.1. See 981 F.Supp.2d at 1070. The Plaintiffs did not file a compliant motion. See 2014 WL 3563268, at *1. Accordingly, on July 11, 2014, the Court dismissed the Plaintiffs' claims against the State Defendants with prejudice. See 2014 WL 3563268, at *1.

         The Court did not, however, “enter final judgment at [that] time or include the language from rule 54(b) making the dismissal order immediately appealable.” 2014 WL 3563268, at *3.

         4. The Court Issued Discovery Orders Relating to Horse Blood and Urine Samples, and Interrogatories to the Plaintiffs.

         After the Court ruled on the Defendants' motions to dismiss, the Plaintiffs sought to discover blood and urine samples from twenty-three horses that participated in a series of races held at Ruidoso Downs, New Mexico, on September 1, 2008. See Simon v. Taylor, No. CIV 12-0096 JB/WPL, 2014 WL 6633917, at *1 (D.N.M. Nov. 18, 2014). The Plaintiffs wanted the Court to compel the Racing Commission to produce the samples. See 2014 WL 6633917, at *1. The Court denied the Plaintiffs' motion to compel, because the motion was premature and the Plaintiffs' informal discovery requests were procedurally improper, failing to satisfy either the Federal Rules of Civil Procedure or the Local Rules of the United States District Court for the District of New Mexico. See 2014 WL 6633917, at *1. Because the test results were relevant, however, the Court held that the Plaintiffs could subpoena the Racing Commission and Iowa State University to produce the samples for testing. See 2014 WL 6633917, at *1.

         In a subsequent discovery order, the Court ordered R. Simon and J. Simon to verify their amended interrogatory answers under oath, as rule 33(b)(3) of the Federal Rules of Civil Procedure requires. See Simon v. Taylor, No. CIV 12-0096 JB/WPL, 2015 WL 2225653, at *37 (D.N.M. Apr. 30, 2015). Further, the Court ordered: (i) the Simons to identify which documents are responsive to certain of the Defendants' Interrogatories relating to stud/mating agreements concerning Jet Black Patriot; (ii) J. Simon to amend her answer to an Interrogatory regarding communications between herself and the Defendants concerning this lawsuit or its subject matter; and (iii) the Simons to respond to certain RFPs regarding J. Simon's bank statements and tax returns. See 2015 WL 2225653, at *37.

         5. The Defendants' December 21, 2016, Motions for Summary Judgment.

         On December 21, 2016, the Defendants requested, pursuant to rule 56 of the Federal Rules of Civil Procedure, that the Court enter summary judgment in their favor and against the Plaintiffs on the Plaintiffs' claims for: (i) intentional interference with prospective economic advantage, see Defendants' Intentional Interference with Prospective Economic Advantage MSJ at 1-6; (ii) fraud, see Defendants' Fraud MSJ at 1-7; (iii) prima facie tort, see Defendants' Prima Facie Tort MSJ, at 1-6; and (iv) negligence, see Defendants' Negligence MSJ, at 1-8.

         a. The Defendants' Intentional Interference with Prospective Economic Advantage MSJ.

         The Defendants argue that New Mexico law applies to the Plaintiffs' claim for intentional interference with prospective economic advantage, see Defendants' Intentional Interference with Prospective Economic Advantage MSJ at 4-5, and that, under New Mexico law, a plaintiff must provide “there was an actual prospective contractual relation which, but for the Defendant's interference, would have been consummated, ” Defendants' Intentional Interference with Prospective Economic Advantage MSJ at 5 (emphasis in original)(citing Anderson v. Dairyland Ins. Co., 1981-NMSC-130, 637 P.2d 837, 841)(“Dairyland Ins.”). The Defendants then state that, in light of the undisputed material facts, the “Plaintiffs cannot prove there was any ‘actual' prospective relationship which was not consummated as a result of Stolis Winner finishing ahead of Jet Black Patriot . . . .” Defendants' Intentional Interference with Prospective Economic Advantage MSJ at 5. The Defendants argue that the Plaintiffs' claim is grounded on only speculation that, had Jet Black Patriot won the 2008 All American Futurity, an unidentified third party would have entered into an economic relationship with them. See Defendants' Intentional Interference with Prospective Economic Advantage MSJ at 5. The Defendants press that such speculation is insufficient to overcome the Defendant's motion for summary judgment on the Plaintiffs' intentional interference with prospective economic advantage claim. See Defendants' Intentional Interference with Prospective Economic Advantage MSJ at 5. The Defendants further argue that, because Stolis Winner is a gelding and, hence, incapable of breeding, it is factually impossible that the Defendants took gainful opportunities to breed Jet Black Patriot away from the Plaintiffs. See Defendants' Intentional Interference with Prospective Economic Advantage MSJ at 6.

         b. The Defendants' Fraud MSJ.

         Next, the Defendants assert that New Mexico law applies to the Plaintiffs' fraud claim, see Defendants' Fraud MSJ at 4, and that the Plaintiffs failed to present clear-and-convincing evidence to support any element of fraud, see Defendants' Fraud MSJ at 5. The Defendants proceed to march through the elements of fraud. See Defendants' Fraud MSJ at 5-7. First, the Defendants contend that although the Plaintiffs offer evidence that Stolis Winner competed in the 2008 All American Futurity, they “produced no evidence showing how the mere fact of competing was a representation that the horse was not in violation of the Race rules.” Defendants' Fraud MSJ at 5 (internal quotation marks omitted). Second, the Defendants argue, assuming that they represent that Stolis Winner was not under the influence of caffeine or improperly trained, the Plaintiffs do not introduce sufficient evidence to show that “such a representation would be false.” Defendants' Fraud MSJ at 5-6 (internal quotation marks omitted). The Defendants indicate that the Plaintiffs present evidence showing only that a “miniscule amount of caffeine” was found in the sample taken from Stolis Winner and that such an amount, “to a scientific certainty, ” had no effect on the horse's performance. Defendants' Fraud MSJ at 6. Third, the Defendants argue that the Plaintiffs fail to produce clear-and-convincing evidence showing that the Defendants either had knowledge of, or were reckless about, the presence of caffeine in Stolis Winner. See Defendants' Fraud MSJ at 6. Fourth, the Defendants press that the Plaintiffs introduce no evidence that the Defendants had an “intent to deceive.” Defendants' Fraud MSJ at 6. Last, the Defendants argue that the Plaintiffs took an action in reliance on the Defendants' representation. See Defendants' Fraud MSJ at 6-7. In support of this argument, the Defendants maintain that the Plaintiffs' entry of Jet Black Patriot in the 2008 All American Futurity does not demonstrate that the Plaintiffs detrimentally relied on any representation that the Defendants made. See Defendants' Fraud MSJ at 6-7.

         c. The Defendants' Prima Facie Tort MSJ.

         The Defendants also assert that New Mexico law applies to the Plaintiffs' prima facie tort claim. See Defendants' Prima Facie Tort MSJ at 4. The Defendants argue that the Plaintiffs' claim should not survive summary judgment, because the Plaintiffs have not produced any evidence to satisfy the first element of prima facie tort -- namely, that Defendants “committed . . . a lawful intentional act . . . .” Defendants' Prima Facie Tort MSJ at 4 (citing Lexington Ins. Co. v. Rummel, 1997-NMSC-043, ¶ 10, 945 P.2d 992, 995). The Defendants correctly state that the Court dismissed the Plaintiffs' prima facie tort claim to the extent it relied on allegations that the Defendants provided Stolis Winner with caffeine, because such an act would not be “lawful” as required to satisfy the first element of prima facie tort. Defendants' Prima Facie Tort MSJ at 4-5 (citing Simon v. Taylor, 2013 WL 5934420, *46 (D.N.M. 2013)). The Defendants also note, however, that the Court permitted the Plaintiffs' prima facie tort claim upon allegations that the Defendants “improperly trained Stolis Winner.” Defendants' Prima Facie Tort MSJ at 5 (citing Simon v. Taylor, 2013 WL 5934420, *46 (D.N.M. 2013)(Browning, J.)). The Defendants assert that, after discovery, the Plaintiffs' only evidence that the Defendants improperly trained Stolis Winner is the positive test for caffeine. See Defendants' Prima Facie Tort MSJ at 5. Consequently, the Defendants argue that the Plaintiffs' prima facie tort claim cannot survive summary judgment, because the Plaintiffs had to produce evidence other than Stolis Winner's positive test for caffeine to substantiate a lawful intentional act, and the Plaintiffs have forwarded no such evidence. See Defendants' Prima Facie Tort MSJ at 5. The Defendants additionally argue that “even if providing Stolis Winner with caffeine were a lawful act, ” the Plaintiffs have failed to introduce evidence that the Defendant's intentionally committed such an act. Defendants' Prima Facie Tort MSJ at 5. Accordingly, the Defendants maintain that they are entitled to summary judgment on the Plaintiffs' prima facie tort claim. See Defendants' Prima Facie Tort MSJ at 5.

         d. The Defendants' Negligence MSJ.

         The Defendants assert that New Mexico law applies to the Plaintiffs' negligence claim, see Defendants' Negligence MSJ at 4, and that the Plaintiffs' negligence claim should not survive summary judgment, see Defendants' Negligence MSJ at 4-7. First, the Defendants assert that the Plaintiffs impute to them not only “a duty not to provide caffeine to Stolis Winner, ” but also “a duty to prevent the presence of caffeine below accepted contamination levels.” Defendants' Negligence MSJ at 5. The Defendants argue that New Mexico tort law imposes no such duty and that “[p]ublic policy does not support a finding of a duty to prevent the presence of environmental contaminants accepted by the industry.” Defendants' Negligence MSJ at 5 (alteration added).

         Second, the Defendants argue that the Plaintiffs do not present evidence to support a finding of the Defendants' breach of any duty. See Defendants' Negligence MSJ at 5. The Defendants maintain that the uncontested facts demonstrate that they did not administer caffeine, or cause caffeine to be administered, Stolis Winner, because “the alleged level of caffeine is less than . . . the level recognized industry-wide as a threshold for differentiating environmental contamination from purposeful administration.” Defendants' Negligence MSJ at 5. Assuming that the Plaintiffs' theory of breach is grounded on Stolis Winner's positive test for caffeine, the Defendants assert that the Plaintiffs have produced no evidence of breach or “of any other possible violation of the rules of racing.” Defendants' Negligence MSJ at 6.

         Third, the Defendants argue that the Plaintiffs fail to introduce evidence supporting negligence's cause-in-fact element. See Defendants' Negligence MSJ at 6-7. The Defendants press that, even if the Defendants provided Stolis Winner with caffeine or otherwise violated any duty owed to the Plaintiffs, the Plaintiffs produced no evidence demonstrating that such a breach caused the Plaintiffs any injury. See Defendants' Negligence MSJ at 6-7. The Defendants indicate that “Stolis Winner beat Jet Black Patriot by nearly the same time differential in both qualifying and the finals of the 2008 All American Futurity.” Defendants' Negligence MSJ at 7. The Defendants accordingly argue that “[t]he tiny amount of caffeine alleged to be in the sample was so insignificant it could not have altered the performance of Stolis Winner in any way.” Defendants' Negligence MSJ at 7. The Defendants maintain that the Plaintiffs presented no evidence suggesting that Jet Black Patriot would have won the race but for the amount of caffeine that Stolis Winner's ingested. See Defendants' Negligence MSJ at 7. The Defendants, therefore, conclude that the Plaintiffs' negligence claim cannot survive summary judgment, because the Plaintiffs introduce no evidence “that any alleged breached premised on the caffeine positive caused them any damages.” Defendants' Negligence MSJ at 7.

         6. The Plaintiffs' Response to the Defendants' December 21, 2016, Motions for Summary Judgment.

         The Plaintiffs respond to the Defendants' four separate motions for summary judgment. See Plaintiffs' Response at 5-21. First, the Plaintiffs contend that there are factual issues that preclude summary judgment for the Defendants on the Plaintiffs' claim for intentional interference with prospective economic advantage. See Plaintiffs' Response at 5-8. The Plaintiffs state that the issue of the Defendants' intent to interfere is a question of fact and allege that, by “put[ting] Stolis Winner in the race while the horse was under the influence of a banned substance, ” the Defendants “intentionally interfered with prospective contractual relationships of Jet Black Patriot.” Plaintiffs' Response at 6. The Plaintiffs also maintain that the Defendants were aware of economic relationships between the winner of the 2008 All American Futurity and third parties that redound to the winner, including breeding business. See Plaintiffs' Response at 6-7. The Plaintiffs contend that “although Stolis Winner is a gelding . . . it does not follow that Stolis Winner is incapable of taking breeding business from Jet Black Patriot, ” because “if Jet Black Patriot were rightfully declared the First place winner, breeding business would go to Jet Black Patriot as the winner of the race.” Plaintiffs' Response at 7. Accordingly, the Plaintiffs maintain that factual issues remain regarding (i) whether there were economic relationships between the Plaintiffs and third parties related to Jet Black Patriot; and (ii) whether the Defendants acted with the intent to interfere with those relationships by entering Stolis Winner, which had ingested some quantum of caffeine, into the race. See Plaintiffs' Response at 8.

         Second, the Plaintiffs argue that there are genuine issues of material fact which preclude summary judgment on their fraud claim. See Plaintiffs' Response at 8-15. The Plaintiffs maintain that the Defendants misrepresented that their horse was free of prohibited substances, including caffeine. See Plaintiffs' Response at 9. The Plaintiffs contend that there is a genuine issue of material fact whether Stolis Winner was improperly under the influence of caffeine, adverting to evidence that “Stolis Winner had caffeine in his system and it was metabolized therefore ruling out any post-race contamination.” Plaintiffs' Response at 12. The Plaintiffs state that, at trial, they “could offer expert testimony and scientific evidence to show that the amount of caffeine in Stolis Winner's system effected [sic] the horse's performance.” Plaintiffs' Response at 13. The Plaintiffs also contend that there is a genuine issue of material fact regarding whether the Defendants intentionally or knowingly provided Stolis Winner with caffeine. See Plaintiffs' Response at 14-15. The Plaintiffs argue that there is a factual dispute whether Taylor provided Stolis Winner with caffeine, adverting to evidence that “Defendant Taylor has been banned from racing and penalized for the use of prohibitive substances before.” Plaintiffs' Response at 13. Consequently, the Plaintiffs maintain that factual issues regarding (i) whether the Defendants provided Stolis Winner with caffeine; and (ii) whether the caffeine that the horse ingested affected its performance, preclude summary judgment on Plaintiffs' fraud claim. See Plaintiffs' Response at 14-15.

         Third, as to their prima facie tort claim, the Plaintiffs argue that “[t]here is no question that the entry of Stolis Winner in the race was itself a lawful act.” Plaintiffs' Response at 15. The Plaintiffs also state that “there is no question that Stolis Winner's inclusion with the knowledge of his caffeine treatment was intended to injure Plaintiffs and the other sponsors of horses in the race.” Plaintiffs' Response at 15. Nevertheless, the Plaintiffs maintain, in the alternative, that “the question of [the Defendant's] intent [to commission a lawful act to injure the Plaintiffs] is a disputed issue of material fact, ” foreclosing summary judgment. Plaintiffs' Response at 16.

         Last, regarding their negligence claim, the Plaintiffs state that the “Defendants owed Plaintiffs a duty to abide by the Rules and regulations of the Racing Commission . . . as a competitor in a Race in which Plaintiffs were involved.” Plaintiffs' Response at 16. The Plaintiffs rely on “the clear rules that governed this race, ” arguing that the Racing Commission's prohibition of caffeine is a “strict liability zero-tolerance” rule and, consequently, includes no safe harbor for levels of caffeine below a certain level that the horse racing industry would consider as an environmental contaminant. Plaintiffs' Response at 17. The Plaintiffs again assert that the Defendants breached a duty “when their horse had caffeine in its system, ” Plaintiffs' Response at 17, but argue, in the alternative, that “even if environmental contamination were relevant, the question of contamination would be a fact question for a jury, ” Plaintiffs' Response at 19. The Plaintiffs further contend that the “Defendants' breach of duty caused Plaintiffs' injuries because the disqualification of Defendants' horse . . . would place Plaintiffs' horse in First upon a reorder of the Race.” Plaintiffs' Response at 17 (alterations added).

         7. The Plaintiffs' MSJ.

         The Plaintiffs cross-moved for summary judgment on their tort claims for intentional interference with prospective contract relations, fraud, prima facie tort, and negligence. See Plaintiffs' MSJ at 23-27. At the outset of their argument, the Plaintiffs restate a series of facts about which, they contend, there is no genuine dispute. See Plaintiffs' MSJ at 4. First, the Plaintiffs contend that Jet Black Patriot would have been declared the winner “[h]ad the disqualification of Stolis Winner been enforced as it should have . . . .” Plaintiffs' MSJ at 5. Second, the Plaintiffs contend that damages are not in dispute, stating that they should be awarded the difference between the first-place purse of $1 million and the second-place purse of $285, 000. See Plaintiffs' MSJ at 5. Third, the Plaintiffs maintain that “[i]t is also uncontested that [Stolis Winner] tested positive for caffeine.” Plaintiffs' MSJ at 5.[23]

         The Plaintiffs then assert that “[t]he mere presence of caffeine in a horse's system requires automatic disqualification.” Plaintiffs' MSJ at 7. In support of that assertion, the Plaintiffs rely on § 15.2.6.9C(1) of the New Mexico Administrative Code, which provides that a finding of

“a prohibited drug, chemical, or other substance in a test specimen of a horse is prima facie evidence that the prohibited drug, chemical, or other substance was administered to the horse and, in the case of a post-race test, was present in the horse's body while it was participating in the race.”

         Plaintiffs' MSJ at 7-8 (quoting N.M. Admin. Code § 15.2.6.9C(1)). The Plaintiffs contend that the “presence of caffeine is so prohibitive, that the [Racing] Commission is not supposed to even consider levels of a substance found in a horse's system when penalizing violators.” Plaintiffs' MSJ at 8. The Plaintiffs further allege that, “even were contamination a factor that could allow Defendants to avoid liability, . . . there is no credible evidence and only speculation that any contamination occurred.” Plaintiffs' MSJ at 10.

         The Plaintiffs then attempt to shoehorn their theory of the case into an argument for summary judgment on the four separate New Mexico tort actions. Regarding their claim for intentional interference with prospective contract relations, the Plaintiffs argue that they “have shown ‘there was an actual prospective contractual relation which, but for [the Defendants'] interference, would have been consummated.'” Plaintiffs' MSJ at 23 (alterations original)(quoting Dairyland Ins., 1981-NMSC-130, ¶ 13, 637 P.2d at 841). The Plaintiffs also state that their “horse would have placed First but for Defendants' interference.” Plaintiffs' MSJ at 24.

         Regarding their fraud claim, the Plaintiffs contend that the “Defendants misrepresented that their horse was free of prohibited substances, including caffeine.” Plaintiffs' MSJ at 25. The Plaintiffs also assert that “[i]t may be inferred from the circumstances, including Defendant Taylor's prior history of violations, the Defendants' intent was to deceive or induce reliance.” Plaintiffs' MSJ at 25. The Plaintiffs then state that they “relied on the representation that a competitor, Defendants' horse, was free of the prohibited substance and that the rightful winner would be provided with the First Place purse.” Plaintiffs' MSJ at 25.

         With respect to their prima facie tort claim, the Plaintiffs list the elements of prima facie tort, see Plaintiffs MSJ at 25 (citing Lexington Ins. Co. v. Rummel, 1997-NMSC-043, ¶ 10, 945 P.2d at 995), and then make a series of allegations ostensibly related to those elements, see Plaintiffs' MSJ at 26. The Plaintiffs state:

In the alternative, if Defendants did not intentionally provide Stolis Winner with the illegal substance, the fact remains that the substance was, indeed, in the horse's system. This is a serious offense as is indicated by the Rules zero-tolerance policy. The re-placement of the drugged horse as having finished First was also highly unfair, and even unheard of before this matter arose. All of these factors and more, point in favor of a finding by his Court of intent. The Plaintiffs were injured as a result of Defendants' actions, specifically the presence of caffeine in Defendants' horse.

Plaintiffs' MSJ at 26.

Finally, regarding the Plaintiffs' negligence claim, the Plaintiffs argue, in entirety, that Defendants owed Plaintiffs a duty to abide by the Rules and regulations of the Racing Commission and State of New Mexico as a competitor in a Race in which Plaintiffs were involved. Defendants breached that duty when their horse had caffeine in its system, as was shown unequivocally by the two undisputed test samples. As a result of this breach, Plaintiffs were injured, losing both the First Place purse and the monies and profits directly related to wining [sic] First Place at the All American Futurity.

Plaintiffs' SJM at 27 (alteration added).

         8. The Defendants' Response to the Plaintiffs' MSJ.

         The Defendants respond to the Plaintiffs' MSJ. See Defendants' Response at 1-9. Throughout their Response, the Defendants rely on the settled proposition that, in the summary judgment posture, “[t]he moving party bears the initial burden of a prima facie showing that they are entitled to summary judgment.” Defendants' Response at 3 (alteration added)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(“Celotex”)). The Defendants state that, “[i]n this case, Plaintiffs have not met their initial burden because they have presented no evidence of any act, omission, or other activity of these particular Defendants [as opposed to the State Defendants] to support liability under any of their theories of liability.” Defendants' Response at 3 (alterations added).

         First, regarding the Plaintiffs' claim for intentional interference with prospective economic relations, the Defendants contend that the “Plaintiffs had the burden to present uncontested evidence both of actual prospective contractual relations which, but for Defendants' interference, would have been consummated . . . .” Defendants' Response at 3 (emphasis in original)(citing Dairyland Ins., 1981-NMSC-135, ¶ 13, 637 P.2d at 841). The Defendants also allege that the Plaintiffs have the burden to make “a strong showing that the primary motive behind Defendants' actions was personal vengeance or spite.” Defendants' Response at 3 (citing Lenscrafters, Inc. v. Kehoe, 2012-NMSC-020, ¶ 42, 282 P.3d 758, 768). The Defendants then argue that, because the Plaintiffs failed to present any evidence “of any actual contractual relation that was not consummated or any improper motive of Defendants, ” the Plaintiffs are not entitled to summary judgment on their claim for intentional interference with prospective economic relations. Defendants' Response at 3.

         Second, regarding the fraud claim, the Defendants contend that the “Plaintiffs are required to provide clear-and-convincing uncontested evidence to support each element.” Defendants' Response at 4 (citing Simon v. Taylor, 2013 WL 5934420, at *18). The Defendants then contend that the Plaintiffs “presented no evidence of any misrepresentation made by any of Defendants to them, ” offering only the fact that Stolis Winner competed in the 2008 All American Futurity as evidence of the Defendants' alleged misrepresentation. Defendants' Response at 4. Further, the Defendants allege that the “Plaintiffs have provided no evidence, let alone clear and convincing evidence, that any Defendant had any knowledge of any false representations or recklessness regarding the same, any intent to deceive Plaintiffs, or that [the Plaintiffs] detrimentally relied on any representation.” Defendants' Response at 4. The Defendants assert that counsel's arguments are not evidence and, having offered no evidence of any misrepresentation, the Plaintiffs are not entitled to summary judgment on their fraud claim. See Defendants' Response at 4.

         Third, regarding the prima facie tort claim, the Defendants allege that the Plaintiffs argue that the “Defendants intentionally provided Stolis Winner with a banned substance in violation of law.” Defendants' Response at 5 (emphasis in original)(citing Plaintiffs' MSJ at 26). The Defendants maintain that the Plaintiffs fail to produce any evidence that the Defendants intentionally provided Stolis Winner with a banned substance, but even if the Plaintiffs produce such evidence, then “this would preclude recovery under a theory of prima facie tort because it would be an unlawful act.” Defendants' Response at 5 (citing Simon v. Taylor, 2013 WL 5934420, at *46). The Defendants maintain that the undisputed facts show that the Defendants did not “intentionally commit any lawful act with the intent to harm Plaintiffs, ” and, accordingly, the Plaintiffs are not entitled to summary judgment on their prima facie tort claim. Defendants' Response at 5.

         Last, the Defendants argue that the Plaintiffs are not entitled to summary judgment on their negligence claim. See Defendants' Response at 5-8. Responding to the Plaintiffs' argument that the Defendants had a duty to abide by the Racing Commission rules, the Defendants contend that “[e]ach provision cited by Plaintiffs . . . address[es] the conduct of a trainer, not an owner.” Defendants' Response at 6 (alterations added). Consequently, the Defendants argue that the Plaintiffs “have failed to present any duty potentially breached by Defendants Windham.” Defendants' Response at 6. As to Taylor, the Defendants press that “the regulatory authorities charged with overseeing horseracing in New Mexico determined there was no violation of any duty on . . . [his] part.” Defendants' Response at 6 (alterations added). The Defendants also argue that the Plaintiffs, by asserting their negligence claim, attempt to impute a duty on the Defendants “to prevent the presence of caffeine below accepted contamination levels.” Defendants' Response at 6. The Defendants counter, however, that the law knows no such duty. See Defendants' Response at 6.

         The Defendants argue not only that summary judgment is inappropriate, because they owed no duty to the Plaintiffs, but also that the Plaintiffs are not entitled to summary judgment, because the Plaintiffs fail to make a prima facie showing that the Defendants breached any duty owed to the Plaintiffs. See Defendants' Response at 7. According to the Defendants, “[t]he uncontested facts show Defendants did not administer caffeine to Stolis Winner or otherwise cause caffeine to be administered to Stolis Winner.” Defendants' Response at 7. To support this conclusion, the Defendants advert to “the fact that the alleged level of caffeine is less than the equivalent 100 ng/ml as measured in blood serum, the level recognized industry-wide as a threshold for differentiating environmental contamination from purposeful administration.” Defendants' Response at 7. The Defendants contend that, as the New Mexico Racing Commission determined, “there was no violation of the rules of racing, ” and, because the Plaintiffs fail to present evidence otherwise, their negligence claim fails. Defendants' Response at 7.

         The Defendants additionally argue that, even if the presence of caffeine in Stolis Winner violated a duty they had to the Plaintiffs, the Plaintiffs failed to show that this alleged breach caused the Plaintiffs an injury. See Defendants' Response at 7-8. The Defendants assert that “[t]he tiny amount of caffeine alleged to be in the sample was so insignificant it could not have altered the performance of Stolis Winner in any way.” Defendants' Response at 8. They argue that, because the “Plaintiffs have not shown Jet Black Patriot would have been the first place horse but for any act or omission of Defendants, ” the Plaintiffs do not establish their prima facie showing and, consequently, are not entitled to summary judgment on their negligence claim. Defendants' Response at 8. The Defendants conclude by requesting that the Court enter summary judgment in their favor, and against the Plaintiffs, as to all the Plaintiffs' claims in the Complaint.

         9. The Hearing.

         On January 25, 2017, the Court held a hearing on the Defendants' four December 21, 2016, motions for summary judgment and the Plaintiffs' MSJ. See Draft Transcript of Summary Judgment Motion Hearing, taken January 25, 2017, at 1:21-23 (Court)(“Tr.”).[24] The Court began by inquiring whether the parties thought there were any facts in dispute, necessitating a trial. See Tr. at 1:19-2:4 (Court). The parties did not provide the Court with a clear answer, but suggested that there was no disputed fact requiring a jury and that the Court could decide the Plaintiffs' claims as a matter of law. See Tr. at 3:10-14 (“I guess let me just be blunt about it. If we go to trial in this case we're not exactly sure what it is that is the fact issue you submit [to the] jury[.] I mean what does the charge look like if you go to trial[?]”)(Dunn).

         The Court then inquired into the damages that the Plaintiffs seek, querying the meaning of the Plaintiffs' concession, made in their briefing, that if the Court grants summary judgment in the Plaintiffs' favor, the “plaintiffs consent to dismissal of their other claims for actual damages.” Tr. at 5:1-6 (Court). See Plaintiffs' MSJ at 1 n.1 (“In the event the Court grants this Motion for Summary Judgment, Plaintiffs consent to dismissal of their other claims for actual damages other than the difference in purse . . . .”). The Plaintiffs responded that, if the case goes to trial, there would be fact issues concerning their damages -- such as lost stud fees and marketing fees -- but suggested that, in the summary judgment posture, they only seek the difference in purse. See Tr. at 4:7-5:4 (Dunn). The Plaintiffs, who are unsure of which state tort action is the proper vehicle for a claim predicated on Stolis Winner's positive caffeine sample, ostensibly proposed to limit their damages to expedite a resolution on appeal. See Tr. at 7:1-7:4 (“So we decided to facilitate, even though it cuts off our client's damages[, ] to try to facilitate a way to get appellate review of this without the expense of a trial.”)(Dunn). The Plaintiffs then stated their belief that they are entitled to summary judgment, because the positive caffeine sample violated the Racing Commission's rules “and that reordering of the purse was necessary.” Tr. at 7:20 (Dunn). The Court then queried which “cause of action of your four or five is that?” Tr. at 8:1-2 (Court). The Plaintiffs were uncertain, but suggested negligence. See Tr. at 8:3-8 (“Well, so I've worked through that, and I'm not sure what the answer to that is, [but I think] it's the negligence claim cause of action, whereas the duty is created by virtue of the New Mexico regulations, there is a breach and there is causation . . . .”)(Dunn). See also Tr. at 12:10-13 (“So the reason we listed all the claims is because we're not sure ultimately where Your Honor or the court of appeals will decide, okay, this is the cause of action for this kind of case.”)(Dunn).

         The Plaintiffs indicated that, before trial, they would seek an appellate ruling on the issue that might inform their theory of the case. The Plaintiffs stated:

[L]et's go up to the circuit, let them tell us. Perhaps, they'd certify the question to the New Mexico Supreme Court but at some point we [get a] ruling on whether or not a duty [is] created under the rules. And if the answer is [no], that's a whole different case that is going to have to come back and be tried. If the answer is yes a duty is created, then there are no issues of fact, because everything else is known.

Tr. at 8:25-9:6 (Dunn). The Court then asked the Plaintiffs if they would rather the Court certify its motion to dismiss ruling on the negligence claim in Plaintiffs' favor to the Tenth Circuit as “an immediately appealable order.” Tr. at 9:14-18 (Court). The Plaintiffs balked at the Court's proposal, asserting instead that they are entitled to summary judgment -- a ruling which could then be considered on appeal. See Tr. at 10:11-17 (Dunn). The Court consequently turned its attention to whether either party is entitled to summary judgment, see Tr. at 10:18-23, and invited argument from the Defendants, see Tr. at 13:3-4.

         The Defendants first responded to the duty element of the Plaintiffs' negligence claim. See Tr. at 13:24-15:5 (Blackburn). The Defendants indicated that the Racing Commission rules relate only to a horse's trainer, and, hence, the Plaintiffs do not have a negligence action against J. Windham or P. Windham. See Tr. at 13:24-15:5 (Blackburn). The Defendants then contested the legal effect of Stolis Winner's positive test for caffeine, arguing that “[j]ust because the horse has some type of illegal contaminant in its system does not mean it is strict liability.” See Tr. at 16:8-10 (Blackburn). The Defendants emphasized that Stolis Winner's positive test for caffeine is only a “prima facie showing” of a rule violation, Tr. at 16:7-8 (Blackburn), and that, after a preliminary hearing before the stewards, the Racing Commission concluded “that there was no violation of the rules, ” Tr. at 17:2-3 (Blackburn).

         The Court then addressed the Defendants' four summary judgment motions, beginning with the Defendants' motion for summary judgment on the Plaintiffs' intentional interference with prospective economic relations claim. See Tr. at 18:1-20 (Court). The Defendants replied that the Court should grant summary judgment in their favor on this claim, because the Plaintiffs do not demonstrate the Defendants' intent to interfere with a prospective contract. See Tr. at 19:9-12 (Blackburn); id. at 20:10-15 (Blackburn). The Court then addressed how the Plaintiffs responded to the Defendants' summary judgment motions, asking whether the Court should find the facts that the Defendants advance in their four motions to be uncontested. See Tr. at 21:2-4 (Court).

         The Court pressed the Plaintiffs to say “what the factual disputes are, if any.” Tr. at 22:21-22 (Court). The Plaintiffs then read through a statement of relevant uncontested facts and stated that they disagreed with the Defendants' allegation that neither Taylor, J. Windham, nor P. Windham knowingly or intentionally provided caffeine to Stolis Winner. See Tr. at 23:5-7, 9-10 (Dunn). The Court consequently inquired what evidence the Plaintiffs offer in dispute. See Tr. at 23:7-8 (Court). The Plaintiffs responded by adverting only to the positive test and, then, relying on § 15.2.6.9(C)(1) of the New Mexico Administrative Code, which states that such a positive test “is prima facie evidence that the prohibited . . . substance was administered to the horse . . . .” Tr. at 24:11-12. The Court expressed doubt whether that provision helps the Plaintiffs in the summary judgment posture. See Tr. at 24:16-18.

         The Plaintiffs also disputed the Defendants' factual allegations that neither the Plaintiffs nor the Defendants are aware of any person who refused to enter into an economic relationship with the Plaintiffs as a result of Jet Black Patriot finishing behind Stolis Winner. See Tr. at 25:22 (Dunn); Tr. at 27:11-28:1 (Dunn). After the Court pressed for evidence to substantiate the Plaintiffs' contention of a factual dispute, the Plaintiffs did not name a specific economic relationship, but suggested they could “show this is what other horses in similar situations would have earned . . . .” Tr. at 26:15-18 (Dunn). The Court then asked the Defendants if they had anything to add regarding the intentional interference with prospective economic advantage claim. See Tr. at 29:5-8 (Court). The Defendants responded by emphasizing that the Plaintiffs' prima facie showing of a rule violation is necessarily rebuttable, especially “in a different circumstance when you're talking about caffeine or some issue like that that is in the environment.” See Tr. at 30:22-24 (Blackburn). The Defendants also argued that New Mexico Administrative Code § 15.2.6.9(C)(1) is not a zero-tolerance rule; otherwise, according to the Defendants, the rule would not create a rebuttable presumption upon a positive test for a banned substance. See Tr. at 32:2-23 (Blackburn).

         The Court inquired whether evidence of the presence of caffeine in Stolis Winner creates a factual dispute precluding summary judgment in the Defendants' favor on the Plaintiffs' intentional interference with prospective economic advantage claim. See Tr. at 32:24-33:5 (Court). The Defendants responded that, while Stolis Winner's positive test for caffeine might create a factual dispute regarding intent, the Court should grant summary judgment, because the Plaintiffs did not produce evidence of a contractual relationship. See Tr. at 33:16-20 (Blackburn). Before the Court addressed the next claim, it allowed the Plaintiffs to interject. See Tr. at 36:16-18 (Dunn, Court). The Plaintiffs then clarified that “this issue on intent [to interfere with a prospective contract] only matters if the Court finds that it can't just grant summary judgment on the rule violation and the difference in purse.” Tr. at 37:23-38:1 (Dunn).

         The Court then addressed the Plaintiffs' fraud claim and asked the Plaintiffs' counsel to state “what the misrepresentation is.” Tr. at 39:20-21 (Court). The Plaintiffs replied that the Defendants' misrepresentation was “the entering of the horse in the race, ” because that action is a “representation to all participants that this horse [is in] compliance with the New Mexico Racing Commission rules . . . .” Tr. at 39:23-25 (Dunn). Upon the Court's invitation, the Defendants offered nothing further on their summary judgment motion on the Plaintiffs' fraud claim. See Tr. at 40:20-22 (Court, Blackburn).

         The Court next addressed the Defendants' summary judgment motion regarding the Plaintiffs' prima facie tort claim. See Tr. at 40:23-24 (Court). The Defendants stated that they had no argument in addition to those provided in their briefing. See Tr. at 40:25-41:6 (Blackburn). The Defendants reminded the Court that the Court had authored a prior opinion expressing that the prima facie tort claim requires a showing of a lawful intentional act. See Tr. at 41:6-8 (Blackburn). The Court asked the Plaintiffs “what . . . legal act you're complaining about.” Tr. at 41:19 (Court). The Plaintiffs replied that “[i]t was certainly legal for the Defendants to train a horse and offer the horse for competition in the race, ” Tr. at 41:20-22 (Dunn), and propounded that “the entry into the race is a lawful act, ” Tr. at 42:10 (Dunn). The Plaintiffs then argued that a factual dispute exists whether the Defendants acted with the intent to cause the Plaintiffs injury, precluding summary judgment. See Tr. at 42:3-6 (Dunn).

         The Court inquired whether the Defendants wanted to make an additional argument concerning the Plaintiffs' negligence claim. See Tr. at 42:16-18 (Court). The Defendants emphasized that Stolis Winner was not under the influence of caffeine, “because a minimal amount of caffeine detected in the sample could not have any positive effect . . . .” Tr. at 42:25-43:2 (Blackburn). The Defendants also pressed that the Racing Commission's regulations do not impose a duty on a horse's owners, but only on the trainer. See Tr. at 43:12-23 (Blackburn).

         The Court then asked the Plaintiffs to clarify their theory of the alleged negligent act, inquiring whether the Plaintiffs allege a single act of negligence or multiple negligent acts. See Tr. at 44:2-6 (Court). The Plaintiffs responded that there “are two negligent acts.” Tr. at 44:7 (Dunn). First, the Plaintiffs pointed to the no-caffeine rule violation, stating that the rule operates with strict liability. See Tr. at 44:9-13 (Dunn). The Plaintiffs then explained that their second theory of negligence sounds in “negligent training of the horse.” Tr. at 45:1 (Dunn). The Plaintiffs hypothesized that the Defendants committed a negligent act in the “negligent supervision of the horse, more negligent application of medications or negligence in maintaining the area around the horse to prevent contamination.” Tr. at 45:9-12 (Dunn).

         The Court then repeated its request that the Plaintiffs clarify their theories of negligence. See Tr. at 45:21-22 (Court). The Plaintiffs replied that “[t]he first is [a] duty created by the rules, [the] rules were breached; that's one negligence.” Tr. at 45:23-24 (Dunn). The Court inquired whether there is a particular rule that was breached. Tr. at 45:25-46:1 (Court). The Plaintiffs responded affirmatively, adverting to “the absolute insurer rule . . . section 15.2.6.11(B) and [subsections 15.2.6.11(E)(1)-(2)].” Tr. at 46:8-12 (Dunn). The Court then asked the Plaintiffs to repeat their other theory of negligence. See 46:12-13 (Court). The Plaintiffs responded, “[i]t's that caffeine is a level 2 drug and that the rules require immediate or . . . unconditional disqualification.” Tr. at 46:14-17 (Dunn). The Court inquired whether the Plaintiffs' negligence claim is entirely grounded on violations of Racing Commission rules. See Tr. at 47:5-6 (Court). The Plaintiffs then explained that they assert a second theory of negligence travelling under their “negligent training claim . . . .” Tr. at 47:11-12 (Dunn). The Court made certain it understood the Plaintiffs' claims: “So you've got three reg[ulations] that you're alleging violation . . . and then the duty to train[.] [T]hose are the basis [for your] four negligence claims?” Tr. At 48:11-14 (Court). The Plaintiffs represented that the Court correctly understood their negligence claims. See Tr. at 48:15 (Dunn).

         The Plaintiffs then pressed that, at least with their negligence claims premised on Racing Commission rule violations, there is no fact issue. See Tr. at 48:18-49:1 (Dunn). “So, ” the Plaintiffs contended, they “are entitled to a judgment for recovery of the difference in purse.” Tr. at 49:1-3 (Dunn). The Plaintiffs also represented that, “in the event the Court is inclined to do that, my clients are willing to abandon the rest of their claims to have resolution of this case finally. So there would be nothing more to try or decide . . . .” Tr. at 49:3-7 (Dunn). “On the other hand, ” the ...


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