United States District Court, D. New Mexico
SHIRLEY J. WALKER, Plaintiff,
GREGORY J. SPINA; VALLEY EXPRESS, INC. and DIXON INSURANCE COMPANY, Defendants.
M. Ayala Ayala P.C. Albuquerque, New Mexico --and-- Anthony
James Ayala Law Offices of Anthony James Ayala Albuquerque,
New Mexico Attorneys for the Plaintiff
Sedillo Alison Beaulieu Butt Thornton & Baehr PC
Albuquerque, New Mexico Attorneys for the Defendants
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Plaintiff's
Motion to Amend Complaint for Personal Injuries and Damages,
filed February 3, 2018 (Doc. 23)(“Motion”). The
Court held a hearing on June 20, 2018. The primary issue is
whether Plaintiff Shirley Walker may sue Great West Casualty
Company as an injurer's insurer under Raskob v.
Sanchez, 1998-NMSC-045, ¶ 6, 970 P.2d 580, 581-82
(“Raskob”), when the injurer is an
out-of-state resident. The Court concludes that a
Raskob action lies, even against an out-of-state
resident, so long as: (i) the law mandates the insurance
coverage; (ii) the law is meant to benefit the public; and
(iii) the law does not express an intent to deny joinder.
See Raskob, 1998-NMSC-045, ¶ 3, 970 P.2d at
581. Because both the New Mexico Financial Responsibility
Act, N.M. Stat. Ann. §§ 66-5-201 to -239
(“NMFRA”) and North Dakota law (i) mandate that
the out-of-state resident have insurance coverage; (ii) were
meant to benefit the public; and (iii) the laws do not
express an intent to deny joinder, the Court concludes that a
Raskob action lies. Accordingly, the Court grants
the Motion, and Walker may amend her complaint to add Great
West as a defendant.
Court takes its facts from Walker's Complaint for
Personal Injuries and Damages (First Judicial District Court,
County of Santa Fe, State of New Mexico), filed December 23,
2016, filed in federal court September 29, 2017 (Doc.
1-1)(“Complaint”). The Court provides these facts
for background. It does not adopt them as the truth, and it
recognizes that the facts are largely Walker's version of
23, 2015, Defendant Gregory J. Spina was speeding on U.S.
Highway 84/285 in a commercial vehicle that Defendant Valley
Express, Inc. owned. See Complaint ¶¶ 6-7,
at 2. As Spina approached a red light, he realized that he
was going too fast to brake, so, instead of hitting the
vehicles stopped side by side in front of him, he attempted
to slip between them. See Complaint ¶ 7, at 2.
Rather than avoiding the stopped vehicles, however, he
sideswiped both of them, causing both cars to roll into the
intersection. See Complaint ¶ 7, at 2-3. Walker
was driving one of the sideswiped vehicles and, as a result
of Spina's actions, suffered physical and emotional
injuries. See Complaint ¶¶ 7, 11, at 2-4.
sues Spina and Valley Express, asserting negligence,
sues Defendant Dixon Insurance Company, asserting that she
has a claim for benefits against it under the NMFRA and
Raskob for injuries that Spina's negligence
caused. See Complaint ¶¶ 8-13, at 3-5.
Spina and Valley Express removed the case to federal court on
the basis of diversity jurisdiction. See Notice of
Removal to the United States District Court for the District
of New Mexico at 1, filed September 29, 2017 (Doc.
1)(“Notice of Removal”). Dixon Insurance has not yet
been served with the Complaint. See Draft Transcript
of Motion Proceedings at 6:1-2 (taken June 20,
moves to amend the Complaint so she can substitute Great West
for Dixon Insurance. See Motion at 1. She argues
that, based on recent disclosures from Spina and Valley
Express, she learned that Great West and not Dixon Insurance
issued the relevant insurance policy. See Motion
¶ 2, at 2. She argues, thus, that, under rule 15(a)(2)
of the Federal Rules of Civil Procedure, the Court should
grant the amendment, because there is no evidence of
“undue delay, bad faith, dilatory tactics, ” or
prejudice to Spina and Valley Express. Motion ¶¶
5-7, at 2-3.
and Valley Express respond. See Defendants'
Gregory J. Spina and Valley Express, Inc.'s Response to
Plaintiff's Motion to Amend at 1, filed February 16, 2018
(Doc. 25)(“Response”). They argue that the Court
should not allow the amendment, because commercial motor
carriers, such as Great West, are exempt from the NMFRA, so,
according to Spina and Valley Express, there is no basis to
hold Great West liable. See Response at 1-2. Spina
and Valley Express contend that the NMFRA does not apply to
Great West, because the NMFRA's purpose applies to New
Mexico residents, which Spina, Valley Express, and Great West
are not. See Response at 3. They also assert that
the NMFRA does not apply to commercial motor vehicles, so the
NMFRA would not apply here, because the car at issue is a
commercial motor vehicle. See Response at 3-4
(citing N.M. Stat. Ann. § 66-5-207(D)). Finally, Spina
and Valley Express argue that Raskob is
inapplicable, because, according to them, the Supreme Court
of New Mexico held there that an insurer could be held liable
if they issued a policy in accordance with the NMFRA, but
here, the policy was not issued in accordance with the NMFRA.
See Response at 4.
replies. See Plaintiff's Reply to Defendants
Gregory J. Spina's and Valley Express, Inc.'s
Response to Her Motion to Amend Her Complaint, filed February
20, 2018 (Doc. 26)(“Reply”). She asserts that
Raskob allows Great West's joinder,
notwithstanding the NMFRA, because “‘where the
insurance coverage is mandated by law for the benefit of the
public, generally the insurance company is a proper
party.'” Reply at 1-2 (quoting Raskob,
1998-NMSC-045, ¶ 3, 970 P.2d at 581). She argues that,
because the rights of persons injured in automobile accidents
are determined under the law where the accident happened, New
Mexico law applies. See Reply at 2. Thus, according
to Walker, “if insurance coverage for the Valley
vehicle Spina was driving is mandated by law, benefits the
public and no language of the law expresses an intent to deny
joinder, Walker may join Great West as a defendant.”
Reply at 2. She concludes that, even if the NMFRA does not
apply, North Dakota and federal law require insurance to
cover the vehicle driven, so Raskob applies and
Great West is a proper defendant. See Reply at 3.
Court held a hearing. See Tr. at 1:5-6 (Court).
Walker argued that Raskob is on all fours, so Great
West's joinder is proper and the Court should grant leave
to amend. See Tr. at 2:19-4:2 (Ayala). Spina and
Valley Express countered that Raskob cannot cover
this case, because Raskob analyzes the NMFRA, which,
according to Spina and Valley Express, does not apply here,
because the NMFRA targets New Mexico residents, whereas Spina
and Valley Express are North Dakota residents. See
Tr. at 6:13-17 (Beaulieu); id. at 11:11-13
(“[T]he Raskob opinion and analysis is very specific to
the New Mexico Laws [such] that the overbreadth of language
would be in reference to those laws.”); id. at
15:17-16:16 (Beaulieu, Court). They also argue that Great
West is not a proper party, because Walker is not in privity
with Great West. See Tr. at 7:1-2 (Beaulieu). Spina
and Valley Express conceded, however, that both New Mexico
and North Dakota law mandate insurance coverage. See
Tr. at 9:2-4 (Beaulieu, Court). The Court commented that
Raskob appears to be saying that, “if the
insurance coverage is mandated, then the insurance company is
a proper party.” Tr. at 9:19-21 (Court). The Court
noted that there might be good reasons to create exceptions
to the Raskob rule, but that the Supreme Court of
New Mexico, not a federal court sitting in diversity, ought
to address those reasons in the first instance. See
Tr. at 10:18-21 (Court).
and Valley Express contended that, should the Court allow the
amendment, it would request a bifurcation, separating Great
West from the rest of the matter, because there is not a
direct cause of action. See Tr. at 12:24-13:4
(Beaulieu). Should the Court determine that there is a direct
cause of action here, Spina and Valley Express argued that a
bifurcation would still be proper, because they would be
prejudiced. See Tr. at 13:11-19 (Beaulieu). Walker
agreed that there should be bifurcation. See Tr. at
REGARDING RULE 12(b)(6)
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). 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 nonmoving
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)(“[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)).
complaint need not make 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. at 678 (2009)(citing Bell Atl. Corp. v.
Twombly, 550 U.S. at 555). “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.
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). “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 1174, 1177 (10th Cir. 2007)(emphasis
omitted). The United States Court of Appeals for 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
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008)(citations omitted)(quoting Bell Atl. Corp. v.
Twombly, 550 U.S. at 570). See Gallegos v.
Bernalillo Cty. Board of Cty. Comm'rs, __ F.Supp.3d
__, 2017 WL 4402422, at *9 (D.N.M. 2017)(Browning, J.).
a party presents matters outside of the pleadings for
consideration, as a general rule ‘the court must either
exclude the material or treat the motion as one for summary
judgment.'” Brokers' Choice of America,
Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th
Cir. 2017)(quoting Alexander v. Oklahoma, 382 F.3d
1206, 1214 (10th Cir. 2004)). There are three limited
exceptions to this general principle: (i) documents that the
complaint incorporates by reference, see Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007); (ii) “documents referred to in the complaint if
the documents are central to the plaintiff's claim and
the parties do not dispute the documents' authenticity,
” Jacobsen v. Deseret Book Co., 287 F.3d at
941; and (iii) “matters of which a court may take
judicial notice, ” Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. at 322. See
Brokers' Choice of America, Inc. v. NBC Universal,
Inc., 861 F.3d 1081, 1103 (10th Cir. 2017)(holding that
the district court did not err by reviewing a seminar
recording and a TV episode on a rule 12(b)(6) motion, which
were “attached to or referenced in the amended
complaint, ” central to the plaintiff's claim, and
“undisputed as to their accuracy and
authenticity”). “[T]he court is permitted to take
judicial notice of its own files and records, as well as
facts which are a matter of public record.” Van
Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir.
2000), abrogated on other grounds by McGregor v.
Gibson, 248 F.3d 946, 955 (10th Cir. 2001).
Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the
defendants “supported their motion with numerous
documents, and the district court cited portions of those
motions in granting the [motion to dismiss].” 627 F.3d
at 1186. The Tenth Circuit held that “[s]uch reliance
was improper” and that, even if “the district
court did not err initially in reviewing the materials, the
court improperly relied on them to refute Mr. Gee's
factual assertions and effectively convert the motion to one
for summary judgment.” 627 F.3d at 1186-87. In other
cases, the Tenth Circuit has emphasized that,
“[b]ecause the district court considered facts outside
of the complaint, however, it is clear that the district
court dismissed the claim under Rule 56(c) and not Rule
12(b)(6).” Nard v. City of Okla. City, 153
Fed.Appx. 529, 534 n.4 (10th Cir.
2005)(unpublished). In Douglas v. Norton, 167
Fed.Appx. 698 (10th Cir. 2006)(unpublished), the Tenth
Circuit addressed an untimely filed charge with the Equal
Employment Opportunity Commission -- which the Tenth Circuit
analogized to a statute of limitations -- and concluded that,
because the requirement ...