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Routh v. Johnson

United States District Court, D. New Mexico

September 28, 2018

CATHY ROUTH, Plaintiff,
ANDREA CHARLEEN JOHNSON, KRISTOPHER DALE KATSCH, CARL CARMELL ELLERBY, FRED MORALES a/k/a Frederico Marvin Torres, in his official and personal capacity, BEN MARTINEZ, in his official and personal capacity, PEDRO CHAVEZ, in his official and personal capacity, Defendants.



         THIS MATTER comes before the Court on the Motion to Dismiss on the Basis of Qualified Immunity and on Other Grounds [Doc. 24]. The Court, having considered the motion, briefs, and relevant law, and being otherwise fully informed, finds that the motion is well-taken and will be granted.


         The relevant facts as alleged in the Complaint are as follows. In February 2014, Plaintiff Cathy Routh bought three lots in Los Lunas, New Mexico (the “Property”). Doc. 1-2 at ¶ 13. Plaintiff purchased her Property with an easement on the neighboring property owned by Defendant Fred Morales a/k/a Frederico Marvin Torres (“Torres”) (“Torres' Property”), which allows Plaintiff access to a well on Torres' Property (the “Well”). Id. at ¶ 14. In July 2014, Defendants Andrea Charleen Johnson, Kristopher Dale Katch, and Carl Carmell Elerby became tenants on Torres' Property. Id. at ¶ 22.

         Plaintiff's Property is supplied with water from the Well pursuant to a binding, enforceable and recorded water well agreement (the “Agreement”) that has not been dissolved and assures continuity of water service to Plaintiff's Property. Id. at ¶ 15. Under the Agreement, Torres is prohibited from making any improvements to his Property that would impair Plaintiff's use of her easement to access the Well. Id. at ¶ 16. Also under the Agreement, Plaintiff is entitled to access the Well for system operation, maintenance, improvement, and testing, and to effect repairs and maintenance in the event of an emergency, i.e., when water is not being delivered properly to her Property. Id. at ¶ 17.

         From in or about February 2014 through August 2015, Torres, along with Johnson, Katch and Elerby, engaged in various improper acts that interfered with Plaintiff's access to the Well and with water service from the Well to her Property, including charging Plaintiff for improvements in violation of the Agreement, threatening Plaintiff and her tenants, demanding excessive payments from Plaintiff's tenants for water use in violation of the Agreement, placing “No Trespass” signs on Plaintiff's easement, damaging Plaintiff's water lines and valves, and blocking access to prohibit repairs thereto, and repeatedly shutting off the delivery of water to Plaintiff's Property. Id. at ¶¶ 19-38. These improper acts caused Plaintiff various harms, including the loss of rental income, the inability to start a business that she had planned for her Property and thus the loss of potential profit from such business, the salvaged sale of and loss of equity in mobile homes on her Property, a reduction in the value of her Property due to lack of water, needless costs for repairs, and ultimately, the abandonment of her Property. Id.

         In response to the improper acts of Torres, Johnson, Katch and Elerby, Plaintiff called the Sheriff's Department on three occasions in August 2015, and attempted to file a police report. Id. at ¶ 31. Torres, along with Defendant Ben Martinez, and Defendant Pedro Chavez, all Valencia County Deputy Sheriffs, did not allow Plaintiff to file a police report. Id. At some point, Plaintiff again contacted the Sheriff's Department, and Martinez responded to the call. Id. at ¶ 33. Martinez told Plaintiff that Torres was “handling the matter, ” and that Plaintiff “would have to go to court to get access to the Well and water system.” Id. Martinez further told Plaintiff “not to cross a line to make the needed repairs.” Id. Plaintiff contacted Martinez and Chavez “several times to report the interference with and trespass on her easement, damage to water lines and valves” by Torres, Johnson, Katch, and Elerby. Id. at ¶ 34. Martinez and Chavez, “under the direction” of Torres, “took no action” on Plaintiff's complaints, stating that Torres was “taking care of the matter.” Id. at ¶ 35.

         Based on these allegations, on June 10, 2016, Plaintiff commenced the instant action in New Mexico state court, alleging negligent misrepresentation as to Johnson, Torres, Martinez, and Chavez (Count I), negligent interference of easement as to all Defendants (Count II), trespass and slander to chattels as to all Defendants (Count III), tortious interference with contract/prospective business relations as to all Defendants (Count IV), breach of contract (Count V), and violation of the Tort Claims Act and deprivation of state and federal constitutional rights (Count VI) as to Martinez, Chavez, and Torres. Doc. 1-2. In Count VII, Plaintiff seeks damages based on the violations alleged in Counts I through VI of the Complaint.

         Martinez and Chavez removed the case to this Court on July 16, 2016. Doc. 1. On October 25, 2017, Johnson was dismissed from this case by stipulation of the parties. Doc. 73. On January 31, 2018, all counts against Torres were dismissed by stipulation of the parties, other than Count VI and Count VII to the extent that Count II seeks damages based on the violations alleged in Count VI. Doc. 79.

         On July 25, 2016, Martinez and Chavez filed the instant motion to dismiss in its entirety the Complaint as against them (“Martinez/Chavez Motion”). Doc. 24. On February 21, 2018, Torres filed a Motion for Summary Judgment on the Basis of Qualified Immunity and Other Grounds (“Torres Motion”) [Doc. 81]. Plaintiff opposes the motions.


         Under Rule 12(b)(6), a Court may 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.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). When considering a Rule 12(b)(6) motion, the Court must accept as true all well-pleaded 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. Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009), cert. denied, 130 S.Ct. 1142 (2010).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

         The Court in Iqbal identified “two working principles” in the context of a motion to dismiss. Id. First, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Accordingly, Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. “Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679; see Twombly, 550 U.S. at 570 (holding that a plaintiff must “nudge” her claims “across the line from conceivable to plausible”). Accordingly, “where ...

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