United States District Court, D. New Mexico
SHANNON JACKSON, TRENDAL PRICE, and BTL ENTERTAINMENT, Plaintiffs,
CURRY COUNTY, CURRY COUNTY MANAGER, LANCE A. PYLE, CURRY COUNTY SHERIFF MURRAY, COMCAST SPORTS VENTURES, dba COMCAST SPECTATOR, GLOBAL SPECTRUM OF NEW MEXICO, LLC, and GLOBAL SPECTRUM, L.P., Defendants.
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Curry County Defendants'
Motion for Summary Judgment Based Upon Qualified Immunity and
Sovereign Immunity (“Summary Judgment Motion”)
[Doc. 45], Plaintiffs' Motion for Leave to Supplement
Evidence in Opposition to the Curry County Defendants'
Motion for Summary Judgment Based Upon Qualified Immunity and
Sovereign Immunity (“Motion for Leave”) [Doc.
58], and Curry County Defendants' Motion to Strike Rule
56(d) Declaration of Joseph P. Kennedy (“Motion to
Strike”) [Doc. 64]. The Court, having considered the
motions, briefs, and relevant law, and being otherwise fully
informed, finds that the Summary Judgment Motion is
well-taken in part and will be granted in part and denied in
part, the Motion for Leave is moot, and the Motion to Strike
facts supported by evidence, [viewed] in the light most
favorable to [Plaintiffs]” as the party opposing
summary judgment, are as follows. Cavanaugh v. Woods Cross
City, 625 F.3d 661, 662 (10th Cir. 2010). Curry County,
a political subdivision of the State of New Mexico, owns the
Curry County Fairgrounds (the “Fairgrounds”),
which includes the Curry County Events Center (the
“Events Center”), a multi-purpose sport and
entertainment arena. Doc. 45 at ¶ 5. Pursuant to a
management agreement (the “Management Agreement”)
executed on or about January 1, 2012, Curry County engaged
Global Spectrum, L.P. to manage and operate the Fairgrounds,
including the Events Center. Id. at ¶ 6. At all
relevant times, Global Spectrum was the sole and exclusive
operator of the Events Center. Id. at ¶ 7.
Pursuant to the Management Agreement, Global Spectrum was
responsible for booking events at the Events Center and
managing, inter alia, security and crowd control.
Id. at ¶ 8. For purposes of entering into
contracts regarding the Fairgrounds and the Events Center,
Global Spectrum acted as agent for Curry County, and was
authorized to sign and enter into such contracts in Curry
County's name, as an agent for Curry County. Doc. 45-3 at
20. At all relevant times, Kevin Jolley, who was an employee
of Global Spectrum, served as the General Manager of the
Events Center. Doc. 45 at ¶ 11.
about September 3, 2013, an agreement entitled “License
Agreement; Curry County Events Center and Fairgrounds,
” was made “by and between Global Spectrum, L.P.
(“Licensor”), on behalf of the Curry County
Events Center . . . and BTL Entertainment
(“Licensee”), ” pursuant to which BTL
Entertainment, in exchange for a fee of $4, 000, obtained a
license to put on a concert at the Events Center on October
25, 2013. Doc. 45-4. BTL Entertainment is a partnership
between Plaintiffs Shannon Jackson and Trendal Price. Doc
45. at ¶ 1. The License Agreement states that
Curry County “owns” the Event Center “and
has engaged [Global Spectrum] to manage and operate the Event
Center” on Curry County's behalf, and that Global
Spectrum “is authorized to enter into contracts on
behalf of [Curry County] for use of space within the Event
Center.” Doc. 45-4. The License Agreement was executed
by Trendal Price for BTL Entertainment and by Jolley, as
General Manager of the Events Center, for Global Spectrum.
approximately 3:30 p.m. on October 24, 2013, the day before
the scheduled concert, Stephen Doerr, attorney for Curry
County, sent an email message to Jolley, copied to Lance
Pyle, the County Manager for Curry County, regarding
“Concert Tomorrow Night.” Doc. 45-5.
email message states as follows:
It has just been brought to my attention that Global Spectrum
has booked and signed a contract to lease the Curry County
Events Center to Shannon Jackson and Trudle Price
[sic.] where alcohol will be served. I have been
advised by the sheriff's office that you have been
notified that these two individuals have criminal records and
both are presently on bond pertaining to a trafficking
methamphetamine charge. As such, those two individuals cannot
be involved in the sale or consumption of alcohol and cannot
be on the premises where alcohol is being sold or consumed.
I am advised that the sheriff's office has previously
told you that the last time that one of these individuals
held a rap concern [sic.] in Curry County, one of
them ended up shooting somebody. I certainly do not believe
that these are the types of events that the Board of County
Commissioners of Curry County contacted [sic.] with
Global Spectrum to hold at the Curry County Events Center.
Global Spectrum, in addition to leasing the Events Center,
has leased the Curry County liquor license. I am writing to
notify you that with regard to tomorrow's concert, all
laws pertaining to alcohol and alcohol consumption are to be
strictly enforced by Global Spectrum. Global Spectrum and its
agents and employees are to conduct themselves in such a
manner as to not jeopardize or endanger Curry County's
It is my understanding that you have advised the Sheriff that
based upon conversations with your legal representative and
company representatives, that you do not believe that Global
Spectrum is able to cancel the concert tomorrow night. Global
Spectrum needs to make sure that proper law enforcement is
available to handle the crowd for this event and that the
promoter pays for any additional expenses that may be needed.
At the present time, please be assured that Curry County will
not waive any of its rights under contract with Global
Spectrum and expects that Global Spectrum will comply with
all those terms of its contracts, as well as New Mexico laws.
Paragraph Number 3 on the general terms and conditions
attached to your standard license agreement places the
obligation on Global Spectrum to obtain and charge the
licensee for all personnel, as may be required by Global
Spectrum for security and others as otherwise needed. In
addition, in Paragraph Number 12, it is your obligation to
ensure that the licensee, and every person under its
direction or contract, comply with all applicable laws with
prior knowledge of the individuals who are putting on this
concert, it is expected that Global Spectrum will ensure that
those terms and conditions are fully complied with.
later, at approximately 4:30 p.m. Rick Hontz, Regional Vice
President of Global Spectrum, sent an email message to Doerr,
Jolley, Pyle, and others, regarding “conference call to
discuss hip hop show tomorrow night in Curry County.”
Doc. 45-6. In the email message, Hontz wrote, “I think
it would be beneficial if we all got on a call tomorrow
morning at 9 AM to discuss this event.” Id.
15 minutes later, Doerr sent an email message to Jolley,
copied to Pyle, regarding “Friday's Event at Events
Center.” Doc. 45-5. In the email message, Doerr wrote
that he had just received a call from Hontz, regarding the
telephone conference for the following morning, and that,
immediately after that call, he spoke with Matthey Murray,
Sheriff of Curry County, and Deputy Reeves, who advised that
they had obtained “the court order on the promoters
[Jackson and Price] and informed [him] that the judge did not
restrict either of the individuals from being on the premises
where alcohol is served or consumed. These individuals'
conditions of release only state that they themselves cannot
consume alcohol.” Id. Doerr further wrote:
“Would you please forward this to Rick [Hontz] and let
him know that his concerns about the promoter not being
allowed on the premises as a basis for cancelling the concert
are not correct and I apologize for the same. I still think
it would probably be in our best interest if we had a
telephone conference call to discuss these matters.”
next morning, October 25, 2013, at 9:00 a.m., a conference
call was held among Jolley, other representatives from Global
Spectrum, Pyle, Murray, Reeves, and Doerr. Doc. 45 at ¶
27. The call focused on security for the concert that night.
Id. at ¶ 28. In particular, Murray indicated
that the Sheriff's Department would be providing law
enforcement officers for the event, and Jolley advised that
he had hired 30 people to staff the event, including 15
security guards and three staff to “watch the bars,
” and that the security staff would be equipped with
metal detecting wands to screen patrons entering the
building. Id. at ¶¶ 30-32. Later that
morning, Murray confirmed that he would have his canine
officer at the event with a drug sniffing dog, as well as
signs advising the concertgoers of the presence of the dog.
Doc. 45 at ¶ 35.
conclusion of the morning conference call, Pyle
“believed that all security concerns had been
adequately addressed, and the concert was to be held as
scheduled that evening, ” Doc. 45-1 at ¶ 16, and
Murray believed that the security measures planned
“would be adequate to cover this concert and provide
safety for the patrons, ” and that “everyone was
in agreement that the concert was proceeding as
scheduled.” Doc. 45-2 at ¶¶ 10-11.
Nonetheless, “[a]t the conclusion of the call, the
Curry County representatives expressed their continued
concerns regarding the ability to ensure safety for the
public and property at the concert scheduled for that
evening.” Doc. 51-1 at ¶ 6.
Spectrums' employees, including Hontz, “made the
decision to cancel the concert based on the concerns
expressed by the County representatives about the inability
to ensure safety for the public and property at the
event.” Doc. 51-1 at ¶ 7. An undated memo on Curry
County Events Center letterhead addressed to BTL
Entertainment, signed by Jolley as General Manager of the
Events Center, states: “The Southwest Jump Off Concert
you had scheduled for Friday October 25, 2013 has ...