United States District Court, D. New Mexico
L. KIRK TOMPKINS and SUSIE TOMPKINS, Plaintiffs,
LIFEWAY CHRISTIAN RESOURCES OF THE SOUTHERN BAPTIST CONVENTION; THOM RAINER, President of Lifeway; JERRY L. RHYNE, C.F.O. of Lifeway; LARRY D. CANNON, Sec. of Lifeway; DAVID WEEKLEY, Director of Glorieta 2.0, Inc.; TERRY LOOPER, Director of Glorieta 2.0, Inc.; LEONARD RUSSO, Director of Glorieta 2.0, Inc.; ANTHONY SCOTT, Executive Director of Glorieta 2.0, Inc.; HAL HILL, Consulting Director of Glorieta 2.0, Inc.; LINDA K. DEAN, Trustee of Lifeway; and JEFF WARD, Director of Finance and Administration of Glorieta 2.0, Inc., Defendants.
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE
LifeWay Christian Resources (LifeWay) owned land in New
Mexico where it hosted Christian conferences, retreats, and
camps. From 1997 through 2013, Kirk and Susie Tompkins
(Plaintiffs) leased a single lot of LifeWay's land and
made improvements to the land. The parties' lease
agreement provided that: (1) when the lease expired, LifeWay
had sole discretion to renew or terminate the lease; (2) if
LifeWay terminated the lease, it had the option to buy any
improvements; and (3) if LifeWay chose not to buy the
improvements, Plaintiffs could either remove them or
ownership of the improvements would pass to LifeWay.
2013, LifeWay contracted to sell its New Mexico property to
Defendant Glorieta 2.0, Inc. (Glorieta 2.0). Lifeway gave
Plaintiffs notice on September 11, 2013, that when
Plaintiffs' lease expired on September 30, 2013, the
lease would not be renewed and LifeWay would not buy the
improvements. Plaintiffs filed suit in federal court and
asked the court to stop (and later to reverse) the sale of
the property to Glorieta 2.0. On March 31, 2015, Judge
Browning dismissed Plaintiffs' lawsuit, and the Tenth
Circuit later affirmed that decision.
2017, Plaintiffs filed a second lawsuit seeking damages,
which is currently before this Court. Plaintiffs now seek
leave to file a Second Amended Complaint. Defendants ask the
Court to deny the motion to amend and grant Defendants
summary judgment on Counts I through III of Plaintiffs'
first Amended Complaint. Because the Court finds that
Plaintiffs' claims are barred by claim preclusion and
they have failed to state a claim on which relief may been
granted, the Court will deny Plaintiffs' motion to amend,
grant Defendants' motion for summary judgment, and
dismiss this case with prejudice.
“pro se . . . pleadings are to be construed liberally
and held to a less stringent standard than formal pleadings
drafted by lawyers . . . .” Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)
(quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991) (internal citations omitted)). The Court may not,
however, “serv[e] as the litigant[s'] attorney in
constructing arguments and searching the record.”
Id. (citing Hall, 935 F.2d at 1110).
Motion to Amend Standard
allows a party to amend its pleading once as a matter of
course in limited circumstances. Fed.R.Civ.P. 15(a)(1).
Otherwise, a party may only amend its pleading with
“opposing party's written consent or the
court's leave.” Fed.R.Civ.P. 15(a)(2). Rule 15
directs that leave shall be freely given “when justice
so requires.” Id. “The purpose of the
Rule is to provide litigants ‘the maximum opportunity
for each claim to be decided on its merits rather than on
procedural niceties.'” Minter v. Prime Equip.
Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting
Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449,
456 (10th Cir. 1982)) (internal citation omitted). A court
may deny a motion for leave to amend where there has been
“undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc. . . .” Id.
(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
proposed amendment is futile if the complaint, as amended,
would be subject to dismissal.” Gohier v.
Enright, 186 F.3d 1216, 1218 (10th Cir. 1999) (citing
Jefferson Cty. Sch. Dist. No. R-1 v. Moody's
Investor's Servs., Inc., 175 F.3d 848, 859 (10th
Cir. 1999)). “The futility question is functionally
equivalent to the question whether a complaint may be
dismissed for failure to state a claim . . . .”
Id. (citations omitted). In reviewing a motion to
dismiss under Fed.R.Civ.P. 12(b)(6), the Court “must
accept all the well-pleaded allegations of the complaint as
true and must construe them in the light most favorable to
the plaintiff.” In re Gold Res. Corp. Sec.
Litig., 776 F.3d 1103, 1108 (10th Cir. 2015) (quotation
omitted). To survive a motion to dismiss, the complaint does
not need to contain “detailed factual allegations,
” but it “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 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007)).
Summary Judgment Standard of Review
judgment is appropriate when the Court, viewing the record in
the light most favorable to the nonmoving party, determines
“that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Garrison v.
Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). A fact
is “material” if it could influence the
determination of the suit. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute over a
material fact is “genuine” if a reasonable trier
of fact could return a verdict for either party. Id.
The moving party bears the initial responsibility of
“show[ing] that there is an absence of evidence to
support the nonmoving party's case.” Bacchus
Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891
(10th Cir. 1991) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986)).
the moving party meets this burden, Rule 56(e)
“requires the nonmoving party to go beyond the
pleadings and by [their] own affidavits, or by the
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a
genuine issue for trial.” Celotex, 477 U.S. at
324 (quotation marks omitted). The party opposing a motion
for summary judgment “must set forth specific facts
showing that there is a genuine issue for trial as to those
dispositive matters for which it carries the burden of
proof.” Applied Genetics Int'l, Inc. v. First
Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.
1990) (citing Celotex, 477 U.S. at 324). Rule 56(c)
provides that “[a] party asserting that a fact . . . is
genuinely disputed must support the assertion by . . . citing
to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions,
interrogatory answers, or other materials . . . .”
Fed.R.Civ.P. 56(c)(1)(A). The respondent may not simply
“rest on mere allegations or denials of his
pleadings.” Anderson, 477 U.S. at 259. Nor can
a party “avoid summary judgment by repeating conclusory
opinions, allegations unsupported by specific facts, or
speculation.” Colony Nat'l Ins. Co. v.
Omer, No. 07-2123-JAR, 2008 WL 2309005, at *1 (D. Kan.
June 2, 2008) (citing Fed.R.Civ.P. 56(e); Argo v. Blue
Cross & Blue Shield of Kan., Inc., 452 F.3d 1193,
1199 (10th Cir. 2006)). “In a response to a motion for
summary judgment, a party cannot rest on ignorance of facts,
on speculation, or on suspicion and may not escape summary
judgment in the mere hope that something will turn up at
trial.” Conaway v. Smith, 853 F.2d 789, 794
(10th Cir. 1988) (citations omitted).
laying out the relevant facts and procedural background of
the case, it is necessary for the Court to resolve the
parties' disputed facts to the extent they will inform
the Court's ruling on summary judgment.
Resolution of Disputed Facts
agree with Defendants' statements in Material Facts Nos.
1, 15-17 and 24; thus, these facts are admitted as
undisputed. (See Doc. 81 at 16, 21-22.)
dispute the remaining 26 of Defendants' 31 Material
Facts, but the majority of Plaintiffs' responses are
comprised of conclusory and unsupported legal conclusions
without citations to the record. (See Id. at 16-23.)
Specifically, Plaintiffs “disagree with”
Defendants' Material Facts Nos. 2, 4, 5, 10, 13, 18-21,
23, and 25-31. Plaintiffs fail, however, to reference any
portion of the record in response to these facts. (See
id.) Because Plaintiffs fail to specifically controvert
the facts asserted with citations to the record, the Court
deems these facts to be undisputed. See D.N.M.
LR-Civ. 56.1(b) (providing that the Court will deem the
movant's material facts undisputed unless the non-moving
party specifically controverts those facts).
Plaintiffs cite to the record in response to Material Facts
Nos. 3, 7-9, 11-12 and 14 (see Id. at 16-21), the
cited material does not specifically controvert the facts
alleged. Moreover, Plaintiffs' responses are primarily
comprised of argument, conjecture, and legal conclusions.
Accordingly, the Court deems these facts to be undisputed.
present evidence to show that a genuine dispute exists about
Defendants' Material Fact No. 6-whether LifeWay operated
the Glorieta Conference Center (GCC) at a loss. (See
Docs. 78 at 4; 81 at 18 (citing Doc. 72-3); 82 at 3.) The
Court finds, however, that this fact is immaterial to its
determination of this lawsuit.
responses to Material Facts Nos. 22 and 31 help clarify their
intent in Count III of their First and Second Amended
Complaints, and the Court will discuss them in some detail.
First, Defendants discuss in Material Fact No. 22 that after
Judge Browning dismissed the 2013 lawsuit (Tompkins v.
Exec. Comm. of the S. Baptist Convention,
13cv0840-JB/RHS, 2015 WL 1568375 (D.N.M. Mar. 31, 2015) (the
“Tompkins I March 2015 Order”)),
Plaintiffs appealed to the Tenth Circuit. (See Doc.
78 at 7 (citing Tompkins v. Lifeway Christian Res. of the
S. Baptist Convention, 671 Fed.Appx. 1034 (10th Cir.
2016) (“Tompkins II”)).) Relevant to
Material Fact No. 22, the Tenth Circuit disagreed with
Plaintiffs' contention on appeal “that their
complaint contained a plausible claim of” either
procedural or substantive unconscionability in the terms of
the lease agreement between Plaintiffs and LifeWay.
Tompkins II, 671 Fed.Appx. at 1036 (noting that
“[a]lthough the terms of the leases at issue operated
to the detriment of the Tompkins, the operative complaint
does not contain allegations suggesting procedural
unconscionability[, ] . . . [n]or have” Plaintiffs
sufficiently shown substantive unconscionability). Plaintiffs
respond to Material Fact No. 22 by alleging that their
court-appointed counsel “incorrectly pled” the
unconscionable contract theory to the Tenth Circuit, and
their intent was to assert that the Glorieta 2.0
“contract, originally referenced in a ‘Donor
Group Letter'” was unconscionable. (Doc. 81 at 22
(citing Docs. 81-13; 81-14; 72-5).) It is unclear what
contract Plaintiffs reference here, as the Donor Group Letter
references two potential contracts-one for Glorieta 2.0 to
buy GCC, and the other a discussion of an offer for
Glorieta 2.0 to potentially enter into a contract to buy
Plaintiffs' home. (See Doc. 81-13 (discussing
LifeWay's decision to sell GCC and the leaseholders'
options once their leases expire, including one alternative
“that would allow [Plaintiffs] to sell the existing
improvements to” Glorieta 2.0).) Regardless, the Court
finds that this distinction-insofar as it concerns
Plaintiffs' intent before the Tenth Circuit-is immaterial
to its determination of these motions.
Material Fact No. 31, Defendants state that Plaintiffs now
reassert, in Count III of their Amended Complaint
(see Doc. 20 at ¶¶ 65-78 (the “First
Amended Complaint”)),  “claims that LifeWay's
sale of the [GCC] was improper, and that their ground lease
with LifeWay was unconscionable.” (Doc. 78 at 9.)
Plaintiffs dispute this fact and clarify that “the
LifeWay lease is not alleged unconscionable.” (Doc. 81
at 23.) Plaintiffs do not dispute that Count III asserts a
claim that the GCC sale contract was unconscionable.
(Id.) The Court notes that Count III may also be
construed to assert a claim that an offer LifeWay and
Glorieta 2.0 presented to Plaintiffs (the “2015
Offer”) to buy their home for $84, 999 was
unconscionable because it would unjustly enrich Defendants at
Plaintiffs' expense. (See Docs. 20 ¶¶
67, 77; 72-1 ¶¶ 47 (asserting that Glorieta 2.0
“knowingly benefited at Plaintiffs['] expense
reaping great value pursuant to an unconscionable contract if
not fairly compensated for Private Property”), 57
(asserting that “Plaintiffs' complaint adequately
presents a claim to declare LifeWay's presentation of
[Glorieta 2.0] contract to Plaintiffs void on the basis of
Unconscionability”); 81-1 ¶ 14.) The Court will
consider both interpretations of Count III in this Opinion.
Factual and Procedural Background 
2013, LifeWay owned the GCC, a 2, 400-acre facility in New
Mexico where LifeWay organized Christian conferences and
other events. (Doc. 78 at 3 ¶ 1.) For many years,
LifeWay entered into ground leases with individuals wherein
LifeWay leased portions of the GCC property that were
“not . . . needed for immediate development, ”
and the individuals were allowed to construct and maintain
“homes and other improvements to be used and operated
in accordance with the plans and purposes of” GCC.
(Doc. 78-D at 1; see also Docs. 78 at 4 ¶ 2;
78-E at 3 ¶ 10.) In 1997, Plaintiffs entered into a
ground lease agreement with LifeWay, which the parties
renewed several times over the years. (See Docs.
78-C; 78-D.) Pursuant to the lease agreement, LifeWay
retained ownership of the land and Plaintiffs owned the
improvements they constructed on the land. (See
Doc. 78 at 4 ¶ 2; see also Doc. 78-D at 4-5.)
The lease agreement provided that LifeWay retained the sole
discretion both to sell the land and/or to decline to renew
the lease. (See Doc. 78 at 4 ¶ 3; see
also Doc. 78-D at 4-5.) If LifeWay declined to renew the
lease with Plaintiffs, the terms of the lease agreement
allowed LifeWay to buy the improvements. (See Doc.
78 at 4 ¶ 4; see also Doc. 78-D at 4-5.) In the
event LifeWay declined to buy the improvements, Plaintiffs
would have six months to remove the improvements or ownership
of the improvements would pass to LifeWay. (See Doc.
78 at 4 ¶ 4; see also Doc. 78-D at 4-5.)
2013, LifeWay agreed to sell GCC to Glorieta 2.0 for $1.00.
(See Docs. 78 at 5 ¶ 9; 78-E at 3 ¶ 8.)
Plaintiffs, who believed that the sale of GCC violated their
rights, filed the Tompkins I lawsuit in September
2013, seeking to stop (and later to reverse) the sale.
(See Docs. 78 at 5 ¶ 10; Tompkins I,
Doc. 1.) Plaintiffs named 128 defendants, including all but
two of the individuals and/or entities who are defendants in
the current lawsuit. (See Doc. 78 at 5 ¶ 10;
Tompkins 1, Doc. 1.) LifeWay wrote to Plaintiffs on
September 11, 2013, after the sale closed, “and
informed them that their lease would not be renewed after it
expired on September 30, 2013, that LifeWay would not be
purchasing the improvements, and that Plaintiffs would have
six months after expiration to remove the improvements should
they choose to do so.” (Doc. 78 at 5 ¶ 11 (citing
Tompkins I court dismissed with prejudice 113 of the
named defendants, leaving many of the same defendants
Plaintiffs sue in the current lawsuit, including Defendants
Rainer, Rhyne, Cannon, Looper, Weekley, Russo, LifeWay, and
Glorieta 2.0. (See Tompkins I, Doc. 102.) Plaintiffs
filed a Third Amended Complaint. (Tompkins I, Doc.
125.) The Tompkins I defendants filed motions to
dismiss. (See Tompkins I, Docs. 131; 137; 139.)
Judge Browning dismissed Plaintiffs' 2013 claims in two
separate opinions. First, Judge Browning dismissed
Plaintiffs' third amended complaint as to Defendants
Weekley, Russo, and Looper on the basis that the court lacked
general or specific personal jurisdiction over
them. (See Tompkins I, Docs. 172 at 33
¶ 32, 42 ¶ 60, 45 ¶ 79, 47 ¶¶ 87-88,
77-78 ¶¶ 1, 3, 5; 178 at 13-14; 186 at 5 n.1.)
the court dismissed the remainder of Plaintiffs' third
amended complaint in the Tompkins I March 2015
Order. See 2015 WL 1568375. With respect to the
remaining individual defendants (Rainer, Rhyne, and Cannon),
the court dismissed all three of Plaintiffs' claims for
failure to state a claim. See Id. at *4-7. With
respect to the corporate defendants (LifeWay and Glorieta
2.0), the court found that Plaintiffs lacked standing to
assert the first two counts, and failed to state a claim in
the third count. See Id. at *7-11.
appealed to the Tenth Circuit and “raised the additional
argument that the ground lease between them and LifeWay was
an unconscionable contract under New Mexico law.”
(See Doc. 78 at 7 ¶ 22.) See also Tompkins
II, 671 Fed.Appx. at 1036. The Tenth Circuit affirmed
Judge Browning's rulings and rejected Plaintiffs'
claim that the lease was unconscionable. See id.
April 20, 2015, shortly after Judge Browning dismissed
Plaintiffs' claims, LifeWay's General Counsel,
Defendant Cannon, sent Plaintiffs a letter offering to
purchase Plaintiffs' home on the GCC property for $84,
999 (the 2015 Offer). (See Doc. 72-1 ¶ 30.)
Plaintiffs believe the 2015 Offer was drafted by LifeWay and
Glorieta 2.0's leadership, including Defendants Weekley,
Looper, Russo, Rainer, Rhyne, and Cannon. (Id. at 18
¶ 38.) Defendants Hill and Scott also approached
Plaintiffs about LifeWay's 2015 Offer. (Id. at
15-16 ¶ 31.) ...