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Mayer v. Bernalillo County

United States District Court, D. New Mexico

January 8, 2019

JENIKA MAYER, Plaintiff,
v.
BERNALILLO COUNTY; ERIC W. SCHULER, Individually and in his official capacity; THERESA BACA SANDOVAL, Individually and in her official capacity; JOHN OR JANE DOE BCSO SHERIFF OFFICERS, A, B, C, D, E and F; MARILYN JONES; GARY JONES; ROBERT LONG; STEPHANIE LONG, and NATHANIEL LONG, Defendants.

          Alex Chisholm Albuquerque, New Mexico Attorney for the Plaintiff.

          Patrick Trujillo Sandoval County Bernalillo, New Mexico and Brandon Huss Mark L. Drebing New Mexico Association of Counties Santa Fe, New Mexico Attorneys for Defendant Bernalillo County.

          Mark Dow Cynthia L. Weisman Melanie L. Ben Bauman, Dow, & Stambaugh, P.C. Albuquerque, New Mexico Attorneys for Defendants Marilyn Jones, Gary Jones, Robert Long, Stephanie Long, and Nathanial Long.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Jones and Long Defendants' First Amended Request for Judicial Notice in Support of Their Motion to Dismiss, filed September 21, 2018 (Doc. 30)(“Request”); and (ii) the Motion to Dismiss by Defendants Marilyn Jones, Gary Jones, Robert Long, Stephanie Long, and Nathaniel Jones[1] [sic] and Memorandum in Support, filed September 21, 2018 (Doc. 31)(“Motion”). The primary issues are: (i) whether the Court may or must take judicial notice of the documents which Defendants Marilyn Jones, Gary Jones, Robert Long, Stephanie Long, and Nathanial Long -- collectively, the Jones and Long Defendants -- list in the Request, when all the listed documents were filed with the Court of Appeals of New Mexico and with the Second Judicial District Court of Bernalillo County, New Mexico; (ii) whether Plaintiff Jenika Mayer states a plausible claim for relief against the Jones and Long Defendants in her Amended Complaint for Negligence Per Se, Civil Conspiracy, Intentional Infliction of Emotional Distress, Violation of New Mexico Tort Claims Act, and the Fourteenth Amendment of the U.S. Constitution ¶ 1, at 1, filed December 24, 2018 (Doc. 45)(“Complaint”), where Mayer's claims are based on her assertion that the Jones and Long Defendants trespassed on her land, and the Court of Appeals of New Mexico earlier determined that the land in question is an easement belonging to the Jones and Long Defendants; (iii) whether, under New Mexico law, collateral estoppel bars Mayer from relitigating the easement's existence, because in a 2011 affidavit, see Affidavit of Jenika Mayer (executed Nov. 7, 2011), filed September 21, 2018 (Doc. 30-2)(“Mayer Aff.”)(listing Marilyn Jones, Gary Jones, Robert Long, and Stephanie Long as intervenors), Mayer admits knowing of the easement before purchasing her property, the Court of Appeals of New Mexico determined, in a 2015 decision, that a twenty-foot easement exists, see Mayer v. Smith, 2015-NMCA-060, 350 P.3d 1191, dated October 8, 2015, filed in state court October 13, 2015, filed in federal court September 21, 2018 (Doc. 30-5)(“2015 Court of Appeals Opinion”), and in 2017, the state district court stated that the Court of Appeals of New Mexico's decision definitively establishes the twenty-foot easement's existence, see Mayer v. Smith, D-202-CV-2009-07967, Memorandum Opinion and Order, filed in state court April 17, 2017, filed in federal court September 21, 2018 (Doc. 30-9)(“Dist. Ct. MOO”) and (iv) whether, if either state or federal collateral estoppel applies, it bars Mayer from relitigating the easement's existence. The Court concludes that: (i) the Court will take judicial notice of the documents attached to the Motion and listed in the Request, while being careful not to take judicial notice of the statements in the documents for the truth of the matters asserted therein; (ii) Mayer's Complaint states a claim against the Jones and Long Defendants for negligence per se and civil conspiracy, because whether they trespassed on her land has not been determined in a valid, final judgment on the merits to which the Court must give preclusive effect, (iii) Mayer's Complaint does not state a claim against the Jones and Long Defendants for intentional infliction of emotional distress; and (iv) under New Mexico and federal law, Mayer is not collaterally estopped from relitigating the easement's existence. Accordingly, the Court grants the Request and grants the Motion in part and denies the Motion in part.

         FACTUAL BACKGROUND[2]

         The Court draws its facts from Mayer's Complaint.[3] Defendant Bernalillo County removed the case to federal court. See Notice of Removal, filed July 12, 2018 (Doc. 1)(“Notice of Removal”). The Court accepts Mayer's factual allegations as true for the limited purpose of deciding the Motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(“Iqbal”)(clarifying the “tenet that a court must accept as true all of the [factual] allegations contained in a complaint”)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008)(concluding that, in the motion to dismiss posture, a court must “accept as true all well-pleaded facts, as distinguished from conclusory allegations”). The Court also incorporates facts from the public record documents attached to the Motion. See supra n.2.

         With that understanding of the allegations, Mayer is a resident of Bernalillo County. See Complaint ¶ 1, at 1. The Jones and Long Defendants owned neighboring property in the same subdivision and were litigants in a state suit filed July 1, 2009, Mayer v. Jones, No. CIV D-202-2009-07967 (Second Judicial District Court, County of Bernalillo, State of New Mexico), filed in state court July 1, 2009, filed in federal court September 21, 2018 (Doc. 30-1)(“State Complaint”). The State Complaint names Susan Smith as the sole Defendant. See State Complaint at 1. The Jones and Long Defendants intervened in the action to enforce the easement. See Mayer Aff. at 1. In the Mayer Aff., Mayer attests that she owns Lot 5-1B, and has “always acknowledged the existence of the 1979 twenty (20) foot easement along the north and west edges of Lot 5-1B.[4]” Mayer Aff. ¶¶ 1-2, at 1.

         On January 31, 2012, the Honorable Clay Campbell, District Judge for the Second Judicial District Court, State of New Mexico, held a bench trial in Mayer v. Jones. See Mayer v. Jones, No. CIV D-202-2009-07967, Transcript of Proceedings (dated Dec. 28, 2012), filed in federal court September 21, 2018 (Doc. 30-3)(“Transcript of Proceedings”). On January 31, 2012, Judge Campbell granted Mayer's motion for a directed verdict. See Judgment, filed in state court March 20, 2012, filed in federal court September 21, 2018 (Doc. 30-4)(“Second Judicial District Judgment”). Judge Campbell concluded that Mayer's estate is the servient estate, the Long Defendants' estate is the dominant estate, and the easement is historically restricted to “occasional use as a hiking trail . . . and restricted use (2 to 3 times a year) as a vehicle trail for the cutting and collecting of firewood on [the Longs'] property.” Second Judicial District Judgment ¶¶ 2-4, at 2. Judge Campbell concluded that the Longs had “no authority to cut any trees in the easement or to bring heavy construction equipment upon it, ” and, therefore, that Mayer's “fence along the tree line within the easement will remain.” Second Judicial District Judgment ¶ 5, at 2.

         The Jones and Long Defendants appealed Judge Campbell's directed verdict to the Court of Appeals of New Mexico, and the Court of Appeals of New Mexico issued an opinion on March 2, 2015. See 2015 Court of Appeals Opinion. The Court of Appeals of New Mexico stated: “As the trees grew in the easement, Plaintiff used her fence to include them in her property, resulting in a nine-to-eleven-foot area becoming inaccessible to Intervenors.” 2015 Court of Appeals Opinion, 2015-NMCA-060, ¶ 4, 350 P.3d at 1194. The Court of Appeals of New Mexico concluded that Mayer is “required to remove her fence from the easement.” 2015 Court of Appeals Opinion, 2015-NMCA-060, ¶ 3, 350 P.3d at 1200. The Court of Appeals of New Mexico remanded the case for proceedings consistent with the 2015 Court of Appeals Opinion regarding the trees that Mayer had planted in the easement over her property and requiring Mayer to remove the trees. See Complaint ¶ 19, at 3 (citing 2015 Court of Appeals Opinion, 2015-NMCA-060, ¶ 35, 350 P.3d at 1200). Mayer contends that, one of the outcomes of the 2015 Court of Appeals Opinion “was the fact that Ms. Mayer still had the right to present her evidence after the Jones and Long Defendants appealed an involuntary dismissal as provided for by Rule 1-041(B) NMRA.” Complaint ¶ 20, at 3 (emphasis in original). Mayer contends:

If a dismissal made under Rule 1-041(B) is reversed on appeal, the appellate court will remand a non-jury case to the district court for further proceedings, and the defendant (Ms. Mayer in that case) may then present any evidence she may have. (See Bogle v. Potter, 1961-NMSC-025, ¶ 19, 68 N.M. 239, 360 P.2d 650).

Complaint ¶ 21, at 3. The Supreme Court of New Mexico denied a writ of certiorari on April 30, 2015. See Mayer v. Jones, 2015-NMCERT-004, 348 P.3d 694 (Table). See also Motion at 4 n.2.

         On October 13, 2015, the Court of Appeals of New Mexico issued a Mandate to District Court Clerk, filed in federal court September 21, 2018 (Doc. 30-5)(“October, 2015 Mandate”). The mandate finalized the March 2, 2015 Court of Appeals Opinion, attached a copy of the opinion, and remanded the case to the district court for further proceedings consistent with that decision. See October, 2015 Mandate ¶ 2, at 1. Mayer contends that the Jones and Long Defendants “could not abide the opinion from the Court of Appeals, ” Complaint ¶ 22, at 3, and that, before allowing Mayer to present any evidence, on October 13, 2015, the Jones and Long Defendants “knowingly filed an erroneous Completion of Briefing with the district court, ” informing the court that their Motion to Alter and Amend the Judgment was “ripe for adjudication.” Complaint ¶ 24, at 4.

         On October 22, 2015, the state district court issued an Amended Judgment and Order, filed in federal court September 21, 2018 (Doc. 30-6)(“October Amended Judgment”).[5] In the October Amended Judgment, the Second Judicial District Court withdrew the Second Judicial District Judgment and entered a judgment and order identifying the twenty-foot wide easement as belonging to the Jones and Long Defendants and ordering: “Jenika Mayer shall remove from the easement the fence that she has placed in the easement, ” that she “shall not interfere with the rights of . . . [the Jones and Long Defendants], their invitees, or their grantees, to their rights of ingress and egress, ” or to remove trees that have grown in the easement or to maintain and improve the easement.” October Amended Judgment ¶¶ 3-4, at 1-2. Ultimately, the October Amended Judgment granted the Jones and Long Defendants “rights of ingress and egress over the easement to Tracts 5B and 5C for household and non-commercial purposes.” October Amended Judgment ¶ 7, at 2.

         Mayer appealed the October Amended Judgment. See Complaint ¶ 26, at 4. Later in November, 2015, the Jones and Long Defendants entered Mayer's property “without notice, ” intending to cut the trees on the easement. Complaint ¶ 28, at 4. The Jones and Long Defendants “brought two deputies with them to prevent Ms. Mayer from interfering with those activities.” Complaint ¶ 28, at 4. Mayer showed the deputies a copy of her appeal of the October Amended Judgment, prompting the deputies to order the Jones and Long Defendants to leave, which they did. See Complaint ¶ 28, at 4.

         Mayer contends that, sometime later, the Jones and Long Defendants communicated ex parte with Eric Schuler, an Assistant Bernalillo County Attorney. See Complaint ¶ 29, at 5. On December 30, 2015, Mr. Schuler emailed Annette Regan, [6] copying Mr. Schuler's supervisor, Theresa Baca Sandoval, and the Jones and Long Defendants' attorney, and informing Regan that, “if she got a call to keep the peace at 270 Skyland Blvd (Ms. Mayer's property), she should allow the people to cut down the trees.” Complaint ¶¶ 30-31, at 5. Mr. Schuler did not send the email to Mayer or to her attorney, and Mayer contends that the Jones and Long Defendants, Mr. Schuler, and Ms. Sandoval “conspired to keep this ex parte communication a secret from Ms. Mayer and her lawyer, ” Complaint ¶ 33, at 5; that “Mr. Schuler had no duty to get involved and take sides in a civil matter, ” Complaint ¶ 34, at 5; that “Mr. Schuler did not cite the correct statute in his ex parte email, ” Complaint ¶ 35, at 5; that “Mr. Schuler did not bother to get all the facts before he made a legal conclusion, ” Complaint ¶ 36, at 5; that “Mr. Schuler's legal conclusion was wrong, ” Complaint ¶ 37, at 5; and that “Mr. Schuler did what the Jones and Long Defendants asked without any independent investigation on his part, ” Complaint ¶ 38, at 6. Mayer contends that Ms. Sandoval did not “effectively monitor Mr. Schuler.” Complaint ¶ 39, at 6.

         Mayer alleges that, on April 11, 2016, the Jones and Long Defendants came to her property and began to cut the trees on the easement, prompting her to call the Bernalillo County Sheriff's Office (“BCSO”), which sent an armed sergeant and five deputies to her property. Complaint ¶¶ 40-42, at 6. Upon the sergeant and deputies' arrival, they did not speak with Mayer, but, acting on the email that Mr. Schuler sent to Regan in 2015, see Complaint ¶ 43-44, at 6, they ignored Mayer's pending appeal, and allowed the Jones and Long Defendants to “exercise the post-judgment self-help remedy of cutting down the trees, ” Complaint ¶ 50, at 7.

         Mayer contends: “The officers appeared in such large numbers to frighten and intimidate Ms. Mayer. The Defendants' intent was to cause as much emotional distress to Ms. Mayer as possible.” Complaint ¶ 45, at 6. Mayer alleges that the Jones and Long Defendants knew that she suffered from post-traumatic stress disorder (“PTSD”), [7] and that, as a direct consequence of their actions, she “suffered immediate and severe trauma.” Complaint ¶¶ 46-47, at 6. Mayer alleges that she experienced “new and persistent PTSD symptoms” as a result of her trauma, which the Jones and Long Defendants caused, “including, but not limited to, depression, panic attacks, physical pain, mental anguish and grief that have not yet resolved.” Complaint ¶ 48, at 7.

         On November 30, 2016, the Second Judicial District Court issued an Order Denying Motion for Order to Show Cause, Vacating Amended Judgment and Directing the Parties to Brief the Issues Related to the Appropriate Form of Judgment to Be Entered and Address Any Remaining Issues, filed in federal court September 21, 2018 (Doc. 30-7)(“Order Vacating Judgment”). In the Order Vacating Judgment, the Second Judicial District Court concluded that the October Amended Judgment relied on an ex parte communication and an inaccurate Notice of Completion of Briefing. See Order Vacating Judgment at 2. Furthermore, according to Mayer, she had not received adequate time to file a Motion to Amend. See Order Vacating Judgment at 2. Accordingly, Judge Campbell vacated the October Amended Judgment and ordered all parties to file a renewed Motion to Amend Judgment within fifteen days, because “an Amended Judgment needs to be entered consistent with the decision by the Court of Appeals.” Order Vacating Judgment at 2-3.

         On December 16, 2016, the Jones and Long Defendants filed, in the Second Judicial District Court, a Motion to Enter Amended Judgment and Order, filed in federal court September 21, 2018 (Doc. 30-8)(“Motion to Enter Amended Judgment”). Then, on April 17, 2017, the Second Judicial District Court of Bernalillo County entered a Memorandum Opinion and Order denying the Motion to Enter Amended Judgment, which stated: “Intervenors move for entry of a final judgment and order on the Court of Appeals mandate filed October 13, 2015. The motion is denied because the Court of Appeals remanded this matter for further proceedings and some issues have yet to be determined.” Dist. Ct. MOO at 1. Although the Dist. Ct. MOO concludes that the 2015 Court of Appeals Opinion established that the “Plaintiff's fence, which is inside the twenty-foot easement, is encroaching and must be removed, ” Dist. Ct. MOO at 2, the Dist. Ct. MOO stated that the 2015 Court of Appeals Opinion “did not determine the fate of the trees within Plaintiff's fence nor did the Court of Appeals determine whether the dominant estate holders [ -- the Jones and Long Defendants -- ] have subjected the servient estate [ -- Mayer's estate -- ] to an additional burden not contemplated by the grant of easement.” Dist. Ct. MOO at 2. The Dist. Ct. MOO set the matter “for a continuation of the bench trial that was truncated by the improper granting of a dismissal in Plaintiff's favor.” Dist. Ct. MOO at 2. On April 11, 2018, Mayer filed her Complaint in the Second Judicial District Court. See Complaint at 1.

         In the Complaint, Mayer asserts claims against the Board of County Commissioners of the County of Bernalillo, Mr. Schuler, individually and in his official capacity as Bernalillo County Attorney, Ms. Sandoval, individually and in her official capacity as Deputy Bernalillo County Attorney, John or Jane Doe Bernalillo County Sheriff's Office (“BCSO”) Sheriff Officers, A, B, C, D, E, and F, and the Jones and Long Defendants. See Complaint at 1. Mayer asserts the following claims: (i) negligence per se, against the Jones and Long Defendants for intentionally entering Mayer's property, and damaging and destroying her trees, see Complaint ¶ 53, at 7, and against the Defendant employees of Bernalillo County, who helped and approved of the Jones and Long Defendants' actions, see Complaint ¶ 55, at 8; (ii) civil conspiracy, against the Defendants, [8]for conspiring to achieve economic and strategic goals benefiting the Defendants and their co-conspirators to Mayer's harm and detriment, see Complaint ¶¶ 62-66, at 8-9; (iii) intentional infliction of emotional distress against the Defendants[9] for intentionally or recklessly causing Mayer extreme, severe, and continuous mental distress, see Complaint ¶¶ 67-72, at 9; (iv) violation of the Fourteenth Amendment to the Constitution of the United States of America against the Bernalillo County Defendants, who, acting under color of state law, deprived Mayer of her clearly established constitutionally-protected right to life, liberty, and property, without due process of law, see Complaint ¶¶ 73-75, at 9-10; and (v) violation of the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1 through 41-4-27 (“NMTCA”), against the Bernalillo County Defendants, because the BCSO officers are subject to the NMTCA sovereign immunity waiver in § 41-4-12, and Bernalillo County is responsible and liable for its officer-employees' actions undertaken in their official capacity, and for its officer-employees' actions undertaken in reliance on communications from Mr. Schuler, a Bernalillo County employee -- specifically, the Bernalillo County Defendants' actions allowing the Jones and Long Defendants to engage in criminal activity, and failing to perform their duty to protect Mayer's property and right to due process, causing her harm, see Complaint ¶¶ 76-88, at 10-11. Accordingly, Mayer requests compensatory, punitive, and special damages, as well as attorneys' fees and costs, and any other relief the Court may deem just and proper. See Complaint at 12.

         PROCEDURAL BACKGROUND

         Bernalillo County removed the case to federal court on July 12, 2018. See Notice of Removal ¶ 1, at 1. In the Notice of Removal, Bernalillo County “exercises its right to remove this action from the Second Judicial Court, County of Bernalillo, State of New Mexico, where the case is now pending, ” asserting that the Court has original jurisdiction as provided in 28 U.S.C. § 1331, because Mayer's action, “upon information and belief, arises out of alleged violations of the Fourteenth Amendment (42 U.S.C. § 1983) . . . or other applicable federal statute.” Notice of Removal ¶¶ 1-2, at 1. In filing the Notice of Removal, Bernalillo County does not waive jurisdictional issues and clarifies that, instead, “Bernalillo County will be filing a dispositive motion within the time allowed by the Rules of Civil Procedure.” Notice of Removal at 1 n.1. Bernalillo County waives service of process but does not waive any defense or jurisdictional argument. See Notice of Removal ¶ 3, at 2. Bernalillo County states that it timely files the Notice of Removal and attaches and incorporates by reference the Original Complaint and a Copy of the New Mexico Courts Lookup page (dated July 12, 2018), [10] filed July 12, 2018 (Doc. 1-2). See Notice of Removal ¶¶ 5-6, at 2. Bernalillo County states that the other named Defendants, Marilyn Jones, Gary Jones, Robert Long, Stephanie Long, and Nathanial Long, “who have been served, consent to the filing of this Notice of Removal.” Notice of Removal ¶ 8, at 2.

         On January 2, 2019, the Jones and Long Defendants answered Mayer's Complaint. See Answer of Marilyn Jones, Gary Jones, Robert Long, Stephanie Long, and Nathaniel Jones [sic] to Plaintiff's Amended Complaint (Doc. 45), filed January 2, 2019 (Doc. 48)(“Jones and Long Defendants Answer”).[11] The Jones and Long Defendants “deny each and every allegation, statement, matter and thing asserted in Plaintiff's Complaint, except as expressly admitted or otherwise qualified or alleged.” Answer at 1. The Jones and Long Defendants assert the following affirmative defenses: (1) collateral estoppel; (2) res judicata; and (3) that Mayer fails to state a claim against the Jones and Long Defendants upon which relief can be granted. See Answer at 8. Bernalillo County has not, as of the date of this Memorandum Opinion and Order, filed an Answer.

         1. The Motion.

         The Jones and Long Defendants move the Court, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, based on collateral estoppel, to dismiss Mayer's claims against them. See Motion at 1. In the Motion, the Jones and Long Defendants argue that Mayer's first suit against them, in Mayer v. Jones (the “2009 State Court Proceeding”), see State Complaint at 1, is still pending, and that Mayer's claims in the Complaint and in the 2009 State Court Proceeding “hinge on her assertion that the Jones and Longs trespassed on an easement on Plaintiff's property, ” Motion at 1-2. The Jones and Long Defendants assert that the Court of Appeals of New Mexico already determined that the Jones and Long Defendants own a preexisting easement in writing, over Mayer's property, “so there can be no trespass as a matter of law.” Motion at 2. The Jones and Long Defendants assert that Mayer is collaterally estopped from attacking or circumventing the Court of Appeals of New Mexico's decision, which was final, and that, accordingly, the Court

should dismiss Plaintiff's claims against the Jones and Long Defendants in the instant action (Negligence Per Se (based on trespass), Civil Conspiracy, and Intentional Infliction of Emotional Distress) as a matter of law based on (1) the decisions of the NMCA; and (2) the pending 2009 State Court Proceeding on the two (2) remaining issues identified by State District Judge Campbell in his 10/22/15 Amended Judgment (based on the 10/13/15 Mandate from the NMCA). Moreover, Plaintiff admitted in a 2011 affidavit filed in the pending 2009 State Court Proceeding that she knew of the easement even before she bought the property in 2002.

Motion at 2.

         The Jones and Long Defendants begin by asserting that Mayer bought her property in 2002, knowing about the easement's existence. See Motion at 2 (quoting Mayer Aff. ¶¶ 1-3, at 1). The Jones and Long Defendants assert that Mayer filed her claims in the 2009 State Court Proceeding against another neighbor, Smith, to prevent Smith from cutting and removing the trees which Mayer planted on the easement. See Motion at 3. The Jones and Long Defendants assert that Mayer used trees which she planted in the easement as fence posts and claimed the fenced area was her property, thereby encroaching on the twenty-foot easement by nine to eleven feet and rendering those nine to eleven feet inaccessible to the Jones and Long Defendants. See Motion at 3.

         The Jones and Long Defendants reviewed the procedural history of the case and argue that, “based on 10/1315 [sic] NMCA Mandate, and the 11/30/16 NMCA Order, between October 2016 and November 2016, the Jones and Long Defendants cut trees in their easement (April of 2016).” Motion at 6 (emphasis in Motion)(citing Complaint ¶ 40, at 6). The Jones and Long Defendants conclude, based on the procedural history, that the Complaint “is a collateral attack on the 3/2/15 NMCA Opinion, and must therefore be dismissed as a matter of law. The pending 2009 State Court Proceeding before Judge Campbell is not before this Court, so this Court has no jurisdiction over the two remaining issues in the State Court Proceeding.” Motion at 5.

         The Jones and Long Defendants argue that the Dist. Ct. MOO restates and definitively establishes the Court of Appeals of New Mexico's “final and binding decision on seven issues, ” which are:

1. The language granting the easement is unambiguous, clearly expresses the intent of the parties, and reference to extrinsic evidence of intent is unnecessary to determine the scope, nature location, duration, or purposes of the easement.
2. The easement is twenty feet wide, provides for ingress and egress, for personal use, and for household and non-commercial uses.
3. The easement is unlimited in duration.
4. The easement is an appurtenant easement. The dominant estate holders are Jones, their families, heirs, and assigns.
5. Division of the dominant estate did not extinguish the rights to the easement. The easement serves the entire dominant estate, now comprised of Tracts 5B and 5C.
6. The dominant estate holders must have access to the easement's full twenty-foot width.
7. Plaintiffs fence, which is inside the twenty-foot easement, is encroaching and must be removed.

Motion at 5-6 (quoting Dist. Ct. MOO at 1-2). The Jones and Long Defendants reference Mayer's argument in her Complaint that when the Court of Appeals of New Mexico remanded two issues to the state district court -- the fate of the trees, and such other matters as the 2015 Court of Appeals Opinion may require -- that one of the other matters “was the fact that Ms. Mayer still had the right to present her evidence after the Long and Jones litigants appealed an involuntary dismissal as provided for by Rule 1-041(B) NMRA.” Motion at 8 (emphasis in Complaint)(quoting Complaint ¶ 20, at 3). The Jones and Long Defendants allege that Mayer misinterprets N.M.R.A. 1-041(B), which states:

Unless the court in its order for dismissal otherwise specifies, a dismissal under this paragraph and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 1-019 NMRA, operates as an adjudication upon the merits.

Motion at 8 (quoting N.M.R.A. 1-041(B)). Accordingly, the Jones and Long Defendants argue that Mayer may not present collateral evidence under N.M.R.A. 1-041(B) “on issues that were already adjudicated on the merits in the pending 2009 State Court Proceeding and in the related NMCA proceedings.” Motion at 8. The Jones and Long Defendants cite to Herbert v. Sandia & Loan Ass'n, 1971-NMSC-064, ¶¶ 6-7, 486 P.2d 65, 67, for the proposition that a judgment entered for a defendant pursuant to a motion for a directed verdict at the close of a plaintiff's case -- as in the Second Judicial District Judgment -- constitutes a judgment on the merits, unless the court otherwise specifies. See Motion at 8. See also Motion at 9 n.5 (stating that rule 41(b) of the Federal Rules of Civil Procedure is similar to N.M.R.A. 1-041(B) in that a directed verdict in a bench trial operates as an adjudication on the merits). In the 2015 Court of Appeals Opinion, the Court of Appeals of New Mexico reversed the Second Judicial District Judgment and remanded two issues to the state district court, which remain for decision in the pending 2009 State Court Proceeding. See Motion at 8. The 2015 Court of Appeals Opinion “did not specifically or obviously request the cause [sic] to be remanded so that Plaintiff could have an opportunity to present her evidence.” Motion at 9.

         From this procedural history, the Jones and Long Defendants conclude that “there has already been an adjudication on the merits (except for the two pending remaining issues identified therein), and all evidence before the state trial court has been taken into consideration.” Motion at 9. The Jones and Long Defendants argue that, even if the Court determines Mayer may present collateral evidence, that evidence should be presented in the 2009 State Court Proceeding and only on the two issues identified as pending. See Motion at 9. The Jones and Long Defendants assert that the two pending issues are the fate of the trees, and whether the Jones and Long Defendants had subjected Mayer to an additional burden that the easement's grant did not contemplate. See Motion at 10.

         Next, the Jones and Long Defendants state that, because the Court of Appeals of New Mexico has determined that the Jones and Long Defendants own the easement, they cannot, as a matter of law, trespass on the easement and, therefore, collateral estoppel bars Mayer's claims against them. See Motion at 10. “Under New Mexico law, a party must meet the four factors of collateral estoppel before it is applied to a particular case.” Motion at 10-11. The Jones and Long Defendants list the four factors as:

(1) The party to be estopped was a party to the prior proceeding, (2) the cause of action in the case presently before the court is different from the cause of action in the prior adjudication, (3) the issue was actually litigated in the prior adjudication, (4) the issue was necessarily determined in the prior litigation.

Motion at 11 (internal quotation marks omitted)(quoting Shovelin v. Cent. N.M. Elec. Co-op, Inc., 1993-NMSC-015, ¶ 10, 850 P.2d 996, 1000 (“Shovelin”)).

         First, the Jones and Long Defendants assert that Mayer is the plaintiff in both the 2009 State Court Proceeding and the present lawsuit, so she is a party in the prior proceeding, satisfying the first factor. See Motion at 11. Second, the Jones and Long Defendants assert that the cause of action in this federal case is different from the cause of action in the 2009 State Court Proceeding. See Motion at 11. In the 2009 State Court Proceeding, Mayer brought the following claims: trespass to land and chattels, negligence per se, and petition for temporary and permanent injunction. See Motion at 11. In this federal action, Mayer alleges negligence per se, civil conspiracy, and intentional infliction of emotional distress complaints against the Jones and Long Defendants. See Motion at 11. The Jones and Long Defendants allege that, although Mayer alleges negligence per se in both complaints, in the State Complaint, she alleges negligence per se against Smith, and not against the Jones and Long Defendants. See Motion at 11. Third, the Jones and Long Defendants assert that the issue whether the Jones and Long Defendants trespassed on the easement when they entered to cut down Mayer's trees was already litigated in the 2009 State Court Proceeding. See Motion at 12. The Jones and Long defendants argue that, because the Court of Appeals of New Mexico and the state district court concluded that the easement was valid, there could be no trespass or negligence per se resulting from trespass, and that these rulings occurred after a 2012 bench trial. See Motion at 12. The Jones and Long Defendants assert that the trespass issue was sufficiently litigated when Mayer and the Jones and Long Defendants filed witness lists, Mayer filed proposed findings of facts and conclusions of law, the Jones and Long Defendants filed proposed judgments, the state district court entered a judgment, and the Jones and Long Defendants appealed that judgment to the Court of Appeals of New Mexico. See Motion at 12. Fourth, the Jones and Long Defendants argue that the easement's existence and ownership “was necessarily determined” in the prior litigation, when the state district court issued the Order Vacating Judgment. Motion at 12.

         The Jones and Long Defendants next argue that, if the Court determines that federal law applies, they meet the elements of collateral estoppel under federal law. See Motion at 13 (citing Scheufler v. Gen. Host Corp., 881 F.Supp. 492, 495 (D. Kan. 1995)(Theis, J.)(“The required elements of collateral estoppel, including mutuality, reflect concerns of fairness, judicial economy, and finality. . . . . These are procedural concerns, which the federal law addresses with its own requirements.”)). The Jones and Long Defendants state the United States Court of Appeals for the Tenth Circuit's criteria for collateral estoppel to apply:

“(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.” U.S v. Rogers, 960 F.2d 1501, 1508 (10th Cir. 1992).

Motion at 13 (emphasis in Motion)(quoting Florence v. Rios, No. Civ. 07-00380-REB-KLM, 2008 WL 538677, at *5 (D. Colo. Feb. 25, 2008)(Blackburn, J.)). The Jones and Long Defendants argue that they satisfy all four federal collateral estoppel elements. See Motion at 13.

         The Jones and Long Defendants next argue that Mayer's negligence per se, civil conspiracy, and intentional infliction of emotional distress claims fail because the Jones and Long Defendants have a legal right to be on the easement. See Motion at 14. The Jones and Long Defendants assert that Mayer grounds her negligence per se claim against them in their alleged violation of the New Mexico trespass statute in N.M. Stat. Ann. § 30-14-1(D). See Motion at 14 (citing Complaint ¶ 54, at 7). The Jones and Long Defendants argue that, because they were not “upon the lands of another without prior permission, ” Mayer cannot sustain her negligence per se claim against them. Motion at 15 (quoting N.M. Stat. Ann. § 30-14-1(D)).

         The Jones and Long Defendants assert that, to sustain a civil conspiracy claim under New Mexico law, Mayer must show: “(1) that a conspiracy between two or more individuals existed; (2) that specific wrongful acts were carried out by the defendants pursuant to the conspiracy; and (3) that the plaintiff was damaged as a result of such acts.” Motion at 15 (quoting Ettenson v. Burke, 2001-NMCA-003, ¶ 12, 17 P.3d 440, 445). The Jones and Long Defendants argue that Mayer fails to show a conspiracy among the Jones and Long Defendants and the Bernalillo County Defendants, when Mayer called the BCSO; that Mayer fails to provide “specific wrongful acts” done pursuant to the alleged conspiracy; and that Mayer fails to show she was damaged as a result of those acts. Motion at 15 (internal quotation marks omitted)(quoting Ettenson v. Burke, 2001-NMCA-003, ¶ 12, 17 P.3d at 445). The Jones and Long Defendants assert that, while they cut the trees on the easement, they did not remove them, and so Mayer cannot claim that they performed a wrongful act. See Motion at 16.

         Next, the Jones and Long Defendants argue that Mayer's claim against them for intentional infliction of emotional distress fails, because Mayer cannot show reckless or intentional conduct on their part, when the Jones and Long Defendants have a right to be on and use the easement. See Motion at 16-17. The Jones and Long Defendants also argue that “there is insufficient evidence to support the view that any alleged emotional distress experienced by Plaintiff due to the Jones/Long Defendants' actions was severe.” Motion at 17. For the foregoing reasons, the Jones and Long Defendants “respectfully request the Court to dismiss this action as to these Defendants, and for such other and further relief as the Court deems just and proper.” Motion at 18.

         2. The Response.

         Mayer responds to the Motion. See Plaintiff's Response to Defendant's, Jones and Longs, Motion to Dismiss, filed October 9, 2018 (Doc. 33)(“Response”). Mayer begins by asserting that the Motion may be moot, because Mayer is amending her Complaint pursuant to the Court's ruling on Bernalillo County's Motion to Dismiss Under Rule 1-012, filed July 19, 2018 (Doc. 12). See Response at 1. Mayer states that, to the extent the Motion is not moot, she addresses its arguments and the exhibits accompanying the request for judicial notice. See Response at 1.

         Mayer asserts that the documents attached to the Request, of which the Jones and Long Defendants request that the Court take judicial notice, violate the 2015 Court of Appeals Opinion, which provides the law of the case. See Response at 1. Mayer asserts that the 2015 Court of Appeals Opinion remanded the case for proceedings concerning the trees' fate and for other matters, including whether the “servient estate is subjected to additional burdens when the use of the servient estate is curtailed or destroyed by the manner in which the easement is used.” Response at 2 (quoting 2015 Court of Appeals Opinion, 2015-NMCA-060, ¶ 17, 350 P.3d at 1200). Mayer asserts that the Court of Appeals of New Mexico left to the state district court whether cutting the trees on the easement additionally burdens the servient estate “when Ms. Mayer is given the opportunity to present her case.” Response at 2.

         Mayer asserts that the Court of Appeals of New Mexico

informed the litigants that the verdict which was appealed was “actually a motion for involuntary dismissal as provided for by Rule 1-041(B) NMRA. Garcia v. Am. Furniture Co., 1984-NMCA-090, ¶ 3, 101 N.M. 785, 689 P.2d 934 (stating that, in a non-jury trial, “motion for a directed verdict was, in effect, a motion to dismiss under . . . Rule [1-041(B)]”).

Response at 2 (quoting 2015 Court of Appeals Opinion, 2015-NMCA-060, ¶ 7, 350 P.3d at 1194). Mayer asserts that, under N.M.R.A. 1-041(B), she may put on her case and offer evidence after remand. See Motion at 2-3. Mayer contends that the Jones and Long Defendants knew this rule, and deliberately violated the Court of Appeals of New Mexico's decision by pursuing the “post-judgment self-help remedy of cutting down the trees.” Response at 3.

         Mayer next argues that the Jones and Long Defendants have refused to provide a boundary survey for the easement, and instead, opted to intervene in Mayer's lawsuit against Smith. See Response at 4-5. Mayer states that “[t]o this day Defendants have refused to have a boundary survey done.” Response at 5. Mayer contends that, without a boundary survey, “this Court, like the district court and court of appeals before it cannot intelligently rule on any aspect of the easement location or the fate of the trees or any damages that might flow from the location of the actual easement and the actions of Defendants.” Response at 5. Mayer concludes her Response by stating that “[t]here was never any doubt that there is [a] 20 foot easement cross[ing] Mayer's property. The element of proof that is lacking is the actual location of the property line and the easement.” Response at 6. Mayer contends that, because without a boundary survey, the Jones and Long Defendant's arguments are premature, the Court should deny the motion. See Response at 6.

         3. The Reply.

         The Jones and Long Defendants reply to Mayer's Response. See Reply by Defendants Jones and Long to Plaintiff Mayer's Response to Their Motion to Dismiss, filed October 23, 2018 (Doc. 34)(“Reply”). In the Reply, the Jones and Long Defendants begin by asserting that Mayer does not explain why their Motion might be moot if Mayer amends her complaint. See Reply at 1. The Jones and Long Defendants argue that Mayer admits that the 2015 Court of Appeals Opinion is final as to seven issues, and that it is the law of the case. See Reply at 2. The Jones and Long Defendants assert that the two remaining issues are within the state court's jurisdiction, and that Mayer has improperly brought these issues in federal court. See Response at 2.

         The Jones and Long Defendants deny Mayer's allegation that they deliberately violated the 2015 Court of Appeals Opinion when, between October, 2015, and November, 2016, they cut down the trees within the easement. See Response at 2. The Jones and Long Defendants contend that, in cutting down the trees during that time period, they relied on the October Amended Judgment, “which required Plaintiff Mayer not to interfere with Defendants' right to remove the trees that have grown in the easement.” Response at 3. The Jones and Long Defendants acknowledge that the Order Vacating Judgment vacated the October Amended Judgment, but contend that, at the time they removed the trees, they did not deliberately ignore the Court of Appeals of New Mexico's decision. See Response at 3.

         The Jones and Long Defendants next assert that they provided a map indicating the easement's boundary during the 2012 bench trial before Judge Campbell. See Response at 3. The Jones and Long Defendants assert that a surveyor conducted a boundary survey, identified survey markings and property corners, and produced a map which the Jones and Long Defendants presented at trial. See Response at 3. The Jones and Long Defendants contend that Mayer “did not present any documentation or provide any surveys of her own property to dispute the boundaries presented by the Jones Defendants.” Response at 3. The Jones and Long Defendants assert that “[t]he court accepted the boundary survey into evidence, did not require the parties to conduct a survey, and made a decision based on the boundary survey provided by the Jones Defendants.” Response at 3.

         The Jones and Long Defendants argue that Mayer refuses to follow the 2015 Court of Appeals Opinion by refusing to remove her fence, and that, while Mayer contends that she will remove her fence once she knows her property's boundaries, she has refused to conduct her own survey. See Response at 3.

         4. The Hearing.

         The Court held a hearing on January 7, 2019. See Draft Transcript of Motion Proceedings at 1 (taken January 7, 2019)(Court)(“Tr.”).[12] The Court began by noting that its Memorandum Opinion and Order on the Motion is near completion. See Tr. at 2:19-21 (Court). The Court then asked the Jones and Long Defendants whether there are any federal claims asserted against them, and the Jones and Long Defendants responded that there are none. See Tr. at 3:16-19 (Court, Dow). The Court asked whether, if the Court's jurisdiction over the case is federal question jurisdiction, it should apply New Mexico collateral estoppel or federal collateral estoppel. See Tr. at 3:20-22 (Court); id. at 3:24-4:1 (Court). The Jones and Long Defendants responded that they “briefed them both, ” but that they believe “collateral estoppel is a substantive issue.” Tr. at 4:2-5 (Dow). The Jones and Long Defendants averred that there “is a little bit of difference . . . [between] the state collateral estoppel issues and the federal.” Tr. at 4:9-12 (Dow). The Jones and Long Defendants asserted that, for federal collateral estoppel, the Court must determine whether Mayer had a “full and fair opportunity to litigate.” Tr. at 4:12-14 (Dow).

         The Court stated that it is inclined to use state collateral estoppel in this circumstance. See Tr. at 5:2-5 (Court). The Court indicated that it is “concerned about” the finally adjudicated element of collateral estoppel under New Mexico law. Tr. at 5:14-15 (Court). The Court expressed surprise that the parties agreed that the law-of-the-case doctrine applies in this case, noting that the doctrine is “fairly fluid in New Mexico.” Tr. at 5:22-25 (Court). The Court stated that, if the state case “were to go back to the Court of Appeals, [the Court does not] think that there is anything that would bind them. And if it would bounce up to the Supreme Court, [the Court does not] think there is anything that would bind them on law of the case.” Tr. at 6:1-5 (Court). The Court stated that, until there is a final adjudication, one element of collateral estoppel remains unsatisfied. See Tr. at 6:6-8 (Court).

         The Jones and Long Defendants averred that they addressed the final adjudication issue under N.M.R.A. 1-041(B). See Tr. at 6:9-10 (Dow). The Jones and Long Defendants asserted that, under N.M.R.A. 1-041(B), “unless the court, trial court, or the Court of Appeals in its dismissal otherwise [ ] specifies, [it] operates as an adjudication upon the merits.” Tr. at 6:11-15 (Dow). The Court pointed to the Order Vacating Judgment, concluding that “there is no valid and enforceable amended judgment in the case.” Tr. at 7:1-2 (Court)(quoting Order Vacating Judgment at 2). The Jones and Long Defendants responded that, “under New Mexico law, it does not need to be a final judgment. It needs to be a final adjudication on the issue of the easement, which it is.” Tr. at 7:10-13 (Dow). The Court responded that the problem with that formulation “is that could be revisited at any time.” Tr. at 7:14-15 (Court). The Court noted that, although it is skeptical that a state appellate court will revisit the issue of the easement's existence, “from a power standpoint, they have the ability to revisit that at any time.” Tr. at 7:14-16 (Court); id. at 7:18-20 (Court). The Court noted that the trial judge may be bound at the current time by the Court of Appeals of New Mexico's decision, but that the Court does not “see anything that would bind the Court of Appeals from relooking at this.” Tr. at 7:22-8:2 (Court).

         The Jones and Long Defendants asserted that “this is stronger than the law of the case, ” because the Court of Appeals of New Mexico “made an affirmative determination that the easement is not ambiguous as a matter of law. Which is just like, I would think, a summary judgment determination.” Tr. at 8:6-10 (Dow). The Jones and Long Defendants asserted that, under N.M.R.A. 1-041(B), “it operates as a final adjudication on the merits.” Tr. at 8:11-12 (Dow). The Court asked whether N.M.R.A. 1-041(B) dismissal preceded the Order Vacating Judgment. See Tr. at 8:16-18 (Court). The Court noted that, after entry of the Order Vacating Judgment, Mayer moved to enter an amended judgment and order, and the Dist. Ct. MOO denied that Motion to Enter Amended Judgment. See Tr. at 8:19-22 (Court). The Court stated that the Motion contends that the 2015 Court of Appeals Opinion “is final for collateral estoppel purposes regarding whether the Jones and Long Defendants own a preexisting written easement, so there can be no trespass as a matter of law, and then whether Mayer's fence encroaches on that easement.” Tr. at 8:22-9:3 (Court). The Court noted that the Response “seems to agree” that the 2015 Court of Appeals Opinion “provides the law of the case in this matter.” Tr. at 9:4-6 (Court). The Court noted that it does not see another doctrine that would make the adjudication in the 2015 Court of Appeals Opinion final, and that, if the applicable doctrine is “not law of the case, [the Court does not] know what it is.” Tr. at 9:6-8 (Court). The Court noted that the 2015 Court of Appeals Opinion does not dispose of any claims, and the Court asked, accordingly, whether “all originally asserted claims in the state suit remain pending entry of a valid amended judgment, ” Tr. at 9:8-13 (Court). The Jones and Long Defendants responded that the Court of Appeals of New Mexico adjudicated seven issues, see supra at 17-18, which “operates as a full merits adjudication . . . .” Tr. at 9:15-19 (Dow). The Court noted that Silva v. State, 1987-NMSC-107, 745 P.2d 380, indicates that collateral estoppel under New Mexico law applies only where there has been a final judgment. See Tr. at 10:22-11:1 (Court). The Court asked what the status of the state court proceedings is. See Tr. at 11:4-5 (Court).

         The Jones and Long Defendants stated that, “in reading Judge Campbell's” opinion, “he has essentially said these seven issues, which include a full determination of the easement issue, [have] been determined.” Tr. at 11:9-13 (Dow). The Jones and Long Defendants averred that Judge Campbell will take new evidence only on two issues: the fate of the easement's trees and whether any additional burden has been placed on the servient estate. See Tr. at 11:13-17 (Dow). The Jones and Long Defendants next stated that “it's clear in New Mexico law that the issue preclusion does not require” a final judgment and that the Supreme Court of New Mexico's use of that word in Silva v. State “was unartful.” Tr. at 11:20-22 (Dow). The Court responded that “there is other language” in Supreme Court of New Mexico decisions “that says finally adjudicated.” Tr. at 12:2-3 (Court). The Court stated that “there are some cases and formulations of the New Mexico collateral estoppel that say finally adjudicated.” Tr. at 12:4-6 (Court). The Court stated that it did not agree the Supreme Court of New Mexico was inartful in using the phrase final judgment “if the other formulations say finally adjudicated, which is clearly what the federal collateral estoppel requires.” Tr. at 12:7-10 (Court). The Court indicated that, if the state proceeding is not final, “then it's fairly clear . . . you cannot knock out a 1983 claim here with an ongoing state case.” Tr. at 12:12-14 (Court).

         The Jones and Long Defendants stated that, if the Court does apply collateral estoppel in the case, the Court will be placed in a difficult position, and will have to apply law contrary to the Court of Appeals of New Mexico, or have to stay the case, or have to abstain from deciding it. See Tr. at 12:20-25 (Dow). The Court responded that abstention doctrines may come into play, but at least on collateral estoppel, the state case does not appear to be final. See Tr. at 13:1-6 (Court). The Jones and Long Defendants informed the Court that there is a mediation scheduled between the parties in state court. See Tr. at 13:7-10 (Dow). The Jones and Long Defendants then asserted that the difference between res judicata and collateral estoppel, or issue preclusion, is that res judicata requires a final judgment. See Tr. at 13:13-16 (Dow). The Jones and Long Defendants argued that, under N.M.R.A. 1-041(B), the Court of Appeals of New Mexico made a merits determination after an issue was fully and completely litigated, and that the issues which the Court of Appeals addressed were “fairly substantive.” Tr. at 13:18-23 (Dow). The Jones and Long Defendants averred that “Judge Campbell is not going to review the issue.” Tr. at 14:9-10 (Dow). The Court agreed that Judge Campbell is not likely to revisit the issue. See Tr. at 14:11 (Court).

         Mayer contended that “the issue before the district court [is that] the intervenors, the defendants here, were claiming that the easement on the property was either an easement in gross or an easement of necessity.” Tr. at 15:1-5 (Chisholm). Mayer contended that she said from the beginning that it is an easement appurtenant and that she does not deny it is twenty feet. See Tr. at 15:6-8 (Chisholm). Mayer contends that, while she does not dispute the easement exists and is twenty feet, she does not know where the easement is located. See Tr. at 16:1-5 (Chisholm). Mayer contends that there is no boundary survey. See Tr. at 16:4 (Chisholm). Mayer contends that the Jones and Long Defendants conducted a “stake survey, ” and “refused to get a boundary survey.” Tr. at 16:8-9 (Chisholm). Mayer alleged:

CHISHOLM: So there is a stake survey. So we know where the stakes are -- we know where three stakes are -- but we don't know if those stakes are accurate. And what we need -- what this Court needs, what everybody in this case needs is a recordable boundary survey that would be acceptable to any title company. Then we know where the 20 feet is; then we know whether trespass is a legitimate claim or not.

Tr. at 16:12-19 (Chisholm).[13]

         Mayer alleged that defendants cut the trees, because they “couldn't tolerate” the Court of Appeals of New Mexico reserving the trees' fate to the state district court. Tr. at 17:5-8 (Chisholm). Mayer contends that the case is in federal court, because Mayer's due process right to put on evidence why her trees should not be cut was violated when the Jones and Long Defendants spoke to their attorney, and communicated with the county attorney to get an email “saying, well, if someone comes out and wants to cut the trees, let them cut the trees.” Tr. at 17:11-20 (Chisholm). Mayer contended that there is a difference between a clear twenty-foot easement, and a twenty-foot easement allowing for a ten-foot road and ten feet “of buffer between the road and the house on the plaintiff's property.” Tr. at 17:21-25 (Chisholm). Mayer indicated that, apart from the § 1983 action, the “rest of this stuff can't be resolved without a survey.” Tr. at 18:6-9 (Chisholm).

         The Court stated that the Court needs to decide the collateral estoppel issue and remarked that Mayer seems “to concede that the 2015 Court of Appeals of New Mexico opinion provides the law of the case in this matter.” Tr. at 18:23-19:2 (Chisholm). Mayer responded that Mayer agrees that the 2015 Court of Appeals Opinion provides the law of the case and that the Court of Appeals of New Mexico left the trees' fate to the district court. See Tr. at 19:7-11 (Chisholm). Mayer also conceded that the Jones and Long Defendants own a preexisting written easement, and that Mayer's fence encroaches on that easement. See Tr. at 20:2-8 (Court, Chisholm). Mayer asserted that the lack of boundary survey is the issue. See Tr. at 20:8-9 (Chisholm). Mayer conceded that the 2015 Court of Appeals Opinion decides the easement's existence and the fence's encroachment “so that it cannot be revisited either by a district court or by this court[.]” Tr. at 20:11-14 (Court, Chisholm). The Court stated that the “law of the case doctrine in New Mexico [seems to allow] the Court of Appeals or the Supreme Court down the road to relook at these issues . . .” Tr. at 20:24-21:2 (Court). Mayer agreed that the doctrine allows that ability but averred that the Court of Appeals of New Mexico “made a policy decision” which the Court of Appeals of New Mexico is unlikely to revisit. Tr. at 21:7-10 (Chisholm). Mayer averred that “there are other issues that the Court could come back and, and the county might want to visit, like that 20-foot easement, even if it was completely plowed under is still not kosher for a county road ordinance.” Tr. at 21:19-23 (Chisholm). The Court agreed that the Court of Appeals of New Mexico is unlikely to revisit the decision but stated that it has the power to revisit it. See Tr. at 22:12-14 (Court). Mayer then informed the Court that all state law claims remain pending. See Tr. at 22:15-19 (Court, Chisholm). Mayer averred that the increase in the easement's use when Jones sold part of the dominant estate to the Longs is impermissible and creates an extra burden on the servient estate. See Tr. at 23:8-12 (Chisholm). Mayer requested that the Court “hold off on making a decision, order the defendants to pay for a boundary survey that can be filed with the title company, and everybody will abide by that survey.” Tr. at 26:18-21 (Chisholm). Mayer then informed the Court that on January 1, 2019, the state court issued a “dismissal for lack of prosecution, ” and both parties agreed to reinstate it. Tr. at 27:4-9 (Chisholm, Dow). Mayer also requested that the Court “stay everything until [it gets] a report back on the mediation -- or, I mean, ideally nothing is going to get done without a survey.” Tr. at 27:10-14 (Chisholm).

         Bernalillo County then commented that the “county attorneys at issue in the Complaint, Mr. Schuler and Theresa Baca [Sandoval], haven't been served with the original complaint or the amended complaint.” Tr. at 28:24-29:2 (Huss). Bernalillo County averred that, if Mr. Schuler and Ms. Sandoval are served, they “would bring qualified immunity to the Court immediately, arguing there is no clearly established law that supports a claim against them under the facts alleged in the complaint.” Tr. at 29:3-7 (Huss). Bernalillo County then stated that Bernalillo County would “ask for a stay of all the proceedings, pending adjudication of that question.” Tr. at 29:7-9 (Huss). The Court stated that “we certainly are kind of deciding the state law issues first in this case before we decide the federal questions. And we have some concern, given qualified immunity, whether any federal claim can survive here.” Tr. at 29:18-23 (Court).

         The Jones and Long Defendants then asserted that they provided a survey and monuments of the original survey that the district court accepted, whereas Mayer has never provided a survey. See Tr. at 30:8-14 (Dow). The Court asked why the Jones and Long Defendants, rather than Mayer, provided the survey. See Tr. at 30:20-23 (Court). The Jones and Long Defendants replied that the state district court entered an order, in 2010, requiring the parties to share a survey.[14] See Tr. at 30:24-31:2 (Dow). The Jones and Long Defendants averred that the survey issue is a “state court issue . . . .” Tr. at 31:9-10 (Dow). Mayer then reasserted that the survey provided is a stake survey and not a boundary survey. See Tr. at 31:25-32:2 (Chisholm).

         The Court then stated its inclination to deny the motion, concluding that not all the elements of collateral estoppel are met. See Tr. at 32:13-16 (Court). The Court stated that, “[u]ntil that state proceeding is resolved, [the Court doesn't think it has] the ability to grant collateral estoppel on any of the issues.” Tr. at 32:17-19 (Court). The Court agreed that some of the issues will never be relitigated, but does not think it can give them collateral estoppel effect until they are brought to a conclusion. See Tr. at 32:19-23 (Court). The Court indicated that it would attempt to get an opinion to the parties before the state court mediation on Wednesday morning, July 9, 2019, but that it wants to think “about some of the things [ ] said today.” Tr. at 33:3-15 (Court). The Court indicated that it is still inclined to deny the motion. See Tr. at 33:21-22 (Court). Finally, the Court indicated that Mayer should serve the Defendants against whom Mayer wants to assert federal claims, because the Court's jurisdiction depends upon there being federal claims. See Tr. at 34:4-13 (Court).

         LAW REGARDING RULE (12)(b)(6)

         Rule 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). A court may also consider documents to which the complaint refers, if their adequacy is central to the plaintiffs' claims and their authenticity is unquestioned. See Armstrong v. N.M. Disability Determination Servs., 278 F.Supp.3d 1193, 1201 n.3 (D.N.M. 2017)(Browning, J.)(concluding that the court properly considered notices attached to the motion and not to the complaint, because the complaint referenced them, their adequacy was central to the plaintiffs' claims, and their authenticity was unquestioned). See also GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)(“[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered . . . .”).

         A 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 non-moving 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-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (internal quotation marks omitted)(quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)). At the motion-to-dismiss stage, the court does not weigh the evidence, and “is interested only in whether it has jurisdiction and whether the [p]laintiffs plead a claim to relief that is plausible on its face.” Begay v. Pub. Serv. Co. of N.M., 710 F.Supp.2d 1161, 1199 (D.N.M. 2010)(Browning, J.).

         A complaint need not set forth 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 (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 (citation omitted). See Duncan v. Citibank (S.D.), N.A., No. CIV 06-0246 JB/KBM, 2006 WL 4063021, at *3 (D.N.M. June 30, 2006)(Browning, J.)(dismissing a civil Racketeer Influenced and Corrupt Organizations Act (RICO) cause of action from a complaint where the complaint alleged a single physical act, and not a pattern of racketeering activity, and a pattern of activity is one of the elements required to state a RICO claim).

         To 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). A court will not construe a plaintiff's pleadings “so liberally that it becomes his advocate.” Bragg v. Chavez, No. CIV 07-0343 JB/WDS, 2007 WL 5232464, at *25 (D.N.M. Aug. 2, 2007)(Browning, J.). 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 for relief.

Robbins v. Oklahoma, 519 F.3d at 1247 (internal citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570). See Gallegos v. Bernalillo Cty. Bd. of Cty Comm'rs, 278 F.Supp.3d 1245, 1259 (D.N.M. 2017)(Browning, J.).

         “When 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 Am., 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. at 322; (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 936, 941 (10th Cir. 2002); 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 Am., Inc. v. NBC Universal, Inc., 861 F.3d at 1103 (holding that the district court did not err by reviewing a seminar recording and a television 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).

         In 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 . . . 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)[15]. In Douglas v. Norton, 167 Fed.Appx. 698 (10th Cir. 2006)(unpublished), the Tenth Circuit addressed a charge untimely filed with the Equal Employment Opportunity Commission -- which the Tenth Circuit analogized to a statute of limitations -- and concluded that, because the requirement was not jurisdictional, the district court should have analyzed the question under rule 12(b)(6), and “because the district court considered evidentiary materials outside of Douglas' complaint, it should have treated Norton's motion as a motion for summary judgment.” 167 Fed.Appx. at 704-05.

         The Court has previously ruled that, when a plaintiff references and summarizes defendants' statements in a complaint, the Court cannot rely on documents containing those statements that the defendants attach in their briefing. See Mocek v. City of Albuquerque, No. CIV 11-1009 JB/KBM, 2013 WL 312881, at *50-51 (D.N.M. Jan. 14, 2013)(Browning, J.). The Court reasoned that the statements were neither incorporated by reference nor central to the plaintiff's allegations in the complaint, because the plaintiff cited the statements only to attack the defendant's reliability and truthfulness. See 2013 WL 312881, at *50-51. The Court has also previously ruled that, when determining whether to toll a statute of limitations in an action alleging fraud and seeking subrogation from a defendant, the Court may not use interviews and letters attached to a motion to dismiss, which show that a plaintiff was aware of the defendant's alleged fraud before the statutory period expired. See Great Am. Co. v. Crabtree, No. CIV 11-1129 JB/KBM, 2012 WL 3656500, at *3, *22-23 (D.N.M. Aug. 23, 2012)(Browning, J.)(“Crabtree”). The Court in Crabtree determined that the documents did not fall within any of the Tenth Circuit's exceptions to the general rule that a complaint must rest on the sufficiency of its contents alone, as the complaint did not incorporate the documents by reference or refer to the documents. See 2012 WL 3656500, at *22-23; Mocek v. City of Albuquerque, 2013 WL 312881, at *50 (refusing to consider statements that were not “central to [the plaintiff's] claims”).

         On the other hand, in a securities class action, the Court has ruled that a defendant's operating certification, to which the plaintiffs refer in their complaint, and which was central to whether the plaintiffs adequately alleged a loss, falls within an exception to the general rule that a complaint must rest on the sufficiency of its contents alone, so the Court may consider the operating certification when ruling on the defendant's motion to dismiss without converting the motion into one for summary judgment. See Genesee Cty. Emps.' Ret. Sys. v. Thornburg Mortg. Secs. Tr. 2006-3, 825 F.Supp.2d 1082, 1150-51 (D.N.M. 2011)(Browning, J.). See also Sec'y & Exch. Comm'n v. Goldstone, 952 F.Supp.2d 1060, 1217-18 (D.N.M. 2013)(Browning, J.)(considering, on a motion to dismiss, emails referenced in the complaint as “documents referred to in the complaint, ” which are “central to the plaintiff's claim” and whose authenticity the plaintiff did not challenge); Mata v. Anderson, 760 F.Supp.2d 1068, 1101 (D.N.M. 2009)(Browning, J.)(relying on documents outside of the complaint because they were “documents that a court can appropriately view as either part of the public record, or as documents upon which the Complaint relies, and the authenticity of which is not in dispute”).

         LAW REGARDING THE FINALITY OF STATE COURT JUDGMENTS IN FEDERAL COURT

         Res judicata and collateral estoppel are common-law doctrines of finality, which serve to relieve parties of the costs and vexation of multiple lawsuits, conserve judicial resources, and prevent inconsistent decisions. See Allen v. McCurry, 449 U.S. 90, 94 (1980). “A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)(citing Comm'r v. Sunnen, 333 U.S. 591, 597 (1948)) . Collateral estoppel precludes re-litigation of a common issue of law or fact which was necessarily decided in a prior court's final judgment. See Allen v. McCurry, 449 U.S. at 94. In determining whether a doctrine of finality applies, a decision from a state court has the same preclusive effect in federal court as the decision would have in a subsequent state court action. See Reed v. McKune, 298 F.3d 946, 949-50 (10th Cir. 2002)(citing 28 U.S.C. § 1738 (“[The] judicial proceedings of any court of any such State . . . shall have the same full faith and credit in every court within the United States . . . as they would by law or usage in the courts of such . . . from which they are taken.”)). A district court in the Tenth Circuit applying res judicata or collateral estoppel to a decision from a state court must look to the laws of that state to determine the required elements for either doctrine to preclude a claim or issue brought in federal court. See Reed v. McKune, 298 F.3d at 949 (“In determining whether a state court judgment precludes a subsequent action in ederal court, we must . . . giv[e] it the same preclusive effect as would the courts of the state issuing the judgment.” (internal quotation marks omitted)(quoting Rhodes v. Hannigan, 12 F.3d 989, 991 (10th Cir. 1993))). Thus, if a state law in state court would preclude re-litigation of a claim or an issue of law or fact, the same claim or issue is precluded in federal court. See Reed v. McKune, 298 F.3d at 949 (applying Kansas law to determine whether collateral estoppel precludes an issue of fact or law in a federal court action containing § 1983 claims).

         RELEVANT NEW MEXICO LAW REGARDING RES JUDICATA

         Under New Mexico law, res judicata, also known as claim preclusion, bars re-litigation of “the same claim between the same parties or their privies when the first litigation resulted in a final judgment on the merits.” Deflon v. Sawyers, 2006-NMSC-025, ¶ 2, 137 P.3d at 579. New Mexico law prescribes four elements for a party seeking to assert res judicata: “(i) the same parties or parties in privity; (ii) the identity of capacity or character of persons for or against whom the claim is made; (iii) the same subject matter; and (iv) the same cause of action in both suits.” Hartnett v. Papa John's Pizza USA, Inc., 828 F.Supp.2d at 1285-86 (citing Apodaca v. AAA Gas Co., 2003-NMCA-085, ¶ 75, 73 P.3d 215, 238-39[16]). Res judicata is a broad bar, precluding a party from bringing any claims which were, or which could have been raised in a prior proceeding finally determined on the merits. See Kirby v. Guardian Life Ins., 2010-NMSC-014, ¶ 61, 231 P.3d 87, 105. To determine whether a prior suit, under res judicata, precludes a claim in a second suit, New Mexico courts will look to: “(i) the relatedness of the facts in time, space origin, or motivation; (ii) whether, taken together, the facts form a convenient unit for trial purposes; and (iii) whether the treatment of the facts as a single unit conforms to the parties' expectations or business understanding or usage.” Hartnett v. Papa John's Pizza USA, Inc., 828 F.Supp.2d at 1285-86 (citing Bank of Santa Fe v. Marcy Plaza Assocs., 2002-NMCA-014, 40 P.3d 442[17]). Additionally, res judicata bars a claim only where a party had a “full and fair opportunity to litigate issues arising out of that claim.” Kirby v. Guardian Life Ins., 2010-NMSC-014, ¶ 61, 231 P.3d at 105.

         RELEVANT NEW MEXICO LAW REGARDING ISSUE PRECLUSION (&ldquo ...


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