JAMES O. BROWNING, District Judge.
Titus is an attorney in Farmington, New Mexico. See Curriculum Vitae of Victor A. Titus, filed July 21, 2010 (Doc. 51-10).
In approximately 1998, Titus learned that Mosley was engaging in ex parte contacts with the employers of Titus' clients. See Letter to Dr. Fred Mosley from Victor A. Titus (dated March 26, 1998), filed July 21, 2010 (Doc. 51-10). Also in 1998, Titus sent Mosley two letters, in which he advised Mosley that his ex parte contacts with his patient's employers was improper
Titus stated that he wanted to run Mosley out of town. See Stirling Depo. at 97:17-25.
On June 14, 2001, Titus proposed a compromise settlement to Mosley's counsel, in which Titus sought an agreement to: (i) a permanent injunction preventing Mosley's office from engaging in ex parte contact with worker's employers, insurers and case managers, and preventing Mosley's office from using the release form; (ii) a provision that violation of the injunction could be sanctioned as contempt of court; (iii) the plaintiffs' waiver of all compensatory and punitive damages; and (iv) Mosley's payment of the plaintiffs' filing fees and service fees, with each side to pay its own attorney fees. See Letter from Victor A. Titus to Seth V. Bingham, Esq. and Terri L. Sauer, Esq. (dated June 14, 2001), filed July 21, 2010 (Doc. 51-10).
On February 1, 2007, the sale of Mosley's medical practice of Mesa Occupational and Sports Medicine to Reliance Medical Group, which was owned by Ken Stradling, M.D., closed. See First Amendment to Agreement of Purchase and Sale of Assets, filed August 5, 2010 (Doc. 59-3).
In 2007, Mosley left Farmington and moved to Grand Junction, Colorado. See Mosley Depo. at 6:4-13.
On August 13, 2009, Mosley filed a Complaint against Titus, Steven Murphy, and Titus & Murphy, LLC in the United States District Court for the District of New Mexico. See Doc. 1. In his Complaint, Mosley alleges causes of action for malicious abuse of process, negligence, interference with contractual relations, violation of the New Mexico Antitrust Act, NMSA 1978, §§ 57-1-1 to -19, intentional infliction of emotional distress, and prima facie tort. See Complaint ¶¶ 31-69, at 4-7.
On April 28, 2010, Murphy and Titus & Murphy, LLC, filed a Motion to Dismiss or, in the Alternative, Summary Judgment. See Defendants Titus & Murphy, LLC and Steven Murphy's Motion to Dismiss or, in the Alternative, for Summary Judgment, April 28, 2010 (Doc. 34). Murphy and Titus & Murphy, LLC, also filed a Memorandum in Support of their Motion to Dismiss or, in the Alternative, for Summary Judgment. See Memorandum in Support of Defendants Titus & Murphy, LLC and Steven Murphy's Motion to Dismiss or, in the Alternative, for Summary Judgment, filed April 28, 2010 (Doc. 35) ("Murphy and Titus & Murphy, LLC's Memorandum"). Most of Mosley's claims were specific to Titus, except for his negligence claim, which included allegations against all of the Defendants. See Murphy and Titus & Murphy, LLC's Memorandum at 2-3. Titus & Murphy, LLC argued that Mosley's Complaint against it failed to state a claim for relief, because Mosley made only a claim of negligence against Titus & Murphy, LLC, yet did not plead any facts that showed that Titus & Murphy, LLC, a real estate holding company, owed Mosley a duty, breached that duty, or caused Mosley any injury. See Murphy and Titus & Murphy, LLC's Memorandum at 5-6. Both Murphy and Titus & Murphy, LLC argued that no genuine issue of material fact existed that would entitle Mosley to relief against them, because Mosley could not prove that either Defendant owed him a duty, or breached that duty. See Murphy and Titus & Murphy, LLC's Memorandum at 6.
On August 5, 2010, the Court entered a Stipulated Order, which partially granted Murphy and Titus & Murphy, LLC's Motion to Dismiss or, in the Alternative, Summary Judgment by dismissing Titus & Murphy, LLC from the action. See Stipulated Order Partially Granting Defendants Steven Murphy and Titus & Murphy, LLC's Motion for Summary Judgment and Dismissing Titus & Murphy, LLC, filed August 5, 2010 (Doc. 60). On August 31, 2010, Murphy filed a Stipulated Notice, withdrawing the portion of Defendants' Motion to Dismiss or, in the Alternative, Summary Judgment, and Memorandum in support of this motion that related to him. See Stipulated Notice to Withdraw Motion to Dismiss or, in the Alternative, for Summary Judgment by Defendant Stephen Murphy, filed August 31, 2010 (Doc. 67) ("Stipulated Notice"). Murphy stated that, after further review and analysis, "it has been determined that sufficient questions of fact remain with regard to the status of [Murphy], which would require the Court to deny the Motion at this time." Stipulated Notice at 1.
The Defendants—currently only Titus and Murphy remain in the action—move the Court, pursuant to rule 56 of the Federal Rules of Civil Procedure, for an order granting summary judgment in their favor on all claims against them. See Motion
In his Response, Mosley concedes that his claim under the New Mexico Antitrust Act and his claim for tortious interference. See Plaintiff's Amended Response to Defendants' Motion to Summary Judgment (Doc. 50), filed August 5, 2010 (Doc. 59) ("Response"). Mosley contends that his claim for malicious abuse of process should survive, because Titus filed thirteen claims against Mosley without probable cause and with a primary purpose of harassing Mosley to the point that Mosley would leave Farmington. See Response at 7-8. Mosley contends that his negligence claim should survive, because the general rule that a lawyer does not owe a duty to a party who is adverse to his client is qualified by the assumption that an attorney is acting legally and ethically, and whether Titus acted within the rules of professional ethics is a disputed fact. See Response at 9-10. Mosley argues that his prima-facie tort claim should survive, because the parties dispute whether Titus had sufficient justification to file the lawsuits. See Response at 10. Mosley also contends that his intentional infliction of emotional distress claim is viable, because there is a question of fact whether Titus' conduct was extreme and outrageous, and whether Mosley suffered severe emotional distress. See Response at 11. In conclusion, Mosley contends that the Court should not dismiss his damages claims, because he sold his practice for less than it was worth, and because if any of his intentional tort claims are successful, he will be entitled to punitive damages, as malicious abuse of process, prima-facie tort, and intentional infliction of emotional distress each require a finding that Titus acted intentionally and maliciously. See Response at 11-12.
At the hearing, Eric Loman, attorney for Mosley, disputed the Defendants' assertion that Mosley had ex parte communication without his patients' consent. See Tr. at 31:20-22 (Loman). Emily A. Franke, attorney for Titus, stated that the issue whether the release was sufficient would have been developed through discovery in the underlying litigation, but that the issue did not need to be definitely resolved before Titus could file the complaints. See Tr. at 45:10-46:21 (Franke, Court). The parties agreed to submit additional briefing on the meaning of informed consent. See Tr. at 54:4-55:7 (Franke, Court, Loman).
On October 20, 2010, Loman submitted a letter to the Court, providing the Court with excerpts from the Workers' Compensation
On October 21, 2010, the Defendants submitted supplemental briefing. See Doc. 75. The Defendants stated: "There are no New Mexico cases that explore what is necessary for informed consent to waiver of the physician-patient privilege in the workers' compensation context." Supplemental Brief at 4. The Defendants therefore provided the Court with an overview of New Mexico law regarding informed consent and waiver in other contexts, including: (i) the validity and enforceability of consent to submit a dispute to arbitration, where courts examine the circumstances surrounding the consent, including the party's ability to understand the terms of the agreement and the bargaining power of the parties to determine whether the agreement to arbitration is an invalid adhesion contract; (ii) informed consent in the medical care and treatment context, where a doctor has a duty to disclose to the patient all facts necessary to form the basis of intelligent consent by the patient; (iii) releases of liability, where courts require the language in the release to be of such clarity that a person without legal training could understand it; and (iv) attorney disclosure of client information, which requires the client's consent after the attorney's full disclosure of any information sufficient for the client to make an informed decision. See Supplemental Brief at 4-5.
Rule 56(c) states that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden 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) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record], together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.") (internal quotation marks omitted). Once the movant meets this burden, rule 56(e) requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) ("However, the nonmoving party may not rest on its pleadings but 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.") (internal quotes 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
Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere "scintilla" of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improv. Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. "[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable... or is not significantly probative, ... summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (internal citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.
When a court's jurisdiction rests on diversity of citizenship under 28 U.S.C. § 1332, the court should look to the forum
In tort actions, New Mexico courts follow the doctrine of lex loci delicti commissi and apply the law of the place where the wrong took place. See Torres v. State, 119 N.M. 609, 613, 894 P.2d 386, 390 (1995). The place of the wrong is the location of the last act necessary to complete the injury. See Torres v. State, 119 N.M. at 613, 894 P.2d at 390. Where the elements of the underlying claim include harm, the place of the wrong is the place where the harm occurred. See First Nat'l Bank in Albuquerque v. Benson, 89 N.M. 481, 482, 553 P.2d 1288, 1289 (Ct.App. 1976). The Supreme Court of New Mexico has said that it will not use the place-of-wrong-rule, however, if application of the rule would violate New Mexico public policy. See Torres v. State, 119 N.M. at 613, 894 P.2d at 390. The Court of Appeals of New Mexico has interpreted this principle to mean that, although there is a strong presumption in favor of application of the place-of-the-wrong rule, in some situations a court may depart from the general rule if another state has a more significant interest in having its law apply. See Estate of Gilmore, 124 N.M. 119, 946 P.2d 1130 (Ct.App.1997).
In DeVaney v. Thriftway Marketing Corp., 124 N.M. 512, 953 P.2d 277 (1997), overruled on other grounds by Durham v. Guest, 145 N.M. 694, 204 P.3d 19 (2009), the Supreme Court of New Mexico reviewed the purposes and elements of the two torts of abuse of process and malicious prosecution. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 517, 953 P.2d at 282. The Supreme Court of New Mexico concluded that the two torts would no longer be separate causes of action and restated their elements into a single tort—malicious abuse of process. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 518, 953 P.2d at 283. In New Mexico, the tort of malicious abuse of process is disfavored, because of "the potential chilling effect on the right of access to the courts." Fleetwood Retail Corp. of N.M. v. LeDoux, 142 N.M. 150, 156, 164 P.3d 31, 37 (2007) (citation omitted). New Mexico courts state that the tort of malicious abuse of process should be construed narrowly to protect the right of access to the courts. See Durham v. Guest, 145 N.M. at 701, 204 P.3d at 26; Weststar Mortg. Corp. v. Jackson, 133 N.M. 114, 119, 61 P.3d 823, 828 (2002). Malicious-abuse-of-process claims involve balancing "the interest in protecting litigants' right of access to the courts and the interest in protecting citizens from unfounded or illegitimate applications of the power of the state through the misuse of the courts." DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 517, 953 P.2d at 282. "[T]he filing of a proper complaint with probable cause, and without any overt misuse of process, will not subject a litigant to liability for malicious abuse of process, even if it is the
The elements of a malicious-abuse-of-process action are: (i) the use of process in a judicial proceeding that would be improper in the regular prosecution or defense of a claim or charge; (ii) a primary motive in the use of process to accomplish an illegitimate end; and (iii) damages. See Durham v. Guest, 145 N.M. at 701, 204 P.3d at 26. An improper use of process may be shown by: (i) filing a complaint without probable cause; or (ii) an irregularity or impropriety suggesting extortion, delay or harassment, or other conduct formerly actionable under the tort of abuse of process. See Durham v. Guest, 145 N.M. at 701, 204 P.3d at 26.
The Supreme Court of New Mexico has defined probable cause in the malicious abuse of process context as "a reasonable belief, founded on known facts established after a reasonable pre-filing investigation that a claim can be established to the satisfaction of a court or jury." Fleetwood Retail Corp. of N.M. v. LeDoux, 142 N.M. at 154, 164 P.3d at 36 (internal quotations and citation omitted). "The lack of probable cause must be manifest." Fleetwood Retail Corp. of N.M. v. LeDoux, 142 N.M. at 154, 164 P.3d at 36 (citation omitted). Probable cause is to be judged on the facts as they appeared at the time; it is not to be judged on later-discovered facts. See Weststar Mortg. Corp. v. Jackson, 133 N.M. at 122, 61 P.3d at 831 ("Probable cause ... is to be judged by facts as they appeared at the time, not by later-discovered facts.") (citing Restatement (Second) of Torts § 662 cmt. e (stating that an accusation leading to the initiation of a criminal proceeding must be based on probable cause, determined as of the time the action was filed) (other citations omitted)). The existence of probable cause in the underlying proceeding is a question of law to be decided by the court. See Weststar Mortg. Corp. v. Jackson, 133 N.M. at 123, 61 P.3d at 832 ("[T]he existence of probable cause in the underlying proceeding, that is, whether the facts amount to probable cause, is a question of law and shall be decided by the trial judge.") (internal quotation marks and citation omitted). A malicious-abuse-of-process plaintiff who is attempting "to show a lack of probable cause must demonstrate, by the applicable standard of proof, that the opponent did not hold a reasonable belief in the validity of the allegations of fact or law of the underlying claim." DeVaney v. Thriftway Marketing Corp., 124 N.M. at 522, 953 P.2d at 287.
In Guest v. Berardinelli, 145 N.M. 186, 195 P.3d 353, the Court of Appeals of New Mexico discussed the element of probable cause in the context of a claim for malicious abuse of process. See id. at 190, 195 P.3d at 357. In determining whether the malicious-abuse-of-process defendants had probable cause to name the malicious-abuse-of-process plaintiff as a party in a previous suit, the Court of Appeals first considered whether the defendants made a prima-facie showing that they performed a reasonable pre-filing inquiry. See id. at 190, 195 P.3d at 357. The Court of Appeals found that, before filing the suit, the defendants obtained factual background, including correspondence, medical records, depositions, arbitration discovery, written statements, and that the defendants reviewed the materials and information, analyzed the potential causes of action against the plaintiff, and filed the lawsuits on that basis. See Guest v. Berardinelli, 145 N.M. at 190, 195 P.3d at 357. The Court of Appeals found that these actions met the standard for a reasonable pre-filing investigation. See id. at 190, 195 P.3d at 357. The Court of Appeals then inquired into
Guest v. Berardinelli, 145 N.M. at 192, 195 P.3d at 359 (emphasis added).
Lack of probable cause is not the only way to establish misuse of process; a plaintiff can also show misuse of process by pointing to "some irregularity or impropriety suggesting extortion, delay or harassment." DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287. A plaintiff may prove misuse of process through procedural irregularity—such as misuse of discovery, subpoenas, and attachments—or an act that otherwise indicates wrongful use of proceedings—such as an extortion attempt. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287. Some examples of misuse of process include: (i) excessive execution on a judgment; (ii) attachment of property other than the property involved in the litigation; (iii) oppressive conduct in connection with an arrest or seizure of property; and (iv) extortion of excessive sums of money. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287.
Under the requirement of a primary improper motive, it is insufficient that the malicious-abuse-of-process defendant acted with ill will or spite. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287 (citing W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on the Law of Torts § 121, at 897 (5th ed. 1984) ("[E]ven a pure spite motive is not sufficient where process is used only to accomplish the result for which it was created.") (emphasis added)). There must be a purpose to accomplish an illegitimate end. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287. The Supreme Court of New Mexico has given several examples of improper purpose, including: (i) a litigant who pursues a claim knowing that the claim is meritless; (ii) a litigant who pursues a claim primarily to deprive another of the beneficial use of his or her property in a manner unrelated to the merits of the claim; (iii) a litigant who misuses the law primarily for harassment or delay; or (iv) a litigant who initiates proceedings primarily for the purpose of extortion. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287. An overt misuse of process may support an inference of an improper purpose, but a court may not infer from evidence of an improper purpose alone that there was not probable cause or that there was not a proper use of process. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287.
In Smith v. Ashby, 106 N.M. 358, 743 P.2d 114 (1987), the Supreme Court of New Mexico issued a writ of superintending control prohibiting the Honorable Philip Ashby, District Judge, from enforcing an order that compelled the plaintiff to sign a document authorizing his personal physician to disclose all information regarding the plaintiff in the physician's possession to the defense counsel either out of the presence of the plaintiff or of his attorneys. See 106 N.M. at 359-60, 743 P.2d at 115-16. The Supreme Court stated:
Smith v. Ashby, 106 N.M. at 359-60, 743 P.2d at 115-16.
In Church's Fried Chicken No. 1040 v. Hanson, 114 N.M. 730, 845 P.2d 824 (Ct. App.1992), the Court of Appeals of New Mexico addressed whether the district court erred in issuing an order prohibiting the employer's workers' compensation insurer from engaging in ex parte contacts with the worker's treating physician. 114 N.M. at 731, 845 P.2d at 825. The Court of Appeals found that the Supreme Court's rationale in Smith v. Ashby, that a patient's trust and faith in physicians would be endangered if physicians could engage in ex parte discussions with the patient's legal adversaries, applied to workers' compensation actions. See Church's Fried Chicken No. 1040 v. Hanson, 114 N.M. at 735, 845 P.2d at 829. The Court of Appeals thus concluded that the public-policy considerations that the Supreme Court of New Mexico recognized in Smith v. Ashby supported the district court's authority to restrict ex parte discovery of the worker's treating physician. See Church's Fried Chicken No. 1040 v. Hanson, 114 N.M. at 735, 845 P.2d at 829.
In Gomez v. Nielson's Corp., 119 N.M. 670, 894 P.2d 1026 (Ct.App.1995), the Court of Appeals reversed an order that a Workers' Compensation Judge issued which held that the worker's employer and
The Workers' Compensation Handbook For New Mexico informs workers that they are required to sign a medical release that authorizes their physicians to provide claim representatives with written medical reports and other written communication as "a condition of receiving workers' compensation benefits." Workers' Compensation Handbook for New Mexico at 13, Exhibit 1 to Loman's Letter. The Workers' Compensation Handbook, however, also informs workers that New Mexico law restricts communications between their employers, claim representatives, or case managers and their physicians, in the absence of their permission. See Workers' Compensation Handbook at 13. The Workers' Compensation Handbook reflects the state of the law after Church's Fried Chicken No. 1040 v. Hanson and Gomez v. Nielson's Corp.
For an agreement to be binding, it must be accepted. See Medina v. Sunstate Realty, Inc., 119 N.M. 136, 138, 889 P.2d 171, 173 (1995). "Acceptance must be clear, positive, and unambiguous." DeArmond v. Halliburton Energy Servs., Inc., 134 N.M. 630, 635, 81 P.3d 573, 578 (Ct.App.2003). The Supreme Court of New Mexico has stated that "[e]ach party to a contract has a duty to read and familiarize himself with its contents before he signs and delivers it, and if the contract is plain and unequivocal in its terms, each is ordinarily bound thereby." Smith v. Price's Creameries, Div. of Creamland Dairies, Inc., 98 N.M. 541, 545, 650 P.2d 825, 829 (1982). The Court has not been able to find any New Mexico cases that explore, in the workers' compensation context, what is necessary for a worker to validly consent to ex parte contact between the worker's treating physician and the worker's employer, the employer's insurer, or claim representatives. The Court will thus consider other areas of New Mexico law that may be illustrative.
New Mexico courts have considered the validity of mandatory-arbitration provisions contained in agreements. See Fiser v. Dell Computer Corp., 144 N.M. 464, 467, 188 P.3d 1215, 1218 (2008). New Mexico courts have stated that a mandatory-arbitration provision might be unenforceable if the contract which contains the provision is an adhesion contract whose terms are patently unfair to the weaker party. See Cordova v. World Fin. Corp. of N.M., 146 N.M. 256, 265, 208 P.3d 901, 910 (2009). The Supreme Court of New Mexico has stated:
146 N.M. at 265, 208 P.3d at 910 (quotation omitted). "A party may be deemed unable to avoid doing business under the terms of a standardized form contract when the dominant contracting party has monopolized the relevant geographic market or when all the competitors of the dominant party use essentially the same contract terms." Guthmann v. LaVida Llena, 103 N.M. 506, 509, 709 P.2d 675, 678 (1985), overruled on other grounds by Cordova v. World Fin. Corp. of N.M., 146 N.M. 256, 208 P.3d 901. "An absence of opportunity to bargain is relevant only where the weaker party to a standard form contract objects or has reason to object to one or more of the contract terms." Guthmann v. LaVida Llena, 103 N.M. at 509, 709 P.2d at 678.
In the context of a medical malpractice actions, New Mexico courts have stated that the relationship "between a physician and his patient is one of trust and confidence and that the physician has the duty to make a full and frank disclosure to the patient of all pertinent facts relative to his illness and the treatment prescribed or recommended therefor." Woods v. Brumlop, 71 N.M. 221, 227, 377 P.2d 520, 524 (1962). The purpose for this rule is to give the patient a basis upon which to determine whether he or she will consent to the treatment. See id. at 227, 377 P.2d at 524. "Without the disclosure by the doctor it is said that the patient is not informed and that, therefore, any consent obtained is ineffectual." Id. at 227, 377 P.2d at 524.
Rule 16-106 of the New Mexico Rules of Professional Conduct prohibits lawyers from revealing "information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted [under the Rules of Professional Conduct]." Rule 16-106 NMRA. The New Mexico Rules of Professional Conduct define informed consent as "the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." Rule 16-100 NMRA.
Generally, a negligence claim requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based on a standard of reasonable care, and the breach being a cause-in-fact and proximate cause of the plaintiff's damages. See Herrera v. Quality Pontiac, 134 N.M. 43, 47-48, 73 P.3d 181, 185-86 (2003). "In New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person." Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983), overruled on other grounds by Folz v. State, 110 N.M. 457, 460, 797 P.2d 246, 249 (1990). Generally, negligence is a question of fact for the jury. See Schear v. Bd. of County Comm'rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984). "A finding of negligence, however, is dependent upon the existence of a duty on the part of the defendant."
New Mexico courts have stated that foreseeability of a plaintiff alone does not end the inquiry into whether the defendant owed a duty to the plaintiff. See Herrera v. Quality Pontiac, 134 N.M. at 48, 73 P.3d at 186. The New Mexico courts have recognized that, "[u]ltimately, a duty exists only if the obligation of the defendant [is] one to which the law will give recognition and effect." Herrera v. Quality Pontiac, 134 N.M. at 49, 73 P.3d at 187 (internal quotation marks and citation omitted). To determine whether the obligation of the defendant is one to which the law will give recognition and effect, courts consider legal precedent, statutes, and other principles of law. See Herrera v. Quality Pontiac, 134 N.M. at 48, 73 P.3d at 186.
The Supreme Court of New Mexico has rejected a stringent privity test as the touchstone of an attorney's duty to a non-client. See Leyba v. Whitley, 120 N.M. 768, 773, 907 P.2d 172, 177 (1995). The Supreme Court stated that it is the intent of the attorney and the client to benefit a third party that forms the basis of a malpractice action by the third party. See id. at 773, 907 P.2d at 177. "An attorney has no duty however to protect the interests of a non-client adverse party for the obvious reasons that the adverse party is not the intended beneficiary of the attorney's services and that the attorney's undivided loyalty belongs to the client." Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 106 N.M. 757, 761, 750 P.2d 118, 122 (1988). "Thus, an attorney in discharging professional duties on behalf of his client cannot be held liable for negligence toward an adverse party." Id. at 761, 750 P.2d at 122.
In Schmitz v. Smentowski, 109 N.M. 386, 785 P.2d 726 (1990), the Supreme Court of New Mexico recognized a cause of action for prima-facie tort. See Schmitz v. Smentowski, 109 N.M. at 396, 785 P.2d at 736. The underlying theory of the prima-facie tort is that a party who intends to cause injury to another should be liable for that injury, if the conduct is generally culpable and not justifiable under the circumstances. See Schmitz v. Smentowski, 109 N.M. at 394, 785 P.2d at 734.
The elements of a cause of action for prima-facie tort are: (i) commission of an intentional, lawful act; (ii) an intent to injure the plaintiff; (iii) injury to the plaintiff as a result of the intentional act; and (iv) the absence of sufficient justification for the injurious act. See Lexington Ins. Co. v. Rummel, 123 N.M. 774, 777, 945 P.2d 992, 995 (1997); UJI 13-1631 NMRA
In Martinez v. Northern Rio Arriba Electric Co-op., Inc., 132 N.M. 510, 51 P.3d 1164 (Ct.App.2002), the Court of Appeals of New Mexico performed the balancing test and held that the plaintiff did not make an actionable prima-facie tort claim. See id. at 517, 51 P.3d at 1171. The Court of Appeals found that the defendant's conduct had some justification, because: (i) the conduct related to furthering a legitimate business interest; (ii) the means the defendant used were not outside the ambit of legitimate employer behavior; (iii) the evidence did not support the view that the defendant acted maliciously with the intent to cause the injury and without sufficient justification; and (iv) the emotional difficulties the plaintiff experienced because of the defendant's actions did not, on balance, support a claim for prima-facie tort. See id. at 516-17, 51 P.3d at 1170-71. The Court of Appeals stated: "We are not persuaded that any of these allegations, or all of them taken together, rise to the level of both behavior and injury that is envisioned by the theory of prima facie tort." Id. at 517, 51 P.3d at 1171.
The Court has not been able to find a case in which a court held an attorney liable under prima-facie tort for filing a lawsuit when the attorney had probable cause to file the lawsuit. In Guest v. Berardinelli, 145 N.M. 186, 195 P.3d 353 (Ct.App.2008), the Court of Appeals of New Mexico discussed the relationship between the malicious-abuse-of-process tort and the prima-facie tort. The Court of Appeals affirmed the district court's grant of summary judgment on the plaintiff's prima-facie-tort claim. See id. at 188, 195 P.3d at 355. The district court granted summary judgment on the plaintiff's prima-facie-tort claim, because the claim relied
Guest v. Berardinelli, 145 N.M. at 198, 195 P.3d at 365.
New Mexico courts have adopted the approach used in the Restatement (Second) of Torts § 46 (1965) in addressing the intentional-infliction-of-emotional-distress tort. See Trujillo v. Northern Rio Arriba Elec. Co-op, Inc., 131 N.M. 607, 616, 41 P.3d 333, 342 (2001). To prove an intentional-infliction-of-emotional-distress claim, a plaintiff must prove: (i) the conduct in question was extreme and outrageous; (ii) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (iii) the plaintiff's mental distress was extreme or severe; and (iv) there is a causal connection between the defendant's conduct and the claimant's mental distress. See id. at 616, 41 P.3d at 342; Jaynes v. Strong-Thorne Mortuary, Inc., 124 N.M. 613, 618, 954 P.2d 45, 50 (1997) (stating that, under New Mexico law, to establish a claim for intentional infliction of emotional distress, a plaintiff must show that the defendant intentionally or recklessly caused severe emotional distress through extreme or outrage conduct); UJI 13-1628 NMRA (stating that, to recover for intentional infliction of emotional distress, the plaintiff must prove: (i) that the conduct of the defendant was extreme and outrageous under the circumstances; (ii) that the defendant acted intentionally and recklessly; and (iii) as a result of the defendant's conduct, the plaintiff experienced severe emotional distress). Extreme and outrageous conduct is conduct that goes beyond the bounds of common decency, and that is atrocious and intolerable to the ordinary person. See UJI 13-1628 NMRA. The Restatement (Second) of Torts § 46 states:
In New Mexico, "[a] party seeking to recover damages has the burden of proving the existence of injuries and resulting damage with reasonable certainty." Sanchez v. Martinez, 99 N.M. 66, 71-72, 653 P.2d 897, 902-03 (Ct.App.1982). An award of damages is improper if it is predicated "upon conjecture, guess, surmise or speculation." Sanchez v. Martinez, 99 N.M. at 72, 653 P.2d at 902. The underlying theory of a damages award is making the injured party whole. See Abbinett v. Fox, 103 N.M. 80, 86, 703 P.2d 177, 183 (Ct.App.1985); Pub. Serv. Co. of New Mexico v. Jasso, 96 N.M. 800, 802, 635 P.2d 1003, 1005 (Ct.App.1981) ("The theory of damages in New Mexico is to make an injured party whole, not to allow him a profit on damages."). In computing damages, the object is to afford just and reasonable compensation for the injuries the party sustained. See Abbinett v. Fox, 103 N.M. at 86, 703 P.2d at 183.
Punitive damages do not serve to make an injured party whole, and instead serve the purpose of punishing the tortfeasor for wrongdoing and deterring others from the commission of like offenses. See Sanchez v. Clayton, 117 N.M. 761, 766, 877 P.2d 567, 572 (1994). To be liable for punitive damages, a wrongdoer must have a culpable mental state, and the wrongdoer's conduct must rise to a willful, wanton, malicious, reckless, oppressive, or fraudulent level. See Clay v. Ferrellgas, Inc., 118 N.M. 266, 269, 881 P.2d 11, 14 (1994); UJI 13-1827 NMRA. For an award of punitive damages, the defendant must have evinced a conscious and deliberate disregard to the interest of others. See Paiz v. State Farm Fire and Cas. Co., 118 N.M. 203, 211, 880 P.2d 300, 308 (1994). The Uniform Jury Instructions define malicious conduct as the intentional doing of a wrongful act with knowledge that the act was wrongful. See UJI 13-1827 NMRA. The Uniform Jury Instructions define willful conduct as the intentional doing of an act with knowledge that harm may result. See id. A defendant's conduct is wanton if he or she acts with utter indifference to or conscious disregard for a person's rights or safety. See id. New Mexico courts define reckless behavior as the intentional doing of an act with utter indifference to the consequences. Gonzales v. Surgidev Corp., 120 N.M. 133, 145, 899 P.2d 576, 588 (1995).
Defendants Titus and Murphy are entitled to summary judgment dismissing all of Mosley's claims. Because Titus had probable cause to file the lawsuits against Mosley under New Mexico law, the Court finds that Mosley's claim for malicious abuse of process fails as a matter of law. Because Titus had probable cause to file the lawsuits against Mosley, and was thus properly discharging his professional duties to his clients, the Court finds that, under New Mexico law, Titus did not owe a duty of care to Mosley, and thus Mosley's negligence claim fails as a matter of law. The Court also grants summary judgment on Mosley's claim for prima-facie tort. Although the Court is not convinced that Guest v. Berardinelli forecloses, as a matter of law, Mosley's price-facie-tort claim, the Court finds that Mosley's prima-facie-tort claim fails as a matter of law. The Court also grants summary judgment on Mosley's intentional-infliction-of-emotional-distress claim, because the undisputed facts do not establish
In his Complaint, Mosley alleges that the Court has jurisdiction over the case because of "the diversity of the parties and the amount in controversy." Complaint ¶ 6, at 1. Because the Court has diversity jurisdiction over the case, it will apply New Mexico's choice-of-law rules to determine which state's substantive law applies. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. at 496-97, 61 S.Ct. 1020; Pepsi-Cola Bottling Co. v. PepsiCo., Inc., 431 F.3d at 1255. New Mexico courts characterize the claims at issue—malicious abuse of process, negligence, intentional infliction of emotional distress, and prima-facie tort—as tort claims. See DeVaney v. Thriftway Marketing Corp., 124 N.M. at 518, 953 P.2d at 283 (malicious abuse of process); Leyba v. Whitley, 120 N.M. at 772, 907 P.2d at 176 (negligence); Schmitz v. Smentowski, 109 N.M. at 394, 785 P.2d at 734 (prima-facie tort); Castillo v. City of Las Vegas, 145 N.M. 205, 211, 195 P.3d 870, 877 (Ct.App. 2008) (intentional infliction of emotional distress). The Court will apply New Mexico law, because New Mexico is the state where the alleged wrong took place. See Complaint ¶¶ 10-30, at 2-4; Torres v. State, 119 N.M. at 613, 894 P.2d at 390 (stating that, in tort actions, New Mexico courts follow the doctrine of lex loci delicti commissi and apply the law of the place where the wrong took place). Here, all the alleged elements took place in Farmington. See Complaint ¶¶ 7-30, at 2-4.
The Court will grant summary judgement on Mosley's claim for malicious abuse of process, because it finds that, at the time Titus filed the lawsuits, he had a reasonable belief based on the facts and law known to him that he could enforce the rights of his clients through the courts. In support of their Motion for Summary Judgment, the Defendants argue that Mosley's malicious-abuse-of-process claim fails as a matter of law, because Titus had probable cause to file the lawsuits and because his primary purpose in filing the lawsuits was to access the remedies of the judicial system on behalf of his clients. See Memorandum at 12. The Defendants argue that Titus had probable cause to file the lawsuits, because he believed that Mosley's ex parte contacts violated his clients' rights under New Mexico law. See Memorandum at 11. The Defendants also contend that Titus did not have an improper motive in filing the lawsuits and that, even if he had a malicious motive in filing the suits, "any motive of driving Mosley out of town was secondary to the primary, proper motive of obtaining legal redress for his clients for Mosley's improper ex parte contacts." Memorandum at 11-12.
Mosley contends that his malicious-abuse-of-process claim should survive summary judgment, because Titus filed the claims without probable cause and with the primary purpose of harassing Mosley. See Response at 6-7. Mosley contends that Titus did not have probable cause to file the lawsuits because Church's Fried Chicken No. 1040 v. Hanson prohibits only oral communications with workers' employers
The Court finds that Mosley has not established genuine issues of material fact, and that Mosley's malicious-abuse-of-process claims fails as a matter of law. The elements of a malicious abuse of process action are: (i) the use of process in a judicial proceeding that would be improper in the regular prosecution or defense of a claim or charge; (ii) a primary motive in the use of process to accomplish an illegitimate end; and (iii) damages. See Durham v. Guest, 145 N.M. at 701, 204 P.3d at 26. An improper use of process may be shown by: (i) filing a complaint without probable cause; or (ii) an irregularity or impropriety suggesting extortion, delay or harassment, or other conduct formerly actionable under the tort of abuse of process. See Durham v. Guest, 145 N.M. at 701, 204 P.3d at 26.
The parties disagree whether Titus had probable cause to file the lawsuits against Mosley. Probable cause in the malicious-abuse-of-process context means "a reasonable belief, founded on known facts established after a reasonable pre-filing investigation that a claim can be established to the satisfaction of a court or jury." Fleetwood Retail Corp. of N.M. v. LeDoux, 142 N.M. at 154, 164 P.3d at 36. The Court concludes that Titus performed a reasonable pre-filing inquiry. See Guest v. Berardinelli, 145 N.M. at 190, 195 P.3d at 357. The undisputed facts establish that, before filing suit, Titus learned that Mosley was engaging in ex parte contacts with the employers of Titus' clients. Titus knew that, when patients arrived at Mesa Occupational and Sports Medicine, the receptionist gave them a packet of paperwork, which included a release that, when signed, purported to permit Mosley to contact his patient's employers. Mosley would discuss the forms with patients only if the patients had a question about one of the forms. Titus was also aware that Mosley's ex parte contacts resulted in adverse employment consequences for Titus' clients. Upon learning this information, Titus advised Mosley he believed this contact was improper and asked him to cease contacting the employers of Titus' clients. Mosley continued engaging in ex parte contact after Titus' letters. The Court finds that, by obtaining this information and analyzing whether Mosley was acting properly, Titus conducted a sufficient pre-filing inquiry. See Guest v. Berardinelli, 145 N.M. at 190, 195 P.3d at 357 (finding that the defendant conducted a sufficient pre-filing investigation when the defendant obtained factual background—including correspondence, medical records, depositions, written statements—and reviewed the materials and information, and analyzed the
The Court finds that the knowledge that Titus obtained in his pre-filing inquiry supported a reasonable belief that he had grounds to bring the claims against Mosley. Mosley contends that, because Church's Fried Chicken No. 1040 v. Hanson and Gomez v. Nielson's Corp. prohibit only ex parte contact absent the worker's consent, and because he gave patients a release to sign, Titus could not have a reasonable belief that he had grounds to bring the claims. Titus knew, however, that Mosley was engaging in ex parte contacts with several of his clients' employers and the employer's insurers, and that the clients were suffering adverse consequences as a result of these contacts. Titus also knew that Mosley provided a release to his patients, which, if signed, allowed Mosley to discuss the worker's case with his employer or insurer. The Court nevertheless finds that Titus could have had a reasonable belief that Church's Fried Chicken No. 1040 v. Hanson and Gomez v. Nielson's Corp. provided his clients with a right that protected against disclosure of confidential information they entrusted to Mosley. The two opinions contain language stating that ex parte discussions of a patient's medical confidences should be prohibited, because public policy strongly favors confidentiality of the information to preserve the physician-patient relationship. See Church's Fried Chicken No. 1040 v. Hanson, 114 N.M. at 735, 845 P.2d at 829 ("[P]ublic policy strongly favors the confidentiality of the physician-patient relationship and thereby prohibits, because of the threat posed to the sanctity of that relationship, extra-judicial ex parte discussion of a patient's medical confidences.") (citation omitted); Gomez v. Nielson's Corp., 119 N.M. at 675, 894 P.2d at 1031 (stating that employers and insurers "may not engage in ex parte contacts with [the] worker's treating physician"). Upon studying the language in these opinions, Titus could have reasonably believed that New Mexico case law provided workers with a judicially enforceable right protecting against disclosure of information they entrusted to their treating physicians. See Beals v. Ares, 25 N.M. 459, 466, 185 P. 780, 787 (1919) ("All students of the law are familiar with the source of the common law, which likewise gives rights and designates wrongs of every description and provides remedies for public and private redress. Under either system, . . . for every right there was a remedy.") (citation omitted). See also 1 Am. Jur. 2D Actions § 35 (2005) ("It is a principle of the common law that wherever the law gives a right . . ., it also gives a remedy.").
The Court finds that an attorney could have had a reasonable belief that the workers did not give valid consent to the ex parte contacts. Mosley provided the release in a packet of papers, and discussed the release with the workers only if asked. An attorney could have had a reasonable belief that Mosley did not obtain valid consent by providing the release to the workers in this manner, based on New Mexico law in areas such as mandatory arbitration provisions, medical malpractice, and client-lawyer relationships. See Cordova v. World Fin. Corp. of N.M., 146 N.M. at 265, 208 P.3d at 910 (stating that a mandatory arbitration provision might be unenforceable if the contract that contains the arbitration provision is an adhesion contract whose terms are patently unfair to the weaker party); Woods v. Brumlop, 71 N.M. at 227, 377 P.2d at 524 (stating that the relationship "between a physician and his patient is one of trust and confidence and that the physician has the duty to make a full and frank disclosure to the patient of all pertinent facts relative to his illness and the treatment prescribed or
There is no evidence that Mosley highlighted his release form in any way. He did not flag it for any more attention than any other form in the stack. See Mosley Depo. at 67:9-11 ("[Patients] would see the receptionist first. . . . She would give them a packet of paperwork to fill out, one of the pages being [the release]."). There is no indication that the release itself highlighted the waiver; nothing is in bold, italics, or large print to jump out at the patient. See Authority to Release Medical Reports and Information at 1. Titus could have reasonably assumed that a patient would sign the entire stack without much thought that the release was of any particular importance. Moreover, there was no effort by Mosley or his staff to talk to the patient about the release before its execution. The burden was on the patient to leave his or her chair in the waiting room, and ask the receptionist or nurse about the release before Mosley or his staff talked to the patient about the release. See Mosley Depo. at 39:8-9 ("If somebody had a question [about the release], we would read it to them. . . ."). Given the trend of New Mexico law in certain areas of consumer rights, arbitration, informed consent in the medical context, and informed consent in other areas including other professionals, an objectively reasonable attorney could have concluded that Mosley's handling of the release did not rise to the level of informed consent in this developing area of the law. Other than a relatively old Supreme Court case and two Court of Appeals cases, there is little in this area of law. A reasonably objective attorney would naturally try to extrapolate from other areas; Mosley might use the more rigid and demanding area of contract law, while Titus might look at the developing New Mexico law on arbitration and informed consent involving professionals and their clients. The Court finds that, based on New Mexico law, an attorney could reasonably believe that the workers did not provide valid consent to Mosley's ex parte contacts. Although New Mexico contract law states that "[e]ach party to a contract has a duty to read and familiarize himself with its contents before he signs and delivers it, and if the contract is plain and unequivocal in its terms, each is ordinarily bound thereby," Smith v. Price's Creameries, Div. of Creamland Dairies, Inc., 98 N.M. at 545, 650 P.2d at 829, it is possible that a New Mexico court would not apply this principle in the context of a worker's consent to his physician's ex parte communications with his or her employer, or with his or her employer's insurer.
The Court finds that, based on New Mexico law in this area and in other areas, Titus had a reasonable belief that his clients had a right protecting against disclosure of information his clients entrusted to Mosley, and that their consent to Mosley's ex parte communications was not valid. Although the New Mexico courts have not yet said Titus had a cause of action through which he could enforce the rights that he believed existed, because the probable cause standard for malicious abuse of process does not require certainty, Titus had reasonable latitude in asserting this novel claim—meant to protect his clients' rights. See Guest v. Berardinelli, 145 N.M. at 190, 195 P.3d at 357 (stating that probable cause does not require certainty, because probable cause is "a standard which we understand to grant attorneys reasonable latitude in asserting novel claims under New Mexico law") (citation omitted). Titus knew his clients had a right. He had a reasonable basis to believe the release was not adequate consent. It was not a great leap for him to think that he could enforce that right in court. New Mexico courts eschew the doctrine of
Titus pursued a potentially unsuccessful theory in fully representing his clients, a freedom that New Mexico courts have emphasized as important. See Guest v. Berardinelli, 145 N.M. at 192, 195 P.3d at 359 ("[W]e have relied on the notions that attorneys have some measure of freedom in representing their clients. . . . The vitality of our common law system is dependent upon the freedom of attorneys to pursue novel, although potentially unsuccessful, legal theories.") (citations omitted). The Court thus finds that it "would be inconsistent with the attorneys' professional duty to zealously advocate for their clients" to hold Titus liable for malicious abuse of process, when he had a reasonable belief based on the facts and law known to him that he could enforce the rights of his clients through the courts. See id. at 192, 195 P.3d at 359. That Titus dismissed his claims as soon as Mosley left Farmington, and took no meaningful action to prosecute the claims once they were filed does not suggest that he did not have probable cause to file the lawsuits, because probable cause is judged on the facts as they appeared at the time the lawsuit was filed. See Weststar Mortg. Corp. v. Jackson, 133 N.M. at 122, 61 P.3d at 831 ("Probable cause . . . is to be judged by facts as they appeared at the time, not by later-discovered facts.") (citing Restatement (Second) of Torts § 662 cmt. e (stating that the initiation of a criminal prosecution must be based on probable cause determined as of the time the action was filed)).
Titus' claim for malicious abuse of process fails as a matter of law, because Titus has failed to establish one of the necessary elements of a malicious-abuse-of-process claim—the element of improper use of process. See Durham v. Guest, 145 N.M. at 701, 204 P.3d at 26 (stating that the elements of a malicious-abuse-of-process action are: (i) the use of process in a judicial proceedings that would be improper in the regular prosecution or defense of a claim or charge; (ii) a primary motive in the use of process to accomplish an illegitimate end; and (iii) damages). The Court will therefore grant summary judgment on Mosley's malicious-abuse-of-process claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (stating that, to avoid summary judgment, there must be sufficient evidence on which the fact-finder
The Court will grant summary judgement on Mosley's negligence claim, because it finds that Titus did not owe a duty to Mosley. In support of their Motion for Summary Judgment, the Defendants argue that the Court should grant summary judgment as a matter of law on Mosley's claim of professional negligence. See Memorandum at 12. The Defendants assert that there is no evidence of a breach of duty, because Titus informed his clients as to the purpose of the lawsuits against Mosley, and that the clients consented to the filing and prosecution of the lawsuits. See Memorandum at 12-13. The Defendants assert that, even if there was evidence of a breach of duty by Titus, Mosley has no standing to assert any claim for the alleged breach of duty, because, under New Mexico law, Titus did not owe a duty to Mosley. See Memorandum at 13. The Defendants assert that an attorney has no duty to protect the interests of a non-client adverse party. See Memorandum at 13.
Mosley contends that the general rule that a lawyer does not owe a duty towards an adverse party is qualified by the assumption that the attorney is acting legally and ethically. See Response at 9. Mosley contends that, because the issue whether Titus acted within the rules of law and ethics is before the Court, if Titus exceeded the bounds of the rules of law and ethics by filing frivolous complaints, he may be held liable for negligence, as Mosley would be a foreseeable plaintiff. See Response at 9-10.
The Court will grant summary judgment on Mosley's negligence claim, because it finds that Titus did not owe a duty of care to Mosley. A finding of negligence is dependent upon the existence of a duty on the part of the defendant. See Schear v. Bd. of County Comm'rs, 101 N.M. at 672, 687 P.2d at 729. In the Court's analysis of Mosley's malicious-abuse-of-process claim, the Court found that Titus had probable cause to file the lawsuits against Mosley. Because Titus had probable cause to file the lawsuits against Mosley, the Court finds that he acted within the bounds of the rules of law and ethics in filing the lawsuits against Mosley. The lawsuits were not frivolous, because Titus had a reasonable belief that his clients had a right, even if it was not clear that the law provided a remedy. See Rule 16-301 ("A lawyer shall not bring or defend a proceeding. . . unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."); Guest v. Berardinelli, 145 N.M. at 190, 195 P.3d at 357 (stating that probable cause does not require certainty, "a standard which we understand to grant attorneys reasonable latitude in asserting novel claims under New Mexico law"). Titus was discharging his "professional duty to zealously advocate" for his clients, see Guest v. Berardinelli, 145 N.M. at 192, 195 P.3d at 359, and he "cannot be held liable for negligence toward an adverse party" for discharging this professional duty, see Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 106 N.M. at 761, 750 P.2d at 122. Because Mosley was the adverse party in the litigation that Titus filed, Titus had no duty to protect Mosley's interests. See id. at 761, 750 P.2d at 122 ("As a matter of public policy in order to maintain and enforce the fidelity and duty of the
The Court will grant summary judgment on Mosley's claim for prima-facie tort. Although the Court is not convinced that Guest v. Berardinelli forecloses, as a matter of law, Mosley's claim for prima-facie tort, the Court finds that Mosley's prima-facie-tort claim fails as a matter of law. The Defendants contend that, under Guest v. Berardinelli, because the same facts form the basis of Mosley's malicious-abuse-of-process claim and prima-facie-tort claim, and because Mosley's malicious-abuse-of-process claim fails as a matter of law, summary judgment should also be granted on Mosley's prima-facie-tort claim. See Memorandum at 17. The Defendants further argue that the undisputed material facts establish that Titus acted justifiably for the benefit of his clients, because he had probable cause to file the lawsuits, and that his actions taken in connection with the lawsuits are privileged as a matter of law. See Memorandum at 18-19. Mosley contends that there is a genuine issue of material fact whether Titus filed the claims without sufficient justification, because he knew that Church's Fried Chicken No. 1040 v. Hanson only prohibited ex parte contact when the worker did not give the patient consent to do so. See Response at 10. Mosley concedes that the facts supporting this claim are the same facts that underlie his malicious-abuse-of-process claim, but asserts that, "if the Court were to find that one of the elements of the [malicious abuse of process] claim were not met, it could still find that a prima facie tort occurred." Response at 10.
Although Mosley concedes that his malicious-abuse-of-process claim and prima-facie-tort claims rely on the same set of facts, see Response at 10, the Court is not convinced that its grant of summary judgment on Mosley's malicious-abuse-of-process claim automatically forecloses Mosley's prima-facie-tort claim. The Defendants rely on Guest v. Berardinelli to argue that the Court should grant summary judgment on Mosley's prima-facie-tort claim, because his prima-facie-tort claim relies on the same set of facts as his malicious-abuse-of-process claim, and because Mosley did not establish a genuine issue of material fact to survive summary judgment on his malicious-abuse-of-process claim.
There is another issue related to reading Guest v. Berardinelli as broadly as Titus suggests. The opinion in Guest v. Berardinelli is from the Court of Appeals, and the Court's task, as a federal district court sitting in this district, is to predict what the Supreme Court of New Mexico would do if the case were presented to it. See Wade v. EMCASCO Ins. Co., 483 F.3d 657, 666 (10th Cir.2007) ("Ultimately, however, the Court's task is to predict what the state supreme court would do.") (citations omitted). While the Court certainly may and will consider the Court of Appeal's decision in making its determination, the Court is not bound by the Court of Appeal's decision in the same way that it would be bound by a Supreme Court decision. See Wade v. EMCASCO Ins. Co., 483 F.3d at 665-66 ("Where no controlling state decision exists, the federal court must attempt to predict what the state's highest court would do. In doing so, it may seek guidance from decisions rendered by lower courts in the relevant state.") (citations omitted). Nevertheless, the New Mexico Supreme Court denied a writ of certiorari in Guest v. Berardinelli. Moreover, even if the Supreme Court of New Mexico did not adopt as broad a reading of Guest v. Berardinelli as Titus has, the Court is convinced that the Supreme Court would have reached the result that the Court of Appeals in Guest v. Berardinelli reached, and would approve of this Court's analysis of the law.
The Court is not convinced that Titus' actions rise to the level of behavior and injury that is envisioned by the theory of a prima-facie-tort claim. The elements of a cause of action for prima-facie tort are: (i) commission of an intentional, lawful act; (ii) an intent to injure the plaintiff; (iii)
Because there is evidence in the record that Titus filed the lawsuits with the intent to injure Mosley, the Court finds that it is necessary to proceed with the balancing test. See Kitchell v. Pub. Serv. Co. of New Mexico, 126 N.M. 525, 529, 972 P.2d 344, 348 (1998) ("If there is no evidence of an intent to injure, there is no need to proceed with the balancing test.") (internal quotation marks and citation omitted). After a careful consideration of all the factors, however, the Court determines that there is not sufficient evidence on which the fact-finder could reasonably find for Mosley on his prima-facie-tort claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505. The undisputed facts establish that the lawsuits were not a factor in the negotiations or purchase price that Reliance paid for Mosley's practice, and that Mosley did not lose any patients as a result of the lawsuits, although he did lose some patients to competition from other medical providers. Based on the lack of evidence showing physical, concrete harm, the nature and seriousness of the harm to Mosley does not appear to be of such a nature that legal redress through a prima-facie-tort claim is appropriate.
The factor regarding the value of the defendant's conduct, to the defendant or to society, primarily concerns determining the existence of justification for the defendant's acts. See Beavers v. Johnson Controls World Servs., Inc., 120 N.M. at 350, 901 P.2d at 768 ("[The factor of the nature and significance of the interests promoted by the actor's conduct] is of primary concern in determining the existence of justification for [the defendant's] acts."). The undisputed facts which establish that Titus had probable cause to file the lawsuits also support a prima-facie showing that Titus' actions were justified, see Guest v. Berardinelli, 145 N.M. at 198, 195 P.3d at 365 ("The undisputed facts in our discussion of MAP above support a prima facie showing that Defendants' actions were justified because Defendants had probable cause to file suit and did not engage in any overt misuse of process."), and Mosley has not directed the Court to any additional facts which establish that Titus did not have sufficient justification to file the lawsuits. The Court also finds that Titus did not use means outside the ambit of legitimate behavior. Titus had probable cause to file the lawsuits, filing lawsuits is not an unfair means, and Mosley has pointed to no evidence that establishes that Titus used improper means in the litigation.
Although there is evidence in the record that Titus filed the lawsuits with an improper motive—specifically, running Mosley out of Farmington—the Court believes that the evidence in the record which indicates
Because the Court finds that Mosley has presented a mere "scintilla" of evidence— not sufficient evidence on which the fact-finder could reasonably find for him—the Court will grant summary judgment on Mosley's prima-facie-tort claim. Vitkus v. Beatrice Co., 11 F.3d at 1539 (stating a mere "scintilla" of evidence will not avoid summary judgment). See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (stating that, to avoid summary judgment, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party); Portales Nat. Bank v. Ribble, 134 N.M. at 240, 75 P.3d at 840 ("The trial court must initially balance these factors and, if it finds that a jury could reasonably find in the plaintiff's favor, the trial court must submit the claim to the jury for its own balancing of the factors."). Prima-facie torts are meant to provide a remedy for acts committed with an intent to injure the plaintiff and without justification, and the Court finds that, because Titus had sufficient justification to file the lawsuits and because the justifications outweigh his alleged improper motives, Titus' actions do not rise to the level of behavior and injury that is envisioned by the theory of a prima-facie-tort claim. To allow a prima-facie tort in this situation could contravene society's important interest in having lawyers go about the normal task of shaping the law in novel, developing areas without feeling the chill that allowing prima-facie torts may bring. No sound reasons suggest allowing the tort for otherwise legal conduct.
The Court will grant summary judgment on Mosley's claim for intentional
The Court grants summary judgment on Mosley's claim for intentional infliction of emotional distress because the undisputed facts fail to show extreme and outrageous conduct. To prove an intentional-infliction-of-emotional-distress claim, a plaintiff must prove: (i) the conduct in question was extreme and outrageous; (ii) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (iii) the plaintiff's mental distress was extreme or severe; and (iv) there is a causal connection between the defendant's conduct and the claimant's mental distress. See Trujillo v. Northern Rio Arriba Elec. Co-op, Inc., 131 N.M. at 616, 41 P.3d at 342. Extreme and outrageous conduct is conduct which goes beyond the bounds of common decency, and is atrocious and intolerable to the ordinary person. See UJI 13-1628 NMRA. Although New Mexico courts have not addressed whether an attorney's act of filing a lawsuit can constitute extreme and outrageous conduct, the Court of Appeals of North Carolina has stated that an attorney's act of "sending a letter of demand to an adverse party in anticipation of litigation together with a proposed complaint setting forth the basis of its claim may not be reasonably regarded as extreme and outrageous conduct sufficient to support a claim for intentional infliction of mental distress." Harris v. NCNB Nat. Bank of North Carolina, 85 N.C. App. 669, 355 S.E.2d 838, 844 (1987). The Court finds that an attorney's act of filing a lawsuit with probable cause is analogous to an attorney's act of sending a demand letter that setting forth the basis of its claim. The Court finds that neither act—without more—rises to the level of being beyond the bounds of common decency.
New Mexico courts have stated that common occurrences-without more-rarely rise to the "level of being beyond all possible bounds of decency and utterly intolerable in a civilized community." Trujillo v. Northern Rio Arriba Elec. Co-op, Inc., 131 N.M. at 617, 41 P.3d at 343 ("Being fired is a common occurrence that rarely rises to the level of being beyond all possible bounds of decency and utterly intolerable in a civilized community.") (internal quotation marks omitted). Filing a lawsuit, like firing an employee, is a common occurrence that—by itself—does not rise to the level of being beyond all possible bounds of decency and utterly intolerable in a civilized community. On the contrary, New Mexico law encourages attorneys to bring novel claims by protecting them against tort claims—such as malicious abuse of process—when they have probable cause to file the suit. See Guest v. Berardinelli, 145 N.M. at 190, 195 P.3d at 357 ("[F]iling of a proper complaint with probable cause, and without any overt misuse of process, will not subject a litigant to liability for [malicious abuse of process], even if it is the result of a malicious motive.") (citation omitted). Because the undisputed facts establish that Titus had probable cause to file the lawsuits, the Court is not convinced that Titus' act of filing the lawsuits—with-out more—rises to the level of extreme and outrageous conduct. The Court thus
The Court will grant summary judgment on Mosley's damages claims. The Defendants contend that the Court should grant summary judgment on Mosley's claims that Titus' filing of the lawsuits against Mosley resulted in the loss of value of Mosley's business, because the undisputed testimony is that Titus' actions did not impact the valuation or sale of Mosley's business. See Memorandum at 20-21. The Defendants also contend that the Court should grant summary judgment on Mosley's claims for punitive damages, because the evidence fails to establish culpability on Titus' part that can form a basis for a punitive damages award. See Memorandum at 21. Mosley contends that, although his practice was worth more than for what he sold it, he sold it so that he could get away from Farmington. See Response at 11-12. Mosley also contends he is entitled to punitive damages if any of his three intentional tort claims are successful. See Response at 12. Mosley's allegations regarding the loss of value of his practice are contained in Count II of his Complaint, which alleges claims for negligence and violations of the New Mexico Antitrust Act. See Complaint ¶¶ 44, 48-49, at 5, 6. Because Mosley conceded that summary judgment should be granted on his claim under the New Mexico Antitrust Act, and because the Court has granted summary judgment on Mosley's negligence claim, the Court will grant summary judgment on Mosley's claims for damages based on the loss of value of his practice. The Court will also grant summary judgment on Mosley's claim for punitive damages, because it has dismissed Mosley's claims for malicious abuse of process, prima-facie tort, and intentional infliction of emotional distress.
D.N.M. LR-Civ. 56.1(b) (emphasis added).
Response at 2. Mosley does not dispute the Defendants' assertion that Titus advised Mosley that ex parte contact with employers was improper; he solely contends that Titus misinterpreted the law. The Court accepts the Defendants' assertion that Titus advised Mosley that his ex parte contacts were improper as true, because Mosley has failed to specifically controvert the Defendants' statement of fact with a denial or counter-statement that meets the substance of the Defendants' statement; instead he has "intermixed [his] response[]... with legal argument[]." Mitchael v. Intracorp, Inc., 179 F.3d 847, 856 (10th Cir.1999). Furthermore, Mosley's response that, when the letters were sent, he had not yet treated most of the plaintiffs on behalf of whom Titus would sue attacks only the Defendants' semantics, without disputing the substance of the assertion. Mosley therefore has failed to specifically controvert the evidence that the Defendants set forth. Accordingly, the Court treats this fact as admitted. See D.N.M.LR-Civ.56.1(b).
The Defendants have cited some evidence that cannot be used in support their summary judgment motion—Thomason alleged that a supervisor at her former job told her that Mosley told the supervisor that Thomason was 100 percent able to return to work even though Thomason was still attending therapy. See Thomason Depo. at 9:21-10:17. Because this statement is apparently being offered for the truth of the matter asserted, and because this former supervisor is not a party, this statement is not admissible in support of a summary judgment motion, because it is hearsay evidence and there is not an apparent exception. See Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555 (10th Cir.1995) ("Today, we align ourselves with this line of authority and hold that Rule 56 precludes the use of inadmissible hearsay testimony in depositions submitted in support of, or in opposition to, summary judgment."). Although Thomason's testimony cannot be used to support the Defendants' assertion that Mosley's ex parte contacts resulted in adverse employment consequences for Titus' clients, the Defendants have directed the Court's attention to other evidence in the record that supports this assertion. Because Mosley has failed to direct the Court's attention to evidence that controverts the evidence that the Defendants put forth, the Court will treat this fact as admitted. See D.N.M.LR-Civ.56.1(b).
