EBEL, Circuit Judge.
In this litigation, Plaintiffs challenge New Mexico's statutory scheme regulating title insurance, arguing it is contrary to state law. Here, Plaintiffs appeal the district court's decision dismissing their claims against several title insurance companies that have complied with this New Mexico law. Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.
In New Mexico, "the business of title insurance [is] totally regulated by the state to provide for the protection of consumers and purchasers of title insurance policies and the financial stability of the title insurance industry." N.M. Stat. Ann. § 59A-30-2(B) (2004) (amended 2009).
The Act requires the state superintendent of insurance, after conducting a public hearing at least once each year, to establish premium rates insurers can charge for title insurance. See id. §§ 59A-30-4, 59A-30-6, 59A-30-8.
New Mexico's pervasive regulation of title insurance differs significantly from its regulation of other types of insurance under its general insurance code. "[I]n general," New Mexico's Insurance Code "permit[s] and encourage[s] ... independent action by and reasonable price competition among insurers" "as an effective way to produce rates" that are not "excessive, inadequate or unfairly discriminatory." N.M. Stat. § 59A-17-3(A)(1)-(2). Regarding premium rates for other types of insurance, the Insurance Code provides that "[r]ates shall not be excessive, inadequate or unfairly discriminatory, nor shall an insurer charge any rate which if continued will have or tend to have the effect of destroying competition or creating a monopoly." Id. § 59A-17-6(A) (2004). Generally, the Insurance Code requires insurers to file their premium rates with the superintendent of insurance, and then to abide by those filed rates, which the superintendent must approve. See id. §§ 59A-17-9, 59A-17-12-13.
Importantly, however, the New Mexico Insurance Code expressly does not apply to title insurers, except to the extent that the Title Insurance Act provides otherwise. See id. § 59A-1-15(H) ("No provision of the Insurance Code shall apply to... title insurers and title insurance agents, as identified in Chapter 59A, Article 30 NMSA 1978, except as stated in that article."); see also id. § 59A-1-17 ("Provisions of the Insurance Code relative to a particular kind of insurance or type of
This federal litigation represents the consolidation of two putative class actions begun in New Mexico state court, Coll v. First American Title Insurance Co., and Murphy v. Fidelity National Title Insurance Co. Plaintiffs are New Mexico citizens who previously purchased title insurance in New Mexico. They seek to represent a class of thousands of similarly situated purchasers of title insurance covering property located in New Mexico. Plaintiffs sued two groups of defendants: 1) several title insurance companies ("Insurer Defendants")
Plaintiffs' complaints alleged generally that the Title Insurance Act violates numerous New Mexico constitutional and statutory provisions precluding price fixing and the creation of monopolies, and that the Insurer Defendants conspired with the insurance superintendent to establish a premium rate that is unreasonably high. Based upon these theories, Plaintiffs sought declaratory and injunctive relief; compensatory, punitive and statutory damages; the Insurer Defendants' disgorgement of their excessive profits; and attorneys' fees and costs.
Defendants moved to dismiss Plaintiffs' claims. The district court did so in part, dismissing with prejudice Plaintiffs' claims against the Insurer Defendants under Fed. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. Then, without addressing their merits, the district court remanded Plaintiffs' claims against the State Defendants to state court. After these decisions, Plaintiffs
In this appeal, Plaintiffs challenge both the district court's decision to dismiss their claims against the Insurer Defendants and the district court's denial of leave to amend the complaints. This Court has jurisdiction to review the former, but not the latter.
On April 21, 2008, the district court dismissed Plaintiffs' claims against the Insurer Defendants with prejudice and remanded to state court all of Plaintiffs' remaining claims asserted against the State Defendants. This decision was final and appealable under 28 U.S.C. § 1291 because "it end[ed] the litigation on the merits and [left] nothing for the court to do but execute the judgment." N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 697 (10th Cir.2009); see also Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1209 n. 1 (10th Cir.2000) (holding district court's decision dismissing federal claims was final, notwithstanding that court remanded remaining state-law claims to state court).
The district court, however, did not at that time enter a separate judgment under Fed.R.Civ.P. 58. Before the district court did so several months later, Plaintiffs, on May 20, both moved to amend their complaints and filed a notice of appeal from the April 21, 2008, order.
A party can file a motion to amend the complaint after the district court grants a motion to dismiss. See Triplett v. LeFlore County, 712 F.2d 444, 445-47 (10th Cir. 1983) (reversing district court's implicit denial of motion to amend raised in post-dismissal motion seeking reconsideration); 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §§ 1488-1489 (2010). When a party does so, this court treats such a motion as one made under either Fed. R.Civ.P. 59 or 60, depending upon when the motion is filed. See Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1238 (10th Cir.2006) (treating motion to amend, filed after the time to file a Rule 59 motion, as a Rule 60 motion); Trotter v. Regents of Univ. of N.M., 219 F.3d 1179, 1183 (10th Cir.2000) (treating motion to amend filed within the time to file a Rule 59 motion as such a motion). A timely filed Rule 59 motion (or a Rule 60 motion filed within twenty-eight days of the entry of judgment) will toll the time to file a notice of appeal. See Fed. R.App. P. 4(a)(4)(A)(v)-(vi).
Thus, Plaintiffs' May 20 notice of appeal was premature for two reasons: because it was filed prior to the entry of a Rule 58 judgment and because Plaintiffs had filed a timely tolling motion seeking to amend their complaints. That premature notice of appeal ripened after the district court entered the Rule 58 judgment, on June 25, 2008,
After the May 20 notice of appeal ripened, it was sufficient to invoke this court's jurisdiction to review the district court's April 21 order dismissing Plaintiffs' claims against the Insurer Defendants. But, in order to perfect an appeal from the district court's later (June 27) decision denying Plaintiffs' post-dismissal motion to amend, Plaintiffs had to file a second notice of appeal:
Fed. R.App. P. 4(a)(4)(B)(ii); see also Ysais v. Richardson, 603 F.3d 1175, 1179 (10th Cir.2010), cert. denied, ___ U.S. ___, 131 S.Ct. 163, 178 L.Ed.2d 97 (2010); Laurino v. Tate, 220 F.3d 1213, 1219 (10th Cir.2000).
Plaintiffs did file a second notice of appeal, on July 29, 2008. But, for several reasons, that second notice of appeal was not effective to give us jurisdiction to review the denial of Plaintiffs' motion to amend. First, the second notice of appeal was untimely when measured from the district court's decision denying the motion to amend, entered on June 27, 2008. Plaintiffs did not file their second notice of appeal until thirty-one days later, on July 29. That notice of appeal, therefore, was one day late. See Fed. R.App. P. 4(a)(1)(A).
Second, the July 29 notice of appeal did not comply with Fed. R.App. P. 3(c)(1)(B), which requires that the notice of appeal "designate the judgment, order, or part thereof being appealed." The July 29 notice of appeal was expressly taken from the district court's entry of a second Rule 58 judgment, which occurred on June 30, 2008. But this second judgment was identical to the first judgment the court entered five days earlier and, thus, it explicitly pertained only to the original April 21 order dismissing Plaintiffs' claims against the Insurer Defendants. The July 29 notice of appeal did not mention the district court's decision denying Plaintiffs' motion to amend the complaints. Further, because the June 30 judgment was identical to the judgment the court first entered June 25, that second judgment did not restart the time to file a notice of appeal from the denial of Plaintiffs' motion to amend. See Fed. Trade Comm'n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12, 73 S.Ct. 245, 97 L.Ed. 245 (1952) ("[T]he mere fact that a judgment previously entered has been reentered... in an immaterial way does not toll the time within which review must be sought."); Bridge v. U.S. Parole Comm'n, 981 F.2d 97, 102 (3d Cir.1992) ("When a court reenters a judgment without altering the substantive rights of the litigants, the entry of the second judgment does not affect the time within which a party must appeal the decisions made in the first order."); Offshore Prod. Contractors, Inc. v. Republic Underwriters Ins. Co., 910 F.2d 224, 229 (5th Cir.1990) (applying Minneapolis-Honeywell), superseded by rule on other grounds recognized by Catz v. Chalker, 566 F.3d 839, 841 n. 1 (9th Cir.2009).
This court reviews de novo the district court's Fed.R.Civ.P. 12(b)(6) dismissal, accepting as true all of the well-pled factual allegations and asking "whether it is plausible that the plaintiff[s] [are] entitled to relief." Bixler v. Foster, 596 F.3d 751, 756 (10th Cir.2010). Because the claims at issue here are based solely on New Mexico law, this "court's task is ... to ascertain and apply the state['s] law." Wade v. EMCASCO Ins. Co., 483 F.3d 657, 665 (10th Cir.2007) (internal quotation marks omitted). In doing so, we
Id. at 665-66 (internal quotation marks and citations omitted).
Plaintiffs contend that the premium rate that the state superintendent of insurance established for title insurance in New Mexico is excessive and unreasonably high.
New Mexico's "filed rate" doctrine provides that "any filed rate—that is, one approved by the governing regulatory agency—[is] per se reasonable and unassailable in judicial proceedings brought by ratepayers." Valdez v. State, 132 N.M. 667,
This doctrine precluded Plaintiffs' claims against the Insurer Defendants for damages relief, including claims seeking restitution, recovery for unjust enrichment and disgorgement of the excessive amounts these Insurer Defendants charged for title insurance premiums sold at the rate set by the superintendent of insurance. See id. at 74-75 (holding "filed rate" doctrine precluded claims for damages challenging rates for collect telephone calls made from state prisons, which were set by the PRC and were higher than those charged to the public generally).
Plaintiffs further alleged that the Insurer Defendants conspired with and bribed Superintendent of Insurance Eric Serna to set excessive rates for title insurance. More specifically, Plaintiffs alleged in one of their complaints:
(Aplt.App. at 529-30, ¶¶ 72-76.)
Because this matter comes to us on the district court's ruling on Defendants' motions to dismiss the complaints, we must accept these allegations as true. See Bixler, 596 F.3d at 756. Even so, the "filed rate" doctrine still barred Plaintiffs' claims against the Insurer Defendants for damages. Although New Mexico courts have not yet addressed the question, courts in numerous other jurisdictions have reached the same conclusion in similar or at least analogous situations. See H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 486, 488-92 (8th Cir.1992) (holding the "filed rate" doctrine barred claims brought by purchasers of telephone services alleging Northwestern Bell had bribed the Minnesota Public Utilities Commission ("PUC") in order to influence the telephone rates the PUC set in Minnesota).
Although the New Mexico Supreme Court has not expressly addressed the question, we predict the Court would adopt this line of reasoning, see Wade, 483 F.3d at 665-66, which is consistent with the purposes of the "filed rate" doctrine, to prevent price discrimination and to preserve the role of agencies in approving rates. See Valdez, 54 P.3d at 75. And, although the New Mexico Supreme Court has not expressly addressed whether or not there is a fraud exception to the "filed rate" doctrine, the Court applied the "filed rate" doctrine in Valdez under circumstances that are similar to those alleged here. In Valdez, the plaintiffs alleged that telephone service providers had "entered into illegal agreements" with government correctional facilities, whereby the telephone service providers "were granted exclusive rights to provide collect telephone service at a higher rate than rates provided to the public," in return for paying the corrections facilities "a commission ... calculated on the amount billed to the service provider from collect calls placed by inmates in their facilities." Id. at 74. Under those circumstances, notwithstanding the allegation that these agreements were "illegal," the New Mexico Supreme Court applied the "filed rate" doctrine to preclude the plaintiffs' claims seeking damages for the excessive telephone rate that they had to pay. See id. at 75-76.
Plaintiffs argue that
(Aplt. Br. at 43 (internal citation omitted).) Plaintiffs' characterization is inaccurate. The "filed rate" doctrine, applied in this case, prevented Plaintiffs from recouping money damages for already-charged excessive or unreasonable rates. The "filed rate" doctrine, however, does not prevent any ratepayer from challenging the reasonableness of those rates through the administrative process established by the Title Insurance Act, which includes an opportunity for judicial review. See N.M. Stat. Ann. §§ 59A-30-4, -6, -8, -9 (adopting procedures in §§ 59A-17-34, -35) (2004). Nor does the "filed rate" doctrine necessarily preclude claims for injunctive relief, at least to the extent those claims do not implicate the
For these reasons, the district court correctly invoked the "filed rate" doctrine to dismiss Plaintiffs' claims for money damages, including their claims seeking restitution, disgorgement of excessive premium amounts, and recovery for unjust enrichment. See Valdez, 54 P.3d at 74-75 (relying on "filed rate" doctrine to preclude claims for "damages, restitution, or imposition of a constructive trust" resulting from rates set by the PRC for telephone calls made by inmates in the state prisons).
Plaintiffs allege that New Mexico's Title Insurance Act violates two provisions of the New Mexico Constitution, art. IV, §§ 26, 38.
"Standing under Article III is, of course, a threshold issue in every case before a federal court, and diversity claims are no exception." Hutchinson v. Pfeil, 211 F.3d 515, 523 (10th Cir.2000) (internal quotation, alteration, emphasis omitted). To establish constitutional standing under Article III, Plaintiffs "must demonstrate three elements: injury in fact, traceability, and redressability." S. Utah Wilderness Alliance v. Office of Surface Mining Reclamation and Enforcement, 620 F.3d 1227, 1233 (2010). Plaintiffs "must have standing to seek each form of relief in each claim." Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir.2007). In addressing standing at the motion-to-dismiss stage of these proceedings, we "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the [Plaintiffs, as] complaining part[ies]." Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir.2006) (en banc) (internal quotation marks omitted). Even so, Plaintiffs have clearly failed to meet the third requirement of constitutional standing, redressability, so we need not spend any time on the first two standing requirements, injury-in-fact and the traceability of the injury to the Defendants.
"[T]he requirement of redressability ensures that the injury can likely be ameliorated by a favorable decision." S. Utah Wilderness Alliance, 620 F.3d at 1233. "The plaintiff must show that a favorable judgment will relieve a discrete injury, although it need not relieve his or her every injury." Nova Health Sys. v. Gandy, 416 F.3d 1149, 1158 (10th Cir.2005) (on reh'g). Here, Plaintiffs failed to allege that any injury they suffered could be redressed by relief granted on the claims Plaintiffs asserted against the Insurer Defendants.
In challenging the constitutionality of a statute, "[t]he redressability prong is not met when a plaintiff seeks relief against a defendant with no power to enforce [the] challenged statute." Bronson, 500 F.3d at 1111 (addressing pre-enforcement challenge to criminal statute). "[I]t must be the effect of the court's judgment on the defendant that redresses the plaintiff[s'] injury, whether directly or indirectly." Gandy, 416 F.3d at 1159. The Court may not "assume that everyone (including those who are not proper parties to an action) will honor the legal rationales that underlie their decrees." Id. (internal quotation marks omitted). Thus, in this case, Plaintiffs had to establish that any declaratory judgment entered against the Insurer Defendants would somehow be binding on the State Defendants, who are the ones charged with enforcing the New Mexico Title Act. Plaintiffs have failed to make such a showing.
For this reason, Plaintiffs failed to establish that they have Article III standing to assert their state constitutional claims for prospective relief against the Insurer Defendants. Although the district court dismissed these claims, it did so with, rather than without, prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213 (10th Cir.2006) (holding dismissal for lack of standing should be without prejudice). We, therefore, remand these claims to the district court with directions to vacate its decision dismissing these claims with prejudice and instead to dismiss them without prejudice for lack of standing. See Gandy, 416 F.3d at 1152-53, 1160.
Plaintiffs next contend that the Insurer Defendants violated New Mexico's Antitrust Act, N.M. Stat. §§ 57-1-1 through 57-1-19, by both 1) complying with the New Mexico Title Insurance Act and 2) conspiring to bribe Superintendent of Insurance Eric Serna to set excessive premium rates for title insurance.
New Mexico's Antitrust Act makes unlawful "[e]very contract, agreement, combination or conspiracy in restraint of trade or commerce, any part of which trade or commerce is within this state." N.M. Stat. § 57-1-1. Further, it is "unlawful for any person to monopolize or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, trade or commerce, any part of which trade or commerce is within" New Mexico. Id. § 57-1-2. But the Antitrust Act specifically exempts from its coverage action taken in compliance with the law:
Id. § 57-1-16. Therefore, the district court did not err in concluding that § 57-1-16 precluded Plaintiffs' antitrust claims asserted against the Insurer Defendants challenging their compliance with the Title Insurance Act. See Valdez, 54 P.3d at 76 (holding N.M. Stat. § 57-1-16 precluded an antitrust claim challenging telephone rates charged for collect calls from inmates in state prisons because the PRC approved those rates); see also Gonzales v. Pub. Serv. Comm'n of N. Mex. (In re Elec. Serv. in San Miguel Cnty.), 102 N.M.529, 697 P.2d 948, 951 (1985) (noting that N.M. Stat. § 57-1-16 "specifically exempts from the Act arrangements that are approved by a regulatory body acting under statutory authority").
Plaintiffs further allege that the Insurer Defendants conspired with each other and with Superintendent of Insurance Eric Serna to bribe him "to set unreasonably high rates for title insurance, and to restrain competition as to the price and terms of title insurance in New Mexico." (Aplt.App. vol. ii at 530, ¶ 75.) Relying on the Noerr-Pennington doctrine,
The Noerr-Pennington doctrine stems from federal antitrust law and exempts from antitrust liability "the conduct of private individuals in seeking anticompetitive action from the government." City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 379-80, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991). The Noerr-Pennington doctrine is a corollary to the principle that, "[g]enerally, a state's anticompetitive actions are immune from civil antitrust laws. Parker v. Brown, 317 U.S. 341, 350-52, 63 S.Ct. 307, 87 L.Ed. 315 (1943)."
In this case, the district court's reliance on the Noerr-Pennington doctrine raises two questions: 1) Would the New Mexico Supreme Court apply a Noerr-Pennington exception to the New Mexico Antitrust Act? And, 2) if so, would that exception preclude Plaintiffs' claims alleging that the Insurer Defendants conspired to bribe Superintendent Serna?
Although the New Mexico Supreme Court has not yet addressed this question, we predict that the state supreme court would adopt reasoning similar to the federal Noerr-Pennington doctrine when applying New Mexico's Antitrust Act.
Further, the Noerr-Pennington doctrine is based upon the First Amendment, which applies to New Mexico through the Fourteenth Amendment, see Petersen v. Utah Dep't of Corr., 301 F.3d 1182, 1191 (10th Cir.2002). And the New Mexico Constitution, art. II, § 17, similarly protects citizens' right to petition their government. See Am. Ass'n. of People with Disabilities v. Herrera, 690 F.Supp.2d 1183, 1224 (D.N.M.2010) (noting that U.S. Constitution's First Amendment freedoms of speech and association are coextensive with protections provided by New Mexico Constitution, art. II, § 17).
Finally, many other states have adopted and apply the Noerr-Pennington doctrine to state antitrust claims, as well as other state-law claims.
The next question we address is whether the Noerr-Pennington doctrine would preclude Plaintiffs' claims that the Insurer Defendants conspired with each other and with Superintendent of Insurance Serna to bribe Serna to set excessively high title insurance premium rates. We conclude that the answer is yes.
In Parker, the Supreme Court held that the federal Sherman Act's proscription of anti-competitive conduct did not apply to government action. See 317 U.S. at 350-52, 63 S.Ct. 307. Later in Noerr, the Court addressed the other side "of the same coin," City of Columbia, 499 U.S. at 383, 111 S.Ct. 1344, concluding that the Sherman Act also did not proscribe private citizens' conduct undertaken to influence government action. See Noerr, 365 U.S. at 135-37, 81 S.Ct. 523. That is so because the purpose of the Sherman Act is to regulate business, not political activity.
Notwithstanding this deceptive and "unethical" business conduct, the Court held that the Sherman Act did not apply to proscribe it. See id. at 140-41, 81 S.Ct. 523.
Id. In conclusion, Noerr noted that the "fight" between the railroads and the truckers "appears to have been conducted along lines normally accepted in our political system, except to the extent that each group has deliberately deceived the public and public officials. And that deception, reprehensible as it is, can be of no consequence so far as the Sherman Act is concerned." Id. at 144-5, 81 S.Ct. 523.
Although Noerr addressed private citizens' attempts to influence the legislature, later cases extended Noerr's reasoning to citizens' attempts to influence other government bodies or officials, including those in the executive branch and the courts. See California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); Pennington, 381 U.S. at 669-70, 85 S.Ct. 1585; Cardtoons, L.C. v. Major League Baseball Players Ass'n, 208 F.3d 885, 888 n. 2 (10th Cir. 2000) (en banc) (citing California Motor Transp., 404 U.S. 508, 92 S.Ct. 609, and Pennington, 381 U.S. 657, 85 S.Ct. 1585).
More recently, the Supreme Court, relying on its reasoning in Noerr, held that the Sherman Act did not proscribe private citizens' conduct undertaken to influence government action, even if that conduct involved conspiracy or bribery. In City of Columbia, a jury found that a billboard company conspired with city officials to obtain legislation that protected the billboard company's monopolization of the billboard market within the city and that restrained the business of a competitor billboard company. See 499 U.S. at 368-69, 111 S.Ct. 1344. Nevertheless, the Supreme Court held that the Sherman Act did not apply to such conduct, which was undertaken to influence governmental action. See id. at 384, 111 S.Ct. 1344. In reaching this conclusion, the Court first rejected a conspiracy exception to Parker state-action immunity. See id. at 374-75, 111 S.Ct. 1344. "Since it is both inevitable and desirable that public officials often agree to do what one or another group of private citizens urges upon them, such an exception would virtually swallow up the Parker rule: All anticompetitive regulation would be vulnerable to a `conspiracy' charge." Id. at 375, 111 S.Ct. 1344. The Court applied this same reasoning to reject a conspiracy exception to Noerr immunity, too:
City of Columbia went further, rejecting exceptions to Parker and Noerr immunity even for conspiracies involving "corruption." See id. at 376-79, 383, 111 S.Ct. 1344.
Id. at 377, 111 S.Ct. 1344.
Notwithstanding this language, Plaintiffs suggest that we carve out a special exclusion to Noerr-Pennington when the corruption involves some ill-defined and open-ended concept of bribery or other acts that might violate state or federal law. That approach would, of course, vitiate Noerr-Pennington almost entirely because there is hardly any lobbying effort that is not open to at least a charge of some illegal dealings when important economic interests are at stake. Indeed that is illustrated in this very case, as Plaintiffs' allegations here of bribery are vague and ambiguous. The Supreme Court in City of Columbia understood that risk and held that corruption—and even bribery explicitly—would not vitiate a claim of Noerr-Pennington immunity. The Court said:
City of Columbia, 499 U.S. at 378-79, 111 S.Ct. 1344 (quoting Noerr, 365 U.S. at 140, 81 S.Ct. 523) (internal citations, quotations marks, alterations omitted).
Turning, then, to the specific antitrust claims at issue here, Plaintiffs first alleged that the Insurer Defendants conspired with each other and with Superintendent of Insurance Serna to get Serna to set excessive premium rates for title insurance. Such an antitrust claim, based upon allegations of conspiracy generally, is clearly precluded by Noerr-Pennington. See City of Columbia, 499 U.S. at 374-75, 379-80, 382-84, 111 S.Ct. 1344; see also Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988); GF Gaming Corp. v. City of Black Hawk, 405 F.3d 876, 883-84 (10th Cir.2005) (applying City of Columbia and noting that, "[f]or purposes of Noerr-Pennington, there is no distinction between petitioning government officials and conspiring with them").
Plaintiffs went further, however, alleging at least generally that the Insurer Defendants conspired to bribe Superintendent Serna to set excessive premium rates for title insurance. Assuming these allegations to be true, as we must at the motion-to-dismiss stage of these proceedings, see Bixler, 596 F.3d at 756, it is, nevertheless, clear from our preceding discussion that there is no bribery exception
Id. at 383-84, 111 S.Ct. 1344 (internal quotation marks omitted). "The remedy for such conduct rests with laws addressed to it and not with courts looking behind sovereign state action at the behest of antitrust plaintiffs." Armstrong Surgical Ctr., Inc. v. Armstrong Cnty. Mem'l Hosp., 185 F.3d 154, 162 (3d Cir.1999); see also City of Columbia, 499 U.S. at 378-79, 111 S.Ct. 1344 (addressing state-action immunity); Trigen-Okla. City Energy Corp. v. Okla. Gas & Elec. Co., 244 F.3d 1220, 1227 (10th Cir.2001) (noting there is no bribery exception to state-action immunity); Armstrong Surgical Ctr., 185 F.3d at 162 ("Liability for injuries caused by ... state action [that inflicts anticompetitive injuries] is precluded even where it is alleged that a private party urging the action did so by bribery, deceit or other wrongful conduct that may have affected the decision making process."); Astoria Entm't, Inc. v. Edwards, 159 F.Supp.2d 303, 322-25 (E.D.La. 2001) (holding Noerr-Pennington precluded antitrust claims alleging "bribery, extortion and corruption"), aff'd, 57 Fed. Appx. 211 (5th Cir. Jan.7, 2003) (unpublished); Bayou Fleet, Inc. v. Alexander, 68 F.Supp.2d 734, 744 n. 10 (E.D.La.1999) (noting there was no conspiracy exception to the Noerr-Pennington doctrine in case where Plaintiff alleged bribery), aff'd, 234 F.3d 852 (5th Cir.2000); cf. Blank, 216 Cal.Rptr. 718, 703 P.2d at 63-69 (holding, even prior to City of Columbia, that Noerr-Pennington precluded claims under California antitrust law alleging bribery of government officials); Cow Palace, Ltd. v. Associated Milk Producers, Inc., 390 F.Supp. 696, 700-04 (D.Colo.1975) (holding, again prior to City of Columbia, that allegations of bribery and illegal campaign contributions did not automatically strip defendant of Noerr-Pennington immunity).
In arguing to the contrary, Plaintiffs rely on Astoria Entertainment, Inc. v. DeBartolo, 12 So.3d 956 (La.2009), but that case is unhelpful to them and, in fact, supports instead the conclusion we reach here. Astoria Entertainment involved allegations that the defendants bribed a former Louisiana governor to have him influence the state Gaming Commission to grant the defendants, and not others, a license to operate a riverboat casino. 12 So.3d at 958-59. Plaintiff Astoria Entertainment, which sought, but did not receive, the license that the Gaming Commission awarded to the defendants, first sued the defendants in federal court, alleging both federal and state claims. See id. Most relevant to us, the federal court dismissed the federal antitrust claims based upon Noerr-Pennington immunity, notwithstanding the bribery allegations. See Astoria Entm't, 159 F.Supp.2d at 322-25.
After that, Astoria Entertainment brought those state-law claims in Louisiana state court. In that state-court action, the Louisiana Supreme Court declined to apply Noerr-Pennington immunity to the state-law claims, which were not based on antitrust theories. See Astoria Entm't, 12 So.3d at 959 n. 7, 963-67. The Louisiana Court, therefore, refused to apply Noerr-Pennington immunity outside the antitrust context. See id. at 963-67. But that is not the question presented by this case, where we, like the federal court in Astoria Entertainment, apply Noerr-Pennington only within the antitrust context.
For the foregoing reasons, the district court correctly dismissed Plaintiffs' claims asserted under the New Mexico Antitrust Act against the Insurer Defendants.
Plaintiffs alleged that the Insurer Defendants violated the New Mexico Unfair Practices Act, N.M. Stat. §§ 57-12-1 through 57-12-26 ("UPA"). That act makes unlawful "[u]nfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce." N.M. Stat. § 57-12-3. Like the New Mexico Antitrust Act, however, the UPA does not "apply to actions or transactions expressly permitted under laws administered by a regulatory body of New Mexico ..., but all actions or transactions forbidden by the regulatory body, and about which the regulatory body remains silent, are subject to the Unfair Practices Act." Id. § 57-12-7 (emphasis added); see also Quynh Truong v. Allstate Ins. Co., 147 N.M. 583, 227 P.3d 73, 81-82 (2010). The New Mexico Title Insurance Act "expressly permitted" the practices which Plaintiffs' challenge here—charging the same premium, offering the same coverage, using state-mandated forms to sell title insurance, and charging premium rates approved by the superintendent of insurance. See Valdez, 54 P.3d at 74-76 (holding N.M. Stat. § 57-12-7 precluded claims challenging rates charged for collect calls made by inmates in New Mexico prisons because the PRC expressly permitted those rates as part of its regulation of telephone service). The district court, therefore, did not err in dismissing Plaintiffs' claims asserted against the Insurer Defendants under the Unfair Practices Act.
Plaintiffs further alleged that the Insurer Defendants violated the New
(Aplt.App. vol. ii at 529, ¶ 69.) The UIPA, however, applies to title insurance only to the extent it does not conflict with the New Mexico Title Insurance Act. See N.M. Stat. § 59A-30-14(M). In light of that, Plaintiffs cannot state a cause of action under the UIPA based on allegations that the Insurer Defendants complied with the terms of the Title Insurance Act. Further, Plaintiffs did not allege facts involving improper rebates or inducements. The district court, therefore, did not err in dismissing Plaintiffs claims' asserted against the Insurer Defendants under the UIPA.
Plaintiffs mention the New Mexico Price Discrimination Act ("PDA"), N.M. Stat. §§ 57-14-1 through 57-14-9, only in the prayers for relief included in their complaints, seeking damages under N.M. Stat. § 57-14-8(a). This claim fails as a matter of law because "the prayer for relief is no part of the cause of action and. . . the parties are entitled to such relief and to such judgment as the complaint . . . makes out." Daniels v. Thomas, 225 F.2d 795, 797 & n. 5 (10th Cir.1955) (applying federal and Colorado law). Further, Plaintiffs fail to explain on appeal how the allegations in their complaints stated a claim under the PDA.
Plaintiffs contend they alleged a claim against the Insurer Defendants under New Mexico common law for civil conspiracy. To the extent Plaintiffs did so, and to the extent such a claim could survive application of the "filed rate" doctrine, Plaintiffs have failed to state such a claim upon which relief can be granted. To state such a claim, Plaintiffs must allege: "(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[s] [were] damaged as a result of such acts." Seeds v. Lucero, 137 N.M. 589, 113 P.3d 859, 863 (2005) (internal quotation marks omitted). "Unlike a conspiracy in the criminal context, a
For the foregoing reasons, we AFFIRM the district court's decision to dismiss Plaintiffs' claims asserted against the Insurer Defendants, but we REMAND Plaintiffs' state constitutional claims asserted against those Defendants to the district court with directions to dismiss those claims without prejudice for lack of standing.
(Aplt. Br. at 44.) Although New Mexico courts do not appear to have yet applied the "filed rate" doctrine specifically to claims brought against insurers, courts in numerous other jurisdictions have applied the "filed rate" doctrine to the insurance industry generally. See Schermer v. State Farm Fire & Cas. Co., 702 N.W.2d 898, 907 (Minn.Ct.App.2005) (citing cases; rejecting argument that "competitive and deregulated nature of the private insurance market and the absence of exclusive jurisdiction of the" Minnesota Department of Commerce precluded application of "filed rate" doctrine to the insurance industry), affd, 721 N.W.2d 307 (Minn.2006); Richardson v. Standard Guar. Ins. Co., 371 N.J.Super. 449, 853 A.2d 955, 963-65 (2004) (agreeing with "considerable weight of authority from other jurisdictions that have applied the filed rate doctrine to ratemaking in the insurance industry," citing cases). In light of this authority, we predict New Mexico courts would apply the "filed rate" doctrine to the pervasively regulated matter of title insurance. Plaintiffs have not shown any reason to reach a different conclusion. Plaintiffs' reliance on the Insurance Code, and specifically N.M. Stat. § 59A-17-3, to argue that "[t]he Insurance Code expressly preserves and promotes competition in insurance" is misplaced. (Aplt. Br. at 45-47.) The Insurance Code specifically provides that "[n]o provision of the Insurance Code shall apply to .. . title insurers and title insurance agents, as identified in Chapter 59A, Article 30 NMSA 1978, except as stated in that article." N.M. Stat. Ann. § 59A-1-15(H) (2004). And, while the Title Insurance Act does incorporate a number of provisions of the Insurance Code, it does not incorporate Article 17 generally nor § 59A-17-3 specifically. See id. § 59A-30-14.
And Article IV, § 38 provides that "[t]he legislature shall enact laws to prevent trusts, monopolies and combinations in restraint of trade."
