JAMES O. BROWNING, District Judge.
On April 13, 2012, Plaintiff-Appellant New Mexico Consolidated Construction Services, LLC ("NM Consolidated") filed a Notice of Appeal and Petition for Certiorari and Complaint for Damages Under 42 U.S.C. § 1983, Interference with Contractual Relations, Taking, Inverse Condemnation and Civil Conspiracy in the First Judicial District Court for the State of New Mexico, No. CIV 12-0513 KBM/RHS (Doc. 1-1) (D.N.M. Apr. 13, 2012)("First Complaint"). See Motion ¶ 1, at 4; Plaintiff's Response to Motion for Summary Judgment That Federal Claims in the Third Amended Complaint Are Barred by the Doctrine of Res Judicata ¶ 1, at 2, filed August 15, 2014 (Doc. 35)("Response")(admitting this fact). The First Complaint names as defendants all of the individuals and entities now named as Defendants in the Current Complaint; it also names Defendant-Appellee City Council of Santa Fe as an appellee. See First Complaint ¶¶ 7-13, at 11-12; Motion ¶ 2, at 4; Response ¶ 2, at 2 (admitting this fact). The First Complaint alleged, among its five claims, two federal causes of action relevant to this case: (i) a cause of action in Count III, under the Fifth and Fourteenth Amendments to the Constitution of the United States, for a taking of property without just compensation, see First Complaint ¶¶ 104-105, at 28; and (ii) a cause of action in Count V, under 42 U.S.C. § 1983, for violations of unspecified "rights and privileges guaranteed by the Constitution," First Complaint ¶¶ 107-108, at 30-31. See Motion ¶ 3, at 4; Response ¶ 3, at 3 (admitting this fact).
On May 12, 2012, the defendants in that action removed the case to the United States District Court for the District of New Mexico. See Notice of Removal, No. CIV 12-0513 KBM/RHS (Doc. 1) (D.N.M. May 5, 2012); Motion ¶ 4, at 5; Response ¶ 4, at 3 (admitting this fact).
Stipulation at 2; Motion ¶ 9, at 5-6. See Response ¶ 9, at 4 (admitting this fact). The Stipulation preserved the counts based upon state causes of action. See Response ¶ 2, at 6; Reply ¶ 2, at 3 (admitting this fact). With the federal claims dismissed, the Honorable Karen B. Molzen, United States Magistrate Judge for the District of New Mexico, remanded the case to state court. See Order of Remand, No. CIV 12-0513 KBM/RHS (Doc. 16)
The case proceeded in state court under cause No. D-101-CV-2012-01054. See Response ¶ 3, at 6; Reply ¶ 3, at 3 (admitting this fact). On or about January 22, 2013, NM Consolidated served subpoenas on the New Mexico School for the Arts ("NM School") and the New Mexico School for the Arts/Arts Institute ("NM Institute"), requesting documents and tangible items relating to any dealings between the two organizations and the City of Santa Fe in regard to NM Consolidated's property, St. Catherine's Industrial School.
On May 10, 2013, NM Consolidated filed an Amended Notice of Appeal and Petition for Certiorari and Second Amended Complaint for Damages for Deprivation of Rights Under the Federal and New Mexico Constitutions, Interference with Contractual Relations, Taking, Inverse Condemnation and Civil Conspiracy in the First Judicial District Court for the State of New Mexico ("Second Complaint"). Motion ¶ 11, at 6; Response ¶ 11, at 4 (admitting this fact). The Second Complaint named two new defendants: (i) the NM School, which NM Consolidated identified as a "New Mexico charter school formed under the laws of the State of New Mexico governing such schools, and is a part of the state and local public schools administration and . . . [a] state actor"; and (ii) the NM Institute, which NM Consolidated identified as a "New Mexico non-profit corporation, acting on behalf of and for the Charter School or as agents of the Charter School." Motion ¶ 12, at 6-7; Response ¶ 12, at 4 (admitting this fact). On July 15, 2013, NM Consolidated withdrew its Second Complaint. See Motion ¶ 13, at 7; Response ¶ 13, at 4 (admitting this fact).
On September 20, 2013, in a new and separate action in federal court, NM Consolidated filed a Complaint for Damages for Deprivation of Rights Pursuant to 42 U.S.C. § []1983, Interference with Contractual Relations and Civil Conspiracy, No. CIV 13-0907 WPL/KBM (Doc. 1) (D.N.M. Sept. 20, 2013)("Third Complaint"), against the NM School and the NM Institute. Motion ¶ 14, at 7; Response ¶ 14, at 4 (admitting this fact).
Order ¶¶ 1-5, at 1-2.
On February 12, 2014, NM Consolidated filed the Current Complaint in the state court, reasserting its claims for takings and deprivation of property rights under § 1983. See Motion ¶ 19, at 8; Response ¶ 19, at 5 (admitting this fact). The Current Complaint drops the claims that the Second Complaint had alleged against the NM School and the NM Institute. See Motion at 9; Response ¶ 20, at 5 (admitting this fact). The Defendant-Appellees removed the case to federal court once again, giving rise to the current proceeding. See Motion ¶ 21, at 9; Response ¶ 21, at 5 (admitting this fact); Notice of Removal, filed February 24, 2014 (Doc. 1). The Current Complaint mentions the NM School and the NM Institute in connection with the allegations against the Defendant-Appellees, and alleges:
Current Complaint ¶¶ 57a-c, at 11-12 (emphasis in original). See Motion ¶ 22, at 9; Response ¶ 22, at 5 (admitting this fact).
The First Complaint also mentioned the NM School in connection with allegations about the Defendant-Appellants' alleged plans to acquire NM Consolidated's property through purchase or condemnation, and alleged that there was talk that the City of Santa Fe desired to acquire the property and move NM School onto the grounds. See Motion ¶ 23, at 9; Response ¶ 23, at 5 (admitting this fact); First Complaint ¶ 38, at 17; id. 70-72, at 21. There are no allegations in either the First Complaint or the Current Complaint that the NM School is a for-profit business or that the City of Santa Fe's efforts to acquire NM Consolidated's property for NM School represents a non-public use, which would violate the Takings Clause, U.S. Const. amend. V. See Motion ¶ 24, at 10; Response ¶ 24, at 6 (admitting this fact). The Current Complaint presents additional facts in support of NM Consolidated's allegations that the City of Santa Fe intended to acquire NM Consolidated's property for the NM School and the NM Institute, and that the City took concerted steps to do so while NM Consolidated was petitioning the SF Design Board and the City Council to relocate some of the historic buildings on its property. See Motion ¶ 25, at 10; Response ¶ 25, at 6 (admitting this fact).
The Defendant-Appellees filed the Motion June 25, 2014. They argue that they are entitled to summary judgment on the ground that the Stipulation entered in federal court in the initial case—the one that the First Complaint initiated—bars the federal claims in the Current Complaint. See Motion at 16-19. They argue that, "[t]o establish that res judicata applies, the party asserting the defense must satisfy four (4) elements: (1) the prior suit must have ended with a judgment on the merits; (2) the parties must be identical or in privity; (3) the suit must be based on the same cause of action; and (4) the plaintiff must have had a full and fair opportunity to litigate the claim in the prior suit." Motion at 14 (emphasis in original)(citing Nwosun v. Gen. Mills Restaurants, Inc., 124 F.3d 1255, 1257 (10th Cir.1997)). They address these prongs in sequence. First, they argue that the Stipulation was effectively a "judgment on the merits," because "NMCCS stipulated to a voluntary dismissal with prejudice of not only the takings and Section 1983 deprivation of property claims in Counts III and V of the [First Complaint], but also to claims alleging federal due process, equal protection, conspiracy and other claims pursuant to 42 U.S.C. § 1983." Motion at 16-17 (emphasis in original). They assert that "Tenth Circuit case law is clear" that when an order of dismissal under Rule
Second, they assert that "there is no dispute" that the parties in the First Complaint's case and in this case are the same. Motion at 17. Third, they argue that the Current Complaint "is based on the same cause of action" as the First Complaint. Motion at 17. They address the seemingly contrary implication in Judge Singleton's Order:
Motion at 18 (citations omitted). As to the last prong, the Defendant-Appellees again assert that its satisfaction is "undisputed." Motion at 18. They assert that no evidence exists to show that NM Consolidated "encountered any procedural limitations" in the First Complaint's case, and, thus, NM Consolidated's opportunity to litigate its claims to completion then and there were full and fair. Motion at 19.
In its Response, NM Consolidated defends the viability of its claims, unsurprisingly, exclusively on the third prong. See Response at 9-12. It argues that the First Complaint and the Current Complaint "are based on a different set of facts and different alleged wrongs." Response at 9 (emphasis omitted)(capitalization altered). It asserts that ¶ 57a-k of the Current Complaint sets forth a "series of contacts. . . that would not have formed a basis for a federal claim if the City had not been considering the Plaintiff's Petition to relocate buildings on the St. Catherine's campus at the same time." Response at 9. NM Consolidated devotes substantial space to reiterating the factual bases and legal theory behind its claims, but relatively little time distinguishing the First Complaint—and the claims that the Stipulation forfeited—from those in the Current Complaint. See Response at 9-12. To the extent that it identifies a new theory, it is that the SF Design Board's and City Council's improprieties constitute a due-process violation, and the Current Complaint alleges that violation, while the First Complaint focused solely on impropriety of the substantive decision. See Response at 9-12. It states that "[t]he exhibits [—meaning the six documents that the NM
In their Reply, the Defendant-Appellees contend that NM Consolidated's due-process argument "is pure speculation and not supported by the [six] exhibits." Reply at 7. They assert that NM Consolidated alleged all the same claims and theories in its First Complaint that it now alleges in the Current Complaint, and that the exhibits, at most, "simply provide additional evidence to support their initial claims." Reply at 8. They also note that the article from the New Mexican, to which NM Consolidated cites in support of many of its contentions, was published in September, 2011, several months before NM Consolidated filed the First Complaint. See note 8, supra, and accompanying text. The Defendant-Appellees sum up their argument as follows:
Reply at 8-9 (emphasis in original) (citations omitted).
The Court held a hearing on December 19, 2014. See Transcript of Hearing (taken December 19, 2014)("Tr.").
Tr. at 14:25-15:8 (Court, Polk).
The remainder of the Court's questioning of NM Consolidated focused on NM Consolidated advancing its argument that, while the facts giving rise to a cause of action may have accrued before the First Complaint, (i) subsequent evidence supports
Tr. at 18:10-18 (Court, Polk).
The Defendant-Appellees reiterated their position from the briefing, adding that "res judicata bars a party from litigating claims that were either actually raised or could have been raised in a previous action." Tr. at 19:20-22 (Anderson). The Court returned to NM Consolidated, which conceded that the "[S]tipulation covers the Fifth Amendment claim and it covers the 1983 claim[, but that n]othing else is covered." Tr. at 27:22-23 (Polk). The Court asked what other claims there could possibly be in this case, other than § 1983 claims, and NM Consolidated replied that it could sue directly under the Fifth and Fourteenth Amendments, without need for § 1983. See Tr. at 27:25-28:8 (Polk, Court).
NM Consolidated appeared to lose confidence in its legal position toward the end of the hearing, and began asking the Court whether and how it could use rule 60(b) to "reraise the federal claims" that the Stipulation dismissed. Tr. at 29:10 (Polk). NM Consolidated noted: "We were not aware we got caught because we didn't know what they were doing. . . ." Tr. at 29:19-20 (Polk). NM Consolidated expressed further interest in restyling its defense of the Motion into a rule 60(b) motion—presumably filed in the First Complaint's case—to reform the Stipulation. See Tr. at 33:7-34:5 (Polk)("I could rephrase this into a 60(b) very—very easily. . . . [I]f you could give me 10 or 20 days to file a 60(b) motion. . . I think we could flesh out the record."). The Court dissuaded NM Consolidated from filing a rule 60(b) motion and stated that it would work the issues out via its ruling on the Motion. See Tr. at 35:1-3 (Court) ("I think it might be better just to hold off and let me sort of sort this out with this [M]otion rather than filing new motions.").
Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). "The movant bears the initial burden of `show[ing] that there is an absence of evidence to support the non-moving party's case.'" Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M.2013) (Browning, J.) (quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence—using any of the materials specified in Rule 56(c)—that would entitle it to a directed
The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See 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 quotation marks omitted)). Rule 56(c)(1) provides: "A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) ("However, `once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.'" (citation omitted)). Nor can a party "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Colony Nat'l Ins. Co. v. Omer, No. CIV 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006); Fed. R.Civ.P. 56(e)). "In responding to a motion for summary judgment, `a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'" Colony Nat'l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).
To deny a motion for summary judgment, 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 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). Rather, there
When reviewing a motion for summary judgment, the court should keep in mind certain 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 ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must "bear in mind the actual quantum and quality of proof necessary to support liability." Anderson v. Liberty Lobby, Inc., 477 U.S. at 254, 106 S.Ct. 2505. Third, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.
In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Supreme Court of the United States concluded that summary judgment was appropriate where video evidence "quite clearly contradicted" the plaintiffs version of the facts. 550 U.S. at 378-81, 127 S.Ct. 1769. The Supreme Court explained:
550 U.S. at 380-81, 127 S.Ct. 1769 (emphasis in original).
The United States Court of Appeals for the Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), and explained:
Thomson v. Salt Lake Cnty., 584 F.3d at 1312. In Rhoads v. Miller, 352 Fed.Appx. 289 (10th Cir.2009) (unpublished) (Tymkovich, J.), the Tenth Circuit "explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]" Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010) (Browning, J.) (citation omitted).
Rhoads v. Miller, 352 Fed.Appx. at 291-92 (internal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and "determine whether plaintiffs factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the
The Tenth Circuit has stated that "[t]here is authority for the proposition that in determining whether a material issue of fact exists, an affidavit may not be disregarded because it conflicts with the affiant's prior sworn statements." Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (citing 10B Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice & Procedure § 2738, at 473-74 (2d ed. 1983) ("Wright & Miller"); 6 James Wm. Moore, Moore's Federal Practice ¶ 56.22[1], at 56-1325 to 56-1326 (1985 ed.)). There are situations, however, where courts "disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue." Franks v. Nimmo, 796 F.2d at 1237 (citing Foster v. Arcata Assocs., Inc., 772 F.2d 1453, 1462 (9th Cir.1985); Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir.1984); Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657-58 (11th Cir.1984); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364 (8th Cir.1983); Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)). The policy underlying these decisions is the "conclusion that the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony." Franks v. Nimmo, 796 F.2d at 1237 (citation omitted).
Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973 (10th Cir.2001) (quoting Rios v. Bigler, 67 F.3d 1543, 1551 (10th Cir.1995)). In Ralston v. Smith & Nephew Richards, Inc., the Tenth Circuit found that the district court did not abuse its discretion in excluding later contradictory declarations in rendering its summary judgment ruling. See 275 F.3d at 973. The Tenth Circuit noted that there was no question that the declarant was cross-examined in his deposition, "that he had access to the pertinent evidence at the time of his deposition," and "that there was nothing in the earlier deposition testimony reflecting any level of confusion or uncertainty concerning" the declarant's testimony "requiring clarification or explanation." 275 F.3d at 973.
Rule 56(d) provides:
Fed.R.Civ.P. 56(d). Before 2010, this rule was rule 56(f); rule 56(d) "carries forward without substantial change the provisions of former subdivision (f)." Fed.R.Civ.P. 56(d) advisory committee committee's notes to the 2010 amendments. "A party who seeks relief under subdivision (d) may seek an order deferring the time to respond to the summary judgment motion." Fed.R.Civ.P. 56(d) advisory committee committee's notes to the 2010 amendments. The rule permits a nonmovant to show by affidavit or declaration the need for additional discovery; a formal affidavit is thus not required. See Fed.R.Civ.P. 56(d). The rule permits a "written unsworn declaration, certificate, verification, or statement subscribed in proper form as true under penalty of perjury to substitute for an affidavit." Fed.R.Civ.P. 56(c) advisory committee committee's notes to the 2010 amendments.
When a party files an affidavit or declaration, and moves for additional discovery time under rule 56(d), the party invokes the court's discretion. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1553-54 (10th Cir.1993). "Unless dilatory or lacking in merit," a party's 56[(d)] application "should be liberally treated." Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554 (citations omitted)(internal quotation marks). "The general principle of Rule 56(d) is that summary judgment should be refused where the nonmoving party has not had the opportunity to discover information that is essential to opposition." Price ex rel. Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir.2000). Rule 56(d) does not require, however, that summary judgment not be entered until discovery is complete. See Price ex rel. Price v. W. Res., Inc., 232 F.3d at 784.
"Rule 56[(d)] is not a license for a fishing expedition...." Lewis v. Ft. Collins, 903 F.2d 752, 758 (10th Cir.1990). To invoke rule 56(d), the party filing the affidavit or declaration must state with specificity how the desired time would allow it to meet its burden in opposing summary judgment. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554. A party opposing summary judgment may not invoke rule 56(d) based solely upon the assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554. Moreover, while the summary judgment movant's exclusive control of information weighs heavily in favor of relief under 56(d), see Price ex rel. Price v. W. Res., Inc., 232 F.3d at 783, merely asserting such is insufficient to justify denial of summary judgment, see Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554. Furthermore, "if the party filing the Rule 56[(d)] affidavit has been dilatory, or the information sought is either irrelevant to the summary judgment motion or merely cumulative, no extension will be granted." Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554 (denying a rule 56(d) request and stating that "the record reflect[ed] that plaintiffs were dilatory in pursuing discovery prior to the filing of their 56[(d)] affidavit"). See Johnson v. Holmes, 377 F.Supp.2d 1039, 1044-45 (D.N.M.2004) (Browning, J.) (denying a 56(d) request where plaintiff did not explain why, during the discovery period that the court allowed, he did not obtain the discovery sought in his motion). The Tenth Circuit has summarized rule 56(d)'s requirements as follows:
Price ex rel. Price v. W. Res., Inc., 232 F.3d at 783 (internal quotations and citations omitted). See Tadlock v. Lahood, 550 Fed.Appx. 541, 547 (10th Cir.2013) (unpublished) (citing Price ex rel. Price v. W. Res., Inc. for the requirements of rule 56(d) after the 2010 amendment); Douglass v. United Auto Workers Local Union 31, 188 Fed.Appx. 656, 658 (10th Cir.2006) (stating that the affidavit must state how the additional time would enable the party to meet its burden "with specificity"). A rule 56(d) affidavit or declaration must state, with specificity, what additional discovery is believed necessary. See Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1264 (10th Cir.2006); Chavez v. Perry, 142 Fed.Appx. 325, 334 (10th Cir.2005) ("To resist summary judgment on this basis (56[(d)]), a party must specifically identify what facts it seeks to discover and show how those facts would materially aid its case on the dispositive issues."). If a party does not file an affidavit or declaration, a district court does not abuse its discretion in denying discovery. See Tadlock v. Lahood, 550 Fed.Appx. at 547.
"Under res judicata ... a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in the prior action." Wilkes v. Wyo. Dep't of Emp't Div. of Labor Standards, 314 F.3d 501, 503-04 (10th Cir. 2002). The general rule is that "[t]he appealability of a judgment ... does not hinder its preclusive effect." MACTEC, Inc. v. Gorelick, 427 F.3d 821, 832 (10th Cir.2005) (citing 18A Wright & Miller § 4433, at 78-85 (2d ed.2002)). Accord Leo v. Garmin Intern., Inc., 464 Fed.Appx. 737, 740 (10th Cir.2012) (unpublished)("[I]t does not matter that [the plaintiff's] first appeal had not been resolved at the time [he] filed his second suit because under the federal law of claim preclusion, the district court's order was final for res judicata purposes."). Courts occasionally refer to the two different effects of judgments under the doctrine of res judicata with various and sometimes conflicting terminology. See 18 Wright & Miller § 4402, at 7 ("The effects of former adjudication have been discussed and determined in varying and occasionally conflicting terminology."). "[T]he broad `res judicata' phrase refers to the distinctive effects of a judgment separately characterized as `claim preclusion' and `issue preclusion.'" 18 Wright & Miller § 4402, at 7. The United States Court of Appeals for the Fifth Circuit has presented a summary that explains the two doctrines:
Kaspar Wire Works, Inc. v. Leco Eng'g & Mach., Inc., 575 F.2d 530, 535-36 (5th Cir.1978) (citations omitted). The following principles apply in federal-question cases—and are generally consistent with state-law res judicata rules—but "[f]or judgments in diversity cases, federal law incorporates the rules of preclusion applied by the State in which the rendering court sits." Taylor v. Sturgell, 553 U.S. 880, 891 n. 4, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (citing Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001)).
"The doctrine of res judicata, or claim preclusion, `bars a second suit involving the same parties or their privies based on the same cause of action.'" Roybal v. City of Albuquerque, No. CIV 08-0181 JB/LFG, 2009 WL 1300048, at *5 (D.N.M. Feb. 2, 2009) (Browning, J.) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)). "Under Tenth Circuit law, claim preclusion applies when three elements exist: (1) a final judgment on the merits in an earlier action; (2) identity of the parties in the two suits; and (3) identity of the cause of action in both suits." MACTEC, Inc. v. Gorelick, 427 F.3d at 831. The Tenth Circuit has adopted the "transactional" approach from § 24 of the Restatement (Second) of Judgments to determine what constitutes a "cause of action" for claim preclusion. Wilkes v. Wyo. Dep't of Emp't Div. of Labor Standards, 314 F.3d at 504. Under this approach, a cause of action includes "all claims or legal theories of recovery that arise from the same transaction, event, or occurrence." Wilkes v. Wyo. Dep't of Emp't Div. of Labor Standards, 314 F.3d at 504 (quoting Nwosun v. Gen. Mills Rest., Inc., 124 F.3d 1255, 1257 (10th Cir.1997)). Claim preclusion does not, however, "extend from criminal prosecutions to civil actions." 18B Wright & Miller § 4474, at 420.
The Supreme Court, in Taylor v. Sturgell, clarified when preclusion may appropriately be applied to those who were not actual parties in the earlier litigation. The Supreme Court stated: "`It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.'" 553 U.S. at 884, 128 S.Ct. 2161 (quoting Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 85 L.Ed. 22 (1940)). The Supreme Court eliminated the broad doctrine of virtual representation, which allowed preclusion on the grounds of a sufficiently close relationship and which had prevailed in some federal
Where the causes of action are not identical, the second aspect of the doctrine of res judicata, termed "collateral estoppel" or "issue preclusion," may still preclude parties from relitigating issues in a second, not identical cause of action, where the particular issues were litigated in a prior case. See In re Corey, 583 F.3d 1249, 1251 (10th Cir.2009) ("The doctrine of issue preclusion prevents a party that has lost the battle over an issue in one lawsuit from relitigating the same issue in another lawsuit."). The Tenth Circuit has stated: "Under federal law, issue preclusion attaches only when an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment." In re Corey, 583 F.3d at 1251 (quoting Arizona v. California, 530 U.S. 392, 414, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000); Restatement (Second) of Judgments § 27 cmt. e)(alterations omitted)(internal quotation marks omitted). See Restatement (Second) of Judgments § 27 ("When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim."). The Tenth Circuit's test for issue preclusion under res judicata consists of four elements:
Adams v. Kinder-Morgan, Inc., 340 F.3d 1083, 1093 (10th Cir.2003) (quoting United States v. Botefuhr, 309 F.3d 1263, 1282 (10th Cir.2002)).
Restatement (Second) of Judgments § 85.
Section 1983 of Title 42 of the United States Code provides:
42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff's constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir.2012) ("The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.") (quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006)). The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Because
"Under Section 1983, liability attaches only to conduct occurring `under color of law.'" Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995). The under-color-of-state-law requirement is a "jurisdictional requisite for a § 1983 action, which ... furthers the fundamental goals of preserving an area of individual freedom by limiting the reach of federal law ... and avoiding imposing on the state, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir.1995). "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power `possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West v. Atkins, 487 U.S. at 49, 108 S.Ct. 2250 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). "The authority with which the defendant is allegedly `clothed' may be either actual or apparent." Jojola v. Chavez, 55 F.3d at 493. Accordingly, at a base level, to find that an action was taken under color of state law, the court must find that "`the conduct allegedly causing the deprivation of a federal right' must be `fairly attributable to the State.'" Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1447 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)).
In the context of a public employee, the Tenth Circuit has directed that, while "`state employment is generally sufficient to render the defendant a state actor ... [,]' at the same time, it is `well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.'" Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935-36 n. 18, 102 S.Ct. 2744; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.1995)). Thus, "before conduct may be fairly attributed to the state because it constitutes action `under color of state law,' there must be `a real nexus' between the employee's use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant." Jojola v. Chavez, 55 F.3d at 493. What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the circumstances:
David v. City & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir.1996) (citations omitted) (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995)).
Government actors may be liable for the constitutional violations that another committed, if the actors "set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights," thus establishing the "requisite causal connection" between the government actor's conduct and a plaintiff's constitutional deprivations. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006). The Tenth Circuit has explained that § 1983 liability should be "`read against the background of tort liability that makes a man responsible for the natural consequences of his actions.'" Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled in part by Monell v. Dep't of Soc. Servs., 436 U.S. at 663, 98 S.Ct. 2018). "Thus, Defendants are liable for the harm proximately caused by their conduct." Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046). As the Court has previously concluded, "a plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles—including principles of causation...." Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M.2009) (Browning, J.).
The Tenth Circuit has found liability for those defendants who proximately caused an injury alleged under § 1983 and stated that the fact that the "conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant]," so long as there was not a superseding-intervening cause of a plaintiff's harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir.2006).
Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment, the Tenth Circuit has held that government actors "may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability." Martinez v. Carson, 697 F.3d at 1255. The Tenth Circuit gave an example of a superseding-intervening cause, quoting the Honorable Samuel J. Alito, then-United States Circuit Judge for the United
Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400). Additionally, "[f]oreseeable intervening forces are within the scope of the original risk, and ... will not supersede the defendant's responsibility." Trask v. Franco, 446 F.3d at 1047 (quoting William Lloyd Prosser et al., Prosser and Keeton on Torts § 44, at 303-04 (5th ed.1984)). If
Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt.b (1965)).
The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless there is "`an affirmative link ... between the constitutional deprivation and either the supervisor's personal participation,... exercise of control or direction, or ... failure to supervise.'" Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997)) (alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a "deliberate or conscious choice." Barney v. Pulsipher, 143 F.3d at 1307-08 (citations omitted)(internal quotation marks omitted). Cf. Bd. of Cnty. Comm'rs v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 ("[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged." (emphasis in original)).
The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee's or subordinate's constitutional violations. See Garcia v. Casuas, 2011 WL 7444745, at *25-26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. at 676, 129 S.Ct. 1937. The Tenth Circuit in Dodds v. Richardson held:
614 F.3d at 1199. The Tenth Circuit noted that Ashcroft v. Iqbal "does not purport to overrule existing Supreme Court precedent," but stated that "Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case." Dodds v. Richardson, 614 F.3d at 1200. It concluded that Ashcroft v. Iqbal did not alter "the Supreme Court's previously enunciated § 1983 causation and personal involvement analysis." Dodds v. Richardson, 614 F.3d at 1200. The Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal:
Dodds v. Richardson, 614 F.3d at 1199-1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: "We do not mean to imply that these are distinct analytical prongs, never to be intertwined." Dodds v. Richardson, 614 F.3d at 1200 n. 8. Relying on the Supreme Court's opinion in Board of County Commissioners v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:
Dodds v. Richardson, 614 F.3d at 1200 n. 8 (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. at 404-05, 117 S.Ct. 1382) (internal quotation marks omitted). The Tenth Circuit noted that "[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law." Dodds v. Richardson, 614 F.3d at 1200 n. 8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove "an `affirmative' link ... between the unconstitutional acts by their
A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom, and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality's inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218.
The Fourteenth Amendment states: "No State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. See, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). "Under either form of protection, however, a person must have a protected interest in either life, liberty, or property." Chavez-Rodriguez v. City of Santa Fe, No. 07-0633, 2008 WL 5992271, at *6 (D.N.M. Oct. 9, 2008) (Browning, J.).
"The Constitution does not create or define the contours of `liberty' or `property,' the `broad and majestic terms' enshrined in the Fourteenth Amendment." Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.1994) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. "Such an interest arises not from the Due Process Clause of the Constitution itself, but is `created by independent sources such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract.'" Teigen v. Renfrow, 511 F.3d 1072, 1079 (10th Cir.2007). See Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701 ("Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."); Farthing v. City of Shawnee, Kan., 39 F.3d at 1135 ("Rather, property interests, which are the subject of the present litigation, `are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701)); Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) ("[Liberty and property] interests attain ... constitutional status
"[O]nce it is determined that the Due Process Clause applies, `the question remains what process is due.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). "An essential principle of due process is that a deprivation of life, liberty, or property `be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 105 S.Ct. 1487 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). The Supreme Court has described
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545, 105 S.Ct. 1487 (footnote omitted) (citations omitted).
The Takings Clause provides that "private property" shall not "be taken for public use, without just compensation." U.S. Const. amend. V. The Supreme Court has stated: "The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, ... prohibits the government from taking private property for public use without just compensation." Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001). A government actor can "take" property for the purposes of the Fifth Amendment either by physically depriving the owner of the property or by placing upon the property such restrictive regulations that the owner is effectively deprived of the ability to use the property. See Palazzolo v. Rhode Island, 533 U.S. at 617, 121 S.Ct. 2448 (noting that "even a minimal permanent physical occupation of real property requires compensation under the Clause, and that a regulation which denies all economically beneficial or productive use of land will require compensation under the Takings Clause" (internal quotation marks omitted)).
The Stipulation that dismissed the federal claims in the First Complaint now bars all federal claims in the Current Complaint under principles of claim preclusion. "To apply the doctrine of res judicata, three elements must exist: (1) a judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and (3) identity of the cause of action in both suits."
The only contested issue is whether there is "identity of the cause of action in both suits." King v. Union Oil Co. of Cal., 117 F.3d at 445. Borrowing from the Restatement (Second) of Judgments, the Tenth Circuit (i) takes a broad view of what constitutes a "cause of action" for res judicata purposes; and (ii) directs that if there is substantial overlap—let alone identity—between the new and old cause of action, the new claim is barred.
Restatement (Second) of Judgments § 24 (quoted in King v. Union Oil Co. of Cal., 117 F.3d at 445; Lowell Staats Mining Co. v. Philadelphia Elec. Co., 878 F.2d 1271, 1274 (10th Cir.1989)). This language is expansive on its face, and the Tenth Circuit interprets it that way as well.
In King v. Union Oil Co. of California, an employer, Unocal, terminated a black employee, King, in what Unocal described as a "reduction in force," i.e., a mass layoff. 117 F.3d at 444. Unocal invited King—and all similarly situated employees—to file a claim form, which contained a provision releasing the employer from any legal liability arising from the termination. See 117 F.3d at 444. Unocal offered to provide employees with a severance package in return for executing the release, and it would withhold severance if the employee declined to submit the claim form. See 117 F.3d at 444. King initially submitted the form but indicated that he was terminated for his "`[i]nability to perform job assignment ... because of a disability resulting from illness or injury.'" 117 F.3d at 444 (alteration and omission in
117 F.3d at 447 (citation omitted).
There is even more overlap between the new and old cause of action in this case than there was in King v. Union Oil Co. of California. The Stipulation provides, in full:
Stipulation at 2. The scope of the release that the Stipulation effectuates is facially broad, dismissing "any" federal claim brought in the entire "matter, express or implied." Stipulation at 2. The Current Complaint alleges claims for "deprivation of property rights (42 U.S.C. § 1983)" and "taking of property without just compensation," both of which relate to the same act of alleged inverse condemnation—the SF Design Board's denial of a building-relocation request and the City Council's subsequent affirmance of the decision—that was the factual core of the First Complaint's allegations.
Although the Stipulation is the operative legal document—it is the prior adjudication on the merits—it is wise to look to the First Complaint to fully interpret the Stipulation's possible contours. See Stipulation at 2 (providing that "any federal claim brought in this matter, express or implied, is dismissed with prejudice"). If, for example, a governmental defendant condemned two properties that the same plaintiff owned, and the plaintiff filed suit only on property A, a stipulation releasing "any federal claims" would not be understood to bar a subsequent takings claim relating to property B unless the stipulation specifically said so. Stipulations, like most documents, are interpreted by first looking to their text, and then using context—including the text of the complaint whose claims the stipulation dismisses—to resolve textual ambiguities and vagueness.
On this front, NM Consolidated argues that the allegations in ¶ 57 of the Current Complaint set forth a new cause of action—one not set forth in the First Complaint. See Response at 9 ("The main allegations against the City are set out in ¶ 57a through k of the [Current] Complaint."). Paragraph 57 provides:
Current Complaint ¶ 57a-k. NM Consolidated argues that, while the First Complaint was about attacking the SF Design Board and the City Council's decision on its merits, the Current Complaint alleges something new: an attack on the SF Design Board and the City Council themselves, and the fairness of the process they used to come to their decision.
Unfortunately for NM Consolidated, the First Complaint is itself very broad and factually comprehensive, filling thirty-two pages of pleadings and another eighteen pages of attachments. The same basic allegations of bad faith and unfair process
First Complaint ¶¶ 70-73, at 21; id. ¶¶ 87-88, at 23-24; id. ¶ 92, at 24.
Even if NM Consolidated were alleging a new "theory" of takings, due process, or § 1983 in the Current Complaint which it did not allege in the First Complaint—and the Current Complaint does not even really do that—new theories do not present new causes of action under the Tenth Circuit's chosen framework:
Restatement (Second) of Judgments § 25.
If NM Consolidated had a federal dueprocess claim, it should have brought that claim in the First Complaint. Even if the First Complaint had alleged fewer claims than the Current Complaint, and the First Complaint had been adjudicated all the way to a trial on the merits and NM Consolidated had lost, that disposition would still bar NM Consolidated from
Having dismissed all federal claims, the Court now remands this case to state court. The Defendant-Appellees removed this case solely on the basis of federal-question jurisdiction, which the Court has now extinguished by dismissing the federal claims. See Notice of Removal ¶¶ 6-7, at 2-3, filed February 24, 2015 (Doc. 1). When the Court exercises supplemental jurisdiction over state-law claims in a case over which its original jurisdiction is federal-question jurisdiction, the Court should generally remand the case to state court—or, if the case was filed in federal court in the first instance, dismiss the case—if the Court "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). "When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims." Koch v. City of Del City, 660 F.3d 1228, 1239 (10th Cir.2011) (quoting Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1156 (10th Cir.1998)) (internal quotation marks omitted). The Court, therefore, will remand this case.
Reply ¶ 4, at 3 (citation omitted). The Court will not consider this fact undisputed, as the Defendant-Appellees—i.e., the summary-judgment movants—raised it for the first time in their Reply. See D.N.M. L.R.-Civ. 56.1(b). In any event, the additional fact is not needed to dispose of the Motion on the merits.
The Defendant-Appellees also argue that the first of the six documents, the Confidential Closed Executive Session Notes, filed August 15, 2014 (Doc. 35-1), is inadmissible as hearsay under rule 802 of the Federal Rules of Evidence and lacks authentication under rule 901(a), and that the Court thus cannot consider it in ruling on the Motion under rule 56(c)(2) of the Federal Rules of Civil Procedure. See Reply ¶ 5, at 3-4. They assert that "there is no evidence to identify the individual who made these notes" and that the notes are thus inadmissible per se. Reply ¶ 5, at 4. The Court agrees that the document is, based on the materials that NM Consolidated presented, inadmissible, and the Court will not use the document in ruling on the Motion. NM Consolidated may have been able to use the document, and it may still be able to use the document at trial—although that trial will now be in state court and subject to state—law evidentiary rules. Rule 56(c)(2) refers only to evidence that "cannot be presented in a form that would be admissible" and not to evidence that would be inadmissible in some forms but admissible in others. NM Consolidated likely knows who made the notes, and that person can both authenticate them—thus satisfying rule 901—and, possibly, fit them into a hearsay exemption or exception under rule 801 or 803, respectively. It is NM Consolidated's burden to demonstrate the admissibility of evidence of which it is the proponent—at least once the non-proponent has put forth a prima facie showing of inadmissibility. The Court understands that the Plaintiff-Appellees raised this evidentiary argument for the first time in the Reply, but, because NM Consolidated first referenced the evidence in the Response, the Reply was the Defendant-Appellees' only chance to raise the argument. If NM Consolidated wished to press the issue, it could have asked for—and the Court would have granted—leave to file a surreply for the limited purpose of addressing the Defendant-Appellees' evidentiary argument. See D.N.M. LR-Civ. 7.4(b); Walker v. THI of N.M. at Hobbs Ctr., No. CIV 09-0060 JB/KBM, 2011 WL 2728344, at *1 (D.N.M. July 6, 2011) (Browning, J.) ("A surreply is appropriate and should be allowed where new arguments are raised in a reply brief."). In any event, the Court has looked at the exhibit, and its admission would not change the Court's ruling on the Motion.
Last, the Court notes that NM Consolidated presents no evidence to support its assertion that the six attached documents were each produced "during a period when the Plaintiff had a zoning petition being heard by the City," but, as the Defendant-Appellees have not specifically disputed this fact and the Court has no independent reason to doubt its accuracy, the Court will deem it undisputed pursuant to rule 56(e)(2).
Response ¶¶ 13-14, at 8. These are essentially legal arguments—not factual assertions—and the Defendant-Appellees object to them, likewise using legal arguments. See Reply ¶¶ 13-14, at 6. The Court deems these two proposed facts disputed.
The City Defendants admit that Document 35-11 shows that the New Mexican published an article that supports the allegations contained in paragraph 6 of NMCCS's Facts. However, the City Defendants note that this article was posted in September of 2011, which means that it was available to NMCCS at the time it filed its [First] Complaint. Additionally, the record shows that NMCCS either read the article or was otherwise aware of the contents when it filed its [First] Complaint because NMCCS states in paragraph 70 of its [First] Complaint, that there were reports circulating in the media about the City's intent to acquire the property for the NMSA.
Reply ¶ 6, at 5 (citations omitted). Although this excerpt does not constitute an admission, it "fails to properly address [the] other party's assertion of fact as required by Rule 56(c)," and, thus, the Court deems NM Consolidated's fact to be undisputed pursuant to rule 56(e)(2).
