Coll, II, et al v. First American Title Insurance, et al
 Affirmed and Remanded. Terminated on the merits after oral hearing. Written, signed, published. Judges Tymkovich, Ebel (authoring judge), and Gorsuch. Mandate to issue.
Appellate Case: 08-2174 Document: 01018629229 Date Filed: 04/26/2011 Page: 1
United States Court of Appeals
UNITED STATES COURT OF APPEALS
April 26, 2011
Elisabeth A. Shumaker
Clerk of Court
MAX W. COLL, II, CATHERINE
JOYCE-COLL, CHARLES T. MURPHY,
BARBARA E. MURPHY, HAYDOCK
H. MILLER, JR.,
Plaintiffs - Appellants,
FIRST AMERICAN TITLE
INSURANCE COMPANY, NEW
MEXICO PUBLIC REGULATION
COMMISSION, JASON MARKS,
DAVID W. KING, BEN R. LUJAN,
LYNDA M. LOVEJOY, E. SHIRLEY
BACA, NEW MEXICO DEPARTMENT
OF INSURANCE, ERIC SERNA, OLD
REPUBLIC TITLE INSURANCE
COMPANY, INC., COMMONWEALTH
LAND TITLE INSURANCE
COMPANY, LAWYERS TITLE
TRANSNATION TITLE INSURANCE
COMPANY, STEWART TITLE
GUARANTY COMPANY, FIDELITY
NATIONAL TITLE INSURANCE
COMPANY, CHICAGO TITLE
INSURANCE COMPANY, TICOR
TITLE INSURANCE COMPANY,
COMMERCE TITLE INSURANCE
COMPANY, UNITED GENERAL
TITLE INSURANCE COMPANY,
Appellate Case: 08-2174 Document: 01018629229 Date Filed: 04/26/2011 Page: 2
Defendants - Appellees.
Appeal from the United States District Court
for the District of New Mexico
(D.C. Nos. 1:06-CV-00348-WFD-DJS, 1:06-CV-441-WFD-DJS)
Victor R. Marshall, Victor R. Marshall & Associates, P.C., Albuquerque, New Mexico,
for Plaintiffs – Appellants.
Charles A. Newman, Sonnenschein Nath & Rosenthal, LLP, St. Louis, Missouri (Richard
M. Zuckerman, Sonnenschein Nath & Rosenthal, LLP, New York, New York, Jerry
Wertheim, Jerry Todd Wertheim, Jones, Snead, Wertheim & Wentworth, P.C., Santa Fe,
New Mexico, David M. Foster, Fulbright & Jaworski, LLP, Washington, D.C., Michael
B. Campbell, Holland & Hart LLP, Santa Fe, New Mexico, David Fleischer, Paul,
Hastings, Janofsky & Walker LLP, New York, New York, W. Spencer Reid, Thomas C.
Bird, Keleher & McLeod, P.A., Albuquerque, New Mexico, Phillip E. Stano and Brian C.
Spahn, Sutherland, Washington, D.C., D. James Sorenson, Kemp Smith, LLP, El Paso,
Texas, Stephen C. Schoettmer, Thompson & Knight, Dallas, Texas, and Thomas A.
Simons, IV, Faith Kalman Reyes, Simons & Slattery, LLP, Santa Fe, New Mexico with
him on the brief) for Defendants – Appellees.
Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges.
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
Appellate Case: 08-2174 Document: 01018629229 Date Filed: 04/26/2011 Page: 3
have complied with this New Mexico law. Having jurisdiction pursuant to 28 U.S.C.
§ 1291, we AFFIRM.1
A. New Mexico Title Insurance Act
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).2 Through the “Title Insurance Act,” N.M. Stat. Ann. §§ 59A30-1 through 59A-30-15 (“Act”), the New Mexico legislature “provide[s] a
comprehensive body of law for the effective regulation and active supervision of the
business of title insurance transacted within” the state. Id. § 59A-30-2(A).
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
Plaintiffs have asked this Court to certify the questions of state law at issue here to the
New Mexico Supreme Court. See generally N.M. Stat. Ann. §§ 39-7-1 through 39-7-13
(providing for certification). We deny that motion, in part because Plaintiffs never
requested certification in the district court until after that court dismissed with prejudice
their claims against the Insurer Defendants. See Zurich Am. Ins. Co. v. O’Hara Reg’l
Ctr. for Rehab., 529 F.3d 916, 926 (10th Cir. 2008) (noting that “[t]his court generally
will not certify questions to a state supreme court when the requesting party seeks
certification only after having received an adverse decision from the district court”).
The New Mexico legislature amended the Title Insurance Act in 2009, after Plaintiffs
filed this action. The statutory provisions discussed above are those in effect when
Plaintiffs filed this suit.
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insurance. See id. §§ 59A-30-4, 59A-30-6, 59A-30-8.3 Those rates “shall not be
excessive, inadequate or unfairly discriminatory and shall contain an allowance
permitting a profit that is not unreasonable in relation to the riskiness of the business of
title insurance.” Id. § 59A-30-6(C). “A person aggrieved by an order of the
superintendent promulgating rates under the [Act] shall have the right” first to an
administrative appeal before the New Mexico Public Regulation Commission (“PRC”)
and then to review in state court. Id. §§ 59A-17-34 to -35, 59A-30-9. The superintendent
also establishes what coverage a title insurer can offer; and the Act mandates that title
insurers use only forms promulgated by the superintendent to offer that coverage. See id.
§§ 59A-30-4, 5; see also Lisanti v. Alamo Title Ins. of Tex., 55 P.3d 962, 964 (N.M.
2002). See generally N.M. Code R. § 13.14.18 (setting forth title insurance forms).
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-173(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
In 2009, the New Mexico legislature amended the Act to require such hearings only
during odd-numbered years. See N.M. Stat Ann. § 59A-30-8(A) (2009).
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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 insurer or particular matter shall
prevail over provisions relating to insurance in general or insurers in general or to such
matter in general.”). While the Title Insurance Act has explicitly incorporated a variety
of provisions of the Insurance Code, it has not incorporated Article 17’s provisions
promoting competition among insurers.4 See id. § 59A-30-14.
For these reasons, Plaintiffs’ heavy reliance in their appellate briefs on these provisions
in Article 17 of the New Mexico Insurance Code is frequently unavailing. So, too, is
their reliance on cases decided under the Insurance Code, including Berry v. Federal
Kemper Life Assurance Co., 99 P.3d 1166 (N.M. Ct. App. 2004) (addressing certification
of class action seeking damages for life insurers’ failure to disclose additional cost for
policyholders to pay their premiums installments), and Azar v. Prudential Insurance Co.,
68 P.3d 909 (N.M. Ct. App. 2003) (addressing whether life insurers adequately disclosed
to policyholders the additional cost of paying their premiums in installments).
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B. Procedural background
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”)5, and 2) the New Mexico Public Regulation
Commission (“PRC”), the PRC commissioners, the New Mexico Department of
Insurance, and the New Mexico superintendent of insurance (“State Defendants”).6 The
Insurer Defendants removed both of these state-court actions to federal court under the
Class Action Fairness Act, 28 U.S.C. § 1332(d).
Plaintiffs’ complaints alleged generally that the Title Insurance Act violates
numerous New Mexico constitutional and statutory provisions precluding price fixing
The Insurer Defendants include: First American Title Insurance Company, Fidelity
National Title Insurance Company, Chicago Title Insurance Company, Commerce Title
Insurance Company, Commonwealth Land Title Insurance Company, Lawyers Title
Insurance Corporation, Old Republic National Title Insurance Company, Stewart Title
Guaranty Company, Ticor Title Insurance Company, Transnation Title Insurance
Company, and United General Title Insurance Company.
Plaintiffs originally sued Eric Serna in his official capacity as the superintendent of
insurance. When another superintendent was appointed, the district court granted the
State Defendants’ motion to replace Serna in this case with the new superintendent;
Plaintiffs do not challenge that substitution on appeal. In light of that order, we have
substituted in the caption the current New Mexico superintendent of insurance, John
Franchini. See Fed. R. Civ. P. 25(d).
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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 filed a motion to amend
their complaints, which the district court denied.
II. APPELLATE JURISDICTION
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
Appellate Case: 08-2174 Document: 01018629229 Date Filed: 04/26/2011 Page: 8
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 statelaw 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 postdismissal 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).
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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, 2008,7 and then
denied Plaintiffs’ motion to amend on June 27, 2008. See Fed. R. App. P. 4(a)(2) (“A
notice of appeal filed after the court announces a decision or order—but before the entry
of the judgment or order—is treated as filed on the date of and after the entry.”); Rule
4(a)(4)(B)(i) (“If a party files a notice of appeal after the court announces or enters a
judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A) [including Rule
59 and 60 motions]—the notice becomes effective to appeal a judgment or order, in
whole or in part, when the order disposing of the last such remaining motion is
entered.”); see also B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1295 (10th
Cir. 2008) (holding premature notice of appeal ripened when district court resolved
remaining claims); Warren v. Am. Bankers Ins. of Fla., 507 F.3d 1239, 1244-45 (10th
Cir. 2007) (concluding premature notice of appeal ripened when the district court
resolved the tolling motion).
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
Five days later, on June 30, 2008, the district court entered the identical judgment a
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later (June 27) decision denying Plaintiffs’ post-dismissal motion to amend, Plaintiffs had
to file a second notice of appeal:
A party intending to challenge an order disposing of any motion listed in
Rule 4(a)(4)(A) [including motions made under Rule 59 or 60], . . . must
file a notice of appeal, or an amended notice of appeal—in compliance with
[Fed. R. App. P.] 3(c)—within the time prescribed by this Rule measured
from the entry of the order disposing of the last such remaining motion.
Fed. R. App. P. 4(a)(4)(B)(ii); see also Ysais v. Richardson, 603 F.3d 1175, 1179 (10th
Cir. 2010), cert. denied, 131 S. Ct. 163 (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.
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
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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. MinneapolisHoneywell Regulator Co., 344 U.S. 206, 211-12 (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).
For these reasons, Plaintiffs failed to file a timely notice of appeal from the district
court’s decision denying Plaintiffs’ post-dismissal motion to amend their complaint.
“This court can exercise jurisdiction only if a notice of appeal is timely filed. A timely
notice of appeal is both mandatory and jurisdictional.” Allender, 439 F.3d at 1239
(internal quotation marks and citation omitted). Therefore, we do not have jurisdiction to
review the district court’s decision denying Plaintiffs’ motion to amend. We, thus,
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consider here only the district court’s decision dismissing with prejudice Plaintiffs’
claims asserted against the Insurer Defendants.
III. STANDARD OF REVIEW
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
follow the most recent decisions of the state’s highest court. Where no
controlling state decision exists, [we] must attempt to predict what the
state’s highest court would do. . . . [We] may seek guidance from decisions
rendered by lower courts in the relevant state, appellate decisions in other
states with similar legal principles, district court decisions interpreting the
law of the state in question, and the general weight and trend of authority in
the relevant area of law. Ultimately, however, the Court’s task is to predict
what the [New Mexico] [S]upreme [C]ourt would do. Our review of the
district court’s interpretation of state law is de novo.
Id. at 665-66 (internal quotation marks and citations omitted).
A. New Mexico’s “filed rate” doctrine precluded Plaintiffs’ claims seeking damages
and similar relief from the Defendant Insurers for charging excessive premiums
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Plaintiffs contend that the premium rate that the state superintendent of insurance
established for title insurance in New Mexico is excessive and unreasonably high.8
Furthermore, Plaintiffs allege that this rate is the result of the Insurer Defendants acting
in concert with the State Defendants to fix prices for title insurance, and that the Insurer
Defendants conspired with each other and Superintendent of Insurance Eric Serna to
bribe Serna to set unreasonably high title insurance rates. We agree with the district court
that New Mexico’s “filed rate” doctrine precluded Plaintiffs’ claims against the Insurer
Defendants to the extent Plaintiffs sought money damages as relief for excessive title
1. “Filed rate” doctrine precluded Plaintiffs’ claims for damages generally
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, 54 P.3d 71, 74-75 (N.M.
2002) (internal quotation marks and alterations omitted); see also Summit Props., Inc. v.
Pub. Serv. Co. of N.M., 118 P.3d 716, 723-24 (N.M. Ct. App. 2005). “[T]he heart of the
filed rate doctrine is not that the rate mirrors a competitive market, nor that the rate is
reasonable or thoroughly researched, it is that the filed rate is the only legal rate.”
Valdez, 54 P.3d at 75. “The policy behind the filed rate doctrine is to prevent price
Plaintiffs challenge the superintendent’s interpretation of the Title Insurance Act to
require that he set one premium rate. We agree with the district court that the
superintendent’s interpretation was reasonable.
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discrimination[,] to preserve the role of agencies in approving rates and to keep courts out
of the rate-making process.” Id.
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 7475 (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).9
Plaintiffs argue that Valdez is not relevant here because that case dealt with telephone
rates set by the PRC, while this case instead deals with insurance rates that are set by the
state superintendent of insurance and overseen by the PRC. Plaintiffs further argue
In New Mexico, telephone companies are subject to a system of regulated
monopolies, administered by the PRC, a special body created by the
Constitution itself, see N.M. Const. art XI, § 2, to protect consumers against
natural monopolies like electric utilities, gas utilities, transportation
companies, and telephone companies. By contrast, insurance companies
are subject to a system of regulated competition, administered by the
Insurance Division, which is a purely statutory body which has no
(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), aff’d, 721 N.W.2d 307 (Minn. 2006); Richardson v. Standard Guar. Ins. Co.,
853 A.2d 955, 963-65 (N.J. Super. Ct. App. Div. 2004) (agreeing with “considerable
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2. The “filed rate” doctrine also precluded Plaintiffs’ damages claims
asserted against the Insurer Defendants based upon allegations of conspiracy
and bribery to set excessive rates for title insurance
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:
72. Defendant insurance companies and defendant Serna have conspired to
evade or violate NMSA 1978, § 1-19-34.2 [prohibiting a public officer or
employee who works for a regulatory office to solicit funds from an entity
regulated by that agency] by using Con Alma Health Foundation, Inc., a
purported private foundation. Until he was recently forced by the [PRC] to
resign from Con Alma, defendant Serna effectively directed and controlled
Con Alma. Defendant Serna or his agents solicited contributions for Con
Alma from entities or persons regulated by the Insurance Department,
including the defendant insurance companies.
73. In 2003, unidentified persons or entities affiliated with the defendant
insurance companies contributed at least $21,750 to Con Alma. The exact
identity of these contributors is not currently known to plaintiffs, because
Con Alma’s contribution report identifies them only as “Title Insurance
Industry in NM, 2155 Louisiana Blvd., #4000, Albuquerque NM 87110.”
The current occupant of those premises is LandAmerica Albuquerque Title
Company, which is a division or subsidiary of LandAmerica Financial
The defendants Commonwealth Land Title Insurance
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. § 59A17-3, 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.
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Company, Lawyers Title Insurance Corporation, and Transnation Title
Insurance Company are subsidiaries of LandAmerica Financial Group.
74. In 2004, unidentified persons or entities affiliated with the defendant
insurance companies contributed at least $26,200 to Con Alma. The exact
identity of these contributors is not currently known to plaintiffs, because
Con Alma’s contributions report identifies them only as “Title Insurance
Industry of NM.”
75. A primary purpose of these contributions was to influence defendant
Serna, in his capacity as Superintendent of Insurance, to set unreasonably
high rates for title insurance, and to restrain competition as to the price and
terms of title insurance in New Mexico.
76. Using improper means and methods, defendant title insurance
companies have conspired among themselves and with defendant Serna to
violate the laws of New Mexico as set forth herein.
(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
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the PUC set in Minnesota).10 Under this authority, “the underlying conduct does not
control whether the filed rate doctrine applies. Rather, the focus for determining whether
See also Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 410, 41217, 424 (1986) (applying “filed rate” doctrine to preclude antitrust claims alleging motor
carriers conspired to file excessive rates with the Interstate Commerce Commission,
which, upon filing, became the legal rate; relying on Keogh v. Chi. & Nw. Ry. Co., 260
U.S. 156 (1922)); Crumley v. Time Warner Cable, Inc., 556 F.3d 879, 880-81 (8th Cir.
2009) (per curiam) (applying H.J. Inc. and holding “filed rate” doctrine barred claim
alleging cable company fraudulently recovered double fees as part of rate filed with and
approved by local regulating authority; noting that the “filed rate” doctrine applies
regardless of the fact that the “claim involves allegations of fraud”); Wah Chang v. Duke
Energy Trading & Mktg., LLC, 507 F.3d 1222, 1224-27 (9th Cir. 2007) (applying “filed
rate” doctrine to bar claim alleging rate approved by agency was too high because
applicant fraudulently manipulated the market, skewing the rate approval process);
AT&T Corp. v. JMC Telecom, LLC, 470 F.3d 525, 535 (3d Cir. 2006) (“[T]here is no
fraud exception to the filed rate doctrine.”); Transmission Agency of N. Cal. v. Sierra
Pac. Power Co., 295 F.3d 918, 932-33 (9th Cir. 2002) (applying H.J. Inc. to conclude
that, under the circumstances of that case, the “filed rate” doctrine precluded claims
alleging fraud before an administrative agency because “[t]he impact of any award of
damages . . . would be to undermine [the regulatory agency’s] ability to regulate rates”);
Hill v. BellSouth Telecomms., Inc., 364 F.3d 1308, 1311-13, 1315-17 (11th Cir. 2004)
(applying “filed rate” doctrine to bar state-law fraud claims that implicate approved rate);
Marcus v. AT&T Corp., 138 F.3d 46, 58-59 (2d Cir. 1998) (“Application of the filed rate
doctrine in any particular case is not determined by the culpability of the defendant’s
conduct or the possibility of inequitable results.”) (citing cases); Wegoland Ltd. v.
NYNEX Corp., 27 F.3d 17, 18, 20-22 (2d Cir. 1994) (holding there is no exception to the
“filed rate” doctrine for a claim alleging that the approved rate is the result of fraud
perpetrated on the regulatory agency; noting “every court that has considered the
[question] has rejected the notion that there is a fraud exception to the filed rate
doctrine”) (citing cases); Taffet v. S. Co., 967 F.2d 1483, 1485, 1487-90, 1494-95 (11th
Cir. 1992) (reh’g en banc) (relying on “filed rate” doctrine to preclude civil claim,
asserted under the federal Racketeer Influenced and Corrupt Organizations Act
(“RICO”), alleging utilities obtained rate increase through fraud perpetrated on regulating
agency; noting that “[a] regulated entity’s alleged fraud does not create a right to a
reasonable rate that exists independently of agency action”); Centerpoint Energy, Inc. v.
Miller Cnty. Circuit Ct., 258 S.W.3d 336, 342-43 (Ark. 2007) (noting Arkansas law has
adopted Eighth Circuit’s reasoning in H.J. Inc. “that the underlying alleged fraudulent
conduct of the defendants did not control whether the fixed-rate doctrine applies”);
Appellate Case: 08-2174 Document: 01018629229 Date Filed: 04/26/2011 Page: 18
the filed rate doctrine applies is the impact the court’s decision will have on agency
Gallivan v. AT&T Corp., 21 Cal. Rptr. 3d 898, 905-06 (Cal. Ct. App. 2004) (applying
reasoning of H.J. Inc., among others, to hold “filed rate” doctrine barred damages claim
alleging fraud); Amundson & Assocs. Art Studio, Ltd. v. Nat’l Council on Comp. Ins.,
Inc., 988 P.2d 1208, 1211-17 (Kan. Ct. App. 1999) (holding “filed rate” doctrine barred
claims that workers’ compensation insurers conspired to control insurance rates);
Commonwealth ex rel. Chandler v. Anthem Ins. Cos., 8 S.W.3d 48, 50, 53 (Ky. Ct. App.
1999) (holding there was no fraud exception to “filed rate” doctrine that would save
claims that insurers “had engaged in a fraudulent scheme to charge Kentucky consumers
of health insurance inflated premium rates”); Bauer v. Sw. Bell Tel. Co., 958 S.W.2d
568, 570-71 (Mo. Ct. App. 1997) (holding “filed rate” doctrine barred claim alleging
fraud; noting that “[c]ourts that have considered the fraud issue almost unanimously have
rejected the notion that there is a fraud exception to the filed rate doctrine”) (internal
quotation marks omitted); Guglielmo v. WorldCom, Inc., 808 A.2d 65, 67, 69-72 (N.H.
2002) (applying “filed rate” doctrine to bar claims alleging telecommunications
companies conspired with prisons to violate state antitrust and consumer protection laws
to set excessive rates for collect calls to inmates); Weinberg v. Sprint Corp., 801 A.2d
281, 243-44 (N.J. 2002) (holding “filed rate” doctrine bars claim for money damages,
asserted against telecommunications carriers, premised on “consumer fraud or other
bases on which plaintiffs seek to enforce a rate other than the filed rate”); Porr v.
NYNEX Corp., 660 N.Y.S.2d 440, 442, 445-46 (N.Y. App. Div. 1997) (noting “there is
no general ‘fraud exception’ to the filed rate doctrine,” citing cases; further holding that
“a consumer’s claim, however disguised, seeking relief for an injury allegedly caused by
the payment of a rate on file with a regulatory commission, is viewed as an attack upon
the rate approved by the regulatory commission. All such claims are barred by the ‘filed
rate’ doctrine.”); Minihane v. Weissman, 640 N.Y.S.2d 102, 102-03 (N.Y. App. Div.
1996) (holding “filed rate” doctrine barred claim alleging that insurers submitted false
and misleading information to superintendant of insurance, thus fraudulently obtaining
the filed rate); N.C. Steel, Inc. v. Nat’l Council on Comp. Ins., 496 S.E.2d 369, 371-75
(N.C. 1998) (holding “filed rate” doctrine barred claim that workers’ compensation
insurers withheld evidence from insurance commissioner that caused him to approve an
excessive rate, as well as claim that insurers conspired to affect premium rates); Prentice
v. Title Ins. Co. of Minn., 500 N.W.2d 658, 659-60, 662 (Wis. 1993) (applying “filed
rate” doctrine to bar claim alleging insurance companies, which were required to file a
rate with the state’s insurance commissioner, agreed to fix prices of title insurance and
related services). But see Cellular Plus, Inc. v. Superior Ct., 18 Cal. Rptr. 2d 308, 317-19
(Cal. Ct. App. 1993) (holding that, under California law, “filed rate” doctrine would not
preclude suit for damages by person injured by reason of a price fixing conspiracy even if
the fixed prices had been approved by the relevant regulatory agency).
Appellate Case: 08-2174 Document: 01018629229 Date Filed: 04/26/2011 Page: 19
procedures and rate determinations.” Id. at 489. The dispositive question, then, is
whether, if plaintiffs succeed on their damages claims, the court’s determination will
impact the agency’s rate determinations. If so, the “filed rate” doctrine will bar the claim.
See Crumley, 556 F.3d at 882. That is clearly the case here.
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.
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3. Plaintiffs’ arguments to the contrary are unavailing
Plaintiffs argue that
[t]he district court ruled that once New Mexico regulators have decided and
filed a rate, no one can challenge it, in any court, on any grounds. This
sweeping ruling is so overbroad that it strips consumers of any protection
under the New Mexico laws, and ousts the judiciary from any role in
scrutinizing regulatory decisions for compliance with statutes and the [New
(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 reasonableness of the approved rate for title insurance premiums. Cf.
Square D, 476 U.S. at 422 & 422 n.28 (recognizing that, while “filed rate” doctrine
precluded damages claim under federal antitrust laws, it did not preclude claims for
injunctive and declaratory relief); Arsberry v. Illinois, 244 F.3d 558, 562-63 (7th Cir.
2001) (noting that “a conspiracy to file (or not file) particular tariffs is not insulated by
the filed-rate doctrine from attack under the antitrust laws or other sources of independent
rights, provided only injunctive relief is sought” (internal citations omitted)); Dolan v.
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Fid. Nat’l Title Ins. Co., 365 F. App’x 271, 275 (2d Cir. 2010) (unpublished) (noting that
“a plaintiff may sue for an injunction designed to put an end to the conspiracy” to set
filed rates “so long as that injunction does ‘not enjoin operation under established rates’”
(quoting Georgia v. Pa. R.R., 324 U.S. 439, 455 (1945))), cert. denied, 131 S. Ct. 261
(2010); Marcus, 138 F.3d at 62-63 (in determining whether “filed rate” doctrine
precluded claims for injunctive relief, considering whether requested injunction would
implicate either non-discrimination or non-judiciability strand of “filed rate” doctrine).
4. Conclusion as to the application of the “filed rate” doctrine
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).11
Relying on City of Las Cruces v. El Paso Electric Co., 904 F. Supp. 1238 (D. N.M.
1995), Plaintiffs assert, contrary to Valdez, that the “filed rate” doctrine cannot preclude
their claims for restitution or unjust enrichment. But City of Las Cruces did not address
the application of the “filed rate” doctrine, as Valdez did. Further, in declining to dismiss
the plaintiff’s claim of unjust enrichment in that context, City of Las Cruces specifically
held that the City’s claim at issue in that case did not implicate the approved rate that the
defendant electric company charged its customers, but instead sought to collect a
franchise fee the electric company had been paying the City of Las Cruces for the right to
use the City’s streets, alleys, rights-of-way and other public grounds to provide electricity
to its customers in the City. See 904 F. Supp. at 1244, 1246-47.
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B. Plaintiffs lack standing to assert a claim for injunctive or declaratory relief
against the Insurer Defendants, alleging that the New Mexico Title Insurance Act
violates the New Mexico Constitution
Plaintiffs allege that New Mexico’s Title Insurance Act violates two provisions of
the New Mexico Constitution, art. IV, §§ 26, 38.12 Treating these allegations as claims
seeking injunctive and declaratory relief, we conclude Plaintiffs lack standing to assert
such claims against the Insurer Defendants.13
“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
New Mexico Constitution, art. IV, § 26 provides:
The legislature shall not grant to any corporation or person, any rights,
franchises, privileges, immunities or exemptions, which shall not, upon the
same terms and under like conditions, inure equally to all persons or
corporations; no exclusive right, franchise, privilege or immunity shall be
granted by the legislature or any municipality in this state.
And Article IV, § 38 provides that “[t]he legislature shall enact laws to prevent trusts,
monopolies and combinations in restraint of trade.”
To the extent Plaintiffs are instead seeking damages relief on their state constitutional
claims, the “filed rate” doctrine would also preclude such relief.
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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
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.
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(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.
C. Plaintiffs failed to state a claim under the New Mexico Antitrust Act
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.14
Even if the “filed rate” doctrine precluded Plaintiffs’ claims for damages asserted
under the New Mexico Antitrust Act, but see Valdez, 54 P.3d at 74-76 (addressing
damages claims precluded by “filed rate” doctrine separately from claims asserted under
the New Mexico Antitrust Act), the Antitrust Act also provides for injunctive relief, as
well as costs and attorneys’ fees. See N.M. Stat. § 57-1-3(A). The “filed rate” doctrine
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1. Compliance with the New Mexico Title Insurance Act did not violate the
New Mexico Antitrust Act
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:
Nothing contained in the Antitrust Act is intended to prohibit actions which
A. clearly and expressly authorized by any state agency or
regulatory body acting under a clearly articulated and
affirmatively expressed state policy to displace competition
with regulation; and
B. actively supervised by the state agency or regulatory body
which is constitutionally or statutorily granted the authority to
supervise such actions when the agency or regulatory body
does not have any proprietary interest in the actions.
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
would not necessarily preclude such relief. Therefore, we need to proceed with the
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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.),
697 P.2d 948, 951 (N.M. 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
2. The Insurer Defendants did not violate the New Mexico Antitrust Act even
if they conspired to bribe the superintendent of insurance
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,15 the district court held that, even assuming the truth of these allegations, “such
an agreement is insufficient as a matter of law to establish a violation of [New Mexico’s]
antitrust laws.” (Id. at 462-63.) We agree.
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 (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.
See E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961);
United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965).
Appellate Case: 08-2174 Document: 01018629229 Date Filed: 04/26/2011 Page: 27
Parker v. Brown, 317 U.S. 341, 350-52 . . . (1943).”16 Tal v. Hogan, 453 F.3d 1244,
1258 (10th Cir. 2006) (emphasis added).
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
a. The New Mexico Supreme Court, if presented with the question,
would adopt the Noerr-Pennington doctrine when applying the state’s
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 NoerrPennington doctrine when applying New Mexico’s Antitrust Act.17 The New Mexico
New Mexico courts have indicated that the federal “state action immunity,” which
“implicate[s] the relationship between federal and state governments,” is not applicable to
cases brought under New Mexico’s Antitrust Act. City of Sunland Park v. Macias, 75
P.3d 816, 823-24 (N.M. Ct. App. 2003). But the New Mexico Antitrust Act similarly
exempts the State from its coverage. See N.M. Stat. § 57-1-1.2 (excepting the State from
the Act’s definition of “person”).
Plaintiffs claim that the New Mexico Supreme Court has already rejected the NoerrPennington doctrine in DeVaney v. Thriftway Marketing Corp., 953 P.2d 277 (N.M.
1997), overruled on other grounds by Durham v. Guest, 204 P.3d 19, 24-26 (N.M. 2009),
and Fleetwood Retail Corp. of New Mexico v. LeDoux, 164 P.3d 31, 39-40 (N.M. 2007),
and in Summit Properties, Inc. v. Public Service Co. of New Mexico, 118 P.3d at 727-28.
But those cases are inapposite. In Devaney, the New Mexico Supreme Court mentioned
the Noerr-Pennington doctrine, not in the antitrust context, but instead in considering a
malicious abuse of process tort claim. See 953 P.2d at 284 & n.1. In that context, the
New Mexico Supreme Court generally noted, without ruling on the subject, that, because
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Antitrust Act is patterned after the federal Sherman Antitrust Act, see Smith Mach. Corp.
v. Hesston, Inc., 694 P.2d 501, 505 (N.M. 1985), and the state law specifically mandates
that, “[u]nless otherwise provided in the [New Mexico] Antitrust Act, the Antitrust Act
shall be construed in harmony with judicial interpretations of the federal antitrust laws.
This construction shall be made to achieve uniform application of the state and federal
laws prohibiting restraints of trade and monopolistic practices,” N.M. Stat. § 57-1-15.
See Romero v. Philip Morris Inc., 242 P.3d 280, 289, 291 (N.M. 2010). New Mexico
case law, therefore, recognizes “the duty of the courts to ensure that New Mexico
antitrust law does not deviate substantially from federal interpretations of antitrust law.”
Id. Thus, “[i]n the absence of New Mexico decisions directly on point, [the New Mexico
Supreme Court] look[s] to federal cases involving allegations of antitrust arrangements
under . . . the Sherman Act.” Smith, 694 P.2d at 505.
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.
of the importance of the First Amendment right to petition courts for redress “and the
potential chilling effect of tort liability” on the exercise of that right, some states apply
the Noerr-Pennington doctrine to actions for malicious prosecution and abuse of process.
Id. at 284 n.1. And in Summit Properties, the New Mexico Court of Appeals noted only
that the defendant in that case had failed to raise adequately a defense under NoerrPennington. See 118 P.3d at 727-28. These decisions certainly do not suggest that the
New Mexico Supreme Court would reject application of the Noerr-Pennington doctrine
generally, let alone specifically in the antitrust context presented here, nor do they
indicate how the New Mexico Supreme Court would apply Noerr-Pennington in other
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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.18 For these reasons, then, we
See Ex Parte Simpson, 36 So. 3d 15, 21, 26-28 (Ala. 2009) (applying NoerrPennington to state tort causes of action); Gunderson v. Univ. of Alaska, 902 P.2d 323,
324, 326-30 (Alaska 1995) (applying Noerr-Pennington to state-law contract claim);
Blank v. Kirwan, 703 P.2d 58, 60-61, 63-69 (Cal. 1985) (applying Noerr-Pennington to
California antitrust statute); Zeller v. Consolini, 758 A.2d 376, 378, 380-82 (Conn. App.
Ct. 2000) (applying Noerr-Pennington to state-law tort claim for tortious interference
with a business relationship); Sandholm v. Kuecker, 942 N.E.2d 544, 562-63 (Ill. App.
Ct. 2010) (discussing Illinois courts’ application of Noerr-Pennington to some state-law
claims), appeal allowed, 943 N.E.2d 1109 (Ill. 2011); Bond v. Cedar Rapids Television
Co., 518 N.W.2d 352, 353, 355-56 (Iowa 1994) (applying Noerr-Pennington to state tort
claim); Grand Cmtys. Ltd. v. Stepner, 170 S.W.3d 411, 412 (Ky. Ct. App. 2004)
(applying Noerr-Pennington to state-law tort claims stemming from zoning decisions);
Arim v. Gen. Motors Corp., 520 N.W.2d 695, 699-702 (Mich. Ct. App. 1994) (per
curiam) (applying Noerr-Pennington to state-law torts claims); Harrah’s Vicksburg Corp.
v. Pennebaker, 812 So. 2d 163, 171 (Miss. 2001) (holding Noerr-Pennington applies to
state-law antitrust and tort claims alleging restraint of trade, civil conspiracy and tortious
interference); Defino v. Civic Ctr. Corp., 780 S.W.2d 665, 666-71 (Mo. Ct. App. 1989)
(applying Noerr-Pennington to state antitrust and tort claims); Green Mountain Realty
Corp. v. Fifth Estate Tower, LLC, 13 A.3d 123, 126, 128-31 (N.H. 2010) (applying
Noerr-Pennington doctrine to claim asserted under New Hampshire’s Consumer
Protection Act); Structure Bldg. Corp. v. Abella, 873 A.2d 601, 602-03 (N.J. App. Div.
2005) (applying Noerr-Pennington to state-law tort claims); Arts4All Ltd. v. Hancock,
810 N.Y.S.2d 15, 16 (N.Y. App. Div. 2006) (applying Noerr-Pennington to state-law tort
claim); Good Hope Hosp., Inc. v. N.C. Dep’t of Health & Human Servs., 620 S.E.2d 873,
877, 881 (N.C. Ct. App. 2005) (applying Noerr-Pennington to state antitrust and tort
claims); Alves v. Hometown Newspapers, Inc., 857 A.2d 743, 753 (R.I. 2004) (noting
Rhode Island Supreme Court has adopted the Noerr-Pennington test and has applied it to
common law torts); Black Hills Jewelry Mfg. Co. v. Felco Jewel Indus., 336 N.W.2d 153,
Appellate Case: 08-2174 Document: 01018629229 Date Filed: 04/26/2011 Page: 30
predict that the New Mexico Supreme Court would adopt the Noerr-Pennington doctrine
when applying the New Mexico Antitrust Act.
b. The Noerr-Pennington doctrine precluded Plaintiffs’ claims
asserted under the New Mexico Antitrust Act, which are premised on
allegations that the Defendant Insurers conspired to influence, and
bribe, the superintendent of insurance to set an excessive premium rate
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.
Later in Noerr, the Court addressed the other side “of the same coin,” City of Columbia,
159 (S.D. 1983) (applying Noerr-Pennington to state antitrust claims, but holding it did
not apply in the particular circumstances of this case); RRR Farms, Ltd. v. Am. Horse
Prot. Ass’n, Inc., 957 S.W.2d 121, 126-29 (Tex. App. 1997) (applying Noerr-Pennington
to state-law tort claims); Anderson Dev. Co. v. Tobias, 116 P.3d 323, 332-33 (Utah 2005)
(noting that Noerr-Pennington applies to state antitrust and tort claims); Titan Am., LLC
v. Riverton Inv. Corp., 569 S.E.2d 57, 61-62 (Va. 2002) (applying Noerr-Pennington to
state-law claims for conspiracy and business torts); Perrine v. E.I. du Pont de Nemours &
Co., 694 S.E.2d 815, 834, 884 n.78 (W.Va. 2010) (noting Noerr-Pennington generally
applied to state-law claims, but holding that doctrine did not apply in particular
circumstances of this case); see also Astoria Entm’t, Inc. v. DeBartolo, 12 So. 3d 956,
964 (La. 2009) (suggesting Noerr-Pennington would apply generally in Louisiana courts,
but concluding it did not apply under the circumstances of this particular case); Kellar v.
VonHoltum, 568 N.W.2d 186, 192-93 (Minn. Ct. App. 1997) (suggesting NoerrPennington might apply, under Minnesota law, beyond antitrust context); Am. Med.
Transp. of Wis., Inc. v. Curtis-Universal, Inc., 452 N.W.2d 575, 576, 583-84 (Wis. 1990)
(suggesting Noerr-Pennington might apply to state antitrust claims, but it did not apply
under particular facts of this case).
Appellate Case: 08-2174 Document: 01018629229 Date Filed: 04/26/2011 Page: 31
499 U.S. at 383, 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.
That is so because the purpose of the Sherman Act is to regulate business, not political
activity.19 See id. at 137. This was true, according to Noerr, even if the conduct by
which citizens attempted to influence governmental regulation was undertaken for the
sole purpose of destroying competition, involved unethical business practices, or was
specifically intended to hurt competitors. See id. at 138-45. In fact, Noerr addressed
claims of egregious private conduct, including assertions that a number of railroads
conspired to engage in a publicity campaign against their competitors in the trucking
industry “designed to foster the adoption and retention of laws and law enforcement
practices destructive of the trucking business, to create an atmosphere of distaste for the
truckers among the general public, and to impair the relationships existing between the
truckers and their customers.” Id. at 129-30. In conducting this publicity campaign, the
truckers alleged that the railroads’ “sole motivation” was to “injure . . . and eventually to
destroy” the truckers as competitors. Id. at 129. To achieve this goal the railroads
employed the “third-party technique,” which involved making the “publicity matter
circulated in the campaign” look like “spontaneously expressed views of independent
persons and civic groups when, in fact, it was largely prepared[,] . . . produced,” and paid
The second reason the Sherman Act does not proscribe private citizens’ efforts to
influence government action is because doing so would implicate important First
Amendment concerns. See Noerr, 365 U.S. at 137-38.
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for by the railroads. Id. at 130. The railroads counterclaimed, asserting the truckers had
undertaken the same type of conduct against the railroads. See id. at 132.
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.
Insofar as [the Sherman] Act sets up a code of ethics at all, it is a code that
condemns trade restraints, not political activity, and . . . a publicity
campaign to influence governmental action falls clearly into the category of
political activity. The proscriptions of the Act, tailored as they are for the
business world, are not at all appropriate for application in the political
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.
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 (1972);
Pennington, 381 U.S. at 669-70; 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, and Pennington, 381 U.S. 657).
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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. 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. In reaching this conclusion, the Court first rejected a conspiracy exception to
Parker state-action immunity. See id. at 374-75. “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.
The Court applied this same reasoning to reject a conspiracy exception to Noerr
The same factors which . . . make it impracticable or beyond the purpose of
the antitrust laws to identify and invalidate lawmaking that has been
infected by selfishly motivated agreement with private interests likewise
make it impracticable or beyond that scope to identify and invalidate
lobbying that has produced selfishly motivated agreement with public
officials. It would be unlikely that any effort to influence legislative action
could succeed unless one or more members of the legislative body became
. . . co-conspirators in some sense with the private party urging such action.
Id. at 383-84 (internal quotation marks omitted).
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City of Columbia went further, rejecting exceptions to Parker and Noerr immunity
even for conspiracies involving “corruption.” See id. at 376-79, 383.
A conspiracy exception narrowed along such vague lines is similarly
impractical. Few governmental actions are immune from the charge that
they are “not in the public interest” or in some sense “corrupt.” . . . The fact
is that virtually all regulation benefits some segments of the society and
harms others; and that it is not universally considered contrary to public
good if the net economic loss to the losers exceeds the net economic gain to
Id. at 377.
Notwithstanding this language, Plaintiffs suggest that we carve out a special
exclusion to Noerr-Pennington when the corruption involves some ill-defined and openended 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
Such unlawful activity has no necessary relationship to whether the
governmental action is in the public interest. A mayor is guilty of
accepting a bribe even if he would and should have taken, in the public
interest, the same action for which the bribe was paid. . . . To use unlawful
political influence as the test of legality of state regulation undoubtedly
vindicates (in a rather blunt way) principles of good government. But the
[antitrust] statute we are construing is not directed to that end. Congress
Appellate Case: 08-2174 Document: 01018629229 Date Filed: 04/26/2011 Page: 35
has passed other laws aimed at combating corruption in state and local
governments. “Insofar as the Sherman Act sets up a code of ethics at all, it
is a code that condemns trade restraints not political activity.”
City of Columbia, 499 U.S. at 378-79 (quoting Noerr, 365 U.S. at 140) (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; see also
Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499 (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-todismiss 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 to Noerr-Pennington
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immunity.20 See City of Columbus, 499 U.S. at 378-80, 382-84. In rejecting such an
exception, City of Columbia noted that even
if the [immunity-]invalidating “conspiracy” is limited to one that involves
some element of unlawfulness (beyond mere anticompetitive motivation),
the invalidation would have nothing to do with the policies of the antitrust
laws. In Noerr itself, where the private party “deliberately deceived the
public and public officials” in its successful lobbying campaign, we said
that “deception, reprehensible as it is, can be of no consequence so far as
the Sherman Act is concerned.”
Id. at 383-84 (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
(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 stateaction 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
There is a “sham” exception to Noerr-Pennington immunity, applicable in “situations
in which persons use the governmental process–as opposed to the outcome of that
process–as an anticompetitive weapon.” City of Columbia, 499 U.S. at 380. But
Plaintiffs have never invoked that exception in this case.
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F. App’x 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, 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. In dismissing those antitrust claims, the federal court
held, as we do here, that “alleged bribery, extortion and corruption . . . do not remove a
Appellate Case: 08-2174 Document: 01018629229 Date Filed: 04/26/2011 Page: 38
case from the ambit of Parker or Noerr-Pennington.” Id. at 322. The federal court then
dismissed the pendent state-law claims without prejudice. See id. at 329.
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 NoerrPennington 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 96367. 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.21
3. Conclusion as to Plaintiffs’ state antitrust claims
For the foregoing reasons, the district court correctly dismissed Plaintiffs’ claims
asserted under the New Mexico Antitrust Act against the Insurer Defendants.
D. Plaintiffs failed to state claims against the Insurer Defendants under the New
Mexico Unfair Practices Act
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
The parties do not rely on either the Tenth Circuit’s post-City of Columbia decision in
Tal, 453 F.3d 1244, or the pre-City of Columbia case of Oberndorf v. City and County of
Denver, 900 F.2d 1434 (10th Cir. 1990), abrogated in part by City of Columbia, 499 U.S.
365 (1991). Although those cases include some language that might support Plaintiffs’
contrary arguments here, see Tal, 453 F.3d at 1260; Oberndorf, 900 F.2d at 1440, that
language is dicta and contrary to the clear “holding” in City of Columbia.
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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 Qhynh Truong v. Allstate Ins. Co., 227 P.3d 73, 81-82 (N.M. 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.
E. Plaintiffs failed to state claims against the Insurer Defendants under the New
Mexico Unfair Insurance Practices Act
Plaintiffs further alleged that the Insurer Defendants violated the New Mexico
Unfair Insurance Practices Act, N.M. Stat. §§ 59A-16-1 through 59A-16-30 (“UIPA”).
“A purpose of this [act] is to regulate trade practices in the insurance business and related
businesses . . . by defining, or providing for determination of, practices in this state which
constitute unfair methods of competition or unfair or deceptive acts or practices so
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defined or determined.” N.M. Stat. § 59A-16-2. Plaintiffs alleged that the Insurer
Defendants violated the UIPA because they
and their agents have engaged in unfair methods of competition and unfair
or deceptive acts or practices, in violation of § 59A--3. They have also
engaged in coercive conduct in violation of § 59A-16-14. They have
engaged in illegal rebates and inducements in violation of § 59A-16-15.
They have violated the provisions of § 59A-16-17, regarding inducements.
They have given rebates in violation of § 59A-16-18. They have engaged
in monopolistic practices in violation of § 59A-16-19. They have engaged
in conduct which violates § 59A-16-25.
(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.22
F. Plaintiffs failed to state claims against the Insurer Defendants under the New
Mexico Price Discrimination Act
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
In a different vein, Plaintiffs also argue, on appeal, that the Insurer Defendants “acted
as an insurance advisory organization or rating bureau without being licensed, in
violation of the New Mexico Insurance Code.” (Aplt. Br. at 58 (citing several provisions
of Article 17 of the New Mexico Insurance Code).) However, because Plaintiffs did not
include such allegations in their complaints, we do not address this theory here.
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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.
G. Plaintiffs failed to state claims for civil conspiracy
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, 113 P.3d 859, 863 (N.M. Ct. App. 2005) (internal quotation marks omitted).
“Unlike a conspiracy in the criminal context, a civil conspiracy by itself is not actionable,
nor does it provide an independent basis for liability unless a civil action in damages
would lie against one of the conspirators.” Id. at 864 (internal quotation marks omitted);
see also Armijo v. Nat’l Sur. Corp., 268 P.2d 339, 346 (N.M. 1954). Because Plaintiffs
have failed to state any claim for damages against the Insurer Defendants, they have also
failed to state a claim against them for civil conspiracy.
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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.
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