Serna v. Webster

Filing 153

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning adopting the Second Proposed Findings and Recommended Disposition 118 ; denying Plaintiff Serna's motions for default judgment 26 , 27 , 28 , 29 , 30 , 31 , 32 , 66 , 77 , 92 , 115 , 127 , 128 , 129 , 130 , 131 , 132 , 138 ; denying Serna's motions to amend 7 , 8 , 25 , 47 , 61 , 87 , 93 , 94 , 134 , 141 ; granting all motions to dismiss pursuant to Rule 12(b) 23 , 33 , 34 , 36 , 40 , [12 0]; denying Serna's motions for injunctive relief and for sanctions 11 , 20 , 21 , 24 , 58 , 91 , 94 , 96 , 98 , 104 , 105 , 121 , 123 , 125 , 126 , 140 , 141 , 144 , 145 , 146 ; granting Defendant Robert Simon's motion for more definite statement 38 ; denying Serna's requests for discovery devices 61 and 125 ; granting the Judicial Defendants' motion to strike (Doc. 84) Serna's unauthorized surreply 83 ; denying Serna's motion for leave to file surreply 90 ; dismissing Defendants Cindy Molina, Lynette Rodriguez, Madeline Garcia, Sally Galanter, and Ari Biernoff; granting the Judicial Defendants' motion for filing restrictions 99 ; Serna is ordered to show cause why filing restri ctions should not be imposed against her, as outlined above; denying Serna's motion for hearing 53 ; denying Simon's motion to strike and to dismiss 139 ; dismissing with prejudice all purported criminal claims against all Defendants; and, Serna will file one amended complaint as to Defendants Alex Chisholm, Estate of Becht, and Robert Simon within ten days from the date of entry of this Order. (kw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
EMMA SERNA d/b/a SERNA &
ASSOCIATES CONSTRUCTION CO., LLC,
Plaintiff,
vs.

No. CIV 17-0020 JB/WPL

MARGETTE WEBSTER; DAVID WEBSTER;
STATE OF NEW MEXICO, U.S. Judicial
Court Division; CLAYTON CROWLEY;
ALEX CHISHOLM; CARL BUTKUS; CINDY
MOLINA; ALAN MALOTT; BEATRICE
BRICKHOUSE; BOBBY JO WALKER;
JAMES O’NEAL; ROBERT BOB SIMON;
ESTATE OF PAUL F. BECHT; CARL A.
CALVERT; JOEY MOYA; AMY MAYER;
GARCIA MADELIENE; ARTHUR PEPIN;
MONICA ZAMORA; CHERYL ORTEGA;
JOHN DOE #1; PAT MCMURRAY;
MARTHA MUTILLO; SALLY GALANTER;
NEW MEXICO CONSTRUCTION
INDUSTRIES DIVISION; ROBERT “MIKE”
UNTHANK; MARTIN ROMERO; AMANDA
ROYBAL; NAN NASH and JOHN WELLS,
Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on: (i) the Plaintiff’s Motion [sic] District
Court’s Hearing of January 12, 2017, filed January 12, 2017 (Doc. 11), which the Court
construes as a request to refile a lien that the state district court expunged; (ii) the Plaintiff’s
Request Order for Injunctive Relief from Second Judicial District Court 18 U.S.C. § 1033, 1034,
& 1035, filed February 2, 2017 (Doc. 20), which the Court construes as a motion for injunctive
relief from the Second Judicial District Court, County of Bernalillo, for the State of New

Mexico; (iii) the Plaintiff’s Request Order for U.S.C. 18 Dismissal of Expungement of Public
Records, filed February 2, 2017 (Doc. 21), which the Court construes as a motion for an order
directing the Bernalillo County Clerk to “dismiss the expungement” of a lien; (iv) Defendant
Clayton Crowley’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1),
(b)(4), (b)(5), and (b)(6), filed on February 6, 2017; (v) Plaintiff’s Proof to Support Need of
Injunction, filed February 8, 2017 (Doc. 24), which the Court construes as a second motion for
injunctive relief; (vi) the Plaintiff’s Motion for Entry of Default and Default Judgment as to
Defendant Crowley, filed February 9, 2017 (Docs. 26, 27); (vii) the Plaintiff’s Motion for Entry
of Default and Default Judgment as to Defendant Margette Webster, filed February 9, 2017
(Doc. 28); (viii) the Plaintiff’s Motion for Entry of Default and Default Judgment as to
Defendant David Webster, filed February 9, 2017 (Doc. 29); (ix) the Plaintiff’s Motion for Entry
of Default and Default Judgment as to Defendant Alex Chisholm, filed February 9, 2017 (Doc.
30); (x) the Plaintiff’s Motion for Entry of Default and Default Judgment as to Defendant Carl
Calvert, filed February 9, 2017 (Doc. 31); (xi) the Plaintiff’s Motion for Entry of Default and
Default Judgment as to Defendant Robert Simon, filed February 9, 2017 (Doc. 32);
(xii) Defendants Judge Monica Zamora, Judge Beatrice Brickhouse, Judge Carl Butkus, Judge
Alan Malott, Joey Moya, Amy Mayer, Madeline Garcia, Lynette Rodriguez1, Arthur Pepin,
Cheryl Ortega, James Noel, Cindy Molina, Bobby Jo Walker, and the State of New Mexico
(“Judicial Defendants”)’s Judicial Defendants’ Motion to Dismiss Complaint, filed February 9,
2017 (Doc. 33); (xiii) Defendant Calvert’s Motion of Carl A. Calvert to Dismiss Complaint, filed
1

The Plaintiff specifically lists “predicate acts” that Rodriguez committed and describes
Rodriguez as a “proximate cause” to the allegations in this case, but chose not to list Rodriguez in the
caption of the complaint. See Complaint Pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 1343(a)(2), 28
U.S.C. [sic] 1331, 18 U.S.C. § 1964, 27 U.S.C. § 151, 18 U.S.C. § 1341 Compensatory Damages,
Injunctive Relief, Quantum Damages, General Damages, and Punitive Damages White Collar Crime at
22, filed January 9, 2017 (Doc. 1)(“Complaint”). Nonetheless, the Court assumes that Serna intends to
bring a claim against Rodriguez and thus disposes of that claim herein.

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February 9, 2017 (Doc. 34); (xiv) Defendants New Mexico Construction Industries Division
(“CID”), Robert Unthank, Sally Galanter, Martha Murillo, Pat McMurray, Martin Romero, and
Amanda Roybal (“CID Defendants”)’s Joint Motion to Dismiss, filed February 10, 2017
(Doc. 36); (xv) Defendant Simon’s Motion for More Definitive Statement, filed February 10,
2017 (Doc. 38); (xvi) Defendant Judge Nan Nash’s Motion to Dismiss Complaint, filed February
10, 2017 (Doc. 40)2; (xvii) the Plaintiff’s Motion to Have the Honorable Browning Hear All
Dismissal Briefs, filed February 21, 2017 (Doc. 53), which the Court construes to be a motion
for hearing; (xviii) the Plaintiff’s Supplemental to Judicial Defendants Dismissal Answer, filed
February 23, 2017 (Doc. 58), which the Court construes to be the Plaintiff’s motion for sanctions
against counsel for the Judicial Defendants for failing to disclose his employment status;
(xix) the Plaintiff’s Objection to Dismissal of Complaint Against C.I.D. Defendants, filed on
February 24, 2017 (Doc. 61); (xx) Plaintiff’s Motion for Entry of Judgment on Default
Judgments as to all Defendants, filed March 1, 2017 (Doc. 66); (xxi) the Plaintiff’s Proof of
Service to Defaulted Defendants, filed March 9, 2017 (Doc. 77); (xxii) the Plaintiff’s Reply in
Further Support to Hear Complaint, filed March 14, 2017 (Doc. 83); (xxii) the Judicial
Defendants’ Motion to Strike Plaintiff’s “Reply in Further Support to Hear Complaint,” filed
March 14, 2017 (Doc. 84); (xxiii) the Plaintiff’s Completion of Plaintiff’s Briefings and Request
Entry of “Reply in Further Support to Hear Complaint,” filed March 21, 2017 (Doc. 90);
(xxiv) the Plaintiff’s Attorney for Judicial Defendants Made a False Statement to the Court, filed
March 21, 2017 (Doc. 91), which the Court construes to be Plaintiff’s second motion for
sanctions against counsel for the Judicial Defendants (Doc. 91); (xxv) the Plaintiff’s Waiver of
Service of Summons Has Been Mailed to the Websters, filed on March 23, 2017 (Doc. 92);
2

For the remainder of this Memorandum Opinion and Order, the Court considers Judge
Nash to be part of the Judicial Defendants.
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(xxvi) the Plaintiff’s Defendant Nash in Violation of Jurisdiction and Authority and RICO Act,
filed March 23, 2017 (Doc. 94), which the Court construes as the Plaintiff’s third motion for
injunctive relief; (xxvii) the Plaintiff’s Request: Order for Dismissal of Expungement, of
Mechanic’s Lien, Filed by State District Court at County Clerks Office, filed April 3, 2017
(Doc. 96); (xxviii) the Plaintiff’s Request Emergency Temporary Injunction on Second Judicial
District State Court, Albuquerque, filed April 6, 2017 (Doc. 98); (xxix) the Judicial Defendants’
Motion to Impose Filing Restrictions on Plaintiff, filed April 6, 2017 (Doc. 99); (xxx) the
Plaintiff’s Complaint to Judge Browning: Judge Nash in Noncompliance of Lawsuit in Federal
Court and Holding an Arbitration Hearing to Change a 2 Yr. Old Award, filed April 17, 2017
(Doc. 104), which the Court construes as the Plaintiff’s fourth motion for injunctive relief;
(xxxi) the Plaintiff’s Judge Nash’s Ruling in State District Court Without Jurisdiction and
Authority, filed April 19, 2017 (Doc. 105), which the Court construes as another motion for
injunctive relief; (xxxii) the Plaintiff’s Motion for Entry of Default and Default Judgment as to
Defendant John Wells, filed May 3, 2017 (Doc. 115); (xxxiii) the Plaintiff’s motions to amend
complaint, filed January 10, February 9, February 15, February 24, March 17, and March 23,
2017 (Docs. 7, 8, 25, 47, 61, 87, 93, 94); (xxxiv) the Plaintiff’s Second Proposed Findings and
Recommended Disposition, filed May 4, 2017 (Doc. 118)(“Second PFRD”), which addresses all
of the above motions (Doc. 118); (xxxv) the Defendants David and Margette Webster’s Motion
to Dismiss Complaint, filed May 8, 2017 (Doc. 120); (xxxvi) the Plaintiff’s Request to the
Honorable Judge Browning: Temporary Restraining Order Filed on State District Court and
Evidentiary Hearing and Recusal of the Judge Lynch for Fraud Upon the Court, filed May 8,
2017 (Doc. 121); (xxxvii) the Plaintiff’s Request to Judge Browning: Emergency Order to Cease
and Desist Collections on False State District Court Award,” filed on May 11, 2017, which the

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Court construes as another motion for injunctive relief (Doc. 123); (xxxviii) the Plaintiff’s
Objection to Dismissal of Complaint, filed May 12, 2017 (Doc. 125), which the Court construes
as a motion for discovery and for sanctions; (xxxix) the Plaintiff’s Emergency Request from
Judge Browning: Order to Bernalillo County Sheriff’s Department to Return Serna’s Funds, filed
May 12, 2017 (Doc. 126), which the Court construes as a motion for injunctive relief (Doc. 126);
(xl) the Plaintiff’s Relief From Default Judgment Under Rule 55 and 60(b) as per Defendant
Wells, filed May 15, 2017 (Doc. 127); (xli) the Plaintiff’s Relief from Default Judgment Under
Rule 55 and 60(b) as per Defendant Simon, filed May 15, 2017 (Doc. 128); (xlii) the Plaintiff’s
Relief from Default Judgment Under Rule 55 and 60(b) as to Defendant Chisholm, filed May 15,
2017 (Doc. 129); the Plaintiff’s Relief from Default Judgment Under Rule 55 and 60(b) as to
Defendant Webster, filed May 15, 2017 (Doc. 130); (xliii) the Plaintiff’s for default judgment as
to Margette Webster, filed on May 15, 2017 (Doc. 131); Relief from Default Judgment Under
Rule 55 and 60(b) as to Defendant Crowley, filed May 15, 2017 (Doc. 132); (xliv) the Plaintiff’s
Corrections to Defendant’s Codes per the Courts Entry of May 04, 2017, filed May 30, 2017,
which the Court construes as a motion to amend (Doc. 134); (xlv) the Plaintiff’s Objections to
the Second Proposed Findings and Recommended Disposition and Grant Judgment in Favor of
the Plaintiff on the Findings, filed May 30, 2017 (Doc. 135)(“Objections”); (xlvi) the Plaintiff’s
Objections and Answers to Proposed Findings and Recommendations and Motion to Withdraw
the Limited Liability Company Until Counsel is Procured, filed June 13, 2017 (Doc. 137);
(xlvii) the Plaintiff’s Request for this Objection as Timely on Objection to Dismissal of
Defendant Chisholm and Accept His Default Judgment, filed June 15, 2017 (Doc. 138), which
the Court construes as another motion for default judgment; (xlviii) Defendant Simon’s Motion
to Strike and Dismiss Plaintiff’s Compliant Pursuant to Fed. R. Civ. P. 12 (e), filed July 24, 2017

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(Doc. 139); (xlix) the Plaintiff’s Request Cancellation of Defendant Simon’s Unscrupulous
Motion to Strike Complaint, filed July 27, 2017 (Doc. 140); (l) the Plaintiff’s Motion for Leave
to Amend Complaint and Add Additional Parties Plus Relief and Memorandum of Law in
Support, filed July 31, 2017 (Doc. 141); (li) the Plaintiff’s Defendant Webster in Violation of
Rule 5 Serving Pleadings and Other Papers on All Parties, filed August 10, 2017 (Doc. 144),
which the Court construes as another motion for injunctive relief; (lii) the Plaintiff’s Objection to
Defendant Simon’s Motion to Strike and Dismiss Plaintiff’s Complaint, filed August 11, 2017
(Doc. 145), which the Court construes as a motion for sanctions; and (liii) the Plaintiff’s
Addendum Request: Office of the Clerks to Mail Defendant’s [sic] Websters Copies of Court
Pleadings Due to “Threats” on Plaintiff, filed August 18, 2017 (Doc. 146), which the Court
construes as another motion for injunctive relief. Because the Court agrees with the conclusion
of the Honorable William P. Lynch, United States Magistrate Judge for the District of New
Mexico, the Court will overrule the Plaintiff’s Objections and adopt the Second PFRD; allow
Serna ten days to file an amended complaint as to Defendants Alex Chisholm, the Estate of Paul
Becht, and Robert Simon; deny the Motion for Hearing; grant the Defendants David Webster and
Margette Webster’s Motion to Dismiss; deny Serna’s seven Motions for Injunctive Relief and
for Sanctions (Docs. 121, 123, 125, 126, 140, 144, 145, 146); deny Serna’s eight Motions for
Default Judgment; deny Serna’s Motions to Amend; dismiss, at Serna’s request, Defendants
Cindy Molina, Lynette Rodriguez, Madeline Garcia, Sally Galanter, and Ari Biernoff; deny
Robert Simon’s Motion to Strike and Dismiss; and order Serna to show cause, in writing, within
ten days from the date of entry of this Order, why filing restrictions should not be imposed
against her.

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FACTUAL AND PROCEDURAL BACKGROUND
The Second PFRD thoroughly lays out factual and procedural history. The Court will not
repeat the background.
LAW REGARDING PLEADING REQUIREMENTS
The decision to strike a pleading or to dismiss an action without prejudice for failure to
comply with Rule 8 of the Federal Rules of Civil Procedure is within the district court’s sound
discretion. See Kuehl v. FDIC, 8 F.3d 905, 908 (1st Cir. 1993); Atkins v. Northwest Airlines,
Inc., 967 F.2d 1197, 1203 (8th Cir. 1992); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
To state a claim for relief, rule 8(a) requires a plaintiff’s complaint to contain “(1) a short and
plain statement of the grounds upon which the court’s jurisdiction depends, . . . (2) a short and
plain statement of the claim showing that [she] is entitled to relief, and (3) a demand for
judgment for the relief [he or she] seeks.” Fed. R. Civ. P. 8(a). Although the Court is to construe
pro se pleadings liberally, a pro se plaintiff must follow the rules of federal and appellate
procedure. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
A pro se complaint is subject to dismissal under rule 8(a) if it is “incomprehensible.”
Olguin v. Atherton, 215 F.3d 1337 (10th Cir. 2000); Carpenter v. Williams, 86 F.3d 1015, 1016
(10th Cir. 1996). Rule 8(a)’s purpose is to require plaintiffs to state their claims intelligibly so as
to give fair notice of the claims to opposing parties and the court. See Mann v. Boatright, 477
F.3d 1140, 1148 (10th Cir. 2007); Monument Builders of Greater Kansas City, Inc. v. Am.
Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989). Imprecise pleadings
undermine the complaint’s utility and violate rule 8’s purpose. See Know v. First Security Bank
of Utah, 196 F.2d 112, 117 (10th Cir. 1952). Rambling and incomprehensible filings that bury
material allegations in “a morass of irrelevancies” do not meet rule 8(a)’s pleading requirement

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of a “short and plain statement.” Mann v. Boatright, 477 F.3d at 1148. See Ausherman v.
stump, 643 F.2d 715, 716 (10th Cir. 1981)(describing a sixty-three-page complaint as “prolix”
and concluding that it violated rule 8(a)’s “short and plain” statement requirement).
Moreover, courts should deny leave to amend when it appears that the plaintiff is
attempting “to make the complaint ‘a moving target[.]’” Minter v. Prime Equipment Co., 451
F.3d 1196, 1206 (10th Cir. 2006)(quoting Viernow v. Euripides Dev. Corp., 157 F.3d 785, 800
(10th Cir. 1988)). It is unreasonable to expect the court or the defendants continually to have to
adapt as the plaintiff develops new theories or locates new defendants. There comes a point when
even a pro se plaintiff has had sufficient time to investigate and to properly frame his or her
claims against specific defendants. See Minter v. Prime Equipment Co., 451 F.3d at 1206.
LAW REGARDING MOTIONS TO AMEND
“While Rule 15 governs amendments to pleadings generally, Rule 16 of the Federal
Rules of Civil Procedure governs amendments to scheduling orders.” Bylin v. Billings, 568 F.3d
1224, 1231 (10th Cir. 2009)(citing Fed. R. Civ. P. 16(b)). When a court has not entered a
scheduling order in a particular case, rule 15 governs amendments to the plaintiff’s complaint.
See Fed. R. Civ. P. 15. When a scheduling order governs the case’s pace, however, amending the
complaint after the deadline for such amendments implicitly requires an amendment to the
scheduling order, and rule 16(b)(4) governs changes to the scheduling order. See Bylin v.
Billings, 568 F.3d at 1231.
Rule 15(a) of the Federal Rules of Civil Procedure provides:
(1) Amending as a Matter of Course. A party may amend it pleading once as a
matter of course within:
(A)

21 days after serving it, or

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(B)

if the pleading is one to which a responsive pleading is required, 21
days after service of a responsive pleading or 21 days after service of a
motion under rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party’s written consent or the court’s leave. The court
should freely give leave where justice so requires.
Fed. R. Civ. P. 15(a)(bold and italics in original). Further, the local rules provide that, with
respect to motions to amend a pleading, “[a] proposed amendment to a pleading must accompany
the motion to amend.” D.N.M.LR-Civ. 15.1.
Under rule 15(a), the court should freely grant leave to amend a pleading where justice so
requires. See In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. 571, 579-80 (D.N.M.
2010)(Browning, J.); Youell v. Russell, No. CIV 04-1396 JB/WDS, 2007 WL 709041, at *1-2
(D.N.M. Feb. 14, 2007)(Browning, J.); Burleson v. ENMR-Plateau Tele. Coop., No. CIV 050073 JB/KBM, 2005 WL 3664299, at *1-2 (D.N.M. Sept. 23, 2005)(Browning, J.). The Supreme
Court has stated that, in the absence of an apparent reason such as “undue delay, bad faith or
dilatory motive . . . [,] repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the
amendment, etc.,” leave to amend should be freely given. Fomen v. Davis, 371 U.S. 178, 182
(1962). See Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001). In re Thornburg Mortg., Inc.
Sec. Litig., 265 F.R.D. at 579-80.
A court should deny leave to amend under rule 15(a) where the proposed “amendment
would be futile.” Jefferson Cty. Sch. Dist. v. Moody’s Investor’s Serv., 175 F.3d 848, 859 (10th
Cir. 1999). See In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80. An amendment
is “futile” if the pleading “as amended, would be subject to dismissal.” In re Thornburg Mortg.,
Inc. Sec. Litig., 265 F.R.D. at 579-80 (citing TV Commc’ns Network, Inc. v. Turner Network

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Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992)). A court may also deny leave to amend
“upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory
motive, [or] failure to cure deficiencies by amendments previously allowed.” In re Thornburg
Mortg., Inc. Sec. Litig., 265 F.R.D. at 579 (quoting Frank v. U.S. W., Inc., 3 F.3d 1357, 1365-66
(10th Cir. 1993)). See Youell v. Russell, 2007 WL 709041, at *2-3; Lymon v. Aramark Corp.,
No. CIV 08-0386 JB/DJS, 2009 WL 1299842 (D.N.M. Feb. 4, 2009)(Browning, J.). The Tenth
Circuit has also noted:
It is well settled in this circuit that untimeliness alone is a sufficient reason to
deny leave to amend, see Woolsey v. Marion Laboratories, Inc., 934 F.2d 1452,
1462 (10th Cir. 1991); Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893
F.2d 1182, 1185 (10th Cir. 1990); First City Bank v. Air Capitol Aircraft Sales,
820 F.2d 1127, 1133 (10th Cir. 1987), especially when the party filing the motion
has no adequate explanation for the delay, Woolsey, 934 F.2d at 1462.
Furthermore, “[w]here the party seeking amendment knows or should have
known of the facts upon which the proposed amendment is based but fails to
include them in the original complaint, the motion to amend is subject to denial.”
Las Vegas Ice, 893 F.2d at 1185.
Frank v. U.S. W., Inc., 3 F.3d at 1365-66. The longer the delay, “the more likely the motion to
amend will be denied, as protracted delay, with its attendant burdens on the opponent and the
court, is itself a sufficient reason for the court to withhold permission to amend.” Minter v.
Prime Equip. Co., 451 F.3d at 1205 (citing Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st
Cir. 2004)). Undue delay occurs where the plaintiff’s amendments “make the complaint ‘a
moving target.’” Minter v. Prime Equip. Co., 451 F.3d at 1206 (quoting Viernow v. Euripides
Dev. Corp., 157 F.3d at 799-800). “[P]rejudice to the opposing party need not also be shown.”
Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d at 1185. “Where the party seeking
amendment knows or should have known of the facts upon which the proposed amendment is
based but fails to include them in the original complaint, the motion to amend is subject to
denial.” Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d at 1185 (quoting State

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Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405 (10th Cir. 1984)). Along the same
vein, the court will deny amendment if the party learned of the facts upon which its proposed
amendment is based and nevertheless unreasonably delayed in moving to amend its complaint.
See Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994)(noting motion to
amend filed “was not based on new evidence unavailable at the time of the original filing”).
Refusing leave to amend is generally justified only upon a showing of undue delay,
undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies
by amendments previously allowed, or futility of amendment. See Castleglen, Inc. v. Resolution
Trust Corp., 984 F.2d 1571, 1585 (10th Cir. 1993)(citing Foman v. Davis, 371 U.S. at 182).
Again, the matter is left to the court's discretion. Frank v. U.S. W., Inc., 3 F.3d at 1365-66. See
Duncan v. Manager, Dep't of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir.
2005)(quoting Frank v. U.S. West, Inc., 3 F.3d at 1365-66, and stating that resolving the issue
whether to allow a plaintiff to file a supplement to his complaint is “well within the discretion of
the district court”). “The . . . Tenth Circuit has emphasized that ‘[t]he purpose of [rule 15(a) ] is
to provide litigants the maximum opportunity for each claim to be decided on its merits rather
than on procedural niceties.’” B.T. ex rel. G.T. v. Santa Fe Pub. Schs., 2007 WL 1306814, at *2
(D.N.M. 2007)(Browning, J.)(quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th
Cir. 2006)). “Specifically, the . . . Tenth Circuit has determined that district courts should grant
leave to amend when doing so would yield a meritorious claim.” Burleson v. ENMR-Plateau
Tel. Co-op., 2005 WL 3664299 at *2 (D.N.M. 2005)(Browning, J.)(citing Curley v. Perry, 246
F.3d 1278, 1284 (10th Cir. 2001)).

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LAW REGARDING ELEVENTH AMENDMENT IMMUNITY
The Eleventh Amendment provides: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. The Supreme Court has construed Eleventh Amendment immunity to prohibit
federal courts from entertaining suits against states brought by their own citizens or citizens of
another state without their consent. See Port Auth. Trans–Hudson Corp. v. Feeney, 495 U.S.
299, 304 (1990). State agencies and state officials are likewise provided immunity as “an arm of
the state.” Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280–81 (1977).
Exceptions to a state’s Eleventh Amendment immunity are few. See, e.g., Ex parte
Young, 209 U.S. 123, 159–60 (1908)(“If the act which the state attorney general seeks to enforce
be a violation of the Federal Constitution, the officer, in proceeding under such enactment,
comes into conflict with the superior authority of that Constitution, and he is in that case stripped
of his official or representative character and is subjected in his person to the consequences of his
individual conduct. The state has no power to impart to him any immunity from responsibility to
the supreme authority of the United States.”). A state may, however, voluntarily waive its
immunity. See Edelman v. Jordan, 415 U.S. 651, 673 (1974). Congress may also abrogate
Eleventh Amendment immunity pursuant to Section 5 of the Fourteenth Amendment to the
Constitution of the United States, where the statute explicitly manifests Congress' intent to do so.
See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Congress did not, however, abrogate
Eleventh Amendment immunity when enacting 42 U.S.C. § 1983. See Quern v. Jordan, 440
U.S. 332, 340 (1979). Consequently, Eleventh Amendment immunity extends to defendants

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under that statute, and claims against the state pursuant to § 1983 in the federal courts are barred
as a matter of law.
Although not properly characterized as an exception to a state's Eleventh Amendment
immunity, the doctrine that the Supreme Court announced in Ex parte Young, 209 U.S. at 128,
allows for suits against state officials under certain circumstances. See Elephant Butte Irrigation
Dist. of N.M. v. Dep't of the Interior, 160 F.3d 602, 607-08 (10th Cir. 1998)(“The Ex parte
Young doctrine is not actually an exception to Eleventh Amendment state immunity because it
applies only when the lawsuit involves an action against state officials, not against the state.”).
In Ex parte Young, the Supreme Court held that the Eleventh Amendment bar generally does not
apply in federal court to state officials defending against suit which seeks only prospective relief
from violations of federal law. See Ex parte Young, 209 U.S. at 28. The Ex parte Young
doctrine allows suit to proceed against defendant state officials if the following requirements are
met: (i) the plaintiffs are suing state officials rather the state itself; (ii) the plaintiffs have alleged
a non-frivolous violation of federal law; (iii) the plaintiffs seek prospective equitable relief rather
than retroactive monetary relief from the state treasury; and (iv) the suit does not implicate
special sovereignty interests. See Elephant Butte Irrigation Dist. of N.M. v. Dep’t of the Interior,
160 F.3d at 609.
LAW REGARDING JUDICIAL IMMUNITY
“[J]udges of courts of superior or general jurisdiction are not liable to civil actions for
their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have
been done maliciously or corruptly.” Stump v. Sparkman, 435 U.S. 349, 355–56 (1978). That
same immunity continues even if the judge’s “exercise of authority is flawed by the commission
of grave procedural errors.” Stump v. Sparkman, 435 U.S. at 359.

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The Supreme Court has emphasized that a judge's immunity from § 1983 liability “is
overcome in only two sets of circumstances. First, a judge is not immune from liability for
nonjudicial acts, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not
immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.”
Mireles v. Waco, 502 U.S. 9, 11–12 (1991)(citations omitted). The Supreme Court has also held
that absolute judicial immunity was not affected or abolished “by § 1983, which makes liable
‘every person’ who under color of law deprives another person of his civil rights.” Pierson v.
Ray, 386 U.S. 547, 554 (1967), overruled in part on other grounds by Harlow v. Fitzgerald, 457
U.S. 800 (1982).
The Tenth Circuit has also recognized that “officials in administrative hearings can claim
the absolute immunity that flows to judicial officers if they are acting in a quasi-judicial
fashion.” Guttman v. Khalsa, 446 F.3d 1027, 1033 (2006)(citing Butz v. Economou, 438 U.S. at
514, 98 S. Ct. 2894). For an official at an administrative hearing to enjoy absolute immunity,
“(a) the officials' functions must be similar to those involved in the judicial process, (b) the
officials' actions must be likely to result in damages lawsuits by disappointed parties, and (c)
there must exist sufficient safeguards in the regulatory framework to control unconstitutional
conduct.” Guttman v. Khalsa, 446 F.3d at 1033 (quoting Horwitz v. State Bd. of Med. Examr's,
822 F.2d 1508, 1513 (10th Cir. 1987)(“Horwitz”)(internal quotation marks omitted)).
In Guttman v. Khalsa, a doctor who suffered from depression and post-traumatic stress
disorder appeared before the Impaired Physicians Committee of the New Mexico Board of
Medical Examiners to respond to complaints about his professional conduct. See 446 F.3d at
1030. The Committee in Guttman v. Khalsa issued a “Notice of Contemplated Action and an
Order of Summary Suspension” of the doctor's medical license based on alleged mental illness

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and lying to the Committee. 446 F.3d at 1030. The New Mexico Board of Medical Examiners
then held a hearing, during which one of the defendants acted as Administrative Prosecutor. See
446 F.3d at 1030. The New Mexico Board of Medical Examiners in Guttman v. Khalsa revoked
the doctor's medical license pursuant to its statutory authority to do so. See 446 F.3d at 1030.
The doctor in Guttman v. Khalsa appealed the decision to the Seventh Judicial District of
New Mexico. See 446 F.3d at 1030. The Seventh Judicial District of New Mexico denied the
appeal, and the doctor then appealed to the Court of Appeals of New Mexico. See 446 F.3d at
1030. After the Court of Appeals of New Mexico affirmed, the doctor filed a petition for
certiorari with the Supreme Court of New Mexico. See 446 F.3d at 1030. Before the Supreme
Court of New Mexico could act on the petition, the doctor filed a lawsuit in federal court,
alleging, among other things, violations of his constitutional rights. See 446 F.3d at 1030.
The Tenth Circuit concluded that the Administrative Prosecutor and the individual who
presided over the three-day hearing in front of the New Mexico Board of Medical Examiners
enjoyed absolute immunity. See Guttman v. Khalsa, 446 F.3d at 1032. The basis for the hearing
officer's immunity in Guttman v. Khalsa was that he had served a quasi-judicial function. See
446 F.3d at 1032.
The Tenth Circuit in Guttman v. Khalsa also relied on Horwitz. See 822 F.2d at 1508. In
Horwitz, the Tenth Circuit concluded that members of the State Board of Medical Examiners for
the State of Colorado enjoyed absolute immunity for actions it took in filing a formal complaint
against a doctor, and in temporarily suspending his right to practice medicine pending
investigations and hearings. See 822 F.2d at 1510, 1515. The Tenth Circuit reasoned that the
defendant Board members were performing adjudicatory and prosecutorial functions. See 822
F.2d at 1515. The Tenth Circuit also noted:

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There exists a strong need to insure that individual Board members perform their
functions for the public good without harassment or intimidation. There exist
adequate due process safeguards under Colorado law to protect against
unconstitutional conduct without reliance upon private damages lawsuits. It is
important to insulate Board members from political influences in meeting their
adjudicatory responsibilities in the adversarial setting involving licensure to
practice medicine. Public policy requires that officials serving in such capacities
be exempt from personal liability.
822 F.2d at 1515. Finally, the Tenth Circuit noted the Board members’ functions, observing that
Board members
serve in the prosecutorial role in that they, among other things, initiate
complaints, start hearings, make investigations, take evidence, and issue
subpoenas. They also serve in the adjudicative role, as judges. Thus, the Board
duties are “functionally comparable” to a court of law. And we are reminded that,
with respect to immunity, we must include all acts of the official performing
statutory duties as having “[m]ore or less connection with the general matters
committed by law” to his station.
822 F.2d at 1515.
Although certain officers enjoy immunity from suit for acts taken in a quasi-judicial
setting, the Supreme Court has held that court reporters do not enjoy such immunity. Rejecting a
court reporter’s assertion of absolute immunity, the Supreme Court stated: “We are also
unpersuaded by the contention that our functional approach to immunity . . . requires that
absolute immunity be extended to court reporters because they are part of the judicial function.”
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435, 113 S. Ct. 2167, 124 L.Ed.2d 391 (1993).
Rather, in the Supreme Court's view,
[t]he doctrine of judicial immunity is supported by a long-settled understanding
that the independent and impartial exercise of judgment vital to the judiciary
might be impaired by exposure to potential damages liability. Accordingly, the
“touchstone” for the doctrine's applicability has been “performance of the
function of resolving disputes between parties, or of authoritatively adjudicating
private rights.” [Burns v. Reed,] 500 U.S. [478,] 500 [ (1991) ](Scalia, J.,
concurring in judgment in part and dissenting in part). When judicial immunity is
extended to officials other than judges, it is because their judgments are
“functional[ly] comparab[le]” to those of judges -- that is, because they, too,

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“exercise a discretionary judgment” as a part of their function. Imbler v.
Pachtman, 424 U.S. [409], 423, n.20, 96 S. Ct. 984, 47 L.Ed.2d 128 [ (1976) ].
Antoine v. Byers & Anderson, Inc., 508 U.S. at 435-36 (footnote omitted)(final two alterations in
original).
In light of this understanding of judicial immunity, the Supreme Court concluded that the
function that court reporters perform is not one that would lead to a grant of immunity. See 508
U.S. at 436. The Supreme Court reasoned that court reporters “are afforded no discretion” in
carrying out their duty and that they are “not absolutely immune because their duties are
ministerial, not discretionary in nature.” 508 U.S. at 436 (citations omitted)(internal quotation
marks omitted).
The Court has also drawn distinctions between when a person is acting in a judicial role,
such that they are entitled to quasi-judicial immunity, and when a person in a quasi-judicial
setting plays a merely ministerial role. See Duprey v. Twelfth Judicial Dist. Court, 760 F. Supp.
2d 1180, 1204 (D.N.M. 2009)(Browning, J.). In Duprey v. Twelfth Judicial District Court, the
Court concluded that the state defendant who acted as chairperson of the judicial grievance board
was entitled to absolute immunity, because his function was similar to that of an administrative
law judge in a quasi-judicial setting. See 760 F. Supp. 2d at 1204. The Court stated that the
director of human resources for the New Mexico Administrative Office of the Courts was not
entitled to absolute immunity, because her role was ministerial and mechanical. See 760 F.
Supp. 2d at 1204. In analyzing each defendant's function, the Court focused on participation in
the deliberative process and the exercise of independent judgment. See 760 F. Supp. 2d at 1205.
The Court determined that, because the human resources director played a ministerial role and
did not act at a judge’s direction, she was not entitled to judicial immunity. See 760 F. Supp. 2d
at 1208 (“An individual whose job at a judicial proceeding is to run a tape recorder is not one

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who needs to be able to act according to her own convictions.”). See also Braverman v. New
Mexico, No. 11–0829, 2011 WL 6013587, at *20 (D.N.M. Oct. 19, 2011)(Browning, J.)
(concluding that judicial immunity probably protects a state judge and special master from suit
when denying a motion for a temporary restraining order).
LAW REGARDING ARBITRAL IMMUNITY
“The doctrine [of arbitral immunity] rest on the notion that arbitrators acting within their
quasi-judicial duties are the functional equivalent of judges and, as such, should be afforded
similar protection.” Pfannenstiel v. Merrill Lynch, Pierce, Fenner & Smith, 477 F.3d 1155, 1158
(10th Cir. 2007)(citing Olson v. Nat’l Ass’n of Sec. Dealers, 85 F.3d 381, 382 (8th Cir. 1996)).
“[A]rbitral immunity has been held to be ‘essential to protect the decision-makers from undue
influence and protect the decision-making process from reprisals by dissatisfied litigants.’”
Pfannenstiel v. Merrill Lynch, Pierce, Fenner & Smith, 477 F.3d at 1158 (quoting New England
Cleaning Servs., Inc. v. Am. Arbitration Ass’n, 199 F.3d 542, 545 (1st Cir. 1999)).
Every Court of Appeals to have considered the issue recognizes the doctrine of arbitral
immunity. See, e.g., Pfannenstiel v. Merrill Lynch, Pierce, Fenner & Smith, 477 F.3d at 1159-60;
Hutchins v. Am. Arbitration Ass’n, 108 Fed. Appx. 647, 648 (1st Cir. 2004); Austern v. Chicago
Bd. of Options Exch., Inc., 898 F.2d 882 (2d Cir. 1990); Cahn v. Int’l Ladies Garment Union,
311 F.2d 113 (3d Cir. 1962); Shrader v. NASD, Inc., 54 F.3d 744 (4th Cir. 1995); Hawkins v.
NASD, Inc., 149 F.3d 330 (5th Cir. 1998); Corey v. New York Stock Exch., Inc., 691 F.2d 1205
(6th Cir. 1982); Int’l Med. Group, Inc. v. Am. Arbitration Ass’n, 312 F.3d 833 (7th Cir. 2002);
Honn v. NASD, 182 F.3d 1014 (8th Cir. 1999); Wasyl, Inc. v. First Boston Corp., 813 F.2d 1579
(9th Cir. 1987). Indeed, even the Supreme Court supports the doctrine of arbitral immunity. See
Butz v. Economou, 438 U.S. 478, 508-11 (1978)(holding that there are certain persons whose

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special functions require a full exemption from liability for acts committed within the scope of
their duties). “These courts uniformly hold that arbitration forums and sponsors, like courts of
law, are immune from liability for actions taken in connection with administering arbitration.”
Pfannenstiel v. Merrill Lynch, Pierce, Fenner & Smith, 477 F.3d at 1159.
While arbitral immunity does not protect arbitrators from all claims asserted against
them, the key “is whether the claim at issue arises out of a decisional act.” Pfannenstiel v. Merrill
Lynch, Pierce, Fenner & Smith, 477 F.3d at 1159 (citing Maureen A. Weston, Reexamining
Arbitral Immunity in an Age of Mandatory and Professional Arbitration, 88 Min. L. Rev. 449,
505 (Feb. 2004)). When a claim seeks to challenge the “decisional act of an arbitrator,” the
doctrine of arbitral immunity applies. Weston, supra, at 505.
LAW REGARDING QUALIFIED IMMUNITY
Qualified immunity recognizes the “need to protect officials who are required to exercise
their discretion and the related public interest in encouraging the vigorous exercise of official
authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). “Qualified immunity protects
federal and state officials from liability for discretionary functions, and from ‘the unwarranted
demands customarily imposed upon those defending a long drawn-out lawsuit.’” Roybal v. City
of Albuquerque, No. CIV 08–0181 JB/LFG, 2009 WL 1329834, at *10 (D.N.M. April 28, 2009)
(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). The Supreme Court deems
it “untenable to draw a distinction for purposes of immunity law between suits brought against
state officials under § 1983 and suits brought directly under the Constitution against federal
officials.” Butz v. Economou, 438 U.S. 478, 504 (1978). “The qualified immunity analysis is
the same whether the claims are brought under Bivens3 or pursuant to the post-Civil War Civil
3

In Bivens, the Supreme Court recognized that citizens may obtain money damages for
injuries suffered as a result of federal agents’ violation of the Fourth Amendment. See 403 U.S.
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Rights Acts.” Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997), overruled on other
grounds as recognized in Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).
Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 . . . (1971), a plaintiff may seek money damages from
government officials who have violated her constitutional or statutory rights. But
to ensure that fear of liability will not “unduly inhibit officials in the discharge of
their duties,” Anderson v. Creighton, 483 U.S. 635, 638 . . . (1987), the officials
may claim qualified immunity; so long as they have not violated a “clearly
established” right, they are shielded from personal liability, Harlow v. Fitzgerald,
457 U.S. 800, 818 . . . (1982). That means a court can often avoid ruling on the
plaintiff’s claim that a particular right exists. If prior case law has not clearly
settled the right, and so given officials fair notice of it, the court can simply
at 395-97. “In Bivens -- proceeding on the theory that a right suggests a remedy -- this Court
‘recognized for the first time an implied private action for damages against federal officers
alleged to have violated a citizen’s constitutional rights.’” Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009)(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)). Copar Pumice Co., Inc.
v. Morris, No. CIV 07-0079 JB/ACT, 2009 WL 5201799, *13 (D.N.M. 2009)(Browning,
J.)(noting that, in Bivens, the Supreme Court held that, “‘where legal rights have been invaded,
and a federal statute provides for a general right to sue for such invasion, federal courts may use
any available remedy to make good the wrong done.’”)(quoting Bivens, 403 U.S. at 396-97).
Bivens suits are the “federal analog” to suits brought against state officials under 42 U.S.C. §
1983. Ashcroft v. Iqbal, 556 U.S. at 675-76. Unlike suits under § 1983, however, Bivens does
not allow a plaintiff to seek equitable relief -- he or she may only seek damages for alleged
constitutional violations, and must look to other areas of the law to receive equitable relief for his
or her injuries. See Bivens, 403 U.S. at 410 (Harlan, J., concurring)(“For people in Bivens’
shoes, it is damages or nothing.”).
[T]he decision whether to recognize a Bivens remedy may require two steps. In
the first place, there is the question whether any alternative, existing process for
protecting the [constitutionally recognized] interest amounts to a convincing
reason for the Judicial Branch to refrain from providing a new and freestanding
remedy in damages. . . . But even in the absence of an alternative, a Bivens
remedy is a subject of judgment: “the federal courts must make the kind of
remedial determination that is appropriate for a common-law tribunal, paying
particular heed, however, to any special factors counselling hesitation before
authorizing a new kind of federal litigation.”
Wilkie v. Robbins, 551 U.S. 537, 550 (2007)(quoting Bush v. Lucas, 462 U.S. 367, 378 (1983)).
“In sum, the concept of' special factors counselling hesitation in the absence of affirmative action
by Congress has proved to include an appropriate judicial deference to indications that
congressional inaction has not been inadvertent.” Schweiker v. Chilicky, 487 U.S. 412, 423
(1988). See Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 921 F. Supp. 2d 1137,
1176-77 (D.N.M. 2013)(Browning, J.), on reconsideration in part, 58 F. Supp. 3d 1191 (D.N.M.
2014).
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dismiss the claim for money damages. The court need never decide whether the
plaintiff's claim, even though novel or otherwise unsettled, in fact has merit.
Camreta v. Green, 563 U.S. 692, 705 (2011).
Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.”
Pearson v. Callahan, 555 U.S. at 232 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)(per
curiam)). “If qualified immunity is to mean anything, it must mean that public employees who
are just doing their jobs are generally immune from suit.” Lewis v. Tripp, 604 F.3d 1221, 1230
(10th Cir. 2010).
Qualified immunity shields government officials from liability where “their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Pearson v. Callahan, 555 U.S. at 231, 129 S. Ct. 808 (quoting Harlow v.
Fitzgerald, 457 U.S. at 818). Qualified immunity also shields officers who have “reasonable, but
mistaken beliefs” and operates to protect officers from the law's sometimes “hazy border[s].”
Saucier v. Katz, 533 U.S. 194, 205 (2001). When a defendant asserts qualified immunity, the
plaintiff must demonstrate: (i) that the defendant's actions violated his or her constitutional or
statutory rights; and (ii) that the right was clearly established at the time of the alleged
misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).
1.

Procedural Approach to Qualified Immunity.

In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances of the particular case at hand.”
555 U.S. at 236. The Supreme Court also noted that, while no longer mandatory, the protocol
Saucier v. Katz outlined -- by which a court first decides if the defendant’s actions violated the
Constitution, and then the court determines if the right violated was clearly established -- will

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often be beneficial. See Pearson v. Callahan, 555 U.S. at 241. In rejecting the prior mandatory
approach, the Supreme Court recognized that “[t]here are cases in which it is plain that a
constitutional right is not clearly established but far from obvious whether in fact there is such a
right,” and that such an approach burdens district court and courts of appeals with “what may
seem to be an essentially academic exercise.” 555 U.S. at 237. The Supreme Court also
recognized that the prior mandatory approach “departs from the general rule of constitutional
avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of
constitutionality unless such adjudication is unavoidable.” 555 U.S. at 241, 129 S. Ct. 808
(alterations omitted)(internal quotation marks omitted). See Reichle v. Howards, 566 U.S. 658
(2012)(affirming Pearson v. Callahan’s procedure and noting that deciding qualified immunity
issues on the basis of a right being not “clearly established” by prior case law “comports with our
usual reluctance to decide constitutional questions unnecessarily”). Once the plaintiff establishes
an inference that the defendant's conduct violated a clearly established constitutional right, a
qualified immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d
867, 870–71 (10th Cir. 1993).
The Supreme Court recognizes seven circumstances where district courts should proceed
directly to and “should address only” the clearly established prong of the qualified immunity
analysis: when (i) the first, constitutional violation question “is so factbound that the decision
provides little guidance for future cases”; (ii) “it appears that the question will soon be decided
by a higher court”; (iii) deciding the constitutional question requires “an uncertain interpretation
of state law”; (iv) “qualified immunity is asserted at the pleading stage,” and “the precise factual
basis for the . . . claim . . . may be hard to identify”; (v) tackling the first element “may create a
risk of bad decisionmaking,” because of inadequate briefing; (vi) discussing both elements risks

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“bad decisionmaking,” because the court is firmly convinced that the law is not clearly
established and is thus inclined to give little thought to the existence of the constitutional right;
or (vii) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first
constitutional question when “it is plain that a constitutional right is not clearly established but
far from obvious whether in fact there is such a right.” Kerns v. Bader, 663 F.3d 1173, 1180–81
(10th Cir. 2011)(quoting Pearson v. Callahan, 555 U.S. at 236-42)(internal quotation marks
omitted). Regarding the last of these seven circumstances, the Supreme Court has clarified that
courts may “avoid avoidance” and address the first prong before the second prong in cases
involving a recurring fact pattern, where guidance on the constitutionality of the challenged
conduct is necessary, and the conduct is likely only to face challenges in the qualified immunity
context. Camreta v. Greene, 563 U.S. at 706 (2011). See Kerns v. Bader, 663 F.3d at 1181.
“Courts should think carefully before expending ‘scarce judicial resources’ to resolve difficult
and novel questions of constitutional or statutory interpretation that will ‘have no effect on the
outcome of the case.’” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)(quoting Pearson v.
Callahan, 555 U.S. at 236-37). See Camreta v. Greene, 131 S. Ct. at 2032 (“In general, courts
should think hard, and then think hard again, before turning small cases into large ones.”). The
Tenth Circuit will remand a case to the district court for further consideration when the district
court has given cursory treatment to the clearly established prong of the qualified immunity
analysis. See Kerns v. Bader, 663 F.3d at 1182.
2.

Clearly Established Rights in the Qualified Immunity Analysis.

To determine whether a right was clearly established, a court must consider whether the
right was sufficiently clear that a reasonable government employee in the defendant's shoes
would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep.

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Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007). “A clearly established right is generally
defined as a right so thoroughly developed and consistently recognized under the law of the
jurisdiction as to be ‘indisputable’ and ‘unquestioned.’” Lobozzo v. Colo. Dep't of Corr., 429
Fed. Appx. 707, 710 (10th Cir. 2011)(unpublished)(quoting Zweibon v. Mitchell, 720 F.2d 162,
172–73 (D.C.Cir. 1983)).
“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court
or Tenth Circuit decision on point, or the clearly established weight of authority from other
courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d 905,
923 (10th Cir. 2001). On the other hand, the Supreme Court has observed that it is generally not
necessary to find a controlling decision declaring the “very action in question . . . unlawful.”
Anderson v. Creighton, 483 U.S. at 640.

“In determining whether the right was ‘clearly

established,’ the court assesses the objective legal reasonableness of the action at the time of the
alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a
reasonable official would understand that what he is doing violates that right.’” Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001)(alteration in original)(quoting
Saucier v. Katz, 533 U.S. at 202). A court should inquire “whether the law put officials on fair
notice that the described conduct was unconstitutional” rather than engage in “a scavenger hunt
for cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.
2004).
The Supreme Court has clarified that the clearly established prong of the qualified
immunity test is a very high burden for the plaintiff: “A Government official’s conduct violates
clearly established law when, at the time of the challenged conduct, the contours of a right are
sufficiently clear that every reasonable official would have understood that what he is doing

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violates that right.” Ashcroft v. al–Kidd, 563 U.S. at 741. “In other words, ‘existing precedent
must have placed the statutory or constitutional question beyond debate.’” Reichle v. Howards,
132 S.Ct. at 2093 (quoting Ashcroft v. al–Kidd, 563 U.S. at 741). “The operation of this
standard, however, depends substantially upon the level of generality at which the relevant ‘legal
rule’ is to be identified.” Anderson v. Creighton, 483 U.S. at 639. “The general proposition, for
example, that an unreasonable search or seizure violates the Fourth Amendment is of little help
in determining whether the violative nature of particular conduct is clearly established.”
Ashcroft v. al–Kidd, 563 U.S. at 742. The level of generality at which the legal rule is defined is
important, because qualified immunity shields officers who have “reasonable, but mistaken
beliefs” on the application of law to facts and operates to protect officers from the law's
sometimes “hazy border [s].” Saucier v. Katz, 533 U.S. at 205.
The Tenth Circuit held in Kerns v. Bader -- an opinion that the then-Judge, now Justice,
Gorsuch wrote -- that, although “a case on point isn’t required if the impropriety of the
defendant's conduct is clear from existing case law,” the law is not clearly established where “a
distinction might make a constitutional difference.” 663 F.3d 1173, 1188 (2011)(emphasis in
original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that
the relevant question “wasn't whether we all have some general privacy interest in our home,”
but “whether it was beyond debate in 2005 that the officers' entry and search lacked legal
justification.” 663 F.3d at 1183 (emphasis added). Earlier Tenth Circuit cases, clarifying the
level of generality at which a legal rule must be defined, applied a sliding scale to determine
when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284
(10th Cir. 2007)(“The more obviously egregious the conduct in light of prevailing constitutional
principles, the less specificity is required from prior case law to clearly establish the violation.”).

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“[W]hen an officer's violation . . . is particularly clear . . . , [the Tenth Circuit] does not require a
second decision with greater specificity to clearly establish the law.” Casey v. City of Fed.
Heights, 509 F.3d at 1284. Furthermore, “general statements of the law are not inherently
incapable of giving fair and clear warning. . . .” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
In Rivera v. Bates, No. CIV 12–0473 JB/RHS, 2014 WL 3421050 (D.N.M. June 21,
2014)(Browning, J.), the Court used the Kerns v. Bader qualified-immunity framework to
determine if it was clearly established that arresting a suspect in his underwear and failing to
retrieve his clothing to cover him while transporting him from his house to a patrol car makes the
arrest unreasonable. See 2014 WL 3421050, at *54. The Court stated:
Even if the Court could, on the record before it, conclude, as a matter of law, that
the manner in which Hernandez effectuated the arrest was [un]reasonable, the
Court finds that the law was not clearly established such that a reasonable officer
in Hernandez’ position would have recognized that he needed to retrieve clothing
for S. Rivera rather than escort him directly to the police vehicle. As the Tenth
Circuit has emphasized, although “a case on point isn't required if the impropriety
of the defendant's conduct is clear from existing case law,” the law is not clearly
established where “a distinction might make a constitutional difference.” Kerns
v. Bader, 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing
with the search of a home, the Tenth Circuit explained that the relevant question
“wasn’t whether we all have some general privacy interest in our home,” but
“whether it was beyond debate in 2005 that the officers' entry and search lacked
legal justification.” 663 F.3d at 1183 (emphasis added). Here, S. Rivera has relied
on Cortez v. McCauley[, 478 F.3d 1108 (10th Cir. 2007)] to establish that his
clearly established rights were violated, but the Tenth Circuit in that case stated
that it had “little difficulty concluding that a small amount of force, like grabbing
Rick Cortez and placing him in the patrol car, is permissible in effecting an arrest
under the Fourth Amendment.” 478 F.3d at 1128. The Tenth Circuit only made
one comment regarding Cortez’ clothing during the arrest:
Although the dignity aspects of this arrest are troubling, specifically
hauling Rick Cortez (clad only in his shorts) into the patrol car in the
middle of the night without any explanation, the police were
investigating a serious felony and claimed a need for quick action to
separate the accused from any other children that might be in the
home.

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478 F.3d 1108, 1128-29 (10th Cir. 2007). The Tenth Circuit did not explain what
would have to be different about the “dignity aspects” for the arrest to violate the
Fourth Amendment. More importantly, the Court emphasizes that Hernandez did
not participate in any of the alleged wrongdoing inside S. Rivera's house, nor did
he refuse to allow S. Rivera to get dressed; instead, Hernandez was involved in
the arrest only after S. Rivera was outside the house. S. Rivera has not pointed to,
nor has the Court been able to identify, any cases that demand that an officer
delay taking the arrestee to a police vehicle so the officer can enter the arrestee's
home to search for clothing or otherwise find some covering for an arrestee on the
way to the police vehicle. The Court will thus grant the MSJ on S. Rivera's
excessive and unreasonable force claim against Hernandez.
Rivera v. Bates, 2014 WL 3421050, at *54 (emphasis in original).
LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS
UNDER 42 U.S.C. § 1983
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that in
any action brought against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the District of
Columbia.
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 (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)(McKay, J.)(“The

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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)(Henry, J.)). 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. at 675 (“Because vicarious
liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the Constitution.”);
Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).
“An entity cannot be held liable solely on the basis of the existence of an employer-employee
relationship with an alleged tortfeasor.” Garcia v. Casaus, No. CIV 11–0011 JB/RHS, 2011 WL
7444745, at *25 (D.N.M. Dec. 8, 2011)(Browning, J.)(citing Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 689 (1978)). Supervisors can be held liable only for their own unconstitutional or
illegal policies, and not for the employees’ tortious acts. See Barney v. Pulsipher, 143 F.3d
1299, 1307–08 (10th Cir. 1998)(Seymour, J.).
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 at 1046. 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 (1961), overruled in part by Monell v. Dep’t of Soc.
Servs., 436 U.S. at 663). “Thus, Defendants are liable for the harm proximately caused by their

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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 defendants who proximately cause an injury
alleged under § 1983, explaining 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).
Even if a factfinder concludes that the residential search was unlawful, the
officers only “would be liable for the harm ‘proximately’ or ‘legally’ caused by
their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1995).
“They would not, however, necessarily be liable for all of the harm caused in the
‘philosophic’ or but-for sense by the illegal entry.” 72 F.3d 400. In civil rights
cases, a superseding cause, as we traditionally understand it in tort law, relieves a
defendant of liability. See, e.g., Warner v. Orange Cnty. Dep't of Prob., 115 F.3d
1068, 1071 (2d Cir. 1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir. 1987),
abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109
S.Ct. 2702, 105 L.Ed.2d 598 . . . (1989).
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 States Court of
Appeals for the Third Circuit, now-Associate Justice for the Supreme Court:

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Suppose that three police officers go to a suspect's house to execute an arrest
warrant and that they improperly enter without knocking and announcing their
presence. Once inside, they encounter the suspect, identify themselves, show him
the warrant, and tell him that they are placing him under arrest. The suspect,
however, breaks away, shoots and kills two of the officers, and is preparing to
shoot the third officer when that officer disarms the suspect and in the process
injures him. Is the third officer necessarily liable for the harm caused to the
suspect on the theory that the illegal entry without knocking and announcing
rendered any subsequent use of force unlawful? The obvious answer is “no.” The
suspect's conduct would constitute a “superseding” cause, see Restatement
(Second) of Torts § 442 (1965), that would limit the officer's liability. See id. §
440.
Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400)(citations in
original). 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 W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 44, at 303–04
(5th ed.1984)). If
the reasonable foreseeability of an intervening act's occurrence is a factor in
determining whether the intervening act relieves the actor from liability for his
antecedent wrongful act, and under the undisputed facts there is room for
reasonable difference of opinion as to whether such act was wrongful or
foreseeable, the question should be left for the jury.
Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. b (1965)).
LAW REGARDING RACKETEERING CLAIMS
Both federal and state laws prohibit a variety of racketeering activities. New Mexico's
racketeering laws are similar to the federal RICO statute, as the latter provided the model for the
former. Both federal and state law provide for civil remedies for private individuals and
organizations that racketeering activities harm.
1.

The Federal RICO Act.

The federal RICO statute, 18 U.S.C. § 1962, proscribes a wide variety of conduct.
Specifically, RICO provides:

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(a) It shall be unlawful for any person who has received any income derived,
directly or indirectly, from a pattern of racketeering activity or through collection
of an unlawful debt in which such person has participated as a principal within the
meaning of section 2, title 18, United States Code, to use or invest, directly or
indirectly, any part of such income, or the proceeds of such income, in acquisition
of any interest in, or the establishment or operation of, any enterprise which is
engaged in, or the activities of which affect, interstate or foreign commerce. . . .
18 U.S.C. § 1962(a). RICO further provides:
(b) It shall be unlawful for any person through a pattern of racketeering activity or
through collection of an unlawful debt to acquire or maintain, directly or
indirectly, any interest in or control of any enterprise which is engaged in, or the
activities of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or indirectly, in the conduct of such
enterprise's affairs through a pattern of racketeering activity or collection of
unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions
of subsection (a), (b), or (c) of this section.
18 U.S.C. § 1962(b)-(d). “Racketeering activity” and “pattern of racketeering activity” are the
key concepts underlying RICO, and the statute gives the two phrases precise meanings. More
simply, a violation of any subsection of 18 U.S.C. § 1962 requires evidence that the defendant
participated in a pattern of racketeering activity. See Bancoklahoma Mortgage Corp. v. Capital
Title Co., Inc., 194 F.3d 1089, 1100 (10th Cir. 1999).
Section 1962(1) defines “racketeering activity” as
(A) any act or threat involving murder, kidnapping, gambling, arson, robbery,
bribery, extortion, dealing in obscene matter, or dealing in a controlled substance
or listed chemical (as defined in section 102 of the Controlled Substances Act),
which is chargeable under State law and punishable by imprisonment for more
than one year; (B) any act which is indictable under any of the following
provisions of title 18, United States Code: Section 201 (relating to bribery), . . .
section 1941 (relating to mail fraud, section 1343 (relating to wire fraud), . . .
section 1951 (relating to interference with commerce, robbery, or extortion), . . .

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Under federal law, “[p]attern of racketeering activity” is defined as “at least two acts of
racketeering activity, one of which occurred after the effective date of this chapter and the last of
which occurred within ten years (excluding any period of imprisonment) after the commission of
a prior act of racketeering activity.” 18 U.S.C. § 1961(5). The state crimes that are treated as
racketeering activity include “any act or threat involving . . . extortion . . . which is chargeable
under State law and punishable by imprisonment for more than one year.” 18 U.S.C.
§ 1962(1)(A). In other words, a pattern of racketeering activity is any two racketeering acts
within the space of ten years.
RICO allows for civil suits by “any person injured in his business or property by reason
of violation of section 1962 of [RICO].” 18 U.S.C. § 1964(c). RICO also mandates treble
damages and recovery of reasonable attorney’s fees for a successful claim. See 18 U.S.C. §
1964(c). The Private Securities Litigation Reform Act of 1995, Pub.L. No. 104–67, 109 Stat.
737, however, limited the scope of potential civil RICO causes of action. In a civil RICO case, a
racketeering violation cannot be founded “upon any conduct that would have been actionable as
fraud in the purchase or sale of securities,” unless the offender was criminally convicted of
activity “in connection with the fraud.” 18 U.S.C. § 1964(c). Additionally, several courts have
held that other federal-fraud offenses, such as mail and wire fraud, can also not be used as
predicate offenses where the underlying conduct would be actionable as securities fraud. See,
e.g., Bald Eagle Area Sch. Dist. v. Keystone Fin., 189 F.3d 321, 330 (3d Cir. 1999); Blythe v.
Deutsche Bank A.G., 399 F. Supp. 2d 274, 278–82 (S.D.N.Y. 2005)(Scheindlin, J.).
The Supreme Court and the Tenth Circuit have held that merely showing two acts of
racketeering within the requisite ten-year period is not sufficient to show an actual pattern of
racketeering activity. “[T]he statement that a pattern ‘requires at least’ two predicates implies

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‘that while two acts are necessary, they may not be sufficient.’” H.J. Inc. v. Nw. Bell Tel. Co.,
492 U.S. 229, 237 (1989). Rather, based upon RICO's legislative history and the ordinary usage
of the word “pattern,” a pattern of racketeering activity “requires the showing of a relationship
between the predicates” and “the threat of continuing activity.” H.J. Inc. v. Nw. Bell Tel. Co.,
492 U.S. at 239 (citation omitted)(internal quotation marks omitted). As the Tenth Circuit has
explained, both elements must be present. Even if the racketeering activities are part of a
common scheme, there is no showing of a RICO claim if the plaintiff has “failed to show that
they pose a threat of continuing criminal activity.” Duran v. Carris, 238 F.3d 1268, 1271 (10th
Cir. 2001).
a.

Bribery.

18 U.S.C. § 201(b) is the federal anti-bribery statute. Generally, the application of 18
U.S.C. § 201(b) is limited to acts of federal officials or persons “acting for or on behalf of the
United States, or any department, agency or branch of the Government thereof . . . .” 18 U.S.C.
§ 201(a)(1). The statute requires that the actor occupy a position of public trust with official
federal responsibilities. See Dixson v. United States, 465 U.S. 482, 496 (1984). The term
“public official” is defined as:
Member of Congress, Delegate, or Resident Commissioner, either before or after
such official has qualified, or an officer or employee or person acting for or on
behalf of the United States, or any department, agency or branch of Government
thereof, including the District of Columbia, in any official function, under or by
authority of any such department, agency, or branch of Government, or a juror.
18 U.S.C. § 201(a)(1). “Person who has been selected to be a public official” is defined as “any
person who has been nominated or appointed to be a public official, or has been officially
informed that such person will be so nominated or appointed.” 18 U .S.C. § 201(a)(2).

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b.

Fraud Generally.

To succeed on a claim of fraud, there must be a
(1) representation; (2) that is false; (3) that is material; (4) the speaker's
knowledge of its falsity or ignorance of its truth; (5) the speaker's intent it be
acted on; (6) the hearer's ignorance of the falsity of the representation; (7) the
hearer's reliance; (8) the hearer's right to rely on it; and (9) injury.
Tal v. Hogan, 453 F.3d 1244, 1260 (10th Cir. 2006)(citing BancOklahoma Mortgage Corp., 194
F.3d at 1103). When there is a complaint alleging fraud, the pleading standard set forth in rule
9(b) of the Federal Rules of Civil Procedure applies. See Tal v. Hogan, 453 F.3d at 1260. Rule
9(b) states: “In alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake.” Fed.R.Civ.P. 9(b). Thus, a party alleging fraud must “set forth
the time, place and contents of the false representation, the identity of the party making the false
statements and the consequences thereof.” Tal v. Hogan, 453 F.3d at 1260 (citing Koch v. Koch
Indus., 203 F.3d 1202, 1236 (10th Cir. 2000)).
c.

Mail Fraud.

18 U.S.C. § 1341 provides:
Whoever, having devised or intending to devise any scheme or artifice to defraud,
or for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises, or to sell, dispose of, loan, exchange, alter, give
away, distribute, supply, or furnish or procure for unlawful use any counterfeit or
spurious coin, obligation, security, or other article, or anything represented to be
or intimated or held out to be such counterfeit or spurious article, for the purpose
of executing such scheme or artifice or attempting so to do, places in any post
office or authorized depository for mail matter, any matter or thing whatever to be
sent or delivered by the Postal Service, or deposits or causes to be deposited any
matter or thing whatever to be sent or delivered by any private or commercial
interstate carrier, or takes or receives therefrom, any such matter or thing, or
knowingly causes to be delivered by mail or such carrier according to the
direction thereon, or at the place at which it is directed to be delivered by the
person to whom it is addressed, . . . .

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d.

Wire Fraud.

18 U.S.C. § 1343 provides:
Whoever, having devised or intending to devise any scheme or artifice to defraud,
or for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises, transmits or causes to be transmitted by means of
wire, radio, or television communication in interstate or foreign commerce, any
writings, signs, signals, pictures, or sounds for the purpose of executing such
scheme or artifice, . . . .
e.

Interference with Commerce, Robbery, or Extortion.

18 U.S.C. § 1951 states, in relevant part:
(a) Whoever in any way or degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do anything in violation
of this section shall be fined under this title or imprisoned not more than twenty
years, or both.
(b) As used in this section—
....
(2) The term “extortion” means the obtaining of property from
another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official right.
(3) The term “commerce” means commerce within the District of
Columbia, or any Territory or Possession of the United States; all
commerce between any point in a State, Territory, Possession, or
the District of Columbia and any point outside thereof; all
commerce between points within the same State through any place
outside such State; and all other commerce over which the United
States has jurisdiction.
It would appear that assault would be covered under this provision as the definition of
extortion includes “actual or threatened force, violence, . . . .”
New Mexico law also prohibits racketeering activities. Specifically, NMSA § 30–42–4
states, in relevant part:

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A. It is unlawful for any person who has received any proceeds derived, directly
or indirectly, from a pattern of racketeering activity in which the person has
participated, to use or invest, directly or indirectly, any part of the proceeds or the
proceeds derived from the investment or use thereof in the acquisition of any
interest in, or the establishment or operation of, any enterprise . . . .
B. It is unlawful for any person to engage in a pattern of racketeering activity in
order to acquire or maintain, directly or indirectly, any interest in or control of any
enterprise . . . .
C. It is unlawful for any person employed by or associated with any enterprise to
conduct or participate, directly or indirectly, in the conduct of the enterprise's
affairs by engaging in a pattern of racketeering activity . . . .
Similar to the federal statutes, the New Mexico statute requires a pattern of racketeering
activities. NMSA § 30-42-3 defines “pattern of racketeering activity” as
engaging in at least two incidents of racketeering with the intent of accomplishing
any of the prohibited activities set forth in Subsections A through D of Section
§ 30-42-4 NMSA 1978; provided at least one of the incidents occurred after the
effective date of the Racketeering Act and the last incident occurred within five
years after the commission of a prior incident of racketeering.
Both the federal and state racketeering statutes prohibit conspiracy in performing the activities
prohibited under the acts. “A conspiracy claim under 18 U.S.C. § 1962(d) fails when the
substantive claim based on § 1962(c) is without merit.” Bancoklahoma Mortgage Corp. v.
Capital Title Company, Inc., 194 F3d at 1100 (citing Edwards v. First Nat'l Bank, Bartlesville,
Okla., 872 F.2d 347, 352 (10th Cir. 1989)).
The racketeering acts set forth in the RICO statute are referred to as “predicate acts” and
form the basis for liability under RICO. Bancoklahoma Mortgage Corp. v. Capital Title
Company, Inc., 194 F.3d at 1100 (citing Bacchus Industries, Inc. v. Arvin Industries, Inc., 939
F.2d 887, 891 (10th Cir. 1991)). “Proof of two or more predicate acts are not sufficient to prove
a pattern unless there is a relationship between the predicate acts and a threat of continuing

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activity.” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. at 239; Duran v. Carris, 238 F.3d at
1271.
Continuity of threat requires both proof of “a series of related predicates
extending over a substantial period of time,” as well as a “showing that the
predicates themselves involve a distinct threat of long-term racketeering
activity . . . or that the predicates are a regular way of conducting the defendant's
ongoing legitimate business or the RICO enterprise.”
Tal v. Hogan, 453 F.3d at 1268 (citing Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1543
(10th Cir. 1993)). It must be shown that the “racketeering predicates are related, and that they
amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Northwestern Bell Tel.
Co., 492 U.S. at 240. See Duran v. Carris, 238 F.3d at 1271.
Only “persons” can violate under § 1962 and be liable for civil damages under § 1964.
See Massey v. City of Oklahoma City, 643 F. Supp. 81, 85 (W.D.Okla. 1986)(Alley, J.). A suit
against a government official in his official capacity is no different than a lawsuit against the
government itself. See Thompson v. City of Lawrence, Kan., 58 F.3d 1511, 1517 (10th Cir.
1995).
2.

The New Mexico Racketeering Act.

The Racketeering Act, N.M. Stat. Ann. §§ 30-42-1 to -6, closely tracks RICO’s
provisions. The New Mexico statute makes it “unlawful for any person employed by or
associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of
the enterprise's affairs by engaging in a pattern of racketeering activity.” N.M. Stat. Ann. §
30-42-4C. The state Racketeering Act also prohibits conspiring to engage in any violation of the
Racketeering Act. See § 30-42-4D. The state act defines “racketeering activity” as “any act that
is chargeable or indictable under the laws of New Mexico and punishable by imprisonment for
more than one year, involving any of” several enumerated offenses, including larceny, fraud,

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embezzlement, extortion, fraudulent securities practices, and violations “of the provisions of
Section 4 of the Money Laundering Act.” N.M. Stat. Ann. § 30–42–3A. The state act defines
“pattern of racketeering activity” as
engaging in at least two incidents of racketeering with the intent of accomplishing
any of the prohibited activities set forth in Subsections A through D of Section
30–42–4 NMSA 1978; provided at least one of the incidents occurred after the
effective date of the racketeering act [1980] and the last incident occurred within
five years after the commission of a prior incident of racketeering.
N.M. Stat. Ann. § 30-42-3D. The state statute provides for a civil cause of action: “A
person who sustains injury to his person, business or property by a pattern of racketeering
activity may file an action in the district court for the recovery of three times the actual
damages proved and the costs of the suit, including reasonable attorney's fees.” N.M.
Stat. Ann. § 30-42-6A. It is unclear whether the state Racketeering Act mirrors the
federal RICO statute in requiring a showing of continuity and ongoing threat as part of
demonstrating a pattern of racketeering activity. The Court of Appeals of New Mexico
has required showings of continuity to establish that an informal organization is an
enterprise. See State v. Rael, 1990-NMCA-068, ¶¶ 10-12, 981 P.2d 280, 284.
LAW REGARDING DISMISSAL
District courts have the inherent power to manage their dockets. United States v.
Schneider, 594 F.3d 1219, 1226 (10th Cir. 2010)(citing Link v. Wabash R.R. Co., 370 U.S. 626,
630-31 (1962); United States v. Nicholson, 983 F.2d 983, 988 (10th Cir. 1993). This power
includes the ability to “dismiss a frivolous or malicious action . . . even in the absence of [a]
statutory provision.” Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 306-07
(1989) (quotation omitted).

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In reviewing a pro se complaint, the court liberally construes the factual allegations. See
Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). A pro se plaintiff’s pleadings
are judged, however, by the same legal standards that apply to all litigants, and a pro se plaintiff
must abide by the applicable rules of court. See Ogden v. San Juan County, 32 F.3d at 455. The
court is not obligated to craft legal theories for the plaintiff or to supply factual allegations to
support the plaintiff’s claims. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Nor
may the court assume the role of advocate for the pro se litigant. See Hall v. Bellmon, 935 F.2d
at 1110.
In deciding whether to dismiss the complaint, in whole or in part, the court is to consider
whether to allow the plaintiff an opportunity to amend the complaint. Pro se plaintiffs should be
given a reasonable opportunity to remedy defects in their pleadings. See Reynoldson v.
Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). The opportunity to amend should be granted
unless amendment would be futile. See Hall v. Bellmon, 935 F.2d at 1109. An amendment is
futile if the amended claims would also be subject to immediate dismissal under the rule 12(b)(6)
standards. See Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004).
1.

Law Regarding Rule 12(b)(1).

“Federal courts are courts of limited jurisdiction; they are empowered to hear only those
cases authorized and defined in the Constitution which have been entrusted to them under a
jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th
Cir. 1994) (Barrett, J.)(citations omitted).

A plaintiff generally bears the burden of

demonstrating the court's jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 104 (1998)(Scalia, J.)(“[T]he party invoking federal jurisdiction bears
the burden of establishing its existence.”). Rule 12(b)(1) allows a party to raise the defense of

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the court’s “lack of jurisdiction over the subject matter” by motion. Fed. R. Civ. P. 12(b)(1). The
Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “generally
take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to
subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter
jurisdiction is based.”

Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002)

(VanBebber, J.).
On a facial attack, a plaintiff is afforded safeguards similar to those provided in
opposing a rule 12(b)(6) motion: the court must consider the complaint's
allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v.
Tucker, 645 F.2d 404, 412 (5th Cir. 1981). But when the attack is factual, a
district court may not presume the truthfulness of the complaint's factual
allegations. A court has wide discretion to allow affidavits, other documents, and
a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule
12(b)(1). In such instances, a court's reference to evidence outside the pleadings
does not convert the motion to a Rule 56 motion.
Alto Eldorado Partners v. City of Santa Fe, No. CIV 08-0175 JB/ACT, 2009 WL 1312856, at
*8–9 (D.N.M. Mar. 11, 2009)(Browning, J.)(citations omitted). The United States Court of
Appeals for the Fifth Circuit has stated:
[T]he trial court may proceed as it never could under 12(b)(6) or Fed. R. Civ. P.
56. Because at issue in a factual 12(b)(1) motion is the trial court's
jurisdiction -- its very power to hear the case -- there is substantial authority that
the trial court is free to weigh the evidence and satisfy itself as to the existence of
its power to hear the case. In short, no presumptive truthfulness attaches to
plaintiff's allegations, and the existence of disputed material facts will not
preclude the trial court from evaluating for itself the merits of jurisdictional
claims.
Williamson v. Tucker, 645 F.2d 404, 412–13 (5th Cir. 1981)(Randall, J.)(quoting Mortensen v.
First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
When making a rule 12(b)(1) motion, a party may go beyond the allegations in the
complaint to challenge the facts upon which jurisdiction depends, and may do so by relying on
affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v.

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Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995)(Brorby, J.); Holt v. United States, 46 F.3d 1000,
1003 (10th Cir. 1995)(Baldock, J.).

In those instances where the parties go beyond the

pleadings, a court's reference to evidence outside the pleadings does not necessarily convert the
motion to a rule 56 motion for summary judgment. See Holt v. United States, 46 F.3d at 1003
(citing Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)(Anderson, J.)). Where,
however, the court determines that jurisdictional issues raised in a rule 12(b)(1) motion are
intertwined with the case's merits, the court should resolve the motion either under rule 12(b)(6)
or rule 56. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir.
1999)(Murphy, J.); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir. 1997)(Briscoe, J.).
“When deciding whether jurisdiction is intertwined with the merits of a particular dispute, ‘the
underlying issue is whether resolution of the jurisdictional question requires resolution of an
aspect of the substantive claim.’” Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th
Cir. 2003)(Hartz, J.)(quoting Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324
(10th Cir. 2002)(Seymour, J.)).
2.

Law Regarding Rule 12(b)(2).

Motions to dismiss under rule 12(b)(2) test the plaintiff's theory of personal jurisdiction
as well as the facts supporting personal jurisdiction. See Credit Lyonnais Sec. (USA), Inc. v.
Alcantara, 183 F.3d 151, 153-54 (2d Cir. 1999). Rule 12(b)(2) concerns lack of personal
jurisdiction. See Fed. R. Civ. P. 12(b)(2). In determining personal jurisdiction, a court must test
not only the complaint's jurisdictional theory, but also the facts on which jurisdiction is
predicated. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d at 154 (holding that the
court “must determine whether the defendant in fact subjected itself to the court's jurisdiction”).
Where a defendant raises a timely challenge contesting personal jurisdiction, the plaintiff bears

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the burden of establishing that there is personal jurisdiction over the defendant and that the
exercise of personal jurisdiction would not violate due-process requirements. See Overton v.
United States, 925 F.2d 1282, 1283 (10th Cir. 1991); Rambo v. Am. S. Ins. Co., 839 F.2d 1415,
1417 (10th Cir. 1988); Jemez Agency, Inc. v. CIGNA Corp., 866 F. Supp. 1340, 1342
(D.N.M. 1994)(Burciaga, J). At this stage of the proceedings, it is not for the court to resolve
disputed facts. See Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42,
45 (1st Cir. 2002). Rather, the court “‘must accept the plaintiff's (properly documented)
evidentiary proffers as true for the purpose of determining the adequacy of the prima facie
jurisdictional showing.’” Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290
F.3d at 45 (quoting Foster–Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir.
1995)).
The plaintiff has the burden of proving personal jurisdiction. The court’s jurisdiction
may rest on general or specific personal jurisdiction. Due process, however, limits any state
statutory basis for personal jurisdiction.
“[W]hen the court's jurisdiction is contested, the plaintiff has the burden of proving
jurisdiction exists.” Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995).
When jurisdiction is “decided on the basis of affidavits and other written
materials, the plaintiff need only make a prima facie showing” of facts that would
support the assertion of jurisdiction. [Wenz v. Memery Crystal, 55 F.3d at 1505].
“The allegations in the complaint must be taken as true to the extent they are
uncontroverted by the defendant's affidavit.” Behagen v. Amateur Basketball
Ass’n, 744 F.2d [731,] 733 [(10th Cir. 1984)]. When, however, a defendant
presents credible evidence through affidavits or other materials suggesting the
lack of personal jurisdiction, the plaintiff must come forward with sufficient
evidence to create a genuine dispute of material fact on the issue. See Doe v.
Nat'l Med. Servs., 974 F.2d 143, 145 (10th Cir. 1992). Only if the plaintiff meets
the obligation of contesting the credible evidence that the defendant presents does
the court resolve the factual disputes in favor of the plaintiff. See Wenz v.
Memery Crystal, 55 F.3d at 1505; Behagen v. Amateur Basketball Ass’n, 744
F.2d at 733.

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Clark v. Meijer, Inc., 376 F. Supp. 2d 1077, 1082 (D.N.M.2004)(Browning, J.). When, however,
“personal jurisdiction is assessed in an evidentiary hearing . . . , the plaintiff generally must
establish, by a preponderance of the evidence, that personal jurisdiction exists.” Dudnikov v.
Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 n.4 (10th Cir. 2008). “The party
seeking to establish personal jurisdiction over a foreign litigant must make two showings: first,
that the exercise of jurisdiction is sanctioned by the state's long-arm statute; and second, that it
comports with the due process requirements of the Fourteenth Amendment.” Marcus Food Co. v.
DiPanfilo, 671 F.3d 1159, 1166 (10th Cir. 2011). New Mexico's long-arm “statute extends the
jurisdictional reach of New Mexico courts as far as constitutionally permissible.” Tercero v.
Roman Catholic Diocese of Norwich, Conn., 2002–NMSC–018, ¶ 6, 132 N.M. 312, 48 P.3d 50,
54. Consequently, the Court “need not conduct a statutory analysis apart from the due process
analysis.” Marcus Food Co. v. DiPanfilo, 671 F.3d at 1166 (internal quotation marks omitted).
Depending on the character and extent of a defendant's contacts, a court may exercise
general or specific personal jurisdiction. See Helicopteros Nacionales de Columbia, S.A. v. Hall,
466 U.S. 408, 414 (1984).
General jurisdiction is based on an out-of-state defendant's “continuous and
systematic” contacts with the forum state, and does not require that the claim be
related to those contacts. Specific jurisdiction, on the other hand, is premised on
something of a quid pro quo: in exchange for “benefitting” from some purposive
conduct directed at the forum state, a party is deemed to consent to the exercise of
jurisdiction for claims related to those contacts.
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1078 (emphasis in original). Thus,
“[s]uch contacts may give rise to personal jurisdiction over a non-resident defendant either
generally, for any lawsuit, or specifically, solely for lawsuits arising out of particular forumrelated activities.” Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011).

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A court may assert specific jurisdiction “if the defendant has ‘purposefully directed’ his
activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out
of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. at 472 (citations
omitted)(internal quotation marks omitted). In the tort context, a defendant has “purposefully
directed” his activities at New Mexico or its residents when he or she has: (i) taken intentional
action; (ii) the action was “expressly aimed” at New Mexico; and (iii) the action was taken with
the knowledge that “the brunt of th[e] injury” would be felt in New Mexico. Dudnikov v. Chalk
& Vermilion Fine Arts, Inc., 514 F.3d at 1072 (quoting Calder v. Jones, 465 U.S. 783, 789-90
(1984)).
Cases involving the internet amplify these general personal jurisdiction principles. In
these cases, the United States Court of Appeals for the Tenth Circuit focuses whether the website
or internet user “intentionally direct[ed] his/her/its activity or operation at the forum state rather
than just having the activity or operation accessible there.” Shrader v. Biddinger, 633 F.3d 1235,
1240 (10th Cir. 2011)(emphasis in original). Simply posting defamatory statements on a website
will not, standing alone, establish personal jurisdiction over the poster in any state where the post
may be read. See Shrader v. Biddinger, 633 F.3d at 1241. Instead, courts consider whether the
“defendant deliberately directed its message at an audience in the forum state and intended harm
to the plaintiff occurring primarily or particularly in the forum state.” Shrader v. Biddinger, 633
F.3d at 1241. In short, “the forum state itself must be the focal point of the tort.” Shrader v.
Biddinger, 633 F.3d at 1244 (emphasis in original)(quoting Dudnikov v. Chalk & Vermilion Fine
Arts, Inc., 514 F.3d at 1074 n.9)(internal quotation marks omitted).
The due-process analysis is also two-fold: First, [the defendant] must have “minimum
contacts” with the forum state, demonstrating that he or she “purposefully availed” himself or

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herself of the protections or benefits of the state’s laws, and “should reasonably anticipate being
haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. at 473-76. See also Emp’rs
Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1159-60 (10th Cir. 2010)(reiterating the
Burger King Corp. v. Rudzewicz standard).

Although agreements alone are likely to be

insufficient to establish minimum contacts, “‘parties who reach out beyond one state and create
continuing relationships and obligations with citizens of another state are subject to regulation
and sanctions in the other state for the consequences of their activities.’” TH Agric. & Nutrition,
LLC v. Ace Eur. Grp. Ltd., 488 F.3d 1282, 1287-88 (10th Cir. 2007)(quoting Burger King Corp.
v. Rudzewicz, 471 U.S. at 473, 478; Marcus Food Co. v. DiPanfilo, 671 F.3d at 1166).
A defendant may reasonably anticipate being subject to suit in the forum state “if
the defendant has ‘purposefully directed’ his activities at residents of the forum,
and the litigation results from alleged injuries that ‘arise out of or relate to’ those
activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)(internal
citation omitted); see also Hanson v. Denckla, 357 U.S. 235, 253 (1958)(“[I]t is
essential in each case that there be some act by which the defendant purposefully
avails itself of the privilege of conducting activities within the forum State.”).
TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d at 1287-88. The Supreme Court has
held that the mere foreseeability of harm occurring in a particular forum will not support a
finding of minimum contacts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
295 (1980)(holding that, although “an automobile is mobile by its very design and purpose,” thus
indicating that it is foreseeable that a particular automobile may cause injury in a forum state,
“‘foreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the
Due Process Clause”). In Roberts v. Piper Aircraft Corp., 1983-NMCA-110, the Court of
Appeals of New Mexico similarly rejected the argument that foreseeability could establish
minimum contacts, and found no personal jurisdiction or minimum contacts in the following
circumstances:

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[T]he record is devoid of any contact between Scenic Aviation and New Mexico.
Scenic Aviation is a fixed-base operator selling aviation fuel in Las Vegas,
Nevada. There is no evidence that Scenic Aviation advertises in New Mexico, or
sells fuel to New Mexico residents. Without “contacts, ties, or relations” with
New Mexico the fact that fuel sold by Scenic Aviation found its way into our state
does not support a valid exercise of personal jurisdiction.
1983-NMCA-110, ¶ 19. “[T]he foreseeability that is critical to due process analysis is not the
mere likelihood that a product will find its way into the forum State. Rather, it is that the
defendant's conduct and connection with the forum State are such that he should reasonably
anticipate being haled into court there.” World–Wide Volkswagen Corp. v. Woodson, 444 U.S.
at 297.

As the Tenth Circuit has further explained, because “mere foreseeability” is not

sufficient to establish minimum contacts, a plaintiff “must establish . . . not only that defendants
foresaw (or knew) that the effects of their conduct would be felt in the forum state, but also that
defendants undertook intentional actions that were expressly aimed at that forum state.”
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1077.
Similarly, to find general jurisdiction over a defendant, contacts must be “continuous and
systematic”; therefore, “[s]imply because a defendant has a contractual relationship and business
dealings with a person or entity in the forum state does not subject him to general jurisdiction
there”; “correspondence with a forum resident does not support general jurisdiction”; and
“sporadic or isolated visits to the forum state will not subject the defendant to general
jurisdiction,” because a “[defendant's] lack of a regular place of business in [the forum state] is
significant, and is not overcome by a few visits.” Shrader v. Biddinger, 633 F.3d at 1247.
“[G]eneral jurisdiction over a web site that has no intrinsic connection with a forum state
requires commercial activity carried on with forum residents in such a sustained manner that it is
tantamount to actual physical presence within the state.” Shrader v. Biddinger, 633 F.3d at 1246.
When analyzing minimum contacts sufficient for general jurisdiction in regard to the operation

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of a web site, the Tenth Circuit has referred to, without adopting, a “sliding scale” framework.
Shrader v. Biddinger, 633 F.3d at 1242 n.5.
At one end of the spectrum are situations where a defendant clearly does business
over the Internet. If the defendant enters into contracts with residents of a foreign
jurisdiction that involve the knowing and repeated transmission of computer files
over the Internet, personal jurisdiction is proper. At the opposite end are
situations where a defendant has simply posted information on an Internet Web
site which is accessible to users in foreign jurisdictions. A passive Web site that
does little more than make information available to those who are interested in it
is not grounds for the exercise [of] personal jurisdiction. The middle ground is
occupied by interactive Web sites where a user can exchange information with the
host computer. In these cases, the exercise of jurisdiction is determined by
examining the level of interactivity and commercial nature of the exchange of
information that occurs on the Web site.
Shrader v. Biddinger, 633 F.3d at 1242 n. 5 (internal quotation marks omitted).
If [the defendant] is found to have the requisite minimum contacts with [the
forum state], then we proceed to the second step in the due process analysis:
ensuring that the exercise of jurisdiction over him “does not offend ‘traditional
notions of fair play and substantial justice.’” See World–Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 292 . . . (1980)(quoting Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945)). [The defendant] bears the burden at this stage to
“present a compelling case that the presence of some other considerations would
render jurisdiction unreasonable.” See Dudnikov v. Chalk & Vermilion Fine
Arts, Inc., 514 F.3d 1063, 1080 (10th Cir. 2008). We consider the following five
factors, . . . in deciding whether the exercise of jurisdiction would be fair:
(1) the burden on the defendant, (2) the forum state's interests in
resolving the dispute, (3) the plaintiff's interest in receiving
convenient and effectual relief, (4) the interstate judicial system's
interest in obtaining the most efficient resolution of controversies,
and (5) the shared interest of the several states or foreign nations in
furthering fundamental social policies.
Id. (brackets omitted); see also OMI Holdings, Inc., 149 F.3d at 1095 (applying
these factors in a case involving a Canadian corporation). “[T]he reasonableness
prong of the due process inquiry evokes a sliding scale: the weaker the plaintiff's
showing on minimum contacts, the less a defendant need show in terms of
unreasonableness to defeat jurisdiction.” TH Agric. & Nutrition, LLC, 488 F.3d
at 1292 (internal quotation marks and brackets omitted).
Marcus Food Co. v. DiPanfilo, 671 F.3d at 1167.

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In Silver v. Brown, 678 F. Supp. 2d 1187 (D.N.M.2009)(Browning, J.), aff'd in part and
rev’d in part, 382 Fed.Appx. 723 (10th Cir. 2010), the Court considered whether it had personal
jurisdiction

over

defendants

who

allegedly

slandered,

defamed,

and

caused

the

plaintiff -- Michael Silver -- duress, by posting a blog on the internet that portrayed him in a
negative light. See 678 F. Supp. 2d at 1204. The Court determined that it did not have personal
jurisdiction over defendant Jack McMullen, because Silver failed to demonstrate that McMullen
“was significantly associated with the blog or controlled it in any way.” 382 Fed.Appx. at 727.
The Court also concluded that it did not have personal jurisdiction over the blog post’s
author -- Matthew Brown -- because he was not domiciled in New Mexico, had not traveled to
New Mexico, and did not transact business there. See 678 F. Supp. 2d at 1211. The Court said
that Brown’s blog posts similarly did not establish personal jurisdiction, because
the blog is closer to an informative website than a commercial website. No
services are offered, and Brown is not collecting revenue from the website.
Brown does not interact with the people who post information on the blog.
Brown, to the Court's knowledge, did not solicit negative postings on the website.
Further, even though people in New Mexico can view the website, the blog is not
a website that is directed solely at the people of New Mexico. The number of
people who can access the website in New Mexico in comparison to those who
are able to access the website throughout the world, or even in the United States,
according to the statistics that Silver provided at the hearing, is nominal.
678 F. Supp. 2d at 1211-12.
On appeal, the Tenth Circuit affirmed the Court's holding as to McMullen, but reversed
its decision as to Brown. See Silver v. Brown, 382 Fed.Appx. at 727-32. In an opinion that the
Honorable Monrow G. McKay, United States Circuit Judge for the Tenth Circuit, authored, and
Judges Broby and Ebel joined, the Tenth Circuit applied the three-part test from Calder v. Jones
to conclude that the Court had personal jurisdiction over Brown. See Silver v. Brown, 382
Fed.Appx. at 727–32.

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Judge McKay first explained that the blog posting was “clearly an intentional act”
designed to damage the plaintiff's reputation. 382 Fed.Appx. at 729. Second, Judge McKay said
that Brown had “expressly aimed his blog at New Mexico[,]” where Silver, his business, and the
majority of his customers were located. 382 Fed.Appx. at 729. Judge McKay said: “It was
about a New Mexico resident and a New Mexico company. The blog complained of Mr. Silver's
and [his business'] actions in the failed business deal. Those actions occurred mainly in New
Mexico.” 382 Fed.Appx. at 729-30. Third, Judge McKay explained that Brown knew Silver
would suffer the brunt of his injury in New Mexico, as the state was “unquestionably the center
of his business activities.” 382 Fed.Appx. at 730.
New Mexico's long-arm statute provides, in relevant part, that its courts may exercise
personal jurisdiction over a party “whether or not a citizen or resident of this state ... as to any
cause of action arising from: (1) the transaction of business within this state . . . [or] (3) the
commission of a tortious act within this state . . .” N.M.S.A. § 38-1-16. For New Mexico courts
to exercise personal jurisdiction over nonresident, out-of-state defendants, the
following three-part test must be satisfied:
(1) the defendant's act must be one of the five enumerated in the long-arm
statute; (2) the plaintiff's cause of action must arise from the act; and (3)
minimum contacts sufficient to satisfy due process must be established by
the defendant's act.
State Farm Mut. Ins. Co. v. Conyers, 109 N.M. 243, 244, 784 P.2d 986, 987
(1989)(citing Salas v. Homestake Enterprises, Inc., 106 N.M. 344, 345, 742 P.2d
1049, 1050 (1987)). The first and third step of this test have been “repeatedly
equated” with the due process standard of “minimum contacts.”
F.D.K. v. Hiatt, 1994–NMSC–044, ¶ 7, 872 P.2d 879, 881. “When negligent acts occur outside
New Mexico which cause injury within the state, a ‘tortious act’ has been committed for
purposes of the long-arm statute.” Tercero v. Roman Catholic Diocese of Norwich, Conn.,
2002-NMSC-018, ¶ 20, 48 P.3d at 57. “As with the transaction of business analysis, rather than

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engage in a technical analysis of whether the defendant committed a tortious act, we must equate
the ‘tortious act’ which the defendant is alleged to have committed with minimum contacts to
determine if due process has been satisfied.” Tercero v. Roman Catholic Diocese of Norwich,
Conn., 2002-NMSC-018, ¶ 20, 132 N.M. 312, 48 P.3d at 57 (alteration omitted)(internal
quotation marks omitted).
The Court recently decided cases dealing with general and specific jurisdiction. In
Fabara v. GoFit, LLC, 308 F.R.D. 380 (D.N.M.2015)(Browning, J.), a plaintiff injured by an
allegedly defective exercise ball in New Mexico brought suit against the manufacturer, which
was incorporated and headquartered in Oklahoma. See 308 F.R.D. at 408. The manufacturer
moved to dismiss the complaint under rule 12(b)(2), arguing that the plaintiff lacked general
jurisdiction because its contacts with New Mexico were neither continuous nor systematic. See
308 F.R.D. at 384. The plaintiff responded with photographs of the manufacturers' products in
several stores, arguing that the manufacturer delivered the exercise balls into the stream of
commerce with the expectation that New Mexico customers would purchase and use them. See
308 F.R.D. at 389. The Court rejected this theory, explaining that the manufacturer's contacts
with New Mexico were not “so systematic and continuous as to make it essentially at home
here.” 308 F.R.D. at 397. The Court noted that the manufacturer had almost no physical
connections with New Mexico, and that its internet sales of roughly $20,000.00 over nine years
were insufficiently “substantial” to support general jurisdiction. 308 F.R.D. at 402.
In Diener v. Trapeze Asset Management, Inc., No. CIV 15-0566 JB/LAM, 2015 WL
8332933, at *1 (D.N.M. Nov. 30, 2015) the Court considered whether it had specific jurisdiction
over a Canadian asset management firm that maintained a passive website, placed its name in a
third party's money-manager listing, mailed marketing materials to New Mexico, had telephone

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conversations with plaintiffs located in New Mexico, and ultimately entered into a contract with
plaintiffs located in New Mexico. See 2015 WL 8332933, at *1. The Court concluded that it did
not have specific jurisdiction for four primary reasons. See 2015 WL 8332933, at *1. First, the
website was wholly passive and did not allow visitors “the opportunity to invest or interact with
the site.” 2015 WL 8332933, at *15. Second, the third-party listing was similarly passive. See
2015 WL 8332933, at *15.

Third, the Court noted that “phone calls and letters are not

necessarily sufficient in themselves to establish minimum contacts,” noting that the alleged torts
occurred in Canada. 2015 WL 8332933, at *17 (quoting Benton v. Cameco Corp., 375 F.3d
1070, 1077 (10th Cir. 2004)). Fourth, the plaintiffs reached out to the defendants to create the
contractual relationship, distinguishing the case from cases finding purposeful availment. See
2015 WL 8332933, at *17 (citing Burger King Corp. v. Rudzewicz, 471 U.S. at 473).
3.

Law Regarding Rule 12(b)(4).

Rule 12(b)(5) provides, in pertinent part: “Every defense to a claim for relief in any
pleading must be asserted in the responsive pleading if one is required. But a party may assert
the following defenses by motion . . . (5) insufficient service of process.” Fed.R.Civ.P. 12(b)(5).
Under rules 12(b)(4) and 12(b)(5), a “defendant may object to plaintiff's failure to comply with
the procedural requirements for proper service set forth in or incorporated by Rule 4.”
Richardson v. Alliance Tire & Rubber Co., 158 F.R.D. 475, 477 (D. Kan. 1994)(Crow, J.)
(quoting 5A C. Wright & A. Miller, Federal Practice and Procedure § 1353 (2d ed.1990)).
“Rules 12(b)(4) and 12(b)(5) allow a defendant to defend against a claim on the grounds of
insufficiency of process and insufficiency of service of process.” Whitsell v. United States, 198
F.3d 260, 260 (10th Cir. 1999)(citing Fed.R.Civ.P. 12(b)(4), 12(b)(5)). “A Rule 12(b)(4) motion
constitutes an objection to the form of process or the content of the summons rather than the

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method of its delivery.” Oltremari by McDaniel v. Kan. Soc. & Rehab. Serv., 871 F. Supp.
1331, 1349 (D. Kan. 1994)(Lungstrum, J.)(citation omitted). See United States v. Sharon Steel
Corp., 681 F. Supp. 1492, 1499 n.14 (D. Utah 1987)(Jenkins, J.). “A Rule 12(b)(5) motion ...
challenges the mode or lack of delivery of a summons and complaint.” Oltremari by McDaniel
v. Kansas Social & Rehabilitative Serv., 871 F. Supp. at 1349. See United States v. Sharon Steel
Corp., 681 F. Supp. at 1499 n.14.
Where a plaintiff does not meet this burden, a court may dismiss for failure to properly
serve. See Lasky v. Lansford, 76 Fed App’x. 240, 240-41 (10th Cir. 2003)(unpublished).
“Motions under Federal Rules 12(b)(4) and 12(b)(5) differ from the other motions permitted by
Rule 12(b) somewhat in that they offer the district court a course of action -- quashing the
process without dismissing the action -- other than simply dismissing the case when the
defendant's defense or objection is sustained.” 5B C. Wright & A. Miller, Federal Practice and
Procedure § 1354, at 346 (3d ed. 2004). “Technical defects in a summons do not justify
dismissal unless a party is able to demonstrate actual prejudice.” Chan v. Society Expeditions,
Inc., 39 F.3d 1398, 1404 (9th Cir. 1994)(citing Fed. Deposit Ins. Corp. v. Swager, 773 F. Supp.
1244, 1249 (D. Minn. 1991); United Food v. Commercial Workers Union, 736 F.2d 1371, 1382
(9th Cir. 1984)). See U.S.A. Nutrasource, Inc. v. CNA Ins. Co., 140 F. Supp. 2d 1049, 1052-53
(N.D. Cal. 2001)(Hamilton, J.)(“Dismissals for defects in the form of summons are generally
disfavored. Such defects are considered ‘technical’ and hence are not a ground for dismissal
unless the defendant demonstrates actual prejudice.” (citation omitted)). “[W]hen a court finds
that service is insufficient but curable, it generally should quash the service and give the plaintiff
an opportunity to re-serve the defendant.” Pell v. Azar Nut Co., Inc., 711 F.2d 949, 950 n.2

- 52 -

(10th Cir. 1983)(citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1354, at 586–
87 (1969)).
Where service of process is insufficient, the courts have broad discretion to
dismiss the action or to retain the case but quash the service that has been made
on defendant ... even though service will ordinarily be quashed and the action
preserved where there is a reasonable prospect that plaintiff ultimately will be
able to serve defendant properly.
Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir. 1985)(internal quotations and
citations omitted). In addition, the court has discretion to dismiss the action if it appears unlikely
that proper service can or will be instituted. See Pell v. Azar Nut Co., Inc., 711 F.2d at 950 n.2.
“The party on whose behalf service is made has the burden of establishing its validity
when challenged; to do so, he must demonstrate that the procedure employed satisfied the
requirements of the relevant portions of Rule 4 and any other applicable provision of law.” Light
v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987)(internal citations and quotations omitted). “Pro se
litigants are allowed more latitude than litigants represented by counsel to correct defects in
service of process and pleadings.” Moore v. Agency for Int’l Dev., 994 F.2d 874, 876 (D.D.C.
1993)(internal citations omitted). Although “district courts do not need to provide detailed
guidance to pro se litigants,” they should at least “supply minimal notice of the consequences of
not complying with procedural rules.” This assistance does not, of course, “constitute a license
for a plaintiff filing pro se to ignore the Federal Rules of Civil Procedure.” 994 F.2d at 876.
4.

Law Regarding Rule 12(b)(6).

Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The nature of a Rule 12(b)(6) motion
tests the sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The sufficiency

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of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must
accept as true all well-pled factual allegations in the complaint, view those allegations in the light
most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's
favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a
reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would
the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098
(10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all wellpled factual allegations in a complaint and view these allegations in the light most favorable to
the plaintiff.”)(citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).
A complaint need not set forth detailed factual allegations, yet a “pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action” is
insufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly,
550 U.S. at 555)(internal quotation marks omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,
556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555 (citation omitted).
To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that,
if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v.
Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556).

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“Thus, the mere

metaphysical possibility that some plaintiff could prove some set of facts in support of the
pleaded claims is insufficient; the complainant must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The Tenth
Circuit stated:
“[P]lausibility” in this context must refer to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs “have not nudged their claims across the
line from conceivable to plausible.” The allegations must be enough that, if
assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for
relief.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citations omitted)(quoting Bell Atl.
Corp. v. Twombly, 550 U.S. at 570).
Although affirmative defenses must generally be pled in the defendant's answer, not
argued on a motion to dismiss, see Fed. R. Civ. P. 8(c), there are exceptions where: (i) the
defendant asserts an immunity defense -- the courts handle these cases differently than other
motions to dismiss, see Glover v. Gartman, 899 F. Supp. 2d 1115, 1137-39, 1141 (D.N.M. 2012)
(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223 (2009); Robbins v. Oklahoma, 519 F.3d
at 1242); and (ii) where the facts establishing the affirmative defense are apparent on the face of
the complaint, see Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965)(“Under Rule
12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to state
a claim. If the defense appears plainly on the face of the complaint itself, the motion may be
disposed of under this rule.”). The defense of limitations is the affirmative defense that is most
likely to be established by the uncontroverted facts in the complaint. See 5 Charles Alan Wright,
Arthur R. Miller, Mary Kay Kane, A. Benjamin Spencer, Richard L. Marcus & Adam N.
Steinman, Federal Practice & Procedure: Civil § 1277, at 643 (3d ed. 2016). If the complaint

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sets forth dates that appear, in the first instance, to fall outside of the statutory limitations period,
then the defendant may move for dismissal under rule 12(b)(6). See Rohner v. Union Pac. R.R.
Co., 225 F.2d 272, 273-75 (10th Cir. 1955); Gossard v. Gossard, 149 F.2d 111, 113 (10th Cir.
1945); Andrew v. Schlumberger Tech. Co., 808 F. Supp. 2d 1288, 1292 (D.N.M.
2011)(Browning, J.). The plaintiff may counter this motion with an assertion that a different
statute of limitations or an equitable tolling doctrine applies to bring the suit within the statute;
the Tenth Circuit has not clarified whether this assertion must be pled with supporting facts in
the complaint or may be merely argued in response to the motion. Cf. Kincheloe v. Farmer, 214
F.2d 604, 605 (7th Cir. 1954)(holding that, once a plaintiff has pled facts in the complaint
indicating that the statute of limitations is a complete or partial bar to an action, it is incumbent
upon the plaintiff to plead, either in the complaint or in amendments to it, facts establishing an
exception to the affirmative defense). It appears, from case law in several circuits, that the
plaintiff may avoid this problem altogether -- at least at the motion-to-dismiss stage -- by simply
refraining from pleading specific or identifiable dates, see Goodman v. Praxair, Inc., 494 F.3d
458, 465-66 (4th Cir. 2007); Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006); Harris
v. New York, 186 F.3d 243, 251 (2d Cir. 1999); Honeycutt v. Mitchell, 2008 WL 3833472
(W.D. Okla. 2008)(West, J.), and, although the Tenth Circuit has not squarely addressed this
practice, the Court has permitted this practice, see Anderson Living Trust v. WPX Energy Prod.,
LLC, 2014 WL 2750652, at *17, *37-39 (D.N.M. 2014)(Browning, J.).
LAW REGARDING MOTIONS FOR A MORE DEFINITE STATEMENT
UNDER RULE 12(e)
Rule 12(e) of the Federal Rules of Civil Procedure permits a party to file a motion for a
more definite statement when that party is required to file a response to a pleading, but the
pleading is so vague or ambiguous that a response cannot reasonably be expected to be framed.

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See Moya v. Schollenbarger, 465 F.3d 444, 446 n. 2 (10th Cir. 2006)(“If a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be
required to frame a responsive pleading, the party may move for a more definite statement before
interposing a responsive pleading.”). A motion for more definite statement may only be made
before filing a responsive pleading and not after. See Fed.R.Civ.P. 12(e). The federal courts
disfavor motions for a more definite statement in light of the liberal discovery provided under the
federal rules, and grant such motions only when the complaint is so vague or ambiguous that a
defendant cannot reasonably determine the issues requiring a response.

See Peterson v.

Brownlee, 314 F. Supp. 2d 1150, 1155 (D. Kan. 2004)(Lungstrum, J.); Shaffer v. Eden, 209
F.R.D. 460, 464 (D. Kan. 2002). A motion for a more definite statement is used to provide a
remedy only for an unintelligible pleading, rather than to correct inaccurate assertions, add
precision, or flesh out a lack of detail. See Coffey v. McKinley Cnty., No. CIV 09–0028, 2009
WL 3208209, at *2 (D.N.M. Sept. 11, 2009)(Browning, J.); Bannister v. Coronado Fin., Inc., No.
CIV 07–620, 2008 WL 2323518, at *10 (D.N.M. Jan. 17, 2008)(Browning, J.); Frazier v. Se.
Penn. Transp. Auth., 868 F. Supp. 757, 763 (E.D. Pa. 1994)(Joyner, J.). The Supreme Court of
the United States has held that, “[i]f a pleading fails to specify the allegations in a manner that
provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e)
before responding.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002).
LAW REGARDING MOTIONS TO STRIKE
Rule 12(f) of the Federal Rules of Civil Procedures provides:
f) Motion to Strike. The court may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter. The court may
act:
(1) on its own; or

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(2) on motion made by a party either before responding to the pleading or, if a
response is not allowed, within 21 days after being served with the pleading.
Fed.R.Civ.P. 12(f). Professors Charles Wright and Arthur Miller have recognized, however, that
such motions are not favored and, generally, should be denied:
The district court possesses considerable discretion in disposing of a Rule 12(f)
motion to strike redundant, impertinent, immaterial, or scandalous matter.
However, because federal judges have made it clear, in numerous opinions they
have rendered in many substantive contexts, that Rule 12(f) motions to strike on
any of these grounds are not favored, often being considered purely cosmetic or
“time wasters,” there appears to be general judicial agreement, as reflected in the
extensive case law on the subject, that they should be denied unless the
challenged allegations have no possible relation or logical connection to the
subject matter of the controversy . . . .
5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1382, at 433-36
(3d. ed. 2004)(footnotes omitted). Accord Burget v. Capital W. Sec., Inc., No. CIV-09-1015-M,
2009 WL 4807619, at *1 (W.D. Okla. Dec. 8, 2009)(Miles–LaGrange, C.J.)(“While motions to
strike are generally disfavored, the decision to grant a motion to strike is within the discretion of
the court.”)(citing Scherer v. U.S. Dep’t of Educ., 78 Fed.Appx. 687, 689 (10th Cir. 2003)
(unpublished)).
“Allegations will not be stricken as immaterial under this rule unless they have no
possible bearing on the controversy.” Estate of Gonzales v. AAA Life Ins. Co., No. CIV
11-0486 JB/WDS, 2012 WL 1684599, at *5 (D.N.M. May 8, 2012)(Browning, J.)(quoting Sai
Broken Arrow C, LLC v. Guardian Emergency Vehicles, Inc., No. 09-CV-0455-CVE–FHM,
2010 WL 132414, at *5 (N.D. Okla. Jan. 8, 2010)(Eagan, J.)). “The Court must be convinced
that there are no questions of fact, that any questions of law are clear and not in dispute, and that
under no set of circumstances could the defenses succeed.” Friends of Santa Fe Cnty. v. LAC
Minerals, Inc., 892 F. Supp. 1333, 1343 (D.N.M. 1995)(Hansen, J.)(quoting Carter–Wallace, Inc.
v. Riverton Lab., Inc., 47 F.R.D. 366, 368 (S.D.N.Y. 1969)(Cannella, J.))(internal quotation

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marks omitted). Professors Wright and Miller have also commented on what constitutes
“immaterial” matter in the context of a motion to strike. “‘Immaterial’ matter is that which has
no essential or important relationship to the claim for relief or the defenses being pleaded, or a
statement of unnecessary particulars in connection with and descriptive of that which is
material.” 5C Wright & Miller, supra, § 1382, at 458-60 (footnotes omitted).
Moreover, “[o]nly material included in a ‘pleading’ may be the subject of a motion to
strike, and courts have been unwilling to construe the term broadly. Motions, briefs, . . .
memoranda, objections, or affidavits may not be attacked by the motion to strike.” Dubrovin v.
Ball Corp. Consol. Welfare Ben. Plan for Emps., No. 08-CV-00563-WYD-KMT, 2009 WL
5210498, at *1 (D. Colo. Dec. 23, 2009)(Daniel, J.). Accord Ysais v. N.M. Judicial Standard
Comm’n, 616 F. Supp. 2d 1176, 1184 (D.N.M. 2009)(Browning, J.)(citing Searcy v. Soc. Sec.
Admin., 956 F.2d 278, 1992 WL 43490, at *1, *4 (10th Cir. 1992)(unpublished table
decision))(“Generally . . . motions, briefs, and memoranda may not be attacked by a motion to
strike.”). “The Federal Rules of Civil Procedure define ‘pleadings' as a complaint or third-party
complaint; an answer to a complaint, a third-party complaint, a counterclaim, or a crossclaim;
and, ‘if the court orders one, a reply to an answer.’” Ysais v. N.M. Judicial Standard Comm'n,
616 F. Supp. 2d at 1184 (quoting Fed.R.Civ.P. 7(a)).
“Striking a pleading or part of a pleading is a drastic remedy and because a motion to
strike may often be made as a dilatory tactic, motions to strike under Rule 12(f) generally are
disfavored.” Estate of Gonzales v. AAA Life Ins. Co., 2012 WL 1684599, at *5 (quoting Sai
Broken Arrow C, LLC v. Guardian Emergency Vehicles, Inc., No. 09–CV–0455–CVE–FHM,
2010 WL 132414, at *5 (N.D. Okla. Jan. 8, 2010)(Egan, J.)(internal quotation marks omitted)).
“The exception to this principle is that a Court may ‘choose to strike a filing that is not allowed

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by local rule, such as a surreply filed without leave of court.’” Ysais v. N.M. Judicial Standard
Comm'n, 616 F. Supp. 2d at 1184 (citing In re Hopkins, 162 F.3d 1173, 1998 WL 704710, at *3
n.6 (10th Cir. 1998)(unpublished table decision)).
For example, in Skyline Potato, Co., Inc. v. Hi–Land Potato, Co., Inc., No. CIV 10–698,
2012 WL 6846386 (D.N.M. Dec. 31, 2012)(Browning, J.), the Court denied a motion to strike a
letter filed with the Court, because the letter was not a pleading and did not pertain to either
party’s legal defenses or arguments -- the letter expressed one party's position regarding whether
the Court should rule on summary judgment motions pending at the close of a bench trial. See
2012 WL 6846386, at *6. Similarly, in Great Am. Ins. Co. v. Crabtree, No. CIV 11–1129
JB/KBM, 2012 WL 3656500 (D.N.M. Aug. 23, 2012)(Browning, J.), the Court denied a
plaintiff's motion to strike exhibits attached to the defendant's motion to dismiss, because they
were neither pleadings nor irrelevant. See 2012 WL 3656500, at *18. In Applied Capital, Inc. v.
Gibson, the Court refused the plaintiff's request to strike a motion to dismiss because rule 12(f)
applies only to pleadings, and not to a motion to dismiss. See 2007 WL 5685131, at *18.
LAW REGARDING SURREPLIES
D.N.M. LR.-Civ. 7.4(b) provides: “The filing of a surreply requires leave of the Court.”
D.N.M.LR-Civ. 7.4(b). “A surreply is appropriate and should be allowed where new arguments
are raised in a reply brief.” Walker v. THI of N.M. at Hobbs Center, 2011 WL 2728344, at *1
(D.N.M. July 6, 2011)(Browning, J.). See Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229
F.R.D. 201, 204 (D.N.M. 2005)(Browning, J.). The Court has granted leave to file surreply
where a party has made arguments and presented new evidence that did not appear in the party's
moving papers. See Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. at 204.

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LAW REGARDING DEFAULT JUDGMENTS UNDER RULE 55
Rule 55 of the Federal Rules of Civil Procedure sets out a two-step process for a default
judgment. First, a party must obtain a Clerk's entry of default. See Fed.R.Civ.P. 55(a)(“When a
party against whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s
default.”); Watkins v. Donnelly, 551 F. App’x 953, 958 (10th Cir. 2014)(unpublished)(“Entry of
default by the clerk is a necessary prerequisite that must be performed before a district court is
permitted to issue a default judgment.”). Second, the party must either request the clerk to enter
default judgment when the claim is for “a sum certain or a sum that can be made certain by
computation,” Fed.R.Civ.P. 55(b)(1), or, “[i]n all other cases, the party must apply to the court
for a default judgment,” Fed.R.Civ.P. 55(b)(2).
After entering default judgment, a district court takes all of the well-pleaded facts in a
complaint as true. See United States v. Craighead, 176 F. App'x 922, 925 (10th Cir. 2006)
(unpublished); Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974)(“While a default judgment
constitutes an admission of liability, the quantum of damages remains to be established by proof
unless the amount is liquidated or susceptible of mathematical computation.” (citations
omitted)). “If defendant does not contest the amount prayed for in the complaint [by failing to
answer] and the claim is for a sum certain or a sum that can be made certain by computation, the
judgment generally will be entered for that amount without any further hearing.” United States
v. Craighead, 176 F. App’x at 925 (alteration in original)(quoting 10A Charles Alan Wright,
Arthur R. Miller, Mary Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice &
Procedure § 2688 (3d ed. 1998)). See Fed.R.Civ.P. 8(d)(“Averments in a pleading to which a
responsive pleading is required, other than those as to the amount of damage, are admitted when

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not denied in the responsive pleading.”). A court may enter a default judgment for a damage
award without a hearing if the amount claimed is “one capable of mathematical calculation.”
Applied Capital, Inc. v. Gibson, 558 F. Supp. 2d 1189, 1202 (D.N.M.2007)(Browning, J.)
(quoting H.B. Hunt v. Inter–Globe Energy, Inc., 770 F.2d 145, 148 (10th Cir. 1985))(citing
Venable v. Haislip, 721 F.2d at 300). “It is a familiar practice and an exercise of judicial power
for a court upon default, by taking evidence when necessary or by computation from facts of
record, to fix the amount which the plaintiff is lawfully entitled to recover and to give judgment
accordingly.” 10A Wright & Miller, supra, § 2688 (quoting Pope v. United States, 323 U.S. 1,
12 (1944)). “If the damages sum is not certain or capable of easy computation, the court may”
conduct such hearings or order such references as it deems necessary. Applied Capital, Inc. v.
Gibson, 558 F. Supp. 2d at 1202 (citing Beck v. Atl. Contracting Co., 157 F.R.D. 61, 64 (D.Kan.
1994)(Lungstrum, J.). See Fed.R.Civ.P. 55(b)(2)(B)(“The court may conduct hearings or make
referrals . . . when, to enter or effectuate judgment, it needs to . . . determine the amount of
damages.”).
“Default judgments are a harsh sanction.” Ruplinger v. Rains (In re Rains), 946 F.2d
731, 732 (10th Cir. 1991). The Court has noted that, “[b]ecause default judgment is a harsh
sanction involving a court's power to enter and enforce judgments regardless of the merits of a
case, courts do not favor such a sanction ‘purely as a penalty for delays in filing or other
procedural error.’” Noland v. City of Albuquerque, No. CIV 08–0056 JB/LFG, 2009 WL
2424591, at *1 (D.N.M. June 18, 2009)(Browning, J.)(quoting In re Rains, 946 F.2d at 733).
[S]trong policies favor resolution of disputes on their merits: the default judgment
must normally be viewed as available only when the adversary process has been
halted because of an essentially unresponsive party. In that instance, the diligent
party must be protected lest he be faced with interminable delay and continued
uncertainty as to his rights. The default judgment remedy serves as such a
protection.

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In re Rains, 946 F.2d at 732-33 (citations omitted)(internal quotation marks omitted). See
Noland v. City of Albuquerque, 2009 WL 2124591, at *1 (denying motion for default judgment,
because the counsel for the defendant City of Albuquerque “entered an appearance three days
after Noland filed his motion for default judgment,” and, thus, the Court could not “reasonably
say that the City of Albuquerque is an essentially unresponsive party, that the adversary process
has been halted, or that Noland faces interminable delay because of the City of Albuquerque's
actions”).
“The court may set aside an entry of default for good cause, and it may set aside a default
judgment under Rule 60(b).” Fed.R.Civ.P. 55(c). “[T]he good cause required by Fed.R.Civ.P.
55(c) for setting aside entry of default poses a lesser standard for the defaulting party than the
excusable neglect which must be shown for relief from judgment under Fed.R.Civ.P. 60(b).”
Pinson v. Equifax Credit Info. Servs., Inc., 316 F. App’x 744, 750 (10th Cir. 2009)(unpublished)
(quoting Dennis Garberg & Assocs., Inc. v. Pack–Tech Int’l Corp., 115 F.3d 767, 775 n.6 (10th
Cir. 1997)). The distinction between setting aside an entry of default and setting aside a default
judgment “reflects the different consequences of the two events and the different procedures that
bring them about.” 10A Wright & Miller, supra, § 2692.
[T]he clerk or the court may enter a default upon the application of the
nondefaulting party. The entry simply is an official recognition of the fact that
one party is in default, as, for example, for failure to comply with the rules, to
appear as scheduled, or to prosecute the case with due diligence. The entry is an
interlocutory step that is taken under Rule 55(a) in anticipation of a final
judgment by default under Rule 55(b).
In sharp contrast, a final default judgment is not possible against a party in default
until the measure of recovery has been ascertained, which typically requires a
hearing, in which the defaulting party may participate; in some situations, a jury
trial may be made available to determine an issue of damages. Moreover, the
entry of a default judgment is a final disposition of the case and an appealable
order.

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....
Additional differences between relief from the entry of a default and from a
default judgment appear in the grounds that will support the motion being
granted. Stated generally, the defaulting party is not entitled to relief from a
judgment as a matter of right under Rule 60(b). The movant must present a
justification supporting the relief motion and must establish his contentions if
challenged. Although whether relief will be granted is a matter within the sound
discretion of the trial court, the vacation of a default judgment is subject to the
explicit provisions of Rule 60(b), which places additional restraints upon the
court's discretion. The motion to set aside a default entry, on the other hand, may
be granted for “good cause shown,” which gives a court greater freedom in
granting relief than is available in the case of default judgments.
10A Wright & Miller, supra, § 2692 (footnotes omitted).
While there are some differences between setting aside the entry of default and setting
aside a default judgment, there are some important similarities, including that courts may
consider the same factors: whether the party willfully defaulted, whether setting aside the entry
of default or default judgment would prejudice the non-movant, and whether the movant has
presented a meritorious defense. See Pinson v. Equifax Credit Info Servs., Inc., 316 F. App'x at
750 (“In deciding whether to set aside an entry of default, courts may consider, among other
things, ‘whether the default was willful, whether setting it aside would prejudice the adversary,
and whether a meritorious defense is presented.’” (quoting Dierschke v. O'Cheskey (In re
Dierschke), 975 F.2d 181, 183 (5th Cir. 1992)); United States v. $285,350.00 in U.S. Currency,
547 F. App'x 886, 887 (10th Cir. 2013)(unpublished)(“Three requirements must be met when
setting aside a default judgment under Rule 60(b): ‘(1) the moving party's culpable conduct did
not cause the default; (2) the moving party has a meritorious defense; and (3) the non-moving
party will not be prejudiced by setting aside the judgment.’” (quoting United States v. Timbers
Pres., 999 F.2d 452, 454 (10th Cir. 1993), abrogated on other grounds by Degen v. United States,

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517 U.S. 820, 825 (1996))). The Tenth Circuit has, at times, listed two factors rather than three
for the standard in setting aside a default judgment:
Rule 60(b) of the Federal Rules of Civil Procedure permits relief from a final
judgment only if the movant can demonstrate justifiable grounds, including
mistake, inadvertence, surprise or excusable neglect. In the case of default
judgments, courts have established the further requirement that a movant
demonstrate the existence of a meritorious defense. E.g., Gomes v. Williams, 420
F.2d 1364, 1366 (10th Cir. 1970). A 60(b) motion thus comprehends two distinct
aspects[:] justification for relief and a meritorious defense.
In re Stone, 588 F.2d 1316, 1319 (10th Cir. 1978). See Sawyer v. USAA Ins. Co., 839 F. Supp.
2d 1189, 1230 (D.N.M.2012)(Browning, J.)(setting aside a default judgment, because, “when a
plaintiff fails to properly serve a defendant, a default judgment is void and should be set aside
under rule 60(b)(4)”). “Although how these factors will be evaluated and weighed lies within the
discretion of the trial court to a considerable degree, . . . federal courts are willing to grant relief
from a default entry more readily and with a lesser showing than they are in the case of a default
judgment.” 10A Wright & Miller, supra, § 2692 (footnotes omitted). “The standard for setting
aside an entry of default under Rule 55(c) is fairly liberal because ‘[t]he preferred disposition of
any case is upon its merits and not by default judgment.’” Crutcher v. Coleman, 205 F.R.D. 581,
584 (D.Kan.2001)(Vratil, J)(quoting Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970)).
See Applied Capital, Inc. v. Gibson, 2007 WL 5685131, at *20-23 (liberally construing a pro se
defendant’s motion to dismiss as a motion to set aside the default, but concluding that the pro se
defendant did not show good cause for the Court to set aside the entry of default, because,
although setting aside the entry of default would not prejudice the plaintiff, the pro se defendant
was “fully aware of the need to answer within the given time limitation and chose not to respond
timely,” and he failed to appear at a hearing to support his allegation that he had a meritorious
defense).

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LAW REGARDING INJUNCTIVE RELIEF
Injunctive relief is an “extraordinary remedy,” and the movant must demonstrate a “clear
and unequivocal right” to have a request granted. Leviton Mfg. Co., Inc. v. Nicor, Inc., Nos.
CIV 04-0424 JB/RHS, CIV 04-1295 JB/ACT, 2007 WL 505796 (D.N.M. Jan. 8,
2007)(Browning, J.)(citing Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10th
Cir. 2003)). The Supreme Court and the Tenth Circuit have explained that “[t]he purpose of a
preliminary injunction is merely to preserve the relative positions of the parties until a trial on the
merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). See Keirnan v.
Utah Transit Auth., 339 F.3d 1217, 1220 (10th Cir. 2003)(“In issuing a preliminary injunction, a
court is primarily attempting to preserve the power to render a meaningful decision on the
merits.”)(quoting Tri-State Generation & Transmission Ass’n v. Shoshone River Power, Inc.,
805 F.2d 351, 355 (10th Cir. 1986)). The Tenth Circuit has emphasized that “a preliminary
injunction is an extraordinary remedy, and thus the right to relief must be clear and
unequivocal.” Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1298 (10th Cir. 2006)(quoting
Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005))(internal brackets omitted).
To establish its right to a preliminary injunction, a moving party must demonstrate: (i) the
injunction is necessary to prevent irreparable harm; (ii) there is a substantial likelihood the
movant ultimately will prevail on the merits; (iii) the threatened injury to the movant outweighs
any harm the proposed injunction may cause the opposing party; and (iv) the injunction would
not be contrary to public policy. See Wyandotte Nation v. Sebelius, 443 F.3d 1247,1254-55
(10th Cir. 2006)(quoting Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1171 (10th Cir.
1998)).

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LAW REGARDING REQUESTS FOR TEMPORARY RESTRAINING ORDER
The requirements for the issuance of a temporary restraining order are similar to those for
the issuance of a preliminary injunction. Injunctive relief is considered an “extraordinary
remedy,” and the movant must demonstrate a “clear and unequivocal right” to have a request
granted. Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250 (10th Cir. 2003). In determining
whether to grant injunctive relief, courts consider the following four factors: (i) whether the
moving party will suffer irreparable injury unless the injunction issues; (ii) whether there is a
substantial likelihood that the moving party will eventually prevail on the merits; (iii) whether
the threatened injury to the moving party outweighs whatever damage the proposed injunction
may cause the opposing party; and (iv) whether the injunction, if issued, would not be adverse to
the public interest. See Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992)
(citation omitted); Fed. Lands Legal Consortium ex rel. Robart Estate v. United States, 195 F.3d
1190, 1194 (10th Cir. 1999).
LAW REGARDING THE ANTI-INJUNCTION ACT
“The Anti-Injunction Act[, 28 U.S.C. § 2283,] provides that a federal court ‘may not
grant an injunction to stay proceedings in a State court’ except in three circumstances: ‘as
expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to
protect or effectuate its judgments.’” Weyerhaeuser Co. v. Wyatt, 505 F.3d 1104, 1107 (10th Cir.
2007)(quoting 28 U.S.C. § 2283).
[T]he Supreme Court . . . explained the purpose of the [Anti-Injunction Act]. The
law “is a necessary concomitant of the Framers' decision to authorize, and
Congress' decision to implement, a dual system of federal and state courts.” By
prohibiting “frequent federal court intervention” in state court proceedings, the
[Anti-Injunction Act] “forestalls . . . ‘friction between the state and federal
courts.’”

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Weyerhaeuser Co. v. Wyatt, 505 F.3d at 1108 (citations omitted). “[T]he [Anti-Injunction] Act
is an absolute prohibition against any injunction of any state-court proceedings, unless the
injunction falls within one of the three specifically defined exceptions in the Act.” Vendo Co. v.
Lektro–Vend Corp., 433 U.S. 623, 630 (1977). “[A]ny doubts as to the propriety of a federal
injunction against state court proceedings should be resolved in favor of permitting the state
courts to proceed in an orderly fashion to finally determine the controversy.” Vendo Co. v.
Lektro–Vend Corp., 433 U.S. at 630 (internal quotation marks omitted).
The Anti-Injunction Act applies to prohibit a federal court from enjoining the court or a
party in a state-court proceeding from prosecuting the suit, complying with, or enforcing statecourt orders. Section 2283’s prohibition cannot be evaded by addressing the order to the parties
or prohibiting use of the results of a completed state proceeding. See Atl. Coast Line R.R. Co. v.
Bhd. of Locomotive Eng’rs, 398 U.S. 281, 287 (1970). “Proceedings in state courts should
normally be allowed to continue unimpaired by intervention of the lower federal courts, with
relief from error, if any, through the state appellate courts and ultimately to the [Supreme] Court
[of the United States].” Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. at 287.
The Supreme Court has long held that the term “proceedings” in state court
is comprehensive. It includes all steps taken or which may be taken in the state
court or by its officers from the institution to the close of the final process. It
applies to appellate as well as to original proceedings; and is independent of the
doctrine of res judicata. It applies alike to actions by the court and by its
ministerial officers; applies not only to an execution issued on a judgment, but to
any proceeding supplemental or ancillary taken with a view to making the suit or
judgment effective. The prohibition is applicable whether such supplementary or
ancillary proceeding is taken in the court which rendered the judgment or in some
other. And it governs a privy to the state court proceeding . . . as well as the
parties of record. Thus, the prohibition applies whatever the nature of the
proceeding, unless the case presents facts which bring it within one of the
recognized exceptions [to the Anti-Injunction Act].
Hill v. Martin, 296 U.S. 393, 403 (1935)(footnotes omitted).

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LAW REGARDING SANCTIONS FOR VIOLATING RULES
Federal courts possess inherent powers necessary “‘to manage their own affairs so as to
achieve the orderly and expeditious disposition of cases.’” Chambers v. NASCO, Inc., 501 U.S.
32, 43 (1991)(internal quotation omitted)(quoting Link v. Wabash R.R. Co., 370 U.S. 626,
630-31 (1962)). Among those inherent powers is “the ability to fashion an appropriate sanction.”
Chambers v. NASCO, Inc., 501 U.S. at 44. See Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d
1408, 1419 (10th Cir. 1997)(“A federal court possesses the authority to impose . . . sanctions [as
part of] its inherent power to control and supervise its own proceedings.”)(internal quotations
omitted). The district court has the inherent power to impose a variety of sanctions on litigants
to regulate its docket and to promote efficiency. See Martinez v. Internal Revenue Serv., 744
F.2d 71, 73 (10th Cir. 1984). The Tenth Circuit has stated that before sanctioning a respondent
based on failure to respond to motions, the district courts must consider: “(1) the degree of actual
prejudice to the defendant[s]; (2) the amount of interference with the judicial process; [and] (3)
the culpability of the litigant.” Murray v. Archambo, 132 F.3d 609, 611 (10th Cir. 1998)(quoting
Hancock v. City of Okla. City, 857 F.2d 1394, 1396 (10th Cir. 1988))(internal quotations
omitted)(alteration in the original). See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).
“Dismissal is the appropriate sanction only when these factors outweigh the judicial system’s
strong predisposition to resolve cases on their merits.” Green v. Dorrell, 969 F.2d at 917.
LAW REGARDING FILING RESTRICTIONS
“The right of access to the courts is neither absolute nor unconditional.” Tripati v.
Beaman, 878 F.2d 351, 353 (10th Cir. 1989). “Federal courts have the inherent power under 28
U.S.C. § 1651(a) to regulate activities of abusive litigants by imposing carefully tailored
restrictions if circumstances warrant.” Keyter v. 535 Members the 110th Congr., 277 Fed.Appx.

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825 (10th Cir. 2008)(citing Winslow v. Hunter, 17 F.3d 314, 315 (10th Cir. 1994)). Restrictions
are appropriate “where (1) the litigant's lengthy and abusive history is set forth; (2) the court
provides guidelines as to what the litigant may do to obtain its permission to file an action; and
(3) the litigant receives notice and an opportunity to oppose the court's order before it is
implemented.” Keyter v. 535 Members of 110th Cong., 277 Fed.Appx. at 827. See Tripati v.
Beaman, 878 F.2d 351, 354 (10th Cir. 1989)(“[I]njunctions are proper where the litigant's
abusive and lengthy history is properly set forth.”). An injunction without limitations, however,
impermissibly leaves permission to file “completely to the whim of the court.” Tripati v.
Beaman, 878 F.2d at 354. See Landrith v. Schmidt, 732 F.3d 1171, 1175 (10th Cir. 2013);
McMurray v. McCelmoore, 445 Fed.Appx. 43, 46 (10th Cir. 2011); French v. Am. Airlines, Inc.,
427 Fed.Appx. 666, 668 (10th Cir. 2011); Judd v. Univ. of New Mexico, 149 F.3d 1190 (10th
Cir. 1998); United States v. Kettler, 934 F.2d 326 (10th Cir. 1991).
The Court applied these principles in Clark v. Meijer, Inc., 376 F. Supp. 2d 1077
(D.N.M.2004)(Browning, J.).

In that case, pro se plaintiffs filed a series of five similar

complaints in both state and federal courts against a grocery store chain. See 376 F. Supp. 2d at
1080.

Despite a decision dismissing their claims for lack of personal jurisdiction by the

Honorable James A. Parker, Senior United States District Judge for the District of New Mexico,
the plaintiffs re-filed the same claims in the same district roughly one year later. See 376 F.
Supp. 2d at 1086. The Court noted that the plaintiffs' allegations appeared to be “an attempt to
harass the Meijer Defendants and to cause a needless increase in the cost of litigation for a matter
that other courts have already adjudicated, in whole or part, on five previous occasions.” 376 F.
Supp. 2d at 1086. The Court entered an order “preventing the Clarks from filing any legal
proceedings . . . against any named Meijer Defendant unless a licensed attorney admitted to

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practice before this Court signs the pleading or they first obtain permission to proceed pro se.”
376 F. Supp. 2d at 1087. Specifically, it required the following process:
To obtain permission to proceed pro se against the Meijer Defendants named
herein, the Clarks must take the following steps:
1. File a petition with the Clerk of the Court requesting leave to
file a pro se original proceeding against the Meijer Defendants.
2. File with the Clerk a notarized affidavit, in proper legal form,
which recites the issues they seek to present, including a short
discussion of the legal right asserted and why the Court has
personal jurisdiction over the Meijer Defendants. The affidavit
must certify, to the best of the Clarks' knowledge, that the legal
arguments being raised are not frivolous or made in bad faith, that
they are warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law, that the new
suit is not interposed for any improper purpose such as delay or to
needlessly increase the cost of litigation, and that they will comply
with all Federal and local rules of this Court. The affidavit must
certify why the proposed new suit does not present the same issues
decided twice by the Court and why another suit against the Meijer
Defendants would not be an abuse of the system.
The Clarks shall submit these documents to the Clerk of the Court, who shall
forward them to the Honorable Lorenzo F. Garcia, Chief United States Magistrate
Judge, for review to determine whether to permit a pro se original proceeding.
Without Judge Garcia's approval, and the concurrence of the assigned Article III
Judge, the Court will dismiss the action. If Judge Garcia approves the filing, he
shall enter an order indicating that the new proceeding shall proceed in
accordance with the Federal Rules of Civil Procedure.
The Plaintiffs shall have ten days from the date of this order to file written
objections, limited to fifteen pages, to these proposed sanctions. If the Clarks do
not file objections, the sanctions shall take affect twenty days from the date of this
order. The filing restrictions shall apply to any matter filed after that time. If the
Plaintiffs timely file objections, these sanctions shall not take effect until the
Court has ruled on the objections.
376 F. Supp. 2d at 1087-88.
The Court imposed similar sanctions in Stewart v. Shannon, No. CIV 12-0560 JB/KBM,
2012 WL 4950865 (D.N.M. Sept. 24, 2012)(Browning, J.). In that case, an inmate plaintiff

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brought “repetitive and abusive” actions against a physician, accusing him of malpractice and
sexual assault. 2012 WL 4950865, at *2. The Court imposed a similar order on the plaintiff:
Stewart’s Complaint is dismissed with prejudice; and Plaintiff Darryl Stewart is
hereby notified of the following proposed filing restrictions: Stewart will be
enjoined from making further filings in this case except objections to this order
and a notice of appeal from a final order, and the Clerk will be directed to return
without filing any submissions in this case other than objections and a notice of
appeal; Stewart will also be enjoined from initiating further actions in this Court
related to the subject matter of this complaint or asserting claims against
Defendant Doctor William Shannon unless a licensed attorney admitted to
practice in this Court signs the initial pleading or unless Stewart first obtains
permission to proceed pro se; to obtain permission to proceed pro se, Stewart
must take the following steps:
1. File a petition requesting leave to file a complaint or to proceed
pro se;
2. Include in or with the petition the following:
A. A list of all lawsuits currently pending or filed
previously with the Court, including the name,
number, and citation, if applicable, of each case,
and the current status or disposition of the case;
B. A list of all outstanding injunctions or orders
limiting Stewart's access to federal court, including
orders and injunctions requiring him to seek leave
to file matters pro se or requiring him to be
represented by an attorney, including the name,
number, and citation, if applicable, of all such
orders or injunctions; and
C. A notarized affidavit, in proper legal form,
which recites the claims Stewart seeks to present,
including a short discussion of the legal basis
asserted therefor. The affidavit also must certify
that, to the best of Stewart's knowledge, the claims
being raised are not frivolous or made in bad faith,
but are warranted by existing law or a good faith
argument for the extension, modification, or
reversal of existing law; that the complaint is not
interposed for any improper purpose such as delay
or to needlessly increase the cost of litigation; and

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that he will comply with all federal and local rules
of this court.
See Tripati v. Beaman, 878 F.2d 351, 353–354 (10th Cir. 1989)(holding that a
district court can place filing restrictions on plaintiffs, but the plaintiff is “entitled
to notice and an opportunity to oppose the court's order before [they are]
instituted.”). The Court will direct the Clerk to return to Stewart without filing a
proposed initiating pleading described above that counsel has not signed or any
petition that does not contain the items listed in paragraphs 1, 2(A), (B), (C)
hereinabove. If the petition or proposed pleading is not returned, the Clerk will
open a case and forward Stewart's filings to the assigned Judge to review and
determine whether to permit Stewart to proceed on his proposed pro se complaint.
The Court may summarily dismiss a petition and proposed pleading that Stewart
submits if any of the required information is missing, in an improper form,
untimely, or insufficient under paragraph (2)(c)) above. The Court also may
scrutinize, sua sponte under 28 U.S.C. §§ 1915(e)(2), 1915A, and rule 12(b)(6) of
the Federal Rules of Civil Procedure, a proposed pleading described above.
Within fourteen (14) days from entry of this order, Stewart may file written
objections to these proposed filing restrictions; the restrictions will take effect
only upon further order of the Court.
2012 WL 4950865, at *2–3. See Elliott v. GEICO, No. CIV–06–0234 JB/ACT, 2007 WL
5231711, at *9 (D.N.M. Aug. 7, 2007)(Browning, J.)(imposing similar restrictions). “We
emphasize that the district court's discretion in tailoring appropriate conditions under which Mr.
Tripati may commence and prosecute future lawsuits is extremely broad and that we will not
disturb that court's choice of requirements absent abuse of that discretion.” Tripati v. Beaman,
878 F.2d at 354.
LAW REGARDING PROPOSED FINDINGS AND RECOMMENDATIONS
District courts may refer dispositive motions to a Magistrate Judge for a
recommended disposition.

See Fed. R. Civ. P. 72(b)(1) (“A magistrate judge must

promptly conduct the required proceedings when assigned, without the parties’ consent, to
hear a pretrial matter dispositive of a claim or defense . . . .”).

Rule 72(b)(2) governs

objections: “Within 14 days after being served with a copy of the recommended disposition, a

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party may serve and file specific written objections to the proposed findings and
recommendations.” Finally, when resolving objections to a Magistrate Judge’s proposal, “[t]he
district judge must determine de novo any part of the magistrate judge’s disposition that has
been properly objected to. The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C. § 636 provides:
A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1).
“‘The filing of objections to a magistrate’s report enables the district judge to focus
attention on those issues -- factual and legal -- that are at the heart of the parties’ dispute.’”
United States v. One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, and
Contents, 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel”)(quoting Thomas v. Arn, 474 U.S.
140, 147 (1985)). As the Tenth Circuit has noted, “the filing of objections advances the
interests that underlie the Magistrate’s Act[,28 U.S.C. §§ 631-639,] including judicial
efficiency.” One Parcel, 73 F.3d at 1059 (citing Niehaus v. Kan. Bar Ass’n, 793 F.2d 1159,
1165 (10th Cir. 1986); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)).
The Tenth Circuit held “that a party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” One Parcel, 73 F.3d at 1060. “To further advance the
policies behind the Magistrate’s Act, [the Tenth Circuit], like numerous other circuits, have
adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the

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magistrate’s findings or recommendations waives appellate review of both factual and legal
questions.’” One Parcel, 73 F.3d at 1059 (citations omitted). In addition to requiring specificity
in objections, the Tenth Circuit has stated that “[i]ssues raised for the first time in objections to
the magistrate judge’s recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996). See United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)(“In
this circuit, theories raised for the first time in objections to the magistrate judge’s report are
deemed waived.”). In an unpublished opinion, the Tenth Circuit stated that “the district court
correctly held that [a petitioner] had waived [an] argument by failing to raise it before the
magistrate.” Pevehouse v. Scibana, 229 F. App’x 795, 796 (10th Cir. 2007)(unpublished).
In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expanded
the waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at
1060. The Supreme Court -- in the course of approving the United States Court of Appeals for
the Sixth Circuit’s use of the waiver rule -- noted:
It does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings. The House and Senate Reports
accompanying the 1976 amendments do not expressly consider what sort of
review the district court should perform when no party objects to the magistrate’s
report. See S. Rep. No. 94-625, pp. 9-10 (1976)(hereafter Senate Report); H. R.
Rep. No. 94-1609, p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p. 6162
(hereafter House Report). There is nothing in those Reports, however, that
demonstrates an intent to require the district court to give any more consideration
to the magistrate’s report than the court considers appropriate. Moreover, the
Subcommittee that drafted and held hearings on the 1976 amendments had before
it the guidelines of the Administrative Office of the United States Courts
concerning the efficient use of magistrates. Those guidelines recommended to the
district courts that “[w]here a magistrate makes a finding or ruling on a motion or
an issue, his determination should become that of the district court, unless specific
objection is filed within a reasonable time.” See Jurisdiction of United States
Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in
Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st
Sess., 24 (1975)(emphasis added)(hereafter Senate Hearings). The Committee
also heard Judge Metzner of the Southern District of New York, the chairman of a

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Judicial Conference Committee on the administration of the magistrate system,
testify that he personally followed that practice. See id., at 11 (“If any objections
come in, . . . I review [the record] and decide it. If no objections come in, I
merely sign the magistrate’s order.”). The Judicial Conference of the United
States, which supported the de novo standard of review eventually incorporated in
§ 636(b)(1)(C), opined that in most instances no party would object to the
magistrate’s recommendation, and the litigation would terminate with the judge’s
adoption of the magistrate’s report. See Senate Hearings, at 35, 37. Congress
apparently assumed, therefore, that any party who was dissatisfied for any reason
with the magistrate’s report would file objections, and those objections would
trigger district court review. There is no indication that Congress, in enacting
§ 636(b)(1)(C), intended to require a district judge to review a magistrate’s report
to which no objections are filed. It did not preclude treating the failure to
object as a procedural default, waiving the right to further consideration of any
sort. We thus find nothing in the statute or the legislative history that
convinces us that Congress intended to forbid a rule such as the one adopted by
the Sixth Circuit.
Thomas v. Arn, 474 U.S. at 150-52 (emphasis in original)(footnotes omitted).
The Tenth Circuit also noted, “however, that ‘[t]he waiver rule as a procedural bar need
not be applied when the interests of justice so dictate.’” One Parcel, 73 F.3d at 1060 (quoting
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)(“We join those circuits that have
declined to apply the waiver rule to a pro se litigant’s failure to object when the magistrate’s
order does not apprise the pro se litigant of the consequences of a failure to object to findings and
recommendations.” (citations omitted)). Cf. Thomas v. Arn, 474 U.S. at 154 (noting that, while
“[a]ny party that desires plenary consideration by the Article III judge of any issue need only
ask,” a failure to object “does not preclude further review by the district judge, sua sponte or at
the request of a party, under a de novo or any other standard”). In One Parcel, the Tenth Circuit
noted that the district judge had decided sua sponte to conduct a de novo review despite the lack
of specificity in the objections, but the Tenth Circuit held that it would deem the issues waived
on appeal because it would advance the interests underlying the waiver rule. See 73 F.3d at
1060-61 (citing cases from other circuits where district courts elected to address merits despite
potential application of waiver rule, but Circuit Courts opted to enforce waiver rule).
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Where a party files timely and specific objections to the Magistrate Judge’s
proposed findings and recommendation, on “dispositive motions, the statute calls for a de
novo determination, not a de novo hearing.” United States v. Raddatz, 447 U.S. 667, 674
(1980). “[I]n providing for a ‘de novo determination’ rather than de novo hearing, Congress
intended to permit whatever reliance a district judge, in the exercise of sound judicial
discretion, chose to place on a magistrate’s proposed findings and recommendations.” United
States v. Raddatz, 447 U.S. at 676 (quoting 28 U.S.C. § 636(b) and citing Mathews v.
Weber, 423 U.S. 261, 275 (1976)). The Tenth Circuit requires a “district court to consider
relevant evidence of record and not merely review the magistrate judge’s recommendation”
when conducting a de novo review of a party’s timely, specific objections to the magistrate’s
report. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “When objections are made to the
magistrate’s factual findings based on conflicting testimony or evidence . . . the district court
must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing.”
Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987).
A district court must “clearly indicate that it is conducting a de novo determination”
when a party objects to the Magistrate Judge’s Report “based upon conflicting evidence or
testimony.” Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet the
requirements of 28 U.S.C. § 636(b)(1) when it indicates that it gave “considerable deference to
the magistrate’s order.” Ocelot Oil Corp. v. Sparro Indus., 847 F.2d 1458, 1464 (10th Cir.
1988). A district court need not, however, “make any specific findings; the district court
must merely conduct a de novo review of the record.” Garcia v. City of Albuquerque, 232
F.3d 760, 766 (10th Cir. 2000). “[T]he district court is presumed to know that de novo
review is required. Consequently, a brief order expressly stating the court conducted de novo

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review is sufficient.” Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996)(citing In re
Griego, 64 F.3d at 583-84). “[E]xpress references to de novo review in its order must be
taken to mean it properly considered the pertinent portions of the record, absent some clear
indication otherwise.” Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722, 724 (10th
Cir. 1993). The Tenth Circuit has previously held that a district court properly conducted a de
novo review of a party’s evidentiary objections when the district court’s “terse” order contained
one sentence for each of the party’s “substantive claims” and did “not mention his procedural
challenges to the jurisdiction of the magistrate to hear the motion.”

Garcia v. City of

Albuquerque, 232 F.3d at 766. The Tenth Circuit has explained that brief district court orders
that “merely repeat[] the language of § 636(b)(1) to indicate its compliance” are sufficient to
demonstrate that the district court conducted a de novo review:
It is common practice among district judges in this circuit to make such a
statement and adopt the magistrate judges’ recommended dispositions when they
find that magistrate judges have dealt with the issues fully and accurately and that
they could add little of value to that analysis. We cannot interpret the district
court’s statement as establishing that it failed to perform the required de novo
review.
In re Griego, 64 F.3d at 584.
Notably, because “Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and
recommendations,” United States v. Raddatz, 447 U.S. at 676 (emphasis omitted), a district court
“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate,” 28 U.S.C. § 636(b)(1). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d
at 724-25 (holding that the district court’s adoption of the Magistrate Judge’s “particular
reasonable-hour

estimates”

is

consistent

with

the

28 U.S.C. § 636(b)(1) and United States v. Raddatz require).

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de

novo

determination

that

Where no party objects to the Magistrate Judge’s proposed findings and
recommended disposition, the Court has, as a matter of course and in the interests of
justice, reviewed the Magistrate Judge’s recommendations. In Pablo v. Soc. Sec. Admin., No.
CIV 11-0132 JB/ACT, 2013 WL 1010401 (D.N.M. February 27, 2013)(Browning, J.), the
Plaintiff failed to respond to the Magistrate Judge’s proposed findings and recommended
disposition, and thus waived his right to appeal the recommendations, but the Court
nevertheless conducted a review. See 2013 WL 1010401, at *1, *4. The Court generally
does not, however, “review the PF&RD de novo, because the parties have not objected
thereto, but rather review[s] the recommendations to determine whether they are clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion.” Pablo v. Soc. Sec.
Admin., 2013 WL 1010401, at *4. The Court, thus, does not determine independently what it
would do if the issues had come before the Court first, when there is no objection, but
rather adopts the proposed findings and recommended disposition where “‘the Court cannot
say that the Magistrate Judge’s recommendation . . . is clearly erroneous, arbitrary, obviously
contrary to law, or an abuse of discretion.’” Pablo v. Soc. Sec.Admin., 2013 WL 1010401, at
*3 (footnote and internal brackets omitted)(quoting Workheiser v. City of Clovis, No. CIV 120485 JB/GBW, 2012 WL 6846401, at *3 (D.N.M. December 28, 2012)(Browning, J.). See
Alexandre v. Astrue, No. CIV 11-0384 JB/SMV, 2013 WL 1010439, at *4 (D.N.M. February
27, 2013)(Browning, J.)(“The Court rather reviewed the findings and recommendations . . . to
determine if they are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion. The Court determines that they are not, and will therefore adopt the PFRD.”);
Trujillo v. Soc. Sec. Admin., No. CIV 12-1125 JB/KBM, 2013 WL 1009050, at *5 (D.N.M.
February 28, 2013)(Browning, J.)(adopting the proposed findings and conclusions, and noting:

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“The Court did not review the ARD de novo, because Trujillo has not objected to it, but rather
reviewed the . . . findings and recommendation to determine if they are clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion, which they are not.”). This
review, which is deferential to the Magistrate Judge’s work when there is no objection,
nonetheless provides some review in the interest of justice, and seems more consistent with the
waiver rule’s intent than no review at all or a full-fledged review. Accordingly, the Court
considers this standard of review appropriate. See Thomas v. Arn, 474 U.S. at 151 (“There is
nothing in those Reports, however, that demonstrates an intent to require the district court to give
any more consideration to the magistrate’s report than the court considers appropriate.”). The
Court is reluctant to have no review at all if its name is going at the bottom of the order adopting
the magistrate judge’s proposed findings and recommendations.
ANALYSIS
The Second PFRD recommended denying all Motions to Amend that were then pending,
denying all then-pending Motions For Default Judgment, granting all then-pending Motions to
Dismiss, granting the motion for more definite statement, denying all then-pending Motions for
Injunctive Relief, denying the request for subpoena, granting the Motion to Strike and striking
the surreply, denying the Motion for Leave to file a Surreply, denying the then-pending Motions
for Sanctions, granting the Motion to Impose Filing Restrictions and ordering Serna to show
cause why filing restrictions should not be imposed, ordering Serna to show cause why claims
against the Websters should not be dismissed, and dismissing with prejudice all purported
criminal charges. See PFRD at 43-44. Judge Lynch also held in abeyance Serna’s Motion to
Have the Honorable Browning Hear all Dismissed Briefs, filed February 21, 2017 (Doc. 53),
which is a request for hearing. See Order at 2, filed May 4, 2017 (Doc. 119).

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In the three and a half months since the Second PFRD was filed, new filings include: the
Websters’ Motion to Dismiss, filed May 8, 2017 (Doc. 120); Serna’s Request to the Honorable
Judge Browning: Temporary Restraining Order Filed on State District Court and Evidentary [sic]
Hearing and Recusal of the Judge Lynch for Fraud Upon the Court, filed May 8, 2017
(Doc. 121); Serna’s Request to Judge Browning: Emergency Order to Cease and Desist
Collections on False State District Court Award, filed May 11, 2017 (Doc. 123); Plaintiff’s
Objection to Dismissal of Complaint, filed May 12, 2017 (Doc. 125), which responds to the
Websters’ motion to dismiss, and in which Serna makes additional allegations and requests
sanctions and discovery; Serna’s Emergency Request from Judge Browning: Order to Bernalillo
County Sheriff’s Department to Return Serna’s Funds, filed May 12, 2017 (Doc. 126), which is
another Serna motion for injunctive relief in which she seeks an order directing the Bernalillo
County Sheriff’s Office to return certain property seized in execution of a state judgment;
Serna’s Relief from Default Judgment Under Rule 55 and 60(b), filed May 15, 2017 (Docs. 127,
128, 129, 130, 131, 132, 138), which are motions for default judgments against Well, Simon,
Chisholm, David Webster, Margette Webster, and Crowley; Serna’s Corrections to Defendant’s
Codes per the Court’s Entry of May 04, 2017, filed May 30, 2017 (Doc. 134), which the Court
construes as another motion to amend; Serna’s Objection to the Second Proposed Findings and
Recommended Disposition and Grant Judgment in Favor of the Plaintiff on the Findings, filed
May 30, 2017 (Doc. 135); Serna’s Objections and Answers to Proposed Findings and
Recommendations and Motion to Withdraw the Limited Liability Company until Counsel is
Procured, filed June 13, 2017 (Doc. 137), Serna’s second set of “objections” to the Second
PFRD and a motion to withdraw the LLC; Defendant Simon’s Motion to Strike and Dismiss
Plaintiff’s Complaint Pursuant to Fed. R. Civ. P. 12(e), filed July 24, 2017 (Doc. 139); Serna’s

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Request Cancellation of Defendant Simon’s Unscrupulous Motion to Strike Complaint, filed July
27, 2017 (Doc. 140), which the Court construes as a motion to strike Simon’s Motion to Strike,
and as a motion for sanctions; Serna’s Plaintiff’s Motion for Leave to Amend Complaint and add
Additional Parties Plus Relief and Memorandum of Law in Support, filed July 31, 2017
(Doc. 141), which is another motion for leave to amend in which Serna seeks to add the
Bernalillo County Sheriff’s Office and individual deputies as parties defendant; Serna’s Defenant
Webster in Violation of Rule 5 Serving Pleadings on Other Papers on all Parties, filed August 10,
2017 (Doc. 144), which the Court construes as a motion for injunctive relief and for Rule 11
sanctions; Serna’s Objection to Defendant Simon’s Motion to Strike and Dismiss Plaintiff’s
Complaint, filed August 11, 2017 (Doc. 145), which the Court construes as a response to the
motion to strike and as a motion for sanctions; and Serna’s Addendum Request: Office of the
Clerks to Mail Defendant’s Websters Copies of Court Pleadings Due to “Threats” on Plaintiff,
filed August 18, 2017 (Doc. 146), which the Court construes as a motion for injunctive relief.
Judge Lynch held in abeyance the Motion to Have the Honorable Browning Hear all
Dismissed Briefs that Serna filed on February 21, 2017. Serna seeks a hearing on all pending
motions. D.N.M.LR-Civ. 7.6(a) states that “[a] motion will be decided on the briefs unless the
Court sets oral argument.” The Court concludes that oral argument will not be beneficial and
therefore denies the request for hearing.
Serna was granted an extension of time to file Objections to the Second PFRD. See
Order, filed May 5, 2015 (Doc. 124). Thus, Serna timely filed her Objections on May 30, 2017.
In her Objections, Serna does not address the facts or law that the PFRD presented. Instead, she
repackages her claims and cites no authority to aid the Court. She also alleges, without any
evidence, that Judge Lynch participated in impermissible ex parte communications. According

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to Serna, such communications are the only way that Judge Lynch could recommend ruling
against her.

Serna however requests that the Court dismiss certain Defendants -- Molina,

Rodriguez, Garcia, Galanter, and Biernoff. See Objection to the Second Proposed Findings and
Recommended Disposition and Grant Judgment in Favor of the Plaintiff on the Findings at 32,
37, 38, filed May 30, 2017 (Doc. 135). Serna also requests an unspecified sanction against
Molina, for unspecified reasons.
Serna then filed Objections and Answers to Proposed Findings and Recommendations
and Motion to Withdraw the Limited Liabilty [sic] Company Until Counsel is Procured, filed
June 13, 2017 (Doc. 137). The Court construes this as a second set of objections to the Second
PFRD.
The Tenth Circuit h a s held “that a party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” One Parcel, 73 F.3d at 1060. “To further
advance the policies behind the Magistrate’s Act, [the Tenth Circuit], like numerous other
circuits, have adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely
objections to the magistrate’s findings or recommendations waives appellate review of both
factual and legal questions.’” One Parcel, 73 F.3d at 1059 (citations omitted). In addition to
requiring specificity in objections, the Tenth Circuit has stated that “[i]ssues raised for the first
time in objections to the magistrate judge’s recommendation are deemed waived.” Marshall v.
Chater, 75 F.3d at 1426. See United States v. Garfinkle, 261 F.3d at 1031 (“In this circuit,
theories raised for the first time in objections to the magistrate judge’s report are deemed
waived.”). In an unpublished opinion, the Tenth Circuit stated that “the district court correctly
held that [a petitioner] had waived [an] argument by failing to raise it before the

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magistrate.” Pevehouse v. Scibana, 229 F. App’x 795, 796 (10th Cir. 2007)(unpublished).
Serna’s Objections to the Second PFRD are not specific and do not serve the interest of
focusing the Court’s attention, except to the extent that she seeks dismissal of Molina, Rodriguez,
Garcia, Galanter, and Biernoff. Serna’s Second Objections is not timely and therefore not relevant
to the Court’s consideration of the Second PFRD. Without specific objections, as United States v.
Raddatz requires, the Court reviews the Second PFRD to determine whether it is clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion. See Pablo v. Soc. Sec. Admin.,
2013 WL 1010401, at *4.
The Court has reviewed the Second PFRD under this standard. Serna did not meaningfully
object to any of the facts or the legal analysis in the Second PFRD. The Court concludes that the
recommendations are not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion. Accordingly, the Court will: (i) adopt the Second PFRD; (ii) dismiss Molina,
Rodriguez, Garcia, Galanter, and Biernoff; (iii) overrule Serna’s Objections, except to the extent
that Serna seeks dismissal of the above-mentioned Defendants; (iv) deny as moot Serna’s motion
to withdraw the Limited Liability Company as the LLC has already been removed as a partyplaintiff to this action, see Memorandum Opinion and Order Adopting the Magistrate Judge’s
Proposed Findings and Recommended Disposition, filed June 2, 2017 (Doc. 136)(dismissing Serna
& Associates Construction Co., LLC’s claims without prejudice); (v) deny Serna’s Motions to
Amend; (vi) deny Serna’s Motions for Default Judgment; (vii) grant Crowley’s Motion to Dismiss;
(viii) grant the State Defendants’ Motion to Dismiss; (ix) grant Calvert’s Motion to Dismiss; (x)
grant New Mexico Construction Industries Division’s Motion to Dismiss; (xi) grant Judge Nash’s
Motion to Dismiss; (xii) grant Simon’s Motion For More Definite Statement; (xiii) deny all of
Serna’s Motions for Injunctive Relief; (xiv) deny Serna’s Request for Subpoena; (xv) grant the

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State Defendants’ Motion to Strike Serna’s unauthorized surreply; (xvi) deny Serna’s Motion for
Leave to File surreply (Doc. 90); (xvii) deny Serna’s Motions for Sanctions (Docs. 58, 91); (xviii)
dismiss with prejudice any purported criminal charges; and (xix) grant the State Defendants’
Motion for Order Imposing Filing Restrictions; and (xx) order Serna to show cause, in writing,
why the Court should not impose filing restrictions against her, as further explained below.
The Court turns now to the motions filed after Judge Nash filed the Second PFRD.
Ordinarily, the Court would return the matter to the Magistrate Judge for further findings and
recommendations as appropriate. Under these circumstances, however, the Court concludes that
the pending motions are duplicative of matters that the Second PFRD addresses and have become
vexatious. Accordingly, the Court will resolve the remaining pending motions.
The Websters filed their Motion to Dismiss Complaint on May 8, 2017 (Doc. 120).
Because the Websters proceed pro se, the Court construes this motion as to dismiss pursuant to rule
12(b)(6) for failure to state a claim upon which relief can be granted. The Websters seek dismissal
of any purported criminal charges against them, dismissal of any other claims against them, and an
admonishment of Serna. See Motion to Dismiss Complaint at 1-3.
Serna filed a Response on May 12, 2017 (Doc. 125), alleging that the Websters have been
evading service of process and that the record of the state proceedings has been impermissibly
altered. Serna then requests that discovery open in this matter and seeks unspecified sanctions
against the Websters and Judges Nash and Brickhouse, as well as damages of one million dollars.
Response at 4.
The Court concurs with the Websters that the Complaint, in any of its purported iterations,
lacks sufficient detail to make out a claim against them. Serna presents only bald allegations that
the Websters have committed various crimes, but provides no concrete factual allegations to

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support those claims. The Court thus grants the Websters’ motion to dismiss all claims against
them and denies Serna’s request for discovery and sanctions in this matter. Because the Court
addresses the Websters’ motion as a Motion to Dismiss under rule 12(b)(6), it is unnecessary,
under the circumstances, to evaluate any alleged service issues.
The next motion is Serna’s Request to the Honorable Judge Browning: Temporary
Restraining Order Filed on State District Court and Evidentiary Hearing and Recusal of the Judge
Lynch for Fraud Upon the Court, filed May 8, 2017 (Doc. 121.). Serna apparently seeks another
TRO on the state court proceedings, but does not explain what relief she desires. In any event,
under the circumstances, the Anti-Injunction Act prohibits the Court from issuing a restraining
order or other injunctive relief against the state court. The Court will deny the request. Serna then
makes additional baseless allegations in support of her request to disqualify Judge Lynch. With no
evidence of any kind, Serna alleges that Judge Lynch has participated in ex parte communications
and has somehow used his position as a United States Magistrate Judge to shield Judge
Brickhouse. Serna has no basis to make such bald assertions and has presented no reason to
disqualify Judge Lynch from this case. The Court will deny the motion.
On May 11, 2017, Serna filed another Motion for Injunctive relief, titled Request to Judge
Browning: Emergency Order to Cease and Desist Collections on False State District Court Award
(Doc. 123). As with Serna’s previous Motions for Injunctive Relief, she asks the Court to interfere
with a pending state court case. Specifically, she asks that the Court issues a cease and desist order
to the Websters, the Bernalillo County Sheriff’s Office, and the state district court. Serna then
alleges that Judge Lynch somehow got involved in the state court case and “gave the sheriff’s dept.
the right to collect from Serna, not the company.” Request to Judge Browning: Emergency Order
to Cease and Desist Collections on False State District Court Award at 2. First, Serna, again, has

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no evidence that Judge Lynch was involved in the state court case -- because it did not happen. As
above, the Anti-Injunction Act prohibits the Court from interfering with the state court case.
Serna’s recourse, if any, is through the state court system and an ultimate appeal to the Supreme
Court of the United States. The Court will deny the motion.
The next day, May 12, 2017, Serna filed another motion for Injunctive Relief, this one
entitled Emergency Request from Judge Browning: Order to Bernalillo County Sheriff’s
Department to Return Serna’s Funds, filed May 12, 2017 (Doc. 126.). Serna asks this Court to
Order the Bernalillo County Sheriff’s Office to return funds seized from her home during
collection on a judgment issued by the state court. For the same reasons discussed above, the Court
will deny the Motion.
On May 15, 2017, Serna filed Motions for Default Judgment against Wells, Simon,
Chisholm, David Webster, Margette Webster, and Crowley. Rule 55 governs the entry of default
judgment and prescribes a two-step process. First, a party must seek and, if appropriate based on
the record, the Clerk of Court must enter default. Second, the party must move for default
judgment. In this case, Serna did not seek or obtain a default against any of the listed Defendants.
Therefore, the Court cannot properly grant default judgment. Further, the Court notes that all of the
above Defendants, except for Chisholm, have appeared and participated in this case. The Court
will deny the Motions for Default Judgment.
Serna then filed a document entitled Corrections to Defendant’s Codes per the Courts Entry
of May 04, 2017, filed May 30, 2017 (Doc. 134), which the Court construes as a Motion to
Amend. Serna attempts to amend the Complaint to remove some of the purported criminal
charges against twenty four of the Defendants, and to add charges to four of the Defendants.
The Court has already dismissed, with prejudice, all purported criminal charges. “[A]

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private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of
another,” and cannot prosecute a claim for which relief can be granted if the citizen is trying to
prosecute criminal statutes.

See Diamond v. Charles, 476 U.S. 54, 64 (1986)(quotation

omitted). No amount of amendment will grant Serna the ability to bring criminal charges in a
civil cause of action. Because the purported criminal charges would be subject to dismissal under
rule 12(b)(6), allowing Serna leave to amend her complaint in this manner would be futile. The
Court will deny the motion to amend.
On June 15, 2017, Serna filed her Request for this Objection as Timely on Objection to
Dismissal of Defendant Chisholm and Accept His Default Judgment (Doc. 138), which the Court
construes as another motion for entry of default judgment against Chisholm. For the reasons
explained above, the Court cannot properly grant Serna’s motion will deny the motion.
Simon filed a Motion to Strike, filed July 24, 2017 (Doc. 139), and dismiss Serna’s
Complaint against him pursuant to rule 12(e). Simon seeks dismissal of the Complaint against
him, because, he contends, Serna failed to file an amended complaint within ten days of the Order
adopting the PFRD. Simon, however, misstates which PFRD recommended granting the original
motion for more definite statement. Simon cites Doc. 103, which the Court later adopted. In fact,
it was the Second PFRD, Doc. 118, which recommended granting the motion for more definite
statement.

See Second PFRD at 39.

The Court has now adopted the Second PFRD’s

recommendation that the Court grant Simon’s original Motion for More Definite Statement. The
Court agrees that the Complaint, as drafted, is incomprehensible as to Simon. While the Court
cannot properly grant Simon’s motion to dismiss pursuant to rule 12(e) because Serna has not, in
fact, failed to amend despite the opportunity to do so, the Court reminds Serna that she must file
an amended complaint as to Simon within ten days from the date of entry of this Order. The

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Court will deny Simon’s Motion.
Rather than filing a standard response to Simon’s Motion to Strike, Serna filed a Request
Cancellation of Defendant Simon’s Unscrupulous Motion to Strike Complaint on July 27, 2017.
(Doc. 140). In this document, Serna requests that the Court deny Simon’s motion, strike Simon’s
motion, and sanction Simon and his attorney. The Court has already denied Simon’s motion.
Serna cites no authority, and the Court is not aware of any, to render striking Simon’s motion
appropriate. Additionally, Serna presents no evidence—beyond her base allegations of
impropriety -- that would warrant a sanction against Simon and his attorney. To the extent that
this request is a motion, the Court will deny the motion.
On July 31, 2017, Serna filed Plaintiff’s Motion for Leave to Amend Complaint and Add
Additional Parties Plus Relief and Memorandum of Law in Support, filed July 31, 2017
(Doc. 141). Serna now seeks to add the Bernalillo County Sheriff’s Office, Deputy Priezam,
Deputy Carlos Gutierrez, Deputy Phil Gonzales, Deputy Maestas, Chief Deputy Manual
Gonzalez, and sixteen John Doe deputies. Motion for Leave to Amend Complaint and Add
Additional Parties Plus Relief and Memorandum of Law in Support at 3. Serna seeks to add the
individual deputies in their individual and official capacities, and seeks one-hundred-thousand
dollars in damages from each deputy. The basis for relief against the deputies and the Sheriff’s
Office is that they served a writ, written by Judge Nash, and seized twenty-thousand dollars in
execution of the writ. Serna alleges that the deputies—unspecified individuals--used excessive
force because of “the physical presence of so many officers.” Motion for Leave to Amend
Complaint and Add Additional Parties Plus Relief and Memorandum of Law in Support at 3.
The Court denies Serna’s Motion for Leave to Amend Complaint and Add Additional
Parties Plus Relief and Memorandum of Law in Support. The Eleventh Amendment to the

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Constitution of the United States of America prohibits official capacity claims and Serna has not
adduced any evidence suggesting that immunity has been waived. The individual capacity claims
are likewise subject to dismissal, because qualified immunity protects the deputies and Serna has
not stated any facts suggesting that the deputies violated a clearly established Constitutional right.
On August 10, 2017, Serna filed a document entitled Defendant Webster in Violation of
Rule 5 Serving Pleadings and Other Papers on All Parties (Doc. 144). Serna asks the Court to
“dismiss the illegal restraining order imposed on the Plaintiff in state district court.” Defendant
Webster in Violation of Rule 5 Serving Pleadings and Other Papers on All Parties at 2. The AntiInjunction Act prohibits the Court from interfering in state court matters. The Court will deny the
request. Serna also seeks rule 11 sanctions against the Websters. Serna did not alert the Websters
to her intent to file a rule 11 motion, and the Court will deny the motion for failure to comply
with rule 11’s safe harbor provision. The Court has already granted the Websters’ motion to
dismiss; therefore it should be unnecessary for Serna to send additional materials to the Websters.
The Court therefore denies Serna’s Motion.
On August 11, 2017, Serna filed another document titled Objection to Defendant Simon’s
Motion to Strike and Dismiss Plaintiff’s Complaint (Doc. 145). Serna asks the Court to deny the
Objection to Defendant Simon’s Motion to Strike and Dismiss Plaintiff’s Complaint and to
sanction Simon and his counsel. The Court has already denied Simon’s Objection to Defendant
Simon’s Motion to Strike and Dismiss Plaintiff’s Complaint. The Court will therefore deny
Serna’s request.
Finally, Serna filed Addendum Request: Office of the Clerks to Mail Defendant’s Websters
Copies of Court Pleadings Due to ‘Threats’ on Plaintiff on August 18, 2017 (Doc. 146). The
Court has already addressed this matter and dismissed the Websters from this case. The Court

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will deny therefore deny the Addendum Request: Office of the Clerks to Mail Defendant’s
Websters Copies of Court Pleadings Due to ‘Threats’ on Plaintiff on August 18, 2017 as moot.
The Court turns now to the issue of filing restrictions. This litigation, in one form or
another, has persisted for over a decade. The underlying litigation has gone up and down the New
Mexico court system, and Serna has lost at every turn. Serna has been so persistent in her
erroneous interpretation that every level of the New Mexico courts have imposed filing
restrictions on Serna because of her frivolous and abusive filings. See Order Limiting the Filing
of Further Substantive Motions Without Prior Court Approval (dated Marcy 15, 2016), filed
February 9, 2017 (Doc. 34-5)(imposing filing restrictions in the Court of Appeals of New
Mexico); Order on Remand (dated July 11, 2016), filed February 9, 2017 (Doc. 34-6)(imposing
filing restrictions in the Second Judicial District Court, County of Bernalillo, State of New
Mexico); Order (dated September 12, 2016), filed February 9, 2017 (Doc. 34-7)(imposing filing
restrictions in the Supreme Court of New Mexico). Despite having three levels of the judiciary
explain the flaws in her argument, Serna persists.
Serna’s history with these Defendants is lengthy and abusive, as set forth in the state court
record and as the voluminous and duplicative filings in this case make clear. The Court therefore
proposes to impose the following filing restrictions:
1. Serna may file one amended complaint as only to Defendants Chisholm, Simon and the
Estate of Paul Becht. Serna must file the amended complaint within ten days from this
Order’s date of entry, and may not contain criminal charges of any kind.
2. Serna may show cause, in one written document, why the Court should not impose
filing restrictions against her. Serna must submit this document within ten days from
this Order’s date of entry and must not contain spurious allegations of bribery,
collusion, or other fancies that the world has conspired against her.
3. The Court directs the Clerk of Court not to accept any other filings, other than those
described in (1) and (2), from Serna in this matter until further Court Order.

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4. Unless Serna files a timely and compliant response, the Court will impose the following
restrictions on Serna on the eleventh day after this Order’s date of entry:
a. To obtain permission to proceed pro se against the Defendants named herein,
Serna must take the following steps:
i. File a petition with the Clerk of the Court requesting leave to file a pro se
original proceeding against the Defendants.
ii. File with the Clerk a notarized affidavit, in proper legal form, which recites
the issues she seeks to present, including a short discussion of the legal right
asserted and why the Court has jurisdiction over the matter. The affidavit
must certify, to the best of Serna’s knowledge, that the legal arguments Serna
is raising are not frivolous or made in bad faith, that they are warranted by
existing law or a good faith argument for the extension, modification, or
reversal of existing law, that she does not interpose the new suit for any
improper purpose such as delay or to needlessly increase the cost of
litigation, and that she will comply with all Federal and local rules of this
Court. The affidavit must certify why the proposed new suit does not present
the same issues that this Court has decided and the new Mexico courts have
repeatedly addressed and why another suit against these Defendants would
not be an abuse of the system.
5. Serna shall submit these documents to the Clerk of the Court, who shall forward them
to the Chief United States Magistrate Judge for review to determine whether to permit
a pro se original proceeding. Without the Chief Magistrate Judge's approval, and the
concurrence of the assigned Article III Judge, the Court will dismiss the action. If the
Chief Magistrate Judge approves the filing, he or she shall enter an order indicating
that the new proceeding shall proceed in accordance with the Federal Rules of Civil
Procedure.
6. Serna shall have ten days from the date of this order to file written objections, limited
to fifteen pages, to these proposed restrictions. If Serna does not file objections, the
restrictions shall take affect eleven days from the date of this order. The filing
restrictions shall apply to any matter filed after that time. If Serna timely files
objections, these restrictions shall not take effect until the Court has ruled on the
objections.
IT IS SO ORDERED that: (i) the Second Proposed Findings and Recommended
Disposition, filed May 4, 2017 (Doc. 118), is adopted; (ii) Plaintiff Serna’s motions for default
judgment (Docs. 26, 27, 28, 29, 30, 31, 32, 66, 77, 92, 115, 127, 128, 129, 130, 131, 132, 138)
are denied; (iii) Serna’s motions to amend (Docs. 7, 8, 25, 47, 61, 87, 93, 94, 134, 141) are
denied; (iv) all motions to dismiss pursuant to Rule 12(b) (Docs. 23, 33, 34, 36, 40, 120) are
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granted; (v) Serna’s motions for injunctive relief and for sanctions (Docs. 11, 20, 21, 24, 58, 91,
94, 96, 98, 104, 105, 121, 123, 125, 126, 140, 141, 144, 145, 146) are denied; (vi) Defendant
Robert Simon’s motion for more definite statement (Doc. 38) is granted; (vii) Serna’s requests
for discovery devices (Docs. 61, 125) are denied; (viii) the Judicial Defendants’ motion to strike
(Doc. 84) Serna’s unauthorized surreply (Doc. 83) is granted; (ix) Serna’s motion for leave to
file surreply (Doc. 90) is denied; (x) Defendants Cindy Molina, Lynette Rodriguez, Madeline
Garcia, Sally Galanter, and Ari Biernoff are dismissed; (xi) the Judicial Defendants’ motion for
filing restrictions (Doc. 99) is granted; (xii) Serna is ordered to show cause why filing
restrictions should not be imposed against her, as outlined above; (xiii) Serna’s motion for
hearing (Doc. 53) is denied; (xiv) Simon’s motion to strike and to dismiss (Doc. 139) is denied;
(xv) all purported criminal claims against all Defendants are dismissed with prejudice; and (xiv)
Serna will file one amended complaint as to Defendants Alex Chisholm, Estate of Becht, and
Robert Simon within ten days from the date of entry of this Order.

________________________________
UNITED STATES DISTRICT JUDGE
Parties and counsel:
Emma Serna d/b/a Serna & Associates
Construction Co., LLC
Albuquerque, New Mexico
Plaintiff pro se
Margette Webster
Albuquerque, New Mexico
Defendant pro se

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David Webster
Albuquerque, New Mexico
Defendant pro se
Hector Balderas
Attorney General for the State of New Mexico
Ari Biernoff
Assistant Attorney General
Office of the Attorney General
Santa Fe, New Mexico
Attorneys for Defendants State of New Mexico, Carl Butkus, Cindy Molina, Alan Malott,
Beatrice Brickhouse, Bobby Jo Walker, James O’Neal, Joey Moya, Amy Mayer, Garcia
Madeliene, Arthur Pepin, Monica Zamora, Cheryl Ortega, and Nan Nash
William David Grieg
The Law Office of William D. Grieg, LLC
Albuquerque, New Mexico
Attorneys for Defendant Clayton Crowley
Alex Chisolm
Defendant pro se
Terry R. Guebert
Robert Gentile
Guebert Bruckner, PC
Albuquerque, New Mexico
-- and -Seth Sparks
Rodey, Dickason, Sloan,
Akin & Robb
Albuquerque, New Mexico
Attorneys for Defendant Robert Bob Simon
Estate of Paul F. Becht
Albuquerque, New Mexico
Defendant pro se

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John P. Burton
Charles R. Hughson
Rodey, Dickason, Sloan,
Akin & Robb
Albuquerque, New Mexico
Attorneys for Defendant Carl A. Calvert
Kenneth C. Downes
Kenneth C. Downes & Associates, PC
Corrales, New Mexico
Attorneys for Defendants Martha Murillo, Sally Galanter, New Mexico Construction
Industries Division, Robert Unthank, Martin Romero, and Amanda Roybal
John Wells
Defendant pro se

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