MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) Defendants Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londone’s Motion to Dismiss Count IV on the Basis of Qualified Immunity, filed December 4, 2015 (Doc. 60)(“Qualified Immunity Motion”); (ii) Defendants Susana Martinez, Jeremiah Ritchie, Jeffry [sic] S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londene’s Motion for Stay of Discovery Pending Qualified Immunity Rulings, filed December 4, 2015 (Doc. 61)(“Motion to Stay Discovery”); (iii) the Defendants’ Motion to Stay or Suspend the Court’s October 7, 2015 Preliminary Injunction, filed December 18, 2015 (Doc. 64)(“Motion to Stay Injunction”); (iv) the Defendants’ Motion to Reconsider and Either Vacate or Modify the Court’s October 7, 2015 Preliminary Injunction, and for Relief Pursuant to Fed. R. Civ. P. 62.1, filed December 18, 2015 (Doc. 65)(“Motion to Reconsider Injunction”); (v) Defendant State of New Mexico’s Motion' to Modify October 7, 2015 Preliminary Injunction and to Dismiss Defendant State of New Mexico Based on the State’s Eleventh Amendment Sovereign Immunity, filed December 22, 2015 (Doc. 69)(“Sovereign Immunity Motion”); (vi) the Defendants’ Motion to Dismiss Counts III and IV of the Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 71)(“Motion to Dismiss Counts III and IV”); (vii) the Defendants’ Motion to Dismiss Count II of Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 72)(“Motion to Dismiss Count II”); (viii) the Defendants’ Motion to Dismiss Count V of Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 73)(“Motion to Dismiss Count V”); (ix) the Pueblo’s Motion to Stay Proceedings Pending Defendants’ Interlocutory Appeal of Order Issuing Preliminary Injunction, filed February 17, 2016 (Doc. 93)(“Motion to Stay Proceedings”); and (x) the Pueblo’s Motion for Leave to Submit Supplemental Brief in
The primary issues are: (i) whether the Defendants’ interlocutory appeal of the Court’s October 7, 2015, preliminary injunction, divests the Court of its jurisdiction over the present motions; (ii) whether Defendants Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londone (collectively, the “Individual Defendants”), violated Plaintiff Pueblo of Pojoaque’s federal rights by taking a series of actions under color of state law against non-Indian, state-licensed gaming manufacturer vendors — thereby potentially affecting Poj-oaque Pueblo’s ability to do business with such vendors — based on the Individual Defendants’ determination that the vendors violated New Mexico law in supplying equipment to or receiving proceeds from gaming enterprises that the Pojoaque Pueblo allegedly conducted on its tribal lands in the absence of a compact with Defendant State of New Mexico, as the Indian Gaming Regulatory Act of 1988, 25 U.S.C. §§ 2701-2721 (“IGRA”), requires; (iii) whether the Individual Defendants are entitled to qualified immunity with respect to Count IV, and whether discovery should be stayed pending the Court’s ruling on the qualified immunity defense; (iv) whether Defendant State of New Mexico is entitled to dismissal of all Counts on the basis of sovereign immunity; (v) whether the Individual Defendants are entitled to immunity from the Plaintiffs’ claim for tor-tious interference with contractual relations; and (vi) whether the Court should stay, suspend, vacate or modify Judge Brack’s October 7, 2015, preliminary injunction enjoining the Defendants “from taking any action that threatens, revokes, conditions, modifies, fines, or otherwise punishes or takes enforcement against any licensee in good standing with the New Mexico Gaming Control Board based wholly or in part on grounds that such licensee is conducting business with the Pueblo.”
FACTUAL BACKGROUND
This action arises out of New Mexico and Pojoaque Pueblo’s failure to negotiate a state-tribal gaming compact pursuant to IGRA § 2710(d), and an ensuing dispute as to New Mexico’s authority to regulate non-Indian gaming activities in New Mexico— regulations which are motivated by, and have an indirect impact on, the Pojoaque Pueblo’s gaming operations, notwithstanding the absence of a compact. The material facts of this case are undisputed. See, e.g., Qualified Immunity Motion at 5-7 (listing, without disputing, the Plaintiffs’ factual allegations).
Pojoaque Pueblo is a federally recognized Indian Tribe with 482 enrolled members located in northern New Mexico. See Complaint [Failure To Conclude Compact Negotiations in Good Faith, 25 U.S.C. § 2710(d); Declaratory Judgment and In-junctive Relief; Violation of Civil Rights, 42 U.S.C. § 1983; Pendant Claim of Tor-tious Interference with Existing Contractual Relationships] ¶ 1, at 1, filed July 18, 2015 (Doc. 1). The Pojoaque Pueblo operates two gaming facilities on its Indian lands: the Buffalo Thunder Resort & Casi
New Mexico is a sovereign state government. See Complaint ¶ 16, at 7. Landers, Maniaci, Becker, Doughty, and Londene (collectively, the “Gaming Board Members”) are Members of the New Mexico Gaming Control Board. Complaint ¶¶ 19-23, at 7-8. Landers also serves as the Chairman of the Gaming Board. See Complaint ¶ 19, at 7. Martinez, the Governor of New Mexico, appointed each Gaming Board member.
On July 19, 2005, New Mexico and Poj-oaque Pueblo executed a Class III gaming compact
After Judge Parker dismissed Pojoaque Pueblo’s suit against New Mexico for failure to negotiate a compact in good faith, the Pojoaque Pueblo submitted a proposal for Class III gaming to the United States Secretary of the Interior pursuant to IGRA, 25 U.S.C. § 2710(d)(7)(B), and 25 C.F.R. Part 291. The remedial scheme in 25 U.S.C. § 2710(d)(7)(B) empowers the Secretary of the Interior to promulgate procedures for Class III gaming if a state refuses to agree to a compact. See 25 U.S.C. § 2710(d)(7)(B)(vii). The Secretary may initiate such procedures once a federal court makes a determination that a state acted in bad faith in failing to negotiate a compact. See 25 U.S.C. § 2710(d)(7)(B)(iv)-(v). However, this remedial scheme is effectively neutralized by
On August 7, 2014, New Mexico filed a lawsuit against the United States of America challenging the Secretary of the Interi- or’s authority to promulgate the regulations in 25 C.F.R. Part 291. See New Mexico v. Dep’t of Interior,
On November 3, 2014, the Pojoaque Pueblo informed New Mexico of its renewed desire to negotiate a compact to govern its Class III gaming operations past the June 30, 2015, termination of the current state-tribal agreement. See Complaint ¶ 60, at 19. New Mexico and Poj-oaque Pueblo representatives subsequently met on several occasions to negotiate a new compact; however, talks again were unsuccessful, and New Mexico and the Pojoaque Pueblo never reached an agreement. See Complaint ¶¶ 62-64, at 19-20.
On February 26, 2015, Becker, on the Gaming Board’s behalf, requested to perform the Gaming Board’s routine annual compliance review of Pojoaque Pueblo’s gaming operations on November 3-5, 2015. See Complaint ¶ 65, at 20. On May 6, 2015, however, Becker notified the Pojoaque Pueblo by letter of the Gaming Board’s intention to conduct an earlier compliance review in advance of the compact’s expiration. See Complaint ¶ 65-66, at 20. In the letter, Becker requested that the Pojoaque Pueblo provide “[a]ny and all contract[s] with Class III Gaming Machine Manufacturers, including [any] Lease, Purchase and Service Agreements.” Complaint ¶ 66, at 20. Pursuant to its obligations under the outstanding compact, the Pojoaque Pueblo produced the requested vendor contracts on June 24, 2015. See Complaint ¶ 66, at 20.
The Class III gaming compact between New Mexico and Pojoaque Pueblo expired at midnight on June 30, 2015. See Complaint ¶ 69, at 21. Earlier that day, the United States Attorney for the District of New Mexico, Damon P. Martinez, issued a letter to Talachy stating that, once the compact expired, “[cjontinued gaming operations by the Pueblo ... would violate federal law.” Letter From Damon P. Martinez to Joseph M. Talachy Regarding Expiration of Pojoaque Pueblo’s Class III Gaming Compact with New Mexico (dated June 30, 2015), at 1, filed October 1, 2015 (Doc. 28-3)(“U.S. Attorney’s Letter”). Notwithstanding this pronouncement, the U.S. Attorney’s Letter indicated that Mr. Martinez would “exercise [ ] discretion to with
That same day, on June 30, 2015, the Gaming Board issued a public statement that Mr. Martinez’ decision to allow the Pojoaque Pueblo’s casinos to remain in operation “provides no protection to banks, credit card vendors, gaming machine vendors, advertisers, bondholders, and others that are now doing business with an illegal gambling enterprise.” Complaint ¶ 68, at 21. Shortly thereafter, on July 15, 2015, the Gaming Board held a closed meeting to discuss tribal gaming compliance issues. See Complaint ¶ 73, at 22. Following the meeting, the Gaming Board announced that it had determined that the Pojoaque Pueblo’s casinos were operating illegally in the absence of a Class III gaming compact and “placed in abeyance approval of any license application or renewal for the Pueblo’s vendors.” Complaint ¶ 73, at 22. The Gaming Board did not place any other vendors’ applications in abeyance. See Complaint ¶ 73, at 22.
PROCEDURAL BACKGROUND
The Plaintiffs commenced this action on July 18, 2015. See Complaint at 1. The Complaint seeks redress for two principal claims: (i) that New Mexico failed to conclude compact negotiations in good faith for the regulation of Class III gaming activities on the Plaintiffs’ lands in violation of 25 U.S.C. § 2710(d); and (ii) that the Individual Defendants conspired under color of state law to “deprive the federal right of the Pueblo and its members to be free of state jurisdiction over activities that occur on the Pueblo lands.” Complaint ¶ 1, at 1-2. The Plaintiffs also bring a pendent state law claim for tortious interference with contractual relations. See Complaint ¶ 1, at 2. The Plaintiffs allege that New Mexico “wrongfully assert[ed] State jurisdiction over gaming activities on the Pueblo’s Indian lands” in the absence of a Class III gaming compact, thereby violating the Supremacy Clause of the Constitution of the United States and federal civil rights statutes. Complaint ¶ 8, at 4. The Plaintiffs seek extensive declaratory relief, an injunction preventing New Mexico from interfering with their vendors, the appointment of a mediator to facilitate negotiations, $50,000,000 per year in money damages, attorney’s fees, and “such other relief as may be just and equitable, including ancillary relief.” Complaint ¶¶ A-W, at 37-40. The case was assigned to the Honorable Robert C. Brack, United States District Judge for the United States District Court for the District of New Mexico. See Notice of Case Reassignment to District Judge Robert C. Brack as Trial Judge, filed September 10, 2015 (Doc. 19 [text-only-entry] )(reassigning the case from the Honorable Steven C. Yarbrough, United States Magistrate Judge).
On September 9, 2015, the Gaming Board sent letters to the Pojoaque Pueblo’s gaming manufacturer vendors. See Letter From Donovan Lieurance to Manufacturer Licensee (dated September 9, 2015), at 1, filed September 25, 2015 (Doc. 23-14)(“Vendor Letter”). The Vendor Letter informed the vendors that Mr. Martinez has determined that the Pojoaque
On September 25, 2015, the Gaming Board “issued State Citations to all of the vendors doing business with the Pueblo.” Second Supplemental Declaration of Terrence “Mitch” Bailey
The Plaintiffs promptly moved for a temporary restraining order and/or a preliminary injunction on September 25, 2015. See Pueblo of Pojoaque’s Motion for Temporary Restraining Order and/or Preliminary Injunction, filed September 25, 2015 (Doc. 23)(“PI Motion”). In the PI Motion, the Plaintiffs frame the Gaming Board’s recent issuance of letters and citations to the Pojoaque Pueblo’s vendors as an attempt at asserting “jurisdiction over gaming activities on the Pueblo’s Indian lands,” PI Motion at 13, despite that New Mexico’s jurisdiction over such activities “ended on June 30, 2015 when the Compact expired,” PI Motion at 14. In the Plaintiffs’ view, the Gaming Board’s actions are “a throw-back to one of the darkest times in the history of the European conquest, when the pueblos were required to pay a tribute tax, whereby the Spanish confiscated the pueblo’s, maize and other resources ....” PI Motion at 3. The Plaintiffs therefore sought redress from Judge Brack to “force the State to recognize the modern federal policies of tribal self-sufficiency and tribal self-governance.” PI Motion at 3 (citation omitted). To that end, the Plaintiffs sought to prohibit the Defendants “from taking any action that threatens, revokes, conditions, modifies, fines, or otherwise punishes or takes enforcement against any licensee in good standing with the New Mexico Gaming Control Board [ ] based wholly or in part on grounds that such licensee is conducting business with the Pueblo.” PI Motion at 1.
In their response to the PI Motion, the Defendants stressed that the Gaming Board did “not engage[ ] in any regulatory actions against Plaintiffs .... ” State Defendants’ Response to Plaintiffs’ Request for Temporary Restraining Order at 3, filed October 1, 2015 (Doc. 28)(“PI Motion Response”). The Defendants pointed out that no direct enforcement action was threatened against Pojoaque Pueblo; rather, the Gaming Board’s actions at best “threatened regulatory consequences to third parties with ‘employment and business relationships with the Pueblo.’” PI Motion Response at 13. The Defendants stated that, in any event, vendors “have not been instructed ... that they cannot conduct business with the Pueblo.” PI Mo
Judge Brack held a hearing on the PI Motion on October 2, 2015. See Transcript of Preliminary Injunction Order Hearing held on October 2, 2015 (Doc. 38)(“PI Hearing”). At the hearing, Plaintiffs’ counsel, Scott Crowell, argued extensively about Pojoaque Pueblo’s “right to be free from state jurisdiction over its gaming activities absent a tribal-state compact,” see PI Hearing at 82:9-18, and the requirements for issuance of a preliminary injunction, especially irreparable harm, see, e.g., PI Hearing at 36:18-25, 37:1-25, 38:1-4. In response, the Defendants’ counsel, Jerry A. Walz, repeatedly reiterated that New Mexico had no intention of barring vendors from continuing to do business with Poj-oaque Pueblo. See, e.g., PI Hearing at 57:7-9 (“[Njobody’s been ordered that they cannot do business with the Pueblo of Poj-oaque”). The Plaintiffs’ counsel countered that New Mexico had “assert[ed] jurisdiction over the tribe’s gaming activities in the form of threatening vendors regarding their licenses to do business with other entities in the state over which they [] have jurisdiction.” PI Hearing at 37:16-19. The consequence of this action, the Plaintiffs argued, would be to deter vendors from dealing with Pojoaque Pueblo, thereby “shutting] off a source of revenue [] upon which all of the tribe’s governmental operations ... very heavily rely.” See PI Motion at 37:21-24.
On October 7, 2015, Judge Brack granted the preliminary injunction, adopting the proposed language in the Plaintiffs’ PI Motion. See
Defendants’ protestations that the regulation of vendors doing business with the Pueblo does not constitute regulation of the Pueblo’s gaming activities are disingenuous and inconsistent with the record. Defendants’ actions are based, quite clearly, on Defendants’ own determination that the post-June 30, 2015 Class III gaming at the Pueblo is illegal — a determination that the Defendants, just as clearly, are without jurisdiction or authority to make.
Judge Brack’s MOO at *28. Determining that the Plaintiffs had established a likelihood of irreparable harm in the absence of preliminary relief, Judge Brack observed:
Defendants’ harassment and threatening conduct directed at the vendors is a thinly disguised attempt to accomplish indirectly that which Defendants know they are without authority or jurisdiction to accomplish directly. Defendants’ contention that the enforcement actions against the vendors do not harm the Pueblo is also disingenuous. The undisputed evidence establishes that the Pueblo will lose significant revenue and its Casinos may shut down due to Defendants’ intimidation of the Pueblo’s vendors.
Judge Brack’s MOO at *29. Accordingly, Judge Brack granted the PI Motion, ordering that “Defendants are enjoined from taking any action that threatens, revokes, conditions, modifies, fines, or otherwise punishes or takes enforcement against any licensee in good standing with the New Mexico Gaming Control Board based whol
As a result of the Gaming Board’s actions at its October 21, 2015, meeting, the Plaintiffs moved the Court on November 19, 2015, to: (i) “issue an Order to Show Cause” for the Gaming Board Defendants to “appear and present evidence as to why [they] should not be held in civil contempt of court for violating the Preliminary Injunction issued by [Judge Brack]”; (ii) impose sanctions on the Gaming Board Defendants upon a finding of civil contempt; and (iii) award the Plaintiffs attorney’s fees and costs. Motion for Order to Show Cause Re Civil Contempt, filed November 19, 2015 (Doc. 53)(“Contempt Motion”). The Plaintiffs argued that the Gaming Board had violated the preliminary injunction by “deferring license decisions on all applications for persons or companies doing business with the Pueblo.” Contempt Motion at 2. In the Plaintiffs’ view, the Gaming Board’s actions were new attempts at “asserting jurisdiction over the Pueblo’s gaming activities by threatening the licenses of those persons or companies doing business with the Pueblo’s gaming operations.” Contempt Motion at 3.
On October 29, 2015, the Defendants appealed Judge Brack’s preliminary injunction to the United States Court of Appeals for the Tenth Circuit. See Notice of Appeal at 1, filed October 29, 2015 (Doc. 40). On March 3, 2016, the Tenth Circuit set oral argument on the appeal for May 4, 2016. See Calendar Notice Setting Arguments for 05/04/2016 at 9:00 A.M., filed March 3, 2016 (10348232 [text-only-entry] ). On March 24, 2016, however, the panel assigned to review the matter sua sponte ordered that the appeal be abated pending issuance of a decision on the appeal of Judge Parker’s opinion invalidating the regulations in 25 C.F.R. Par 291, in New Mexico v. Department of the Interior, 14-2222. See Tenth Circuit Court of Appeals Order Abating Appeal at 1, filed March 24, 2016 (Doc. 112).
The Court denied the motion on April 21, 2016. See Contempt MOO at *31. The Court held that the Gaming Board’s license deferrals did not “threaten” the vendor applicants within the meaning of Judge Brack’s preliminary injunction. See Contempt MOO at *32. The Court reasoned that the deferrals would not affect the vendors’ continued operations for two reasons:
First, as the Gaming Board contends, “[i]f there is a conflict or inconsistency between statutes and regulations promulgated by an agency, the language of the statutes shall prevail.” Response at 7 (citing Jones v. Employment Servs. Divot Human Servs. Dep’t,1980-NMSC-120 , ¶ 3,95 N.M. 97 ,619 P.2d 542 , 544). The regulations here are inconsistent with § 60-2E-16(H), so the statute governs the effect on the vendors’ licenses. This principle also negates the Plaintiffs’ argument that bingo and raffle licensees, which are subject to a regulation with almost identical language, require variances to continue operating after theirlicenses expire. See Reply at 9. Compare N.M. Admin. Code § 15.4.3.16 (“Any licensee that fails to renew its license as required by the act and this rule shall cease the games of chance authorized by the license on the date the license expires.”), with N.M. Admin. Code § 15.1.13.11 (“Any licensee that fails to renew its license as required by the act and this rule shall cease the gaming activity authorized by the license on the date the license expires.”).
Although the regulations governing bingo and raffle licenses are very similar to the regulations applicable here, there is no conflicting statute governing bingo and raffle licenses. The rough equivalent of § 60-2E-16(H) for bingo and raffle licenses does not address whether licenses remain valid upon the submission of a renewal application. See N.M. Stat. Ann. § 60-2F-12.
Second, the Gaming Board has established a “pattern of practice” of allowing licenses to remain in effect between the time that a licensee flies for a renewal and the time that it approves the renewal. Reply at 8. Defendant Jeffrey Lan-ders has submitted a declaration describing his review of the Gaming Board’s licensing records. See Declaration of Jeffrey S. Landers ¶ 3, at 2 (taken December 7, 2015), filed December 7, 2015 (Doc. 62-2)(“Landers Declaration”). Landers states that the Gaming Board has “approved a renewal application after the nominal expiration date of an existing license” on approximately thirty occasions between 2003 and 2015. Lan-ders Declaration ¶ 3, at 2. Landers adds that “all” of the licensees “were permitted to continue operating during the period between the expiration date of the existing license and the approval of the renewal application.” Landers Declaration ¶ 3, at 2. The Gaming Board also represented during the hearing that this practice “isn’t something that the board has done just recently and only in the case of the manufacturers who are doing business with the pueblo. This is something that the board has done as Mr. Landers stated in his declaration over 30 times since 2003.” Tr. at 37:14-19 (Bohn-hoff). The Plaintiffs’ argument that they cannot rely on the Gaming Board’s past practice as a defense to an enforcement action is unconvincing. See Reply at 11 (“The Certain Defendants want this Court to believe that ... a [Gaming Board] track record of defying the applicable statute and its own regulations will be a successful defense[.]”). As discussed above, § 60-2E-16(H) is inconsistent with the regulations that the Gaming Board would use to support an enforcement action. Given this conflict, the statute would govern the dispute, and its language — that “a license, certification or permit shall continue in effect upon proper payment of the initial and renewal fees” — would not support an enforcement action here. N.M. Stat. Ann. § 60-2E-16(H).
Moreover, it is likely that any enforcement action — whether grounded in statutes or regulations, or not — would be seen as a threat and a violation of Judge Brack’s PI. The important thing is that the Gaming Board’s practice and representations send a signal to the vendors that it is not going to do anything while Judge Brack’s PI is in place. After all, preserving the status quo is the aim of injunctive relief, and at the present time, the vendors are not threatened and do not appear to feel threatened.
The Gaming Board must proceed with caution. Although it can defer applications under Judge Brack’s PI, its actions may become threats if the vendors start pulling their business from Pojoaque Pueblo. It is true that the situation doesnot have to get to that point before there is a violation, but right at the moment, the vendors — who are smart, savvy business people — understand what is going on in New Mexico. These gaming vendors are a salty bunch, and not easily scared off from doing business. Moreover, the State of New Mexico has little economic self-interest in ruining the business of all vendors by eventually penalizing them down the road, so the threat, if any, appears not to exist now or in the future. Judge Brack’s PI has, for the time being, achieved what he wanted — maintaining the status quo until the case is over. Until a vendor appears and states that the situation is no longer working, the Court does not think it prudent to take the prophylactic action of contempt that the Plaintiffs suggest.
The Parties have since filed a litany of motions. Since all of the pleadings present overlapping arguments, the Court will discuss only a few of the pleadings that highlight the parties’ primary arguments. The Court will discuss the remaining pleadings where relevant in the analysis.
1. The Motion to Dismiss Count IV on the Basis of Qualified Immunity.
On December 4, 2015, the Individual Defendants moved to dismiss Count IV of the Complaint on the basis of qualified immunity. See Qualified Immunity Motion at 1. Count IV seeks money damages for actions that the Individual Defendants allegedly took in their personal capacities under color of state law in violation of 42 U.S.C. §§ 183 and 1985. See Complaint ¶¶ 143-151, at 35-37. The Complaint alleges that the “Individual Defendants knew or should have known that actions purporting to assert jurisdiction of the State over conduct occurring on Pueblo Indian lands wrongfully deprives Plaintiff Talachy and the individual members of their federal right to engage in conduct free from the jurisdiction of the State.”
The Individual Defendants make two principal arguments in support of their Qualified Immunity Motion. First, they contend that they did not violate any federal constitutional or statutory right by regulating non-Indian, state-licensed gaming manufacturer vendors pursuant to New Mexico’s police power. See Qualified Immunity Motion at 8. Second, they argue that, at a minimum, the Plaintiffs have failed to prove that there is a clearly established right under federal law that the Individual Defendants’ actions violated. See Qualified Immunity Motion at 18. The Individual Defendants also advance an ancillary argument that Martinez and Ritchie are entitled to dismissal of Count IV on the basis that the Gaming Board, not Martinez or Ritchie, took the actions of which the Pojoaque Pueblo complain. See Qualified Immunity Motion at 21.
i. The Individual Defendants’ Alleged Violation of Plaintiffs’ Federal Rights.
The Individual Defendants open by contending that the Supremacy Clause, upon which the Plaintiffs ground their claims of violation of a federal right, see Complaint ¶ 8, at 4, is “not a source of any federal rights.” Qualified Immunity Motion at 8 (quoting Golden State Transit Corp. v. Los Angeles,
In any event, the Individual Defendants assert that their actions were “properly taken in connection with the State’s legitimate regulation of non-tribal New Mexico gaming activities in the exercise of its police power.” Qualified Immunity Motion at 9 (citation omitted). See also id. (“[T]he police power of a state ‘extends to all matters affecting the public health or the public morals.’ ’’)(quoting Stone v. Mississippi,
The Individual Defendants note that, under regulations the Gaming Board promulgated pursuant to the Act, vendor licensees must comply with all “laws and regulations governing the operations of a gaming establishment,” and must not “further[ ], or profit[ ] from any illegal activity or practice.” Qualified Immunity Motion at 10 (quoting N.M.A.C. § 15.1.10.9(f)). The Individual Defendants contend that Gaming Board regulations specifically prohibit licensees from “selling] or transferfing] a gaming device to any person that could not lawfully own or operate the gaming de
Against this regulatory backdrop, the Individual Defendants assert that the Gaming Board’s actions with respect to vendor licensees doing business with Poj-oaque Pueblo were a valid exercise of New Mexico’s police power. See Qualified Immunity Motion at 11. The Gaming Board, they argue, merely acted to “ensure that gaming activities in New Mexico are conducted in accordance with the law .... ” Qualified Immunity Motion at 11 (citation omitted). The Individual Defendants contend that, indeed, the Gaming Board was statutorily obligated to act as it did. See Qualified Immunity Motion at 9 (noting that the Gaming Control Act commands the Gaming Board to “strictly regulate[ gaming activities] to ensure honest and competitive gaming that is free from criminal and corruptive elements and influences”)(quoting N.M.S.A. § 60-2E-2(A)).
Turning to federal law, the Individual Defendants argue that IGRA “neither preempts the State’s proper exercise of its police powers nor applies to the actions taken by the Individual Defendants.” Qualified Immunity Motion at 11. The Individual Defendants frame the issue by noting the “strong presumption against federal preemption of state law .... ” Qualified Immunity Motion at 11 (citing Maryland v. Louisiana,
The Individual Defendants first note that preemption occurs only where Congressional intent is “clear and manifest.” Qualified Immunity Motion at 12 (quoting Rice v. Santa Fe Elevator Corp.,
Indeed, the Individual Defendants stress, “Everything — literally everything — in IGRA affords tools (for either state or federal officials) to regulate gaming on Indian lands, and nowhere else.” Qualified Immunity Motion at 12 (quoting Michigan v. Bay Mills Indian Cmty., — U.S. —,
The Individual Defendants’ position— both in this motion and throughout their pleadings — hinges on the distinction that the Supreme Court of New Mexico made in Srader v. Verant. The Individual Defendants stress that they have not taken any direct regulatory action towards Pojoaque Pueblo “nor have they asserted their authority on Pueblo lands.” Qualified Immunity Motion at 14. They argue that the Gaming Board has not regulated Pojoaque Pueblo at all — it has regulated only non-Indian, state-licensed vendors. Qualified Immunity Motion at 14. As to Pojoaque Pueblo, the Gaming Board has, consistent with Srader v. Verant, merely acted on its obligation to “enforce State law against licensees conducting business with illegal gaming enterprises, including illegal enterprises operating on tribal land.” Qualified Immunity Motion at 14.
The Individual Defendants further contend that it is immaterial whether the Gaming Board’s regulatory actions have indirect impacts on Pojoaque Pueblo’s gaming operations. See Qualified Immunity Motion at 14. The Individual Defendants discuss a number of cases where the Supreme Court of the United States of America and the Tenth Circuit upheld “off-Indian country seizure of cigarettes pursuant to state law despite the effect of these seizures on the tribe.” Qualified Immunity Motion at 14-16 (citation omitted). In fact, they note, the Supreme Court has held that, when “state interests outside the reservation are implicated, States may regulate the activities even of tribe members on tribal land.” Qualified Immunity Motion at 15-16 (quoting Nevada v. Hicks,
In light of the above arguments, the Individual Defendants contend that the Plaintiffs’ allegation that the Gaming Board acted beyond the scope of its authority in determining that Pojoaque Pueblo is operating its gaming operations illegally in the absence of a Class III compact, see Complaint ¶ 7, at 1, is “obviously incorrect.” Qualified Immunity Motion at 16. In short,
[i]f the State properly may take action against the licenses of non-Indian manufacturers in connection with their dealings with off-reservation non-Indian gaming operators, it follows that it may make determinations about the illegality of the Pueblo’s and thus the Vendors’ conduct in accordance with [N.M. Stat. Ann. § 60-2E-4] and [N.M. Admin. Code § 15.1.10.9(f)].
Qualified Immunity Motion at 16. The Individual Defendants concede that the United States has “exclusive jurisdiction over criminal prosecutions of violations of State gambling laws .... ” Qualified Immunity Motion at 16 (quoting 18 U.S.C. § 1166(d)). The Individual Defendants argue, however, that New Mexico has not “criminally prosecut[ed] anyone, let alone the Pueblo.” Qualified Immunity Motion at 16. Certainly, they assert, New Mexico is empowered to “decide whether the Pueblo’s gaming operations are lawful — something the State must do in order to enforce its own law .... ” Qualified Immunity Motion at 16-17.
The Individual Defendants conclude this line of argumentation by positing that, even if the Gaming Board’s issuance of citations to the vendors was just an indirect attempt to regulate Pojoaque Pueblo’s gaming operations, as Judge Brack argued in his preliminary injunction opinion, the “Supreme Court [has] recognized ... that a state is within its rights to assert ‘leverage’ to enforce its laws against an Indian tribe that is conducting illegal gaming.” Qualified Immunity Motion at 17 (quoting Michigan v. Bay Mills Indian Cmty.,
ii. Whether the Allegedly Violated Federal Right was Clearly Established.
Turning to the other inquiry of qualified immunity analysis, the Individual Defendants argue that the “Plaintiffs cannot show that there is a clearly established right under federal law that they allege the Individual Defendants violated.” Qualified Immunity Motion at 18. For this inquiry, they reason, the Plaintiffs “ ‘must show legal authority which makes it apparent that in the light of pre-existing law a reasonable official ... would have known that’ the specific conduct at issue violated Plaintiffs’ constitutional rights.” Qualified Immunity Motion at 19 (quoting Green v. Post,
In the Complaint, the Plaintiffs assert that the “Individual Defendants knew or should have known that actions purporting to assert jurisdiction of the State over conduct occurring on Pueblo Indian lands wrongfully deprives Plaintiff Talachy and the individual members of the Pueblo of their federal right to engage in conduct free from the Jurisdiction of the State.” Complaint ¶ 145, at 36. The Individual Defendants note that the Plaintiffs do not support this allegation by “citfing any] case holding, or even suggesting, that a tribe or its officials have a right enforceable in an action under Section 1983 or 1985 to be free from state jurisdiction in these circumstances.” Qualified Immunity Motion at 20. Moreover, they argue that no authority supports the proposition that,
In short, the Individual Defendants argue that it is not clearly established that the Gaming Board’s “actions taken against non-Pueblo entities with regard to their ability to contract with non-Pueblo gaming operations are barred by any federal law, much less that they rise to the level of a right protectable under Section 1983.” Qualified Immunity Motion at 20. Thus, they contend that, even assuming “the Individual Defendants wrongfully interfered with the Pueblo’s tribal sovereignty, [they] are nevertheless entitled to qualified immunity because the right allegedly being violated by the Individual Defendants is not supported by clearly established law.” Qualified Immunity Motion at 21.
iii. Count IV as to Martinez and Ritchie.
The Individual Defendants conclude by arguing that Martinez and Ritchie are entitled to dismissal of Count TV for the additional reason that “the actions of which Plaintiffs complain are not actions taken by either Governor Martinez or Rit-chie.” Qualified Immunity Motion at 21. The Individual Defendants note that the Tenth Circuit “requires a plaintiff to demonstrate that the defendant before the court is responsible for the constitutional deprivation at issue.” Qualified Immunity Motion at 21 (citations omitted). However, all but one of the “allegations that the Plaintiffs complain of in their Complaint and subsequent pleadings are allegations of wrongdoing by [the Gaming Board] .... ” Qualified Immunity Motion at 22. According to the individual Defendants, the only wrongdoing attributed to Martinez is her June 30, 2015, statement that the U.S. Attorney’s Letter “provides no protection to banks, credit card vendors, gaming machine vendors, advertisers, bondholders, and others that are now doing business with an illegal gambling enterprise.” Qualified Immunity Motion at 22 (quoting Complaint ¶ 68, at 21). The only allegation against Ritchie is a derivative claim that he “made or caused to be made” similar “official pronouncements.” Qualified Immunity Motion at 22 (quoting Complaint ¶ 72, at 22).
These allegations, the Individual Defendants contend, do not establish that Martinez or Ritchie “personally participated in the alleged constitutional violations, or acquiesced in the alleged wrongdoing.” Qualified Immunity Motion at 22 (citation omitted). The Individual Defendants cite a recent case decided by the United States District Court for the District of Arizona involving letters written by the Arizona Governor and. Attorney General to the Arizona Department of Gaming “reciting their views regarding the illegality of the [Tohono O’odham Nation’s gaming] actions.” Qualified Immunity Motion at 22 (citing Tohono O’odham Nation v. Ducey,
The Individual Defendants ask the Court to apply the same standard here. See Qualified Immunity Motion at 23. In
b. The Plaintiffs’ Response.
Plaintiffs Pojoaque Pueblo and Talachy raise three primary arguments in opposition to the Individual Defendants’ motion to dismiss Count IV on the basis of qualified immunity. First, they contend that Pojoaque Pueblo’s federal right to be free from New Mexico’s jurisdiction over its gaming operations is clearly established, and that the Individual Defendants knew or should have known that their actions violated those rights. See Qualified Immunity Motion Response at 4. Second, they argue that the Complaint’s allegations against Martinez and Ritchie are sufficient to keep both Defendants in the case and subject to further discovery. See Qualified Immunity Motion at 7. Finally, they argue that because this litigation will proceed on the merits regardless of the Court’s disposition as to the qualified immunity defense, the policies underlying that defense are immaterial to this action. See Qualified Immunity Motion at 11.
i. Clarity of the Law Regarding State Jurisdiction Over Tribal Gaming.
The Plaintiffs begin by characterizing the Qualified Immunity Motion as “a poorly veiled attempt to re-litigate ... the preliminary injunction motion, which was granted in Plaintiffs’ favor after full briefing and a hearing.” Qualified Immunity Motion Response at 5. Further, the Plaintiffs contend they are “not required to defeat the qualified immunity defense on the merits at this juncture in the litigation.” Qualified Immunity Motion Response at 6. Rather, according to the Plaintiffs “[t]he Pueblo merely needs to demonstrate that it has presented a plausible claim that a clearly-established federal right has been violated by the [Individual Defendants], and that it would be ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” Qualified Immunity Motion Response at 6. See id. at 4-5 (noting that the Court previously denied a motion to dismiss on qualified immunity grounds because the complaint alleged a “plausible” cause of action even though “there was not a precise appellate court case on point”)(citing Hunt v. Central Cosol. School District,
The Plaintiffs rely heavily on Judge Brack’s MOO, arguing that Judge Brack found that a clearly-established federal right was violated by the Individual Defendants and that his reasoning “compels denial of [the] Motion to Dismiss.” Qualified Immunity Motion Response at 6. Specifically, the Plaintiffs cite to Judge Brack’s admonition that the Individual Defendants’ actions are “ ‘based, quite clearly, on Defendants’ own determination that the post-June 30, 2015 Class III gaming at the Pueblo is illegal — a determination that the Defendants, just as clearly, are without jurisdiction or authority to make.’ ” Qualified Immunity Motion Response at 6 (quoting Judge Brack’s MOO at *28)(citations
Thus, the Plaintiffs argue that the reasoning in Judge Brack’s MOO defeats both prongs of qualified immunity analysis'— that the Individual Defendants violated a federal right and that they knowingly violated that right. See Qualified Immunity Motion Response at 6. As a result, according to the Plaintiffs, the Qualified Immunity Motion “falls far short of establishing ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Qualified Immunity Motion Response at 7 (quoting Peterson v. Jensen,
ii. The Allegations Against Defendants Martinez and Ritchie.
The Plaintiffs next argue that the Complaint’s allegations against Martinez and Ritchie “are sufficient, on their own, to survive the Motion to Dismiss.” Qualified Immunity Motion Response at 7. The Plaintiffs argue that Martinez’ and Rit-chie’s statements to the public — statements which the Individual Defendants do not dispute they made — constitute “threats to licensees doing business with the Pueblo, and are part of the State’s unlawful attempt to assert jurisdiction over the Pueblo’s gaming activities.” Qualified Immunity Motion Response at 7-8. The Plaintiffs again refer to Judge Brack’s MOO, which “expressly identified the press statements ... as part of the actions that caused him to conclude that ‘Plaintiffs have established that the Individual Defendants are attempting to enforce state gaming regulations on the Pueblo’s Indian lands in the absence of a tribal-state compact.’ ” Qualified Immunity Motion Response at 8 (quoting Judge Brack’s MOO at *22). It is immaterial, the Plaintiffs argue, whether the Gaming Board members “engaged in more frequent and concrete examples of threatening behavior ....” Qualified Immunity Motion Response at 8.
In fact, the Plaintiffs contend that the Individual Defendants have refused to provide key information that is likely to further substantiate the Complaint’s allegations against Martinez and Ritchie. See Qualified Immunity Motion Response at 8. Specifically, the Plaintiffs argue that certain correspondence between the Governor’s Office and the Gaming Board “will likely reveal additional manifestations of misconduct” by Martinez and/or Ritchie, or “provide evidence of a conspiracy between officials in the Governor’s Office and the [Gaming Board].” Qualified Immunity Motion Response at 8. The Plaintiffs note that their requests for this correspondence have been pending since September, 2015, yet the Individual Defendants have made only excuses and delayed production. See Qualified Immunity Motion Response at 9-10. In light of these circumstances, the Plaintiffs appeal to the Court to delay consideration of the Qualified Immunity Motion to allow an opportunity for the Plaintiffs to discover facts material to the qualified immunity issue. See Qualified Immunity Motion Response at 9-10 (citation omitted).
Finally, the Plaintiffs argue that the facts in Tohono O’odham Nation v. Du
iii. Qualified Immunity and Claims for Prospective Equitable Relief.
The Plaintiffs devote a sizeable portion of their Response to arguing that “qualified immunity is not available as a defense to claims seeking prospective equitable relief.” See Qualified Immunity Motion Response at 11-13. The Plaintiffs cite numerous cases with holdings- to that effect. See Qualified Immunity Motion Response at 11-13. The Plaintiffs further note that none of the cases relied on which the Individual Defendants rely were “brought in the context of defeating a claim for prospective equitable relief;” thus, the Plaintiffs contend, those cases have no relevance to Counts II and III of the Plaintiffs’ Complaint, which seek prospective equitable relief. See Qualified Immunity Motion Response at 13.
The point of this line of analysis, it seems, is that the Court should deny the Qualified Immunity Motion, because the litigation will still proceed against the Individual Defendants regardless whether Count IV stands. See Qualified Immunity Motion Response at 11. Consequently, according- to the Plaintiffs, the Individual Defendants will still be “subject to the same burdens of litigation, including discovery .... ” Qualified Immunity Motion Response at 11. The Plaintiffs contend that such discovery, particularly with respect to Counts II and III, will involve the development of matters that are necessary to the Individual Defendants’ qualified immunity defense. See Qualified Immtmity Motion Response at 13. Thus, the Plaintiffs argue that the Court should “decline ... to definitively rule on this issue in the context of a motion to dismiss.” See Qualified Immunity Motion Response at 13 (citations omitted).
c. The Individual Defendants’ Reply.
The Individual Defendants’ Reply first addresses the Plaintiffs’ argument that the Court should deny the Qualified Immunity Motion because it is too early in the litigation to consider this defense. See Qualified Immunity Motion Reply at 2. The Individual Defendants note that the Tenth Circuit, and the Court’s precedent counsels that the Court should resolve qualified immunity “at the earliest possible stage in litigation.” Qualified Immunity Motion Reply at 2 (quoting Albright v. Rodriguez,
The Individual Defendants next argue that the Plaintiffs’ appeal to Judge Brack’s analysis in the preliminary injunction as “conclusive on this issue” is improper. Qualified Immunity Motion Reply at 5. The PI Motion, they note, “did not address the issue of whether the Individual Defendants’ actions violated Plaintiffs’ federal rights (as opposed to more generally violating federal law), or whether those rights were clearly established.” Qualified Immunity Motion Reply at 5. Judge Brack’s findings based on the PI Motion are therefore inapposite. See Qualified Immunity Motion Reply at 5.
In any event, the Individual Defendants argue that the conclusions in Judge Brack’s MOO are simply not binding on the Court in considering the Qualified Immunity Motion. See Qualified Immunity Motion Reply at 6. The Individual Defendants note that the Supreme Court has stated that “ ‘the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at the trial on the merits.’ ” Qualified Immunity Motion Reply at 6 (quoting Navajo Health Found. v. Burwell,
[t]he Individual Defendants did not have adequate opportunity to brief, and Judge Brack therefore did not have the benefit of their analysis of, the complicated and core questions of whether the Individual Defendants’ exercise of the State’s police power was preempted by IGRA, or whether IGRA even reaches actions taken off-reservation.
Qualified Immunity Motion Reply at 7. Consequently, according to the Individual Defendants, Judge Brack simply “accepted as correct Plaintiffs’ contention that IGRA applied to and preempted the Individual Defendants’ ability to act against non-Indians off tribal lands.” Qualified Immunity Motion Reply at 7-8. Additionally, according to the Individual Defendants, “the issue of whether there was a violation of a clearly established federal right (as opposed to a more general violation of federal law) was not addressed at all in connection with the preliminary injunction.” Qualified Immunity Motion Reply at 8.
Notwithstanding the above, the Individual Defendants argue that Judge Brack “made findings and conclusions regarding Plaintiffs’ likelihood of success on the merits, not a decision on the merits.” Qualified Immunity Motion Reply at 8. The Individual Defendants posit that the preliminary and temporary nature of the preliminary injunction order mean that it is “neither binding nor persuasive authority.” Qualified Immunity Motion Reply at 8.
Moving to the violation prong of qualified immunity analysis, the Individual Defendants argue that the Plaintiffs have failed to establish that the Individual Defendants violated federal law, because no federal law preempts New Mexico’s exercise of its “authority to enforce its gaming laws in the manner alleged in the Complaint.” See Qualified Immunity Motion Reply at 8-9. As in the Qualified Immunity Motion, the Individual Defendants explain that: (i) there is no explicit preemption language in IGRA; (ii) federal law does not conflict with New Mexico’s “regulatory authority over non-Indian licensees conducting gaming within the State and outside tribal lands”; and (iii) “IGRA does not occupy the field because it does not apply outside of tribal lands .... ” Qualified Immunity Motion Reply at 9. Thus, neither “IGRA nor any other federal law preempts [New Mexico’s] police powers in this manner.” Qualified Immunity Motion Reply at 9.
With respect to the clearly established prong, the Individual Defendants argue that the Plaintiffs still fail to establish a violation of a clearly established right. See Qualified Immunity Motion Reply at 9. The Plaintiffs, they contend, “have not and cannot identify in IGRA or any other federal statute an ‘unambiguously conferred right’ that supports their Section 1983/1985 claim.” Qualified Immunity Motion Reply at 9. Indeed, according to the Individual Defendants, the Plaintiffs fail to “identify a single ‘Supreme Court or Tenth Circuit decision on point, or [show that] the clearly established weight of authority from other courts [ ] have found the law to be as the [Plaintiffs maintain[].’” Qualified Immunity Motion Reply at 10 (quoting Green v. Post,
Finally, the Individual Defendants advance the argument that Martinez and Rit-chie are entitled to dismissal, because “they are alleged to have done nothing but make statements about the potential legal consequences faced by non-Indian vendors continuing to do business with the Pueblo’s illegal gaming operation after the expiration of the compact.” Qualified Immunity Motion Reply at 10. The Individual Defendants argue that the Plaintiffs’ attempt to distinguish Tohono O’odham Nation v. Ducey on the basis that the statements in that case were made privately, not publicly, is immaterial. See Qualified Immunity Motion Reply at 11. The important issue, they argue, is “the fact that the officials in Tohono (and Governor Martinez and Rit-chie here), ‘have not written directly to the Nation or otherwise directly threatened enforcement of the law against the nation.’ ” Qualified Immunity Motion Reply at 11 (quoting Tohono O’odham Nation v. Ducey,
2, The Motion for Stay of Discovery Pending Qualified Immunity Rulings.
Contemporaneously with their Qualified Immunity Motion, the Individual Defendants moved the Court on December 4, 2015, for a “stay of discovery pending a ruling on their motion to dismiss.” Motion to Stay Discovery at 1. The Plaintiffs submitted a response on December 18, 2015. See Plaintiffs Pueblo of Pojoaque and Joseph M. Talachy’s Opposition to Defendants’ Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londene Motion to Stay Discovery Pending Qualified Immunity Rulings at 1, filed December 18, 2015 (Doc. 67)(“Motion to Stay Discovery Response”). The Individual Defendants replied on January 8, 2016. See Defendants Susana Martinez, Jeremiah Ritchie, Jeffrey S. Lan-ders, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Lon-dene’s Reply in Support of Their Motion For Stay of Discovery Pending Qualified Immunity Rulings at 1, filed December 8, 2016 (Doc. 81)(“Motion to Stay Discovery Reply”). The Court discusses these pleadings in turn.
a. The Motion To Stay Discovery.
The Individual Defendants argue that a stay of discovery is warranted in light of the policies underlying the qualified immunity defense. See Motion to Stay Discovery at 2. The defense, they argue, is “ ‘meant
b. The Plaintiffs’ Response.
The Plaintiffs argue that the policy rationale underlying the principle that qualified immunity issues should be resolved at the “earliest possible stage in litigation,” see Motion to Stay Discovery at 2 (citation omitted), do not apply to the present litigation. See Motion to Stay Discovery Response at 2. Specifically, the Plaintiffs argue the policy urging early resolution of qualified immunity issues is “grounded on the notion that an immune official should not be forced to endure the burdens of the litigation.” Motion to Stay Discovery Response at 2 (citing Anderson v. Creighton,
Finally, the Plaintiffs argue that the ultimate resolution of the Qualified Immunity Motion will require additional discovery. See Motion to Stay Discovery Response at 3. The Plaintiffs note that the Supreme Court in Anderson v. Creighton observed that “the discovery of facts material to the issue of qualified immunity may be necessary before a court’s consideration of a qualified immunity defense may be resolved.” Motion to Stay Discovery Response at 4 (citing
c. The Individual Defendants’ Reply.
The Individual Defendants first emphasize that qualified immunity defenses should be resolved at the “ ‘earliest possible stage in the litigation.’ ” Motion to Stay Discovery Reply at 2. The Individual Defendants argue that this is true even where, as here, there are multiple claims, not all of which can be disposed of on qualified immunity grounds. See Motion to Stay Discovery Reply at 2. The Individual Defendants cite Saenz v. Lovington Muni. Sch. Dist.,
The Individual Defendants also contend that the Plaintiffs’ argument that additional discovery should be permitted to bolster
3. The Motion to Dismiss Count II of the Complaint.
On December 22, 2015, the Individual Defendants moved to dismiss Count II of the Complaint. See Motion to Dismiss Count II at 1. Count II, brought by Ta-lachy in his “personal capacity and on behalf of the enrolled members of the Pueblo,” alleges that the Individual Defendants violated the Plaintiffs’ “right, based on the Supremacy Clause, to engage in activity on the Pueblo’s Indian lands in a manner that is free from state interference.” Complaint ¶ 133, at 34. Talachy seeks a declaratory relief and an injunction barring the “Individual Defendants from taking any action on licenses issued by the [Gaming Board] based on the licensed entity conducting business with the Pueblo” and “from taking any official action, or refraining to take any official action that is based upon the legal status of gaming activity occurring on the Pueblo’s Indian lands.” Complaint ¶¶ D-K. The Plaintiffs submitted a response on January 25, 2016. See Response in Opposition to State Defendants’ Motion to Dismiss Count II of the Plaintiffs [sic] Complaint at 1, filed January 25, 2016 (Doc. 86)(“Motion to Dismiss Count II Response”). The Individual Defendants replied on February 23, 2016. See Defendants’ Reply in Support of Their Motion to Dismiss Count II of Plaintiffs’ Complaint, filed February 23, 2016 (Doc. 97)(“Motion to Dismiss Count II Reply”). The Court will discuss these pleadings briefly, as the arguments made therein are largely dupli-cative of the parties’ earlier filings.
a. The Motion to Dismiss Count II.
The Defendants make four arguments in support of their Motion to Dismiss Count II. First, the Individual Defendants note that the Supremacy Clause, upon which Count II is explicitly based, is “‘not a source of any federal rights’; it ‘secures federal rights by according them priority whenever they come in conflict with state law.’ ” Motion to Dismiss Count II at 6 (quoting Golden State Transit Corp v. Los Angeles,
Second, the Individual Defendants argue that Count II fails to allege facts that would support a claim that the Individual Defendants violated the Plaintiffs’ federal rights, since “no federal law prevents the State of New Mexico from exercising its authority to enforce its gaming laws in the manner alleged in Plaintiffs’ Complaint.”
Third, the Individual Defendants contend that Talachy is an improper plaintiff to bring Count II of the complaint, as he is not a “sovereign[ ], and therefore [has] no rights of sovereigns to engage in gaming ‘free from state interference.’ ” Motion to Dismiss Count II at 11. The Individual Defendants assert that, in the context of a 42 U.S.C. § 1983 claim, “individual tribal officials and members have no independent ownership interest in the [Pueblo’s gaming operations]; they are tribal officers and members attempting to obtain immunity from state laws based upon the sovereign status of the tribe.” Motion to Dismiss Count II at 11-12 (citing Winnebago Tribe v. Kline,
Finally, the Individual Defendants argue that Martinez and Ritchie are entitled to dismissal for additional reason that “the actions of which Plaintiffs complain are not actions taken by either Governor Martinez or Ritchie.” Motion to Dismiss Count II at 12. The Individual Defendants largely repeat the arguments in their Qualified Immunity Motion, discussed supra.
b. The Plaintiffs’ Response.
The Plaintiffs open by disputing the Individual Defendants’ contention that Count II fails to state a cause of action because the Supremacy Clause is not a source of rights. See Motion to Dismiss Count II Response at 2. The Plaintiffs concede that the Supremacy Clause does not create a private right of action, but counter that the “Supreme Court has recently affirmed and recognized the existence of the cause of action set forth in Count II in Armstrong v. Exceptional Child Ctr., Inc., — U.S. -[,
The Plaintiffs’ remaining arguments are largely duplicative of their earlier filings. First, the Plaintiffs argue that the Individual Defendants’ actions are preempted by federal law. See Motion to Dismiss Count II Response at 5. The Plaintiffs refer to and incorporate the preemption arguments in their Motion to Reconsider Response, discussed supra. Next, the Plaintiffs contend that Talachy has standing to bring Count II. The Plaintiffs refer to and incorporate the standing arguments in their Motion to Dismiss Counts III and IV Response, discussed supra. Finally, the Plaintiffs argue that “the allegations against Governor Martinez and Mr. Ritchie are sufficient, on their own, to survive the Motion to Dismiss.” Motion to Dismiss Count II Response at 8. The Plaintiffs replicate the same arguments in their Qualified Immunity Motion Response, discussed supra.
Beginning with the Supremacy Clause issue, the Individual Defendants argue that the Plaintiffs’ contention that Count II states a cognizable claim pursuant to the Court’s equitable power is inaccurate. See Motion to Dismiss Count II Reply at 2. Instead, they argue, Count II is “explicitly ‘based on the Supremacy Clause,’ ” not on the Court’s equitable power. Motion to Dismiss Count II Reply at 2 (quoting Complaint ¶ 133, at 34).
With respect to the preemption issue, the Individual Defendants refer to and incorporate their lengthier analysis in their Qualified Immunity Motion and Motion to Reconsider Reply, discussed supra. The Individual Defendants add that “‘Tribes do not have supersovereign authority to interfere with another jurisdiction’s right to enforce laws within its borders.’ ” Motion to Dismiss Count II Reply at 3 (quoting Muscogee (Creek) Nation v. Pruitt,
The Individual Defendants argue next that Talachy has no standing to bring Count II. Motion to Dismiss Count II Reply at 3. The Individual Defendants refer to and incorporate the arguments made in their Motion to Dismiss Counts III and IV Reply, discussed supra.
Finally, with respect to the allegations against Martinez and Ritchie, the Individual Defendants extend the argument that both individuals are entitled to dismissal, as there is an “absence of fairly direct connection” between their actions and the Gaming Board’s actions. See Motion to Dismiss Count II Reply at 4 (citation and internal quotation marks omitted). The Individual Defendants’ arguments largely resemble the arguments in their Qualified Immunity Motion Reply, discussed supra.
4. The Motion to Dismiss Count V of the Complaint.
On December 22, 2015, the Defendants moved to dismiss Count V of the Complaint. See Motion to Dismiss Count V at 1. Count V seeks unspecified relief against New Mexico and all of the Individual Defendants based on the Individual Defendants’ alleged tortious interference with existing contract relations as “recognized by the courts of the State of New Mexico.” Complaint ¶ 153. The Plaintiffs submitted a response on January 25, 2016. See Response to State Defendants’ Motion to Dismiss Count V of Plaintiffs [sic] Complaint at 1, filed January 25, 2016 (Doc. 89)(“Mo-tion to Dismiss Count V Response”). The Defendants replied on February 23, 2016. See Defendants’ Reply in Support of their Motion to Dismiss Count V of Plaintiffs’ Complaint at 1, filed February 23, 2016 (Doc. 95)(“Motion to Dismiss Count V Reply”). The Court discusses these pleadings in turn.
a. The Motion to Dismiss Count V.
The Defendants make two main arguments in support of their Motion to Dismiss Count V. First, the Defendants argue that New Mexico is “immune from suit in federal court pursuant to the Eleventh Amendment to the United States Constitution.” Motion to Dismiss Count V at 1. The Defendants note that New Mexico has not waived its Eleventh Amendment immunity in this case. See Motion to Dismiss Count Vat 3.
Second, the Defendants argue that, pursuant to the New Mexico Tort Claims Act, N.M.S.A §§ 41-4-1 to -30 (“the NMTCA”), New Mexico and its employees are “immune from liability under state tort liability.” Motion to Dismiss Count V at 1. The Defendants note that, under the NMTCA, “[a] governmental entity and any public employee while acting within the scope of duty are granted immunity from liability
b. The Plaintiffs’ Response.
In response to the Defendants’ Motion to Dismiss Count V, the Plaintiffs agree to the dismissal of Count V “by reason of the State’s assertion of Eleventh Amendment immunity.” Motion to Dismiss Count V Response at 2. The Plaintiffs “concur[] with the Defendants that under these circumstances, this Court lacks jurisdiction to hear Count V.” Motion to Dismiss Count V Response at 2.
c. The Defendants’ Reply.
The Defendants’ reply simply reiterates that “it is uncontested that Count V of the Complaint should be dismissed.” Motion to Dismiss Count V Reply at 1.
LAW REGARDING A DISTRICT COURT’S JURISDICTION WHILE MATTERS ARE ON APPEAL
A district court does not have jurisdiction over issues involved in matters pending appellate review. See Lancaster v. Indep. School Dist. No. 5,
A matter is collateral if it involves different claims against different parties than those claims and parties in a matter pending appellate review. See Int’l Paper Co. v. Whitson,
In the same respect, a motion for a preliminary injunction which involves the same issues as those in a matter pending appeal is not a collateral matter and is beyond the district court’s jurisdiction. See Int’l Bus. Mach. Corp, v. Johnson,
In the Tenth Circuit, one district court has also found that its jurisdiction was divested over a preliminary injunction which involved issues pending appeal. In Mountain Solutions, Inc. v. State Corp. Comm’n of State of Kan.,
LAW REGARDING RULE 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure 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,
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. Ashcroft v. Iqbal,
To survive a motion to dismiss, a plaintiffs 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,
“[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,
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. First, a defendant can argue an affirmative defense on a motion to dismiss where the defendant asserts an immunity defense — the courts handle these cases differently than other motions to dismiss. See Glover v. Gartman,
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,
LAW REGARDING PREEMPTION
Article VI, clause 2, of the Constitution provides that the laws of the United States “shall be the Supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2. Consistent with the Supremacy Clause, the Supreme Court of the United States has “long recognized that state laws that conflict with federal law are ‘without effect.’” Altria Grp., Inc. v. Good,
Pre-emption may be either expressed or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Absent explicit pre-emptive language, we have recognized at least two types of implied pre-emption: field pre-emption, where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, and conflict pre-emption, where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Gade v. Nat’l Solid Wastes Mgmt. Assoc.,
Preemption may be express or implied. See Gade v. Nat’l Solid Wastes Mgmt. Assoc.,
Addressing express preemption requires a court to determine the scope of the preemption. That task entails scrutinizing the preempting words in light of two presumptions. First,
[i]n all pre-emption cases, and particularly in those in which Congress has legislated ... in a field which the States have traditionally occupied, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.
Medtronic, Inc. v. Lohr,
Congress’ intent, of course, primarily is discerned from the language of the preemption statute and the statutory framework surrounding it. Also relevant, however, is the structure and purpose of the statute as a whole, as revealed not only in the text, but through the reviewing court’s reasoned understanding of the way in which Congress intended the _ statute and its surrounding regulatory scheme to affect business, consumers, and the law.
Medtronic, Inc. v. Lohr,
In one of its most recent express preemption decisions, see Bruesewitz v. Wyeth, LLC,
[a] claimant may also recover for unlisted side effects, and for listed side effects that occur at times other than those specified in the Table, but for those the claimant must prove causation. Unlike in tort suits, claimants under the Act are not required to show that the administered vaccine was defectively manufactured, labeled, or designed.
No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.
Implied conflict preemption is found when it is impossible for a private party to comply with both state and federal re
The Supreme Court, in the past, found that implied preemption may take the form of “obstacle” preemption. Crosby v. Nat’l Foreign Trade Council,
serves as a limiting principle that prevents federal judges from running amok with our potentially boundless (and perhaps inadequately considered) doctrine of implied conflict pre-emption based on frustration of purposes — i.e., that state law is pre-empted if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Geier v. Am. Honda Motor Co.,
The Supreme Court has now begun to back away from finding implied preemption based on an alleged conflict with the purposes underlying federal regulations. In 2003, the Supreme Court issued a unanimous decision in Sprietsma v. Mercury Marine,
“it is not impossible for Wyeth to comply with its state and federal law obligations and that Levine’s common-law claims do not stand as an obstacle to the accomplishment of Congress’ purposes in the ( [Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. §§ 301, 321, 331-337, 341-350, 361-364, and 381-399; 21 C.F.R. § 201.80(e)]”).
Wyeth v. Levine,
Of particular import for the current status of implied obstacle preemption is Justice Thomas’ concurring opinion in Wyeth v. Levine, in which he wrote:
I write separately, however, because I cannot join the majority’s implicit endorsement of far-reaching implied preemption doctrines. In particular, I have become increasingly skeptical of this Court’s “purposes and objectives” preemption jurisprudence. Under this approach, the Court routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not embodied within the text of federal law. Because implied pre-emption doctrines that wander far from the statutory text are inconsistent with the Constitution, I concur only in the judgment.
Under the vague and potentially boundless doctrine of purposes and objectives pre-emption ... the Court has preempted state law based on its interpretation of broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not contained within the text of federal law ... Congressional and agency musings, however, do not satisfy the Art. I, § 7 requirements for enactment of federal law and, therefore, do not pre-empt state law under the Supremacy Clause.
Moreover, the Supreme Court has put renewed emphasis on the presumption against preemption. See Wyeth v. Levine,
In Arizona v. United States,
The Tenth Circuit has recognized federal preemption of state law in three categories: (i) when a federal statute expressly preempts state law (“express preemption”); (ii) where Congress intends to occupy a field (“field preemption”); and (iii) to the extent that a state law conflicts with
LAW REGARDING 42 U.S.C. § 1983
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., 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 ....
42 U.S.C. § 1983. Section 1983 creates only the right of action; it does not create any substantive rights; substantive rights must come from the Constitution or federal statute. See Nelson v. Geringer,
[A] plaintiff must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a “person” (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia.
Schaefer v. Las Cruces Public School Dist.,
LAW REGARDING 42 U.S.C. § 1985(3)
Claims under 42 U.S.C. § 1985 are less common than claims under § 1983. Section 1985 pertains to the prohibition of conspiracies which interfere with civil rights. See 42 U.S.C. § 1985. The Supreme Court recognizes “five broad classes of conspiratorial activity” that § 1985 prohibits. Kush v. Rutledge,
To succeed on a § 1985 claim, a plaintiff must prove a conspiracy. See Dixon v. City of Lawton, Okl,
The Tenth Circuit has held that it is error to “precondition consideration of a plaintiffs § 1985(3) claim upon the finding of § 1983 liability.” Dixon v. City of Lawton, Okl.,
Although neither § 1983 nor § 1985(3) create any substantive rights, a § 1983 claim generally describes a substantive violation of a right secured by the Constitution or laws, whereas a § 1985(3) claim generally describes a conspiracy of two or more persons for the purpose of depriving of another of equal protection of the laws or equal privileges and immunities under the laws.
Dixon v. City of Lawton, Okl.,
To state a claim under § 1985(3), a plaintiff must show: (i) a conspiracy, motivated by racially discriminatory animus; (ii) to deprive the plaintiff of equal protection or equal protections of the laws; (iii) an act in furtherance of the conspiracy; and (iv) an injury or deprivation resulting therefrom. See Paris v. Sw. Bell Tel. Co.,
The Tenth Circuit has stated that § 1985(3) was intended “to provide redress for victims of conspiracies impelled by a commingling of racial and political motives.” Brown v. Reardon,
In Martinez v. Martinez, the plaintiff alleged that M. Martinez, her ex-husband, Lynda Latta, her ex-husband’s attorney, and the Honorable Elizabeth Whitefield, the judge who presided over the Mar-tinezes’ divorce in state court, conspired against her to deprive her of her rights guaranteed under the Equal Protection Clause. See
The entirety of the constitutional claims appear to be these:
14. In the Court’s Defendant 4’s [i.e., Judge Whitefield’s] ruling to dismiss this case against Plaintiff first of all is a violation of Federal Rule 60(b)(4) because the Court lacked jurisdiction over the subject matter and that dismissal, for lack of prosecution, which conduct was done as a state actor under color of law by [Judge Whitefield] and in conspiracy with [Ms. Latta] on behalf of [M. Martinez], to achieve these ends. [Ms. Latta] is included in this legal process, entered into knowingly and fraudulently to achieve the illegitimate end of depriving Plaintiff of her due civil rights by [Judge Whitefield’s] void ruling, which rights are afforded by USC 42 §§ 1983 and 1985(3) to a fair hearing of the property as she has attempted to litigate for these last years.
15. [Ms. Latta and Judge Whitefield] are participants with [M. Martinez] and have conspired to keep Plaintiff at bay in obtaining her rights to this undivided property by engaging improper courts and attempts to harass and exhaust Plaintiff of her financial resources ....
17. The Fourteenth Amendment states thus: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law ... And further in the Fifth Amendment “the Bill of Rights protects against abuse of government — the ‘double jeopardy’ clause seems to be applied here, because Plaintiffs same former case 95-2963 was voluntarily dismissed by Plaintiff without prejudice in 2003, and resurrected from the dead improperly by [M. Martinez, Ms. Latta, and Judge Whitefield] on August 28, 2007 by Motion.
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18. [Judge Whitefield] attempts to adjudicate a new dismissal of this same closed case by dismissing it again against Plaintiff for lack of prosecution and would attempt by doing so, to take away her right to adjudicate it elsewhere — this would be a gross violation for Plaintiff from [Judge Whitefield] and finds into the double jeopardy type of thinking easily — a double dismissal, onelegitimate by Plaintiff and one illegitimate (reopened by Defendants by Motion) after this dismissal, and done (the second) with intention by [M. Martinez and Ms. Latta] and especially with the power of [Judge Whitefield], to attempt to deprive Plaintiff of her due process rights of hearing and eliminating her possibility to adjudicate her claim because [Judge Whitefield’s] ruling would then be the second dismissal on the basis of lack of prosecution which then adjudicates a case and it could not be brought again by this Plaintiff.
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,
Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents,403 U.S. 388 ,91 S.Ct. 1999 ,29 L.Ed.2d 619 (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 , 638,107 S.Ct. 3034 ,97 L.Ed.2d 523 (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 , 818,102 S.Ct. 2727 ,73 L.Ed.2d 396 (1982). That means a court can often avoid ruling on the plaintiffs 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 dismiss the claim for money damages. The court need never decide whether the plaintiffs claim, even though novel or otherwise unsettled, in fact has merit.
Camreta v. Greene,
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,
1. Procedural Approach to Qualified Immunity.
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. 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.”
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
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. Sch. Dist.,
“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,
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 violates that right.” Ashcroft v. al-Kidd,
The Tenth Circuit held in Kerns v. Bader 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.”
LAW REGARDING STAYS
A court has broad discretion in managing its docket, which includes decisions regarding issuing stays for all or part of a proceeding. See Clinton v. Jones,
[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.
Landis v. N. Am. Co.,
The party seeking a stay generally faces a difficult burden. See Clinton v. Jones,
The Tenth Circuit has acknowledged a district court’s discretion in issuing discovery stays. In Cole v. Ruidoso Mun. Sch.,
As a general rule, discovery rulings are within the broad discretion of the trial court. The trial court’s decision on discovery matters will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.
Whether to issue a discovery stay depends greatly on the facts and progress in each case. In S2 Automation LLC v. Micron Technology, Inc., the Court granted in part and denied in part the motion to stay discovery, extend pretrial deadlines, vacate trial setting and for protective order. See
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.”
Exceptions to a state’s Eleventh Amendment immunity are few. See, e.g., Ex parte Young,
Although not properly characterized as an exception to a state’s Eleventh Amendment immunity, the doctrine announced in Ex parte Young,
LAW REGARDING THE NMTCA
The New Mexico Legislature enacted the NMTCA, because it recognized “the inherent unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity.” N.M.S.A. § 41-4-2(A). The New Mexico Legislature also recognized, however,
that while a private party may readily be held liable for his torts within the chosen ambit of his activity, the area within which the government has the power to act for the public good is almost without limit, and therefore government should not have the duty to do everything that might be done.
N.M.S.A. § 41-4-2(A). As a result, it is “declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within
The NMTCA is the
exclusive remedy against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act and no other claim, civil action or proceeding for damages, by reason of the same occurrence, may be brought against a governmental entity or against the public employee or his estate whose act or omission gave rise to the suit or claim.
N.M.S.A. § 4H-17(A). A plaintiff may not sue a New Mexico governmental entity, or its employees or agents, unless the plaintiffs cause of action fits within one of the exceptions to immunity that the NMTCA grants. See Begay v. State,
LAW REGARDING PRELIMINARY INJUNCTIONS.
“It is well settled that a preliminary injunction is an extraordinary remedy, and that it should not be issued unless the movant’s right to relief is clear and unequivocal.” Kikumura v. Hurley,
“[T]he limited purpose of a preliminary injunction ‘is merely to preserve the relative positions of the parties until a trial on the merits can be held ....’” Schrier v. Univ. of Colo.,
“[I]n an action for money damages, the district court does not have the power to issue a preliminary injunction .... ” United States ex rel. Rahman v. Oncology Assocs.,
LAW REGARDING MOTIONS TO RECONSIDER INTERLOCUTORY ORDERS
Except where the Federal Rules of Civil Procedure specify, motions to reconsider fall into three categories:
(i) a motion to reconsider filed within [twenty-eight] days of the entry of judgment is treated as a motion to alter or amend the judgment under rule 59(e); (ii) a motion to reconsider filed more than [twenty-eight] days after judgment is considered a motion for relief from judgment under rule 60(b); and (in) a motion to reconsider any order that is not final is a general motion directed at the Court’s inherent power to reopen any interlocutory matter in its discretion. See Price v. Philpot, 420 F.3d 1158 , 1167 & n.9 (10th Cir. 2005).
Pedroza v. Lomas Auto Mall, Inc.,
Considerable confusion exists among the bar regarding the proper standard for a district court to apply when ruling on a motion to reconsider one of its prior “interlocutory” or “interim” orders, i.e., an order that a district court issues while the case is ongoing, as distinguished from a final judgment. This confusion originates from the fact that the Federal Rules of Civil Procedure do not mention motions to reconsider, let alone set forth a specific procedure for filing them or a standard for analyzing them. A loose conflation in terminology in Servants of the Paraclete v. Does, which refers to rule 59(e) motions— “motion[s] to alter or amend a judgment” — as “motions to reconsider,” compounded that baseline confusion. Fed. R. Civ. P. 59(e) (emphasis added); Servants of the Paraclete v. Does,
Final judgments are different from interlocutory orders. See Fed. R. Civ. P. 54(a) (“ ‘Judgment’ as used in these rules includes a decree and any order from which an appeal lies.”)(emphasis added). In addition to ripening the case for appeal, see 28 U.S.C. § 1291 (“The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts .... ”), the entry of final judgment narrows the district court’s formerly plenary jurisdiction over the case in three ways. First, for the first twenty-eight days after the entry of judgment, when the court can entertain motions under rules 50(b), 52(b), 59, and 60, the district court’s jurisdiction trumps that of the Court of Appeals. See Fed. R. App. P. 4(a)(4)(B). Even if a party flies a notice of appeal, the Court of Appeals will wait until after the district court has ruled on the post-judgment motion to touch the case. See Fed. R. App. P. 4(a)(4)(B). Second, after twenty-eight days, when the court may consider motions under rule 60, if a party has filed a notice of appeal, the Court of Appeals’ jurisdiction trumps the district court’s, and the district court needs the Court of Appeals’ permission even to grant a rule 60 motion. Third, after twenty-eight days, if no party has filed a notice of appeal, district courts may consider motions under rule 60.
Final judgments implicate two important concerns militating against giving district courts free reign to reconsider their judgments. First, when a case is not appealed, there is an interest in finality. The parties and the lawyers expect to go home, quit obsessing about the dispute, and put the case behind them, and the final judgment — especially once the twenty-eight day window of robust district court review and the thirty-day window of appeal have both closed — is the disposition upon which they are entitled to rely. Second, when a case is appealed, there is the need for a clean jurisdictional handoff from the district court to the Court of Appeals. “[A] federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simulta
The Court of Appeals needs a fixed record on which to base its decisions — especially given the collaborative nature of appellate decisionmaking — and working with a fixed record requires getting some elbow room from the district court’s continued interference with the case. The “touchstone document” for this jurisdictional handoff is the notice of appeal, not the final judgment, see Griggs v. Provident Consumer Discount Co.,
Basically, rather than suddenly divesting the district court of all jurisdiction over the case — potentially resulting in the district court being unable to rectify easily fixable problems with the final judgment before the case goes to the Tenth Circuit, or even requiring appeal of a case that might otherwise not need to be appealed— the Federal Rules set forth a jurisdiction phased de-escalation process, wherein the district court goes from pre-final judgment plenary jurisdiction, to limited review for the first twenty-eight days post-final judgment, and, finally, to solely rule 60 review after twenty-eight days. In defining the “limited review” that rule 59(e) allows a district court to conduct in the 28-day flux period, the Tenth Circuit, in Servants of the Paraclete v. Does, incorporated traditional law-of-the-case grounds — the same grounds that inform whether a court should depart from an appellate court’s prior decision in the same case — into rule 59(e). See United States v. Alvarez,
Neither of these concerns — finality nor jurisdictional overlap — is implicated when a district court reconsiders one of its own interlocutory orders. The Federal Rules do not specifically mention motions to reconsider interlocutory orders, but rule 54(b) makes the following open-ended proclamation about their mutability:
When an action presents more than one claim for relief — whether as a claim, counterclaim, crossclaim, or third-party claim — or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.
Fed. R. Civ. P. 54(b) (emphases added). Rule 54(b) thus (i) provides that a district court can freely reconsider its prior rulings; and (ii) puts no limit or governing standard on the district court’s ability to do so, other than that it must do so “before the entry of judgment.” Fed. R. Civ. P. 54(b).
The Tenth Circuit has not cab-ined district courts’ discretion beyond what rule 54(b) provides: “[District courts generally remain free to reconsider their earlier interlocutory orders.” Been v. O.K. Indus.,
The best approach, in the Court’s eyes, is to analyze motions to reconsider differently depending on three factors. Cf. Been v. O.K. Indus., Inc.,
Second, the Court should consider the case’s overall progress and posture, the motion for reconsideration’s timeliness relative to the ruling it challenges, and any direct evidence the parties may produce, and use those factors to assess the degree of reasonable reliance the opposing party has placed in the Court’s prior ruling. See 18B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Vikram David Amar, Richard D. Freer, Helen Hershkoff, Joan E. Steinman & Catherine T. Struve, Federal Practice & Procedure § 4478.1 (2d ed.) (“Stability becomes increasingly important as the proceeding nears final disposition .... Reopening should be permitted, however, only on terms that protect against reliance on the earlier ruling.”). For example, if a defendant (i) spends tens of thousands of dollars removing legacy computer hardware from long-term storage; then (ii) obtains a protective order in which the Court decides that the defendant need not produce the hardware in discovery; then (iii) returns the hardware to long-term storage, sustaining thousands more in expenses; and (iv) several months pass, then the plaintiffs should face a higher burden in moving the Court to reconsider its prior ruling that they faced in fighting the motion for protective order the first time.
Third, the Court should consider the Servants of the Paraclete v. Does grounds. The Court should be more inclined to grant motions for reconsideration if the movant presents (i) new controlling authority — especially if the new authority overrules prior law or sets forth an entirely new analytical framework; (ii) new evidence — especially if the movant has a good reason why the evidence was not presented the first time around; or (iii) a clear indication — one that manifests itself without the need for in-depth analysis or review of the facts — that the Court erred.
These three factors should influence the degree to which the Court restricts its review of a prior ruling, but they do not necessarily mean that the Court should always apply a deferential standard of review. The Court should pause before applying a standard of review to its own interlocutory orders that is more deferential than the standard that the Court of Appeals will apply to it, unless the Court concludes that the alleged error in the prior ruling was harmless, or the party moving for reconsideration waived their right to appeal the alleged error by not raising the appropriate argument. Even in circumstances where the Court concludes that it is insulated from reversal on appeal, there are principled reasons for applying a de novo standard. After all, if the Court was wrong in its earlier decision, then, generally speaking, it is unjust to maintain that result — although the Court should weigh this injustice against any injustice that would result from upending the parties’ reliance on the earlier ruling, which is the balancing test that the three factors above represent.
What the Court means by “restricting its review” is less about applying a deferential standard of review — although that may be appropriate in some circumstances — and more about reducing (i) the depth of the Court’s analysis the second time around — thus conserving judicial resources; and (ii) the impositions that reliti-gation of the prior ruling will impose on the party opposing the motion for reconsideration. The Court should consider the time and expense that the party opposing reconsideration spent in winning the earlier ruling, and should try to prevent that party from having to bear the same impositions again. Basically, even if the Court ultimately analyzes a motion to reconsider
In light of these statements, it is perhaps better to characterize the increased burden that a movant for reconsideration faces as one of production, and not of persuasion. The Court analyzes motions to reconsider by picking up where it left off in the prior ruling — not by starting anew. Parties opposing reconsideration can do the same, and they may stand on whatever evidence and argument they used to win the earlier ruling. Movants for reconsideration, on the other hand, carry the full burden of production: they must persuade the Court, using only the evidence and argument they put before it, that it should change its prior ruling; they must do all of the legwork, and not rely on the Court to do any supplemental fact-finding or legal research; and they must convincingly refute both the counterarguments and evidence that the opposing party used to win the prior ruling and any new arguments and evidence that the opposing party produces while opposing the motion to reconsider. Unlike the motion that produced the prior ruling, a motion to reconsider is not — and is not supposed to be — a fair fight procedurally. The deck is stacked against a movant for reconsideration, and if such a movant hopes to prevail, he or she must have not only a winning legal position, but the work ethic and tenacity to single-handedly lead the Court to his or her way of thinking.
ANALYSIS
1. THE DEFENDANTS’ INTERLOCUTORY APPEAL DOES NOT DIVEST THE COURT OF ALL OF ITS JURISDICTION.
The Plaintiffs contend that the Defendants’ interlocutory appeal of Judge Brack’s October 29, 2015, order granting the Plaintiffs a preliminary injunction divests the Court of its jurisdiction over the matter. See Motion to Stay Proceedings at 2. The Defendants counter that the Court has jurisdiction to proceed on the merits, because interlocutory appeals of preliminary injunctions present an exception to the complete divestiture rule. See Motion to Stay Proceedings Response at 3. Because the Court’s jurisdiction is a prior question to its disposition of the merits, the Court will address this issue first.
“Generally speaking, the filing of an interlocutory appeal divests the district court of jurisdiction.” Anderson Living Trust v. WPX Energy Prod., LLC,
Because the district court retains jurisdiction over only “peripheral matters unrelated to the disputed right,” application of the complete divestiture rule turns on the nature of the defense that is the subject of the appeal. Stewart v. Donges,
In contrast to some interlocutory appeals under 28 U.S.C. § 1292(b) that challenge discrete orders that can be carved out and isolated from the remainder of the case, a motion to dismiss the entire proceeding based on a defense of double jeopardy or qualified immunity cannot be so isolated. If the defense is valid, then no part of the action should proceed against the defendant. In that regard, an interlocutory appeal from an order refusing to dismiss on double jeopardy or qualified immunity grounds relates to the entire action and, therefore, it divests the district court of jurisdiction to proceed with any part of the action against an appealing defendant.
These principles are well-established, yet there are exceptions to the general rule of divestiture. See Free Speech v. Fed. Election Comm’n,
Although a court of appeals may determine whether a claim has been stated as part of the interlocutory appeal, a district court nonetheless retains jurisdiction to dismiss for failure to state a claim pending appeal. [] This power is desirable “both in the interest of expeditious disposition and in the face of uncertainty as to the extent to which the court of appeals will exercise its power.”
Free Speech v. Fed. Election Comm’n,
The Plaintiffs argue that the Tenth Circuit’s analysis in Stewart v. Donges is dis-positive of the Court’s jurisdiction to decide the present motions on the merits. They argue that, because “no party has sought this Court’s certification that Defendants’ appeal is frivolous ... this Court is divested of jurisdiction.” Motion to Stay Proceedings Reply at 2. See Stewart v. Donges,
The Plaintiffs’ arguments are unavailing. The Tenth Circuit’s decision in Free Speech v. Fed. Election Comm’n is on point. Here, as there, the Defendants have moved to dismiss the complaint while an interlocutory appeal from Judge Brack’s October 29, 2015, order granting the Plaintiffs a preliminary injunction is pending at the Tenth Circuit. See Notice of Appeal at 1. In Free Speech v. Fed. Election Comm’n, the Tenth Circuit stated that, in the context of “an appeal from an order granting or denying a preliminary injunction, a district court may [ ] proceed to determine the action on the merits.”
Nonetheless, the Plaintiffs press that Stewart v. Donges remains good law, because Free Speech v. Fed. Election Comm’n “does not even address Donges, much less overrule Donges.” Motion to Stay Proceedings Reply at 2. This fact may well be, but it is immaterial. In Stewart v. Donges, the Tenth Circuit’s analysis of divestiture was limited to interlocutory appeals from the rejection of a double jeopardy or qualified immunity defense. See
Given the above analysis of controlling Tenth Circuit precedent, the Court concludes that the Defendants’ interlocutory appeal of Judge Brack’s preliminary injunction does not divest the Court of jurisdiction to “proceed to determine the action on the merits.” Free Speech v. Fed. Election Comm’n,
Having established its jurisdiction, the Court turns to the merits.
II. THE DEFENDANTS’ REGULATION OF NON-INDIAN, STATE-LICENSED GAMING MANUFACTURER VENDORS DOES NOT VIOLATE THE PLAINTIFFS’ FEDERAL RIGHTS.
The central issue in this litigation is whether the Defendants violated Pojoaque Pueblo’s federal rights by taking actions against non-Indian, state-licensed gaming vendors — potentially impacting Pojoaque Pueblo’s ability to do business with such vendors — based on the Defendants’ determination that the vendors violated New Mexico law by supplying equipment to or receiving proceeds from Class III gaming enterprises conducted by Pojoaque Pueblo in the absence of a gaming compact with New Mexico. The Plaintiffs’ primary argument is that the Defendants’ regulation of these third-party vendors amounts an “assertion of jurisdiction over conduct occurring on Pueblo Indian lands” in violation of Pojoaque Pueblo’s “federal right [under IGRA] to engage in conduct free from the jurisdiction of the State.” Complaint ¶ 145, at 36. In short, the Plaintiffs contend that IGRA preempts the Defendants’ actions. The Plaintiffs also argue that the Defendants’ alleged assertion of jurisdiction over Pojoaque Pueblo’s gaming activities “constitute[s] a violation of the Supremacy Clause” as well as civil rights statutes, including 42 U.S.C. §§ 1983 and 1985. Complaint ¶ 8, at 4.
The Court’s analysis proceeds as follows: First, the Court will discuss the circumstances surrounding IGRA’s enactment and its relevant provisions. Second, the Court will examine IGRA’s preemptive scope and consider whether IGRA preempts the Defendants’ actions here. Finding that the Defendants’ actions do not violate IGRA, the Court will consider whether the Plaintiffs have nonetheless stated a claim for relief for violations of the Supremacy Clause and 42 U.S.C. §§ 1983 and 1985. The Court concludes that the Plaintiffs have failed to establish a violation of Pojoaque Pueblo’s federal rights under any of these provisions.
A. THE INDIAN GAMING REGULATORY ACT.
As sovereign entities, “Indian tribes are subordinate only to the federal government.” Texas v. United States,
IGRA divides gaming activities into three classes. See 25 U.S.C. § 2703(7). Class I gaming — “social games solely for prizes of minimal value” — is subject to exclusive tribal jurisdiction. 25 U.S.C. §§ 2703(6), 2710(a)(1). Class II gaming— bingo and non-banked card games
Under IGRA, Class III gaming is “lawful on Indian lands only if such activities are ... (C) conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State ... that is in effect.” 25 U.S.C. § 2703(8). Absent a gaming compact, 18 U.S.C. § 1166(a) provides that, “for purposes of Federal law, all State laws pertaining to the licensing, regulation, or prohibition of gambling ... shall apply in Indian country in the same manner and to the same extent as such laws apply elsewhere in the State.” In other words, any Class III gaming on tribal lands which does not comport with state law is a federal crime unless it conducted pursuant to a valid compact with the state under IGRA. 18 U.S.C. § 1166(a). “[A] tribe cannot conduct class III gaming on its lands without a compact .... ” Michigan v. Bay Mills Indian Cmty.,
However, just because IGRA provides that Class III gaming activities are lawful only if conducted pursuant to a tribal-state compact, “it does not follow that the states have any authority to regulate Class III gaming in the absence of a compact.” Wyandotte Nation v. Sebelius,
B. IGRA DOES NOT PREEMPT THE DEFENDANTS’ ACTIONS.
The Plaintiffs characterize the Defendants’ actions towards gaming vendors dealing with Pojoaque Pueblo after the expiration of its June 30, 2015, Class III gaming compact with New Mexico as a “wrongful[ ] assertion of] State jurisdiction over gaming activities on the Pueblo’s Indian lands.” Complaint ¶ 8, at 4. IGRA preempts these actions, the Plaintiffs argue, because IGRA has a “broad preemptive scope, especially in the context of state regulatory jurisdiction.” Motion to Reconsider Injunction Response at 3. The Defendants counter that IGRA’s preemptive scope does not extend to New Mexico’s exercise of its police power to regulate non-Indian vendor licensees “with respect to their dealings with non-Indian gaming operators engaged in gaming activities outside Indian lands.” Motion to Reconsider at 15. The measure of IGRA’s preemptive scope is therefore the dispositive issue.
The Court begins its analysis with the “assumption that the historic police powers of the States [are] not to be superseded by [federal law] unless that was the clear and manifest purpose of Congress.” Medtronic, Inc. v. Lohr,
It is incontrovertible that New Mexico’s regulation of gaming activities in the State is an exercise of the State’s historic police powers. See Motion to Reconsider Injunction Response at 9 (noting that Pojoaque Pueblo does not dispute “the State’s ability to use its police powers to regulate gaming on State lands”). “The police power of a state ‘extends to all matters affecting the public health or the public morals.’ ” Stone v. Mississippi,
As discussed at length above, the Tenth Circuit has indicated that congressional intent to preempt state law is “clear and manifest” in three circumstances: (i) when a federal statute expressly preempts state law (“express preemption”); (ii) when Congress intends to occupy a field (“field preemption”); and (iii) to the extent that a state law conflicts with a federal law (“conflict preemption”). Colo. Dept. of Pub. Health and Env’t., Hazardous Materials and Waste Mgmt. Div. v. United States,
The Defendants argue that “IGRA cannot preempt the State’s police power because the Act does not apply outside of Indian country.” Motion to Reconsider at 18. The Defendants rely heavily on the distinction by the Supreme Court of New Mexico in Srader v. Verant between actions to enforce state gaming laws on Indian lands — which IGRA expressly preempts — and regulatory actions taken outside Indian lands. See
The Plaintiffs counter that the pivotal issue is not whether the Gaming Board’s actions are executed off-reservation and targeted solely at non-Indian entities. Rather, according to the Plaintiffs, the relevant inquiry for preemption purposes— that the Supreme Court of New Mexico articulated in Srader v. Verant — is whether the actions that the Defendants took “clearly and substantially involve, regulate or interfere with gaming.” Motion to Reconsider Response at 11 (quoting Srader v.
The Court agrees with the Defendants. Congress enacted IGRA in response to California v. Cabazon Band of Mission Indians, which held that “States lacked any regulatory authority over gaming on Indian lands.” Michigan v. Bay Mills Indian Cmty.,
Here, the Plaintiffs cannot isolate any “clear and manifest” Congressional intent in IGRA to preempt the exercise of state regulatory action outside tribal lands, because manifestation of such intent does
Applying this construction of the statute, the Defendants’ actions are not preempted, because they have taken no regulatory action on Pojoaque Pueblo’s tribal lands. Rather, the Defendants have regulated only “non-Indian manufacturers’ sales of gaming equipment to non-Indian operators off tribal lands.” Motion to Reconsider at 5. Importantly, the Defendants’ actions do not prohibit Pojoaque Pueblo from continuing its gaming operations, nor do they prevent vendors from supplying equipment to Pojoaque Pueblo for such operations. See Motion to Reconsider at 5. In fact, notwithstanding the Defendants’ actions, Pojoaque Pueblo remains “free to continue those activities on the Pueblo’s lands as long as the United States Attorney forbears from enforcing IGRA.” Motion to Reconsider Reply at 5.
Nor do New Mexico’s gaming laws and regulations target Pojoaque Pueblo or its gaming operations. See Motion to Reconsider Reply at 6. Rather, those laws and regulations apply generally to bar vendors from “participating in, supporting and profiting from gaming operations that are illegal under the laws of any jurisdiction.” Motion to Reconsider Reply at 6 (emphasis in original). Specifically, New Mexico law expressly makes it “unlawful for a manufacturer or distributor to ship a gaming device ‘to any destination where possession of gaming devices is illegal.’ ” N.M.A.C. § 15.1.16.12(B)(emphasis added). While it is true that, in this instance, the allegedly illegal gaming operation is being conducted on the Pojoaque Pueblo’s lands, “New Mexico would be equally obligated to take the same enforcement measures if one of the State’s licensees was supplying gaming equipment to an illegal non-Indian operation in another state.” Motion to Reconsider Reply at 6. There, as here, the enforce
In response, the Plaintiffs contend that it is significant that the Defendants’ actions were motivated solely by the “violation of gaming laws occurring on the Pueblo’s Indian lands, not outside of the reservation.” Motion to Reconsider Response at 11-12 (emphasis added). They argue that, “ ‘but for’ the applicants/licensees doing business with the Pueblo, the Defendants would not have taken or threatened any adverse actions against the applicants/licensees.” Motion to Reconsider Response at 13. In short, they contend that the Defendants’ motive “was to disrupt the balance of tribal, federal, and state interests intended by Congress in the passage of IGRA.” Motion to Reconsider Response at 13. Motive, however, is not the test. IGRA does not preempt “motives” or intention, but rather the exercise of state jurisdiction over tribal gaming activities. See S. Rep. No. 100-446, at 6-7 (1988) (“[IGRA] is intended to expressly preempt the field in the governance of gaming activities on Indian lands”). As discussed above, the Defendants have regulated only non-Indian vendors operating outside of Pojoaque Pueblo’s lands — the motivation behind those regulation does not itself establish an actual regulation of Pojoaque Pueblo.
The Plaintiffs press, however, that the Gaming Board’s determination as to the illegality of Pojoaque Pueblo’s gaming activities was itself an improper assertion of jurisdiction that IGRA preempts. See Qualified Immunity Motion Response at 6 (referencing Judge Brack’s admonition that the Gaming Board was “without jurisdiction or authority” to make this determi-nationXquoting Judge Brack’s MOO at *28)(citations omitted). This position is flawed. First, while it is true that IGRA “placets] limits on the application of state laws ... to tribal lands,” Alabama v. PCI Gaming Authority,
The Plaintiffs attempt to circumvent all this analysis by minimizing the significance of the distinction between on- and off-reservation regulatory actions. See Motion to Reconsider Response at 13 (“[Rjegardless of how the actions are characterized, it remains clear that the only activity at issue is the on-reservation activity of the Pueblo”). They argue that the test for IGRA preemption is not whether a state regulates Indian lands directly, but whether state actions ‘“clearly and substantially involve, regulate or interfere with gaming.’ ” Motion to Reconsider Response at 11 (quoting Srader v. Verant,
Preliminarily, IGRA’s text indicates that IGRA preempts only direct regulation of Indian gaming activity. 25 U.S.C. § 2710(d)(3)(C) specifies that Class III gaming compacts “may include provisions relating to — (i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity.” (emphasis added). Hence, absent a compact, a state cannot directly enforce its gaming laws on Indian lands. 25 U.S.C. § 2710(d)(3)(C)(i). Because IGRA has no similar provision authorizing enforcement of state law that is only indirectly related to licensing and regulation of gaming on Indian lands, it follows that Congress did not intend to preempt such laws. Expression unius est
Moreover, the eases that the Plaintiffs cite in support of their “indirect impact” argument almost uniformly involve direct state regulation of gaming activities conducted on tribal land. See, e.g., Am. Legion Post No. 49 v. Hughes,
Indeed, even Srader v. Verant — upon which the Plaintiffs base their indirect impact argument — is inapposite. There, the Supreme Court of New Mexico drew the same on-/off-reservation distinction that the Court now adopts, and held that, although New Mexico could not exercise jurisdiction over gaming on tribal lands, it had the “authority to enforce New Mexico’s laws outside of the reservations” and “the responsibility ... to determine if New Mexico’s existing gaming or other laws were being violated outside of the reservation.” Srader v. Verant,
The Plaintiffs attempt to salvage their indirect impact argument by arguing that IGRA preempts New Mexico’s actions because they affect Pojoaque Pueblo’s “governance of gaming.” See S. Rep. No. 100-446, at 6-7 (stating that IGRA preempts “the field in the governance of gaming activities on Indian lands”). The Plaintiffs cite Mashantucket Pequot Tribe v. Town of Ledyard, where the Second Circuit held that IGRA did not preempt Connecticut from assessing a tax on non-Indian lessors of slot machines to the Mashantucket Pequot Tribe. See
If anything, New Mexico’s authority to enforce its gaming laws and regulations on its own lands is not limited by any ancillary effects on Pojoaque Pueblo’s gaming operations. The Defendants compare the facts of the present litigation to cases in which the Supreme Court and the Tenth Circuit have upheld “off-Indian country seizure of cigarettes pursuant to state law despite the effect of these seizures on the tribe.” Qualified Immunity Motion at 14-16. See Motion to Reconsider at 23-24. For example, in Muscogee (Creek) Nation v. Pruitt, the Tenth Circuit considered whether the State of Oklahoma had imper-missibly seized, on state land, cigarettes lacking tax stamps being shipped to the Muscogee Nation for sale by Indian dealers.
The foregoing analysis indicates that Congress’ “clear and manifest” intent, Medtronic, Inc. v. Lohr,
The same reasoning guides the Court’s analysis of the remaining inquiry — whether IGRA impliedly preempts the actions of which the Plaintiffs complain. See Gade v. Nat’l Solid Wastes Mgmt. Assoc.,
The Supreme Court recently stated in Arizona v. United States that, “[w]here Congress occupies an entire field, ... even complimentary state regulation is impermissible.”
Unlike the Immigration Reform and Control Act, IGRA does not evince Congressional intent “to preclude States from complimenting] the federal law, or enforce[ing] additional or auxiliary regulations.” Arizona v. United States,
The Court likewise finds that “conflict preemption” does not apply to this case. See Crosby v. Nat’l Foreign Trade Council,
Both impossibility preemption and obstacle preemption are inapplicable here. First, it is not a “physical impossibility” for third-party state licensees to comply with both IGRA and New Mexico law. See Florida Lime & Avocado Growers, Inc. v. Paul,
Finally, notwithstanding all of the above, the Court is mindful that, where there are two plausible interpretations of a statute, the court has “a duty to accept the reading that disfavors pre-emption.” Bates v. Dow Agrosciences, LLC,
In sum, IGRA does not preempt New Mexico’s regulatory actions with respect to non-Indian, state-licensed vendors doing business with non-Indian gaming operators. Consistent with the policies underlying IGRA’s enactment, the Court is mindful of Pojoaque Pueblo’s “inherent sovereign authority” and interests. Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla.,
In the end, this is a fight between two heavy weight sovereigns. Ultimately, New Mexico and Pojoaque Pueblo will have to strike a gaming compact. The Court must keep a steady hand and not give one side more leverage in negotiating than that to which it is entitled, or take away a party’s incentive to negotiate at all by allowing it to win in court what Congress has not given it. If the Court starts putting a thumb on the scale when Congress has not acted, it runs the risk of upsetting the careful balance that Congress has created.
C. THE DEFENDANTS DID NOT VIOLATE THE PLAINTIFFS’ FEDERAL RIGHTS UNDER THE SUPREMACY CLAUSE.
The Plaintiffs argue that New Mexico’s alleged assertion of “jurisdiction over gaming activities on the Pueblo’s Indian lands ... constitute^] a violation of the Supremacy Clause .... ” Complaint ¶ 8, at 4. Count II of the Complaint seeks declaratory and injunctive relief for violation of the Plaintiffs’ “right, based on the Supremacy Clause, to engage in activity on the Pueblo’s Indian lands in a manner that is free from state interference.” Complaint ¶ 133, at 34. In response, the Defendants argue that the Supremacy Clause is “ ‘not a source of any federal rights.’ ” Qualified Immunity Motion at 8 (citation omitted); Motion to Dismiss Count II at 6 (citation omitted). Accordingly, the Court must determine whether the Plaintiffs have asserted a cognizable claim for relief under the Supremacy Clause.
The Supremacy Clause, Art. VI, cl. 2., provides that the laws of the United States “shall be the Supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” The Supreme Court has clarified that the Supremacy Clause “ ‘is not a source of any federal rights’ ”; it simply “ ‘secures federal rights by according them priority whenever they come into conflict with state law.’ ” Golden State Transit Corp. v. Los Angeles,
Despite this limitation, the Plaintiffs argue that the “Supreme Court has recently affirmed and recognized the existence of the cause of action set forth in Count II in Armstrong v. Exceptional Child Ctr., Inc.,” Motion to Dismiss Count II Response at 2. In Armstrong v. Exceptional Child Ctr., Inc., the Supreme Court observed that, although the Supremacy Clause does not create a private right of action, • “if an individual claims federal law immunizes him from state regulation, the court may issue an injunction upon finding the state regulatory actions preempted.”
The Court declines this invitation. It is indeed true that
A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve.
Shaw v. Delta Air Lines, Inc.,
Thus, Count II fails to state a claim that the Defendants have violated Pojoaque Pueblo’s federal rights “based on the Supremacy Clause,” as one does not exist. Accordingly, the Court grants the Motion to Dismiss Count II.
D. THE DEFENDANTS DID NOT VIOLATE THE PLAINTIFFS’ FEDERAL RIGHTS UNDER 42 U.S.C. § 1983.
The Plaintiffs argue that the Individual Defendants are “wrongfully asserting State jurisdiction over gaming activities on the Pueblo’s Indian lands ... in violation of 42 U.S.C. § [] 1983 ....” Complaint ¶¶ 138-140, at 35. Count III of the Complaint seeks prospective equitable relief for this alleged violation. See Complaint ¶ 142, at 35. Count IV seeks money damages for the Individual Defendants’ alleged deprivation of Pojoaque Pueblo’s and Talachy’s “federal right to engage in conduct free from the jurisdiction of the state ... in violation of 42 U.S.C. § [] 1983.” Complaint ¶¶ 143-151. The Individual Defendants counter that, because 42 U.S.C. § 1983 does not “confer any rights,” the Court should dismiss Counts and III and IV. Motion to Dismiss Counts III and IV at 8.
Section 1983 “imposes liability on anyone who, under color of state law, deprives a person of any rights, privileges, or immunities secured by the Constitution and laws.” Blessing v. Freestone,
Here, Counts III and IV identify no cognizable federal or constitutional rights the Individual Defendants violated. See Complaint ¶¶ 135-151, at 34-37. Count III states that the Individual Defendants “wrongfully assert[ed] State jurisdiction over gaming activities on the Pueblo’s Indian lands.” Complaint ¶¶ 138, at 35. Count IV states that the Individual Defendants violated the Plaintiffs’ “federal right to engage in conduct free from the jurisdiction of the state.” Complaint ¶¶ 145, at 36. To the extent these claims can be read to assert a violation of a “right[] based on the Supremacy Clause,” Complaint ¶ 133, at 34, that argument is unavailing, because the Supremacy Clause “is not a source of any federal rights,” as discussed supra. Golden State Transit Corp. v. Los Angeles,
Even assuming that IGRA preempts the Individual Defendants’ actions, the Plaintiffs do not identify a federal right that is cognizable under § 1983. The Supreme Court has stressed that a plaintiff seeking redress pursuant to § 1983 “must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone,
E. THE DEFENDANTS DID NOT VIOLATE THE PLAINTIFFS’ FEDERAL RIGHTS UNDER 42 U.S.C. § 1985.
Counts III and IV of the Complaint also assert that the Individual Defendants’ actions violated the Plaintiffs’ rights under 42 U.S.C. § 1985. See Complaint ¶¶ 140, at 35; id. ¶150, at 36. This allegation is no more compelling than the Plaintiffs’ alternative § 1983 claim in Counts III and IV. See Complaint ¶¶ 140, at 35; id. ¶150, at 36.
As with § 1983, the Supreme Court has held that § 1985 “creates no rights.” Great Am. Fed. Sav. & Loan Ass’n v. Novotny,
Here, the Plaintiffs allege a conspiracy by the Individual Defendants to “force the Pueblo to acquiesce to the [sic] Governor Martinez’ demands that the Pueblo execute a compact that contains terms that are illegal and not the product of good faith negotiation under IGRA.” Complaint ¶ 81, at 24. The Plaintiffs do not allege, however, that the conspiracy involved any racial or class-based “invidiously discriminatory animus.” Bray v. Alexandria Women’s Health Clinic,
III. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY.
Count TV seeks money damages for the Individual Defendants’ alleged wrongful assertion of jurisdiction over Pojoaque Pueblo’s gaming activities. See Complaint ¶ 145, at 36. The Plaintiffs argue that the Individual Defendants’ actions deprive “Talachy and the individual members [of Pojoaque Pueblo] of their federal right to engage in conduct free from the jurisdiction of the State.” Complaint ¶ 145, at 36. The Individual Defendants move to dismiss Count IV on the basis of qualified immunity. See Qualified Immunity Motion at 1. The Court heard oral arguments on the matter on January 12, 2016. See Transcript of Motion Proceedings held on January 12, 2016 (Doc. 91)(“QI Hearing”). At the hearing, the Court indicated its intent to grant the Qualified Immunity Motion. See QI Hearing at 116:15-24 (“I’m going to
Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
This is not a case where it is “far from obvious whether in fact there is [a constitutional] right” that was violated. Saucier v. Katz,
Even if, however, the Individual Defendants violated Pojoaque Pueblo’s constitutional rights, the Court is not persuaded that those rights were “clearly established” at the time of the Individual Defendants’ actions. Saucier v. Katz,
The Individual Defendants contend that the Plaintiffs “have no authority” that the alleged illegality of their actions is clearly established. Qualified Immunity Motion at 20. The Court agrees. The Complaint cites no cases holding that an Indian tribe has a federal right pursuant to IGRA, the Supremacy Clause, or 42 U.S.C. §§ 1983 or 1985 that a state’s exercise of jurisdiction over non-Indian vendors dealing with non-Indian gaming operators would violate. See generally Complaint. Nor do the Plaintiffs’ subsequent pleadings, reviewed supra, present any authority that the Individual Defendants’ actions violated any federal rights in this context. See, e.g., Qualified Immunity Motion Response at 4-7. In short, the Plaintiffs have not established that any “existing precedent [] placed the statutory or constitutional question beyond debate.” Reichle v. Howards,
In response, the Plaintiffs argue that Judge Brack’s MOO held that the Individual Defendants violated a clearly established federal right and that his reasoning “compels denial of [the] Motion to Dismiss.” Qualified Immunity Motion Response at 6. The Plaintiffs quote Judge Brack’s statement that the Individual Defendants’ actions are “ ‘based, quite clearly, on Defendants’ own determination that the post-June 30, 2015 Class III gaming at the Pueblo is illegal — a determination that the Defendants, just as clearly, are without jurisdiction or authority to make.’ ” Qualified Immunity Motion Response at 6 (quoting Judge Brack’s MOO at *28).
This reasoning is flawed. First, “‘the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at the trial on the merits.’ ” Navajo Health Found. v. Burwell,
At a minimum, the law was not clearly established, because the distinction between on- and off-reservation regulatory actions “might make a constitutional difference.” Kerns v. Bader,
In short, the Plaintiffs have failed to demonstrate that the Individual Defendants violated the Plaintiffs’ “clearly established” federal rights. Even if the Tenth Circuit concludes that the Individual Defendants’ regulation of non-Indian state licensees violates the Plaintiffs’ rights— which it does not — the Plaintiffs have not demonstrated that existing precedent “placed the statutory or constitutional question beyond debate.” Reichle v. Howards,
IV. THE DEFENDANTS ARE NOT ENTITLED TO A STAY OF DISCOVERY.
The Individual Defendants move the Court to stay discovery pending the Court’s ruling on the Qualified Immunity Motion. See Motion to Stay Discovery at 1. They argue that, once a defendant has raised the qualified immunity defense, “ ‘discovery should not be allowed.’ ” Motion to Stay Discovery at 2 (quoting Harlow v. Fitzgerald,
As a general rule, “discovery rulings are within the broad discretion of the trial court.” Cole v. Ruidoso Mun. Sch.,
Unique policy considerations inform a court’s decision to grant or deny a motion to stay discovery in the context of a qualified immunity defense. See Behrens v. Pelletier,
Notwithstanding these considerations, whether to issue a discovery stay remains a fact-specific inquiry. For example, the Court has declined to grant a stay where it would ultimately be “unnecessary,” because the parties had made “significant progress on the disputed matters,” and the Court had “issued rulings on many of the motions” in the case. S2 Automation LLC v. Micron Technology, Inc.,
Given the facts and progress of this case, the Court concludes that a stay of discovery would serve no purpose. While it is true that discovery should normally be stayed pending the resolution of a qualified immunity defense, see Harlow v. Fitzgerald,
Accordingly, in light of the Court’s ruling on the Qualified Immunity Motion, the Court exercises its “broad discretion” with respect to discovery rulings, Cole v. Ruidoso Mun. Sch.,
V. NEW MEXICO IS ENTITLED TO DISMISSAL ON THE BASIS OF ELEVENTH AMENDMENT SOVEREIGN IMMUNITY.
New Mexico is named as a Defendant in this action. See Complaint ¶ 1, at 1. The Complaint seeks relief against New Mexico in Count I (for failure to negotiate a Class III gaming compact in good faith), see Complaint ¶ 127-31, at 33, and Count V (tortious interference with existing contract relations), see Complaint ¶ 152-53, at 37. In their September 25, 2015, PI Motion, the Plaintiffs also sought preliminary injunctive relief against New Mexico pursuant to Counts II, III, and IV. See PI Motion at 18-20. Judge Brack’s October 7, 2015, preliminary injunction includes New Mexico as an enjoined party. See Preliminary Injunction by District Judge Robert C. Brack at 1. New Mexico asserts sovereign immunity as an affirmative defense under the Eleventh Amendment and moves the Court “to remove the State as
The Eleventh Amendment prohibits suits “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.”
In IGRA § 2710(d)(7), Congress provided an “unmistakably clear” statement of its intent to abrogate state sovereign immunity. Seminole Tribe of Fla. v. Florida,
New Mexico is also entitled to sovereign immunity from the remainder of the claims in the Plaintiffs’ Complaint. See Port Auth. Trans-Hudson Corp. v. Feeney,
Accordingly, the Court will grant New Mexico’s request to modify the October 7, 2015, preliminary injunction and remove New Mexico as an enjoined party, when it has jurisdiction to do so.
VI. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO DISMISSAL OF COUNT V ON THE BASIS OF IMMUNITY UNDER NEW MEXICO LAW.
Count V of the Plaintiffs’ Complaint seeks unspecified relief for the Defendants’ alleged tortious interference with existing contractual relations. See Complaint ¶¶ 152-53, at 37. As discussed supra, New Mexico is entitled to dismissal of all claims against it, including Count V, on the grounds of Eleventh Amendment sovereign immunity. See Motion to Dismiss Count Y at 3. The Individual Defendants also seek dismissal of Count V on the grounds of immunity under the New Mexico Tort Claims Act, N.M.S.A §§ 41-4-1 to -30 (“the NMTCA”). Motion to Dismiss Count V at 1.
Under the NMTCA, New Mexico and its officers and employees enjoy immunity from state tort liability. See N.M.S.A §§ 41-4-1 to -30. The NMTCA provides: “A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by the New Mexico Religious Freedom Restoration Act [28-22-1 N.M.S.A. 1978] and by Sections 4H-5 through 41-4-12 N.M.S.A. 1978.” NMTCA § 41-4-4. The NMTCA defines “[s]cope of duty” to include “any
New Mexico “recognizes a cause of action for tortious interference with contractual relations.” El Dorado Utils., Inc. v. Eldorado Area Water and Sanitation Dist.,
VII. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO AN ORDER SUSPENDING THE PRELIMINARY INJUNCTION.
The Defendants move the Court to stay or suspend Judge Brack’s October 7, 2015, preliminary injunction pursuant to Rule 62(c) of the Federal Rules of Civil Procedure and Rule 8(a)(1) of the Federal Rules of Appellate Procedure. See Motion to Stay Injunction at 1. The Defendants argue that Judge Brack’s ruling “misapprehended the State’s position” and failed to account for New Mexico’s sovereign interest in enforcing its gaming laws outside of tribal lands. See Motion to Stay Injunction at 4. In particular, the Defendants argue that the “preliminary injunction is premised on a clearly erroneous conclusion that IGRA preempts New Mexico’s exercise of its police power over state-licensed non-Indian gaming equipment manufacturers dealing with state-licensed non-Indian gaming operators outside Indian lands.” Motion to Stay Injunction Reply at 2. In response, the Plaintiffs argue that IGRA preempts the Defendants’ actions, that Pojoaque Pueblo’s Class III gaming operations are not illegal, and that the Defendants fail to establish error in Judge Brack’s ruling. See Motion to Stay Injunction Response at 2-18.
The Court’s analysis begins with its authority to stay or suspend a preliminary injunction. Different Rules of Procedure govern district courts’ and courts of appeals’ power to stay an order pending appeal. See Fed. R. Civ. Proc. 61(c); Fed. R. App. Proc. 8(a). Rule 61(c) of the Federal Rules of Civil Procedure provides: “While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing par
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Hilton v. Braunskill,
Courts have long recognized that the same legal standards that govern stays of injunctions under Rule 62(c) also govern grants of injunctions pursuant to Rule 65. See, e.g., Hilton v. Braunskill,
The Defendants appeal to the Court to apply the foregoing analytical framework and stay the preliminary injunction, which “was predicated on an erroneous determination of the likelihood of success on the merits.... ” Motion to Stay Injunction at 2-3. The Defendants argue that likelihood of success should be the controlling factor in the Court’s analysis, and that “the injunction should be stayed regardless of any consideration of the three other ‘equitable’ factors.” Motion to Stay Injunction at 3. The Plaintiffs do not explicitly contest this formulation of the governing legal standards. See Generally Motion to Stay Injunction Response.
The Court has already concluded, supra, that the Plaintiffs are not likely to succeed on the merits of their claim that underlies the preliminary injunction — that New Mexico violated Pojoaque Pueblo’s federal rights. The Court’s analysis of IGRA’s preemptive scope indicates that the Defendants’ off-reservation regulatory actions, directed towards non-Indian vendor licensees dealing with non-Indian gaming operators, did not violate Pojoaque Pueblo’s federal rights under IGRA. The Court’s analysis also indicates that the Defendants did not violate Pojoaque Pueblo’s rights under the Supremacy Clause, or pursuant to 42 U.S.C. §§ 1983 or 1985. Simply put, the Plaintiffs have not made a “strong showing” that they are likely to succeed on
The Plaintiffs’ principal response is that the Defendants improperly determined that Pojoaque Pueblo’s Class III gaming in the absence of a compact is illegal. See Motion to Stay Injunction at 2. The Court has already dealt with this argument, supra. Under IGRA, “a tribe cannot conduct class III gaming on its lands without a compact .... ” Michigan v. Bay Mills Indian Cmty.,
The Plaintiffs contend, however, that, in light of the Supreme Court’s holding in Seminole Tribe v. Florida, which found that Congress lacked Constitutional authority to subject non-consenting states to suit by Indian tribes under IGRA, the Court should “reevaluate” IGRA’s requirement of a state-tribal compact for Class III gaming activities to be legal on Indian lands. Motion to Stay Injunction Response at 3. The Plaintiffs argue that “Seminole Tribe [ ] revealed that IGRA was broken,” and that the Court should invoke severance doctrine to make the statute comport with Congressional intent. Motion to Stay Injunction Response at 3-4. The Plaintiffs discuss — at some length — various Congressional statements that, in the Plaintiffs’ view, reveal that Congress would not have intended to criminalize non-compacted Class III gaming absent the ability of a tribe to sue a state for failing to negotiate a compact in good faith. See Motion to Stay Injunction Response at 3-16. The Plaintiffs propose that the Court sever IGRA’s requirement that a state be found to have acted in bad faith before IGRA’s remedies apply, and add a provision for a mediator to be appointed to select a compact proposed by the tribe. See Motion to Stay Injunction Response at 13-14. In the Plaintiffs’ version of the statute, a state would have the choice of either consenting to the tribe’s proposed compact or being subjected to secretarial procedures based on the tribe’s compact. See Motion to Stay Injunction Response at 13-14. According to the Plaintiffs, if a compact could not be negotiated, tribes would be free to conduct gaming “in a State in which gambling devices are legal.” See Motion to Stay Injunction Response at 15.
In effect, the Plaintiffs appeal to the Court to rewrite IGRA so that Pojoaque Pueblo’s Class III gaming operations in the absence of a compact are no longer considered “illegal” under the statute. See Motion to Stay Injunction Response at 15. But this request entirely misses the point with respect to the present motion to stay the preliminary injunction. Severing the allegedly offending language in the statute does nothing to demonstrate the Plaintiffs’ likelihood of success on the merits at trial — it would merely sanction Pojoaque Pueblo’s present Class III gaming operations. Likelihood of success, however, turns on whether the Defendants’ regulatory actions violated the Plaintiffs’ rights at the time they occurred. Mid-litigation sanctioning of the Plaintiffs’ gaming operations does not demonstrate this; and it certainly does not amount to a “strong showing” that the Plaintiffs are likely to
In any event, the Court declines to engage in severance analysis in these circumstances. IGRA contains an express severability clause. See 25 U.S.C. § 2721. The Supreme Court has indicated that “the inclusion of such a clause creates a presumption that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision.” Alaska Airlines, Inc., v. Brock,
IGRA does not currently have the best means of breaking negotiation impasses, but most states and tribes are working out compacts, and state and tribal gaming are coexisting with the suit-against-the-state mechanism missing. There is no sound reason to toss out the rest of the statute. Perfection should not be the enemy of the working. The negotiation process is a bit messy, but is not so intolerable that the political branches cannot stand the current state.
In light of the above, the Plaintiffs have not made a “strong showing” that they are likely to succeed on the merits of their claim. Hilton v. Braunskill,
VIII. THE COURT GRANTS IN PART AND DENIES IN PART THE REQUEST TO VACATE AND/OR MODIFY THE PRELIMINARY INJUNCTION
During the pendency of an appeal from a preliminary injunction, a court cannot grant relief regarding the preliminary injunction that divests the appellate court of its jurisdiction by eliminating or materially altering the controversy. See Ortho Pharm. Corp. v. Amgen, Inc.,
Pursuant to Rule 62.1 of the Federal Rules of Civil Procedure, however, the Court indicates that it would dissolve or vacate the preliminary injunction if the Defendants dismiss the appeal and/or the Tenth Circuit remands the case for the Court’s consideration.
Accordingly, the Court denies the Motion to Reconsider Injunction without prejudice to be renewed if the appeal is remanded. The Court grants the request, however, in the Motion to Reconsider Injunction to issue an indicative ruling that it will dissolve or vacate the preliminary injunction if it is remanded for the Court’s consideration.
IX. THE COURT GRANTS THE SUPPLEMENTAL BRIEFING MOTION.
Because the Court needs as much education as possible on this topic, the Court grants the Supplemental Briefing Motion.
IT IS ORDERED that: (i) Defendants Susana Martinez, Jeremiah Ritchie, Jeffrey S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londone’s Motion to Dismiss Count IV on the Basis of Qualified Immunity, filed December 4, 2015 (Doc. 60), is granted; (ii) Defendants Susana Martinez, Jeremiah Ritchie, Jeffry [sic] S. Landers, Salvatore Maniaci, Paulette Becker, Robert M. Doughty III, and Carl E. Londene’s Motion for Stay of Discovery Pending Qualified Immunity Rulings, filed December 4, 2015 (Doc. 61), is denied; (iii) the Defendants’ Motion to Stay or Suspend the Court’s October 7, 2015 Preliminary Injunction, filed December 18, 2015 (Doc. 64), is granted; (iv) the Defendants’ Motion to Reconsider and Either Vacate or Modify the Court’s October 7, 2015 Preliminary Injunction, and for Relief Pursuant to Fed. R. Civ. P. 62.1, filed December 18, 2015 (Doc. 65), is granted in part and denied in part; (v) Defendant State of New Mexico’s Motion to Modify October 7, 2015 Preliminary Injunction and to Dismiss Defendant State of New Mexico Based on the State’s Eleventh Amendment Sovereign Immunity, filed December 22, 2015 (Doc. 69), is granted in part and denied in part; (vi) the Defendants’ Motion to Dismiss Counts III and IV of the Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 71), is granted; (vii) the Defendants’ Motion to Dismiss Count II of Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 72), is granted; (viii) the Defendants’ Motion to Dismiss Count V of Plaintiffs’ Complaint, filed December 22, 2015 (Doc. 73), is granted; (ix) the Pueblo’s Motion to Stay Proceedings Pending Defendants’ Interlocutory Appeal of Order Issuing Preliminary Injunction, filed February 17, 2016 (Doc. 93), is denied; and (x) the Pueblo’s Motion for Leave to Submit Supplemental Brief in Support of Pueblo’s Motion to Stay Proceedings Pending Defendants’ Interlocutory Appeal of Order Issuing Preliminary Injunction, filed March 29, 2016 (Doc. Ill), is granted. The case is hereby dismissed. The claims against Defendant State of New Mexico are dismissed without prejudice, and the claims against all other Defendants are dismissed with prejudice.
Notes
. In its Memorandum Opinion and Order,
. In its Memorandum Opinion and Order,
.IGRA, 25 U.S.C. §§ 2701-2721, “divides gaming into three (3) classes whereby regulatory oversight varies depending on the type of activity.” Complaint ¶ 26, at 9. Class III gaming includes slot machines and house-banked table games, which are subject to stricter regulatory requirements. See Complaint ¶ 26 at 9.
. Terrence "Mitch” Bailey is the Executive Director of Gaming Operations of Pojoaque Pueblo’s gaming enterprises at Buffalo Thunder Resort & Casino, and Cities of Gold Casino. See Bailey Decl. ¶ 1, at 1. Bailey is not a party to this action.
. In its Contempt MOO disposing of the Plaintiffs’ Motion for Order to Show Cause Re Civil Contempt, filed November 19, 2015 (Doc. 53)("Contempt Motion”), the Court noted that "[t]he Gaming Board [] approved thirty-four out of thirty-six applications for companies not doing business with Pojoaque Pueblo.” Contempt MOO at * 12. The Court referred to the Contempt Motion for this calculation, noting that the Gaming Board did not dispute the Pojoaque Pueblo's calculation in its response. See Contempt MOO at 12. The Contempt Motion concludes, however — although not explicitly — that the Gaming Board approved twenty-one out of thirty-six applications:
To summarize, the [Gaming Board] approved all of the thirty-six (36) applications for consideration at the October 21, 2015 meeting with the exception of one (1) application for a company not doing business with the gaming operations of the Pueblo being deferred for a limited one-month period and one (1) application for a company not doing business with the gaming operations of the Pueblo being subject to an unexplained no-vote; and thirteen (13) applications for business and principles or officers of companies doing business with the gaming operations of the Pueblo being deferred without a date for future consideration.
Contempt Motion II7, at 7. Unfortunately, this does not end the matter. The numbers in the Contempt Motion to reach this calculation— upon which the Court relied — do not support the conclusion that twenty-one out of thirty-six applications were approved. See Contempt Motion ¶¶ 4-6, at 6-7. The Contempt Motion states the following:
[T]he [Gaming Board] had on its agenda ten (10) gaming licenses renewals .... Five (5) of the six (6) renewals for companies not doing business with the Pueblo were approved. One (1) of the six (6) renewals for companies not doing business with the Pueblo was deferred .... The four (4) renewals for companies doing business with the Pueblo were deferred ....
Contempt Motion ¶ 4, at 6. See also Contempt MOO at*10 (citing the same numbers).
[T]he [Gaming Board] had on its agenda ten (10) new applications for a certification of finding of suitability .... The seven (7) applications for individual principals or officers of companies not doing business with the Pueblo were approved. The three (3) applications for principals or officers of companies doing business with the Pueblo were deferred ....
Contempt Motion ¶ 5, at 6-7. See also Contempt MOO at *10-11 (citing the same numbers). Finally, the Gaming Board
had on its agenda nine (9) renewal applications for certifications of findings of suitability .... Six (6) of the seven (7) applications for individual principals or officers of companies not doing business with the Pueblo were approved .... [N]o vote was taken on one (1) of the seven (7) applications for individual principals or officers of companies -not doing business with the Pueblo. The two (2) applications for principals or officers of companies doing business with the Pueblo were deferred ....
Contempt Motion ¶ 6, at 7. See also Contempt MOO at *11-12 (citing the same numbers). These numbers indicate that a total of twenty-nine applications — not thirty-six — were considered at the meeting. With respect to companies not doing business with Pojoaque Pueblo, eighteen applications — not thirty-four or twenty-one — were approved, one was deferred, and one was not voted on. Nine applications — not thirteen — were submitted by companies doing business with Pojoaque Pueblo, and all nine were deferred.
Based on these data, the Court revises its earlier calculations to reflect that: (i) twenty-nine applications were considered at the meeting; (ii) eighteen applications submitted by companies not doing business with Poj-
. See Discussion, supra note 6.
. See Discussion, supra note 6.
. The Individual Defendants' allegedly wrongful actions, discussed supra, include: (i) requesting information from Pojaque Pueblo regarding its Class III gaming vendors; (ii) stating to the press that Mr. Martinez’ decision to withhold enforcement action against Pojaoque Pueblo for conducting Class III gaming without a compact "provides no protection to banks, credit card vendors, gaming machine vendors, bondholders, and others that are now doing business with an illegal gaming enterprise”; (iii) holding a closed meeting and then announcing that Pojoaque Pueblo "is acting illegally in its continued operation of its Class III gaming activities” and “placing] in abeyance approval of any license application or renewal for the Pueblo's vendors” when "[n]o other applications were placed in abeyance”; and (iv) announcing the Gaming Board’s intention to "deny license applications, including renewals of those gaming entities doing business with the State of New Mexico if such entity continues to do business with the Pueblo.” Complaint ¶ 65-81, at 20-24. The Complaint asserts that these actions "establish a policy, custom and/or practice of wrongfully asserting State jurisdiction over gaming activities on the Pueblo’s Indian lands.” Complaint ¶ 148, at 36.
. In Kerns v. Bader, the Tenth Circuit reversed the Court’s decision that an officer was not entitled to qualified immunity, noting that the Court "analyzed both aspects of the qualified immunity test before agreeing” with the plaintiff that the qualified immunity defense did not protect the officer.
Because we agree with Sheriff White on the latter (clearly established law) question, we reverse without addressing the former (constitutional violation) question. And we pursue this course because doing so allows us to avoid rendering a decision on important and contentious questions of constitutional law with the attendant needless (entirely avoidable) risk of reaching an improvident decision on these vital questions.
While the Court must faithfully follow the Tenth Circuit's decisions and opinions, the Court is troubled by this statement and the recent trend of the Supreme Court's hesitancy in § 1983 actions to address constitutional violations. A Reconstruction Congress, after the Civil War, passed § 1983 to provide a civil remedy for constitutional violations. See Mitchum v. Foster,407 U.S. 225 , 238-39,92 S.Ct. 2151 ,32 L.Ed.2d 705 (1972). In Mitchum v. Foster, the Supreme Court explained:
Section 1983 was originally § 1 of the Civil Rights Act of 1871 ... and was enacted for the express purpose of "enforcing) the Provisions of the Fourteenth Amendment.” ... The predecessor of § 1983 was thus an important part of the basic alteration in our federal system wrought in the Reconstruction era through federal legislation and constitutional amendment.
407 U.S. at 238-39 ,92 S.Ct. 2151 . Congress did not say it would remedy only violations of "clearly established” law, but that
[ejvery 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.
42 U.S.C. § 1983 (emphasis added). The Supreme Court established the qualified immunity defense in Pierson v. Ray,386 U.S. 547 ,87 S.Ct. 1213 ,18 L.Ed.2d 288 (1967), and held that officials were not liable for constitutional violations where they reasonably believed that their conduct was constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding: Why Qualified Immunity is a Poor Fit in Fourth Amendment School Search Cases, 24 B.Y.U. J. Pub. L. 313, 329 (2010). The Supreme Court first introduced the “clearly established" prong in reference to an officer’s good faith and held that a compensatory award would only be appropriate if an officer "acted with such an impermissible motivation or with such disregard of the [individual’s] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.” Wood v. Strickland,420 U.S. 308 , 322,95 S.Ct. 992 ,43 L.Ed.2d 214 (1975). In Harlow v. Fitzgerald, when the Supreme Court moved to an objective test, the clearly established prong became a part of the qualified immunity test. See457 U.S. at 818 ,102 S.Ct. 2727 (“We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights.”). It seems ironic that the federal courts would restrict a congressionally mandated remedy for constitutional violations' — presumably the rights of innocent people — and discourage case law development on the civil side — and restrict case law development to motions to suppress, which reward only the guilty and is a judicially created, rather than legislatively created, remedy. Commentators have noted that, ”[o]ver the past three decades, the Supreme Court has drastically limited the availability of remedies for constitutional violations in” exclusionary rule litigation in a criminal case, habeas corpus challenges, and civil litigation under § 1983. J. Marceau, The Fourth Amendment at a Three-Way Stop, 62 Ala. L. Rev. 687, 687 (2011). Some commentators have also encouraged the courts to drop the suppression remedy and the legislature to provide more — not less — civil remedies for constitutional violations. See Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L. Rev. 363, 390-91 (1999)(“Be-havioral theory suggests that the exclusionary rule is not very effective in scaring police into behaving .... These theories also suggest that a judicially administered damages regime ... would fare significantly better at changing behavior at an officer level.”); Hon. Malcolm R. Wilkey, Constitutional Alternatives to the Exclusionary Rule, 23 S. Tex. L.J. 531, 539 (1982)(criticizing the exclusionary rule and recommending alternatives). In Hudson v. Michigan,547 U.S. 586 ,126 S.Ct. 2159 ,165 L.Ed.2d 56 (2006), the Supreme Court noted that civil remedies were a viable alternative to a motion to suppress when it held that the exclusionary rule was inapplicable to cases in which police officers violate the Fourth Amendment when they fail to knock and announce their presence before entering. See547 U.S. at 596-97 ,126 S.Ct. 2159 . Rather than being a poor or discouraged means of developing constitutional law, § 1983 seems the better and preferable alternative to a motion to suppress. It is interesting that the current Supreme Court and Tenth Circuit appear more willing to suppress evidence and let criminal defendants go free, than have police pay damages for violations of innocent citizens’ civil rights. It is odd that the Supreme Court has not adopted a clearly established prong for suppression claims; it seems strange to punish society for police violating unclear law in criminal cases, but protect municipalities from damages in § 1983 cases.
Kerns v. Bd. of Comm’rs,
. In Kerns v. Board of Commissioners, the Court expressed concern with Justice Elena Kagan's comments about "large” and "small” cases:
While the Court is, of course, obligated to follow faithfully the Supreme Court's decisions and opinions, the Court has always been unenlightened and even troubled by Justice Elena Kagan's comments in Camreta v. Greene about "large” and "small” cases. [563 U.S. at 707 ,131 S.Ct. 2020 ]. As a trial judge, the Court has tried assiduously to avoid thinking about or categorizing some cases as "large” and some as "small.” It usually is not mentally healthy for a judge to put all his or her energy into "large” cases and slight "small cases”; to the litigants, their case is the most important case on the Court’s docket, and it is usually wise for the judge to treat each case on which he or she is working — -at that moment — as the most important case at that moment. Getting the decision "right,” i.e. getting the law and facts correct and accurate, is obviously important, but getting it right is only one-half of a judge’s task, particularly a trial judge's job. The other half of dispensing justice is the appearance of justice — did the Court listen to the litigant’s arguments, wrestle with those arguments, and deal with them in an intellectually honest way. Americans are pretty good about accepting a judicial decision — even an adverse one— and cease obsessing over an issue, if they are convinced that an authority figure has dressed up, taken them seriously, listened patiently and politely, wrestled with the arguments, addressed them, and accurately stated the facts. The Court believes that, if it starts looking at some cases before it as "large” and some as "small,” it begins a slippery slope that does not accomplish both halves of the task of dispensing justice. The justice system depends so much on the nation respecting and accepting the courts' proceedings and decisions, because courts have very little "power” that does not depend on that acceptance. Thus, Justice Ka-gan's comments are not only not self-defining, but they are disturbing.
If, perhaps, a "large” case is a Supreme Court case or one that comes from the East Coast or California, rather than one in a district court in New Mexico, then it helps to look at what cases the Supreme Court has decided for the plaintiff. The three most recent qualified immunity cases, the Supreme Court dealt with are: (i) Reichle v. Howards,566 U.S. 658 ,132 S.Ct. 2088 ,182 L.Ed.2d 985 (2012); (ii) Filarsky v. Delia,566 U.S. 377 ,132 S.Ct. 1657 ,182 L.Ed.2d 662 (2012); and (iii) Messerschmidt v. Millender,565 U.S. 535 ,132 S.Ct. 1235 ,182 L.Ed.2d 47 (2012). In Reichle v. Howards, the Supreme Court determined that secret service agents were entitled to qualified immunity for arresting a protestor who touched the Vice President and held that it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. See132 S.Ct. at 2092, 2097 . In Filarsky v. Delia, the Supreme Court held that a private individual that the government hires to do its work, an internal affairs review, is entitled to seek qualified immunity for Fourth and Fourteenth Amendment violations. See132 S.Ct. at 1660, 1668 . In Messerschmidt v. Millender, the Supreme Court held that police officers in Los Angeles, California were entitled to qualified immunity when they relied on an invalid warrant to search a home, because a reasonable officer would not have realized the error. See132 S.Ct. at 1241, 1250 . The Supreme Court has not denied qualified immunity since 2004 in Groh v. Ramirez,540 U.S. 551 ,124 S.Ct. 1284 ,157 L.Ed.2d 1068 (2004), where it held that an officer unreasonably relied on a deficient warrant. See540 U.S. at 565 ,124 S.Ct. 1284 . The Court does not think those presumably "large” cases (they are Supreme Court cases, after all) are any different. — substantively, legally, or factually. — than this case involving the search of a citizen’s home after someone shot down a police helicopter and then detained that suspect for nine months until the United States realized that J. Kerns could not have shot down the helicopter.
On the flip side, treating large cases like they are large cases can create an appearance problem to the public and to the litigants — that only big cases deserve theCourt’s attention. A trial judge can overwork a “large” case. It is better to treat even "large” cases like every other case; large cases and their litigants need to know and appreciate that they are not the only case on the court's docket, and realize that the scarcity of judicial resources applies to them too.
Kerns v. Bd. of Comm'rs,
. Non-banked card games are "games in which the participants play against only each other; the hose facility (the 'house') has no stake in the outcome.” Fla. House of Representatives v. Crist,
. IGRA established the National Indian Gaming Commission as an agency within the Department of the Interior. See 25 U.S.C. § 2704(a). The Commission is has the authority to enforce the collection of civil fines, to investigate and audit Indian gaming, and to “promulgate such regulations and guidelines as it deems appropriate to implement the provisions” of IGRA. 25 U.S.C. § 2706.
. In their Motion to Dismiss Counts III and IV Response, the Plaintiffs answer these arguments only by referencing and incorporating their preemption arguments made elsewhere. See Motion to Dismiss Counts III and IV Response at 5.
. The Complaint does not identify the subsection of § 1985 upon which Counts III and IV are based. See Complaint ¶¶ 135-151, at 34-37. As the Individual Defendants aptly point out, "Subsections 1985(1) (preventing an officer of the United Slates from performing his duties) and 1985(2) (intimidating a party, witness or juror, or otherwise obstructing justice), are plainly inapplicable, leaving only Subsection 1985(3).” Motion to Dismiss Counts III and IV at 6 n.3.
. The Supreme Court has construed Indian tribes as “foreign states” under the Eleventh Amendment. See Blatchford v. Native Village of Noatak.
. In their Sovereign Immunity Motion Response, the Plaintiffs expressly agree to dismissal of Counts I and II as against New