JENIKA MAYER, Plaintiff, v. BERNALILLO COUNTY; ERIC W. SCHULER, Individually and in his official capacity;THERESA BACA SANDOVAL, Individually and in her official capacity;JOHN OR JANE DOE BCSO SHERIFF OFFICERS, A, B, C, D, E and F;MARILYN JONES; GARY JONES; ROBERT LONG;STEPHANIE LONG, and NATHANIEL LONG, Defendants.
No. CIV 18-0666 JB\SCY
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
January 8, 2019
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Jones and Long Defendants' First Amended Request for Judicial Notice in Support of Their Motion to Dismiss, filed September 21, 2018 (Doc. 30)("Request"); and (ii) the Motion to Dismiss by Defendants Marilyn Jones, Gary Jones, Robert Long, Stephanie Long, and Nathaniel Jones1 [sic] and Memorandum in Support, filed September 21, 2018 (Doc. 31)("Motion"). The primary issues are: (i) whether the Court may or must take judicial notice of the documents which Defendants Marilyn Jones, Gary Jones, Robert Long, Stephanie Long, and Nathanial Long -- collectively, the Jones and Long Defendants -- list in the Request, when all the listed documents were filed with the Court of Appeals of New Mexico and with the Second Judicial District Court of Bernalillo County, New Mexico; (ii) whether Plaintiff Jenika Mayer states a plausible claim for relief against the Jones and Long Defendants inher Amended Complaint for Negligence Per Se, Civil Conspiracy, Intentional Infliction of Emotional Distress, Violation of New Mexico Tort Claims Act, and the Fourteenth Amendment of the U.S. Constitution ¶ 1, at 1, filed December 24, 2018 (Doc. 45)("Complaint"), where Mayer's claims are based on her assertion that the Jones and Long Defendants trespassed on her land, and the Court of Appeals of New Mexico earlier determined that the land in question is an easem*nt belonging to the Jones and Long Defendants; (iii) whether, under New Mexico law, collateral estoppel bars Mayer from relitigating the easem*nt's existence, because in a 2011 affidavit, see Affidavit of Jenika Mayer (executed Nov. 7, 2011), filed September 21, 2018 (Doc. 30-2)("Mayer Aff.")(listing Marilyn Jones, Gary Jones, Robert Long, and Stephanie Long as intervenors), Mayer admits knowing of the easem*nt before purchasing her property, the Court of Appeals of New Mexico determined, in a 2015 decision, that a twenty-foot easem*nt exists, see Mayer v. Smith, 2015-NMCA-060, 350 P.3d 1191, dated October 8, 2015, filed in state court October 13, 2015, filed in federal court September 21, 2018 (Doc. 30-5)("2015 Court of Appeals Opinion"), and in 2017, the state district court stated that the Court of Appeals of New Mexico's decision definitively establishes the twenty-foot easem*nt's existence, see Mayer v. Smith, D-202-CV-2009-07967, Memorandum Opinion and Order, filed in state court April 17, 2017, filed in federal court September 21, 2018 (Doc. 30-9)("Dist. Ct. MOO") and (iv) whether, if either state or federal collateral estoppel applies, it bars Mayer from relitigating the easem*nt's existence. The Court concludes that: (i) the Court will take judicial notice of the documents attached to the Motion and listed in the Request, while being careful not to take judicial notice of the statements in the documents for the truth of the matters asserted therein; (ii) Mayer's Complaint states a claimagainst the Jones and Long Defendants for negligence per se and civil conspiracy, because whether they trespassed on her land has not been determined in a valid, final judgment on the merits to which the Court must give preclusive effect, (iii) Mayer's Complaint does not state a claim against the Jones and Long Defendants for intentional infliction of emotional distress; and (iv) under New Mexico and federal law, Mayer is not collaterally estopped from relitigating the easem*nt's existence. Accordingly, the Court grants the Request and grants the Motion in part and denies the Motion in part.
The Court draws its facts from Mayer's Complaint.3 Defendant Bernalillo County removedthe case to federal court. See Notice of Removal, filed July 12, 2018 (Doc. 1)("Notice of Removal"). The Court accepts Mayer's factual allegations as true for the limited purpose of deciding the Motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)("Iqbal")(clarifying the "tenet that a court must accept as true all of the [factual] allegations contained in a complaint")(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008)(concluding that, in the motion to dismiss posture, a court must "accept as true all well-pleaded facts, as distinguished from conclusory allegations"). The Court also incorporates facts from the public record documents attached to the Motion. See supra n.2.
With that understanding of the allegations, Mayer is a resident of Bernalillo County. See Complaint ¶ 1, at 1. The Jones and Long Defendants owned neighboring property in the same subdivision and were litigants in a state suit filed July 1, 2009, Mayer v. Jones, No. CIV D-202-2009-07967 (Second Judicial District Court, County of Bernalillo, State of New Mexico), filed in state court July 1, 2009, filed in federal court September 21, 2018 (Doc. 30-1)("State Complaint"). The State Complaint names Susan Smith as the sole Defendant. See State Complaint at 1. The Jones and Long Defendants intervened in the action to enforce the easem*nt. See Mayer Aff. at 1. In the Mayer Aff., Mayer attests that she owns Lot 5-1B, and has "always acknowledged theexistence of the 1979 twenty (20) foot easem*nt along the north and west edges of Lot 5-1B.4" Mayer Aff. ¶¶ 1-2, at 1.
On January 31, 2012, the Honorable Clay Campbell, District Judge for the Second Judicial District Court, State of New Mexico, held a bench trial in Mayer v. Jones. See Mayer v. Jones, No. CIV D-202-2009-07967, Transcript of Proceedings (dated Dec. 28, 2012), filed in federal court September 21, 2018 (Doc. 30-3)("Transcript of Proceedings"). On January 31, 2012, Judge Campbell granted Mayer's motion for a directed verdict. See Judgment, filed in state court March 20, 2012, filed in federal court September 21, 2018 (Doc. 30-4)("Second Judicial District Judgment"). Judge Campbell concluded that Mayer's estate is the servient estate, the Long Defendants' estate is the dominant estate, and the easem*nt is historically restricted to "occasional use as a hiking trail . . . and restricted use (2 to 3 times a year) as a vehicle trail for the cutting and collecting of firewood on [the Longs'] property." Second Judicial District Judgment ¶¶ 2-4, at 2. Judge Campbell concluded that the Longs had "no authority to cut any trees in the easem*nt or to bring heavy construction equipment upon it," and, therefore, that Mayer's "fence along the tree line within the easem*nt will remain." Second Judicial District Judgment ¶ 5, at 2.
The Jones and Long Defendants appealed Judge Campbell's directed verdict to the Court of Appeals of New Mexico, and the Court of Appeals of New Mexico issued an opinion on March 2, 2015. See 2015 Court of Appeals Opinion. The Court of Appeals of New Mexico stated: "Asthe trees grew in the easem*nt, Plaintiff used her fence to include them in her property, resulting in a nine-to-eleven-foot area becoming inaccessible to Intervenors." 2015 Court of Appeals Opinion, 2015-NMCA-060, ¶ 4, 350 P.3d at 1194. The Court of Appeals of New Mexico concluded that Mayer is "required to remove her fence from the easem*nt." 2015 Court of Appeals Opinion, 2015-NMCA-060, ¶ 3, 350 P.3d at 1200. The Court of Appeals of New Mexico remanded the case for proceedings consistent with the 2015 Court of Appeals Opinion regarding the trees that Mayer had planted in the easem*nt over her property and requiring Mayer to remove the trees. See Complaint ¶ 19, at 3 (citing 2015 Court of Appeals Opinion, 2015-NMCA-060, ¶ 35, 350 P.3d at 1200). Mayer contends that, one of the outcomes of the 2015 Court of Appeals Opinion "was the fact that Ms. Mayer still had the right to present her evidence after the Jones and Long Defendants appealed an involuntary dismissal as provided for by Rule 1-041(B) NMRA." Complaint ¶ 20, at 3 (emphasis in original). Mayer contends:
If a dismissal made under Rule 1-041(B) is reversed on appeal, the appellate court will remand a non-jury case to the district court for further proceedings, and the defendant (Ms. Mayer in that case) may then present any evidence she may have. (See Bogle v. Potter, 1961-NMSC-025, ¶ 19, 68 N.M. 239, 360 P.2d 650).
Complaint ¶ 21, at 3. The Supreme Court of New Mexico denied a writ of certiorari on April 30, 2015. See Mayer v. Jones, 2015-NMCERT-004, 348 P.3d 694 (Table). See also Motion at 4 n.2.
On October 13, 2015, the Court of Appeals of New Mexico issued a Mandate to District Court Clerk, filed in federal court September 21, 2018 (Doc. 30-5)("October, 2015 Mandate"). The mandate finalized the March 2, 2015 Court of Appeals Opinion, attached a copy of the opinion, and remanded the case to the district court for further proceedings consistent with that decision. See October, 2015 Mandate ¶ 2, at 1. Mayer contends that the Jones and LongDefendants "could not abide the opinion from the Court of Appeals," Complaint ¶ 22, at 3, and that, before allowing Mayer to present any evidence, on October 13, 2015, the Jones and Long Defendants "knowingly filed an erroneous Completion of Briefing with the district court," informing the court that their Motion to Alter and Amend the Judgment was "ripe for adjudication." Complaint ¶ 24, at 4.
On October 22, 2015, the state district court issued an Amended Judgment and Order, filed in federal court September 21, 2018 (Doc. 30-6)("October Amended Judgment").5 In the October Amended Judgment, the Second Judicial District Court withdrew the Second Judicial District Judgment and entered a judgment and order identifying the twenty-foot wide easem*nt as belonging to the...
