642 F.3d 876 (10th Cir. 2011), 08-2174, Coll v. First American Title Ins. Co.

Docket Nº:08-2174.
Citation:642 F.3d 876
Opinion Judge:EBEL, Circuit Judge.
Party Name:Max W. COLL, II, Catherine Joyce-Coll, Charles T. Murphy, Barbara E. Murphy, Haydock H. Miller, Jr., Plaintiffs-Appellants, v. FIRST AMERICAN TITLE INSURANCE COMPANY, New Mexico Public Regulation Commission, Jason Marks, David W. King, Ben R. Lujan, Lynda M. Lovejoy, E. Shirley Baca, New Mexico Department of Insurance, Eric Serna, Old Republic Titl
Attorney:Victor R. Marshall, Victor R. Marshall & Associates, P.C., Albuquerque, New Mexico, for Plaintiffs-Appellants. Charles A. Newman, Sonnenschein Nath & Rosenthal, LLP, St. Louis, MO, (Richard M. Zuckerman, Sonnenschein Nath & Rosenthal, LLP, New York, NY, Jerry Wertheim, Jerry Todd Wertheim, Jones,...
Judge Panel:Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges.
Case Date:April 26, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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642 F.3d 876 (10th Cir. 2011)

Max W. COLL, II, Catherine Joyce-Coll, Charles T. Murphy, Barbara E. Murphy, Haydock H. Miller, Jr., Plaintiffs-Appellants,

v.

FIRST AMERICAN TITLE INSURANCE COMPANY, New Mexico Public Regulation Commission, Jason Marks, David W. King, Ben R. Lujan, Lynda M. Lovejoy, E. Shirley Baca, New Mexico Department of Insurance, Eric Serna, Old Republic Title Insurance Company, Inc., Commonwealth Land Title Insurance Company, Lawyers Title Insurance Corporation, Transnation Title Insurance Company, Stewart Title Guaranty Company, Fidelity National Title Insurance Company, Chicago Title Insurance Company, Ticor Title Insurance Company, Commerce Title Insurance Company, United General Title Insurance Company, Defendants-Appellees.

No. 08-2174.

United States Court of Appeals, Tenth Circuit.

April 26, 2011

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Victor R. Marshall, Victor R. Marshall & Associates, P.C., Albuquerque, New Mexico, for Plaintiffs-Appellants.

Charles A. Newman, Sonnenschein Nath & Rosenthal, LLP, St. Louis, MO, (Richard M. Zuckerman, Sonnenschein Nath & Rosenthal, LLP, New York, NY, Jerry Wertheim, Jerry Todd Wertheim, Jones, Snead, Wertheim & Wentworth, P.C., Santa Fe, NM, David M. Foster, Fulbright & Jaworski, LLP, Washington, D.C., Michael B. Campbell, Holland & Hart LLP, Santa Fe, NM, David Fleischer, Paul, Hastings, Janofsky & Walker LLP, New York, NY, W. Spencer Reid, Thomas C. Bird, Keleher & McLeod, P.A., Albuquerque, NM, Phillip E. Stano and Brian C. Spahn, Sutherland, Washington, D.C., D. James Sorenson, Kemp Smith, LLP, El Paso, TX, Stephen C. Schoettmer, Thompson & Knight, Dallas, TX, and Thomas A. Simons, IV, Faith Kalman Reyes, Simons & Slattery, LLP, Santa Fe, NM, with him on the brief) for Defendants-Appellees.

Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges.

EBEL, Circuit Judge.

In this litigation, Plaintiffs challenge New Mexico's statutory scheme regulating title insurance, arguing it is contrary to state law. Here, Plaintiffs appeal the district court's decision dismissing their claims against several title insurance companies that have complied with this New Mexico law. Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.1

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I. BACKGROUND

A. New Mexico Title Insurance Act

In New Mexico, " the business of title insurance [is] totally regulated by the state to provide for the protection of consumers and purchasers of title insurance policies and the financial stability of the title insurance industry." N.M. Stat. Ann. § 59A-30-2(B) (2004) (amended 2009).2 Through the " Title Insurance Act," N.M. Stat. Ann. §§ 59A-30-1 through 59A-30-15 (" Act" ), the New Mexico legislature " provide[s] a comprehensive body of law for the effective regulation and active supervision of the business of title insurance transacted within" the state. Id. § 59A-30-2(A).

The Act requires the state superintendent of insurance, after conducting a public hearing at least once each year, to establish premium rates insurers can charge for title insurance. See id. §§ 59A-30-4, 59A-30-6, 59A-30-8. 3 Those rates " shall not be excessive, inadequate or unfairly discriminatory and shall contain an allowance permitting a profit that is not unreasonable in relation to the riskiness of the business of title insurance." Id. § 59A-30-6(C). " A person aggrieved by an order of the superintendent promulgating rates under the [Act] shall have the right [ ]" first to an administrative appeal before the New Mexico Public Regulation Commission (" PRC" ) and then to review in state court. Id. §§ 59A-17-34 to -35, 59A-30-9. The superintendent also establishes what coverage a title insurer can offer; and the Act mandates that title insurers use only forms promulgated by the superintendent to offer that coverage. See id. §§ 59A-30-4, 5; see also Lisanti v. Alamo Title Ins. of Tex., 132 N.M. 750, 55 P.3d 962, 964 (2002). See generally N.M.Code R. § 13.14.18 (setting forth title insurance forms).

New Mexico's pervasive regulation of title insurance differs significantly from its regulation of other types of insurance under its general insurance code. " [I]n general," New Mexico's Insurance Code " permit[s] and encourage[s] ... independent action by and reasonable price competition among insurers" " as an effective way to produce rates" that are not " excessive, inadequate or unfairly discriminatory." N.M. Stat. § 59A-17-3(A)(1)-(2). Regarding premium rates for other types of insurance, the Insurance Code provides that " [r]ates shall not be excessive, inadequate or unfairly discriminatory, nor shall an insurer charge any rate which if continued will have or tend to have the effect of destroying competition or creating a monopoly." Id. § 59A-17-6(A) (2004). Generally, the Insurance Code requires insurers to file their premium rates with the superintendent of insurance, and then to abide by those filed rates, which the superintendent must approve. See id. §§ 59A-17-9, 59A-17-12-13.

Importantly, however, the New Mexico Insurance Code expressly does not apply to title insurers, except to the extent that the Title Insurance Act provides otherwise. See id. § 59A-1-15(H) (" No provision of the Insurance Code shall apply to ... title insurers and title insurance agents, as identified in Chapter 59A, Article 30 NMSA 1978, except as stated in that article." ); see also id. § 59A-1-17 (" Provisions of the Insurance Code relative to a particular kind of insurance or type of

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insurer or particular matter shall prevail over provisions relating to insurance in general or insurers in general or to such matter in general." ). While the Title Insurance Act has explicitly incorporated a variety of provisions of the Insurance Code, it has not incorporated Article 17's provisions promoting competition among insurers. 4 See id. § 59A-30-14.

B. Procedural background

This federal litigation represents the consolidation of two putative class actions begun in New Mexico state court, Coll v. First American Title Insurance Co., and Murphy v. Fidelity National Title Insurance Co. Plaintiffs are New Mexico citizens who previously purchased title insurance in New Mexico. They seek to represent a class of thousands of similarly situated purchasers of title insurance covering property located in New Mexico. Plaintiffs sued two groups of defendants: 1) several title insurance companies (" Insurer Defendants" ) 5, and 2) the New Mexico Public Regulation Commission (" PRC" ), the PRC commissioners, the New Mexico Department of Insurance, and the New Mexico superintendent of insurance (" State Defendants" ).6 The Insurer Defendants removed both of these state-court actions to federal court under the Class Action Fairness Act, 28 U.S.C. § 1332(d).

Plaintiffs' complaints alleged generally that the Title Insurance Act violates numerous New Mexico constitutional and statutory provisions precluding price fixing and the creation of monopolies, and that the Insurer Defendants conspired with the insurance superintendent to establish a premium rate that is unreasonably high. Based upon these theories, Plaintiffs sought declaratory and injunctive relief; compensatory, punitive and statutory damages; the Insurer Defendants' disgorgement of their excessive profits; and attorneys' fees and costs.

Defendants moved to dismiss Plaintiffs' claims. The district court did so in part, dismissing with prejudice Plaintiffs' claims against the Insurer Defendants under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. Then, without addressing their merits, the district court remanded Plaintiffs' claims against the State Defendants to state court. After these decisions, Plaintiffs

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filed a motion to amend their complaints, which the district court denied.

II. APPELLATE JURISDICTION

In this appeal, Plaintiffs challenge both the district court's decision to dismiss their claims against the Insurer Defendants and the district court's denial of leave to amend the complaints. This Court has jurisdiction to review the former, but not the latter.

On April 21, 2008, the district court dismissed Plaintiffs' claims against the Insurer Defendants with prejudice and remanded to state court all of Plaintiffs' remaining claims asserted against the State Defendants. This decision was final and appealable under 28 U.S.C. § 1291 because " it end[ed] the litigation on the merits and [left] nothing for the court to do but execute the judgment." N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 697 (10th Cir.2009); see also Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1209 n. 1 (10th Cir.2000) (holding district court's decision dismissing federal claims was final, notwithstanding that court remanded remaining state-law claims to state court).

The district court, however, did not at that time enter a separate judgment under Fed.R.Civ.P. 58. Before the district court did so several months later, Plaintiffs, on May 20, both moved to amend their complaints and filed a notice of appeal from the April 21, 2008, order.

A party can file a motion to amend the complaint after the district court grants a motion to dismiss. See Triplett v. LeFlore County, 712 F.2d 444, 445-47 (10th Cir.1983) (reversing district court's implicit denial of motion to amend raised in post-dismissal motion seeking reconsideration); 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §§ 1488-1489 (2010). When a party does so, this court treats such a motion as one made under either Fed.R.Civ.P. 59 or...

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