ETP Rio Rancho Park, LLC v. Grisham, CIV 21-0092 JB/KK

CourtUnited States District Courts. 10th Circuit. District of New Mexico
PartiesETP RIO RANCHO PARK, LLC; FAC-ABQ, LLC; JUNGLE JAM, LLC and DUKE CITY JUMP, LLC, Plaintiffs, v. MICHELLE LUJAN GRISHAM; TRACIE C. COLLINS and TIM Q. JOHNSON, Defendants.
Decision Date30 September 2021
Docket NumberCIV 21-0092 JB/KK

ETP RIO RANCHO PARK, LLC; FAC-ABQ, LLC; JUNGLE JAM, LLC and DUKE CITY JUMP, LLC, Plaintiffs,
v.

MICHELLE LUJAN GRISHAM; TRACIE C. COLLINS and TIM Q. JOHNSON, Defendants.

No. CIV 21-0092 JB/KK

United States District Court, D. New Mexico

September 30, 2021


Angelo J. Artuso, Law Office of Angelo J. Artuso

Patrick J. Rogers Patrick J. Rogers, LLC

Attorneys for the Plaintiffs

Holly Agajanian

General Counsel for Governor Michelle Lujan Grisham Kyle P. Duffy Maria S. Dudley

Office of the Governor

Attorneys for the Defendants

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Defendants' Motion to Dismiss Plaintiffs' Verified Complaint for Violation of Constitutional Rights to Due Process and Equal Protection and Request for Preliminary and Permanent Injunctive Relief, filed February 11, 2021 (Doc. 13)(“MTD”). The primary issues are: (i) whether the Court can consider facts outside the Plaintiffs' Complaint, other than facts about which the Court can take judicial notice; (ii) whether Plaintiffs ETP Rio Rancho Park, LLC (“Elevate Trampoline”), FAC-ABQ, LLC (“Cool Springz”), Jungle Jam, LLC (“Jungle Jam”), and Duke City Jump, LLC's (“Duke City”)(collectively, “the Plaintiffs”) claims are moot; (iii) whether the Court must continue to abstain from hearing Elevate Trampoline's claims under the abstention doctrine articulated in Younger v. Harris, 401 U.S. 37 (1971); (iv) whether the New Mexico Department of Health (“NMDOH”) Public Health Orders (“PHOs”) are rationally related to Governor Michelle Lujan Grisham, New Mexico Department of Health Secretary-Designate Tracie C. Collins, and New Mexico Department of Public Safety Acting Secretary Tim Q. Johnson's legitimate State interest in stopping the spread of COVID-19; (v) whether the PHOs violate the Plaintiffs' substantive due process rights; (vi) whether either

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Section 3(E) of the New Mexico Public Health Act, N.M.S.A. § 24-1-3(E), or the PHOs is void for vagueness; (vii) whether the Defendants violated the Plaintiffs' procedural due process rights; and (viii) whether the Defendants violated the Plaintiffs' equal protection rights. The Court concludes that: (i) the Court may not consider facts outside the Complaint, other than facts about which the Court may take judicial notice; (ii) the Plaintiffs' claims are not moot, because the State of Public Health Emergency declared by Defendant Governor Michelle Lujan Grisham is ongoing; (iii) Elevate Trampoline's claims do not require abstention under Younger, because the state proceeding against Elevate Trampoline is no longer ongoing; (iv) the PHOs are rationally related to the legitimate state interest of slowing COVID-19's spread; (v) the PHOs do not violate substantive due process, because they neither involve a fundamental right nor shock the judicial conscience; (vi) neither N.M.S.A. § 24-1-3(E) nor the PHOs is void for vagueness; (vii) the Defendants have not violated the Plaintiffs' procedural due process rights, because summary administrative action is justified in emergency situations to protect public health and safety, and the February 24 PHO is quasi-legislative; and (viii) the Defendants have not violated the Plaintiffs' equal protection rights, because the Plaintiffs are not members of a suspect class, the Defendants have shown no animus towards the Plaintiffs, and the PHOs satisfy rational basis review. The Court, therefore, grants the Defendants' MTD.

FACTUAL BACKGROUND

The Defendants filed a MTD under rule 12(b)(6) of the Federal Rules of Civil Procedure. See MTD at 1. The Court may consider the “sufficiency of the allegations within the four corners of the complaint after taking those allegations as true” when evaluating a motion to dismiss under rule 12(b)(6). Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The Court also may consider: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor

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Issues & Rights, Ltd., Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); (ii) “documents referred to in the complaint if the documents are central to the Plaintiffs' claim and the parties do not dispute the documents' authenticity, ” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); and (iii) “matters of which a court may take judicial notice, ” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322. See Armstrong v. N.M. Disability Det. Servs., 278 F.Supp.3d 1193, 1201 n.3 (D.N.M. 2017)(Browning, J.)(concluding that the Court could consider notices attached to the motion and not to the complaint, because the complaint referenced them, their adequacy was central to the plaintiffs' claims, and their authenticity was unquestioned). See also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322 (“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”). The Court takes its facts from the Plaintiffs' Complaint. See Verified Complaint for Violation of Constitutional Rights to Due Process and Equal Protection and Request for Preliminary and Permanent Injunctive Relief, filed February 4, 2021 (Doc. 1-1)(“Complaint”). The Court provides these facts for background. It does not adopt them for the truth, and it recognizes that the Complaint reflects largely the Plaintiffs' version of events.

The Plaintiffs operate trampoline facilities in the State of New Mexico. See Complaint ¶ 1, at 1. Elevate Trampoline operates a trampoline facility in Rio Rancho, New Mexico. See Complaint ¶¶ 1, 13, at 1, 13. “Elevate Trampoline is an Arizona limited liability company registered with the New Mexico Secretary of State and authorized to conduct business in New Mexico.” Complaint ¶ 1, at 1. “Cool Springz is a New Mexico limited liability company registered with the New Mexico Secretary of State and in good standing.” Complaint ¶ 2, at 2. “Cool Springz operates a trampoline facility in Albuquerque, New Mexico.” Complaint ¶¶ 2, 14,

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at 2, 3. “Jungle Jam is a New Mexico limited liability company registered with the New Mexico Secretary of State and in good standing.” Complaint ¶ 3, at 2. Jungle Jam built a trampoline facility located at 9227 Coors Boulevard, N.W. in Albuquerque. See Complaint ¶ 3, at 2. On August 27, 2019, Jungle Jam received a Small Business Administration (“SBA”) loan. Complaint ¶ 96, at 16. Around that time, Jungle Jam signed a commercial lease and began to remodel 25, 000 square feet of the building for use as a trampoline facility. See Complaint ¶ 97, at 16. Duke City is a New Mexico limited liability company registered with the New Mexico Secretary of State and in good standing. See Complaint ¶ 4, at 2. Duke City has been in operation since 2015 and leases approximately 8, 000 square feet in the Cottonwood Mall in Albuquerque. See Complaint ¶ 109, at 17. Before the COVID-19 pandemic, Duke City had seventeen employees. See Complaint ¶ 110, at 17.

On March 11, 2020 the State of New Mexico identified the first cases of Novel Coronavirus (“COVID-19”) in the state. See N.M. Exec. Order 2020-004 at 2 (March 11, 2020), available at http://www.governor.state.nm.us/about-the-governor/executive-orders/ (“March 2020 Executive Order”); N.M. Exec. Order No. 2021-030 at 1 (June 25, 2021), available at http://www.governor.state.nm.us/about-the-governor/executive-orders/ (“June 2021 Executive Order”).[1] At that time, infections were identified in thirty-nine states and 100, 000 people had been infected globally. See June Executive Order at 1. On March 11, 2020, Governor Grisham

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declared a public health emergency under the Public Health Emergency Response Act, N.M.S.A. §§ 12-10A-1 to -19 (the “PHERA”), and invoked the All Hazards Emergency Management Act, N.M.S.A. §§ 12-10-1 to -10, by directing all cabinets, departments, and agencies to comply with the declarations, directives, and the New Mexico Department of Health's (“NMDOH”) further instructions.[2] See Updated: Governor, Department of Health announce first positive COVID-19 cases in New Mexico, Press Releases, Office of the Governor (March 11, 2020), https://www.governor.state.nm.us/2020/03/11/updated-governor-department-of-health-announce-first-positive-covid-19-cases-in-new-mexico/ (last visited July 12, 2021)(“Emergency Declaration”). After Governor Grisham declared a public health emergency, on March 16, 2020, then-NMDOH Secretary Kathyleen M. Kunkel entered a series of PHOs encouraging New Mexicans to stay in their homes as much as possible and requiring New Mexicans to exercise precautions when entering public spaces as well as restricting mass gatherings and business operations.[3] See, e.g., Kathyleen M. Kunkel, Public Health Emergency Order Limiting Mass

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Gatherings and Implementing Other Restrictions Due to COVID-19, New Mexico Department of Health (March 16, 2020), www.governor.state.nm.us%2Fwp-content%2Fuploads%2F2020%2F03%2FAMENDED-PUBLIC-HEALTH-ORDER.pdf.

In January, 2020, Jungle Jam was interviewing potential employees and was finalizing its account with a payroll services when the COVID-19 pandemic began to become a concern.

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See Complaint ¶ 98, at 16. Jungle Jam was prepared to offer thirty-five people employment at its new trampoline facility when Governor Grisham announced the first statewide lockdown. See Complaint ¶ 99, at 16. Jungle Jam decided to take a “wait and see” approach to opening its business. Complaint ¶ 100, at 16. Duke City closed in response to the first lockdown order from the State in March, 2020. See Complaint ¶ 111, at 17. Since March 19, 2020, the NMDOH has issued fifty-one PHOs. See Public Health Orders, New Mexico Department of Health, https://cv.nmhealth.org/public-health-orders-and-executive-orders/ (last visited September 28, 2021).

On April 6, 2020, after declaring a public health emergency, Secretary Kunkel ordered:

All businesses,
...

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