ETP Rio Rancho Park, LLC v. Grisham, No. 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 Date08 February 2021
Docket NumberNo. CIV 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 FOR THE DISTRICT OF NEW MEXICO

February 8, 2021


MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Plaintiffs' Application for Temporary Restraining Order and Preliminary Injunction, filed February 4, 2021 (Doc. 4)("Motion"). The Court held a hearing on the Plaintiffs' Motion for a Temporary Restraining Order ("TRO") on February 5, 2021. The primary issues are whether: (i) 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 ("the Defendants"), have violated ETP Rio Rancho Park, LLC ("Elevate"), FAC-ABQ, LLC ("Cool Springz"), Jungle Jam, LLC ("Jungle Jam"), and Duke City Jump, LLC ("Duke City"), (collectively, "the Plaintiffs"), substantive due process rights under the Constitution of the United States of America; (ii) N.M.S.A. § 24-1-3(E) and New Mexico Department of Health ("NMDOH") Public Health Orders ("PHOs") are void for vagueness and unconstitutionally overbroad; (iii) NMAC 7.1.30 has violated procedural due process both on its face and as applied to Elevate; (iv) the Defendants have violated the Plaintiffs' equal protection rights; (v) the Court should abstain from hearing this case

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with respect to Elevate under the abstention doctrine articulated in Younger v. Harris, 401 U.S. 37 (1971); and (vi) the Plaintiffs are entitled to a TRO. The Court concludes that: (i) the Plaintiffs' substantive due process claims are unlikely to succeed on the merits because the Defendants' policies are rationally related to a legitimate state interest; (ii) the Plaintiffs' vagueness and over-broadness claims are unlikely to succeed on the merits because the Supreme Court has held consistently that the the phrase public health does not provide an undefined or unrestricted grant of authority; (iii) the Plaintiffs' procedural due claims are unlikely to succeed on the merits because the Defendants likely provided adequate post-deprivation process; (iv) the Plaintiffs' equal protection claims are unlikely to succeed on the merits because the Defendants' policies are rationally related to a legitimate state interest; (v) the Court will likely need to abstain from this case with respect to Elevate under Younger v. Harris, 401 U.S. 37, because there are ongoing state administrative proceedings that involve important state interests and provide an adequate forum for Elevate's claims; and (vi) the Plaintiffs are not entitled to a TRO because their claims are unlikely to succeed on the merits. The Court, therefore, denies the TRO.

FINDINGS OF FACT

"A temporary restraining order requires the Court to make predictions about the plaintiff's likelihood of success." Herrera v. Santa Fe Pub. Sch., 792 F. Supp. 2d 1174, 1179 (D.N.M. 2011)(Browning, J.). Rule 52 of the Federal Rules of Civil Procedure states: "In granting or refusing an interlocutory injunction, the court must . . . state the findings and conclusions that support its action." Fed. R. Civ. P. 52(a)(2). "'[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.'" Herrera v. Santa Fe Pub. Sch., 792 F. Supp. 2d at 1179 (quoting Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009))(alteration in Herrera v. Santa Fe Public Schools only). See

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Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)("[A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits."); Firebird Structures, LCC v. United Bhd. of Carpenters and Joiners of Am., Local Union No. 1505, 252 F. Supp. 3d 1132, 1140 (D.N.M. 2017)(Browning, J.).

The United States Court of Appeals for the Tenth Circuit notes "that when a district court holds a hearing on a motion for preliminary injunction it is not conducting a trial on the merits." Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Moreover, "[t]he Federal Rules of Evidence do not apply to preliminary injunction hearings." Heideman v. S. Salt Lake City, 348 F.3d at 1188. Thus, while the Court does the best it can to make good findings from the record that it has and in the short time that it has to make findings, these findings of fact are relevant only for the purpose of determining whether to issue a TRO and do not bind the Court or the parties at trial. Accordingly, the Court finds as follows:

1. The Parties.

1. Elevate is an Arizona limited liability company duly registered with the New Mexico Secretary of State and authorized to conduct business in New Mexico. See Verified Complaint for Violation of Constitutional Rights to Due Process and Equal Protection and Request for Preliminary and Permanent Injunctive Relief ¶ 1, at 1, filed February 4, 2021 (Doc. 1-1)("Complaint").

2. Elevate operates a trampoline facility as Elevate Park in Rio Rancho, New Mexico. See Complaint ¶ 1, 13, at 1, 3.

3. Cool Springz is a New Mexico limited liability company duly registered with the New Mexico Secretary of State and in good standing. See Complaint ¶ 2, at 2.

4. Cool Springz operates a trampoline facility in Albuquerque, New Mexico. See

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Complaint ¶ 2, 14, at 2, 3.

5. Jungle Jam is a New Mexico limited liability company duly registered with the New Mexico Secretary of State and in good standing. See Complaint ¶ 3, at 2.

6. Jungle Jam built a trampoline facility located at 9227 Coors Boulevard, NW in Albuquerque, New Mexico. See Complaint ¶ 3, at 2.

7. Jungle Jam completed construction of its trampoline facility on April 22, 2020, but has not been able to do business since construction was completed. See Complaint ¶ 15, at 4.

8. Duke City is a New Mexico limited liability company duly registered with the New Mexico Secretary of State and in good standing. See Complaint ¶ 4, at 2.

9. Duke City owns a trampoline facility and does business as Fallout Trampoline Arena. See Complaint ¶ 4, 16 at 2, 4.

10. Duke City's principal place of business is located in the Cottonwood Mall at 10000 Coors Bypass NW, Albuquerque, New Mexico. See Complaint ¶ 4, at 2.

11. Duke City's business is closed even though other business at the Cottonwood Mall remain open for business. See Complaint ¶ 16, at 4.

12. Michelle Lujan Grisham is Governor of the State of New Mexico. See Complaint ¶ 5, at 2.

13. Tracie C. Collins, M.D., is Secretary-Designate of NMDOH. See Complaint ¶ 6, at 2.

14. Tim Q. Johnson is the Acting Cabinet Secretary for the New Mexico Department of Public Safety. See Complaint ¶ 7, at 2.

2. The Pandemic.

12. "The coronavirus disease 2019 ("COVID-19") is a pandemic that has spread around

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the world, within the United States of America, and in New Mexico. See Coronavirus disease 2019 (COVID-19), Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/coronavirus/symptoms-causes/syc-20479963 (last visited February 6, 2021)("Mayo Clinic").

13. As of February 8, 2021, there have been 26,654,965 cases of COVID-19 in the United States, and 458,544. See WHO Coronavirus Disease (COVID-19) Dashboard, World Health Organization, https://covid19.who.int/ (last visited February 8, 2021).

14. As of February 8, 2021, New Mexico has had 177,556 cases and 3,399 deaths. See 2019 Novel Coronavirus Disease (COVID-19), New Mexico Department of Health (DOH), https://cv.nmhealth.org/ (last visited February 8, 2021).

15. COVID-19 is a contagious disease that is spread through respiratory droplets that are released when infected individuals cough, sneeze, or talk. See Mayo Clinic.

16. Risk factors for COVID-19 include close contact -- typically defined as within six feet -- with someone who has COVID-19, or when a person infected with COVID-19 coughs or sneezes around others. See Mayo Clinic; COVID-19 Basics: Symptoms, Spread and Other Essential Information About the New Coronavirus and COVID-19, Harvard Medical School (March 2020), https://www.health.harvard.edu/diseases-and-conditions/covid-19-basics.

17. Common signs and symptoms can include fever, cough, and tiredness. See Mayo Clinic.

18. Other symptoms can include a loss of taste or smell, shortness of breath or difficulty breathing, muscle aches, chills, sore throat, runny nose, headache, and chest pain. See Mayo Clinic.

19. Although COVID-19 may cause only mild symptoms for some people, for others,

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COVID-19 can cause severe complications, including pneumonia in both lungs, organ failure, and death. See COVID-19 Basics: Symptoms, Spread and Other Essential Information About the New Coronavirus and COVID-19, Harvard Medical School (March 2020), https://www.health.harvard.edu/diseases-and-conditions/covid-19-basics.

20. COVID-19 symptoms can persist for months. See COVID-19 (coronavirus): Long-term effects, the Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/coronavirus-long-term-effects/art-20490351#:~:text=COVID%2D19%20symptoms%20can,within%20a%20few%20weeks (last visited February 6, 2021).

21. COVID-19 can damage the lungs, heart, and brain, which increases the risk of long-term health problems. See COVID-19 (Coronavirus): Long-Term Effects, the Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/coronavirus-long-term-effects/art-20490351#:~:text=COVID%2D19%20symptoms%20can,within%20a%20few%20weeks (last visited February 6, 2021).

22. Signs and symptoms of COVID-19 typically appear two to fourteen days after exposure. See Mayo Clinic.

23. The time after exposure and before the appearance of symptoms is called the incubation period. See Mayo Clinic.

24. Many COVID-19 cases result in mild symptoms or no symptoms. See Nathan W. Furukawa et al., Evidence Supporting...

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