Guzman v. New Mex. State Dep't of Cultural Affairs

• Decision Date: 19 April 2021
• Docket Number: No. 1:21-cv-00198-KWR-JFR,1:21-cv-00198-KWR-JFR
• Citation: 534 F.Supp.3d 1375
• Parties: Gilbert GUZMAN, Plaintiff, v. NEW MEXICO STATE DEPARTMENT OF CULTURAL AFFAIRS, and City of Santa Fe, Defendants.
• Court: U.S. District Court — District of New Mexico

534 F.Supp.3d 1375

Gilbert GUZMAN, Plaintiff,

v.NEW MEXICO STATE DEPARTMENT OF CULTURAL AFFAIRS, and City of Santa Fe, Defendants.

No. 1:21-cv-00198-KWR-JFR

United States District Court, D. New Mexico.

Filed April 19, 2021

Penelope M. Quintero, Davis Miles McGuire Gardner, PLLC, Albuquerque, NM, for Plaintiff.

Peter Nelson Ives, New Mexico Department of Cultural Affairs General Counsel's Office, Timothy L. Butler, Office of Timothy L. Butler, Santa Fe, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

KEA W. RIGGS, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court upon Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 2) . Plaintiff painted the Multicultural mural on an exterior wall of the Halpin building in Santa Fe, New Mexico. Plaintiff requests that the Court issue a preliminary injunction stopping Defendant from renovating the Halpin building or destroying a mural on an exterior wall of the Halpin building. Having reviewed the parties’ pleadings and the applicable law, the Court finds that Plaintiff's motion is not well-taken and, therefore, is DENIED .

BACKGROUND

Plaintiff is a nationally recognized artist who has painted murals in numerous places, including the New Mexico state library, the Bataan Memorial Building, and the New Mexico Roundhouse. In 1980, Plaintiff painted an original mural titled "Multicultural" on an exterior wall of the Halpin building, located at 404 Montezuma St. in Santa Fe, New Mexico. Doc. 1 at ¶ 7. The Halpin building was a state records archive. Defendant New Mexico State Department of Cultural Affairs is the current owner of the building and operates the state's museums.¹ Doc. 17 at 3. The Defendant is currently in the process of renovating the Halpin building into the Vladem Contemporary Art Museum. Doc. 1 at ¶ 16. The Defendant began construction on or around February 1, 2021. Plaintiff filed this case after construction began.

Plaintiff and the owner of the Halpin Building at the time, the Property Control Division, entered into a "Mural Agreement" on May 12, 1980. Doc. 1-2 at 1. The parties agreed that a mural would be painted on the exterior east wall of the Halpin building. Id. The parties also agreed that "the Property Owner expresses its intent not to alter or paint over the mural during its normal life, but property owner acquires and retains all ownership rights in the mural on its completion." Id. Moreover, the Property Owner agreed "to allow muralist access to the mural so that muralist may maintain said mural for its natural life." Id.

The 40-year-old mural was painted directly on stucco. The New Mexico Department of Cultural Affairs commissioned a conservation study by Cynthia Lawrence. Doc. 16-4.

Plaintiff asserts the following claims in his complaint:

Count I: Breach of Contract against all Defendants

Count II: Violation of VARA against all Defendants.

Defendant presented the affidavit of Nick Schiavo, Deputy Cabinet Secretary of the New Mexico Department of Cultural Affairs. It provided as follows: "the following work at the construction site will begin: the demolition of the interior of the building. In order for this work to safely proceed, the exterior walls must be properly shored. The shoring will require large metal plates to be bolted on both sides of the wall that the mural is painted on. The installation of those bolts will require penetrations through the wall." Doc. 17-5 at 2. "Given the physical condition of the mural, once the impactful work begins it is likely that construction related vibrations within the structure will cause pieces of the Mural painted on the stucco of the wall to dislodge from the wall and fall to the ground." Doc. 17-5 at 2.

The motion for preliminary injunction is fully briefed. In order to give the parties a timely answer, the Court will address the motion for preliminary injunction although there are two pending motions to dismiss which have not been fully briefed.

Plaintiff filed a notice requesting a hearing on the temporary restraining order, apparently ex-parte. Doc. 3. The Court denied the request for an ex-parte hearing and ordered Plaintiff to give Defendants notice. Doc. 4.

Neither party asserted in their briefing that they would present additional evidence at a hearing, or that additional facts or testimony needs to be presented as to this motion. Because neither party has shown why an evidentiary hearing is necessary, the Court finds it can rule on the papers and declines to hold a hearing. Reynolds & Reynolds Co. v. Eaves , 149 F.3d 1191, 1998 WL 339465, at *3 (10th Cir. 1998) ("[Plaintiff] has failed to cite any Tenth Circuit authority that requires a district court to hold an evidentiary hearing prior to granting or denying a preliminary injunction motion."); see also Carbajal v. Warner , 561 F. App'x 759, 764 (10th Cir. 2014).

LEGAL STANDARD

"A preliminary injunction is an extraordinary remedy, the exception rather than the rule." Mrs. Fields Franchising, LLC v. MFGPC , 941 F.3d 1221, 1232 (10th Cir. 2019) (quoting Free the Nipple–Fort Collins v. City of Fort Collins, Colo. , 916 F.3d 792, 797 (10th Cir. 2019) ). "[B]ecause a preliminary injunction is an extraordinary remedy, the movant's right to relief must be clear and unequivocal." Fundamentalist Church of Jesus Christ of Latter–Day Saints v. Horne , 698 F.3d 1295, 1301 (10th Cir. 2012) (citations omitted).

To obtain a preliminary injunction, Plaintiff must show: "(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) that the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) that the injunction, if issued, will not adversely affect the public interest." Dine Citizens Against Ruining Our Env't v. Jewell , 839 F.3d 1276, 1281 (10th Cir. 2016) (quoting Davis v. Mineta , 302 F.3d 1104, 1111 (10th Cir. 2002) ).

DISCUSSION

Plaintiff seeks a broad preliminary injunction "preventing demolition, destruction, or otherwise modification of the [Halpin] building and Mural." Doc. 2 at 10. He primarily seeks an injunction pursuant to his claims under the federal Visual Artists Rights Act of 1990 ("VARA"). As relevant here, VARA grants visual artists under certain circumstances the right:

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature and any intentional or grossly negligent destruction of that work is a violation of that right....

17 U.S.C. § 106A(a)(3). VARA had an effective date of June 1, 1991. VARA protects the "moral rights" of certain visual artists. Pollara v. Seymour , 344 F.3d 265, 269 (2d Cir. 2003) (internal quotation marks). "[M]oral rights afford protection for the author's personal, non-economic interests in receiving attribution for her work, and in preserving the work in the form in which it was created...." Id.

I. Irreparable harm factor.

Initially, Plaintiff's motion fails because he failed to show irreparable harm in the absence of a preliminary injunction. To obtain a preliminary injunction, a movant "must establish ... that he is likely to suffer irreparable harm in the absence of preliminary relief." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "[C]ourts have consistently noted that because a showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction, the moving party must first demonstrate that such injury is likely before the other requirements will be considered. Demonstrating irreparable harm is not an easy burden to fulfill." First W. Cap. Mgmt. Co. v. Malamed , 874 F.3d 1136, 1141 (10th Cir. 2017) (internal citations and quotation marks omitted).

"[P]laintiff satisfies the irreparable harm requirement by demonstrating a significant risk that he or she will experience harm that cannot be compensated after the fact by monetary damages." RoDa Drilling Co. v. Siegal , 552 F.3d 1203, 1210 (10th Cir. 2009) (internal quotation omitted). Harm must not be speculative, rather Plaintiff bears the burden of showing a significant risk of harm. Id. That harm "must be both certain and great," not "merely serious or substantial." Prairie Band of Potawatomi Indians v. Pierce , 253 F.3d 1234, 1250 (10th Cir. 2001), quoted in State v. U.S. Env't Prot. Agency , 989 F.3d 874, 884 (10th Cir. 2021).

The only evidence in the record reflects that the mural has reached the end of its natural life. Doc. 16-4. Defendant presented the affidavit of Debra Garcia y Griego describing why the mural has reached the end of its natural life. Id. The affidavit includes a Conservation Assessment by Cynthia Lawrence, which was commissioned by Defendant. See Doc. 16-4 at 7-13. As described in the affidavit and Conservation Assessment, the mural is forty years old when the average life span of a mural is ten to twenty years. The mural is painted directly on stucco. The images have significantly faded and the stucco is unstable and cracked. Pieces of the mural have fallen off the wall. Doc. 16-4.

The Conservation Assessment noted that the mural "is in poor condition, with evidence of numerous areas of instability (and risk of continued loss of image layers), as well as an apparent significant fading and current loss of image layers." Doc. 16-4 at 9. It also noted that "expected lifetime can be a finite determination, made by many public art advocates, owners, and municipalities. Many public art programs, from the start, consider murals to be temporary, with a lifetime of approximately 10 or 20 years (though some murals have lasted in relatively good condition for well over 20 years)." Id. The Conservation Assessment also detailed the poor condition of...