Hinkle Family Fun Ctr., LLC v. Grisham
| Decision Date | 17 February 2022 |
| Docket Number | 20-CV-01025-MV-KK |
| Citation | 586 F.Supp.3d 1118 |
| Parties | HINKLE FAMILY FUN CENTER, LLC, Bryan Hinkle, and Douglas Hinkle, Plaintiffs, v. Michelle Lujan GRISHAM, Individually, Acting Under the Color of Law, and Kathyleen M. Kunkel, Individually, Acting Under the Color of Law, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Attorneys for Plaintiffs: Jared Robert Vander Dussen, A. Blair Dunn, Western Agriculture, Resource and Business Advocates, LLP.
Attorneys for Defendants: Holly Agajanian, Kyle P Duffy, Maria S. Dudley, Office of the Governor Michelle Lujan Grisham.
THIS MATTER comes before the Court on Defendants’ Motion to Dismiss Plaintiffs’ 2nd Amended Complaint ("Motion to Dismiss") [Doc. 17] and Plaintiffs’ Opposed Second Motion to File Third Amended Complaint ("Motion to Amend") [Doc. 37]. The Court, having considered the motions and the relevant law, finds that Defendants’ Motion to Dismiss is well-taken and will be granted, and Plaintiffs’ Motion to Amend is not well-taken and will be denied.
Since its emergence last year, the novel coronavirus 2019, or Sars-CoV-2, the virus that causes COVID-19, has spread exponentially through the world, and New Mexico has been no exception. Doc. 17 at 2. The ease and rapidity with which COVID-19 spreads and its potentially severe symptoms create a frightening potential for mass deaths and an overloaded healthcare system. Id. at 4. As of February 4, 2022, over 75 million people have been infected with COVID-19 in the United States, with over 880,000 related deaths, and the New Mexico Department of Health has reported over 480,000 positive COVID-19 cases and 6,500 related deaths in New Mexico. February 4, 2022 Public Health Order, at 1 ("February 2022 PHO"), https://cv.nmhealth.org/public-health-orders-and-executive-orders/ (hereinafter referred to as "NM Health Website").
As COVID-19 reached the state of New Mexico, on March 11, 2020, Governor Michelle Lujan Grisham declared a Public Health Emergency under the Public Health Emergency Response Act and invoked her authority under the All Hazards Emergency Management Act. See Executive Order 2020-004, NM Health Website. At that time, the Centers for Disease Control and Prevention ("CDC") advised that "COVID-19 spreads easily through close person-to-person contact, and [that] the risk of transmission increases if individuals interact with more people, come within six feet of one another, and spend longer periods of time together." Doc. 17 at 3. In keeping with this advice and pursuant to the Governor's declaration, on March 23, 2020, the New Mexico Department of Health ("DOH"), issued a public health order ("March 2020 PHO"), in which it explained that "social distancing [was] the sole way New Mexicans [could] minimize the spread of COVID-19" and [then] constitute[d] the most effective means of mitigating the potentially devastating impact of this pandemic in New Mexico." Doc. 15-2.
To ensure social distancing and thereby further the stated goal of mitigating the spread of COVID-19, the March 2020 PHO closed all businesses and non-profit entities, except those deemed essential, and placed restrictions on mass gatherings. Id. On June 1, 2020, the DOH issued a public health order ("June 2020 PHO") amending, inter alia , the March 2020 PHO to allow certain non-essential businesses to open with maximum occupancy requirements. Doc. 15-3. Under the June 2020 PHO, "recreational facilities" were required to remain closed. Id. at 6. The June 2020 PHO expired by its own terms on June 30, 2020. Id.
On July 1, 2020, Governor Lujan Grisham issued Executive Order 2020-054 ("July EO"), indicating that "[m]any of the current confirmed positive cases of COVID-19 in New Mexico have resulted from interstate and international travel to New Mexico via airplane," and that because "some individuals infected with COVID-19 are asymptomatic or have very mild symptoms, travelers may be unaware they are carrying the virus." Doc. 15-5. For this reason, the July 2020 EO required, with certain exceptions, "persons arriving in New Mexico from out of state [to] self-isolate" for a period of at least 14 days "or for the duration of their presence in the State, whichever is shorter." Id. at 1-2.
Following emerging CDC guidance, the DOH issued a public health order on July 13, 2020 ("July 2020 PHO"), indicating that both "social distancing and the consistent and proper use of face coverings in public spaces [were] the most effective ways New Mexicans [could] minimize the spread of COVID-19." Doc. 15-4 at 2 (emphasis added). Accordingly, the July 2020 PHO amended, inter alia, the June 2020 PHO, continued occupancy limitations for certain businesses, ordered that "recreational facilities" remain closed, and required that, with certain exceptions, "all individuals shall wear a mask or multilayer cloth face covering in public settings except when eating, drinking, or swimming." Id. at 6-9. The July 2020 PHO expired by its own terms on July 30, 2020.
Meanwhile, efforts were underway to develop a vaccine against COVID-19. In December 2020, the FDA granted emergency use authorizations ("EUA") for the Pfizer/BioNTech ("Pfizer") two-dose mRNA vaccine for individuals 16 and older and for the Moderna two-dose mRNA vaccine for individuals 18 and older. See FDA News Release (Dec. 11, 2020), https://www.fda.gov/news-events/press-announcements/fda-takes-key-action-fight-against-covid-19-issuing-emergency-use-authorization-first-covid-19; FDA News Release (Dec. 18, 2020), https://www.fda.gov/news-events/press-announcements/fda-takes-additional-action-fight-against-covid-19-issuing-emergency-use-authorization-second-covid. In February 2021, the FDA granted EUA for the Johnson & Johnson vaccine for individuals 18 and older. FDA News Release (Feb. 27, 2021), https://www.fda.gov/news-events/press-announcements/fda-issues-emergency-use-authorization-third-covid-19-vaccine. In May 2021, Pfizer's vaccine received EUA for individuals 12 and older, and then in August 2021, full FDA approval for individuals 16 and older. See FDA News Release (May 10, 2021), https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-authorizes-pfizer-biontech-covid-19-vaccine-emergency-use; FDA News Release (August 23, 3021), https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-vaccine. In October 2021, the FDA authorized the emergency use of Pfizer's vaccine for children five through 11 years of age. See FDA News Release (Oct. 29, 2021), https://www.fda.gov/news-events/press-announcements/fda-authorizes-pfizer-biontech-covid-19-vaccine-emergency-use-children-5-through-11-years-age.
In November 2021, the FDA amended the EUA for both the Moderna and Pfizer vaccines, authorizing use of a single booster dose for all individuals 18 years of age and older after completion of primary vaccination
with any FDA-authorized or approved COVID-19 vaccine. See FDA News Release (Nov. 19, 2021), https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-expands-eligibility-covid-19-vaccine-boosters. In December 2021 and January 2022, the FDA again amended the EUA for the Pfizer vaccine, expanding authorization of booster doses to 12 to 17 years of age, at least five months after completion of primary vaccination with the Pfizer vaccine. See FDA News Release (Dec. 9, 2021), https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-expands-eligibility-pfizer-biontech-covid-19-booster-dose-16-and-17; FDA News Release (Jan. 3, 2022), https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-takes-multiple-actions-expand-use-pfizer-biontech-covid-19-vaccine.
With the first EUAs for covid vaccines, "New Mexico put into motion one of the most efficient vaccine rollouts in the United States." Simon Romero, How New Mexico Became the State with the Highest Rate of Full Vaccinations
, The New York Times (Apr. 14, 2021), https://www.nytimes.com/2021/04/14/us/new-mexico-covid-vaccines.html. "Going into the pandemic with a dearth of financial resources compared with richer states, and vulnerabilities like having fewer hospital beds per capita than nearly every other state, the authorities in New Mexico saw the vaccine as their most powerful weapon to stave off an even more harrowing crisis." Id. By April 2021, New Mexico had reached the second highest vaccination rate in the United States. Id.
As the number of vaccinated New Mexicans grew and scientific studies showed that the vaccines were safe and effective in preventing severe illness, Governor Lujan Grisham and the DOH began to lift restrictions on businesses and travel into the state, and to shift pandemic mitigation strategies toward vaccine and mask mandates. Specifically, on November 27, 2020, the State announced that, "[i]n an effort designed to provide local communities the flexibility to operate more day-to-day activities," it would "transition to a tiered county-by-county COVID-19 risk system on Dec. 2, enabling local communities to shed burdensome restrictions as soon as public health data show the virus is retreating within their borders." Office of the Governor Press Release (Nov. 27, 2021), https://www.governor.state.nm.us/2020/11/27/state-announces-tiered-red-to-green-system-for-n-m-counties-in-next-phase-of-covid-19-response. Under the "red to green" framework, a succession of public health orders rescinded prior public health orders and allowed, inter alia , outdoor and indoor recreational facilities to reopen and operate at reduced but increasing capacities commensurate with each county's decrease in COVID-19 case incidence rates and percentage of positive COVID-19 test results and increase in vaccination
rates. See generally, Public Health Orders (Nov. 30, 2020 to June 30, 2020), NM Health Website. Additionally, noting that ...
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