LOS LOBOS RENEWABLE POWER, LLC, and LIGHTNING DOCK GEOTHERMAL, HI-01, LLC, Plaintiffs-Appellees,
AMERICULTURE, INC., and DAMON SEAWRIGHT, Defendants-Appellants.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
MEXICO (D.C. NO. 2:15-CV-00547-MV-LAM)
Charles N. Lakins, Lakins Law Firm, P.C., Albuquerque, New
Mexico, for Appellants.
Clinton W. Marrs and Patrick J. Griebel, Marrs Griebel Law
Ltd., Albuquerque, New Mexico, Earl E. DeBrine, Jr. and Emil
J. Kiehne, Modrall, Sperling, Roehl, Harris & Sisk, P.A.,
Albuquerque, New Mexico, and Michelle Henrie, Michelle
Henrie, LLC, Albuquerque, New Mexico, for Appellees.
TYMKOVICH, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.
BALDOCK, CIRCUIT JUDGE.
appeal considers the applicability of a New Mexico statute to
diversity actions in federal court. In this action,
AmeriCulture filed a special motion to dismiss the suit under
New Mexico's anti-SLAPP statute, a provision designed to
expedite judicial consideration of so-called "strategic
lawsuits against public participation." The district
court, however, refused to consider that motion, holding the
statute authorizing it inapplicable in federal court.
reasons set forth here, we agree. Judge Baldock first gives
the factual background, on which the panel agrees. Chief
Judge Tymkovich's opinion, which Judge Briscoe joins,
explains why we have jurisdiction to hear this appeal under
the collateral order doctrine. The opinion of Judge Baldock
explains our unanimous holding on the merits of this appeal.
Finally, Judge Baldock dissents to our jurisdictional
United States Bureau of Land Management leased 2, 500 acres
of geothermal mineral rights in Hidalgo County, New Mexico to
Plaintiff Lightning Dock Geothermal HI-01, LLC (LDG), a
Delaware company. Consistent therewith, LDG developed and
presently owns a geothermal power generating project in
Hidalgo County. LDG also developed a geothermal well field on
the subject tract as part of its project. Defendant
AmeriCulture, a New Mexico corporation under the direction of
Defendant Damon Seawright, a New Mexico resident, later
purchased a surface estate of approximately fifteen acres
overlying LDG's mineral lease-ostensibly to develop and
operate a tilapia fish farm. Because AmeriCulture wished to
utilize LDG's geothermal resources for its farm,
AmeriCulture and LDG (more accurately its predecessor)
entered into a Joint Facility Operating Agreement (JFOA). The
purpose of the JFOA, at least from LDG's perspective, was
to allow AmeriCulture to utilize some of the land's
geothermal resources without interfering or competing with
LDG's development of its federal lease. We are told that
Plaintiff Los Lobos Renewable Power LLC (LLRP), also a
Delaware company, is the sole member of LDG and a third-party
beneficiary of the JFOA.
parties eventually began to quarrel over their contractual
rights and obligations. Invoking federal diversity
jurisdiction under 28 U.S.C. § 1332, Plaintiffs LDG and
LLRP sued Defendants Americulture and Seawright in federal
court for alleged infractions of New Mexico state
Of particular importance here are the factual allegations
contained in paragraphs 44D and 44E and the legal conclusions
contained in paragraph 77 of Plaintiffs' first amended
complaint. The former two paragraphs allege Defendants
"impermissibly" objected to permit applications
Plaintiffs made before the New Mexico Office of the State
Engineer and the New Mexico Oil Conservation Division.
Paragraph 77 then concludes:
Defendants Seawright and Americulture have both intentionally
and negligently made material misrepresentations concerning
the Plaintiffs and the Project to numerous state agencies and
other public bodies for the sole purpose of delaying and
subverting the Project solely for the purpose of giving
Defendants a competitive advantage for the Defendants own
intended production of Geothermal Power in violation of the
responded to these allegations and conclusions by filing a
"special motion to dismiss" pursuant to the New
Mexico anti-SLAPP statute, a state legislative enactment
aimed at thwarting "strategic lawsuits against public
participation." N.M. Stat. Ann. §§ 38-2-9.1
& 38-2-9.2. As the factual basis for their motion,
Defendants told the district court the permits which
Plaintiffs sought and to which Defendants objected
"pertained to activities conducted on lands other than
the 15-acre fee estate covered by the JFOA." As the
legal basis for their motion, Defendants asserted "New
Mexico's Anti-SLAPP statute is a substantive state law
designed to protect the Defendants from having to litigate
meritless claims aimed at chilling First Amendment
expression." Defendants described their rights under the
state statute as "in the nature of immunity because New
Mexico lawmakers also want to protect speakers from the trial
itself rather than merely from liability."
district court was not persuaded and denied Defendants'
"special" motion because "New Mexico's
Anti-SLAPP statute is a procedural provision that does not
apply in the courts of the United States." Los Lobos
Renewable Power, LLC v. Americulture, Inc., 2016 WL
8254920, at *2 (D.N.M. 2016) (unpublished). Recognizing the
interlocutory nature of the district court's decision,
Defendants subsequently moved the court to amend its order to
certify its decision for immediate appeal pursuant to 28
U.S.C. § 1292(b). The court did so. Los Lobos
Renewable Power, LLC v. Americulture., 2016 WL 8261743,
at *2-3 (D.N.M. 2016) (unpublished). But for whatever reason,
Defendants failed to timely petition us for permission to
appeal as required by § 1292(b)'s plain language.
Instead, three days after the district court certified its
ruling for appeal, Defendants filed their notice of appeal.
the respective positions of the panel members, this appeal
requires us to resolve two issues:
1. Whether we may exercise jurisdiction over this appeal
pursuant to the collateral order doctrine.
2. Whether the New Mexico anti-SLAPP statute applies in this
federal diversity action.
answer the first query yes, the second query no, and affirm
the decision of the district court.
the language of the New Mexico anti-SLAPP statute
predominates this appeal, we set forth its relevant
provisions prior to both our jurisdictional and merits
analyses. The statute consists of two parts, N.M. Stat. Ann.
§§ 38-2-9.1 & 38-2-9.2. Because placing §
38-2-9.1 in proper context is imperative to its construction,
we commence with § 38-2-9.2, entitled "[f]indings
The legislature declares that it is the public policy of New
Mexico to protect the rights of citizens to participate in
quasi-judicial proceedings before local and state
governmental tribunals. Baseless civil lawsuits seeking or
claiming millions of dollars have been filed against persons
for exercising their right to petition and to participate in
quasi-judicial proceedings before governmental tribunals.
Such lawsuits  can be an abuse of the legal process and
 can impose an undue financial burden on those having to
respond to and defend such lawsuits and  may chill and
punish participation in public affairs and the institutions
of democratic government. These lawsuits should be subject to
prompt dismissal or judgment to prevent the abuse of legal
process and avoid the burden imposed by such baseless
Id. § 38-2-9.2.
with the "[f]indings and purpose" of the New Mexico
anti-SLAPP statute, § 38-2-9.1 is entitled
"[s]pecial motions to dismiss unwarranted or specious
lawsuits; procedures; sanctions; . . . ." Subsections A,
B, and C of § 38-2-9.1 provide:
A. Any action seeking money damages against a person for
conduct or speech undertaken or made in connection with a
public hearing or public meeting in a quasi-judicial
proceeding before a tribunal or decision-making body of any
political subdivision of the state is subject to a special
motion to dismiss, motion for judgment on the pleadings, or
motion for summary judgment that shall be considered by the
court on a priority or expedited basis to ensure the early
consideration of the issues raised by the motion and to
prevent the unnecessary expense of litigation.
B. If the rights afforded by this section are raised as an
affirmative defense and if a court grants a motion to
dismiss, a motion for judgment on the pleadings or a motion
for summary judgment filed within ninety days of the filing
of the moving party's answer, the court shall award
reasonable attorney fees and costs incurred by the moving
party in defending the action. If the court finds that a
special motion to dismiss or motion for summary judgment is
frivolous or solely intended to cause unnecessary delay, the
court shall award costs and reasonable attorney fees to the
party prevailing on the motion.
C. Any party shall have the right to an expedited appeal from
a trial court order on the special motions described in
Subsection B of this section or from a trial court's
failure to rule on the motion on an expedited basis.
Id. § 38-2-9.1.A-C.
TYMKOVICH, Chief Judge, with Judge Briscoe joining, on the
issue of appellate jurisdiction.
preliminary matter, Plaintiffs contend the court does not