Professional Documents
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Plaintiffs,
v. D-1314-CV-2018-01280
GARRETT GONZALES,
Defendant.
Plaintiff Simon Otero, by and through his undersigned counsel, respectfully moves to
(as to Injunctive Relief); Count VI (Embezzlement); and Count VI (sic) (Punitive Damages) of
Defendant Gonzales’ Counterclaim, under Rule 1-012(B)(6) NMRA, on the grounds that
Dismissal is proper under Rule 1-012(B)(6) NMRA when a Counterclaim “fails to state a
claim upon which relief can be granted”; and when “the law does not support the claim under any
set of facts subject to proof.” Derringer v. State, 2003-NMCA-073, ¶ 5, 133 N.M. 721.
A complaint can be dismissed on a motion if it is “without any merit, and the want of merit
may consist of an absence of law to support a claim of the sort made, or of facts sufficient to make
For purposes of the motion, the well-pleaded material allegations of the complaint are taken
as admitted, but conclusions of law or unwarranted deductions of fact are not admitted. Id. ¶ 6.
To survive dismissal, the “pleadings must tell a story” from which “the essential elements
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prerequisite to the granting of the relief sought can be found or reasonably inferred.”
Duran v. New Mexico Monitored Treatment Program, 2000-NMCA-023, ¶ 19, 128 N.M. 659.
The Counterclaim fails to satisfy this standard. See Nass-Romero v. Visa U.S.A. Inc., 2012-
NMCA-058, ¶ 7 (“Dismissals under Rule 1–012(B)(6) are proper when the claim asserted is
The elements of a malicious-abuse-of-process action are: (i) the use of process in a judicial
proceeding that would be improper in the regular prosecution or defense of a claim or charge;
(ii) a primary motive in the use of process to accomplish an illegitimate end; and (iii)
An improper use of process may be shown by: (i) filing a complaint without probable
conduct formerly actionable under the tort of abuse of process. See id.
The law in New Mexico is clear: “the filing of a proper complaint with probable cause,
and without any overt misuse of process, will not subject a litigant to liability for malicious
abuse of process, even if it is the result of a malicious motive.” See DeVaney v. Thriftway
Mktg. Corp., 1998-NMSC-001, ¶ 20, 124 N.M. 512, overruled by Durham, 2009-NMSC-007, ¶
25, and abrogated by Fleetwood Retail Corp. of N.M. v. LeDoux, 2007-NMSC-047, ¶ 25.
The lack of probable cause must be “very clearly proven” or “very palpable.” Prosser
& Keaton on the Law of Torts, §120 at 893. Importantly, probable cause does not require
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2007-NMSC-047, ¶ 21, 142 N.M. 150. Defendant Gonzales makes statements that:
“Mr. Otero, unlawfully, and on false premises, obtained a temporary restraining order preventing
Mr. Gonzales from entering Legion Iron’s gym (Counterclaim ¶ 47); and that there “was no
probable cause or reasonable basis for Mr. Otero to initiate judicial proceedings against
Mr. Gonzales…,” (id. ¶ 63), but those are not well-pled facts. They are conclusory statements, and,
even if they were facts accepted as true, they fail to establish a lack of probable cause in the
filing of the claim. Moreover, in the same pleading, Defendant Gonzales alleges that:
• Around 2013, Mr. Gonzales and Mr. Otero were social acquaintances who
decided to go into business together. Id. ¶2.
• The parties created two separate entities, “Massthetics, LLC, and Legion
Iron, LLC.” Id. ¶ 3.
• In 2018, the parties started the process of locating investors and a facility
for the Legion Iron gym. Id. ¶ 6.
How Defendant Gonzales can, in good-faith, claim that Mr. Otero has maliciously abused
the legal process by instituting this lawsuit against him when Defendant Gonzales’ own request
for a declaratory judgment establishes that judicial intervention in the parties’ dispute is necessary
and desired, by both parties, beggars belief. His Counterclaim should be dismissed.
Defendant Gonzales does not allege that the filing of this “claim” was done for an improper
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[Mr. Otero’s] claim suggest that the claim was filed for an improper purpose such as extortion,
Simply stated, the prosecution or alleged “irregularities” in this case have nothing to do
with the purpose of the filing of the lawsuit against Defendant Gonzales in the first place.
Defendant Gonzales’ inartful pleading attempts to turn New Mexico law on its head. See DeVaney
v. Thriftway Mktg. Corp., 1998-NMSC-001, ¶ 20 124 N.M. 512 (the filing of a proper complaint
with probable cause, and without any overt misuse of process, will not subject a litigant to
liability for malicious abuse of process, even if it is the result of a malicious motive.”).
Moreover,
*** ***
Puttuck v. Gendron, 2008 UT App 362, ¶16, 199 P.3d 971 (Utah App. 2008).
The position of the Utah courts is precisely the same as that taken by our courts. In
DeVaney, the Supreme Court concluded: “it is insufficient that the malicious-abuse-of-
process defendant acted with ill will or spite.” 1998-NMSC-001, ¶ 29. Instead, “[t]here must
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Defendant Gonzales’ allegations in support of his “malicious abuse of process claim”
illustrate the line that must be drawn between actionable conduct and one’s right to access the
courts. See Saenz v. Morris, 1987-NMCA-134, ¶ 6 (quoting Kisella v. Dunn, 58 N.M. 695, 700,
275 P.2d 181, 184 (1954) (“[W]ith all of the rules of liberality prevailing in favor of a pleader,
[t]he pleading still must state a cause of action in the sense that it must show that the pleader is
entitled to relief.” Further, “[i]t is not enough to indicate merely that the plaintiff has a grievance,
but sufficient detail must be given so that the defendant, and the court, can obtain a fair idea of
what the plaintiff is complaining, and can see that there is some legal basis for recovery.”) (internal
citations omitted). See also DeVaney, 1998-NMSC-001, ¶ l9 (stating that “[m]eaningful access to
the courts is a right of fundamental importance in our system of justice[,]” and because this cause
of action has a potential chilling effect on that right of access, “the tort of malicious abuse of
The second element requires a showing the primary motive for the suit was to
accomplish an illegitimate end. The Supreme Court has been careful to note that ill will or
spite is not a sufficient basis to establish this third element. DeVaney, 1998-NMSC-001, ¶ 29
(citing W. Page Keaton et al., §121 at 897) (“Even a pure spite motive is not sufficient where
process is used only to accomplish the result for which it was created.”)). Moreover,
“Malice...may be inferred by the jury from the want of probable cause. But the want of
probable cause cannot be inferred from any degree of even expressed malice...” DeVaney, ¶ 3.
and the filing of Defendant Gonzales’ declaratory judgment establishes there is a proper
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II. Claims of Fraud or Misrepresentation are Not Actionable.
A fraudulent misrepresentation claim requires that the injured party show that the other
party (1) made a misrepresentation of fact intentionally or with reckless disregard for the truth,
(2) with the intent to deceive and to induce the injured party to act upon it, (3) and upon which the
injured party actually and detrimentally relies. Saylor v. Valles, 2003-NMCA-037, 133 N.M. 432.
A complaint alleging fraud must “set forth the time, place and contents of the false
representation, the identity of the party making the false statements and the consequences thereof.”
Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir.1997). Although the Court
of Appeals of New Mexico has recognized that “a pleading of fraud is sufficient if the facts alleged
are facts from which fraud will necessarily be implied,” the allegations still “should leave no doubt
in defendants’ mind as to the claim asserted.” Delgado v. Costello, 91 N.M. 732, 734, 580 P.2d
Further, the purpose of the pleading requirement is to protect “defendants’ reputations from
the harm attendant to accusations of fraud,” to provide “defendants notice of the allegedly
fraudulent conduct” to formulate a defense, and to prevent “plaintiff’s from tagging on specious
fraud claims to their pleadings to induce advantageous settlements.” S2 Automation LLC v. Micron
Tech., Inc., No. CIV 11-0884 JB/WDS, 281 F.R.D. 487, 494 (D.N.M. Mar. 5, 2012).
representations and sounds more in fraud (see, e.g., Counterclaim ¶ 67-71); and Defendant
Gonzales’ Affirmative Defense No. 5 alleges that Plaintiffs’ claims “are barred…by the doctrine[]
expense of Mr. Otero’s reputation and does not aver the grounds of the fraudulent behavior to give
Mr. Otero a chance to defend himself against such harmful claims. Defendant Gonzales does not
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In addition to the failure to identify the statement made that was allegedly false, the
Counterclaim does not set forth any facts in which fraud can be necessarily implied. While the
Counterclaim briefly sets forth facts about discussions between the two parties, it cannot be
determined what, if any, statement Mr. Otero made that was false at the time or turned out to be
false at a later time. Thus, contrary to the rule, the allegations leave a substantial amount of doubt
The well-pleaded facts also fail to set forth the time and place that the alleged false
representation was made. Under Rule 1-009(F) such averments are material. Because courts are
limited to the four corners of the complaint and because a plaintiff may not overcome the pleading
deficiency by relying on arguments extending beyond the allegations of the complaint, it cannot
be determined when and where the false statement was made. See Bronstein v. Biava, 1992-
NMSC-053, ¶ 7 (rejecting purported fraud claim under Rule 9B where party sought to state
allegations in summary judgment papers rather than in the pleading itself); Saylor, 2003-NMCA-
037, ¶ 22 (rejecting fraud claim under Rule 9B for failing to plead the required element of reliance).
In addition, the Counterclaim does not identify the factual predicate upon which any
misrepresentation claims are grounded. See Counterclaim, generally. Courts have consistently
held that the failure to meet these minimum requirements for pleading warrants dismissal.
See Electro-Jet Tool Mfg. Co. v. City of Albuquerque, 1992-NMSC-060, 114 N.M. 676 (“we
believe that some allegation of the factual predicate for [Plaintiffs] [] claim should have been
provided in the complaint”); Credit Inst., 2003-NMCA-010, 133 N.M. 248 (“we believe that at
least some factual predicate for unjust enrichment must be set forth in the complaint to give Buyer
fair notice of the claim”); Yumukoglu v. Provident Life & Acc. Ins. Co., 131 F. Supp. 2d 1215,
1228 (D.N.M. 2001) (“At the very least, [Plaintiff] has failed to comply with the pleading
requirements of Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires that a civil
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complaint set forth “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Here, it is not clear either what [Plaintiff] is claiming or to what relief he is entitled….”).
information surrounding Mr. Otero’s alleged false representations. The claim should be dismissed.
See Counterclaim at 11.1 Within it, Defendant Gonzales alleges Mr. Otero has interfered with
business operations (id. ¶ 88-90) and asks for an injunction (id. 91), but nowhere in his
Counterclaim does he allege or even intimate that the damage purportedly caused by Mr. Otero is
irreparable. See Counterclaim, generally. In fact, he alleges the opposite. He claims Mr. Otero
has not returned a cash box to him (Counterclaim ¶ 55); and that “Mr. Otero’s actions have caused
Mr. Gonzales to incur substantial damages for which he is entitled…” Id. ¶ 60.
“Injunctions are harsh and drastic remedies which should issue only...where there is a
showing of irreparable injury for which there is no adequate and complete remedy at law.”
State ex rel. State Highway & Transp. Dep't of N.M. v. City of Sunland Park, 2000-NMCA-044,
“The phrases “irreparable injury” and “no adequate and complete remedy at law” tend to
overlap.” Id. “An injury that is irreparable is without adequate remedy at law.” Id. To be
“irreparable,” an injury must be “actual and substantial, or an affirmative prospect thereof, and not
An injury is not irreparable under New Mexico law if there is an adequate remedy at law.
Id. Accordingly, any request for injunctive relief should be dismissed. See Cooper v. Chevron
U.S.A., Inc., 2002–NMSC–020, ¶ 9, 132 N.M. 382, 49 P.3d 61 (concluding that reference to
1Plaintiffs agree that the Court should declare the rights and obligations of the Parties, which is why Defendant
Gonzales’ “malicious abuse of process” claim should be dismissed as meritless.
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injunctive relief in the conclusion of the complaint was not enough to determine that the complaint
involved an actual claim for injunctive relief); Valdez v. Metro. Prop. & Cas. Ins. Co., No. CIV
11-0507 JB/KBM, 2012 WL 1132414, at *27 (D.N.M. Mar. 31, 2012) (dismissing Plaintiffs’ UPA
claims for injunctive relief for failure to plead irreparable harm without an adequate remedy).
(embezzlement) as a civil cause of action. There is no case law in New Mexico that recognizes
embezzlement as a civil claim. Defendant Gonzales’ “embezzlement” claim is without merit, and
motion if it is “without any merit, and the want of merit may consist of an absence of law to support
Punitive damages are a remedy, and do not constitute a claim against Mr. Otero.
See Mason v. Texaco, Inc., 948 F.2d 1546, 1554 (10th Cir. 1991) (holding punitive damage claim
is not independent cause of action but part and parcel of a liability determination); Sussex Drug
Products v. Kanasco, Ltd., 920 F.2d 1150, 1155 (3d Cir. 1990) (count seeking punitive damages,
based upon same transaction or set of transactions, is not a separate claim). If any Counterclaim
survives and can be proved by Defendant, any damages he can prove will be governed by the facts
and law. Asserted apart from any conduct or substantive claim, no claim for punitive damages
exists, and this count should be dismissed. Butt v. Wright Medical Technology, Inc.,
No. 14-CV-3208-WJM-MEH, 2015 WL 4162576, at *2 (D. Colo. 2015) (dismissing claim for
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CONCLUSION
WHEREFORE, for the reasons set forth above, Mr. Otero respectfully requests that the
Court dismiss Defendant Gonzales’ Counterclaims against Mr. Otero as set forth above, and for
Respectfully submitted,
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