Gerhardt v. Mares (179 F. Supp. 3d 1006, 2016)

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendant Roscoe Woods’ Motion to Dismiss Amended Complaint, filed October 16, 2015 (Doc. 29)(“Woods Motion”); (ii) the Racing Commission Defendants’ Motion to Dismiss, filed October 28, 2015 (Doc. 31)(“Commission Motion”); and (iii) the Plaintiffs Motion for Leave to File Sur-Reply to Defendant Woods’ Reply in Support of Motion to Dismiss, filed November 24, 2015 (Doc. 38)(“Surreply Motion”). The Court held a hearing on December 18, 2015. The primary issues are: (i) whether the Court should grant Plaintiff Robert J. Gerhardt’s Surreply Motion and allow him to file a surreply to Reply Memorandum of Law in Further Support of Roscoe Woods’ Motion to Dismiss Amended Complaint, filed November 16, 2015 (Doc. 33)(‘Woods Reply”); (ii) whether qualified immunity bars Gerhardt’s claims against Defendant Roscoe Woods, an Assistant Attorney General for the State of New Mexico, who represented Defendant New Mexico Racing Commission (the “Racing Commission”) and who set up, a settlement conference between Gerhardt and the other Defendants; (iii) whether Gerhardt has sufficiently- alleged a claim against Woods for civil conspiracy under rule 12(b)(6) of the Federal Rules of Civil Procedure; (iv) whether ripeness, abstention under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)(“Younger abstention”), the Declaratory Judgment Act, or absolute quasi-judicial immunity bar Gerhardt’s federal claims against the remaining Defendants; and (v) whether sovereign immunity and the New Mexico Tort Claims Act, N.M. Stat. Ann.1978 §§ 41-4-1 to—30 (“NMTCA”), bar Gerhardt’s state claims against the remaining Defendants. First, the Court grants Gerhardt’s Surreply Motion to allow Gerhardt to clarify his arguments. Second, the Court concludes that qualified immunity bars Gerhardt’s claims against Woods. Third, the Court would grant the Woods Motion even if qualified immunity did not apply, because Gerhardt fails to state a claim under rule 12(b)(6). Fourth, the Court concludes that ripeness and quasi-judicial immunity, but not Younger abstention or the Declaratory Judgment Act, bar Gerhardt’s federal claims against, the remaining Defendants. Finally, the Court concludes that sovereign immunity and the NMTCA bar Gerhardt’s state-law claims against the remaining Defendants. The Court will thus grant the Surreply Motion, the Woods Motion, and the Commission Motion.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint, as it must when ruling on a motion under rule 12(b)(6) of the Federal Rules of Civil Procedure. See Amended Complaint for Damages for Constitutional Violations, Prima Facie Tort and Civil Conspiracy, filed October 9, 2015 (Doc. 28)(“Com-plaint”).

Gerhardt owns a racehorse known as Three Wild Dreams. See Complaint ¶ 16, at 3. Three Wild Dreams was registered to compete in a race meet on May 24, 2014, at the Ruidoso Downs Race Track in Ruidoso Downs, New Mexico. See Complaint ¶ 14, 16, at 2-3. The purse value of this race was nearly one million dollars. See Complaint ¶ 17, at 3. Defendant David Keiter, the race’s presiding steward, “scratched” Three Wild Dreams from the race moments before it began. Complaint ¶¶ 18-19, at 3. Keiter acted “under the authority and specific direction of Vincent Mares, Executive Director of the” Racing Commission. Complaint ¶ 20, at 3.

Keiter stated that he scratched Three Wild Dreams because of Gerhardt’s failure to comply with “Rule 15.2.5.12(B) (the ‘Breed Certificate Rule’),” which states that “[a] horse shall be ineligible to start in a race when its breed registration certificate is not on file with the racing secretary.” Complaint ¶¶ 21-22, at 3. The racing secretary at Ruidoso Downs had copies of Three Wild Dreams’ breed registration certificate on file instead of the original version. See Complaint ¶ 24, at 3.

“On or about May 24, 2014, David Keiter, acting in consort with Vincent Mares, interpreted the Breed Certificate Rule to require the ‘original’ Breed Certificate to be on file at a race location on race day.” Complaint ¶ 25, at 3-4. The Racing Commission had not enforced the Breed Certificate Rule “in recent history when two live races were ongoing.” Complaint ¶ 26, at 4. The Racing Commission did not scratch any horses during races within the same event on May 22-23, 2014. See Complaint ¶ 28, at 4.

“Leasa Johnson, an investigator with the NMRC [New Mexico Racing Commission], was present at the Ruidoso Downs races on May 24, 2014.” Complaint ¶ 30, at 4. Johnson inquired into.the horse scratches on May 24, 2014, and Keiter advised her that he was enforcing the Breed Certificate Rule. See Complaint ¶ 31, at 4. Johnson expressed concern, because the Racing Commission had not enforced the “original” certificate requirement in recent history and the Racing Commission was not enforcing it consistently to all competitors. See Complaint ¶¶ 3233, at 4. “Based on the horses scratched, it appears that the NMRC was targeting. horses trained by trainer John Stinebaugh.” Complaint ¶ 34, at 4. The Racing Commission did not enforce the requirement until the third day of the Ruidoso Downs meet and did not apply the originals requirement to every horse during the three-day Ruidoso Downs meet. See Complaint ¶¶ 35, 39 at 4, 5. The Racing Commission provided only “select owners and trainers” with advance notice that it would begin enforcing the “implied” Breed Certificate Rule’s “original” requirement. Complaint ¶¶ 37, 43, at 5-6.

Gerhardt filed an appeal with the Racing Commission regarding the improper scratch on or about May 30, 2014. See Complaint ¶ 45, at 6, The Racing Commission appointed Leann Warbelow as the hearing officer,-and she held a hearing on several: similar cases on November 20, 2015. See Complaint ¶¶ 46-47, at 6. “Lonnie Barber, Director of the SunRay Park Race Track for eleven years and former president of the Horseman's Association for fifteen years testified during the NMRC hearing that the NMRC had not enforced the original certificate requirement of the Breed Certificate Rule in the past.” Complaint ¶ 40, at 5. Warbelow issued her initial report and recommendation to the Racing Commission (the “Initial Recommendation”) on December 16, 2014. See Complaint ¶ 102, at 13. She found that the scratch “shows a lack of impartiality and is inconsistent with the statutory directive of the Horse Racing Act that rules of the Commission be ‘construed to ensure that horse racing in New Mexico is conducted with fairness.’ ” Complaint ¶ 48, at 6.

On March 12, 2015, the Racing Commission voted to take the Warbelow’s decision “under advisement.” Complaint ¶ 50, at 6. On July 8, 2015, the Racing Commissioners (Robert M. Doughty III, Beverly Bourguet, Jerry Cosper, Gayla D; McCul-loch, and Ray Willis) and Woods set up a “settlement meeting” with “the primary purpose of assessing the strength of Plaintiffs case.” Complaint ¶ 106, at 14. Woods had no authority or intent to resolve the issue, and used the meeting “solely to gather information by which to influence and/or change the hearing officer’s decision.” Complaint ¶¶ 108-109, at 14. On July 22, 2015, the Racing Commissioners held a meeting, at least in part to discuss Gerhardt’s claims. See Complaint ¶ 110, at 14. They ignored the relevant regulations, which required them to discuss the issue in an open meeting. See Complaint ¶¶ 111-112, at 14-15. “Based on information extracted during a settlement meeting, Defendant Commissioners acted to. ‘remand’ Plaintiffs matter for further examination. No explanation was provided as to how such process was to proceed or the reasons/purposes for a remand.” Complaint ¶ 113, at 25. The Racing Commission has not taken any further action on ■ Gerhardt’s claims. See Complaint ¶ 114, at 15.

PROCEDURAL BACKGROUND

Gerhardt filed his Amended Complaint on October 9, 2015. See Complaint at. 1. His Complaint targets Woods, the Racing Commission, its Racing Commissioners, Keiter (its steward), Mares (its executive director), and five unidentified Racing Commission employees. See Complaint ¶¶ 5-9, 101, 107-109, at 2, 13-14. The Complaint appears to allege: (i) violations of the Fourteenth Amendment to the Constitution of the United States’ Due Process Clause; (ii) violations of the Fourteenth Amendment’s Equal Protection Clause; (iii) a prima facie tort under New Mexico state common law; and (iv) state common-law conspiracy. See Complaint ¶¶ 1124, at 1-17. Gerhardt seeks: (i) a declaration that the Defendants violated his right to due process; (ii) a declaration that the Defendants violated his right to equal protection under the law; (iii) attorney’s fees and costs; (iv) a “declaration that the actions of identified Defendants described in this Complaint establishes [sic] a pattern and practice of the NMRC to violate its own governing laws, regulations, policies and practices”; (v) “|j]udgment in favor of Plaintiff on each of his Causes of Action”; (vi) “[g]eneral compensatory damages according to proof’; (vii) punitive damages; (viii) post-judgment interest; and (ix) “[a]ny and all other relief that may be appropriate.” Complaint ¶¶ 1-9, at 17-18 (listing requested relief).

1. The Woods Motion.

Woods filed his motion to dismiss on October 16, 2015. See Woods Motion at 1. Woods sums up his argument:

Plaintiffs sole cause of action against Mr. Woods is a claim for civil conspiracy. Mr. Woods, however, is protected from suit by the immunity afforded by the Eleventh Amendment to the United States Constitution. Plaintiffs claims against Mr, Woods are further barred by the New Mexico Tort Claims Act. Additionally, Mr. Woods enjoys qualified immunity for acts undertaken in the course of his duties as an Assistant Attorney General, and Plaintiff fails to allege any facts that would defeat such immunity. Finally, even taking all of the Amended Complaint’s factual allegations as true, the Amended Complaint fails to state a claim upon which relief can be granted against Mr. Woods,

Woods Motion at 2.

First, Woods argues that sovereign immunity bars Gerhardt’s claim against him in his official capacity. See Woods Motion at 9-13. He explains that the NMTCA creates only limited exceptions to the state’s Eleventh Amendment immunity. See Woods Motion at 10-11. These exceptions, he says, apply only when the plaintiff brings suit in the state district courts. See Woods Motion at 11 (citing N.M. Stat. Ann.1978 § 41-4-18(A)(“Exclusive original jurisdiction for any claim under the Tort Claims Act shall be in the district courts of New Mexico.”)); Bishop v. John Doe 1, 902 F.2d 809, 810 (10th Cir.1990). Moreover, Woods adds, New- Mexico “has not waived its sovereign immunity in any forum with respect to claims for civil conspiracy.” See Woods Motion at 12 (emphasis in original).

Second, Woods contends that qualified immunity shields him from Gerhardt’s civil conspiracy claim. See Woods Motion at 12-15. He notes that Gerhardt fails to allege even that he acted under color of law. See Woods Motion at 12. He also argues that his participation in the settlement conference did not violate any constitutional rights, much less any clearly established rights. See Woods Motion at 15. He concedes that Gerhardt “is entitled to have his appeal of the Steward’s decision reviewed by the Racing Commission,” but adds that Gerhardt “fails to allege that the Commission has refused to consider his appeal.” Woods Motion at 15.

Finally, he attacks Gerhardt’s civil conspiracy claim under rule 12(b)(6). See Woods Motion at 15-16. He states that “[plarticipating in a settlement discussion is not actionable, in tort or otherwise; nor is attending a settlement meeting to learn about an adversary’s position, or to “gather information,” a legally cognizable wrong. Woods Motion at 15-16. Woods asserts that the rest of Gerhardt’s Complaint offers only

robotic statements along the lines that Mr. Woods acted ‘to conspire and deprive Plaintiff of his constitutional rights to due process and equal protection under the law,’ Amended Complaint ¶ 101, acted “to further deprive Plaintiff of his property interests and further the harm caused by procedural violations of NMRC employees,” id. ¶ 107, and also “combined” with other Defendants “to engage in a civil conspiracy that was furthered by overt acts,” id. ¶ 116.

These allegations', he contends, are exactly the sort of “formulaic ■ recitation of the elements of a cause of action” that federal courts routinely reject. Woods Motion at 16 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Gerhardt responded on October 30, 2015. See Plaintiff’s Response to Defendant Roscoe Woods’ Motion to Dismiss Amended Complaint, filed October 30, 2015 (Doc. 32)(“Woods Response”). Gerhardt asserts that, despite his Complaint’s reference to the NMTCA, see Complaint ¶ 2, at 1, Woods’ sovereign immunity arguments are irrelevant. See Woods Response at 6. Gerhardt states that Woods conspired with other state actors to violate “his constitutional right to equal protection under the law as applied to state actors via 42 U.S.C. § 1983.” Woods Response at 6. Although the Woods Response is difficult to follow, Gerhardt seems to argue that Woods’ participation in the settlement conference was merely one part of a greater conspiracy among the defendants to violate Gerhardt’s federal constitutional rights. See Woods Response at 8-9. He- contends that Woods violated these rights, in part, by “affording] an unfair- advantage to other individuals in violation of the equal protection clause.” Woods Response at 9.

Gerhardt also counters Woods’ argument that he fails to allege any state action. See Woods Response at 10. He notes that,-although he did not use “the magic words advocated by defense counsel,” he “identified each Defendant as a state employee” and pled other facts that demonstrate that Woods acted under color of state law. Woods Response at 10. He notes that Woods “had no authority to actually settle Plaintiffs [sic] claims when hosting [the settlement] meeting, nor had he requested any,” arguing that this fact demonstrates Woods’ bad faith. Woods Responseat 11.

Gerhardt next contends that Woods is not entitled to qualified immunity. See Woods Response at 13-14. He continues to argue that Woods acted under color of law. See Woods Response at 13 (citing Jojola v. Chavez, 55 F.3d 488 (10th Cir.1995)(“[S]tate employment is generally sufficient to render the defendant a state actor[.]”)). Gerhardt cites state regulations and cases to show that his right “to engage in his chosen profession” was clearly established on May 24, 2014. Woods Response at 16 (citing Stinebaugh v. N.M. Racing Comm’n, No. 32,840, 2015 WL 4874288 (N.M.Ct.App. July 9, 2015)). See State Racing Comm’n v. McManus, 1970-NMSC-134, ¶ 19, 82 N.M. 108, 476 P.2d 767, 771 (noting that a license “is not a vested right within the meaning of the due process clause of the state and federal constitutions,” but recognizing that a jockey has “a right to engage in his chosen profession”).

Gerhardt concludes by discussing how the alleged conspiracy’s actions violated his constitutional rights. See Woods Response at 16-18. He says that the Defendants collectively created new regulations, reinterpreted old regulations, and implemented them selectively. See Woods Response at 17. He also challenges the adequacy of New Mexico’s procedural protections as applied to him. See Woods Response at 17. He- notes that he received a hearing only after his deprivation, that the hearing did not occur “in a ‘meaningful time and in a meaningful manner. ” and that Woods was aware of and involved in these violations. Woods Response at 17. Finally, he argues that the Court should grant him leave to amend his Complaint if the Court finds it inadequate. See Woods Response at 20.

Woods replied on November 16, 2015. See Woods Reply at 1. Woods begins by summarizing his primary points:

• Sovereign immunity bars his lone claim against Mr. Woods, to the extent that claim is raised against Mr. Woods in his official capacity;

• Qualified immunity mandates dismissal of Plaintiffs claim against Mr. Woods, to the extent that claim is raised against Mr. Woods in his individual capacity[; and]

• The Amended Complaint’s only allegation of fact regarding Mr. Woods is that he participated in a settlement discussion with Plaintiffs attorney and did so for the sole purpose of “gathering information,” an allegation that cannot sustain Plaintiffs civil conspiracy claim.

Woods Reply at 1-2. Woods argues that Gerhardt’s sovereign immunity argument ignores

the salient aspects of the sovereign immunity analysis in this case: that our law requires an express waiver or abrogation of the State’s sovereign immunity (regardless of whether Defendants conspired to inflict a constitutional or common-law injury on Plaintiff), that no such abrogation or waiver has been established, and therefore that sovereign immunity shields Mr. Woods from this lawsuit.

Woods Reply at 3. He thus explains that his sovereign immunity defense rests on the absence of a legislative exception for Gerhardt’s suit. See Woods Reply at 3. He notes that Gerhardt now sues him “only for engaging in a conspiracy to violate vaguely: described constitutional rights, and not a conspiracy to commit tortious acts.” Woods Reply at 4. Woods contends that, regardless of whether Ger-hardt sues for a conspiracy under federal or state law, “the same prerequisites apply before the State or its officials can be sued in federal court.” Woods Reply at 4.

Woods then repeats his arguments on qualified immunity. See Woods Reply at 5-8. He emphasizes that a plaintiff must do more than identify a constitutional right in the abstract and allege that the defendant has violated it. See Woods Reply at 6 (citing Hilliard v. City and Cty. of Denver, 930 F.2d 1516, 1518 (10th Cir.1991)). He asserts that the Complaint never ventures beyond “numerous generic invocations of ‘due process,’ ‘equal protection,’ and ‘property interests!/]’ ” Woods Reply at 7. He again questions the conspiracy claim: “Exactly what ‘machinations’ did Mr. Woods and the other Defendants undertake in furtherance of their apparently vast conspiracy against Plaintiff and his sorrel gelding? The Court, Mr. Woods, and the other Defendants are. left to guess, because the Amended Complaint offers no explanation.” Woods Reply at 10. Woods concludes by attacking Gerhardt’s request that the Court attribute any wrongdoing committed by any other defendant to Woods. See Woods Reply at 11. He states that Gerhardt “cannot use his Response to introduce new allegations that he failed to include in his Amended Complaint.” Woods Reply at 11.

Gerhardt requested leave to file a surre-ply on November 24, 2015. See Surreply Motion at 1. He explains that a surreply “allows a non-moving party the opportunity to respond to new materials or new legal arguments briefed for the first time in a movant’s reply.” Surreply Motion at 1. Woods, he says, raised two new arguments: that he is immune from suit in his individual capacity as an arm of the State of New Mexico and that his Eleventh Amendment immunity applies to Ger-hardt’s § 1893 claim. See Surreply Motion at 2. Gerhardt also cites to the- “complexity of this case and the defenses raised.” Reply Motion at 2.

Gerhardt’s proposed surreply responds to Woods’ “new” argument that “he is immune from suit in his individual capacity because he is an ‘arm’ of the state and, thus, he enjoys the same immunity from a 42 U.S.C. § 1983 claim that a state enjoys.”- Plaintiffs Sur-Reply to Defendant Roscoe Woods’ Motion to Dismiss at 1, filed November 24, 2015 (Doc. 38-l)(“Sur-reply”). Although the Surreply is confusing, Gerhardt appears to argue that Woods cannot benefit from sovereign immunity when sued in his individual capacity. See Surreply at 2. The bulk of the Surreply repeats Gerhardt’s arguments about state action and the alleged conspiracy. See Surreply at 3-4.

Woods opposes the Surreply Motion. See Defendant Roscoe Woods’ Response in Opposition to Plaintiffs Motion for Leave to File Sur-Reply, filed December 10,2015 (Doc. 40)(“Surreply Response”). Woods contends that: (i) his reply brief did not raise any new arguments; and (ii) the Surreply “simply restates contentions that Plaintiff already has offered in his response brief” Surreply Response at 2. He concludes that''“[t]his action is a straightforward, albeit meritless, Section 1983 and state-law tort suit, and Defendants have raised straightforward legal bases for dismissal.” Surreply Response at 5.

2. The Commission Motion.

The remaining Defendants (the “Racing Commission Defendants”) moved to dismiss the Complaint on October 28, 2015. See Commission Motion at 1. They raise seven primary arguments. See Commission Motion at 6-13. First, they contend that the case is not ripe, because: (i) the question whether Gerhardt complied with the Racing Commission’s regulations does not present purely legal issues; (ii) awaiting the conclusión of the Racing Commission’s proceedings would allow for a more developed record; (iii) the delay will not cause Gerhardt any hardship because there is no ongoing impact; (iv) there is “an ongoing administrative proceeding that is judicial in nature”'; and (v) the state courts provide an adequate forum because Racing Commission decisions áre subject to state judicial review. Commission Motion at 6-7.

Second, the Racing Commission Defendants argue that the Court must abstain from hearing this constitutional claim during an ongoing state proceeding under Younger abstention. See Commission Motion at 8. They explain that there is an ongoing administrative proceeding that is judicial in nature, that the issue involves important state interests, and that the Racing Commission’s proceedings, in conjunction with appeal to the state courts, are adequate to hear Gerhardt’s claims. See Commission Motion at 8-9. They acknowledge that the doctrine does not apply “in cases of proven harassment or prosecutions taken in bad faith or other extraordinary circumstances where irreparable injury can be shown,” but contend that a plaintiff must set forth “more than mere allegations of bad faith or harassment.” Commission Motion at 9.

Third, the Racing Commission Defendants assert that the Court should exercise its discretion under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, to decline to grant any declaratory relief. See Commission Motion at 9-10. They cite Public Service Commission of Utah v. Wycoff Company, Inc., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952), stating that it held that “the declaratory judgment procedure will not be used to preempt and prejudice issues that are committed for initial decision to an administrative body or special tribunal, any more than it will be used as a substitute for statutory methods of review.” 344 U.S. at 247, 73 S.Ct. 236.

Fourth, the Racing Commission Defendants contend that the Racing Commission is immune from suit for damages under the Eleventh Amendment. See Commission Motion at 1011. They note that Eleventh Amendment protections apply to both states, and state agencies. See Commission Motion at 11 (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), and Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)). The Racing Commission, they assert, is a regulatory agency that state statute creates. See Commission Motion at 11 (citing N.M. Stat. Ann.1978 § 60-1A-3).

Fifth, the Racing Commission Defendants argue that they are entitled to absolute immunity, because they perform quasi-judicial functions. See Commission Motion at 11. They state that this category includes “hearing officials, executive officials that initiate administrative proceedings, and agency attorneys participating in the administrative proceeding.” Commission Motion at 11. They contend that the Court applied this same formula to the Racing Commission in Simon v. Taylor, 981 F.Supp.2d 1020 (D.N.M.2013)(Browning, J.). They argue that, by extension, the same absolute immunity applies to the Racing Commission’s individual members. See Commission Motion at 12. Woods’ “information gathering,” for example, allegedly “suggests nothing other than a prosecutorial role for the Racing Commission.” Commission Motion at 12.

Sixth, the Racing Commission Defendants contend that Gerhardt has failed to state a claim for civil conspiracy to deprive him of his constitutional rights. See Commission Motion at 13. They argue that they should be absolutely immune from Gerhardt’s civil conspiracy claim, because: (i) they perform quasi-judicial functions; (ii) quasi-judicial immunity is analogous to prosecutorial. immunity; (iii) prosecutors are absolutely immune if their participation in a conspiracy consists of otherwise immune acts. See Commission Motion at 13.

Seventh, the Racing Commission Defendants argue that Gerhardt’s prima facie tort and civil conspiracy claims are “barred by the Tort Claims Act,” because “there has been no waiver , of immunity for this tort.” Commission Motion at 13.

Gerhardt responded on November 16, 2015. See Plaintiffs Response to New Mexico Racing Commission Defendants’ Motion to Dismiss Amended Complaint, filed November. 16, 2015 (Doc. 35)(“Com-mission Response”). Gerhardt challenges the Racing Commission Defendants’ argument that he failed to exhaust his administrative remedies. See Commission Response at 4. He explains that the Racing Commission’s remand “does nothing but remand the matter back to the hearing officer[] for ‘further review.’ It offers no direction, it points to no errors or deficiencies in the hearing officer’s previously tendered report and sets out no path to resolution.” Commission Response at 4. He contends that there is no statutory exhaustion requirement and that he meets “all if [sic] several of the five grounds for excusing a failure to exhaust.” Commission Response at 5. The Racing Commission could in theory provide an adequate remedy, he allows,, but the Racing Commissioners “have explicitly declined to do so.” Commission Response at 5. He contends that, because “the harms have and deprivations been fully completed,” further Racing Commission proceedings would be futile. Commission Response at 5-6. He applies the same arguments to the Racing Commission Defendants’ ripeness contentions. See Commission Response at 7.

Gerhardt also questions the Racing Commission Defendants’ reliance on Younger abstention. See Commission Response at 6-7. He states that the record in the matter is complete and that the Racing Commission’s remand “is nothing more than a sham to obstruct Plaintiffs claims from going to judicial review.” Commission Response at 6. He emphasizes that Younger abstention does not require federal deference to a state judicial proceeding reviewing legislative or executive action. See Commission Response at 6-7. Ger-hardt concedes that dismissal is appropriate against the Racing Commission unless his prima facie tort claim survives the Commission Motion. See Commission Response at 8. He does not extend the same concession to individual Defendants. See Commission Response at 8-9.

Gerhardt contends that quasi-judicial immunity does not apply to any of the Defendants. See Commission Response at 9-20. He distinguishes Simon v. Taylor on several grounds. See Commission Response at 9-10. He notes that the Court expressly limited its holding: “The Racing Commissioners’ functions are, at least as relevant in this case, similar to those of judges in the judicial process, the Racing Commissioners’ decisions were likely to cause litigation, and the regulatory scheme contained sufficient safeguards to prevent unconstitutional conduct.” Commission Response at 10 (quoting Simon v. Taylor, 981 F.Supp.2d at 1062 (emphasis in Commission Response)). He then distinguishes his situation, noting that “any confidence in decisions—or lack of decisions— reached by the Commission is utterly lacking.” Commission Response at 11. He adds that the Court’s factual findings in Simon v. Taylor assume that the Racing Commission will consider a proposal for decision “in open meeting” and will not take a decision under advisement. Commission Response at 12 (quoting Simon v. Taylor, 981 F.Supp.2d at 1049). All of these allegations, Gerhardt says, show that the “sufficient safeguards” that Simon v. Taylor requires are illusory in this case. Commission Response at 13-14. He applies the same legal tests to Keiter and Mares, concluding that they were acting in a regulatory capacity rather than a judicial capacity. See Commission Response at 14-16. Finally, Gerhardt concludes that his prima facie tort claim survives, because the Defendants were not acting within their duties’ scope under the NMTCA. See Commission Response at 19-20.

The Racing Commission Defendants replied on December 4, 2015. See Racing Commission Defendants’ Reply in Support of Motion to Dismiss, filed December 4, 2015 (Doc. 39)(“Commission Reply”). The Racing Commission Defendants assert that a continued administrative appeal “could result in a different determination on Plaintiffs challenges.” Commission Reply at 4 (emphasis in original). They state that the “Plaintiff only speculates, without citing basis [sic], that nothing more will or even can come of the remaining remand and review process.” Commission Reply at 4. They also point out what they say are weaknesses in the Commission Response:

Third, while quickly listing and claiming to meet the five criteria purportedly allowing administrative remedies to be bypassed, Plaintiff does not actually articulate why any, let alone all, of these criteria are met.... Plaintiff purports to analyze, apply, and satisfy the first three criteria in a single, run-on sentence that is almost unintelligible.

Commission Reply at 5. They add that the final factor, irreparable harm absent immediate judicial review, is inconsistent with Gerhardt’s assertion that “(i) the harm done to Plaintiffs has already been completed fully; and (ii) the harm is not irreparable as it may be remedied by monetary [ jcompensation.” Commission Reply at 6 (quoting Commission Response at 5).

The Racing Commission Defendants also reinforce their arguments for Younger abstention. See Commission Reply at 6-7. They cite to Amanatullah v. Colo. Board of Medical Examiners, 187 F.3d 1160 (10th Cir.1999), where the United States Court of .Appeals for the Tenth Circuit affirmed the United States District Court for the District of Colorado’s decision to abstain from interfering with state proceedings to revoke a physician’s license to practice medicine. See 187 F.3d at 1164. They argue that, as in Amanatullah v. Colorado Board of Medical Examiners, there are ongoing administrative proceedings, the state provides an adequate forum to hear constitutional claims, and the relevant issue involves important state interests. See Commission Reply at 7.

3. The Hearing.

The Court held a hearing on December 18, 2015. See Transcript of Hearing (taken December 18, 2015)(“Tr.”). The parties largely stuck to the arguments in their briefing. The Court began discussion of the Woods Motion by confirming that Ger-hardt’s claim was “a conspiracy claim for violation of federal constitutional rights under 1983 and it’s limited to that” and'that “there is no state claim[—]we don’t have to worry about New Mexico Tort Claims Act with[ ] him and he’s not being sued in any sort of official capacity.” Tr. at 5:10-23 (Court, Richards). Gerhardt agreed to both points. See Tr. at 5:10-23 (Court, Richards). The Court granted the Surre-ply Motion, and noted that it reviewed the Surreply and is familiar with its arguments. See Tr. at 6:11-19 (Court); id. at 7:15-19 (Court).

Woods explained that he was serving, as an attorney at the time of the disputed settlement conference. See Tr. at 14:5-17 (Biernoff). He noted that, “if in several centuries of American jurisprudence there had been a case that allowed plaintiffs to maintain a suit against the adversary’s attorney, as this plaintiff is trying to do here that the plaintiff would -have directed the Court’s attention to it.” Tr. at 16:16-21 (Biernoff). If there is such a case, he added, it did not involve mere participation in a settlement conference. See Tr. at 18:1-24 (Biernoff). Gerhardt repeated the argument in his briefing that the Court should not focus only on the settlement conference and should hold Woods responsible “for the entire breadth of the conspiracy.” Tr. at 19:18-20:4 (Richards). After questioning from the Court, Gerhardt argued that the conspiracy was aimed at depriving him of his right to engage in his chosen profession—horse raising. See Tr. at 21:17-22:8 (Court, Richards). At various points, he identified the First, Fourth, Fifth, and Fourteenth Amendments as the source of that right. See Tr. at 22:9-25:3 (Court, Richards).

Woods responded by emphasizing that Gerhardt entered the settlement conference voluntarily. See Tr. at 28:20-29:11 (Biernoff). He also objected to Gerhardt’s attempt to “amend [his] pleading orally on the spot at the motion to dismiss hearing” to add First Amendment claims. Tr. at 29:21-80:2 (Biernoff). The Court stated that it was “inclined to grant [the] Woods motion to dismiss the amended complaint,” noting that “the allegations here are just as' consistent with an attorney doing their job as they are with somebody violating somebody’s constitutional rights.” Tr. at 33:6-17 (Court).

The parties then moved on to qualified immunity. See Tr. at 18-19 (Court). Woods assumed, for the sake of argument, that he had used the settlement conference to learn as much as possible about Gerhardt’s case and use it to the Racing Commission’s advantage. See Tr. at 34:25-35:5 (Biernoff). Even then, he said, the act would not violate any clearly established constitutional right. See Tr. at 35:5-7 (Biernoff). Gerhardt identified the relevant right as the “right to be protected from arbitrary actions of Government officials.” Tr. at 37:21-25 (Richards). He reiterated the need for additional discovery to uncover communications between Woods and other Racing Commission actors.' See Tr. at 40:1-41:16 (Richards). The Court stated that it was inclined to agree that there had not been a constitutional violation and that it could not locate I a sufficiently similar case to make any such right clearly established. See Tr. at 45:246:10. Given its agreement with Woods on both grounds, it noted that it was inclined to grant the Woods Motion. See Tr. at 46:11-17 (Court, Biernoff).

The hearing shifted to the dispute between Gerhardt and the- Racing Commission Defendants. See Tr. at 46:17-20 (Court). The Racing Commission Defendants first expanded on their ripeness argument. See Tr. at 47:13-18 (Court, Howell). They asserted that “the commission itself has not had an opportunity or has not yet made a decision” on Gerhardt’s arguments. Tr. at 48:13-15 (Howell). In response to pointed questioning from the Court, the Racing Commission Defendants conceded that their delay in deciding the issue could drag on long enough to effectively constitute a denial, see Tr. at 48:25-51:6 (Court, Howell), but they presented excuses for the delay and questioned whether it caused Gerhardt any actual harm, see Tr. at 50:16-51:17 (Howell). They also stated that they were waiting for another hearing on the matter. See Tr. at 51:24-52:7 (Howell).

Gerhardt objected to their description of the situation, noting that the remand decision said nothing about a new hearing and gave no specific directions. See Tr. at 54:16-55:2 (Richards). He clarified that he challenged the Breed Certificate Rule’s sudden and inconsistent application rather than its proper interpretation. See Tr. at 56:13-57:14 (Richards). He also argued that the Racing Commission could not provide adequate compensation, because his horse might be ineligible for future races: “The horses have very short racing careers, and when a horse does not get to race in one particular type of race it impacts their ability to race in future races.” Tr. at 58:12-15 (Richards).

Regarding the Racing Commission Defendants, the Court observed that “it certainly looks like they’re kind of dragging their feet here on this thing.” Tr. at 61:22-23 (Court). The Court noted that the Racing Commission Defendants’ action “puts the Court in a difficult position when the commission is basically saying don’t do anything Federal Court, but I don’t see the commission doing anything either. They’re wanting me to defer either through a ripeness doctrine or something else, but I don’t see them doing anything either.” Tr. at 63:2-8 (Court). . The Racing Commission Defendants argued that they were still within an appropriate time frame, “[b]ecause of the uniqueness of the issue and the recent action on it.” Tr. at 63:17-21 (Howell).

The parties moved on to discuss the remaining issues after a break. See Tr. at 65:20-22 (Court). The parties repeatedly clashed over whether their dispute was centered on the Racing Commission’s proper interpretation of the Breed Certification Rule, with the Racing Commission Defendants repeatedly questioning why the Rule was irrelevant. See Tr. at 74:1422 (Howell)(“[W]hat’s being challenged is a disqualification' of a horse from a race, where the basis of the disqualification was an interpretation of that rule. It’s nonsensical to keep arguing that it’s irrelevant.”); Tr. at 77:5-79:2 (Richards)(“[R]ight or wrong we don’t care, they applied it in a way that violated equal protection, applied it in. a way that deprived folks of meaningful due process[.]”).

The Court then shifted the discussion to focus on judicial immunity. See Tr. at 80:10-11 (Court). It established, through questioning of both parties, that Gerhardt was no longer suing the Racing Commission as an entity, and that his remaining claims were only against individuals. See Tr. at 80:16-81:10 (Court, Howell, Richards). The Racing Commission Defendants argued that this fact does not alter the “quasijudicial immunity analysis,” because Gerhardt brought suit against the individuals in their official capacities. Tr. at 82:5-8 (Howell). Gerhardt again argued that there were insufficient constitutional safeguards to allow any form of judicial immunity., See Tr. at 86:7-12 (Richards). The Court pointed out, however, that the Supreme Court of New Mexico could potentially resolye all of the Plaintiffs’ claims, .and that this ability to appeal makes the Racing Commission’s.decision seem,like a real judicial function. See Tr. at 87:12-22 (Court, Richards). The Plaintiffs responded that the Racing Commission should not be able to rule on whether its sudden decision to interpret its regulations differently was legal. See Tr. at 97:6-17 (Richards). -The Court ultimately remarked that “it’s going to be a hard sell to say that judicial immunity goes down to the level, of the executive director and the steward.” Tr. at 101:21-24 (Court). The Court confirmed with the Racing Commission Defendants, however, that it could cease its consideration of Ger-hardt’s federal claims if it found judicial immunity. See Tr. at 106:1-4 (Court, Howell).

Gerhardt then attempted to circumvent the state’s Eleventh Amendment immunity for his prima facie tort claim by arguing that the individual Defendants acted outside the scope of their authority. See Tr. at 107:9-25 (Court, Richards). The Racing Commission Defendants responded that Gerhardt made no similar argument in his complaint. See Tr. at 109:20-110:4 (Howell).

The Court then summed up its opinions. See Tr. at 110:9-113:5 (Court). It noted that it was unsure on its- power and obligation to act and the ripeness issue. See Tr. at 110:9-15 (Court). It stated that the Racing Commissioners would probably qualify for júdicial immunity, but that Keiter and Mares would not. See Tr. at 110:25-111:2 (Court). The state claim, the Court noted, would likely fail, because the Defendants did not act outside the scope of their authority. See Tr. at 111:5-10 (Court). Finally, it noted that it would likely grant the Woods Motion. See Tr. at 111:11-15 (Court).

LAW REGARDING RULE 12(b)(1)

“Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994) (citations omitted). A plaintiff generally bears the burden of demonstrating the court’s jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)(“[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”). Rule 12(b)(1) allows a party to raise the defense of the court’s “lack of jurisdiction over the subject matter” by motion. Fed. R. Civ. P. 12(b)(1). The Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.2002).

On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court must consider the complaint’s allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981). But when the attack is aimed at the jurisdictional facts themselves, a district court may not presume the truthfulness of those allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 [summary-judgment] motion.

Hill v. Vanderbilt Capital Advisors, LLC, 834 F.Supp.2d 1228, 1241 (D.N.M.2011)(Browning, J.). The United States Court of Appeals for the Fifth Circuit has stated:

[T]he trial court may proceed as it never could under 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.l981)(quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)).

When making a rule 12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts upon which jurisdiction depends, and may do so by relying on affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995). In those instances, a court’s reference to evidence outside the pleadings does not necessarily convert the motion to a rule 56 motion for summary judgment. See Holt v. United States, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.1987)). Where, however, the court determines that jurisdictional issues raised in a rule 12(b)(1) motion are intertwined with the case’s merits, the court should resolve the motion under either rule 12(b)(6) or rule 56. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir.1999); Tippet v. United States, 108 F.3d 1194, 1196 (10th Cir.1997). “When deciding whether jurisdiction is intertwined with the merits of a particular dispute, ‘the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.’ ” Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir.2003)(quoting Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir.2002)).

LAW REGARDING MOTIONS TO DISMISS UNDER RULE 12(b)(6)

Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994)(Brorby, J.). The complaint’s súfficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)(“[0]nly if a reasonable person could not draw ... an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009)(Briscoe, J.)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”)(citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006)).

A complaint need not' set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp v. Twom bly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).

To survive a motion to dismiss, a plaintiffs complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010)(Seymour, J.). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d at 1177 (emphasis omitted). The Tenth Circuit has stated:

“[Pjlausibility” in. this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of.it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (citations omitted).

Although affirmative defenses must generally be pled in the defendant’s answer, not argued on a motion to dismiss, see Fed. R. Civ. P. 8(c), there are exceptions where: (i) the defendant asserts an immunity defense—the courts handle these cases differently than other motions to dismiss, see Glover v. Gartman, 899 F.Supp.2d 1115, 1137-39, 1141 (D.N.M.2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) and Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir.2008)); and (ii) where the facts establishing the affirmative defense are apparent on the face of the complaint, see Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir.1965)(Hill, J.)(“Under Rule 12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to state a claim. If the defense appears plainly on the face of the complaint itself, the motion may be disposed of .under this rule.”).

LAW REGARDING RIPENESS

“In order for a claim to be justiciable under Article III, it must be shown to be a ripe controversy.” New Mexicans for Bill Richardson v. Gonzales, 64 F.3d at 1499. Ripeness pertains to the timing of a case and is intended .“to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” New Mexicans for Bill Richardson v. Gonzales, 64 F.3d at 1499 (citation omitted)(internal quotation marks omitted). Ripeness is a component of the Article III requirement that limits judicial review to “cases or controversies.” U.S. Const. art. III, § 2. See U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1208 (10th Cir.1999). A controversy must be “definite and concrete, touching the legal relations of parties having adverse legal interests,” and “a real and substantial controversy admitting of specific relief through a decree of a conclusive character.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 617 (1937). “[T]he question in each case is whether the facts alleged, under all. circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (citation omitted).

In MedImmune, Inc. v. Genentech, Inc., a patent licensee, who continued to pay royalties for use of the patent, brought a declaratory-judgment action against the patent holder to determine whether the patent was invalid or unenforceable. See 549 U.S. at 121-25, 127 S.Ct. 764. What appeared to be missing in the case was the requisite immediacy—there was little likelihood that the patent holder would ever bring suit against the licensee, because the licensee was continuing to pay royalties. Nevertheless, the Supreme Court held that there was an actual case or controversy, because the looming threat of the licensee having to pay treble damages, if it halted payments and the patent was ultimately upheld, “coerced” the licensee’s payment of royalties. MedImmune, Inc. v. Genentech, Inc., 549 U.S. at 129, 127 S.Ct. 764. Avoidance of such dilemmas “was the very purpose of the Declaratory Judgment Act.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. at 129, 127 S.Ct. 764. Two cases concerning foreign policy illustrate the need for the facts to mature before declaratory-judgment jurisdiction arises. In Rabinowitz v. Kennedy, 376 U.S. 605, 84 S.Ct. 919, 11 L.Ed.2d 940 (1964), the Supreme Court held that the petitioner attorneys were not exempt from registration under the Foreign Agents Registration Act, but it refused to consider whether the questions asked on the registration forms were proper. See 376 U.S. at 610, 84 S.Ct. 919. Noting that the forms advised registrants that government regulations allowed them to apply for waivers of inappropriate or unduly burdensome requirements, it said: “Since petitioners have made no attempt to determine which questions must be answered and how much' information disclosed, this issue is not ripe for adjudication.” Rabinowitz v. Kennedy, 376 U.S. at 610, 84 S.Ct. 919. In Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), the Supreme Court refused to consider Zem-el’s claim that he was constitutionally entitled to travel to Cuba. See 381 U.S. at 3, 85 S.Ct. 1271. The Supreme Court explained that it would need to know the specifics of the travel:

The complaint filed in this case does not specify the sort of travel to Cuba appellant has in mind—e.g., whether he plans to proceed to Cuba directly or travel there via one or more other countries. Nor can. we tell from the papers filed whether the Government will, in the event appellant journeys to Cuba, charge him under § 215(b) with leaving the United States on a carrier bound for Cuba with a passport not validated for Cuba; leaving the United States with such a passport with the intent of traveling to Cuba before he returns home; leaving the United States with such a passport on a journey which in fact takes him to Cuba; re-entering- the United States with such a passport after having visited Cuba; some other act—or whether it will charge him at all. Whether each or any of these gradations of fact or charge would make a difference as to criminal liability is an issue on which the District Court wisely took no position. Nor do wé. For if we are to avoid rendering a series of advisory opinions, adjudication of the reach and constitutionality of § 215(b) must await a concrete fact situation.

Zemel v. Rusk, 381 U.S. at 19-20, 85 S.Ct. 1271.

In Eccles v. Peoples Bank, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784 (1948), the Supreme Court held that a declaratory-judgment action was not ripe. See 333 U.S. at 427, 68 S.Ct. 641. The bank sought to challenge a condition imposed on its membership in the Federal Reserve System that restricted Transamerica Corporation’s ownership of its stock. See Eccles v. Peoples Bank, 333 U.S. at. 428-29, 68 S.Ct. 641. Transamerica Corporation had acquired a few shares of stock, but only for investment, and not to obtain any control over the bank, which was what the membership condition was meant to prevent. See Eccles v. Peoples Bank, 333 U.S. at 430-31, 68 S.Ct. 641. The bank filed suit, because it feared that, if it lost its membership, its deposits would not be insured. See Eccles v. Peoples Bank, 333 U.S. at 427, 68 S.Ct. 641. When suit was brought, however, the bank had failed to show “[t]he actuality of the plaintiffs need for a declaration of his rights.” Eccles v. Peoples Bank, 333 U.S. at 432, 68 S.Ct. 641. The Federal Reserve Board had “disavow[ed] any action to terminate the Bank’s membership” under the existing circumstances. Eccles v. Peoples Bank, 333 U.S. at 432, 68 S.Ct. 641. The Supreme Court described the suit:

[T]he Bank seeks a declaration of its rights if it should lose its independence [from Transamerica], or if the Board of Governors should reverse its policy and seek to invoke the condition even though the Bank remains independent and if then the Directors of the Federal Deposit Insurance Corporation should not change their policy not to grant deposit insurance to the Bank as a non-member of the Federal Reserve System.

Eccles v. Peoples Bank, 333 U.S. at 432, 68 S.Ct. 641. In the Supreme Court’s view, “[t]he concurrence of these contingent events, necessary for injury to be realized, is too speculative to warrant anticipatory judicial determinations.” Eccles v. Peoples Bank, 333 U.S. at 432, 68 S.Ct. 641. It concluded: “[The] Bank’s grievance here is too remote and insubstantial, too speculative in nature, to justify an injunction against the Board of Governors, and therefore equally inappropriate for a declaration of rights.” Eccles v. Peoples Bank, 333 U.S. at 434, 68 S.Ct. 641. Addressing these Supreme Court cases, the Tenth Circuit has held: “The Court made clear that generally one cannot bring a declaratory judgment action just to resolve one isolated issue in a possible future controversy.” Columbian Fin. Corp. v. BancInsure, Inc., 650 F.3d 1372, 1380 (10th Cir.2011).

In Plant Oil Powered Diesel Fuel Systems, Inc. v. ExxonMobil Corp., 801 F.Supp.2d 1163 (D.N.M.2011)(Browning, J.), the Court held that certain claims that a proposed fit-for-purpose guideline violated antitrust principles was not ripe, because the plaintiff had not shown a hardship, and because the claims were based on “uncertain or contingent future events.” 801 F.Supp.2d at 1184. The Court found that, “[b]ecause the Fib-for-Purpose Guidelines are both in their early stages and because them development is on-going, creating uncertainty what form.they will ultimately take if and when they are submitted for approval, the Court concludes that POP Diesel’s claims based on the Fit-for-Purpose Guidelines are premature.” Plant Oil Powered Diesel Fuel Sys., Inc. v. ExxonMobil Corp, 801 F.Supp.2d at 1185. In Carroll v. Los Alamos National Security, LLC, 704 F.Supp.2d 1200 (D.N.M.2010)(Browning, J.), the Court found that negligent misrepresentation claims were ripe for adjudication. See 704 F.Supp.2d at 1219. There, the defendant conceded that an employee gave the plaintiff incorrect information when the plaintiff was deciding on a pension plan. See Carroll v. Los Alamos Nat’l Sec., LLC, 704 F.Supp.2d at 1219. The Court found that the plaintiff had a legally protected interest in being given correct information regarding his pension-plan options and in making a fully informed selection. See Carroll v. Los Alamos Nat’l Sec., LLC, 704 F.Supp.2d at 1220. The Court held that, because the plaintiff had a legally protected interest in receiving accurate information and there was no dispute that he did not, he was injured, and the matter was ripe for adjudication. See Carroll v. Los Alamos Nat’l Sec., LLC, 704 F.Supp.2d at 1220. With respect to the accrual of the cause of action, the Court found that the claim had accrued, because the plaintiff had suffered an injury, which gave rise to a claim, even though he had not yet suffered damages. See Carroll v. Los Alamos Nat’l Sec., LLC, 704 F.Supp.2d at 1221. Ultimately, however, the Court granted the defendants’ motion for summary judgment on the negligent misrepresentation claims, because the plaintiff had not established that the defendants caused him harm or that the defendants’ conduct would harm him in the future. See Carroll v. Los Alamos Nat’l Sec., LLC, 704 F.Supp.2d at 1226.

LAW REGARDING JUDICIAL IMMUNITY

“[Jjudges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” Stump v. Sparkman, 435 U.S. 349, 355-66, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). That same immunity continues even if the judge’s “exercise of authority is flawed by the commission of grave procedural errors.” Stump v. Sparkman, 435 U.S. at 359, 98 S.Ct. 1099.

The Supreme Court has emphasized that a judge’s immunity from § 1983 liability “is overcomé in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial acts, ie., actions not taken in the judge’s judicial capacity. Second; a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (citations omitted). The Supreme Court has also held that absolute judicial immunity was not affected or abolished “by § 1983, which makes liable ‘every person’ who under col- or of law deprives another person of his civil rights.” Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), overruled in part on other grounds by Harlow v. Fitzge