FIRST JUDICIAL DISTRICT COURT COUNTY OF SANTA FE STATE OF NEW MEXICO FILED IN MY OFFICE DISTRICT COURT CLERK 7/2/2013 3:21:42 AM STEPHEN T. PACHECO LMP Case No. D-101-CV-2011-01127 Consolidated with D-101-CV-2012-01868 BIOMED PRESCRIPTIONS, et al., v. Plaintiffs, STATE OF NEW MEXICO, NEW MEXICO DEPARTMENT OF HEALTH, CATHERINE TORRES, Department Director, WALLY VETTE, Deputy Secretary, and Defendants, NEW MEXICO HORTICULTURE, INC., v. Petitioner, STATE OF NEW MEXICO, NEW MEXICO DEPARTMENT OF HEALTH, CATHERINE TORRES, Secretary, and WALLY VETTE, Deputy Secretary, and Respondents, MEDICAL GOING GREEN, INC., v. Plaintiff, SUSANA MARTINEZ, GOVERNOR; and CATHERINE D. TORRES, SECRETARY OF THE DEPARTMENT OF HEALTH, Defendants.
PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS TORRES AND VETTE S MOTION TO DISMISS PLAINTIFFS present the following response in opposition to the Entry of Special Appearance and Defendants Torres and Vette s Motion to Dismiss filed by Defendants Catherine Torres and Wally Vette, through their special counsel, Civerolo, Gralow, Hill & Curtis, P.A. (Megan Day Hill, Esq. And Ellen M. Kelly, Esq.) asking the Court to dismiss the claims against them with prejudice, pursuant to Rules 1-004C(2), for failure to serve them with reasonable diligence. The two Civerolo Law Firm attorneys, Megan Hill and Ellen Kelly have represented all the Defendants from the start of the case. Following the Court s dismissal of Dr. Torres in her individual capacity on grounds of qualified immunity, Ms. Hill presented a form of Order dismissing Dr. Torres from the case entirely, i.e., in both individual and official capacities. Without explanation the Court signed that Order. Subsequently, however, Dr. Torres entered into an agreement to provide reasons for application decisions; she was represented by Ms. Hill in all aspects of the settlement negotiations and thereafter, in the litigation of this case. When counsel challenged the defense attorneys insistence that Dr. Torres was completely out of the lawsuit and unrepresented to the extent she would have to secure new counsel, they persisted and started insisting on formal service of process, an insistence that seemed unreasonable. Defendants cannot justify any need for formal service of process on parties that were actively participating and being represented by counsel in the case. The plain fact is that these attorneys have been actively representing Dr. Torres and Mr. Vette in this case, even to the point where Dr. Torres and Mr. Vette appeared and testified in Court. Even if -2-
service was somehow required, Plaintiffs did serve their Amended Complaint on counsel for Dr. Torres and Mr. Vette. Because it is nothing more than a ploy, designed and effected to harass, delay, and further multiply proceedings that have already been needlessly multiplied time and again. Plaintiffs present the following answers to Defendants contentions: 1. Plaintiffs admit that they named Catherine D. Torres as a Defendant in their lawsuit that was filed on April 1, 2011. 2. Plaintiffs admit that the Court signed the Order drafted by Ms. Hill that stated that all claims against Dr. Torres were dismissed with prejudice. However, there had been no motion or other attempt to dismiss Dr. Torres in her official capacity, and she continued to act in this case as the representative and head of the Department of Health and as a named Defendant in this lawsuit. In each of these capacities she was being represented by attorneys Megan Hill and Ellen Kelly. 3. Paragraph 3 is admitted. 4. Plaintiffs admit paragraph 4, although it is noted that attorney Megan Hill drafted the Second Case Management Order. Further, Dr. Torres was clearly not a newly added Defendant and so there was no reason she could not or should not be served through counsel, even if such service was necessary. 5. Paragraph 5 is admitted. 6. The allegations in paragraph 6 are denied, as are the erroneous legal conclusions stated by Defendants counsel and attributed, possibly correctly, to the Court. Plaintiffs counsel was not fully aware that: -3-
on October 11, 2012, the Court ruled that the Court s December 13, 2011 dismissal of Defendant Catherine Torres was a final, appealable Order; because Plaintiffs did not appeal the dismissal of Defendant Torres, there could be no revival of old allegations against Dr. Torres; that for any new claims against Defendant Torres, she must be served by serving the Attorney General for claims made against her in her official capacity and she must be served personally for any claims against her in her individual capacity, all service to occur within a reasonable time. Counsel does not deny such an order was issued, however he does not recall seeing such an order and was certainly not aware of any requirement of appealing to a higher court, especially as Dr. Torres was the defendants representative at the settlement conference and was represented throughout by the same attorneys. If the above order was appealed at the end of the case, counsel does not believe it would withstand appellate scrutiny, as there was no reason or justification for dismissing the Department Secretary and, in any event, a dismissal did not end her representation by counsel, as the Civerolo lawyers now insist. 7. The allegation that the October 11, 2012 ruling based on the December 13, 2011, ruling was reflected in the November 17, 2012 Order Denying Defendants Motion to Dismiss Based on Law of the Case is immaterial. The validity of the December 2011 and October 2012 orders are what matter, not how they are supposedly reflected later. 8. Again, with respect to service on Mr. Vette, there is no reason to require service of process on an official capacity defendant who is already active in the case and is represented by counsel. That said, Plaintiffs agree to dismiss Mr. Vette and any and all claims against him. 9. Again, the reflection in another Order is immaterial. 10. With respect to the provision of home addresses for Defendants Torres and Vette, it is noted that counsel for Defendants carefully state that they are (c)ounsel for the -4-
State of New Mexico and the State of New Mexico who are providing the Biomed Plaintiffs with home addresses when the same attorneys are actually counsel for Defendant Torres and Mr. Vette in this case. 11. Both Defendants Torres and Vette testified at a hearing in this case on November 1, 2012, as alleged in paragraphs 11 and 12 of their Motion to Dismiss. Their present counsel, who enter a special appearance, represented them throughout the proceedings. There was no conceivable reason to require and go to the expense of formal service of process when these defendants were already represented by counsel in this case. 12. Paragraph 13 is admitted. ARGUMENT Plaintiffs, applicants for cannabis production and distribution licenses, filed this case on April 1, 2011, seeking relief from the State s refusal to review or act on the applications. Plaintiffs primarily sought declaratory and injunctive relief. Plaintiffs initially sought relief from the State s inaction. The Department of Health had not considered, accepted or rejected their applications. Rather, standards needed to be formulated so applications could be considered and ruled upon fairly. that: On October 31, 2011, the Court entered its Order Granting Motion to Stay Discovery, stating The Court has determined that a hearing is unnecessary. The Court in its discretion may rely upon the documents filed in this matter if the written submissions are sufficient to resolve the matters presented. Order, October 31, 2011, citations omitted. In January, 2012, the parties attended a mandatory settlement conference and reached agreement that Catherine Torres would review the six Plaintiffs applications and give specific reasons -5-
for any applications that were rejected. Instead of complying with her agreement, Secretary Torres, Wally Vette, and the Department s then-medical Director, Dr. Bouquet, rated all 102 applications with the result that 98 were rejected and only four accepted. The ratings are arbitrary and Secretary Torres failed to provide any specific reasons for the 98 rejections. The State soon fired Mr. Vette and Dr. Bouquet and they are no longer employed by the State. Dr. Torres has resigned. Following an informal scheduling conference held pursuant to the State Defendants Motion for an Expedited Case Management Order, Defendants counselo drafted a Second Case Management Order. Counsel for Plaintiffs objected to the Order, but without attempting to address or resolve those objections, counsel for Defendants noted that two of Plaintiffs counsel objected and submitted her form of Order to the Court. On July 7, 2012, Plaintiffs filed their Amended and Supplemented Complaint. Dr. Torres did not answer the Amended Complaint and Plaintiffs moved for a default judgment. Dr. Torres as represented (or not represented) by Ms. Hill has refused to file an answer to the amended complaint, apparently due to her lawyer s stubborn claim that since she was dismissed with prejudice on qualified immunity grounds under the order drafted by Ms. Hill, she is no longer a party in the case. Claiming the issue was governed by Law of the Case, Defendants unsuccessfully moved in July, 2012, to dismiss parties (including Dr. Torres) because they were previously dismissed with prejudice. With respect to Defendant Dr. Catherine Torres, the State s counsel now denies that she represents Dr. Torres, claiming that after Dr. Torres was dismissed from the case she became a new Defendant, that Plaintiffs must serve their Amended Complaint on her rather than on her counsel, and State Risk Management will have to appoint new counsel to represent Dr. Torres sometime after she is served. Plaintiffs do not agree. Since the same counsel have represented Dr. Torres in this case from -6-
the start the Court s order dismissing Dr. Torres was neither appealable nor a reasonable basis for dismissal of claims that had already been served on Dr. Torres through her counsel. WHEREFORE, Defendants Motion to Dismiss should be denied. I hereby certify that I filed the foregoing electronically and that the Court s electronic filing system will cause a copy to be generated and sent to opposing counsel. s/ Paul Livingston Paul Livingston Respectfully submitted, s/ Paul Livingston Paul Livingston Attorney for Plaintiffs P.O. Box 250 Placitas, NM 87043 505-771-4000-7-