Jackson v. Curry Cnty.

343 F.Supp.3d 1103

Shannon JACKSON, Trendal Price, and BTL Entertainment, Plaintiffs,

v.CURRY COUNTY, Curry County Manager, Lance A. Pyle, Curry County Sheriff Murray, Comcast Sports Ventures, dba Comcast Spectator, Global Spectrum of New Mexico, LLC, and Global Spectrum, L.P., Defendants.

No. CIV-15-951 MV/SMV

United States District Court, D. New Mexico.

Signed November 1, 2018

Joseph P. Kennedy, Shannon L. Kennedy, Kennedy Kennedy & Ives, LLC, Theresa V. Hacsi, Fadduol, Cluff, Hardy & Conaway PC, Albuquerque, NM, for Plaintiffs.

James P. Sullivan, Brennan & Sullivan, P.A., Santa Fe, NM, Robyn B. Hoffman, Attorney at Law, Tijeras, NM, Megan Muirhead, Modrall Sperling Roehl Harris & Sisk, P.A., Albuquerque, NM, for Defendants,

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ, United States District Judge

THIS MATTER comes before the Court on Curry County Defendants' Motion for Summary Judgment Based Upon Qualified Immunity and Sovereign Immunity ("Summary Judgment Motion") [Doc. 45], Plaintiffs' Motion for Leave to Supplement Evidence in Opposition to the Curry County Defendants' Motion for Summary Judgment Based Upon Qualified Immunity and Sovereign Immunity ("Motion for Leave") [Doc. 58], and Curry County Defendants' Motion to Strike Rule 56(d) Declaration of Joseph P. Kennedy ("Motion to Strike") [Doc. 64]. The Court, having considered the motions, briefs, and relevant law, and being otherwise fully informed, finds that the Summary Judgment Motion is well-taken in part and will be granted in part and denied in part, the Motion for Leave is moot, and the Motion to Strike is moot.

BACKGROUND

"The facts supported by evidence, [viewed] in the light most favorable to [Plaintiffs]" as the party opposing summary judgment, are as follows.¹ Cavanaugh v. Woods Cross City , 625 F.3d 661, 662 (10th Cir. 2010). Curry County, a political subdivision of the State of New Mexico, owns the Curry County Fairgrounds (the "Fairgrounds"), which includes the Curry County Events Center (the "Events Center"), a multi-purpose sport and entertainment arena. Doc. 45 at ¶ 5. Pursuant to a management agreement (the "Management Agreement") executed on or about January 1, 2012, Curry County engaged Global Spectrum, L.P. to manage and operate the Fairgrounds, including the Events Center. Id. at ¶ 6. At all relevant times, Global Spectrum was the sole and exclusive operator of the Events Center. Id. at ¶ 7. Pursuant to the Management Agreement, Global Spectrum was responsible for booking events at the Events Center and managing, inter alia , security and crowd control. Id. at ¶ 8. For purposes of entering into contracts regarding the Fairgrounds and the Events Center, Global Spectrum acted as agent for Curry County, and was authorized to sign and enter into such contracts in Curry County's name, as an agent for Curry County. Doc. 45-3 at 20. At all relevant times, Kevin Jolley, who was an employee of Global Spectrum, served as the General Manager of the Events Center. Doc. 45 at ¶ 11.

On or about September 3, 2013, an agreement entitled "License Agreement; Curry County Events Center and Fairgrounds," was made "by and between Global Spectrum, L.P. ("Licensor"), on behalf of the Curry County Events Center ... and BTL Entertainment ("Licensee")," pursuant to which BTL Entertainment, in exchange for a fee of $4,000, obtained a license to put on a concert at the Events Center on October 25, 2013. Doc. 45-4. BTL Entertainment is a partnership between Plaintiffs Shannon Jackson and Trendal Price. Doc 45. at ¶ 1. The License Agreement states that Curry County "owns" the Event Center "and has engaged [Global Spectrum] to manage and operate the Event Center" on Curry County's behalf, and that Global Spectrum "is authorized to enter into contracts on behalf of [Curry County] for use of space within the Event Center." Doc. 45-4. The License Agreement was executed by Trendal Price for BTL Entertainment and by Jolley, as General Manager of the Events Center, for Global Spectrum. Id.

At approximately 3:30 p.m. on October 24, 2013, the day before the scheduled concert, Stephen Doerr, attorney for Curry County, sent an email message to Jolley, copied to Lance Pyle, the County Manager for Curry County, regarding "Concert Tomorrow Night." Doc. 45-5. The email message states as follows:

It has just been brought to my attention that Global Spectrum has booked and signed a contract to lease the Curry County Events Center to Shannon Jackson and Trudle Price [sic.] where alcohol will be served. I have been advised by the sheriff's office that you have been notified that these two individuals have criminal records and both are presently on bond pertaining to a trafficking methamphetamine charge. As such, those two individuals cannot be involved in the sale or consumption of alcohol and cannot be on the premises where alcohol is being sold or consumed.

I am advised that the sheriff's office has previously told you that the last time that one of these individuals held a rap concern [sic.] in Curry County, one of them ended up shooting somebody. I certainly do not believe that these are the types of events that the Board of County Commissioners of Curry County contacted [sic.] with Global Spectrum to hold at the Curry County Events Center.

Global Spectrum, in addition to leasing the Events Center, has leased the Curry County liquor license. I am writing to notify you that with regard to tomorrow's concert, all laws pertaining to alcohol and alcohol consumption are to be strictly enforced by Global Spectrum. Global Spectrum and its agents and employees are to conduct themselves in such a manner as to not jeopardize or endanger Curry County's liquor license.

It is my understanding that you have advised the Sheriff that based upon conversations with your legal representative and company representatives, that you do not believe that Global Spectrum is able to cancel the concert tomorrow night. Global Spectrum needs to make sure that proper law enforcement is available to handle the crowd for this event and that the promoter pays for any additional expenses that may be needed. At the present time, please be assured that Curry County will not waive any of its rights under contract with Global Spectrum and expects that Global Spectrum will comply with all those terms of its contracts, as well as New Mexico laws.

Paragraph Number 3 on the general terms and conditions attached to your standard license agreement places the obligation on Global Spectrum to obtain and charge the licensee for all personnel, as may be required by Global Spectrum for security and others as otherwise needed. In addition, in Paragraph Number 12, it is your obligation to ensure that the licensee, and every person under its direction or contract, comply with all applicable laws with prior knowledge of the individuals who are putting on this concert, it is expected that Global Spectrum will ensure that those terms and conditions are fully complied with.

Id.

An hour later, at approximately 4:30 p.m. Rick Hontz, Regional Vice President of Global Spectrum, sent an email message to Doerr, Jolley, Pyle, and others, regarding "conference call to discuss hip hop show tomorrow night in Curry County." Doc. 45-6. In the email message, Hontz wrote, "I think it would be beneficial if we all got on a call tomorrow morning at 9 AM to discuss this event." Id.

Approximately 15 minutes later, Doerr sent an email message to Jolley, copied to Pyle, regarding "Friday's Event at Events Center." Doc. 45-5. In the email message, Doerr wrote that he had just received a call from Hontz, regarding the telephone conference for the following morning, and that, immediately after that call, he spoke with Matthey Murray, Sheriff of Curry County, and Deputy Reeves, who advised that they had obtained "the court order on the promoters [Jackson and Price] and informed [him] that the judge did not restrict either of the individuals from being on the premises where alcohol is served or consumed. These individuals' conditions of release only state that they themselves cannot consume alcohol." Id. Doerr further wrote: "Would you please forward this to Rick [Hontz] and let him know that his concerns about the promoter not being allowed on the premises as a basis for cancelling the concert are not correct and I apologize for the same. I still think it would probably be in our best interest if we had a telephone conference call to discuss these matters." Id.

The next morning, October 25, 2013, at 9:00 a.m., a conference call was held among Jolley, other representatives from Global Spectrum, Pyle, Murray, Reeves, and Doerr. Doc. 45 at ¶ 27. The call focused on security for the concert that night. Id. at ¶ 28. In particular, Murray indicated that the Sheriff's Department would be providing law enforcement officers for the event, and Jolley advised that he had hired 30 people to staff the event, including 15 security guards and three staff to "watch the bars," and that the security staff would be equipped with metal detecting wands to screen patrons entering the building. Id. at ¶¶ 30-32. Later that morning, Murray confirmed that he would have his canine officer at the event with a drug sniffing dog, as well as signs advising the concertgoers of the presence of the dog. Doc. 45 at ¶ 35.

At the conclusion of the morning conference call, Pyle "believed that all security concerns had been adequately addressed, and the concert was to be held as scheduled that evening," Doc. 45-1 at ¶ 16, and Murray believed that the security measures planned "would be adequate to cover this concert and provide safety for the patrons," and that "everyone was in agreement that the concert was proceeding as scheduled." Doc. 45-2 at ¶¶ 10-11. Nonetheless, "[a]t the conclusion of the call, the Curry County representatives expressed their continued concerns regarding the ability to ensure safety for the public and property at the concert scheduled for that evening." Doc. 51-1 at ¶ 6.

Global...