                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                               APR 17 1998
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 J. CASPER HEIMANN; JAY DEE
 HEIMANN,

          Plaintiffs-Counter-Defendants-
          Appellants,
 v.                                                          No. 96-2266
 RAY A. SNEAD; CLAIRE W. SNEAD;                      (D.C. No. CIV-94-817-LH)
 WILL SNEAD; RAY SNEAD, JR.; TOM                             (D.N.M)
 M. HILLS; ANN B. HILLS, doing
 business as Alamo Ranch,

          Defendants-Counter-Claimants-
          Appellees.




                              ORDER AND JUDGMENT*


Before BALDOCK and HOLLOWAY, Circuit Judges, and BROWN, Senior District
Judge.**




      *
               This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
              Honorable Wesley E. Brown, Senior United States District Judge for the
District of Kansas, sitting by designation.
       In a seven-count complaint bringing to mind images of New Mexico’s territorial

days, Plaintiffs sought judicial redress for numerous alleged improprieties relating to what

they characterize as Defendants’ violent, forcible, and vigilante-like ejection of Plaintiffs

and Plaintiffs’ cattle from New Mexico State Grazing Lease GS-1239. As grounds for

relief, Plaintiffs advanced numerous state law theories before the district court including:

Count I-prima facie tort, Count II-interference with contractual relations, Count III-

conversion of livestock, Count IV-intentional infliction of emotional distress, Count V-

assault, Count VI-wrongful ejectment, and Count VII-trespass. The district court

disposed of several of Plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(6). The

remaining claims were either voluntarily dismissed with prejudice by Plaintiffs or decided

adversely to them on Defendants’ motion for summary judgment. On appeal, Plaintiffs

seek reversal of the district court’s orders disposing of their state law claims. Plaintiffs

also ask that we remand the case for further discovery. Our jurisdiction arises under 28

U.S.C. § 1291. We affirm in part, reverse in part, and remand for further proceedings.

                                              I.

       For several years during the early 1990s, Plaintiffs leased a large ranch in Harding

County consisting of both fee land and a state grazing lease from Plaintiff J. Casper

Heimann’s sister and brother-in-law, Johnanne and Bobby Adee. During that time, the

Adee’s found themselves the subject of a lawsuit which left them in dire financial straits.

The record suggests that the Adees filed a written document with the Union County


                                              2
clerk’s office which defamed the First National Bank in Clayton, the bank’s president

Craig L. Reeves, the bank’s lawyer Robert O. Beck, and Beck’s law firm Beck and

Cooper, Lawyers. The parties tried the case before the Union County district court, which

ruled in plaintiffs’ favor and awarded them a total of $2.4 million against the Adees. In

addition to being a judgment creditor, the First National Bank of Clayton also held a

mortgage on a portion of the Adees’ property. Soon thereafter, the Bank as mortgagee,

joined by the judgment creditors, instituted foreclosure proceedings which culminated in

a sheriff’s sale of the Adees’ state lease lands.

       Defendants acquired the Adees’ state lease lands at the sheriff’s sale on November

16, 1993. Plaintiffs attended the sheriff’s sale and unsuccessfully bid on the Adees’ state

lease lands. On November 27, 1993, Harding County Sheriff Ray Gutierrez assigned the

state grazing lease to Defendants. Defendants filed the assignment with the New Mexico

State Land Office on January 4, 1994, and the State Land Office approved the lease on

January 5, 1994. Upon purchase of the disputed lands at the sheriff’s sale, Defendants

filed agistor’s liens in Union County covering cattle owned by Plaintiffs and additional

parties who sub-leased pasture from Plaintiffs.1

       On January 10, 1994, having been advised by their lawyer that they were entitled

to possession of the state lease, Defendants asked Plaintiffs to remove their cattle from


       1
               Plaintiffs allege that Defendants “recklessly and maliciously” filed these
liens on their cattle. Aside from this conclusory allegation, the record is conspicuously
devoid of evidence supporting such a theory.

                                               3
the state grazing lease. When Plaintiffs did not agree to remove their cattle, Defendant

Ray Snead informed them that he and his cowboys were going to move the cattle at 1:00

p.m. unless Plaintiffs agreed to move them. Plaintiff Jay Dee Heimann objected to

Defendants moving the cattle off of the leasehold. Defendants ignored Plaintiffs’

objection and proceeded to round-up and drive Plaintiffs’ cattle off of the land. Plaintiff

Jay Dee Heimann and his crew of cowboys then mounted their horses to prevent

Defendants from moving the cattle. After several minutes of heated argument,

Defendants abandoned their attempt to eject Plaintiffs’ cattle from the state grazing lease

to avoid injuring either party’s cowboys or horses.

       On January 12, Defendants and a crew of approximately ten cowboys returned to

the state grazing lease before daylight. As Defendants began to drive the cattle off of the

land, Plaintiffs and their cowboys arrived on the scene. Plaintiff Jay Dee Heimann and

Defendant Ray Snead argued for approximately one hour about Defendants’ attempt to

eject Plaintiffs and their cattle from the lease. Plaintiffs’ and Defendants’ cowboys

worked cooperatively to hold the cattle together while this argument ensued. Plaintiffs

then climbed into Plaintiff J. Casper Heimann’s pick-up, discussed the situation, and

decided that they could not prevent the cattle from being driven off of the grazing lease.

Thus, although they vocally objected, Plaintiffs made no further attempt to prevent

Defendants and their large crew of cowboys from driving their cattle off of the land.

Defendants and their crew then drove the cattle into a set of pens located on Plaintiffs’ fee


                                             4
land where Plaintiff Jay Dee Heimann and two of Defendants’ cowboys counted the cattle

and agreed that all were present. Plaintiffs allege that Defendants unnecessarily abused

their cattle during this drive and that Defendants ran one cow to exhaustion.

       After Defendants drove Plaintiffs’ cattle into the cattle pens and released them

onto Plaintiffs’ and Defendants’ common fee land pasture, the parties agreed that

Plaintiffs’ cattle could water at Defendants’ windmill. The next day, Plaintiffs repaired

the windmill and placed water tanks around it so the cattle could drink. Several days

later, however, Defendants fenced Plaintiffs’ cattle off of the water, removed drain plugs

in the water tanks and chained the windmill to prevent Plaintiffs from using it.2

       On July 19, 1994, Plaintiffs J. Casper Heimann and Jay Dee Heimann instituted

this diversity action under 28 U.S.C. § 1332 in the district court. Their seven-count

complaint alleged numerous improprieties in connection with the mortgage foreclosure

and sale of state grazing lease GS-1239, to which they claimed prior rights under lease

and sublease. Plaintiffs claimed that Defendants, who purchased rights to the grazing

lease at the Sheriff’s sale, unlawfully infringed upon those rights. Defendants denied

Plaintiffs’ allegations and counterclaimed, alleging two counts of trespass.

       After a hearing, the district court granted Defendants’ motion to dismiss four

counts of Plaintiffs’ complaint for failure to state a claim upon which relief could be


       2
               The record suggests that, Defendants’ attorney notified Plaintiffs’ attorney
that after a certain date the cattle would no longer have access to Defendants’ water
source.

                                             5
granted. Following discovery, the district court granted Defendants’ motion for summary

judgment on Plaintiffs’ claims of prima facie tort, assault, and conversion as to four head

of cattle, leaving only Plaintiffs’ and Defendants’ trespass claims for trial.

       Because Plaintiffs wished to appeal the district court’s dismissal and summary

judgment orders, the parties submitted a stipulation to the district court in which Plaintiffs

agreed to dismiss the only remaining count of their complaint with prejudice and

Defendants agreed to dismiss their counterclaims without prejudice. See Fed. R. Civ. P.

41. The district court accepted the stipulation, dismissed all remaining claims, and

concluded that “the matter is now final and immediately appealable.”

       Plaintiffs timely filed their notice of appeal. Upon review of the jurisdictional

issue, we determined that absent a final dispositive adjudication or Fed. R. Civ. P. 54(b)

certification from the district court, we lacked jurisdiction over the appeal. 133 F.3d 767,

770 (10th Cir. 1998). We therefore allowed the parties to return to the district court to

obtain a Rule 54(b) certification.3 The district court certified Plaintiffs’ claims pursuant

to Rule 54(b). With this background in mind, we turn to the present appeal.




       3
              Plaintiffs’ complaint, which alleges damages in excess of $50,000, was
filed before Congress raised the amount-in-controversy requirement to $75,000. Federal
Courts Improvement Act of 1996, 110 Stat. 3847. Therefore, the increased amount-in-
controversy requirement has no effect on this appeal. See Turner/Ozanne v.
Hyman/Power, 111 F.3d 1312, 1319 n.9 (7th Cir. 1997); Conntech Dev. Co. v. University
of Conn. Educ. Prop., Inc., 102 F.3d 677, 681 n.1 (2d Cir. 1996).

                                              6
                                                II.

         The district court, pursuant to Fed. R. Civ. P. 12(b)(6), dismissed Plaintiffs’

conversion, wrongful ejectment, and intentional infliction of emotional distress claims.

We review the district court’s 12(b)(6) dismissal of each count de novo. Bauchman v.

West High School, 132 F.3d 542, 550 (10th Cir. 1997). In reviewing the sufficiency of

Plaintiff’s complaint, we presume the factual allegations contained in the four corners of

the complaint are true and construe them in a light most favorable to Plaintiffs.4 Id.

                                                A.

         Plaintiffs first argue that the district court erred by dismissing their conversion

claim. Specifically, Plaintiffs contend that their complaint, when construed in a light

most favorable to them, alleges facts which state a cause of action for conversion. We

agree.

         Under New Mexico law, “[c]onversion is defined as the [wrongful or] unlawful

exercise of dominion and control over personal property belonging to another in

exclusion or defiance of the owner’s rights, or acts constituting an unauthorized and

injurious use of another’s property, or a wrongful detention after demand has been made.”

Nosker v. Trinity Land Company, 757 P.2d 803, 807-08 (N.M. Ct. App. 1988). An action

for conversion is appropriate even if the converted property is returned to its rightful


         4
             Confining our review to the four corners of the complaint, we express no
opinion on whether, after further proceedings, Plaintiffs’ claims will survive a motion for
summary judgment.

                                                7
owner. The only effect of the property’s eventual return is an adjustment to the amount of

damages. See Martinez v. Vigil, 142 P. 920, 921 (N.M. 1914); Restatement (Second) of

Torts § 922. Thus, where someone converts another’s property to his own use and

eventually returns it to the rightful owner, the fact that the property has been returned will

not bar a suit for conversion.

       The facts alleged in Plaintiffs’ complaint, when presumed to be true and viewed in

a light most favorable to Plaintiffs, state a claim for conversion. Plaintiffs allege that: (1)

Defendants wrongfully converted to their own use 150 head of Plaintiffs’ cattle worth

$120,000; (2) Plaintiffs demanded that Defendants return the cattle; (3) Defendants

refused to return the cattle and continued to exercise dominion and control over the

animals; and (4) the animals were treated improperly and damaged. These allegations

meet the minimum requirements necessary to state a claim for conversion.

                                              B.

       Plaintiffs next argue that the district court erroneously dismissed their claim for

wrongful ejectment. Plaintiffs contend that where a person wishing to gain possession of

property occupied by another has access to a speedy judicial remedy for recovering

possession, but chooses instead to use self-help to dispossess the occupant, the occupant

may recover damages from the person who resorted to self-help. Defendants quickly

defend the district court’s dismissal of this claim by suggesting that no cause of action for

“wrongful ejectment” exists in New Mexico. Moreover, Defendants claim that because


                                               8
Plaintiffs had no valid interest in the land from which Defendants ousted them, they

cannot maintain an action for wrongful ejectment. The thrust of this argument appears to

be that an ejection cannot be wrongful if the person being ejected did not have legal

possession of the property. We disagree.

       New Mexico’s forcible entry and detainer statute provides a speedy judicial

remedy for ousting a person in peaceable possession of real property. N.M. Stat. Ann.

§ 35-1-1 (Michie 1978). The policy behind the statute is to “prevent parties from taking

the law into their own hands, and ousting one in quiet, peaceable possession of lands and

tenements, whether his possession is rightful or wrongful.” State v. Ashley, 772 P.2d

377, 380 (N.M. Ct. App. 1989). New Mexico courts have long embraced this policy and

have recognized that the use of self-help to oust a party in wrongful possession of land is

tortious. Id.; Murrah v. Acrey, 142 P. 143, 144 (N.M. 1914). Thus, when one party

wrongfully, but peacefully occupies property to which another is rightfully entitled to

possess, the “party out of possession must resort to legal means to obtain . . . possession.”

Id. at 380-81 (quoting Murrah v. Acrey, 142 P. 143, 144 (1914)); see also Heron v.

Ramsey, 117 P.2d 247, 249 (N.M. 1941); Restatement (Second) of Property § 14.2(1). If

instead, a party entitled to possession resorts to self-help to oust another from the

property, the ousted party may recover damages from the party using self-help. See

Restatement (Second) of Property § 14.2(1) cmt. e.

       Plaintiffs’ complaint alleges that: (1) Plaintiffs peacefully possessed State Grazing


                                              9
Lease GS-1239; (2) Defendants, without legal process, violently and forcefully entered

upon the grazing lease; and (3) Defendants overpowered Plaintiffs and ejected them from

the grazing lease. Taking these allegations as true and viewing them in a light most

favorable to Plaintiffs, we conclude that Plaintiffs’ complaint states a claim for which

New Mexico law provides relief.

                                              C.

       Plaintiffs next contend that the district court erroneously dismissed their

intentional infliction of emotional distress claim. Specifically, Plaintiffs argue that their

emotional distress claims were inappropriate for Fed. R. Civ. P. 12(b)(6) dismissal

because reasonable minds could differ as to whether Defendants’ conduct was “extreme

and outrageous.” We agree.

       “Intentional infliction of emotional distress arises when a defendant intentionally

or recklessly causes severe emotional distress through extreme and outrageous conduct.”

Jaynes v. Strong-Thorne Mortuary, Inc., 1997 WL 836532 at *5 (N.M. 1997) (quoting

Dominguez v. Stone, 638 P.2d 423, 426 (N.M. Ct. App. 1981)). Extreme and outrageous

conduct is conduct which goes “beyond the bounds of common decency and is atrocious

and intolerable to the ordinary person.” Jaynes, 1997 WL 836532 at *5. In addition, the

emotional distress caused by the extreme and outrageous act must be such that “a

reasonable person, normally constituted, would be unable to cope adequately with the

mental distress engendered by the circumstances.” Id. (citations omitted). Because the


                                              10
standard for proving extreme and outrageous conduct and severe emotional distress is

rigorous, the court must determine, in the first instance, whether Defendants’ conduct is

so extreme and outrageous that recovery is in order. Restatement (Second) of Torts § 46

cmt. h. Where the court determines that reasonable minds may differ in regards to the

outrageous nature of the conduct alleged, the claim is not properly decided on a motion to

dismiss. See Id.

       Plaintiffs’ complaint alleges that: (1) Plaintiffs possessed and grazed cattle on the

state grazing lease; (2) Defendants and their agents violently forced Plaintiffs from their

land and over Plaintiffs’ objection took possession of Plaintiffs’ cattle; (3) Defendants

improperly treated Plaintiffs’ cattle; (4) Defendants intended to cause Plaintiffs emotional

distress; and (5) Defendants’ actions resulted in Plaintiffs suffering severe emotional

distress, horror, fright, anger, worry, disappointment and humiliation. While we state no

opinion on the merit of this claim, presuming these allegations to be true and viewing

them in a light most favorable to Plaintiffs, we conclude Plaintiffs’ complaint meets the

minimum threshold for stating a claim for intentional infliction of emotional distress. C.f.

Gracia v. Bittner, 900 P.2d 351 (N.M. Ct. App. 1995) (Affirming jury verdict awarding

damages for intentional infliction of emotional distress where landlord, with no resort to

violence, used self-help means to eject tenant from property while tenant out of town.).




                                             11
                                              III.

         Upon completion of discovery, Defendants filed a motion for summary judgment

on Plaintiffs’ remaining claims. In a thorough and well-reasoned opinion, the district

court granted summary judgment in favor of Defendants on Plaintiffs’ assault, conversion

of four head of cattle, and prima facie tort claims. We review the district court’s grant of

summary judgment de novo. United States v. Jenks, 129 F.3d 1348, 1352 (10th Cir.

1997).

                                               A.

         Plaintiffs argue that the district court erred in granting Defendants’ motion for

summary judgment on their prima facie tort claim. Specifically, Plaintiffs contend that

the district court failed to recognize disputed issues of material fact which precluded

disposition of the claim on summary judgment. We disagree.

         “Prima facie tort occurs when a lawful act is conducted with an intent to injure and

without sufficient economic or social justification, resulting in injury.” Lexington

Insurance Co. v. Rummel, 945 P.2d 992, 995 (N.M. 1997). Generally stated, the elements

of prima facie tort are: (1) commission of an intentional lawful act; (2) the act is

conducted with the intent to injure Plaintiff; (3) the act injures Plaintiff; and (4) the act is

without social or economic justification or has insufficient justification. Schmitz v.

Smentowski, 785 P.2d 726, 734 (N.M. 1990). Where there is no intent to injure, the

analysis ends. Where there is some evidence of an intent to injure, however, a balancing


                                               12
test must be applied. Lexington, 945 P.2d at 995.

       In applying the balancing test, we must balance the activity complained of against

any justification for the activity and the severity of the injury, “weighing: (1) the injury;

(2) the culpable character of the conduct; and (3) whether the conduct is unjustifiable

under the circumstances.” Schmitz, 785 P.2d at 734. The balancing process does not end

here, however. Instead, the court must weigh the above factors in light of the following

additional factors: “(1) the nature and seriousness of the harm to the injured party, (2) the

nature and significance of the interests promoted by the actor’s conduct, (3) the character

of the means used by the actor, and (4) the actor’s motive.” Id.

       The district court noted that Defendant Ray Snead’s statement that he would “do

everything in [his] power to break [Plaintiff J. Heimann]” demonstrated that Defendants’

actions toward Plaintiffs were not entirely economically motivated and thus evidenced

some intent to injure. Accordingly, the district court embarked on a thorough balancing

of the above listed factors and ultimately concluded that the Defendants’ actions were

justified under the circumstances. We have reviewed the parties briefs and the entire

record before us and conclude that the district court committed no reversible error by

granting summary judgment on Plaintiffs’ prima facie tort claim.

                                              B.

       Plaintiffs next complain that the district court erred by granting summary judgment

in favor of Defendants on their assault claim. Plaintiffs argue that the district court


                                              13
ignored the fact that there was a material issue of disputed fact and improperly reached its

decision by weighing the evidence before it. We disagree.

       For a tortious assault to occur, there must be an act, threat, or some other

menacing conduct which causes another person to reasonably believe that he or she is in

danger of receiving an immediate battery. Baca v. Velez, 833 P.2d 1194, 1196 (N.M. Ct.

App. 1992) (emphasis added). After reviewing the entire record before us, we find no

genuine issue of material fact which would prevent disposition of this issue on summary

judgment. The only support for Plaintiffs’ claim is Plaintiff Jay Dee Heimann’s statement

that he was “afraid that blows were to be exchanged,”5 Rec. at 673. The remaining

evidence, of which there is a great deal, demonstrates that Plaintiffs were not placed in a

position where a reasonable person would believe he or she is in danger of receiving an

immediate battery. Without more support, Plaintiffs’ allegations do not create a genuine

issue of material fact. Accordingly, the district court correctly disposed of the claim on

summary judgment.

                                             C.

       Plaintiffs next argue that the district court erroneously granted Defendants’ motion

for summary judgment regarding the alleged conversion of four head of Plaintiffs’ cattle.

Our review of the record turns up only one piece of what we deem to be relevant evidence



       5
             Indeed, Plaintiff’s statement indicates that he was going to participate in the
“throwing” of those blows.

                                             14
regarding the missing four head of cattle. That evidence is a self-serving statement by

Plaintiff J. Casper Heimann, the basic thrust of which, suggests that Defendants were

building fence in the vicinity of Plaintiffs’ cattle, and after they finished four head were

missing. A mere scintilla of evidence does not create an issue for trial, Headrick v.

Rockwell International Corp., 24 F.3d 1272, 1275 (10th Cir. 1994), and a scintilla is all

Plaintiffs presented to the district court. Viewing the evidence in a light most favorable

to Plaintiffs, we conclude that the district court properly granted summary judgment on

this issue in Defendants’ favor.

                                             IV.

       Finally, Plaintiffs ask us to remand the case for further discovery. Specifically,

Plaintiffs complain that after the magistrate granted their request to depose certain parties

and obtain documents from them, he arbitrarily enforced a discovery deadline which

prevented them from obtaining the relief granted. Thus, Plaintiffs argue that the case

must be remanded for further discovery. We disagree.

       It is well established that “the court of appeals cannot review a magistrate judge’s

order under 28 U.S.C. § 636(b)(1)(A) unless the party requesting review objected to the

order in writing to the district court within ten days of receiving a copy of the order.”

Pippinger v. Rubin, 129 F.3d 519, 533 (10th Cir. 1997). Plaintiffs concede that they did

not object to the magistrate’s enforcement of the discovery deadline to the district court.

Instead, Plaintiffs urge that we adopt a more liberal interpretation of § 636(b)(1)(A)


                                              15
which would allow for appellate review of the magistrate’s non-dispositive order. Absent

en banc reconsideration, we may not overrule prior circuit precedent. Summum v.

Callaghan, 130 F.3d 906, 913 n. 8 (10th Cir. 1997). Therefore, because Plaintiffs clearly

did not comply with § 636(b)(1)(A), we decline to review the magistrate judge’s order

enforcing the discovery deadline.6

                                           V.

      For the foregoing reasons, the district court’s judgment is AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.

                                                Entered for the Court,



                                                Bobby R. Baldock
                                                Circuit Judge




      6
               On November 26, 1996, Defendants filed a motion to dismiss Plaintiffs’
appeal in part based on Plaintiffs’ failure to comply with § 636(b)(1)(A). Defendants
contend that absent Plaintiffs’ strict compliance with § 636(b)(1)(A), we have no
jurisdiction over this portion of the appeal. Because we decline to review Plaintiffs’
appeal of the magistrate’s order enforcing the discovery deadline, we deny Defendants’
motion.

                                           16
