Williams et al v. New Mexico State University et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NEVA WILLIAMS, et al.,
Plaintiffs,
v. 	Civ. No. 23-1059 GBW/KRS
NEW MEXICO STATE UNIVERSITY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendants Joseph Berning and Carole
Carson’s Motion for Partial Summary Judgment as to Counts X, XI, and XII. Doc. 172.
For the reasons that follow, the motion will be granted.
I. 	Background
This action was filed by Plaintiff Neva Williams in state court on June 30, 2022,
and was removed on November 28, 2023. Docs. 1, 111-1. Plaintiff Jane Doe 3 filed a
separate action in this District on April 18, 2024. See Civ. No. 24-371 GJF/GBW, doc. 1.
The claims were consolidated into the instant action on May 17, 2024, with the operative
Second Amended Complaint. Doc. 35. Both Williams and Jane Doe 3 were students at
New Mexico State University (NMSU), where Berning was a professor of kinesiology.
All Plaintiffs’ claims arise out of Berning’s alleged abuse and the alleged participation of
Carson, Berning’s partner and a fellow NMSU employee.
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 1 of 16

2
Berning and Carson move for partial summary judgment on Counts X, XI, and
XII to the extent the claims are time-barred. Doc. 172 at 1. Count X asserts claims of
assault and battery by Williams and Jane Doe 3 against Berning and Carson. Doc. 35 at
¶¶ 423–33. Count XI asserts a claim of intentional infliction of emotional distress (IIED)
by Williams against Berning. Id. at ¶¶ 434–38. Count XII asserts claims of negligence
by Williams and Jane Doe 3 against Berning and Carson. Id. at ¶¶ 439–44.
Relevant to the present motion, the complaint alleges that Williams was a
student in Berning’s class starting in 2013 and that he verbally and physically sexually
harassed her in various ways. Id. at ¶¶ 106, 111–12, 115–16. He had non-consensual
sexual relations with her on several occasions. Id. at ¶ 129–31. Williams subsequently
moved into Berning and Carson’s home, where both of them had non-consensual sexual
relations with her. Id. at ¶¶ 132–33.
The complaint alleges Jane Doe 3 was a student at NMSU from 2013 through
December 2016, and then an employee at NMSU from December 2016 through fall 2020.
Id. at ¶ 142–43. Berning grabbed and groped Jane Doe 3 on several occasions while on
campus. Id. at ¶ 152, 154, 170. In or around December 2016, Berning brought Jane Doe
3 to his home and sexually assaulted her. Id. at ¶¶ 148–49.
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 2 of 16

3
II. 	Undisputed Material Facts
Based on the parties’ briefing and the record as a whole, the Court finds the
following material facts are undisputed for the purposes of summary judgment: 1
1. 	Berning and Carson were educators at New Mexico State University.
PUMF 1.
2. 	Berning and Carson co-owned a home in Las Cruces. PUMF 3.
3. 	Williams alleges that she left Berning’s house in August 2019 and that
“mentoring conduct and coercive sexual abuse continued up until that time.” UMF 6;
doc. 95-5 at ¶ 86.
4. 	Jane Doe 3 alleges Berning sexually assaulted her in or around December
2016. UMF 7; doc. 35 at ¶ 149.2
1 “UMF” refers to Defendants’ Undisputed Material Facts. Doc. 172 at 3. “PUMF” refers to
Plaintiffs’ Additional Material Facts. Doc. 181 at 2–5. Where the Court cites one of the parties’ material
facts, it does so pursuant to Rule 56(e)(2) because the fact in question was not specifically disputed. See
Fed. R. Civ. P. 56(e)(2). Where the Court cites to evidence in the record, it does so pursuant to Rule
56(c)(3), which permits consideration of “other materials in the record.” Fed. R. Civ. P. 56(c)(3).
2 As Plaintiffs have pointed out, this undisputed material fact—and a good portion of
Defendants’ argument—is based on the allegations of the complaint, not on the evidentiary record. The
moving party on summary judgment “bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
Fed. R. Civ. P. 56(c)) (emphasis added). If a summary judgment motion relies solely on the pleadings, it
is functionally similar to a motion to dismiss for failure to state a claim or for judgment on the pleadings.
See, e.g., Vargas-Colón v. Fundación Damas, Inc., 864 F.3d 14, 22 n.15 (1st Cir. 2017) (quoting 10A Charles
Alan Wright et al., Federal Practice & Procedure § 2713 (4th ed. 2016)); Cunningham v. New Mexico, Civ. No.
13-142 JP/WPL, 2013 U.S. Dist. LEXIS 195575, at *13–14 (D.N.M. Sept. 5, 2013) (quoting Fields v. Wise
Media, LLC, 2013 U.S. Dist. LEXIS 101432, at *13 (N.D. Cal. July 19, 2013)). Here, although some of the
parties’ argument is based on the pleadings, some of it relies on other materials in the record. The Court
therefore considers both the allegations of the complaint and all other relevant evidence to decide
whether Defendants are entitled to judgment as a matter of law.
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 3 of 16

4
5. 	Jane Doe 3 alleges Berning engaged in repeated sexual harassment toward
her between 2016 and 2020. PUMF 7; doc. 113-7 at ¶ 22–27.
III. 	Legal Standard
Under Federal Rule of Civil Procedure 56(a), the Court must “grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
movant bears the initial burden of showing “that there is an absence of evidence to
support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The
non-moving party is then required to designate specific facts showing that “there are . . .
genuine factual issues that properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); see also Celotex, 477 U.S. at 324. “An issue is ‘genuine’ if
there is sufficient evidence on each side so that a rational trier of fact could resolve the
issue either way. An issue of fact is ‘material’ if under the substantive law it is essential
to the proper disposition of the claim.” Thom v. Bristol Myers Squibb Co., 353 F.3d 848,
851 (10th Cir. 2003) (internal citations omitted).
In applying this standard, the Court must draw all “reasonable inferences” in
favor of the non-moving party. Penry v. Fed. Home Loan Bank, 155 F.3d 1257, 1261 (10th
Cir. 1998). Summary judgment is appropriate only “where the record taken as a whole
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 4 of 16

5
could not lead a rational trier of fact to find for the non-moving party.” Id. (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
IV. 	Analysis
Defendants Berning and Carson move for summary judgment on Counts X, XI,
and XII on the basis, and to the extent, that they are time-barred. See doc. 172. Plaintiffs
Williams and Jane Doe 3 oppose summary judgment on the basis that the discovery rule
and continuing tort doctrine delayed accrual of their claims, and the statute of
limitations was tolled by incapacity. See doc. 181.
A. 	Applicable Statute of Limitations
New Mexico law imposes a three-year statute of limitations on claims for
personal injury. NMSA § 37-1-8. This limitation applies to claims of battery, intentional
infliction of emotional distress, and negligence in cases alleging sexual abuse. See, e.g.,
Martinez-Sandoval v. Kirsch, 884 P.2d 507, 509 (N.M. Ct. App. 1994); Reed v. Barnes, 1993
U.S. App. LEXIS 2492, at *5 (10th Cir. Feb. 8, 1993). Williams filed suit on June 30, 2022,
and Jane Doe 3 filed suit on April 18, 2024. Doc. 111-1; Civ. No. 24-371 GJF/GBW, doc. 1.
Therefore, to survive summary judgment, Williams’ claims must have accrued no
earlier than June 30, 2019, and Jane Doe 3’s claims must have accrued no earlier than
April 18, 2021.
The parties agree that according to the allegations of the complaint and the
record evidence, Williams’ last relevant contact with Berning was in August 2019. They
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 5 of 16

6
also agree that the last alleged tortious conduct against Jane Doe 3 was in 2020.
Therefore, Williams’ claims arising before June 30, 2019, and Jane Doe 3’s claims in their
entirety, are time-barred unless their accrual was delayed or the statute of limitations
tolled.
B. 	Accrual and Tolling
Plaintiffs argue that the discovery rule delayed accrual of their claims because a
reasonable, similarly-situated plaintiff would not have understood her injuries were
caused by Berning’s abuse, and alternatively, that the statute of limitations was tolled
by incapacity under NMSA § 37-1-10. Doc. 181 at 7–14. Under the discovery rule, the
statute of limitations begins to run when the plaintiff “knows or should know the
relevant facts, whether or not the plaintiff also knows that these facts are enough to
establish a legal cause of action.” Slusser v. Vantage Builders, Inc., 306 P.3d 524, 529 (N.M.
Ct. App. 2013) (quoting Christus St. Vincent Reg’l Med. Ctr. V. Duarte-Afara, 267 P.3d 70,
77 (N.M. Ct. App. 2011)). In Martinez-Sandoval, quoted by Plaintiffs, the court assumed3
that the proper test was whether “a reasonable person in the position of the Plaintiff . . .
would have discovered the damage.” 884 P.2d at 512 (quoting Riley v. Presnell, 565
3 As in the prior summary judgment order, see doc. 138 at 39–40, this Court likewise assumes
without deciding that the quoted language articulates the proper test. Because this standard is
substantially similar to the federal discovery rule, which the Court determined did not delay accrual of
Plaintiffs’ federal claims, see id. at 12–15, it also and for the same reasons does not delay accrual of
Plaintiffs’ state claims.
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 6 of 16

7
N.E.2d 780, 785–86 (Mass. 1991)) (emphasis in original). Under NMSA § 37-1-10, the
limitations period is tolled for “minors and incapacitated persons.”
The Court has already addressed these arguments on summary judgment. See
doc. 138. Plaintiffs acknowledge that “the Court addressed incapacity to an extent in the
context of the federal claims.” Doc. 181 at 12 n.1. In fact, the Court addressed incapacity
under § 37-1-10 and the application of the discovery rule as to both federal and state
claims. See doc. 138 at 12–21, 39–40. After careful review of the evidence, the Court
concluded that Plaintiffs were not incapacitated within the meaning of § 37-1-10 and
that the discovery rule—whether under federal or state law—did not delay accrual of
their claims. Id. Plaintiffs reprise the same arguments here. They neither cite
controlling law that mandates a different result, nor present new evidence with respect
to tolling and accrual. Therefore, the Court incorporates its prior analysis herein by
reference and finds that neither the discovery rule nor § 37-1-10 apply generally to
Plaintiffs’ claims against Berning and Carson.
As to one claim, however, Plaintiffs’ brief raises a new argument. Jane Doe 3
contends that the discovery rule delayed accrual of her claim against Carson based on
“Carson’s negligence as to Berning’s assaultive conduct in her home.” Doc. 181 at 16.
Generally, under New Mexico law, a homeowner owes a duty of ordinary care to keep
the premises safe for visitors, including from intentional harmful conduct by a third
person. See N.M. R. Civ. UJI 13-1309; Rodriguez v. Del Sol Shopping Ctr. Assoc., 326 P.3d
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 7 of 16

8
465, 468–69 (N.M. 2014). This delayed accrual argument is not that Berning’s sexual
abuse rendered her unable to comprehend the relevant facts or causes, but that she was
unaware of Carson’s involvement in the abuse until 2022. Doc. 181 at 16–17. 	However,
while Jane Doe 3 relies on her own declaration, see id. at 5 (PUMF 25), she does not
simply aver that she was ignorant of Carson’s involvement until 2022. Instead, she
relies on circuitous, and ultimately flawed, logic chain. The cited portions of her
declaration state as follows: (1) Jane Doe 3 was unaware Berning had “a history of
sexual misconduct at NMSU”; (2) she did not “know or have reason to believe that the
leadership of NMSU, and my superiors, would have placed me in a position of
vulnerability like that”; (3) in December 2022, after there were “rumblings amongst the
students and staff about Dr. Berning,” she met with Dr. Post and disclosed her
experiences with Berning; and (4) Dr. Post “acted surprised” to hear this information.
Doc. 113-7 at ¶¶ 30–34. Based these facts, her briefing reasons that because (a) she “did
not have knowledge that any individual associated with NMSU had prior awareness of
the propensities of Berning until 2022,” and (b) Carson was an employee of NMSU; the
declaration therefore establishes that Jane Doe 3 was not aware of Carson’s involvement
until 2022. Doc. 181 at 16. The flaw in this logic is that Jane Doe 3’s declaration only
denies knowledge of the involvement of “the leadership of NMSU, and my superiors.”
Doc. 113-7 at ¶ 33. The declaration does not state, nor does the complaint allege, that
Carson was part of the “leadership of NMSU” or was one of Jane Doe 3’s “superiors.”
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 8 of 16

9
See doc. 35 at ¶ 143 (Jane Doe 3 was supervised by Dr. Post). Thus, the declaration does
not support the assertion that Jane Doe 3 did not learn of Carson’s involvement until
2022.
It was Plaintiffs’ burden to come forward with specific facts supporting
application of the discovery rule. See Herrera v. City of Espanola, 32 F.4th 980, 992 (10th
Cir. 2022). In the absence of such facts, Carson is entitled to judgment as a matter of law
because the claim was filed outside the limitations period.
C. 	Continuing Tort Doctrine
Plaintiffs argue that accrual of their claims is delayed by the continuing tort
doctrine, under which “where a tort involves a continuing or repeated injury, the cause
of action does not accrue until the date of the last injury.” Doc. 181 at 14. Plaintiffs
acknowledge that counsel has been “unable to locate New Mexico cases discussing and
considering the doctrine in the context of sexual assault and abuse cases,” but cite cases
from several other jurisdictions where the doctrine was applied. Id. at 15 (citing M.R. v.
State, 568 P.3d 299 (Wa. 2025); Miss. Dep’t of Human Servs. v. S.W., 111 So. 3d 630 (Miss.
Ct. App. 2012); Feltmeier v. Feltmeier, 798 N.E.2d 75 (Ill. 2003)).
As an initial matter, Jane Doe 3’s claims are time-barred regardless of whether
the continuing tort doctrine applies. Accrual of her claims would be delayed to
approximately fall 2020, see doc. 181 at 14–15; doc. 113-7 at ¶ 22, and she did not file suit
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 9 of 16

10
until April 18, 2024, more than three years later. Therefore, the Court need not and does
not consider the doctrine with respect to her claims.
With respect to Williams’ claims, the Court must determine (1) whether New
Mexico recognizes the continuing tort doctrine, and (2) if so, whether it delays accrual
of her otherwise untimely claims. On the first question, the Court considers Martinez-
Sandoval, where the plaintiff alleged continuing sexual abuse from age fifteen to
eighteen. 884 P.2d at 514. The New Mexico Court of Appeals found her claims for
battery, negligent infliction of emotional distress, and IIED were untimely because her
“acquisition of a venereal disease and her pregnancy leading to an abortion were
sufficiently substantial injuries that once she knew that they were caused by [the
defendant], the limitations period would no longer be delayed by the discovery rule.”
Id. at 513. The court further held that “the sexual misconduct causing Plaintiff’s
venereal disease and pregnancy” could not be “isolated from the remainder of [the]
alleged misconduct,” id. at 514, reasoning:
Plaintiff treated Kirsch’s alleged misconduct as a continuing tort, forming
the predicate of one indivisible cause of action. Plaintiff’s approach
accords with the general rule that when a series of actions by a defendant
cause one indivisible harm, Plaintiff has only one indivisible cause of
action.
Id. (citations omitted). This language indicates that New Mexico courts would
recognize some form of the continuing tort doctrine to delay the accrual of certain
claims. See Juarez v. Nelson, 61 P.3d 877, 882 (N.M. Ct. App. 2002), overruled on other
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 10 of 16

11
grounds by Tomlinson v. George, 116 P.3d 105, 112 (N.M. 2005) (“Plaintiffs refer us to
[Martinez-Sandoval], where we noted with apparent approval the rule that where a series
of actions by a defendant results in one indivisible harm, the plaintiff has one
indivisible cause of action.”).
The next question to be determined is whether the doctrine applies to Williams’
claims. By the plain language of Martinez-Sandoval, the continuing tort doctrine applies
to a “series of actions” that give rise to “only one . . . cause of action.” 884 P.2d at 514.
Put another way, it does not apply to a series of actions, even if similar or related, that
give rise to multiple causes of action. This general rule accords with Tiberi v. CIGNA
Corp., 89 F.3d 1423 (10th Cir. 1996), which Plaintiffs also cite. The Tenth Circuit,
applying New Mexico contract and tort law, held that the continuing tort doctrine
delayed accrual of the plaintiff’s claims because the defendant made repeated
representations that he would be compensated for his losses, so the plaintiff had “no
reason to believe that he was being defrauded” until the final representation. Id. at
1431. The court noted, however, that “the doctrine cannot be employed where the
plaintiff’s injury is ‘definite and discoverable, and nothing prevented the plaintiff from
coming forward to seek redress.’” Id. (quoting Wilson v. Giesen, 956 F.2d 738, 743 (7th
Cir. 1992)). In other words, a continuing tort occurs only where the defendant’s earlier
conduct did not give rise a contemporaneous cause of action, whether because the
conduct was not independently sufficient to support a tort claim, or because the
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 11 of 16

12
conduct rendered the plaintiff unaware of that claim’s existence. 4 This rule differs
notably from the version of the continuing tort doctrine applied in several of the out-of-
state cases Plaintiffs have cited, where a continuing tort involves repeated conduct
giving rise to multiple, separate causes of action. See, e.g., S.W., 111 So. 3d at 646 (“A
‘continuing tort’ is one inflicted over a period of time; it involves a wrongful conduct
that is repeated until desisted, and each day creates a separate cause of action.” (citation
omitted) (emphasis added)). Accordingly, to the extent Plaintiffs’ reasoning is based on
those cases, the Court finds it unpersuasive.
With this guidance in mind, the Court holds that the continuing tort doctrine
does not apply to Williams’ claims of assault and battery. Under New Mexico law, the
elements of a civil battery claim are: (1) “an act intending to cause a harmful or
offensive contact with the person of the other or a third person, or an imminent
4 This reading accords with the authority cited in support of the Martinez-Sandoval court’s
analysis. See 884 P.2d at 514. In Baltimore S.S. Co. v. Phillips, the plaintiff was injured while working on a
ship and alleged the defendants were negligent in several different ways. 274 U.S. 316, 321 (1927). The
Supreme Court held that “the respondent suffered but one actionable wrong and was entitled to but one
recovery, whether his injury was due to one or the other of several distinct acts of alleged negligence or to
a combination of some or all of them.” Id.; see also 1A C.J.S. Actions § 196 (1985) (several acts of
negligence resulting in one injury create one cause of action). The multiple negligent causes of his injury
did not generate multiple causes of action because he had suffered only “a single legal wrong.” Id.
The other cited cases address whether a plaintiff can split multiple injuries into separate causes of
action if those injuries arise from a single instance of tortious conduct. In Derose v. Carswell, the California
Court of Appeals held that a single sexual assault, though resulting in both physical and emotional harm,
did not generate two separate causes of action for the respective injuries to “person and feelings.” 242
Cal. Rptr. 368, 375 n.6 (Cal. Ct. App. 1987). In Baily v. Lewis, the court held that because “the asserted
cause of Baily’s subsequent physical and emotional difficulties is the series of batteries committed upon
him by the defendant,” once the limitations period began to run on the battery, it also began to run on the
related physical and psychological disabilities arising from the same wrongful conduct. 763 F. Supp. 802,
810 (E.D. Pa. 1991).
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 12 of 16

13
apprehension of such a contact,” and (2) “an offensive contact with the person of the
other directly or indirectly results.” Hernandez v. Parker, 508 P.3d 947, 957 (N.M. Ct.
App. 2022) (quoting Restatement (Second) of Torts § 18). For a claim of assault, “the
actor need only intend to cause another to be put in imminent apprehension of harmful
or offensive contact, but the contact need not occur.” Id. (quoting Restatement (Second)
of Torts § 21). “A battery is complete upon physical contact, even though there is no
observable damage at the point of contact,” and “[a]n assault is complete when
anticipation of harm occurs.” Restatement 2d of Torts, § 899, cmt. c (1979); see also Moore
v. Portland Pub. Schs., 537 P.3d 544, 557 (Or. Ct. App. 2023) (“Discrete instances of
battery that are separately actionable and not merely an element of a single tort, even if
an ongoing pattern of abuse can be shown, do not fit within the characterization of a
continuing tort.”) (international quotations and citations omitted); Floyd v. Donahue, 923
P.2d 875, 879 (Ariz. Ct. App. 1996) (holding the continuing tort rule does not apply to
repeated sexual assaults because “each claimed act is a separate assault causing
separate as well as cumulative injury”). Because each alleged incident of assault or
battery gave rise to a separate cause of action at the time it occurred, the Court
concludes that the continuing tort doctrine does not delay accrual of Williams’ claims.
Williams urges that the doctrine applies with particular force to her IIED claim
against Berning. Doc. 181 at 15. For this proposition she relies on an out-of-state case,
Pavlik v. Kornhaber, where the court observed:
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 13 of 16

14
It may be the pattern, course and accumulation of acts that make the
conduct sufficiently extreme to be actionable, whereas one instance of
such behavior might not be. It would be logically inconsistent to say that
each act must be independently actionable while at the same time
asserting that often it is the cumulative nature of the acts that gives rise to
the intentional infliction of emotional distress. Likewise, we cannot say
that cumulative continuous acts may be required to constitute the tort but
that prescription runs from the date of the first act.
761 N.E.2d 175, 187 (Ill. Ct. App. 2001) (internal citations omitted); see also Curtis v. Firth,
850 P.2d 749, 755 (Idaho 1993) (extending the continuing tort doctrine to the “limited”
context of IIED because “[b]y its very nature this tort will often involve a series of acts
over a period of time, rather than one single act causing severe emotional distress”). To
the undersigned’s knowledge, New Mexico courts have not confronted this argument
or addressed the continuing tort theory in the context of IIED. Under New Mexico law,
a claim of IIED requires that:
(1) the conduct in question was extreme and outrageous; (2) the conduct of
the defendant was intentional or in reckless disregard of the plaintiff; (3)
the plaintiff’s mental distress was extreme and severe; and (4) there is a
causal connection between the defendant’s conduct and the claimant’s
mental distress.
Baldonado v. El Paso Nat. Gas. Co., 176 P.3d 286, 294 (N.M. Ct. App. 2006) (quoting Trujillo
v. N. Rio Arriba Elec. Coop., Inc., 41 P.3d 333, 342 (N.M. 2001)). Plaintiffs cite no authority
holding that an IIED claim under New Mexico law may comprise a series of
independently non-actionable conduct, although courts in this District have recognized
the possibility. See, e.g., Pirtle v. Allsup’s Convenience Store, Inc., Civ. No. 02-509 JP/JHG,
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 14 of 16

15
2003 U.S. Dist. LEXIS 27640, at *21 (D.N.M. Apr. 2, 2003) (“Although this Court
recognizes that in certain instances repeated acts or a pattern of racial discrimination
might constitute extreme and outrageous conduct, the alleged single instance of racial
discrimination here does not meet that high standard.” (citations omitted)).
Assuming, however, that New Mexico law recognizes such a claim, it does not
apply to Plaintiffs’ facts. Williams’ IIED claim is primarily based on numerous
instances of non-consensual sexual intercourse. See generally doc. 35.5 These allegations
are not of a minor, cumulative nature, such that any one act would have been
insufficient to support a claim of IIED. See Restatement 2d of Torts, § 899, cmt. c (1979)
(“A cause of action for mental shock or mental distress is complete when the shock or
distress occurs, if the shock or distress itself is sufficient for the tort[.]”). On the
contrary, the act alleged—namely, rape—is sufficiently outrageous and indecent in
nature that no other, cumulative acts were required to support a claim. See Watkins v.
Arpaio, 367 P.3d 72, 76 (Ariz. Ct. App. 2016) (rejecting application of a continuing tort
theory to the plaintiff’s IIED claim where the defendant’s “initial acts in a series of
5 The complaint does not specify which acts or omissions support Count XI, but instead restates
the elements of an IIED claim in conclusory fashion. Doc. 35 at ¶¶ 434–38. Therefore, the Court fairly
assumes that the IIED claim is based on all potentially relevant facts alleged, including the several sexual
assaults.
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 15 of 16

16
alleged wrongdoing” were “sufficient by themselves to support a claim”). The Court
therefore finds the continuing tort doctrine does not apply to Williams’ claims.6
V. 	Conclusion
For the foregoing reasons, Defendants Joseph Berning and Carole Carson’s
Motion for Partial Summary Judgment as to Counts X, XI, and XII (doc. 172) is
GRANTED.
IT IS SO ORDERED.
_____________________________________________
GREGORY B. WORMUTH
CHIEF UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
6 Although Plaintiffs’ brief makes no specific argument with respect to the continuing tort
doctrine and Williams’ negligence claim against Berning and Carson, see doc. 181 at 14–16, the Court finds
the same reasoning applies to preclude application of the doctrine.
Case 2:23-cv-01059-GBW-KRS Document 187 Filed 05/06/26 Page 16 of 16