Lueker v. First National Bank of Boston (Guernsey) Ltd.

*338 TACHA, Circuit Judge,

dissenting.

New Mexico law allows a winning litigant to recover attorneys’ fees expended to dissolve a wrongful injunction only when that litigant is the “party enjoined.” Shultz v. Pascoe, 94 N.M. 634, 614 P.2d 1083 1084-5 (1980). The injunction at issue in this case was issued against Sunwest Bank of Albuquerque, not against defendant First National Bank of Boston (Guernsey) Limited (“Guernsey”). Under a plain reading of New Mexico law, then, Guernsey cannot recover attorneys’ fees because it was not the party enjoined. The majority reasons that Guernsey may recover attorneys’ fees because it was made a party-defendant to the action that gave rise to the injunction. Adding Guernsey to the complaint, however, merely made Guernsey a party, not the enjoined party. The majority also construes this interpretation of New Mexico law as an overly technical application of the rule at issue. But interpreting “party enjoined” as the enjoined party, as opposed to any party involved in the litigation, is not overly technical; it is instead a plain reading of New Mexico law. For that reason, I respectfully dissent.