United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
Honorable Martha Vazquez referred this matter to the
undersigned to “perform any legal analysis required to
recommend to the Court an ultimate disposition of the
case.” Doc. 20; see 28 U.S.C.
§§ 636(b)(1)(B), (b)(3); Fed.R.Civ.P. 72(b)(1). The
Court has reviewed the pending Motions to Dismiss filed by
Defendants and Plaintiff's failure to respond to them.
Docs. 13, 14, 22, 24.
Ultimately, the Court recommends that the Motions be granted
because the Court does not have personal jurisdiction over
any of the Defendants. Defendants Ellen Simon and Walter
Simon's Motion to Stay (Doc. 23) should,
accordingly, be denied as moot.
Complaint is not a model of clarity. However, from what the
Court can deduce, Plaintiff claims that Defendants Walter and
Ellen Simon removed the “Victim, ”
Plaintiff's mother, from the Defendant Hospital
“resulting in the untimely Death (sic) of the
‘Victim.'” See Doc. 1 at 4. Based on
these actions, Plaintiff purports to bring criminal
negligence, larceny, and civil rights claims against
Defendants. Id. at 5.
have filed Motions to Dismiss Plaintiff's Complaint for
lack of personal jurisdiction and failure to state a claim.
See Docs. 13, 14. As Defendants point out,
Plaintiff's Complaint alleges that they are citizens and
residents of the state of Texas, and that all of the acts
Plaintiff complains of occurred in the state of Texas. As
such, they claim that this Court's exercise of
jurisdiction over them would offend due process. See
generally, Id. Alternatively, Defendants move to dismiss
Plaintiff's civil rights claims brought under 42 U.S.C.
§ 1983 for failure to state a claim. Plaintiff did not
respond to the instant Motions.
D.N.M.LR-Civ. 7.1(b), “[t]he failure of a party to file
and serve a response in opposition to a motion within the
time prescribed for doing so constitutes consent to grant the
motion.” However, the Court proceeds cautiously when
applying this local rule, as the Tenth Circuit has rejected a
similar rule's application in the context of motions for
summary judgment, Reed v. Bennett, 312 F.3d 1190,
1195 (10th Cir. 2002) (“[A] party's failure to file
a response to a summary judgment motion is not, by itself, a
sufficient basis on which to enter judgment against the
party. The district court must make the additional
determination that judgment for the moving party is
‘appropriate' under Rule 56.”), and motions
to dismiss for failure to state a claim. Issa v. Comp
USA, 354 F.3d 1174, 1177 (10th Cir. 2003) (“[W]e
conclude that a district court may not grant a motion to
dismiss for failure to state a claim ‘merely because a
party failed to file a response.'”) (quoting
Reed, 312 F.3d at 1194). Therefore, the Court has
“carefully considered the merits of the motion, ”
which attacks the Court's jurisdiction to hear this case.
See Baas v. Secretary of Veteran Affairs, CIV
17-0132 MCA/GJF, 2017 WL 3084432 (D.N.M. 2017).
a defendant couples a 12(b) motion to dismiss for lack of
personal jurisdiction with other issues, the court must first
determine the jurisdictional issue.” Walker v. THI
of New Mexico at Hobbs Ctr., 801 F.Supp.2d 1128, 1140
(D.N.M. 2011) (citing OMI Holdings, Inc. v. Royal Ins.
Co. of Canada, 149 F.3d 1086, 1090 (10th Cir.1998)).
“After all, the party over which there is no personal
jurisdiction should not have to participate at all in the
litigation in that forum.” Estate of Cummings v.
Community Health Systems, Inc., No. 17-2026, __ F.3d __,
2018 WL 577695 (10th Cir. 2018). Rather, if personal
jurisdiction is lacking, “[t]he court should then
dismiss the claims without prejudice on jurisdictional
grounds.” Walker, 801 F.Supp.2d at 1141.
Motions target this Court's personal jurisdiction over
them, as contemplated by Federal Rule of Civil Procedure
12(b)(2). See Doc. 13 at 2-4; Doc. 14 at
2-5. “Where a defendant raises a timely challenge
contesting personal jurisdiction, the plaintiff bears the
burden of establishing that there is personal jurisdiction
over the defendant and that the exercise of personal
jurisdiction would not violate due-process
requirements.” Res. Associates Grant Writing &
Evaluation Services, Inc. v. Southampton Union Free Sch.
Dist., 193 F.Supp.3d 1200, 1219 (D.N.M. 2016) (citing
Overton v. United States, 925 F.2d 1282, 1283 (10th
Cir.1991)). “In determining whether a federal court has
personal jurisdiction over a defendant, the court must
determine ‘(1) whether the applicable statute
potentially confers jurisdiction by authorizing service of
process on the defendant and (2) whether the exercise of
jurisdiction comports with due process.'”
Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir.
2006) (quoting Peay v. BellSouth Med. Assistance
Plan, 205 F.3d 1206, 1209 (10th Cir. 2000)). In the
absence of a statute conferring jurisdiction, “Fed. R.
Civ. P. 4(k)(1)(A) refers us to the New Mexico long-arm
statute, which is coextensive with constitutional limitations
imposed by the Due Process Clause.” Trujillo,
465 F.3d at 1217 (citing Tercero v. Roman Catholic
Diocese, 132 N.M. 312, 48 P.3d 50, 54 (N.M.2002)).
“Thus, if jurisdiction is consistent with the Due
Process Clause, then New Mexico's long-arm statute
authorizes jurisdiction over a nonresident defendant.”
Trujillo, 465 F.3d at 1217. “The exercise of
jurisdiction over a nonresident defendant comports with due
process ‘so long as there exist minimum contacts
between the defendant and the forum State.'”
Id. (quoting Intercon, Inc. v. Bell Atl.
Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir.
2000), in turn quoting World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d
jurisdiction can be general or specific. See Zavala v. El
Paso County Hosp. Dist., 143 N.M. 36, 42 (N.M. Ct. App.
2007). General personal jurisdiction may be satisfied
“based on the defendant's ‘continuous and
systematic' general business contacts with the forum
state.” Trujillo, 465 F.3d at 1218 n.7 (citing
Helicopteros Nacionales v. Hall, 466 U.S. 408, 415,
104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). On the other hand,
[t]he minimum contacts necessary for specific personal
jurisdiction may be established where “the defendant
has ‘purposefully directed' its activities toward
the forum jurisdiction and where the underlying action is
based upon activities that arise out of or relate to the
defendant's contacts with the forum.” In re
Application to Enforce Administrative Subpoenas Duces Tecum
of S.E.C. v. Knowles, 87 F.3d 413, 418 (10th Cir.1996)
(quoting Burger King Corp. v. Rudzewicz, 471 U.S.
462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985))
Trujillo, 465 F.3d at 1217-18. Even assuming that
sufficient minimum contacts exist, the Court must decide
whether the assertion of personal jurisdiction
“comports with fair play and substantial
justice.” Id. at 1221 (quoting Equifax
Servs., Inc. v. Hitz, 905 F.2d 1355, 1359 (10th
Cir.1990)). In determining whether exercising personal
jurisdiction would be reasonable in a particular case the
Court looks to the following factors:
(1) the burden on the defendant, (2) the forum state's
interest in resolving the dispute, (3) the plaintiff's
interest in receiving convenient and effective relief, (4)
the interstate judicial system's interest in obtaining
the most efficient resolution of controversies, and (5) the
shared interest of the several states in furthering
fundamental social policies.
Trujillo, 465 F.3d at 1221 (quoting Pro Axess,
Inc. v. Orlux Distribution, Inc., 428 F.3d 1270, 1279
(10th Cir. 2005)).