United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on Defendants Reeves Roofing
Equipment Co., Inc., JNR Enterprises, Inc., Joe Reeves, John
Reeves, and Amy Reeves' (collectively the “Reeves
Defendants”) Motion to Dismiss for Lack of Personal
Jurisdiction (the “Motion to Dismiss”),
(Doc. 167), filed August 21, 2017; Defendants Great Northern
Building Products, Great Northern Holding, LLC, and
Harrisonville Equipment Company's Response in
Opposition to Defendants Reeves Roofing Co., Inc., JNR
Enterprises, Inc., Joe Reeves, John Reeves, and Amy
Reeves' Motion to Dismiss (the “Great Northern
Response”), (Doc. 168), filed September 5, 2017;
Plaintiff Refugio Ramos' Response to Defendants
Reeves Roofing Equipment Co., Inc., N/K/A JAJ Equipment,
Inc., JNR Enterprises, Inc., Joe S. Reeves, John Reeves, and
Amy Reeves' Motion to Dismiss for Lack of Personal
Jurisdiction (“Plaintiff's Response”),
(Doc. 171), filed September 5, 2017; and the Reeves
Defendants' Reply in Support of Their Motion to
Dismiss for Lack of Personal Jurisdiction (the
“Reply”), (Doc. 189), filed October 10, 2017.
before the Court are Plaintiff's Objection to
Defendant JAJ Equipment, Inc., F/K/A Reeves Roofing Equipment
Co., Inc.'s Motion to Dismiss for Lack of Personal
Jurisdiction and Notice of Waiver (the
“Objection”), (Doc. 192), filed October 22, 2017;
the Reeves Defendants' Motion to Strike or Disregard
Plaintiff's “Objection” to Their Motion to
Dismiss (the “Motion to Strike”), (Doc.
211), filed January 5, 2018; Plaintiff's Response in
Opposition to Reeves Defendants' Motion to Strike or
Disregard Plaintiff's Objection to Their Motion to
Dismiss (Doc. 211) (the “Response to the Motion to
Strike”), (Doc. 215), filed January 17, 2018.
reviewing the briefing, the Court finds that it may consider
the argument Plaintiff raises in the Objection, but that the
Court lacks personal jurisdiction over the Reeves Defendants.
Therefore, for the following reasons, the Reeves
Defendants' Motion to Strike is DENIED and the
Reeves' Defendants' Motion to Dismiss is GRANTED.
case arises from injuries Plaintiff suffered on a commercial
roofing job while employed by Defendant C. Ortiz Corporation
(“C. Ortiz”). Plaintiff was injured when a tar
lugger overturned and spilled hot tar onto him. (Doc. 192 at
1-2). The tar lugger involved in the incident was designed,
manufactured, marketed, and sold by defendant Reeves Roofing
Equipment Co., Inc. (“Reeves Roofing”), a Texas
corporation. Defendants Joe Reeves, John Reeves, and Amy
Reeves (the “Individual Reeves Defendants”) were
employees and officers of Reeves Roofing before its sale to
Defendant Great Northern Holdings, LLC (“Great
Northern”). (Docs. 167 at 4; 171 at 2). Following its
sale, Reeves Roofing changed its name to JAJ Equipment, Inc.
(“JAJ”) and ceased operation. (Doc. 167 at 2).
Defendant JNR Enterprises, Inc. (“JNR”), another
Texas corporation, is a holding company. JNR is the sole
shareholder of JAJ, and leased land to JAJ on which JAJ
manufactured roofing equipment. (Doc. 167-1 at 2).
his injury, Plaintiff brought claims against the Reeves
Defendants alleging strict liability, recklessness, and
negligence in designing, manufacturing, marketing, and
selling the tar lugger. (Doc. 85 at 5-6) (Amended Complaint).
Plaintiff alleged that JAJ and JNR are Texas corporations
doing business in New Mexico and that the Individual Reeves
Defendants participated in designing and marketing the tar
lugger. Id. at 2, 4. In its Answer to the Amended
Complaint, JAJ denied that it does business in New Mexico,
(Doc. 93 at 2), while JNR and the Individual Reeves
Defendants filed a Motion to Dismiss for Lack of Personal
Jurisdiction (the “First Motion to
Dismiss”), (Doc. 102). Plaintiff then moved to stay a
ruling on the First Motion to Dismiss and to allow ninety
days of jurisdictional discovery. (Doc. 106). JNR and the
Individual Reeves Defendants consented to discovery provided
it was narrowly tailored to facts related to personal
jurisdiction. (Doc. 108). The other Defendants in this case
did not oppose allowing jurisdictional discovery, but they
preferred to proceed with general discovery rather than wait
for a ruling on the First Motion to Dismiss. (Doc. 115).
Accordingly, the Court ordered ninety days of jurisdictional
discovery and allowed general discovery against the rest of
the Defendants, including JAJ. Id.
discovery revealed the following facts. JAJ was originally
founded and incorporated in Texas in 1966 and manufactured
roofing equipment, including tar luggers. (Doc. 167-1 at 3).
Between 2010 and 2011, JAJ sold to four customers in New
Mexico: The Flashing Company and L&P Building Supply in
Las Cruces, NM; Reed Roofing and Construction Co. in Clovis,
NM; and Albuquerque Equipment and Roofing Supply
(“Albuquerque Equipment”) in Albuquerque, NM.
(Doc. 167-7 at 7-10). In fiscal year 2008-2009, JAJ made no
sales to New Mexico-based customers, and in fiscal year
2009-2010, JAJ made one sale to The Flashing Company. (Doc.
167-3 at 1-6). Ms. Reeves estimated making 50 sales to New
Mexican customers over 20 years, though she was not the main
order receiver, (Doc. 167-1 at 6), and sales were not made
every year, (Doc. 167-1 at 7).
owned no property and maintained no physical presence in New
Mexico, nor did it send agents or salespeople into New
Mexico. Rather, JAJ considered Albuquerque Equipment its
“distributor.” (Doc. 167-1 at 7). JAJ provided
Albuquerque Equipment with brochures of its products and
included Albuquerque Equipment on its mass email list.
Id. If a customer from New Mexico called JAJ, JAJ
would refer the customer to Albuquerque Equipment.
Id. If Albuquerque Equipment did not have what the
customer needed, the customer could call JAJ directly.
Id. JAJ's representatives also occasionally
spoke with Albuquerque Equipment's employees. (Doc. 167-1
at 4, 7). JAJ had a practice of extending credit to customers
and calling references as part of a credit check, but JAJ did
not extend credit to anyone in New Mexico. Id.
the particular tar lugger involved in this case, JAJ did not
sell it to Albuquerque Equipment or any other New Mexico
customer. Rather, C. Ortiz bought the tar lugger in El Paso,
Texas, from another roofing company and brought it into New
Mexico. (Doc. 167-8 at 2). C. Ortiz purchased several tar
luggers and does not know which one contributed to
Plaintiff's injuries. Id. at 3.
jurisdictional discovery, the Reeves Defendants, including
JAJ, filed the Motion to Dismiss. (Doc. 167). The Reeves
Defendants argue they lack the sufficient minimum contacts
with New Mexico for the Court to exercise personal
jurisdiction over them, and even if they did have sufficient
contacts, they claim exercising jurisdiction over them would
“offend traditional notions of fair play and
substantial justice.” Id. at 10. In
Plaintiff's Response, he argues that these defendants are
subject to personal jurisdiction, that exercising personal
jurisdiction over them would not offend traditional notions
of fair play and substantial justice, and that the Reeves
Defendants are alter-egos of one another, therefore if the
Court has jurisdiction over one of them, the Court has
jurisdiction over all of them. (Doc. 171). In their Reply,
the Reeves Defendants dispute Plaintiff's contentions
that their contacts with New Mexico are sufficient to
establish personal jurisdiction over them. (Doc. 189 at
2-12). The Reeves Defendants did not reply to Plaintiff's
Northern opposes dismissing the Reeves Defendants because the
Reeves Defendants agreed to indemnify, defend, and hold Great
Northern harmless as part of their purchase agreement. (Doc.
168 at 2-3). Great Northern only opposed the Motion to
Dismiss to preserve these rights and does not argue that the
indemnification clause confers personal jurisdiction.
Id. The Reeves Defendants also did not reply to
Great Northern's Response.
the Reeves Defendants filed their Reply and a Notice of
Completion of Briefing, (Doc. 190), Plaintiff filed his
Objection, arguing for the first time that JAJ has waived its
right to assert the Court lacks personal jurisdiction over
it. (Doc. 192). Plaintiff contends that JAJ waived this
defense because it “did not challenge” personal
jurisdiction in its answer to the amended complaint, (Doc.
93), and was not a party to the First Motion to Dismiss.
(Doc. 192 at 1-2). The Reeves Defendants did not respond to
the Reeves Defendants filed the Motion to Strike, stating the
Court should either strike the Objection from the record or
at least disregard the arguments therein. (Doc. 211). The
Reeves Defendants first claim the Objection is an improper
surreply filed without leave of court. Id. at 1-4.
Second, according to the Reeves Defendants, Plaintiff's
waiver argument is meritless because JAJ denied
Plaintiff's only jurisdictional allegation, (Doc. 93 at
2), and lack of personal jurisdiction is not an affirmative
defense that must be pled in an answer. (Doc. 211 at 4-6).
response to the Motion to Strike, Plaintiff first denies that
his Objection should be ignored because it is procedurally
improper. Rather, he says, under the applicable Federal Rules
of Civil Procedure, plaintiffs cannot waive their right to
assert a defendant has waived its right to assert lack of
personal jurisdiction. (Doc. 215 at 5-9). Second, Plaintiff
disputes that he is substantively incorrect. Assuming for the
sake of argument that JAJ sufficiently raised lack of
personal jurisdiction in its answer, Plaintiff instead argues
that JAJ has waived the defense through its conduct and
participation in this case. Id. at 9-12. The Reeves
Defendants have not filed a reply in support of the Motion to
Strike, and the time for doing so has passed.
Motion to Dismiss, Objection, and Motion to Strike all affect
the ultimate question before the Court: are the Reeves
Defendants subject to the Court's jurisdiction? Because
the Motion to Strike and the Objection relate to what
arguments and which defendants are properly before the Court,
the Court will start with those. The Court will then discuss
whether or not it has personal jurisdiction over the Reeves