United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Mr. Edmund Robinson's
“Notice of Disclaimer of Interest and Request for
Dismissal, ” filed on February 12, 2018. (Doc. 60).
Plaintiff, MTGLQ Investors, LP (“MTGLQ”), filed a
response on February 22, 2018. (Doc. 63). In his notice, Mr.
Robinson maintains (1) that this Court lacks personal
jurisdiction over him and (2) that he has no interest in the
2124 Altura Verde property (“the Altura Verde
property”) that is the subject of this case. (Doc. 60).
Thus, the Court construes Mr. Robinson's Notice of
Disclaimer of Interest and Request for Dismissal as a motion
to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(6).
For the following reasons, the Court agrees with Mr.
Robinson's contentions and dismisses him from this case
plaintiff has the burden of proving personal
jurisdiction.” Overton v. United States, 925
F.2d 1282, 1283 (10th Cir. 1991) (citation omitted).
“When faced with a defendant's motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(2), a plaintiff is required
only to make a prima facie showing of personal
jurisdiction to defeat the motion.” Tompkins v.
Exec. Comm. of S. Baptist Convention, 2015 WL 1568944,
at *4 (D.N.M.) (emphasis added) (citing Dudnikov v. Chalk
& Vermilion Fine Arts, Inc., 514 F.3d 1063, 1069
(10th Cir. 2008)). “For the purposes of determining
whether a plaintiff has made a prima facie showing
of personal jurisdiction, the court must accept as true all
factual allegations in the complaint.” Id.
(emphasis added) (citing AST Sports Science, Inc. v. CLF
Distrib. Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008)).
MTGLQ fails to provide any helpful factual allegations
regarding this Court's jurisdiction over Mr. Robinson.
MTGLQ only alleges “[t]he Unknown Spouse of Monica L.
Wellington, may claim an interest in the subject Property by
reason of Marriage.” (Doc. 1-1) at 5, ¶ 21. This
allegation alone fails to establish a prima facie
showing of personal jurisdiction. See Tompkins, 2015
WL 1568944, at *4 (explaining that under New Mexico law,
courts apply a three-part test to determine specific personal
jurisdiction over a defendant, namely, if the defendant's
actions fall within New Mexico's long-arm statute,
whether plaintiff's claim arises from defendant's
actions, and whether defendant's contacts with New Mexico
are sufficient to satisfy due process concerns); see also
Willis v. Government Employees Ins. Co., 2016 WL
3946782, at *3 (D.N.M.) (same) (citing Tercero v. Roman
Catholic Diocese of Norwich, Conn., 2002-NMSC-018,
¶ 8, 132 N.M. 312). MTGLQ fails to establish how its
qualified allegation relating to “the Unknown Spouse,
” shows that Mr. Robinson had contacts with this state
and how its claims arise from any of his contacts. Thus, the
Court finds that absent a showing of sufficient minimum
contacts, MTGLQ has failed to defeat Mr. Robinson's
motion pursuant to Rule 12(b)(2). As a result, Mr. Robinson
is dismissed from this case without prejudice. See
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218
(10th Cir. 2006) (“[D]ismissals for lack of
jurisdiction should be without prejudice because the court,
having determined that it lacks jurisdiction over the action,
is incapable of reaching a disposition on the merits
of the underlying claims.”).
so, the Court reviews whether MTGLQ has alleged sufficient
facts to state a claim pursuant to Rule 12(b)(6) against Mr.
Robinson. In ruling on a Fed.R.Civ.P. 12(b)(6) motion to
dismiss, the Court must accept all well-pleaded allegations
as true and must view them in the light most favorable to the
plaintiff. See Zinermon v. Burch, 494 U.S. 113, 118
(1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th
Cir. 1984). Rule 12(b)(6) requires that a complaint set forth
the grounds of a plaintiff's entitlement to relief
through more than labels, conclusions and a formulaic
recitation of the elements of a cause of action. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
allege facts sufficient to state a plausible claim of relief.
Id. at 570. “A pro se litigant's
pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by
lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991) (citing Haines v. Kerner, 404 U.S.
519, 520-521 (1972)). Nonetheless, it is not “the
proper function of the district court to assume the role of
advocate for the pro se litigant.”
response, MTGLQ broadly asserts that Mr. Robinson
“has” an interest in the property, yet it fails
to sufficiently plead how Mr. Robinson indeed has an
interest. (Doc. 63). As noted above, the only allegation
directed at “the Unknown Spouse, ” Mr. Robinson,
is a qualified allegation that he “may” have an
interest in the Altura Verde property. (Doc. 1-1) at 5,
¶ 21. This singular allegation alone fails to establish
a plausible claim for relief against Mr. Robinson.
Robinson offers an unqualified statement in his motion that
Ms. Wellington acquired the Altura Verde property before
their marriage in January 2011, and thus he has no interest
in the separate property. See NMSA 1978, §
40-3-8(A)(1) (Repl. Pamp. 2014) (“ ‘Separate
property' means:… property acquired by either
spouse before marriage or after entry of a decree of
dissolution of marriage.”). MTGLQ points to Section
40-3-8(C) to argue that the Altura Verde property is
quasi-community property, but it fails to allege sufficient
facts to plausibly show that the property meets either one of
the two statutory definitions of quasi-community property.
See §§ 40-3-8(C)(1) to -8(C)(2). Thus,
MTGLQ fails to allege sufficient facts raising a plausible
claim for relief as to Mr. Robinson.
THEREFORE, ORDERED that Mr. Robinson's Notice of
Disclaimer of Interest and Request for Dismissal be granted
and MTGLQ's claims against Mr. Robinson be dismissed
without prejudice. Accordingly, “The Unknown Spouse of
Monica L. Wellington” will be removed from the caption
of this case.
 On March 15, 2018, MTGLQ filed a
Certificate of Service explaining that Mr. Robinson was
personally served a summons on March 2, 2018. (Doc. 66). Mr.