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Chernoff v. Chernoff

United States District Court, D. New Mexico

August 21, 2018




         THIS MATTER comes before the Court on the Motion of Defendant Michelle Joyce Chernoff (“Defendant”) to Dismiss for Lack of Personal Jurisdiction and Memorandum in Support, filed December 6, 2017 [Doc. 7]. The Court, having considered the motion and relevant law, finds that the motion is well-taken and will be granted.


         Plaintiff Lee Joseph Chernoff (“Plaintiff”) filed the Complaint on November 7, 2017. [Doc. 1]. Plaintiff, a citizen of New Mexico, claims that his sister and her ex-husband, Defendants Michelle Joyce Chernoff and Steven Dinetz, are citizens of Texas and were both acting under color of Texas state law at the time of the violations. Id. at ¶¶ 2-3. The Complaint also alleges that Steven Dinetz does business in Colorado. Id. at ¶ 4. Plaintiff uses these facts to invoke jurisdiction pursuant to 28 U.S.C. 1343(a)(3), which gives original jurisdiction to district courts for any civil action to redress the deprivation, under the color of any state law, of any right secured by the United States Constitution, and 42 U.S.C. 1983, which allows any person deprived of a right granted by the United States Constitution to bring suit against the party depriving that right. Plaintiff also claims a complete diversity of citizenship between the parties and an amount in controversy of over $75, 000 in order to establish diversity jurisdiction.

         Defendant Joyce Chernoff filed a Motion to Dismiss on December 6, 2017, under Rule 12(b)(2) of the Federal Rules of Civil Procedure, for lack of personal jurisdiction. [Doc. 7]. In the Motion, she states that she has resided in Texas for the entire time period relative to Plaintiff's Complaint. Defendant further states that she has never lived in New Mexico, nor had any purposeful contact with New Mexico sufficient to establish personal jurisdiction. Id. at 2. She agrees with Plaintiff's claim that all events surrounding the Complaint took place in Texas. Given the lack of contact Defendant has to New Mexico, she asks that all claims against her be dismissed for lack of personal jurisdiction. Id.

         Plaintiff has filed no response in opposition to Defendant's Motion.


         The Due Process Clause of the Fourteenth Amendment protects a defendant from being judged by a court that does not have jurisdiction over the defendant. Int'l Shoe Co. v. Washington, 326 U.S. 310, 311 (1945) (citation omitted). A judgment may only be rendered against a defendant if the court has personal jurisdiction over the defendant. Id. at 315. “To obtain personal jurisdiction over a nonresident defendant in a diversity action, ” the court must comply with the forum state's long-arm statute and “the exercise of jurisdiction [must] not offend the due process clause of the Fourteenth Amendment.” Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1074 (10th Cir. 1995) (citation omitted). New Mexico's long-arm statute “extends the jurisdictional reach of New Mexico courts as far as constitutionally permissible.” Tercero v. Roman Catholic Diocese, 48 P.3d 50, 54 (N.M. 2002). Thus, as long as the jurisdictional reach is constitutional, New Mexico's long-arm statute will be satisfied and the federal court will have personal jurisdiction over the defendant.

         To exercise personal jurisdiction that does not violate due process, the defendant must “have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Int'l Shoe Co., 326 U.S. at 316. The Due Process clause ensures that potential defendants have some assurance of where their conduct will render them liable to suit. World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297 (1980). The “defendant's conduct and connection with the forum State [must be] such that [the defendant] should reasonably anticipate being hauled into court there.” Id. Accordingly, a nonresident defendant is subject to New Mexico's jurisdiction if the defendant's minimum contacts are sufficient and if being liable to suit in New Mexico does not offend traditional notions of fair play and substantial justice.

         To determine whether a defendant has sufficient minimum contacts, the court looks to two types of personal jurisdiction: (1) general and (2) specific. General jurisdiction arises for nonresidents “when their affiliations with the state are so ‘continuous and systematic' as to render them essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). To have specific jurisdiction over a nonresident defendant, the activity of the defendant, whether occasional or a single act, must give rise to the episode in suit and the defendant must have availed herself to such a suit. Id. at 2849.

         Motions to dismiss brought under the Rule 12(b)(2) test the plaintiff's theory of personal jurisdiction and the facts supporting that jurisdiction. Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 153-54 (2d Cir. 1999). When a defendant challenges the court's jurisdiction, it is the plaintiff's burden to prove that at least one of the two types of personal jurisdiction exists. Overton v. United States, 925 F.2d 1282, 1283 (10th Cir. 1991).


         In the instant case, Defendant moves to dismiss Plaintiff's Complaint for lack of personal jurisdiction because Defendant has no minimum contacts in New Mexico and because to render a judgement against her would offend traditional notions of fair play and substantial justice. As noted above, Plaintiff failed to file any response to Defendant's Motion to Dismiss. Local Rule 7.1(b) states, “[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.” D.N.M.LR-Civ. 7.1(b). However, although lack of response may signify consent, “the court cannot […] grant a motion to dismiss […] based solely on the plaintiff's failure to respond and must consider the merits of the motion.” Tapia v. City of Albuquerque, No. 13cv206, 2014 WL 1285647, at *18 (D.N.M. Mar. 31, 2014). As set forth herein, having considered the merits of Defendant's Motion, this Court finds that it cannot exercise personal jurisdiction over Defendant, and thus that the Motion is well-taken and will be granted.

         A. Plaintiff fails to show that Defendant had the requisite ...

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