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Mayer v. Bernalillo County

United States District Court, D. New Mexico

December 13, 2018

JENIKA MAYER, Plaintiff,
v.
BERNALILLO COUNTY; ERIC W. SCHULER, Individually and in his official capacity; THERESA BACA SANDOVAL, Individually and in her official capacity; JOHN OR JANE DOE BCSO SHERIFF OFFICERS, A, B, C, D, E and F; MARILYN JONES; GARY JONES; ROBERT LONG; STEPHANIE LONG, and NATHANIEL LONG, Defendants.

          Alex Chisholm Albuquerque, New Mexico Attorney for the Plaintiff.

          Brandon Huss Mark L. Drebing New Mexico Association of Counties Santa Fe, New Mexico and Patrick F. Trujillo Sandoval County Bernalillo, New Mexico Attorneys for Defendant Bernalillo County.

          Cynthia L. Weisman Mark Dow Melanie L. Ben Bauman, Dow & Stambaugh, P.C. Albuquerque, New Mexico Attorneys for Defendants Marilyn Jones, Gary Jones, Robert Long, Stephanie Long, and Nathaniel Long.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant Bernalillo County's Motion to Dismiss Under Rule 1-012, filed July 19, 2018 (Doc. 12)(“Motion”). The Court held a hearing on September 25, 2018. The primary issues are: (i) whether the Defendant Bernalillo County is a suable entity under New Mexico law, pursuant to N.M. Stat. Ann. § 4-46-1; (ii) whether N.M. Stat. Ann. § 4-46-1, along with rule 17 of the Federal Rules of Civil Procedure, may limit the parties to a § 1983 claim, requiring that all § 1983 claims against Bernalillo County be brought against the Board of County Commissioners of the County of Bernalillo; and (iii) whether the Court should allow Mayer leave to amend the Complaint to assert claims against the Board of County Commissioners of the County of Bernalillo, when Mayer has not filed a Motion to Amend in compliance with the Local Rules. The Court concludes that: (i) under New Mexico law, N.M. Stat. Ann. § 4-46-1 requires that the county be sued in the name of the Board of County Commissioners of the County of Bernalillo; (ii) pursuant to rule 17 and N.M. Stat. Ann. § 4-46-1, § 1983 claims against Bernalillo County must be brought against the Board of County Commissioners of the County of Bernalillo; and (iii) the Court will allow Mayer leave to amend to assert claims against the Board of County Commissioners of the County of Bernalillo. Accordingly, the Court grants the Motion to Dismiss in part, dismissing Defendant Bernalillo County without prejudice, and grants Mayer leave until December 24, 2018, to amend her complaint to substitute as a defendant the Board of County Commissioners of the County of Bernalillo.

         FACTUAL BACKGROUND

         The Court draws its facts from Mayer's Complaint for Negligence Per Se, Civil Conspiracy, Intentional Infliction of Emotional Distress, Violation of New Mexico Tort Claims Act, and the Fourteenth Amendment of the U.S. Constitution ¶ 1, at 1, filed in state court April 11, 2018, filed in federal court July 12, 2018 (Doc. 1-1)(“Complaint”).[1] Bernalillo County removed the case to federal court. See Notice of Removal, filed July 12, 2018 (Doc. 1)(“Notice of Removal”). The Court accepts Mayer's factual allegations as true for the limited purpose of deciding the Motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(“Iqbal”)(clarifying the “tenet that a court must accept as true all of the [factual] allegations contained in a complaint” (alteration added)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))); Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008)(concluding that, in the motion to dismiss posture, a court must “accept as true all well-pleaded facts, as distinguished from conclusory allegations”).

         With that understanding of the allegations, Plaintiff Jenika Mayer is a resident of Bernalillo County, in the State of New Mexico. See Complaint ¶ 1, at 1. The Joneses (Gary Jones and Stephanie Jones), and the Longs (Robert Long, Stephanie Long, and Nathaniel Long)(“Jones and Long Defendants”) owned neighboring property in the same subdivision and were litigants in a state suit, Mayer v. Smith, 2015-NMCA-060, 350 P.3d 1191, concerning an easement crossing Mayer's property. See Complaint ¶¶ 16-17, at 3. In Mayer v. Smith, Mayer “brought suit against another neighbor [-- Susan Smith --] to prevent the cutting and removal of trees within the easement [over her property].” 2015-NMCA-060, ¶ 36, 350 P.3d at 1194. “As the trees grew in the easement, Plaintiff used her fence to include them in her property, resulting in a nine-to-eleven-foot area becoming inaccessible to Intervenors [-- the Jones and Long Defendants].” 2015-NMCA-060, ¶ 36, 350 P.3d at 1194. The Court of Appeals of New Mexico concluded that Mayer was “required to remove her fence from the easement.” 2015-NMCA-060, ¶ 36, 350 P.3d at 1200. On March 2, 2015, in Mayer v. Smith, 2015-NMCA-060, ¶ 36, 350 P.3d 1191, the Court of Appeals of New Mexico remanded the case for proceedings consistent with the opinion, regarding the trees that Mayer had planted in the easement over her property and requiring Mayer to remove the trees. See Complaint ¶ 19, at 3 (citing Mayer v. Smith, 2015-NMCA-060, ¶ 36, 350 P.3d at 1200). Mayer contends that one of the outcomes of the Court of Appeals of New Mexico's decision “was the fact that Ms. Mayer still had the right to present her evidence after the Jones and Long Defendants appealed an involuntary dismissal as provided for by Rule 1-041(B) NMRA.” Complaint ¶ 20, at 3 (emphasis in original). Mayer contends that:

If a dismissal made under Rule 1-041(B) is reversed on appeal, the appellate court will remand a non-jury case to the district court for further proceedings, and the defendant (Ms. Mayer in that case) may then present any evidence she may have. (See Bogle v. Potter, 1961-NMSC-025, ¶ 19, 68 N.M. 239, 360 P.2d 650).

         Complaint ¶ 21, at 3.

         Mayer contends that the Jones and Long Defendants “could not abide the opinion from the Court of Appeals, ” Complaint ¶ 22, at 3, and that, before allowing Mayer to present any evidence, on October 13, 2015, the Jones and Long Defendants “knowingly filed an erroneous Completion of Briefing with the district court, ” informing the court that their Motion to Alter and Amend the Judgment was “ripe for adjudication.” Complaint ¶ 24, at 4.[2] Mayer appealed the Altered and Amended Judgment. Complaint ¶ 26, at 4. Later in November, 2015, the Jones and Long Defendants entered Mayer's property “without notice, ” intending to cut the trees on the easement. Complaint ¶ 28, at 4. The Jones and Long Defendants “brought two deputies with them to prevent Ms. Mayer from interfering with those activities.” Complaint ¶ 28, at 4. Mayer showed the deputies a copy of her appeal of the Altered and Amended Judgment, prompting the deputies to order the Jones and Long Defendants to leave, which they did. See Complaint ¶ 28, at 4.

         Mayer contends that, sometime later, the Jones and Long Defendants communicated ex parte with Eric Schuler, an Assistant Bernalillo County Attorney. See Complaint ¶ 29, at 5. On December 30, 2015, Mr. Schuler emailed Annette Regan, [3] copying Mr. Schuler's supervisor, Theresa Baca Sandoval, and the Jones and Long Defendants' attorney, and informing Regan that, “if she got a call to keep the peace at 270 Skyland Blvd (Ms. Mayer's property), she should allow the people to cut down the trees.” Complaint ¶¶ 30-31, at 5. Mr. Schuler did not send the email to Mayer or her attorney, and Mayer contends that the Jones and Long Defendants, Mr. Schuler, and Ms. Sandoval “conspired to keep this ex parte communication a secret from Ms. Mayer and her lawyer, ” Complaint ¶ 33, at 5; “Mr. Schuler had no duty to get involved and take sides in a civil matter, ” Complaint ¶ 34, at 5; “Mr. Schuler did not cite the correct statute in his ex parte email, ” Complaint ¶ 35, at 5; “Mr. Schuler did not bother to get all the facts before he made a legal conclusion, ” Complaint ¶ 36, at 5; “Mr. Schuler's legal conclusion was wrong, ” Complaint ¶ 37, at 5, and “Mr. Schuler did what the Jones and Long Defendants asked without any independent investigation on his part, ” Complaint ¶ 38, at 6. Mayer contends that Ms. Sandoval did not “effectively monitor Mr. Schuler.” Complaint ¶ 39, at 6.

         Mayer alleges that, on April 11, 2016, the Jones and Long Defendants came to her property and began to cut the trees within the easement, prompting her to call the Bernalillo County Sheriff's Office (“BCSO”), which sent an armed sergeant and five deputies to her property. See Complaint ¶¶ 40-42, at 6. Upon the sergeant and deputies' arrival, they did not speak with Mayer, but, acting on the email that Mr. Schuler sent to Regan in 2015, see Complaint ¶¶ 43-44, at 6, they ignored Mayer's pending appeal, and allowed the Jones and Long Defendants to “exercise the post-judgment self-help remedy of cutting down the trees, ” Complaint ¶ 50, at 7.

         Mayer contends that: “The officers appeared in such large numbers to frighten and intimidate Ms. Mayer. The Defendants' intent was to cause as much emotional distress to Ms. Mayer as possible.” Complaint ¶ 45, at 6. Mayer alleges that the Jones and Long Defendants knew she suffered from post-traumatic stress disorder (“PTSD”), [4] and that, as a direct consequence of their actions, she “suffered immediate and severe trauma.” Complaint ¶¶ 46-47, at 6. Mayer alleges that she experienced “new and persistent PTSD symptoms” as a result of her trauma, which the Jones and Long Defendants caused, “including, but not limited to, depression, panic attacks, physical pain, mental anguish and grief that have not yet resolved.” Complaint ¶ 48, at 7. Mayer contends that, on November 30, 2016, “the district court found that the Jones and Long Defendants had made an ex parte communication with the court when they filed their Completion of Briefing on October 13, 2015 and that the Alter [sic] and Amended Judgment was filed erroneously, and the court vacated their judgment.” Complaint ¶ 27, at 4.[5]

         PROCEDURAL BACKGROUND

         Bernalillo County removed the case to federal court on July 12, 2018. See Notice of Removal ¶ 1, at 1. In the Notice of Removal, Bernalillo County “exercises its right to remove this action from the Second Judicial Court, County of Bernalillo, State of New Mexico, where the case is now pending, ” asserting that the Court has original jurisdiction as provided in 28 U.S.C. § 1331, because Mayer's action, “upon information and belief, arises out of alleged violations of the Fourteenth Amendment [to the Constitution of the United States of America] (42 U.S.C. § 1983) . . . or other applicable federal statute.” Notice of Removal ¶¶ 1-2, at 1. In filing the Notice of Removal, Bernalillo County did not waive jurisdictional issues and clarified that, instead, “Bernalillo County will be filing a dispositive motion within the time allowed by the Rules of Civil Procedure.” Notice of Removal at 1 n.1. Bernalillo County waives service of process but does not waive any defense or jurisdictional argument. See Notice of Removal ¶ 3, at 2. Bernalillo County states that it timely filed the Notice of Removal and attaches and incorporates by reference the Complaint and a Copy of the New Mexico Courts Lookup page, [6] filed July 12, 2018 (Doc. 1- 2). Complaint ¶¶ 5-6, at 2. Bernalillo County states that the Jones and Long Defendants, “who have been served, consent to the filing of this Notice of Removal.” Complaint ¶ 8, at 2.

         In the Complaint, Mayer asserts claims against Bernalillo County, Mr. Schuler, individually and in his official capacity as Assistant Bernalillo County Attorney, Ms. Sandoval, individually and in her official capacity as Deputy Bernalillo County Attorney, John or Jane Doe BCSO Sheriff Officers, A, B, C, D, E, and F, and the Jones and Long Defendants. See Complaint at 1. Mayer asserts the following claims: (i) negligence per se, against the Jones and Long Defendants for intentionally entering Mayer's property, and damaging and destroying her trees, see Complaint ¶ 53, at 7, and against the Defendant employees of Bernalillo County, who helped and approved of the Jones and Long Defendants' actions, see Complaint ¶ 55, at 8; (ii) civil conspiracy, against the Defendants, [7] for conspiring to achieve economic and strategic goals benefiting the Defendants and their co-conspirators to Mayer's harm and detriment, see Complaint ¶¶ 62-66, at 8-9; (iii) intentional infliction of emotional distress against the Defendants[8] for intentionally or recklessly causing Mayer extreme, severe, and continuous mental distress, see Complaint ¶¶ 67-72, at 9; (iv) violation of the Fourteenth Amendment, against the Bernalillo County Defendants, [9] who, acting under color of state law, deprived Mayer of her clearly established constitutionally protected right to life, liberty, and property, without due process of law, see Complaint ¶¶ 73-75, at 9-10; and (v) violation of the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1 through 41-4-27 (“NMTCA”), because the BCSO officers are subject to the NMTCA sovereign immunity waiver in § 41-4-12, and Bernalillo County is responsible and liable for its officer-employees' actions undertaken in their official capacity, and for its officer-employees' actions undertaken in reliance on communications from Mr. Schuler, a Bernalillo County employee -- specifically, the Bernalillo County Defendants' actions allowing the Jones and Long Defendants to engage in criminal activity, and failing to perform their duty to protect Mayer's property and right to due process, causing her harm, see Complaint ¶¶ 76-88, at 10-11. Accordingly, Mayer requests compensatory, punitive, and special damages, as well as attorneys' fees and costs, and any other relief the Court may deem just and proper. See Complaint at 12.

         On July 19, 2018, the Jones and Long Defendants answered Mayer's Complaint. See Answer of Marilyn Jones, Gary Jones, Robert Long, Stephanie Long, and Nathaniel Jones[10]to Plaintiff's Complaint, [Doc. 1-1 Complaint (filed 4/11/18 in State Court)], filed July 19, 2018 (Doc. 11)(“Jones and Long Defendants Answer”). The Jones and Long Defendants “deny each and every allegation, statement, matter and thing asserted in Plaintiff's Complaint, except as expressly admitted or otherwise qualified or alleged.” Jones and Long Defendants Answer at 1. The Jones and Long Defendants assert the following affirmative defenses: (1) collateral estoppel; (2) res judicata; and (3) failure to state a claim against the Jones and Long Defendants upon which relief can be granted. See Jones and Long Defendants Answer at 8. Bernalillo County has not, as of the date of this Memorandum Opinion and Order, filed an Answer.

         1. The Motion.

         Bernalillo County moves the Court, pursuant to rule 12(b)(2) and rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Mayer's claims against Bernalillo County. See Motion at 1. In the Motion, Bernalillo County argues that it “is not a viable defendant under New Mexico Law.” Motion at 1. Bernalillo County asserts that it is not an entity which may be sued under N.M. Stat. Ann. § 4-46-1. See Motion at 1. Section 4-46-1 states:

In all suits or proceedings by or against a county, the name in which the county shall sue or be sued shall be the board of county commissioners of the county of ………, but this provision shall not prohibit county officers, when authorized by law, from suing in their name of office for the benefit of the county.

Motion at 1-2 (quoting N.M. Stat. Ann. § 4-46-1). Bernalillo County contends that, although no Supreme Court of New Mexico or Court of Appeals of New Mexico case has interpreted § 4-46-1, decisions from courts outside of this district interpreting identical statutes “establish that dismissal is appropriate.” Motion at 2 (citing Calahan v. Jefferson Cty., 429 P.2d 301 (Colo. 1967); John Deere Plow Co. v. Cty. of Phillips, 48 P.2d 793 (Colo. 1935); Bd. of Cty. Comm'rs v. Churning, 35 P. 918 (Colo.App. 1894)). Bernalillo County argues that the District of New Mexico cases interpreting § 4-46-1 also counsel dismissal as appropriate. See Motion at 2 (citing Gallegos v. Bernalillo Cty. Bd. of Cty. Comm'rs, 272 F.Supp.3d 1256 (D.N.M. 2017)(Browning, J.)(“Gallegos”); Wilson v. Cty. of Lea, No. CIV 16-0328 MCA\GBW, 2016 WL 10539484 (D.N.M. May 16, 2016)(Armijo, C.J.); Angel v. Torrance Cty. Sheriff, No. Civ. 04-0195 BB/WPL (D.N.M. Aug. 23, 2005)(Black, J.)).

         Bernalillo County argues that rule 17 of the Federal Rules of Civil Procedure “allows statutes like NMSA § 4-46-1 to control the capacity of governmental entities to be sued for federal claims.” Motion at 4. Bernalillo County asserts that, in Gallegos, the Court questioned whether § 4-46-1 could limit the parties to a § 1983 claim, but that the parties in Gallegos did not raise a rule 17 issue. See Motion at 4. Bernalillo County requests that the Court adopt the reasoning of the United States Courts of Appeals for the Eighth and Fifth Circuits, that rule 17 in combination with § 4-46-1 “requires that all claims against the County, including its departments, be brought against the Board regardless of the character of those claims.” Motion at 4. Bernalillo County analogizes to an Eighth Circuit case considering a claim under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”), see Lundquist v. Univ. of S.D. Sanford Sch. of Med., 705 F.3d 378 (8th Cir. 2013)(“Lundquist”), in which the Eighth Circuit dismissed the ADA claims against a defendant, because it was not a viable defendant under the State of South Dakota's laws. See Motion at 5. Bernalillo County also cites to United States v. City of New York, 683 F.Supp.2d 225 (E.D.N.Y. 2010)(Garaufis, J.), vacated on other grounds by United States v. City of New York, 717 F.3d 72 (2d Cir. 2013), and to Darby v. Pasadena Police Department, 939 F.2d 311 (5th Cir. 1991)(“Darby”), in support of its assertion that rule 17 dictates that state law determines capacity to be sued. See Motion at 6-7.

         Bernalillo County requests, for the foregoing reasons, that the Court dismiss all claims against it with prejudice, pursuant to rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. See Motion at 7. “In other words, under NMSA § 4-46-1, a plaintiff may not sue the entire County for any cause of action; therefore, dismissal with prejudice as to this defendant is appropriate.” Motion at 7.

         2. The Response.

         Mayer responds to the Motion. See Plaintiff's Response to Bernalillo County's Motion to Dismiss Under Rule 1-012, filed August 6, 2018 (Doc. 13)(“Response”). In the Response, Mayer asserts that, if only state claims are involved, the proper entity to defend the suit is the Board of County Commissioners of the County of Bernalillo, but when claims under 42 U.S.C. § 1983 are made, the argument changes. See Response at 1.

         Mayer does not directly respond to the legal aspects of the Motion's immunity argument. See Response at 1-2. Rather, Mayer states that, in footnote 4 of Gallegos, the Court “reviewed the relationship between state laws which limit jurisdiction like NMSA § 4-46-1 and the Supremacy Clause of the Constitution of the United States. The conclusion was that state laws cannot limit jurisdiction in § 1983 claims.” Response at 1-2 (citing Gallegos, 272 F.Supp.3d at 1269 n.4). Mayer requests that, pursuant to rule 17(3) of the Federal Rules of Civil Procedure, the Court allow her to amend her Complaint to assert claims against the Board of County Commissioners of the County of Bernalillo, instead of against Bernalillo County. See Response at 2. Mayer quotes from rule 17(3): “The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action.” Response at 2 (quoting Fed.R.Civ.P. 17(3)). Mayer argues, finally, that the United States Court of Appeals for the Tenth Circuit has stated that the federal rules “erect a powerful presumption against rejecting pleadings for failure to state a claim.” Response at 2 (quoting Maez v. Mtn. States Tel. and Tel., Inc., 54 F.3d 1488, 1496 (10th Cir. 1995)).

         3. The Reply.

         Bernalillo County replies to Mayer's arguments. See Bernalillo County's Reply in Support of its Motion to Dismiss at 1, filed August 20, 2018 (Doc. 14)(“Reply”). Bernalillo County argues that the Response's reliance on Gallegos' footnote 4 is misplaced, because the parties in Gallegos did not brief the cases that the Motion cites and did not reference rule 17. See Reply at 1-2. Bernalillo County argues, accordingly, that Gallegos does not control and that it is legally distinguishable, because the parties in Gallegos did not present the Court with a rule 17 argument, or because Gallegos was decided in error based on rule 17 and the Motion's cited authority. See Reply at 2.

         Bernalillo County argues that the Court should dismiss Bernalillo County from the case with prejudice, because Mayer's rule 17(a)(3) real-party-in-interest argument does not apply. See Reply at 2-3. Bernalillo County asserts that Mayer “attempts to confuse Rule 17(a)(3) [the real-party-in-interest section] with Rule 17(b) [capacity to be sued].” Reply at 2. Bernalillo County contends that the two rule subsections are distinct and, furthermore, that rule 17(a)(3) does not involve an improperly named defendant, as is the case here. See Reply at 2. Bernalillo County argues that rule 17(a)(3) applies only “when the party prosecuting the case is not the real party in interest” and not when there is a suit against a non-viable defendant. Reply at 3.

         Next, Bernalillo County asserts that Mayer's implied request to amend her Complaint disregards the New Mexico Local Rules, which require that the party filing a Motion to Amend send a copy to opposing counsel before filing, pursuant to D.N.M. LR-Civ. 7.1(a). See Reply at 4. Bernalillo County asserts that, additionally, D.N.M. LR-Civ. 15.1 requires that the filing party attach a copy of the proposed amended complaint to the motion to amend. See Reply at 4. Bernalillo County asserts that, because Mayer has not complied with D.N.M. LR-Civ. 7.1(a) and 15.1, the Court should deny her request to amend. See Reply at 4. Bernalillo County also argues that Maez v. Mountain States Telephone & Telegraph, Inc., to which Mayer cites for the assertion that there is a powerful presumption against rejecting pleadings, see Response at 2, is an outdated standard and that, instead, Iqbal and Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008), control, see Reply at 4. Bernalillo County also argues that allowing Mayer to amend her Complaint “would very likely be futile, ” because it would inappropriately split claims between the state courts and this Court. Reply at 4. Bernalillo County argues, accordingly, that the Court should grant its Motion and dismiss it from the case with prejudice, “because no claim could ever be stated against ‘the County' and there is no pending motion to amend.” Reply at 5.

         4. The Hearing.

         The Court held a hearing on September 25, 2018. See Draft Transcript of Motion Proceeding at 1:7-9 (taken Sept. 25, 2018)(Court)(“Tr.”).[11] The Court began by stating that it would likely order Mayer to amend the Complaint to “drop out Bernalillo County” at least on the state law claims. Tr. at 2:14-17 (Court). The Court stated that it would not provide the parties with an immediate answer “about whether the county can be a proper defendant for the 1983 claim.” Tr. at 2:24-25 (Court). Mayer responded that: “As far as amending the complaint, I think that's the appropriate remedy. I'm happy to do it.” Tr. at 3:3-5 (Chisholm).

         Mayer averred that whether a county is a suable entity under § 1983 is an issue “ripe for a decision, since the district here seems to be split on that issue.” Tr. at 3:12-13 (Chisholm). The Court asked if this Court is the splitting court, and Mayer responded that the Court was the first to decide the issue in the District of New Mexico, and that “someone split” from it. Tr. at 3:14-17 (Court, Chisholm). The Court asked what it said in Gallegos' footnote 4, since neither party quoted it in their briefing. See Tr. at 3:20-23 (Court).[12] Bernalillo County responded that the Court, in footnote 4 of Gallegos, referred to Haywood v. Drown, 556 U.S. 729 (2009)(“Haywood”), in which the State of New York attempted to limit prisoner claims by enacting a statute stating that prisoners could not bring § 1983 claims against individual corrections officers in courts of general jurisdiction in the State of New York. See Tr. at 3:24-4:27 (Huss). Bernalillo County averred that, instead, prisoners would have to go to a special court, where they could not “seek attorneys' fees, injunctive relief, and punitive damages even under 1983, because [they wouldn't] be able to name any individuals.” Tr. at 4:8-11 (Huss). Bernalillo County asserted that the Supreme Court of the United States stated that, because of the Supremacy Clause, states cannot enact statutes attempting to limit federal causes of action. See Tr. at 4:15-17 (Huss). Bernalillo County averred that the Court stated in footnote 4 of Gallegos that Haywood is “persuasive as to what appellate courts might think about [N.M. Stat. Ann. § 4-46-1].” Tr. at 4:19-22 (Huss). Bernalillo County argued that, unlike the statute in Haywood, § 4-46-1 does not say that a plaintiff may not sue an individual, and get punitive damages and injunctive relief; instead, it controls the capacity to sue or be sued. See Tr. at 4:23-5:3 (Huss). Bernalillo County argued that the Fifth and Eighth Circuits have interpreted rule 17 of the Federal Rules of Civil Procedure to direct the Court to apply state law to determine capacity-to-be-sued questions. See Tr. at 5:18-6:5 (Huss)(citing Lundquist, 705 F.3d 378 (8th Cir. 2013), and Darby, 939 F.2d 311 (5th Cir. 1991)). Bernalillo County averred that Lundquist and Darby are the two most controlling cases that Bernalillo County has been able to find on this question. See Tr. at 6:12-13 (Huss). Bernalillo County averred that there is an interesting series of Colorado cases cited in the Motion, see supra at 10, demonstrating that Colorado courts have said that, if capacity-to-be-sued questions are not raised “and plaintiffs obtain judgments, that there may be questionable enforceability, if you haven't named an entity that could be sued.” Tr. at 6:14-20 (Huss). Bernalillo County stated that it is within the statute of limitations, and that there is no relation back problem that would preclude amendment, but that it is advancing the N.M. Stat. Ann. § 4-46-1 argument in every case, in order to obtain uniform judgments and uniform caselaw. See Tr. at 6:25-7:7 (Huss).

         Bernalillo County states that the Court's opinion in Gallegos is the only opinion to suggest that state law cannot dictate capacity to be sued under § 1983, but that Gallegos did not consider rule 17 of the Federal Rules of Civil Procedure. See Tr. at 7:8-10 (Huss). Bernalillo County avers that, typically, courts permit amendment without considering the issue. See Tr. at 7:13-15 (Huss). Bernalillo County cited to Lamendola v. Taos County Sheriff's Office, No. CIV 18-0163 KBM/SCY, 2018 WL 4258119 (D.N.M. Sept. 6, 2018)(Molzen, M.J.)(“Lamendola”), in which the Honorable Karen B. Molzen, United States Magistrate Judge for the District of New Mexico, ordered supplemental briefing on the differences between the narrow analysis that “lots of courts” have given to the capacity-to-be-sued question, and the Gallegos opinion. Tr. at 7:14-20 (Huss). Bernalillo County asserted that Magistrate Judge Molzen found rule 17 and Lundquist and Darby persuasive and granted the defendant Taos County, New Mexico, Sheriff's Department's motion to dismiss, declining to extend footnote 4 of Gallegos to its context. See Tr. at 7:31-23 (citing 2018 WL 4258119, at *6). Bernalillo County averred that it does not oppose granting Mayer leave to amend her Complaint, “although there is no motion to amend or proposed amended complaint” before the Court. Tr. at 7:25-8:2 (Huss).

         Bernalillo County read portions of the Court's analysis in footnote 4 of Gallegos. See Tr. at 8:10-10:9 (Huss)(quoting Gallegos, 272 F.Supp.3d at 1269 n.4). Bernalillo County averred that the Court “said that, like New York, 4-46-1 might be a limitation on a 1983 case.” Tr. at 10:11-12 (Huss). Bernalillo County argued, however, that N.M. Stat. Ann. § 4-46-1 does not limit § 1983 claims, and, that rule 17(b)(3) of the Federal Rules of Civil Procedure directs the court to determine who has the capacity to sue or be sued by looking to state law, which, in New Mexico, means looking to N.M. Stat. Ann. § 4-46-1. See Tr. at 10:13-17 (Huss). Bernalillo County averred, accordingly, that “there is no way to limit an individual capacity claim, no way to limit attorneys' fees, no way to limit injunctive relief.” Tr. at 10:18-21 (Huss). Bernalillo County argued that § 4-46-1 is not the limit that the court “was concerned with in [Haywood]. Instead, it's simply a capacity statute.” Tr. at 10:21-23 (Huss). The Court stated that it would agree that § 4-46-1 is not the same as the New York statute at issue in Haywood. See Tr. at 10:24-25 (Court). The Court stated that it held, in Gallegos, that a party cannot sue, “for example a police department, because that's just a division or a portion, a parcel of an entity. And you can't sue a corrections center; that's a building. It's not really a separate governmental entity.” Tr. at 10:25-11:4 (Court). The Court stated that there is an entity called the County of Bernalillo, which “may nor may not be sued under state law, ” but that the Court is “a little concerned about saying the state can tell somebody under 1983 who has to be named.” Tr. at 11:7-10 (Court). The Court stated that it is hesitant to say that a state may say a party has to sue the board of commissioners under § 1983, “if there actually is an entity called the County of Bernalillo, ” which the Court believes there is. Tr. at 11:15-19 (Court).

         Bernalillo County stated that there is another case, not binding on the Court, but which Bernalillo County believes is potentially persuasive, because “it comes out of New York four years after the [Haywood] case which also came out of New York, ” and that is United States v. City of New York, 683 F.Supp.2d 225. Tr. at 12:2-8 (Huss). Bernalillo County averred that, in that case, the “City of New York in its charter had contained very, very similar language to that of 4-46-1 that said: ‘[‘]If you want to sue the City of New York, you can't sue, say, the fire department, or other entities.[']” Tr. at 12:12-15 (Huss). Bernalillo County stated that the Honorable Nicholas G. Garaufis, United States District Judge for the Eastern District of New York looked at rule 17(b)(3) of the Federal Rules of Civil Procedure and used it to dismiss the various New York departments. See Tr. at 12:17-21 (Huss).

         Bernalillo County averred that it believes “there are a couple of August opinions in which [the Court] mentioned 4-46-1, at least in passing in other footnotes, that at least with respect to the Tort Claims Act, it applies to state claims.”[13] Tr. at 12:23-13:1 (Huss). Bernalillo County argued that the Court has held that a department is not a person under 1983 and, therefore, cannot be subject to a 1983 claim, which “allows 4-46-1 to kind of be irrelevant in situations where a plaintiff has named a department.” Tr. at 13:4-8 (Huss). Bernalillo County argued, however, that here, the application of rule 17(b)(3) “urges the Court to allow the state to decide its capacity to be sued.” Tr. at 13:9-11 (Huss).

         Bernalillo County then referred the Court to Lundquist, in which the Eighth Circuit discussed that the Constitution of the State of South Dakota allows the state to decide “which entities can be sued and in which capacity.” Tr. at 13:11-17 (Huss). Bernalillo County averred that, although, in Lundquist, the Eighth Circuit concluded that the State of South Dakota could not limit § 1983 claims, the Eighth Circuit concluded that the state could say: “Board of Regents, you have the authority to sue or be sued; School of Medicine, you don't.” Tr. at 13:17-20 (Huss). Bernalillo County argued that although Lundquist considered a school of medicine and not a police department, Lundquist stands for the proposition “that the delegation of authority to sue or be sued, which is what 17(b)(3) directs the Court to look at, is controlled by the state statute.” Tr. at 13:20-14:1 (Huss).

         The Court stated, however, that it does “care, though, under 1983, [about] the ability of people to sue -- to be able to sue state entities to vindicate federal constitutional rights.” Tr. at 14:11-13 (Court). Bernalillo County responded that rule 17(b)(3) addresses both state and federal law capacity-to-be-sued questions. See Tr. at 14:14-15 (Huss). The Court stated:

It doesn't seem to [the Court] it would be inconsistent to say, in federal court you're going to have to be able to be -- you have to be a correct plaintiff. But under 1983, we're not going to necessarily be bound by federal law as to what is a correct defendant.

Tr. at 14:19-24 (Court). Bernalillo County responded that rule 17(b) says “capacity to sue or be sued, ” Tr. at 15:1-2 (quoting Fed.R.Civ.P. 17(b), and rule 17(b)(3) says “for all other parties by the law of the state in which the court is located, ” Tr. at 15:2-4 (quoting Fed.R.Civ.P. 17(b)(3)). Bernalillo County averred that, following rule 17's text, courts should look at what state law says about the capacity to be sued. See Tr. at 15:5-7 (Huss). Bernalillo County argued that:

[I]t would be a really interesting outcome if a court of limited jurisdiction, such as the federal district court, were to enter a judgment against Bernalillo County, which then . . . might be unenforceable because it's not an entity that could be sued, and the plaintiff went out to try and enforce that judgment.

Tr. at 15:11-18 (Huss). Bernalillo County averred that, unless the Court maintains jurisdiction over enforcement, the Court might enter judgment against Bernalillo County that would be unenforceable in state court. See Tr. at 15:18-24 (Huss). Bernalillo County argues that, while the parties may still amend without facing a relation-back issue, Bernalillo County brings the issue to the Court's attention now, because “it comes up in a lot of other cases in the district, some of which have interesting statute of limitations questions, especially when they revolve around departments.” Tr. at 16:3-9 (Huss). Bernalillo County averred, finally, that if the Court elects to make a ruling on this issue, Bernalillo County would “take an interlocutory appeal on the question.” Tr. at 16:22-23 (Huss). Bernalillo County stated that “[i]f everybody agrees, [Bernalillo County is] ready to take that issue up on appeal if it will help clarify the law for the county and for the Court.” Tr. at 17:12-14 (Huss).

         The Court directed Mayer to amend her Complaint and add the Board of County Commissioners of the County of Bernalillo, at least as far as the state law claims, and stated that it would issue an opinion regarding the § 1983 claims. See Tr. at 17:16-25 (Court).

         5. The Notice of Supplemental Authorities.

         After the hearing, Bernalillo County provided Defendant's Notice of Supplemental Authority, filed September 20, 2018 (Doc. 25)(“Notice”). In the Notice, Bernalillo County directs the Court to Lamendola, in which, Bernalillo County avers, Magistrate Judge Molzen followed Lundquist and Darby to “hold that Rule 17 allows the State and its subdivisions to utilize a naming statute to control the specific governmental entity which one may sue.” Notice at 1. Bernalillo County argues, therefore, that Lamendola is persuasive authority supporting the Motion's arguments, and the Motion's cited cases.

         LAW REGARDING RULE 12(B)(2)

         Motions to dismiss under rule 12(b)(2) test the plaintiff's theory of personal jurisdiction as well as the facts supporting personal jurisdiction. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 153-54 (2d Cir. 1999). Rule 12(b)(2) “sets forth a defense based on ‘lack of personal jurisdiction.'” Fabara v. GoFit, LLC, 308 F.R.D. 380, 398 (D.N.M. 2015)(Browning, J.)(quoting Fed.R.Civ.P. 12(b)(2)). In determining personal jurisdiction, a court must test not only the complaint's jurisdictional theory, but also the facts on which jurisdiction is predicated. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d at 154 (holding that the court “must determine whether the defendant in fact subjected itself to the court's jurisdiction”). 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. See Overton v. United States, 925 F.2d 1282, 1283 (10th Cir. 1991); Rambo v. Am. S. Ins., 839 F.2d 1415, 1417 (10th Cir. 1988); Jemez Agency, Inc. v. CIGNA Corp., 866 F.Supp. 1340, 1342 (D.N.M. 1994)(Burciaga, J).

         The plaintiff need only make a prima facie showing of personal jurisdiction to defeat a rule 12(b)(2) motion to dismiss. See OMI Holdings, Inc. v. Royal Ins. of Can., 149 F.3d 1086, 1090 (10th Cir. 1998). “A plaintiff may make this prima facie showing by demonstrating, by affidavit or other written materials, facts, that, if true, would support the exercise of personal jurisdiction over defendant.” Rainy Day Books, Inc. v. Rainy Day Books & Café, LLC, 186 F.Supp.2d 1158, 1160 (D. Kan. 2002)(Waxse, M.J.). At this stage of the proceedings, it is not for the court to resolve disputed facts. See Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 45 (1st Cir. 2002). Rather, the court “must accept the plaintiff's (properly documented) evidentiary proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing.” Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d at 45 (quoting Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir. 1995)). See Tomkins v. Exec. Comm. of S. Baptist Convention, No. CIV 13-0840 JB/CG, 2015 WL 1569034, at *4 (D.N.M. March 31, 2015)(Browning, J.)(concluding that, in considering whether plaintiff has made a prima facie showing of personal jurisdiction over defendant, the Court must take the complaint's allegations as true to the extent the defendant's affidavits do not controvert them.). When “conflicting affidavits are presented, factual disputes are resolved in plaintiff's favor.” Behagen v. Amateur Basketball Ass'n of the U.S.A., 744 F.2d 731, 733 (10th Cir. 1984).

         LAW REGARDING PERSONAL JURISDICTION

         When contested, [14] the party asserting the claim has the burden of proving personal jurisdiction. See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). To assert personal jurisdiction over a nonresident defendant, federal courts must satisfy state law and federal due process. See Doering v. Copper Mountain, Inc., 259 F.3d 1201, 1209-10 (10th Cir. 2001). Under due process, the Court's jurisdiction exists if the defendants have “minimum contacts” with the forum state, which may rest on specific or general personal jurisdiction, and the exercise of personal jurisdiction must comport with “traditional notions of fair play and substantial justice.” Dudnikov v. Chalk & Vermilion Fine Arts Inc., 514 F.3d 1063, 1070 (10th Cir. 2008)(quotation marks omitted). See Bristol-Myers, Squibb Co. v. Superior Court of Ca., S.F. Cty., 137 S.Ct. 1773, 1779-80 (2017)(“Bristol-Myers”); Daimler AG v. Bauman, 571 U.S. 117, 126 (2014).

         1. Burden of Proof.

         As already noted, the plaintiff bears the burden of proving personal jurisdiction. See Wenz v. Memery Crystal, 55 F.3d at 1505. When jurisdiction is “decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing” of facts that would support the assertion of jurisdiction. Wenz v. Memery Crystal, 55 F.3d at 1505. “The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavit.” Behagen v. Amateur Basketball Ass'n of the U.S.A., 744 F.2d at 733. When, however, a defendant presents credible evidence through affidavits or other materials suggesting the absence of personal jurisdiction, the plaintiff must come forward with sufficient evidence to create a genuine dispute of material fact on the issue. See Doe v. Nat'l Med. Servs., 974 F.2d 143, 145 (10th Cir. 1992). Only if the plaintiff meets the obligation of contesting the credible evidence that the defendant presents does the court resolve the factual disputes in the plaintiff's favor. See Wenz v. Memery Crystal, 55 F.3d at 1505; Behagen v. Amateur Basketball Ass'n of the U.S.A., 744 F.2d at 733; Clark v. Meijer, Inc., 376 F.Supp.2d 1077, 1082 (D.N.M. 2004)(Browning, J.).

         2. Due Process and Personal Jurisdiction.

         The personal-jurisdiction due process analysis is two-fold. See Fabara v. GoFit, LLC, 308 F.R.D. at 400. First, the defendant must have “minimum contacts” with the forum state such that it “should reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. at 473-76. Second, exercising personal jurisdiction over the defendant must comport with “traditional notions of fair play and substantial justice.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1070 (quotation marks omitted). A defendant may have “minimum contacts” with the forum state in one of two ways, providing a court with either general or specific personal jurisdiction. Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532-33 (10th Cir. 1996)(citations omitted).

General jurisdiction is based on an out-of-state defendant's “continuous and systematic” contacts with the forum state, and does not require that the claim be related to those contacts. Specific jurisdiction, on the other hand, is premised on something of a quid pro quo: in exchange for “benefitting” from some purposive conduct directed at the forum state, a party is deemed to consent to the exercise of jurisdiction for claims related to those contacts.

Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1078. Thus, “[s]uch contacts may give rise to personal jurisdiction over a non-resident defendant either generally, for any lawsuit, or specifically, solely for lawsuits arising out of particular forum-related activities.” Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011).

         For a court to exercise specific jurisdiction “‘the suit' must ‘aris[e] out of or relat[e] to the defendant's contacts with the forum.'” Bristol-Myers, 137 S.Ct. at 1780 (alterations and emphasis in Bristol-Myers)(quoting Daimler AG v. Bauman, 571 U.S. at 127). See Bristol-Myers, 137 S.Ct. at 1781 (“[T]here must be an ‘affiliation between the forum and the underlying controversy,' principally, [an] activity or an occurrence that takes place in the forum State.” (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)(“Goodyear”))); Burger King Corp. v. Rudzewicz, 471 U.S. at 472 (citations and quotation marks omitted)(ruling that a court may assert specific jurisdiction “if the defendant has purposefully directed his activities at residents of the forum, and the litigation results from alleged injuries that arise out of or relate to those activities.”)). The Tenth Circuit has characterized this inquiry as a two-part test: “[F]irst . . . the out-of-state defendant must have ‘purposefully directed' its activities at residents in the forum state, and second, . . . the plaintiff's injuries must ‘arise out of' defendant's forum-related activities.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1071. The Supreme Court has recently emphasized that, “[f]or specific jurisdiction, a defendant's general connections with the forum are not enough.” Bristol-Myers, 137 S.Ct. at 1781. In the tort context, a defendant has “purposefully directed” his activities at New Mexico or its residents when he or she has: (i) taken intentional action; (ii) the action was “expressly aimed” at New Mexico; and (iii) the action was taken with the knowledge that “the brunt of th[e] injury” would be felt in New Mexico. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1072 (quoting Calder v. Jones, 465 U.S. 783, 789-90 (1984)).

         Although agreements alone are likely to be insufficient to establish minimum contacts, “parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities.” TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d 1282, 1287-88 (10th Cir. 2007)(quotation marks omitted)(quoting Burger King Corp. v. Rudzewicz, 471 U.S. at 473, 478). The mere foreseeability of harm occurring in a particular forum will not support a finding of minimum contacts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980)(holding that, although “an automobile is mobile by its very design and purpose, ” thus indicating that it is foreseeable that a particular automobile may cause injury in a forum state, “‘foreseeability' alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause”). “[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 297. As the Tenth Circuit has further explained, because “mere foreseeability” is not sufficient to establish minimum contacts, a plaintiff “must establish . . . not only that defendants foresaw (or knew) that the effects of their conduct would be felt in the forum state, but also that defendants undertook intentional actions that were expressly aimed at that forum state.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1077.

         General personal jurisdiction jurisprudence has “followed [a] markedly different trajector[y]” than specific personal jurisdiction. Daimler AG v. Bauman, 571 U.S. at 132. The test for general personal jurisdiction turns on whether the defendant is “at home” within the forum state. Daimler AG v. Bauman, 571 U.S. at 137. For individuals, “the paradigm forum for the exercise of general jurisdiction is the individual's domicile.” Daimler AG v. Bauman, 571 U.S. at 137 (quoting Goodyear, 564 U.S. at 924). For corporations, “the place of incorporation and principal place of business are ‘paradig[m] . . . bases for general jurisdiction.” Daimler AG v. Bauman, 571 U.S. at 137 (quoting Goodyear, 564 U.S. at 924). In Daimler AG v. Bauman, the Supreme Court rejected an argument that “continuous or systematic” contacts within a forum state were, in and of themselves, sufficient to subject a corporation to general personal jurisdiction. Daimler AG v. Bauman, 571 U.S. at 137-38. In so doing, the Supreme Court reemphasized that a corporation is most often exposed to general personal jurisdiction only if that entity is incorporated in the forum state or if the forum state hosts the entity's principal place of business. See Daimler AG v. Bauman, 571 U.S. at 138-39.

         Once minimum contacts have been established, a court turns to traditional notions of fair play and substantial justice.

If [the defendant] is found to have the requisite minimum contacts with [the forum state], then we proceed to the second step in the due process analysis: ensuring that the exercise of jurisdiction over him does not offend “traditional notions of fair play and substantial justice.” See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)(quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). [The defendant] bears the burden at this stage to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1080 (10th Cir. 2008). We consider the following five factors, . . . in deciding whether the exercise of jurisdiction would be fair:
(1) the burden on the defendant, (2) the forum state's interests in resolving the dispute, (3) the plaintiff's interest in receiving convenient and effectual 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 or foreign nations in furthering fundamental social policies.
Id. (brackets omitted); see also OMI Holdings, Inc., 149 F.3d at 1095 (applying these factors in a case involving a Canadian corporation). “[T]he reasonableness prong of the due process inquiry evokes a sliding scale: the weaker the plaintiff's showing on minimum contacts, the less a defendant need show in terms of unreasonableness to defeat jurisdiction.” TH Agric. & Nutrition, LLC, 488 F.3d at 1292 (internal quotation marks and brackets omitted).

Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1167 (10th Cir. 2011). The Supreme Court has recently emphasized that, among the factors, the primary concern “is ‘the burden on the defendant.'” Bristol-Myers, 137 S.Ct. at 1780 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 292). “Assessing this burden obviously requires a court to consider the practical problems resulting from litigating in the forum, but it also encompasses the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question.” Bristol-Myers, 137 S.Ct. at 1780.

Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.

Bristol-Myers, 137 S.Ct. at 1780-81 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 294).

         In Silver v. Brown, 678 F.Supp.2d 1187 (D.N.M. 2009)(Browning, J.), aff'd in part and rev'd in part, 382 Fed.Appx. 723 (10th Cir. 2010)(unpublished), [15] the Court considered whether it had personal jurisdiction over defendants who allegedly slandered, defamed, and caused the plaintiff -- Michael Silver -- distress, by posting a blog on the internet that portrayed him in a negative light. See 678 F.Supp.2d at 1204. The Court determined that it did not have personal jurisdiction over defendant Jack McMullen, because Silver failed to demonstrate that McMullen “was significantly associated with the blog or controlled it in any way.” 678 F.Supp.2d at 1212. The Court also concluded that it did not have personal jurisdiction over the blog post's author -- Matthew Brown -- because he was not domiciled in New Mexico, had not traveled to New Mexico, and did not transact business there. See 678 F.Supp.2d at 1211. The Court said that Brown's blog posts similarly did not establish personal jurisdiction, because

the blog is closer to an informative website than a commercial website. No. services are offered, and Brown is not collecting revenue from the website. Brown does not interact with the people who post information on the blog. Brown, to the Court's knowledge, did not solicit negative postings on the website. Further, even though people in New Mexico can view the website, the blog is not a website that is directed solely at the people of New Mexico. The number of people who can access the website in New Mexico in comparison to those who are able to access the website throughout the world, or even in the United States, according to the statistics that Silver provided at the hearing, is nominal.

678 F.Supp.2d at 1211-12.

         On appeal, the Tenth Circuit affirmed the Court's holding as to McMullen, but reversed its decision as to Brown. See 382 Fed.Appx. at 727-32. In an opinion that the Honorable Monroe G. McKay, United States Circuit Judge for the Tenth Circuit, authored, and the Honorable Wade Brorby and the Honorable David M. Ebel, Senior United States Circuit Judges for the Tenth Circuit, joined, the Tenth Circuit applied the three-part test from Calder v. Jones to conclude that the Court had personal jurisdiction over Brown. See 382 Fed.Appx. at 727-32. Judge McKay first explained that the posting the blog was “clearly an intentional act” designed to damage the plaintiff's reputation. 382 Fed.Appx. at 729. Second, Judge McKay said that Brown had “expressly aimed his blog at New Mexico, ” where Silver, his business, and the majority of his customers were located. 382 Fed.Appx. at 729. Judge McKay noted: “It was about a New Mexico resident and a New Mexico company. The blog complained of Mr. Silver's and [his business'] actions in the failed business deal. Those actions occurred mainly in New Mexico.” 382 Fed.Appx. at 729-30. Third, Judge McKay explained that Brown knew Silver would suffer the brunt of his injury in New Mexico, as the state was “unquestionably the center of his business activities.” 382 Fed.Appx. at 730.

         In several other recent cases, the Court addressed whether it could assert general or specific jurisdiction over non-individual entities. In Fabara v. GoFit, LLC, a plaintiff -- injured by an allegedly defective exercise ball in New Mexico -- brought suit against the manufacturer, which was incorporated and headquartered in Oklahoma. See 308 F.R.D. at 408. The manufacturer moved to dismiss the complaint, under rule 12(b)(2), arguing that the Court lacked general jurisdiction, because its contacts with New Mexico were neither continuous nor systematic. See 308 F.R.D. at 384. The plaintiff responded with photographs of the manufacturers' products in several stores, arguing that the manufacturer delivered the exercise balls into the stream of commerce with the expectation that New Mexico customers would purchase and use them. See 308 F.R.D. at 389. The Court rejected this theory, explaining that the manufacturer's contacts with New Mexico were not “so systematic and continuous as to make it essentially at home here.” 308 F.R.D. at 397. The Court noted that the manufacturer had almost no physical connections with New Mexico and that its New Mexico internet sales -- roughly $20, 000.00 over nine years -- were insufficiently “substantial” to support general jurisdiction. 308 F.R.D. at 402-03.

         In Diener v. Trapeze Asset Management, Inc., No. CIV 15-0566 JB\LAM, 2015 WL 8332933 (D.N.M. Nov. 30, 2015)(Browning, J.), the Court considered whether it had specific jurisdiction over a Canadian asset-management firm that maintained a passive website, placed its name in a third party's money-manager listing, mailed marketing materials to New Mexico, had telephone conversations with plaintiffs located in New Mexico, and ultimately entered into a contract with plaintiffs located in New Mexico. See 2015 WL 8332933, at *1. The Court concluded that it did not have specific jurisdiction for four primary reasons. See 2015 WL 8332933, at *1. First, the website was wholly passive and did not allow visitors “the opportunity to invest or interact with the site.” 2015 WL 8332933, at *15. Second, the third-party listing was similarly passive. See 2015 WL 8332933, at *15. Third, the Court noted that “phone calls and letters are not necessarily sufficient in themselves to establish minimum contacts, ” noting that the alleged torts occurred in Canada. 2015 WL 8332933, at *17 (quoting Benton v. Cameco ...


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