United States District Court, D. New Mexico
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
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
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”). 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
“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”).
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).
¶ 21, at 3.
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
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.
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,  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.
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.
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”),  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.
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,  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.
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,  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 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,  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.
19, 2018, the Jones and Long Defendants answered Mayer's
Complaint. See Answer of Marilyn Jones, Gary Jones,
Robert Long, Stephanie Long, and Nathaniel
Jonesto 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.
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,
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.
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
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
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
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.
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.
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.
Court held a hearing on September 25, 2018. See
Draft Transcript of Motion Proceeding at 1:7-9 (taken Sept.
25, 2018)(Court)(“Tr.”). 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).
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). 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).
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).
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
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
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.” 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).
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).
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).
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).
The Notice of Supplemental Authorities.
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.
REGARDING RULE 12(B)(2)
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.
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).
REGARDING PERSONAL JURISDICTION
contested,  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,
Daimler AG v. Bauman, 571 U.S. 117, 126 (2014).
Burden of Proof.
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.).
Due Process and Personal Jurisdiction.
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.
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).
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
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.
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.
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
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),  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.
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.
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.
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