United States District Court, D. New Mexico
Childress Santa Fe, New Mexico Attorney for the Plaintiff
S. Grand Law Offices of Paul S. Grand --and-- Michell Lee
William Richmond Platt Cheema Richmond PLLC Attorneys for
Defendant Agentra LLC
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendant Agentra
LLC's Motion to Dismiss, filed October 17, 2018 (Doc.
11)(“Motion”). The Court held a hearing on
February 27, 2019. See Clerk's Minutes at 1,
filed February 27, 2019 (Doc. 37). The primary issues are:
(i) whether the Court lacks personal jurisdiction over this
matter because Defendant Agentra LLC, which itself did not
direct or make the alleged telemarketing calls to Plaintiff
Barbara Mohon, did not do business in or direct business to
the State of New Mexico; (ii) whether Mohon adequately pleas
that Agentra LLC is liable directly or indirectly for
violations of the Telephone Consumer Protection Act of 1991,
47 U.S.C. § 227 (“TCPA”), for the alleged
telemarketing calls Mohon received on Agentra LLC's
behalf; (iii) whether Mohon adequately pleas Agentra
LLC's direct or indirect liability for violating the New
Mexico Unfair Practices Act, N.M. Stat. Ann. §§
57-12-1 to -26 (“NMUPA”), with those calls; (iv)
whether Mohon adequately pleas a New Mexico common law
nuisance claim based on the alleged telemarketing calls; (v)
whether Mohon adequately pleas a New Mexico common law
trespass-to-chattels claim for the alleged telemarketing
calls; and (vi) whether Mohon adequately pleas that Agentra
LLC participated with Defendants Tracyann Nicole Hamilton and
Jane Does 1-10 in a civil conspiracy to violate federal and
state laws through the alleged telemarketing calls. The Court
grants the Motion in part and denies it in part. The Court
will permit additional discovery on Agentra LLC's
relationship with Hamilton to resolve the agency question
that underlies the personal jurisdiction, TCPA violation,
NMUPA violation, and trespass-to-chattels issues. The Court
will dismiss for failure to state a claim the nuisance claim,
because Mohon does not allege injury to her real property
interests. The Court deems that Mohon states a civil
conspiracy claim, because she alleges wrongful acts and a
close relationship between Agentra LLC and Hamilton that
makes plausible a civil conspiracy by the Defendants to
commit unlawful acts.
Court takes its facts from the Complaint for Violations of
the Telephone Consumer Protection Act, the Unfair Practices
Act and Torts, County of Santa Fe, First Judicial District
Court, State of New Mexico (filed in state court August 1,
2018), filed in federal court September 28, 2018 (Doc.
1-1)(“Complaint”). The Court provides these facts
for background. It does not adopt them as the truth, and it
recognizes that these facts are largely Mohon's version
action arises from Mohon's allegation that the
“Defendants operate and profit from a massive,
nationwide robo-calling conspiracy designed to sell a type
of discounted medical benefit plan Defendants imply in their
robo-calls is comprehensive insurance.” Complaint
¶ 15, at 4. At the calls' times, Mohon and her
telephone were in New Mexico. See Complaint ¶
16, at 5. Mohon had registered her cellular telephone number
with the National Do Not Call Registry, and did not consent
to the calls or have a business relationship with the
Defendants. See Complaint ¶ 46, at 11;
id. ¶¶ 51-52, at 12.
LLC and Hamilton directed telemarketing calls into New
Mexico. See Complaint ¶ 17, at 5. The
Defendants, through various telephone numbers, repeatedly
called Mohon's cellular telephone, at the number
505-501-3610, with “a pre-recorded message or
artificial voice which sought to interest her in
‘health insurance, '” and which left a
voicemail when prompted. Complaint ¶¶ 21
at 5. See id. ¶¶ 20-22 at 5-6;
id. ¶ 24, at 6. Within the first fifteen
seconds that, the caller never identified the call's
sponsor. See Complaint ¶ 31, at 8. Because of
the changing numbers, Mohon could not block the calls, and
neither a call-blocking feature on Mohon's cellular
telephone, the calls' built-in opt-out feature, or a
request through the customer service line at 866-269-1877
stopped the calls. See Complaint ¶¶ 22-23,
at 5-6; id. ¶ 27, at 7. During one call, Mohon
reached a live telemarketer -- “Tracy” -- who
“hung up the phone” when Mohon asked about the
telemarketing operations and to send her an email.
Complaint ¶ 25, at 6-7. Mohon could not discern
the Defendants' identity or location until she purchased
a healthcare plan during a call, after which she began
receiving “texts, emails and paperwork” from the
Defendants identifying Agentra LLC and Hamilton “as the
primary parties responsible” for the robo-calls.
Complaint ¶ 29, at 7. During the enrollment,
Hamilton -- Agentra LLC's agent -- texted Mohon directly.
See Complaint ¶ 43-444, at 10. After the
purchase, Mohon stopped receiving the telemarketing calls.
See Complaint ¶ 32, at 8.
LLC markets its products through insurance brokers, like
Hamilton, who act for it, enter contracts on its behalf, and
have access to its exclusive information, as Agentra
LLC's authorized, apparent, or ratification agent.
See Complaint ¶¶ 39-40, 42-43, at 10-11;
id. ¶ 45, at 12. Mohon argues that Agentra LLC
controlled Hamilton's conduct and had authority to
prevent the telemarketing, should have known about the calls
and acted to prevent the calls, and ratified the actions when
it accepted the calls' benefits, i.e., the
customers. See Complaint ¶¶ 39-42, at 10;
id. ¶¶ 54-56, at 12. According to Mohon,
Agentra LLC and Hamilton:
a) authorized the phone calls;
b) directly or indirectly controlled the persons who actually
made or initiated the calls;
c) allowed the telemarketers access to information and
operating systems within Agentra LLC's control for the
purpose of selling goods and services;
d) allowed the telemarketers to enter consumer information
into Agentra's sales, dialing or operational systems;
e) approved, wrote or reviewed the telemarketing sales
f) Hamilton reasonably should have known or consciously
avoided knowing that the actual telemarketers were violating
the TCPA and Hamilton failed to take effective steps within
her power to require compliance with the TCPA.
Complaint ¶ 38, at 9-10.
alleges that: (i) the Defendants and/or their agents violated
the TCPA by repeatedly calling her telephone and refusing to
identify themselves; (ii) the same actions constitute a
nuisance, trespass to chattels, and a civil conspiracy; and
(iii) these actions violated NMUPA § 57-12-22.
See Complaint ¶¶ 57-65, at 12-13. On
October 17, 2018, Agentra LLC filed the Motion asking the
Court to dismiss the Complaint under rules 12(b)(2) and
12(b)(6) of the Federal Rules of Civil Procedure.
See Motion at 14. Mohon responded on October 25,
2018. See Plaintiff's Response to Agentra
LLC's Motion to Dismiss, filed October 25, 2018 (Doc.
Agentra LLC argues that Mohon has not adequately pled a TCPA
violation. See Motion ¶ 14, at 4. Agentra LLC
explains: “To sufficiently allege a claim against
Defendant Agentra LLC for a TCPA violation, Plaintiff would
have to allege that Agentra LLC (a) made a call to Plaintiff;
(b) without Plaintiff's prior express consent; and (c)
using an automatic telephone dialing system or an artificial
or prerecorded voice.” Motion ¶ 10, at 3 (citing
47 U.S.C. § 227(b)(1)(A)). Agentra LLC contends that
Mohon has alleged no identifying information for the call
including associated caller-ID numbers, or the calls'
dates. See Motion ¶ 11, at 3. Further, Agentra
LLC complains that Mohon recounts allegations against all the
Defendants and in only one paragraph attributes an action to
Agentra LLC. See Motion ¶ 11-12, at 3-4.
According to Agentra LLC, the paragraph directly addressing
Agentra LLC reflects that Agentra LLC's emailed Mohon,
but the TCPA does not protect against emails. See
Motion ¶ 12, at 3-4. Agentra LLC avers that it never
called Mohon and that she has not alleged that it did.
See Motion ¶ 13, at 4 (citing 47 U.S.C. §
227(b)(1)(A); Declaration of Cindy Dale ¶¶ 4-8, at
1 (executed October 15, 2018), filed October 17, 2018 (Doc.
Agentra LLC argues that Mohon has not adequately pled her
NMUPA claim. See Motion ¶ 19, at 4 (citing
Complaint ¶ 65, at 13). Agentra LLC contends that the
NMUPA prohibits calls to landline telephones and not to
cellular telephones, like Mohon's. See Motion
¶ 16, at 4 (citing Complaint ¶ 19, at 5). Agentra
LLC draws this conclusion from § 57-12-22's use of
the phrase “‘residential subscriber.'”
Motion ¶ 17, at 5 (quotingciting N.M. Stat. Ann. §
57-12-22.D(4)).). Agentra LLC again contends that Mohon has
not alleged that it as an entity: “(a) placed an
outbound call to Plaintiff; (b) using automatic dialing and
recorded message equipment and; (c) failed to identify itself
within 15 seconds of the call.” Motion ¶ 19, at 5
(citing Dale Decl. ¶¶ 4-8, at 1).
Agentra LLC avers that Mohon has not pled plausible private
nuisance, trespass-to-chattels, or civil conspiracy claims.
See Motion ¶ 20, at 5. According to Agentra
LLC, Mohon's private nuisance claim is inadequate,
because Mohon “does not allege any interest in land
that was impacted by the alleged calls.” Motion ¶
21, at 6 (citing Padilla v. Lawrence, 1984-NMCA-064
¶ 9, 685 P.2d 964, 967). Likewise, in Agentra LLC's
view, because Mohon does not allege “physical contact
with any of Plaintiff's property . . ., the claim for
trespass fails.” Motion ¶ 22 at 6 (citing
Restatement (Second) of Torts § 158 comment i,
§ 217 comment e (1965)). Agentra LLC also contends that
Mohon has produced no “factual evidence to support that
a conspiracy existed.” Motion ¶ 23, at 6 (citing
Boyd v. United States (In re Boyd Estate),
2015-NMCA-018, ¶ 19, 344 P.3d 1013, 1017).
Agentra LLC avers that the Court lacks personal jurisdiction
over Agentra LLC. See Motion at 6. Agentra LLC
disputes that the Court can impute to Agentra LLC its
co-Defendants' purported conduct and consequent New
Mexico contacts. See Motion ¶ 25, at 7.
According to Agentra LLC, the TCPA incorporates common-law
agency principles, which reflect that no agency relationship
-- and rather an independent contractor relationship --
exists when the principal lacks control over the agent's
conduct. See Motion ¶ 26-27, at 7-8. According
to Agentra LLC, Hamilton is an independent contractor,
see Motion ¶ 28, at 8 (citing Dale Decl. ¶
9-10, at 2; Agreement Between Agentra LLC and Tracyann
Hamilton at 2, 5, filed October 17, 2018 (Doc.
11)(“Contract”)), which means that Mohon cannot
establish Agentra LLC's vicarious liability, see
Motion ¶ 30, at 8-9 (citing Jones v. Royal Admin.
Servs., 866 F.3d 1100, 1105 (9th Cir. 2017)). Agentra
LLC contends that, even if its Co-Defendants were its agents,
Mohon cannot establish its vicarious liability for acts, like
the telephone calls, which violate state laws and which
Agentra LLC did not authorize. See Motion ¶ 32,
35, at 9, 10 (citing Contract at 2). Agentra LLC indicates
that Mohon provides no information identifying Does 1-10 and,
hence, cannot allege them as Agentra LLC's agents.
See Motion ¶ 31, at 9. According to Agentra
LLC, it also could not have ratified the Co-Defendants'
actions, because it had no knowledge that they
“potentially reached out to Plaintiff in a manner that
violated federal or state regulations or in a manner that was
otherwise inconsistent with such regulations.” Motion
¶ 35, at 10 (citing Benefit Fin. Co. v.
Alarcon, 1991-NMSC-074, ¶ 16, 816 P.2d 489, 493).
LLC then avers that, without imputing to it its
Co-Defendants' conduct, Mohon cannot establish the
three-part test for personal jurisdiction in New Mexico:
“(1) the defendant's act must be one of the five
enumerated provisions in the New Mexico long-arm statute; (2)
the plaintiff's cause of action must arise from
defendant's act; and (3) minimum contacts sufficient to
satisfy due process must be established by the
defendant's act.” Motion ¶ 37, at 10-11
(citing State Farm Mut. Ins. v. Conyers,
1989-NMSC-071, ¶ 6, 784 P.2d 986, 987). Agentra LLC
describes itself as a Texas corporation, without a New Mexico
residence, business operation, registration, or
“legally significant contacts with New Mexico.”
Motion ¶ 39, at 11 (citing Dale Decl. ¶¶ 2-3,
at 1). Agentra LLC explains that Mohon's allegation that
Agentra LLC emailed her is the sole allegation that it
conducted business in New Mexico, and Agentra LLC deems this
connection insufficient for personal jurisdiction.
See Motion ¶ 40, at 11 (citing Fabara v.
GoFit, LLC, No. CIV 14-1146 JB/KK, 2015 U.S. Dist. LEXIS
118464, at *39-40 (D.N.M. Aug. 20, 2015)(Browning, J.);
Zimmerman v. CIT Grp. Inc., Civil Action No.
08-cv-00246-ZLW-KLM, 2008 WL 5786438, at *6 (D. Colo.
2008)(Mix, M.J.)). Second, Agentra LLC avers that it
committed no tortious acts within New Mexico as it made no
outbound calls violating the TCPA, NMUPA, or common law.
See Motion ¶ 42, at 12 (citing Dale Decl.
¶¶ 4-8, at 1).
LLC also avers that finding personal jurisdiction here will
violate due process. See Motion ¶ 44, at 12.
First, according to Agentra LLC, the Court does not have
general jurisdiction, because the email correspondence does
not rise to “‘continuous and systemic'
business contacts with New Mexico such that Agentra LLC is
‘essentially at home in New Mexico.'” Motion
¶ 45, at 12 (quoting Diener v. Trapeze Asset
Mgmt., No. CIV 15-0566 JB\LAM, 2015 WL 8332933, at *1
(D.N.M. Nov. 30, 2015)(Browning, J.)). Moreover, according to
Agentra LLC, because it did not violate the TCPA or NMUPA, it
does not have minimum contacts establishing specific
jurisdiction in New Mexico. See Motion ¶¶
46-47, at 13.
with the TCPA claims, Mohon contends: “Only two (2)
allegations are necessary to state the basic
Subsection B TCPA claim: telemarketer called
her phone, and telemarketer did so using a pre-recorded
message or an automatic telephone dialing system
“robo-call”).” Response at 2 (emphasis in
Response)(citing Breslow v. Wells Fargo Bank, 857
F.Supp.2d 1316, 1319 (S.D. Fla. 2012)(Scola, Jr., J.);
Ott v. Mortg. Inv'rs Corp, 65 F.Supp.3d 1046,
1059-60 (D. Or. 2014)(Stewart, M.J.)). Mohon also argues that
her “Complaint also amply gives notice of multiple
‘do not call' or Subsection C
violations because the Complaint states her phone number is
listed on the National Do Not Call Registry (see 47
C.F.R. § 64.1200(c)(2)) and Agentra's telemarketers
refused to identify themselves or honor even Plaintiff's
specific do-not-call requests.” Response at 2 (emphasis
in Response). Mohon argues that, to allege a TCPA violation,
she does not need to identify the calls' frequency,
dates, or telephone numbers, because Agentra LLC's
records will reveal that information in discovery.
See Response at 2 (citing Sprogis v. Suntrust
Bank, No. 6:13-cv-635, 2013 WL 2456090, at *2 (M.D. Fla.
June 6, 2013)(Dalton, J.)).
wants the Court to defer to the TCPA interpretations that the
Federal Communication Commission (“FCC”) TCPA
promulgates. See Response at 3 (citing
Mainstream Mktg. Serv., Inc. v. FTC, 358 F.3d 1228,
1236 (10th Cir. 2004)). According to Mohon, in Dish
Network, LLC, FCC 13-54, 6574 (released May 9, 2013),
filed in federal court October 25, 2018 (Doc.
14-1)(“Dish Network”), the FCC
determined that, where a contract requires a contractor to
follow the TCPA, the contracting entity can face liability
for the contractor's actions, see Response at
(citing Dish Network ¶¶ 5, 8, at 6576-77;
id. at 6586-87 n.102), and, in Dialing Services,
LLC, FCC 14-59, File No. EB-TCD-12-00001812 (released
May 8, 2014), filed in federal court October 25, 2018 (Doc.
14-2)(“Dialing Services”), the FCC
directs decisionmakers “to ‘look for a direct
connection between a person or entity and the making of a
call'” when deciding whether an entity
“made” a call, Response at 3 (quoting Dialing
Services ¶ 16, at 5). Moreover, Mohon explains that
the TCPA incorporates federal common-law agency principles.
See Response at 3 (citing Imhoff Invest., LLC v.
Alfoccino, Inc., 792 F.3d 627, 635 (6th Cir. 2015)).
According to Mohon, these principles include the doctrines of
apparent authority and ratification, see Response at
3 (citing Hossfeld v. GEICO, 88 F.Supp.3d 504, 510
(D. Md. 2015)(Quarles, J.)), which she argues are doctrines
that courts should apply to prevent companies from avoiding
TCPA restrictions through outsourcing, see Response
at 3-4 (citing McCabe v. Caribbean Cruise Line,
Inc., No. 13-cv-6131, 2014 WL 3014874, at *3 (E.D.N.Y.
July 3, 2014)(Gleeson, J.); Smith v. State Farm. Mut.
Auto. Ins., 30 F.Supp.3d 765, 774 (N.D.Ill. 2014)(St.
Eve, J.)). Mohon lists the FCC's examples of facts that
support a finding of vicarious liability:
“[T]he seller allows the outside sales entity
access to information and systems that normally would be
within the seller's exclusive control, including: access
to detailed information regarding the nature and pricing of
the seller's products and services or to the seller's
customer information. The ability by the outside sales
entity to enter consumer information into the seller's
sales or customer systems, as well as the authority
to use the seller's trade name, trademark and service
mark may also be relevant. It may also be persuasive
that the seller approved, wrote or reviewed the outside
entity's telemarketing scripts. Finally, a seller would
be responsible under the TCPA for the unauthorized conduct of
a third-party telemarketer that is otherwise authorized to
market on the seller's behalf if the seller knew (or
reasonably should have known) that the telemarketer was
violating the TCPA on the seller's behalf and the seller
failed to take effective steps within its power to force the
telemarketer to cease that conduct.”
Response at 4 (emphasis in Response)(quoting Dish
Network ¶ 46, at 6592-93). Mohon avers that she
adequately pled such facts through the Complaint's
paragraphs 38, 43 and 45, and stresses that paragraph 20
adequately puts the Defendants on notice of her vicarious
liability claim stemming from paragraphs 20's through
33's depictions of unlawful calls. See Response
at 4-5. According to Mohon, Agentra LLC admits its control
over Hamilton and her authority to act on its behalf.
See Response at 7 (citing Restatement (Third) of
Agency § 1.01 (2006)). For Mohon, the Contract
reflects Agentra LLC giving Hamilton authority, and discovery
will likely reveal Agentra LLC's control over the sales
parameters under which Hamilton operates, and Hamilton's
connections or lack of connections to other health insurance
companies. See Response at 8. Mohon argues that the
Court should not rely on the contract's phrase
“independent agent, ” but should consider all the
facts, and emphasizes that, per the FCC, contractual terms
forbidding illegal actions do not control the vicarious
liability analysis. See Response at 8 (citing
Durkey v. Pac. Life Ins., Civil Action No. 17-317,
2017 U.S. Dist. LEXIS 124294, at *28 (W.D. Pa. Aug. 4,
2017)(Lenihan, J.); Sutton v. Chevron Oil,
1973-NMSC-111, ¶ 4, 515 P.2d 1283, 1285; Dish
Network, ¶ 34, at 6586-87; id. at 6587-88
n.102). Mohon analogizes this case to
[Dobkin v. Enterprise Financial Group, Inc., No.
2:14-CV-01989 WHW, 2014 WL 4354070, at *3-4 (D.N.J. Sept. 3,
2014)(Walls, J.)] where a motion to dismiss was denied in a
TCPA case holding that “'Plaintiff's allegation
that Precise representatives directed consumers to a website
which automatically rerouted to EFG's website suggests
that EFG exerted control over Precise's telemarketing
Response at 9
argues alternatively that Agentra LLC gave Hamilton implied
authority when it paid her for her activities, suggesting
that it approved of them. See Response at 9 (citing
Restatement (Third) of Agency § 2.01). Mohon
also notes that New Mexico recognizes implied authority.
Response at 9-10 (citing N.M. Stat. Ann. §§ 13-401
to -402; Echols v. N.C. Ribble Co., 1973-NMCA-038,
¶ 19, 511 P.2d 566, 569). Mohon indicates that, in
paragraphs 29 through 45, she alleges facts revealing Agentra
LLC's connections to the telemarking calls and shows:
(1) [Agentra LLC] “allows the outside sales entity
access to information and systems that normally would be
within the seller's exclusive control, including access
to detailed information regarding the nature and pricing of
the seller's products and services”, (2) the
outside sales entity (Hamilton and the Jane Doe defendants)
has an ability to “enter consumer information into the
seller's sales systems, as well as the authority to use
the seller's trade name, trademark and service
mark” and (3) Agentra delegated to others the ability
to make a contract between Agentra and Plaintiff and
exercised control over that process.
Response at 5 (citing Hossfeld v. GEICO, 88
F.Supp.3d at 510-11). Additionally, Mohon avers that Agentra
LLC ratified Hamilton's and the Does 1-10's actions
by manifesting its assent to the conduct. See
Response at 10-11 (citing Restatement (Third) of
Agency § 4.07; Keim v. ADF
Midatlantic, LLC, No. 12-cv-80577, 2015 U.S. Dist.
LEXIS 159070, at *27 (S.D. Fla. Nov. 10, 2015)(Marra, J.)).
avers that the Court should not decide the agency issue on a
12(b)(6) motion. See Response at 12-14. She contends
that she will uncover in discovery whether Agentra LLC
“‘knew (or reasonably should have known)”
of Hamilton's acts and “failed to take effective
steps within its power to force [Hamilton] to cease that
conduct.'” Response at 12 (alteration added)quoting
Dish Network, ¶ 46, at 6592-93). See
id. at 11-12. She further argues that several states
have recognized that the vicarious liability inquiry is
inappropriate for 12(b)(6) dismissal and often inappropriate
for summary judgment dismissal. See Response at
12-13. She stresses that agency is a fact-intensive question.
See Response at 13-14.
Mohon contends that she adequately pleas NMUPA violations.
See Response at 14. According to her, New Mexico
agency law does not “materially differ” from
federal common law; hence, if she plausibly pleas TCPA
violations, she plausibly pleas NMUPA violations. Response at
14. Mohon avers that Agentra LLC incorrectly describes the
NMUPA as limited to landline telephones. See
Response at 15. Mohon explains that her allegation in the
Complaint's paragraph 46 adequately pleads an NMUPA
violation, by alleging that she listed her cellular telephone
on the National Do Not Call Registry, which creates a legal
presumption that the registered number is residential.
See Response at 15. In her view, that the Defendants
sought to sell her healthcare evidences their understanding
that her cellular telephone was a residential number.
See Response at 15. Mohon defines “residential
subscriber” to depend on the use and not the type of
telephone line. Response at 16 (citing Dish Network
¶ 34, at 6586-87). Mohon admits that the New Mexico
Legislature promulgated N.M. Stat. Ann. § 57-12-22 in
1989, before wireless telephones' widespread
availability, and that wireless telephone usage has increased
rapidly since the statute's enactment. See
Response at 16.
the state law claims, Mohon first contends that telemarketing
“is ‘a nuisance.'” Response at 17
(quoting Mims v. Arrow Fin. Servs., LLC, 565 U.S.
368, 372 (2012); and citing Am. Copper & Brass, Inc.
v. Lake City Indus. Prod., Inc., 757 F.3d 540, 544 (6th
Cir. 2014); Dish Network ¶ 36, at 6587). Mohon
describes that, in New Mexico, nuisances include more than
interferences with real property interests. See
Response at 17-18 (citing Denney v. United States,
185 F.2d 108, 110 (10th Cir. 1950); Koeber v. Apex-Albuq
Phoenix, 1963-NMSC-051, ¶ 3, 380 P.2d 14, 15).
Second, she defines trespass to chattels -- here, the
cellular telephone -- as “intentional interference with
a chattel in the possession of another, without
justification, ” Response at 18 (citing Tex.-N.M.
Pipeline v. Allstate Constr., 1962-NMSC-026, ¶ 5,
369 P.2d 401, 402), and explains that the tort applies to
unwanted telephone calls (citing Mey v. Got Warranty
Inc., 193 F.Supp.3d 641, 647 (N.D. W.Va. 2016)(Bailey,
J.)). Mohon describes that, in the Complaint's paragraphs
16, 19-28, 53, and 61, she adequately states these claims by
describing the annoyance the Defendants' calls caused
her. See Response at 18-19. Third, she asserts that
Agentra LLC participated in two conspiracies:“1)
conspiracy to accomplish unlawful telemarketing with enough
deliberate anonymity that the conspirators were difficult to
identify and locate, and 2) conspiracy to sell products and
services by unlawful means (robo-calling cell phones and
Do-Not-Call registered numbers).” Response at 19.
According to Mohon, civil conspiracy claims provide an
independent liability basis where “a civil action in
damages would lie against one of the conspirators.”
Response at 19 (citing Salzman v. New Mexican Kennels,
Inc., No. CIV 14-0877 KBM/KK, 2015 WL 13662748, at *2
(D.N.M. June 8, 2015)(Molzen, M.J.)).
then addresses Agentra LLC's personal-jurisdiction
arguments. See Response at 20. She describes that
New Mexico provides for jurisdiction to the extent
constitutional and has removed the requirement for “a
technical determination of whether a defendant
committed” the act at issue. Response at 20 (citing
Dudnikov v. Chalk & Vermilion Fine Arts, 514
F.3d 1063, 1070 (10th Cir. 2008); Zavala v. El Paso Cty.
Hosp. Dist., 2007-NMCA-149, ¶ 10, 172 P.3d 173,
178; Tercero v. Roman Catholic Diocese,
2002-NMSC-018, ¶ 6, 48 P.3d 50, 54). According to her, a
single telephone call, like a telemarketing call, suffices
for a minimum contact. See Response at 20 (citing
Customwood v. Downey, 1984-NMSC-115, 691 P.2d 57).
Mohon contends that the telemarketing call constitutes a
purposeful availment and that, because Agentra LLC has an
agency relationship with the callers, the Court has personal
jurisdiction. See Response at 20-21 (citing
Santa Fe Techs. v. Argus Networks, 2002-NMCA-030, 42
P.3d 1221). For Mohon, “[p]ersonal jurisdiction over
Agentra can hardly offend traditional notions of fair play
and substantial justice where the TCPA was specifically
intended to give this Court personal jurisdiction.”
Response at 22.
to Mohon, the Complaint's paragraphs 19 through 21
adequately plea facts to show personal jurisdiction, because
she states that the Defendants called her cellular telephone
number and that “she was greeted by a pre-recorded
message or artificial voices.” Response at 22. Mohon
responds to Agentra LLC's fact-intensive agency
discussion by averring that the rule 12(b)(6) analysis should
focus on law. See Response at 23. Mohon offers
several policy arguments for jurisdiction: (i) today's
transportation and telecommunication systems make litigating
in a foreign state less burdensome than previously; (ii) New
Mexico has an interest in seeing the NMUPA enforced; (iii)
the TCPA seeks to deter telemarketing; and (iv) the TCPA and
NMUPA “are specifically intended to give [her] a local
remedy in a local court.” Response at 24. Mohon asks
that, if the Court deems the Complaint inadequate, it grant
her leave to amend. See Response at 25 (citing
Triplett v. LeFlore Cty., 712 F.2d 444, 446 (10th
LLC began the hearing by discussing its 12(b)(2), personal
jurisdiction arguments. See Draft Transcript of
Hearing at 3:13-15 (taken February 27,
2019)(Richmond)(“Tr.”). Agentra LLC explained that,
in determining personal jurisdiction, the telemarketing calls
are the relevant factors and not the subsequent
communications after Agentra LLC and Mohon consummated a
sale. See Tr. at 15-4:9 (Richmond). Agentra LLC
argued that, in the Court's analysis, the Court can
consider the Dale Decl., which shows that the Court has no
jurisdiction. See Tr. at 4:10-25 (Richmond). Agentra
LLC contended that Mohon introduces no evidence supporting a
prima facie case of “continuous and systematic contact,
” Tr. at 5:7 (Richmond), creating general jurisdiction,
see Tr. at 5:5-14 (Richmond). Agentra LLC indicated
that, following the Court's opinion in Fabara v.
GoFit, LLC, Mohon has not established a
stream-of-commerce argument for general jurisdiction,
see Tr. at 5:14-61 (Richmond), and, according to
Agentra LLC, Mohon and Agentra LLC's transaction does not
create general jurisdiction, see Tr. at 6:1-6
LLC continued, arguing that Mohon has not shown evidence to
satisfy specific jurisdiction's second prong -- that
wrongful conduct occurred to establish jurisdiction.
See Tr. at 6:6-10 (Richmond). Agentra LLC contended
that Mohon must show that Agentra LLC purposefully directed
the telemarketing calls at New Mexico, and knew of and
controlled the activity. See Tr. at 6:21-25
(Richmond). According to Agentra LLC, the Contract reveals
that Agentra LLC did not control Hamilton, and Mohon
introduces no evidence to support her allegations.
See Tr. at 7:3-19 (Richmond). Agentra LLC emphasized
again that the Court should focus on the calls and the
callers, and not Agentra LLC, which is not doing business in
New Mexico. See Tr. at 7:19-8:4 (Richmond).
agreed that the Court does not have general jurisdiction.
See Tr. at 8:11-12 (Childress). Mohon, however,
averred that she alleges vicarious liability and repeated her
citation to Santa Fe Technologies v. Argus Networks.
See Tr. at 8:15-23 (Childress). She explained that
her communications with Agentra LLC, which Agentra LLC wants
the Court to disregard, occurred through the telemarketing
calls' purchasing process. See Tr. at 8:21-25
(Childress). According to her, moreover, she has sufficiently
alleged Agentra's and Hamilton's principal-agent
relationship and the Contract supports the relationship.
See Tr. at 9:1-7 (Childress). Mohon expanded on the
relationship and described that Agentra LLC gave Hamilton
access to its systems and consumer information processes, and
controlled the terms for purchasing its products.
See Tr. at 9:7-20 (Childress). Mohon contended that,
even if Agentra LLC did not convey actual authority to
Hamilton, apparent authority exists because Mohon could
reasonably have understood Agentra LLC to control the health
insurance product and the caller -- Hamilton. See
Tr. at 9:20-10:1 (Childress). Mohon additionally argued that
Agentra LLC should have known about Hamilton's
telemarketing, and stated that discovery would establish what
Agentra LLC knew and reveal that Agentra LLC ratified the
telemarketing. See Tr. at 10:2-21 (Childress).
Court responded that, for jurisdictional issues, it must
reach decisions by a preponderance of the evidence.
See Tr. at 10:22-11:1 (Court). It asked Mohon what
to do regarding the agency issue. See Tr. at 11:2-4
(Court). Mohon responded that she had alleged vicarious
liability and that Agentra LLC had stated that Hamilton was
its agent. See Tr. at 11:5-15 (Childress). The Court
reiterated that it had only the Contract and could not
determine whether Hamilton acted as more than a contractor.
See Tr. at 11:16-22 (Court). Mohon reiterated that
the agency analysis considers all the case's facts and
not alone the parties' characterization of a
relationship. See Tr. at 11:23-12:10 (Childress).
Agentra LLC intervened to address Mohon's statements on
discovery, and argued that Agentra LLC filed the Motion five
months earlier and that Mohon just now mentions her need for
discovery. See Tr. at 12:20-13:4 (Richmond). Agentra
LLC argued that Mohon relies on allegations alone but that
Agentra LLC produced the Court revealing that Hamilton was an
independent contractor. See Tr. at 13:4-18
(Richmond). The Court asked Agentra LLC to describe the
Contract, and Agentra LLC explained that the Contract made
Hamilton an independent contractor to whom Agentra LLC gave
authority to make sales but, according to Agentra LLC, this
case focuses on the robo-calls and Agentra LLC did not have
“control or authority or ratification or knowledge or
anything related to the robo call.” Tr. at 14:22-23
(Richmond). See id. at 14:4-24 (Richmond). The Court
indicated its intention to consider further the 12(b)(2)
motion. See Tr. at 14:25-15:11 (Court).
LLC moved to the TCPA argument and indicated that Mohon
addresses direct and vicarious liability arguments but has
not alleged that Agentra LLC made calls or had an agency
relationship with Hamilton. See Tr. at 15:12-16:2
(Richmond). Mohon responded that “it's certainly
not hard to state a TCPA claim Your Honor, it's basically
I have a cellphone, and an auto dial[er] called it. And these
are the people that did it.” Tr. at 16:5-8 (Childress).
Mohon argued that the Complaint adequately made these
allegations and pointed the Court to Abramson v. Agentra
LLC, No. CV 18-615, 2018 WL 6617819, at *3-5 (W.D. Pa.
Dec. 18, 2018)(Mitchell, M.J.), in which the Honorable Robert
C. Mitchell, United States Magistrate Judge for the United
States District Court of the Western District of
Pennsylvania, recently issued a ruling denying a motion to
dismiss resembling the Motion. See Tr. at 16:9-23
(Childress). Mohon indicated that “everything sort of
circles back around to this vicarious liability issue,
” Tr. at 18:9-10 (Childress), and, according to her,
besides denying vicarious liability, Agentra LLC has not
shown why her allegations are inadequate, see Tr. at
LLC turned to the NMUPA to argue that Mohon's allegations
do not indicate who controlled the calls. See Tr. at
18:22-19:8 (Richmond). Agentra LLC reiterated that the NMUPA
applies to residential telephone lines only. See Tr.
at 19:10-11 (Richmond). According to Agentra LLC, Mohon cites
no caselaw applying the NMUPA to cellular telephones, cites a
TCPA case to support her stance, and concedes that the New
Mexico Legislature enacted the NMUPA before cellular
telephones' popularity. See Tr. at 19:11-20:3
(Richmond). Mohon responded that the NMUPA applies to
cellular telephones and that she discusses her arguments in
the Response. See Tr. at 20:4-10 (Childress). Mohon
explained that she has other claims under the NMUPA because
the NMUPA makes unlawful all conduct the Federal Trade
Commission (“FTC”) deems unlawful. See
Tr. at 20:18-21:7 (Childress). Mohon reiterated that
discovery would reveal Agentra LLC's business
relationships with agents like Hamilton and information
reflecting that Agentra LLC should have known about these
calls. See Tr. at 21:7-19 (Childress).
Agentra LLC addressed Mohon's state common-law claims and
averred that, in New Mexico, private nuisance claims must
involve private land, see Tr. at 22:7-11 (Richmond),
trespass to chattels claims require “physical contact
or entry, ” Tr. at 22:15 (Richmond), and civil
conspiracy claims are limited to torts, see Tr. at
22:20-24 (Richmond). Mohon replied that, in her Response, she
cites caselaw supporting her argument, and additionally
directs the Court to Dendy v. Chartrand, No. CIV
18-1118 WPJ, 2019 WL 719762, at *2 (D.N.M. Feb. 20,
2019)(Johnson, J.). See Tr. at 23:3-19 (Childress).
The Court indicated it would consider granting Mohon
discovery and would issue an opinion on the matter.
See Tr. at 24:1-18 (Court). The Court planned to
notify the parties if it will not require discovery.
See Tr. at 24:18-19 (Court). This Memorandum Opinion
and Order is the promised opinion.
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).
party contests personal jurisdiction,  the plaintiff 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 at 1070 (internal quotation marks
omitted)(quoting Int'l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945)). 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).
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.).
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. 462, 473-76 (1985). 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
(internal quotation marks omitted)(quoting Int'l Shoe
Co. v. Washington, 326 U.S. at 316). 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
General jurisdiction is based on an out-of-state
defendant's “continuous and systematic”
contacts with the forum state, Trujillo [v.
Williams], 465 F.3d [1210, ] 1218 n.7 [(10th Cir.
2006)](quoting Helicotperos [Nacionales v.
Hall], 466 U.S. 408');">466 U.S. 408, [ 415 (1984)]), 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 id. 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 (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” (quoting Keeton v. Hustler Magazine,
Inc., 465 U.S. 770, 774 (1984))). The United States
Court of Appeals for 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 (quoting Burger King
Corp. v. Rudzewicz, 471 U.S. at 472). The Supreme Court
of the United States 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 or her 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)((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
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
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)(alterations in Marcus Food Co. v.
DiPanfilo). 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.
“[E]ven 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, now-Senior 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 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., 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
Corp., 375 F.3d 1070, 1077 (10th Cir. 2004)). Fourth,
the plaintiffs reached out to the defendants to create the
contractual relationship, distinguishing the case from others
finding purposeful availment. See 2015 WL 8332933, at *17
(citing Burger King Corp. v. Rudzewicz, 471 U.S. at
in Resource Associates Grant Writing & Evaluation
Services, Inc. v. Southampton Union Free School District, 193
F.Supp.3d 1200 (D.N.M. 2016)(Browning, J.), the Court
considered whether it had personal jurisdiction over a school
district that had never conducted any business in New Mexico,
had never sent a representative to New Mexico, and had
contacted a New Mexico entity only via telephone and email
correspondence that the New Mexico company had initiated. See
193 F.Supp.3d at 1239. Highlighting the contractual nature of
the particular contacts at issue, and that due process may be
satisfied in contractual relations if the defendant
“‘reache[s] out' to the forum state, ”
the Court concluded it could not exercise properly personal
jurisdiction over the school district, because the school
district did not “not reach out to New Mexico to enter
into an agreement”; rather, the New Mexico entity had
initiated the communications and contract. 193 F.Supp.3d at
1241-43 (citing Burger King Corp. v. Rudzewicz, 471
U.S. at 479-85).
REGARDING RULE 12(b)(6)
12(b)(6) authorizes a court to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a
Rule 12(b)(6) motion tests the sufficiency of the allegations
within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994)(citing Williams v. Meese, 926
F.2d 994, 997 (10th Cir. 1991)). The complaint's
sufficiency is a question of law, and, when considering a
rule 12(b)(6) motion, a court must accept as true all
well-pled factual allegations in the complaint, view those
allegations in the light most favorable to the nonmoving
party, and draw all reasonable inferences in the
plaintiff's favor. See Smith v. United States,561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of
resolving a Rule 12(b)(6) ...