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Mohon v. Agentra LLC

United States District Court, D. New Mexico

June 24, 2019


          Sidney Childress Santa Fe, New Mexico Attorney for the Plaintiff

          Paul S. Grand Law Offices of Paul S. Grand --and-- Michell Lee William Richmond Platt Cheema Richmond PLLC Attorneys for Defendant Agentra LLC


         THIS 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.


         The 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 of events.

         This action arises from Mohon's allegation that the “Defendants operate and profit from a massive, nationwide robo-calling[1] 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.

         Agentra 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.

         Agentra 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 script; OR
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.


         Mohon 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. 14)(“Response”).

         1.The Motion.

         First, 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. 11)(“Dale Decl.”)).

         Second, 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).

         Third, 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).

         Next, 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).

         Agentra 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).

         Agentra 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.

         2.The Response.

         Beginning 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 (“auto-dialer” or “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.)).

         Mohon 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 strategy.”

Response at 9

         Mohon 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.)).

         Mohon 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.

         Second, 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.

         Regarding 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.)).

         Mohon 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.

         According 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 Cir. 1983)).

         3.The Hearing.

         Agentra 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.”).[2] 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 (Richmond).

         Agentra 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).

         Mohon 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).

         The 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).

         Agentra 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 18:8-16 (Childress).

         Agentra 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).

         Last, 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.

         LAW REGARDING RULE 12(b)(2)

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

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

         When a party contests personal jurisdiction, [3] 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).

         1.Burden of Proof.

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

         2.Due Process and Personal Jurisdiction.

         The personal-jurisdiction due process analysis is two-fold. See Fabara v. GoFit, LLC, 308 F.R.D. at 400. First, the defendant must have “minimum contacts” with the forum state such that it “should reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. 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 Cir. 1996).

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).

         For a court to exercise specific jurisdiction “‘the suit' must ‘aris[e] out of or relat[e] to the defendant's contacts with the forum.'” Bristol-Myers, 137 S.Ct. at 1780 (alterations and emphasis in Bristol-Myers)(quoting Daimler AG v. Bauman, 571 U.S. at 127). See 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 (1984)).

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

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

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

If [the defendant] is found to have the requisite minimum contacts with [the forum state], then we proceed to the second step in the due process analysis: ensuring that the exercise of jurisdiction over him does not offend “traditional notions of fair play and substantial justice.” See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)(quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). [The defendant] bears the burden at this stage to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1080 (10th Cir. 2008). We consider the following five factors, . . . in deciding whether the exercise of jurisdiction would be fair:
(1) the burden on the defendant, (2) the forum state's interests in resolving the dispute, (3) the plaintiff's interest in receiving convenient and effectual relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states or foreign nations in furthering fundamental social policies.
Id. (brackets omitted); see also OMI Holdings, Inc., 149 F.3d at 1095 (applying these factors in a case involving a Canadian corporation). “[T]he reasonableness prong of the due process inquiry evokes a sliding scale: the weaker the plaintiff's showing on minimum contacts, the less a defendant need show in terms of unreasonableness to defeat jurisdiction.” TH Agric. & Nutrition, LLC, 488 F.3d at 1292 (internal quotation marks and brackets omitted).

Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1167 (10th Cir. 2011)(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 294).

         In Silver v. Brown, 678 F.Supp.2d 1187 (D.N.M. 2009)(Browning, J.), aff'd in part and rev'd in part, 382 Fed.Appx. 723 (10th Cir. 2010)(unpublished)[4], the Court considered whether it had personal jurisdiction over defendants who allegedly slandered, defamed, and caused the plaintiff -- Michael Silver -- distress, by posting a blog on the internet that portrayed him in a negative light. See 678 F.Supp.2d at 1204. The Court determined that it did not have personal jurisdiction over defendant Jack McMullen, because Silver failed to demonstrate that McMullen “was significantly associated with the blog or controlled it in any way.” 678 F.Supp.2d at 1212. The Court also concluded that it did not have personal jurisdiction over the blog post's author - - Matthew Brown -- because he was not domiciled in New Mexico, had not traveled to New Mexico, and did not transact business there. See 678 F.Supp.2d at 1211. The Court said that Brown's blog posts similarly did not establish personal jurisdiction, because

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

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

         On appeal, the Tenth Circuit affirmed the Court's holding as to McMullen, but reversed its decision as to Brown. See 382 Fed.Appx. at 727-32. In an opinion that the Honorable Monroe G. McKay, 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.

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

         In Diener v. Trapeze Asset Management, Inc., 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 473).

         Finally, 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).

         LAW REGARDING RULE 12(b)(6)

         Rule 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) ...

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