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Ibrahim v. ABM Governmental Services, LLC

United States District Court, D. New Mexico

August 26, 2019



         Defendant ABM Government Services, LLC (ABMGS) contends that this Court does not have personal jurisdiction over ABMGS and that the Court should dismiss Plaintiff's COMPLAINT AND DEMAND FOR JURY TRIAL (Doc. No. 1) (Complaint) under Fed.R.Civ.P. 12(b)(2). See DEFENDANT'S MOTION TO DISMISS (Doc. No. 8) (Motion). Alternatively, ABMGS asks the Court to dismiss the Complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). In the Complaint, Plaintiff alleges that ABMGS retaliated against her after she filed a lawsuit in the United States District Court for the Western District of Kentucky[1] alleging that she was sexually harassed during her employment with ABMGS as an interpreter in the Middle East.[2] Plaintiff alleges that ABMGS retaliated against her by blocking Plaintiff's pursuit of gainful employment after she filed the Kentucky lawsuit. (Compl. ¶¶ 43-45.) Because ABMGS has insufficient contacts with New Mexico, the Court will grant the Motion and will dismiss the Complaint without prejudice.


         Under Rule 12(b)(2), a court may dismiss a complaint for lack of personal jurisdiction. A plaintiff generally bears the burden of demonstrating the court's jurisdiction to hear plaintiff's claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998) (“[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”). “In determining personal jurisdiction, a court must test not only the complaint's jurisdictional theory, but also the facts on which jurisdiction is predicated.” Walker v. THI of New Mexico at Hobbs Ctr., 801 F.Supp.2d 1128, 1138-39 (D. N.M. 2011) (citation omitted). Motions to dismiss for lack of subject-matter jurisdiction generally take one of two forms: “(1) a facial attack on the sufficiency of the complaint's allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject-matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).

         On a facial attack, the court must consider the complaint's allegations to be true. Walker 801 F.Supp.2d at 1138 (citing Ruiz v. McDonnell, 299 F.3d at 1180). But when the motion is aimed at the jurisdictional facts themselves, a court may not presume the truthfulness of those allegations. Walker, supra. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts. Id. at 1138. In such instances, however, a court's reference to evidence outside the pleadings does not convert the motion to a summary judgment motion. Id. (citing Alto Eldorado Partners v. City of Santa Fe, No. CIV 08-0175 JB/ACT, 2009 WL 1312856, at *8-9 (D. N.M. Mar. 11, 2009) (unpublished)).

         To establish personal jurisdiction, a plaintiff must show that (1) a defendant would be subject to the jurisdiction of a court of general jurisdiction where the federal district court is located, and (2) the exercise of jurisdiction would not offend due process. McNamara v. City of Hope Nat'l Med. Ctr., 2:08-CV-118 PK/LFG, 2008 WL 11322210, at *2 (D.N.M. May 29, 2008) (citing United States v. Botefuhr, 309 F.3d 1263, 1271 (10th Cir. 2002)). New Mexico's long arm statute, NMSA 1978 § 38-1-16, applies as far as constitutionally permissible. Tercero v. Roman Catholic Diocese of Norwich, Conn., 2002-NMSC-018, ¶ 6, 132 N.M. 312, 48 P.3d 50. Thus, the inquiry largely becomes whether a defendant has sufficient “minimum contacts” with New Mexico such that subjecting the defendant to the court's jurisdiction would not “offend traditional notions of fair play and substantial justice.” McNamara, supra (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Minimum contacts may be satisfied based on the exercise of general jurisdiction when a defendant's contacts with the forum state are “continuous and systematic.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984). Minimum contacts may also be based on specific jurisdiction on a showing that a 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.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quotations omitted). In other words, the “minimum contacts” standard of the due process clause may be met in either of two ways. When the defendant has “continuous and systematic general business contacts” with the forum state, courts in that state may exercise general jurisdiction over the defendant. Helicopteros Nacionales de Colombia, S.A., v. Hall, 466 U.S. 408, 414-15 (1984); Kuenzle, 102 F.3d at 455. When the “defendant has ‘purposely directed' his activities at residents of the forum, ” courts in that state may exercise specific jurisdiction in cases that “‘arise out of or relate to' those activities.” Burger King v. Rudzewicz, 471 U.S. at 472-73. See also Bell Helicopter Textron, Inc. v. Heliqwest Int'l, Ltd., 385 F.3d 1291, 1295-96 (10th Cir. 2004) (stating that the court must resolve all factual disputes in favor of the plaintiff).


         A. General Jurisdiction

         To support its assertion that this Court lacks general personal jurisdiction, ABMGS submitted the affidavit of William M. Blocker II, the Assistant Secretary and Associate Counsel for Nova Global Supply and Services LLC (NGS), the parent company of Valiant Government Services LLC formerly known as ABMGS. (Mot. Ex. 1, Blocker Aff. ¶ 2.) NGS, a Delaware company with its principal place of business in Virginia, does business under the name Valiant Integrated Services. On May 31, 2017, NGS purchased ABMGS. (Id. ¶ 5.) ABMGS's business is being operated as Valiant Government Services LLC, a Kentucky limited liability company whose principal place of business is Kentucky. (Id. ¶ 6.) On June 22, 2017, ABMGS filed Articles of Amendment stating its name was changed to Valiant Government Services LLC.[3]

         ABMGS first contends that it has insufficient contacts with New Mexico to confer general personal jurisdiction in this district. ABMGS has no registered agent for service in New Mexico. (Mot. Ex. 1 Blocker Aff. ¶ 8.) ABMGS was served through its registered agent in Kentucky. See Affidavit of Service (Doc. No. 5). ABMGS has no office in and owns no property in New Mexico. (Mot. Ex. 1 Blocker Aff. ¶ 8.) ABMGS does not advertise, market, or offer services in New Mexico. (Id.) Neither ABMGS nor Valiant Government Services LLC has been registered to do business in New Mexico. (Id. ¶ 9.) Mr. Blocker averred that Ferguson-Williams LLC (Ferguson) is an Alabama company with a principal place of business in Kentucky. (Id. ¶ 11.) Ferguson was a wholly-owned subsidiary of ABMGS and is now a wholly-owned subsidiary of Valiant Government Services LLC. (Id.) Ferguson has two subsidiaries, which are both New Mexico limited liability companies: (1) TSAY/Ferguson-Williams LLC; and (2) TC&S/F-W, LLC. (Id.) Although Ferguson owns 49% of these subsidiaries, ABMGS and thus Valiant Government Services LLC do not own an interest in them. (Id.) Mr. Blocker states that Valiant Government Services LLC has an affiliated company named Valiant Global Defense Services, Inc., which is a Delaware corporation formed in 1964 with its principal place of business in Virginia. (Id. ¶ 12.) Valiant Global Defense Services, Inc. is not registered to do business in New Mexico. (Id.)

         Plaintiff asserts that an entity named ABM Industries, Inc. is registered to do business in New Mexico and has a registered agent for service of process in New Mexico-- CT Corporation System in Espanola, NM. (Id. ¶ 5.) Plaintiff also avers that ABM Industries, Inc. has an office in Albuquerque located at 7100 Washington St. NE. (Id. ¶ 4.) However, Plaintiff does not allege that she was ever employed by ABM Industries, Inc.[4] In fact, ABM Industries, Inc. is not mentioned in the Complaint. Instead, Plaintiff avers that she was hired by ABMGS, but does not state that she was interviewed or hired in New Mexico. (Compl. ¶ 12.) Plaintiff also fails to allege that ABMGS's separate corporate existence from ABM Industries, Inc. should be disregarded.[5]

         Plaintiff has failed to convince this Court that ABMGS has any affiliation with New Mexico much less affiliations that are “so continuous and systematic as to render [it] essentially at home in the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 138-39 (2014). Therefore, the Court concludes that it lacks general personal jurisdiction over ABMGS.

         B. Discovery Request

         Plaintiff contends that by including Mr. Blocker's affidavit with facts related to ABMGS and its and affiliated entities' contacts, or lack of contacts, with New Mexico, ABMGS has converted the Motion into a motion for summary judgment. Plaintiff argues that this Court should stay the deadlines in this case and allow her to do discovery related to personal jurisdiction. Plaintiff cites New Mexico case law for the proposition that a court must treat a motion to dismiss as a motion for summary judgment when a nonmovant presents matters outside the pleadings. (Resp. at 3 citing Romero v. N.M. Health & Envt'l. Dep't., 1988-NMSC-073, ¶ 3, 107 N.M. 518, 760 P.2d 1282). Plaintiff further asserts that it has long been the law in New Mexico that “a court should not grant summary judgment before a party has completed discovery[.]” Id. (citing Sun Country Sav. Bank of N.M. v. McDowell, 1989-NMSC-043, ¶ 27, 108 N.M. 528, 775 P.2d 730).

         In her affidavit, Plaintiff states that “ABM Industries, Inc., ABM Government Services, LLC provided services in New Mexico.” (Resp. Ex. A Ibrahim Aff. ¶ 3.) However, Plaintiff fails to describe what services these companies provided. Instead, Plaintiff generally asks the Court to allow discovery into factual issues related to ABMGS's contacts with New Mexico. (Resp. Ex. A Plf Aff. ¶ 9.) Plaintiff asserts she is confident she can establish personal jurisdiction with further discovery. (Id. ¶ 8.) Plaintiff intends to submit interrogatories to ABMGS and to other persons who know about ABMGS's “contacts with New Mexico with follow up depositions if appropriate.” (Id. ΒΆ 9.) Although Plaintiff's affidavit describes what discovery should be allowed, Plaintiff fails to indicate how that discovery is likely to identify specific facts that ...

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