K.A. v. Boy Scouts of America et al

Filing 34

MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen granting 7 MOTION to Dismiss for Lack of Personal Jurisdiction by Defendant Sagamore Council, Boy Scouts of America. All claims against Defendant Sagamore Council are dismissed without prejudice. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

K.A.,
Plaintiff,
v.

CIV 17-0021 KBM/KK

BOY SCOUTS OF AMERICA, a congressionally
Chartered corporation, authorized to do business in
New Mexico, and SAGAMORE COUNCIL,
BOY SCOUTS OF AMERICA,
Defendants.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant Sagamore Council, Boy Scouts
of America’s Motion to Dismiss for Lack of Personal Jurisdiction, filed on January 30,
2017. Doc. 7. Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties have
consented to me serving as the presiding judge and entering final judgment. See Docs.
5, 8. Having heard oral argument on this matter (see Doc. 33) and having considered
the record, submissions of counsel, and relevant law, the Court finds that it would
violate due process to exercise jurisdiction over Defendant Sagamore Council in this
forum. Therefore, Defendant’s motion is well-taken and will be granted.
I.

Background
K.A. (Plaintiff) is an adult male who resides in the state of Oregon. Doc. 1-1

(Compl.) ¶ 1. At all times relevant to the events in the Complaint, Plaintiff was an
unemancipated minor resident of the state of Indiana. Id. ¶ 2; see also Doc. 18 at 1.
Defendant Boy Scouts of America (BSA) is a congressionally-chartered not-for-profit

1

corporation registered with the New Mexico Secretary of State. Compl. ¶ 3. BSA’s
principal place of business in New Mexico is listed as the Philmont Scout Ranch
(Philmont) in Cimarron, New Mexico. Id. Defendant Sagamore Council, Boy Scouts of
America (Sagamore) is a not-for-profit corporation organized under the laws of Indiana
with its principal place of business in Kokomo, Indiana. Id. ¶ 4.
BSA issues charters to smaller “non-profit organizations known as Local
Councils.” Doc. 7-1 ¶ 6. 1 While BSA issues charters and provides Scouting materials to
Local Councils, those Local Councils are separate organizations from the BSA with their
own board of directors and financial statements. See id. ¶ 14. Local Councils, such as
Sagamore, then support other, smaller, local groups that wish to establish “Chartered
Organizations” through BSA. See id. ¶¶ 6-7; see also Doc. 7 at 3.
Chartered Organizations organize and operate individual Scouting units. See
Doc. 7-1 ¶ 7. The Chartered Organizations are responsible for selecting adult leaders
and meeting facilities and for providing a representative who will coordinate the
Scouting activities within the organization. Id. ¶ 8. Chartered Organizations must also
“appoint a local troop committee comprised of adult volunteers who are responsible for
selecting and supervising the Scoutmaster and other troop volunteers.” Id. ¶ 10.
Chartered Organizations submit the names of potential volunteers to Local Councils. Id.
¶ 11. Local Councils, like Sagamore, cross-reference potential volunteers’ names
against a list of names of people who have applied to volunteer with the BSA but were

1

Sagamore submitted a declaration from Mr. Christopher Mehaffey, Sagamore’s Scout
Executive/Chief Executive Officer, who provided a sworn statement explaining the BSA’s
organizational structure, the amount of control Sagamore exercises over Chartered
Organizations and troops, et cetera. See Doc. 7-1.

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rejected. See Mot. Hr’g Tr.2 at 13:6-13. Sagamore also conducts criminal background
checks on all potential volunteers the troop committees select. Id. ¶ 15. All volunteers
must be registered with the BSA. Id. ¶ 11.
The Scoutmaster and Assistant Scoutmaster of each troop plan, organize, and
supervise troop activities. See id. ¶ 12. “The selection of activities varies by troop,
based on factors such as the scouts’ interests; the volunteers’ time, abilities, and
willingness; and parents’ approval, among other things.” Id. ¶ 13.
Sagamore neither controls, nor “has the right to control, the Chartered
Organizations or the activities of the local troops so long as they are consistent with
BSA’s program.” Id. Sagamore, however, does help facilitate one scouting activity for
some of the troops in its region: “[a]lmost annually, Sagamore Council organizes a
Council Contingent, which is a group of youth from different units in Sagamore Council’s
region who desire to attend Philmont Scout Ranch in New Mexico.” Id. ¶ 31. The
Council Contingent allows youth from smaller units to combine in order to go to
Philmont. Id. Sagamore helps facilitate the Contingent’s trip by collecting funds and
transmitting those funds to Philmont. Id. Sagamore does not make any other
arrangements for the Council Contingent. Id.
From 1974-1977, when Plaintiff was approximately 10-14 years old, he was a
member of the Boy Scouts of America Troop 512. Compl. ¶¶ 8, 15; Doc. 18 at 1. Troop
512 was a Scouting unit organized by Beamer United Methodist Church (the Chartered
Organization) in Kokomo, Indiana. Compl. ¶ 8; Doc. 18 at 1. Troop 512 and its

2

All citations to the Motion Hearing Transcript are to the court reporter’s unofficial transcript.
Page numbers are subject to change in the official version of the transcript.

3

Chartered Organization were part of Sagamore Council. See Doc. 18 at 1. Randall
Shafer was a Scout Leader for Troop 512. Compl. ¶ 8.
The Complaint alleges that in his capacity as Scout Leader, Shafer sexually
abused Plaintiff on multiple occasions during that three-year period. Id. ¶ 15. “The
sexual abuse occurred during Scouting-related meetings, events and outings.” Id.
“Among other locations, Shafer sexually abused Plaintiff in Arizona; Colorado; Indiana;
Illinois; Michigan; Ohio; Utah; and New Mexico.” Id. During the summer of 1976, Shafer
took Troop 512 (including Plaintiff) on a month-long camping trip to several locations
throughout the Southwest, including a week-long stop at Philmont in New Mexico. Id.
¶ 16. Plaintiff does not allege that the trip through the Southwest or the stop at Philmont
was organized as a “Council Contingent.” See Compl. Shafer allegedly abused Plaintiff
at least six times while at Philmont. Id. ¶ 16. Plaintiff alleges injuries and damages from
the abuse, but he also maintains that he did not remember the abuse until sometime
after January 2014. Id. ¶¶ 22-24.
II.

Legal Standard
Where, as here, the Court holds an evidentiary hearing on the issue of personal

jurisdiction, the plaintiff carries the burden to “establish, by a preponderance of the
evidence, that personal jurisdiction exists.” Dudnikov v. Chalk & Vermilion Fine Arts,
Inc., 514 F.3d 1063, 1070 n.4 (10th Cir. 2008) (citing Dennis Garberg & Assoc., Inc. v.
Pack-Tech Int’l Corp., 115 F.3d 767, 773 (10th Cir. 1997) (internal citation omitted)).
“A New Mexico court may only exercise personal jurisdiction over a non-resident
defendant if three conditions are satisfied.” McManemy v. Roman Catholic Church of
Diocese of Worcester, 2 F. Supp. 3d 1188, 1198 (D.N.M. 2013) (citing Salas v.

4

Homestake Enter., Inc., 742 P.2d 1049, 1050 (N.M. 1987) (internal citation omitted)).
“First, the defendant must have engaged in one of the acts enumerated in New
Mexico’s jurisdictional long-arm statute.” Id. (citing N.M. Stat. Ann. § 38-1-16 (1978)).
“Under the long-arm statute, a person submits himself to personal jurisdiction in New
Mexico if he transacts any business in the state, or if he commits a tortious act within
the state.” Id. (citing N.M. Stat. Ann. § 38-1-16). “Second, the plaintiff’s cause of action
must arise from one of those acts.” Id. (citing Salas, 742 P.2d at 1050). “Finally, the
defendant must have minimum contacts with New Mexico sufficient to satisfy
constitutional Due Process.” Id. (citing Salas, 742 P.2d at 1050).
“New Mexico courts have repeatedly equated the first and third conditions.” Id.
“Because New Mexico's long arm statute extends the jurisdiction of New Mexico courts
as far as constitutionally permissible, the inquiry into whether specific conduct falls
under the statute becomes subsumed by the constitutional Due Process inquiry.” Id. at
1198-99. “The question of personal jurisdiction over out-of-state residents involves more
than a technical ‘transaction of any business’ or the technical ‘commission of a tortious
act’ within New Mexico. The meaning of those terms, in our statute, is to be equated
with the minimum contacts sufficient to satisfy Due Process.” Id. at 1199 (quoting
Tarango v. Pastrana, 616 P.2d 440, 441 (N.M. Ct. App. 1980) (internal citation
omitted)). “To satisfy Due Process requirements, the defendant must have (1) sufficient
minimum contacts with the forum state (2) such that the maintenance of the suit does
not offend ‘traditional notions of fair play and substantial justice.’” Id. (quoting Int’l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945) (internal citations omitted)).

5

To satisfy the minimum contacts prong of the Due Process inquiry, Plaintiff must
establish that the Court may exercise either general or specific jurisdiction over
Sagamore. See id. (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 414 (1984)). Only the exercise of specific jurisdiction is at issue in this case.
“To establish specific jurisdiction, the plaintiff must show that the defendant
‘purposefully directed’ [its] activities at residents of the forum, and that the plaintiff’s
injuries ‘arise out of or relate to’ those activities.” Id. (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985) (internal quotation omitted)). “A defendant
‘purposefully directs’ activities in a forum where the defendant makes (a) an intentional
action that was (b) expressly aimed at the forum state (c) with knowledge that the brunt
of the injury would be felt in the forum.” Id. (citing Shrader v. Biddinger, 633 F.3d 1235,
1239-40 (10th Cir. 2011) (internal quotation omitted)). “This ensures that an out-of-state
defendant is not bound to appear in the forum to account for merely ‘random, fortuitous,
or attenuated contacts’ with the forum.” Id. (quoting Burger King Corp., 471 U.S. at 475
(alterations in original, internal citations omitted)).
If Plaintiff establishes minimum contacts, the Court must then turn to the second
prong of the Due Process inquiry and “determine whether exercising personal
jurisdiction would offend ‘traditional notions of fair play and substantial justice.’” AST
Sports Sci., Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1061 (10th Cir. 2008) (quoting
Asahi Metal Indus. Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102, 113 (1987)
(internal quotations omitted)). Courts examine several factors to determine whether
jurisdiction is unreasonable, including:
(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
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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.
Dudnikov, 514 F.3d at 1080 (quotation and citations omitted).
III.

Analysis
Plaintiff raises two theories in his attempt to establish personal jurisdiction over

Sagamore Council. First, Plaintiff argues that Sagamore purposefully availed itself of
this forum by organizing the Council Contingent to attend Philmont and by collecting
and transferring the Council Contingent’s funds to Philmont. Doc. 18 at 6-7. This
purposeful direction, argues Plaintiff, is sufficient to establish minimum contacts with
New Mexico and subject Sagamore to jurisdiction here. See id. Second, Plaintiff
contends that Shafer acted as Sagamore’s agent, and thus Sagamore is vicariously
liable for Shafer’s tortious conduct in New Mexico. Id. at 7-8.
Plaintiff brings four counts against both BSA and Sagamore: (1) Negligence/
Respondeat Superior; (2) Premises Liability; (3) Sexual Battery of a Child/Respondeat
Superior; and (4) Intentional Infliction of Emotional Distress/Respondeat Superior.
Compl. ¶¶ 25-65. Because “[p]ersonal jurisdiction is a ‘claim-specific inquiry[,] . . . the
Court must analyze each claim to determine whether the requirements for personal
jurisdiction are satisfied.” Ski Racing Inc. v. Johnson, No. 09-CV-1181 MCA/LAM,
Doc. 16 Mem. Opin. & Order at *7 (D.N.M. July 31, 2010) (quoting Seiferth v.
Helicopeteros Atuneros, Inc., 472 F.3d 266, 274 (5th Cir. 2006)).
A.

Exhibits and Discovery

As an initial matter, Sagamore objects to the exhibits attached to Plaintiff’s
response on the basis that they are not authenticated. Doc. 27 at 1 (citing Fed. R. Evid.

7

901, 902). At the motion hearing, counsel for Plaintiff acknowledged that the exhibits are
not authenticated but asserted that they can be authenticated in the event the Court
allows jurisdictional-related discovery. See, e.g., Mot. Hr’g Tr. at 54:22-55:4. The Court
agrees Plaintiff failed to authenticate the exhibits and will not consider them in ruling on
this Motion. Further, the Court finds that even had Plaintiff authenticated the exhibits,
the Court’s decision would remain the same.
Plaintiff has requested jurisdictional-related discovery. See id. at 40:6-13; see
also Doc. 18 at 20. Jurisdictional-related “discovery is meant to allow the parties to flesh
out allegations for which they initially have at least a modicum of objective support.”
McManemy, 2 F. Supp. 3d at 1195 (quotation omitted). The Court is not required,
however, “to permit plaintiff to engage in a ‘fishing expedition’ in the hope of supporting
his claim.” Id. (quoting Martinez v. Cornell Corr. of Tex., 229 F.R.D. 215, 218 (D.N.M.
2005)). “This means that before a court grants discovery, a plaintiff must first provide
some reasonable allegations on which to base the pursuit of discovery.” Id. The Court
finds Plaintiff has failed to provide such reasonable allegations and denies the request
for jurisdictional-related discovery.
B.

Count I

In Count I (negligence), Plaintiff asserts that Sagamore breached its duty to
Plaintiff by:
(a) Failing to exclude Shafer as a Scout Leader;
(b) Failing to restrict Shafer’s activities with Scouts, including K.A.;
(c) Failing to notify parents of Scouts, including K.A.’s parents, about
Shafer and about the risk and dangers of sexual abuse;
(d) Failing to train Scout Leaders, parents, and Scouts in how to
recognize, report and prevent child abuse; and
(e) Failing to implement reasonable child abuse prevention policies.

8

Compl. ¶ 32. Sagamore argues that any negligence as alleged in Count I would have
occurred in Indiana, not in New Mexico. Doc. 7 at 16-17. The Court agrees.
Plaintiff nevertheless argues that the Court has specific jurisdiction over
Sagamore because it purposefully directs its activities toward New Mexico by helping
organize and transfer funds so that scouts from smaller Chartered Organizations may
attend Philmont as part of a “Council Contingent.” Doc. 18 at 5-6. As Sagamore points
out, however, the test to establish jurisdiction is two-pronged: not only must Plaintiff
establish that Sagamore “‘purposefully directed’ [its] activities at residents of the forum,”
Plaintiff must also show that his “injuries ‘arise out of or relate to’ those activities.”
McManemy, 2 F. Supp. 3d at 1199 (quotation omitted). In other words, any injuries
Plaintiff incurred from the negligence described in Count I must arise out of or relate to
Sagamore’s activities helping organize the Council Contingent.
Sagamore argues that even assuming its actions in organizing Council
Contingents qualifies as purposeful direction to residents of New Mexico, Plaintiff has
not established that his injuries in Count I arose out of or relate to those specific actions.
Doc. 7 at 17-18. Once again, the Court concurs. Plaintiff does not assert that the injuries
he incurred due to Sagamore’s negligence in Count I (i.e., failure to exclude Shafer as a
Scout Leader, failure to train Scout Leaders about child abuse, etc.) arose out of or are
related to Sagamore’s actions in organizing Council Contingents. Indeed, Plaintiff does
not allege that he went to Philmont as part of a Council Contingent; rather, Plaintiff
alleges that he was abused in 1976 when “Shafer took Troop 512 . . . on a month-long
camping trip” across many states that included a week-long stop at the Philmont Ranch
in New Mexico. Id. ¶ 16 (emphasis added). Consequently, any negligence on the part of

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Sagamore as described in Count I, and the resulting injuries to Plaintiff because of that
negligence, is unrelated to Sagamore’s conduct in collecting and transmitting funds so
that scouts from smaller troops could go to Philmont. The Court finds Plaintiff has not
met his burden to show minimum contacts to establish specific personal jurisdiction with
respect to Count I.3
C.

Counts II, III, and IV

Plaintiff advances an agency theory to assert minimum contacts for purposes of
Count II (premises liability),4 Count III (sexual battery of a child), and Count IV
(intentional infliction of emotional distress). Doc. 18 at 7-14. New Mexico’s “long-arm
statute provides that the actions of an agent are imputed to the principal for the
purposes of personal jurisdiction.” Santa Fe Techs., Inc. v. Argus Networks, Inc., 42
P.3d 1221, 1231 (N.M. Ct. App. 2002) (citing N.M. Stat. Ann. § 38-1-16(A) (“Any person
. . . who in person or through an agent does any of the acts enumerated . . . submits
himself . . . to the jurisdiction of the courts of this state . . . .”)). “The existence of agency
is a question of fact.” Santa Fe Techs., Inc., 42 P.3d at 1232 (citation omitted).
“An agent is a person who, by agreement with another called the principal,
represents the principal in dealings with third persons or transacts some other business,
manages some affair, or does some service for the principal, with or without
compensation.” Freeman v. Fairchild, 340 P.3d 610, 616 (N.M. Ct. App. 2014) (quoting
3

Plaintiff’s agency theory does not apply to Count I, as the conduct described is specifically that
of Sagamore and BSA, not Shafer.
4

At the motion hearing, the Court asked if Plaintiff was bringing the premises liability claim
against both Defendants, or only against BSA. See Mot. Hr’g Tr. at 54:11-14. Plaintiff’s counsel
responded that the claim is against both Defendants, “because premises liability could be the
owner or occupant.” Id. at 54:15-21. Presumably, the occupant was Shafer, who Plaintiff alleges
is Sagamore’s agent.

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Barron v. Evangelical Lutheran Good Samaritan Soc’y, 265 P.3d 720, 725 (N.M. Ct.
App. 2011) (alteration in original, internal citations omitted). Authority may be actual or
apparent. See Barron, 265 P.3d at 725 (citation omitted).
“[A]ctual authority is determined in light of the principal’s ‘manifestations of
consent’ to the agent . . . .” Romero v. Mervyn’s, 784 P.2d 992, 996 (N.M. 1989)
(quoting Restatement (Second) of Agency § 8 (1958)). “Apparent authority arises from
manifestations by the principal to the third party and can be created by appointing a
person to a position that carries with it generally recognized duties.” Barron, 265 P.3d at
725 (quoting Diversified Dev. & Inv., Inc. v. Heil, 889 P.2d 1212, 1218 (N.M. 1995)
(internal quotation omitted)). “A principal is bound by the acts of his or her agent within
the agent’s actual designated authority and is also bound by the acts of the agent that
the principal ‘holds the agent out to the public as possessing.’” Id. (quoting Fryar v.
Emp’rs Ins. of Wausau, 607 P.2d 615, 618 (N.M. 1980) (internal quotations omitted).
“Furthermore, ‘a principal . . . is responsible for the acts of the agent when the principal
has clothed the agent with the appearance of authority.’” Id. (quoting Romero v.
Mervyn’s, 784 P.2d 992, 996 (N.M. 1989).
Plaintiff argues that the following allegations demonstrate Shafer was
Sagamore’s agent: (1) volunteers must be submitted to Sagamore; (2) Sagamore crossreferences potential volunteer names against a list of banned volunteers and also
performs a background check on potential volunteers; (3) Sagamore transmits volunteer
names to BSA; (4) Sagamore helps organizations obtain a charter and provides training
and resources to Chartered Organizations; (5) Sagamore “accepted Randall Shafer as
Scout Leader”; (6) Sagamore “authorized and empowered Shafer to perform all duties

11

of a Scout Leader including the authority and power: to provide instruction, counseling,
moral guidance, and physical supervision of boys participating in Boy Scout programs
and activities; to enforce the rules governing the boys’ participation; and to undertake
other duties”; and (7) Sagamore and BSA “retained the right to control the means and
methods used by Scout Leaders, including Shafer, in fulfilling these duties . . . .”5
Compl. ¶¶ 8-9; Doc. 18 at 9-14. Plaintiff never specifies whether he believes Shafer had
actual or apparent authority. Ultimately, the Court finds Plaintiff fails to show that Shafer
was Sagamore’s agent under either theory.
To overcome Plaintiff’s allegations, Sagamore provided a sworn statement from
Mr. Mehaffey, who details the hierarchy of the BSA and discusses the amount of control
Sagamore retains over Chartered Organizations and troops. See Doc. 7-1. Mr.
Mehaffey states that Sagamore neither controls, nor “has the right to control, the
Chartered Organizations or the activities of the local troops so long as they are
consistent with BSA’s program.” Id. ¶ 13. Sagamore did not select Shafer to be a Scout
leader, nor did Sagamore supervise Shafer once he became a leader. Id. ¶ 15. In fact, it
was the local Chartered Organization (Beamer United Methodist Church) that would
have appointed a local troop committee, which would have been responsible for
selecting and supervising Shafer as a troop volunteer. Id. ¶ 10.
Plaintiff offered no evidence – either admissible or inadmissible – that contradicts
Mehaffey’s sworn statement. Nor did Plaintiff tell the Court “what specific documents
[he] would have sought in discovery” that would help establish personal jurisdiction. See

5

Plaintiff made several other allegations relating to evidence of an agency relationship, but the
Court will not consider allegations related to the unauthenticated exhibits attached to Plaintiff’s
Response.

12

Grynberg v. Ivanhoe Energy, Inc., 490 F. App’x 86, 104 (10th Cir. 2012) (quoting
Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173,
1190 (10th Cir. 2010)). Plaintiff jumps to the legal conclusion in his Complaint that
Shafer was Sagamore’s employee (see Compl. ¶ 17), but the Court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986) (internal citations omitted)). Ultimately the Court finds that Plaintiff’s mere
speculations are not sufficient to establish by a preponderance of the evidence that
Shafer was Sagamore’s agent; hence, Plaintiff has not demonstrated that Sagamore
has sufficient minimum contacts with this forum. See Dudnikov, 514 F.3d at 1070 n.4
(citation omitted).
D.

Exercising jurisdiction would be unreasonable.

Even if Plaintiff had successfully demonstrated minimum contacts with New
Mexico, exercising jurisdiction over Sagamore would not “comport with ‘fair play and
substantial justice’” for any of Plaintiff’s claims. See Burger King Corp., 471 U.S. at 476
(quotation omitted). Once minimum contacts were shown, it would be Sagamore’s
burden “to present a compelling case that the presence of some other considerations
would render jurisdiction unreasonable.” Dudnikov, 514 F.3d at 1080 (internal quotation
marks and citation omitted). In examining the five factors, the Court finds Sagamore has
met its burden to show that exercising jurisdiction would be unreasonable. See id.
1.

Burden on the Defendant

Because the parties and witnesses come from several different states, travel will
be necessary no matter where the case is heard. See Docs. 7 at 19; 18 at 15. It was the

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Plaintiff’s choice, however, to file the case in New Mexico. Consequently, the burden on
Sagamore is understandably heavier, as it resides in Indiana and it did not choose to
litigate in this forum.
2.

New Mexico’s interest in resolving the dispute

“New Mexico may have a substantial and legitimate interest in adjudicating a
claim” of a minor who was injured in the state. See Trujillo v. Williams, 465 F.3d 1210,
1221 (10th Cir. 2006) (citation omitted). The State of Indiana, however, “has an equally
strong, if not greater, interest in” adjudicating a claim by a plaintiff who was a resident of
Indiana at the time of the events, against a not-for-profit organized under the laws of
Indiana. See id.
3.

Plaintiff’s interest in receiving convenient and effectual relief

Plaintiff argues that New Mexico is more convenient for him, because Indiana’s
“repressed memory” exception to the statute of limitations is more restrictive than New
Mexico’s exception and may therefore bar his claims. Id. The Court finds this
unpersuasive for at least three reasons. First, the Court notes that Plaintiff neither cited
N.M. Stat. Ann. 1978 § 37-1-30 (1995), the statute of limitations for claims arising from
child sexual abuse, nor specifically discussed whether the statute of limitations on his
claims would be tolled pursuant to that statute.6 See Compl.; Doc. 18.

6

Pursuant to section 37-1-30, “[a]n action for damages based on personal injury caused by
childhood sexual abuse shall be commenced by a person before the latest of” either “(1) the first
instant of the person’s twenty-fourth birthday; or (2) three years from the date that a person first
disclosed the person’s childhood sexual abuse to a licensed medical or mental health care
provider in the context of receiving health care from the provider.” N.M. Stat. Ann. § 37-1-30(A).
Because Plaintiff is approximately 53 years old (see Compl. ¶ 16), he would need to rely on the
second exception. Plaintiff has not alleged that he disclosed the abuse to any health care
provider within the past three years.

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Second, while it is clear Plaintiff would prefer the Court apply New Mexico
substantive law to this case, the Court is not convinced New Mexico law should be
applied. New Mexico courts employ the doctrine of lex loci delicti commissi – the “place
of the wrong” approach – to choice of law questions in tort actions. Guidance
Endodontics, LLC v. Dentsply Int’l, Inc., 749 F. Supp. 2d 1235, 1257 (D.N.M. 2010)
(quoting Terrazas v. Garland & Loman, Inc., 142 P.3d 374, 377 (N.M. Ct. App. 2006)
(internal citation omitted)). “The lex loci delicti rule defines the state where the wrong
occurred as ‘the state where the last event necessary to make an actor liable for an
alleged tort takes place.’” Id. (quoting Restatement (First) Conflicts of Law § 377 & cmt.
a (1934); citing Zamora v. Smalley, 358 P.2d 362, 363 (1961)). In his Complaint,
Plaintiff alleges he was abused in many states, including Indiana. In discussing this
issue at the motion hearing, the Court pointed out that the last event necessary to make
Sagamore liable for any abuse likely occurred in Indiana, where it appears that Shafer
first abused Plaintiff. See Mot. Hr’g Tr. at 28:25-29:24. Counsel for Plaintiff agreed7 and
moved to amend the Complaint, so that the only addressable abuse in this case would
be that which occurred in New Mexico.8 See id. Besides the obvious difficulties in how a
jury could separate out the impact of alleged abuse that occurred in other states both
before and after Plaintiff’s Philmont experience, the Court finds that such a request
smacks of forum shopping and denies the motion to amend.
7

Specifically, counsel for Plaintiff said the allegations of abuse from seven different states were
included “to get past the Iqbal/Twombly hurdle of possibilities.” Mot. Hr’g Tr. at 29:4-10.
8

Plaintiff’s counsel admitted that transferring the case to Indiana – even if New Mexico’s
substantive law were applied – would be deleterious to Plaintiff’s claims. See id. at 51:17-52:14.
If an Indiana court hears the case, Indiana procedural law will apply, regardless of what
substantive law applies. Id. Consequently, it appears that Indiana’s statute of limitations will bar
Plaintiff’s claims. Id.

15

Third, there is “no particular reason to believe that due process requires [Plaintiff]
to be able to file his suit in a single forum in order to receive convenient and effective
relief.” Trujillo, 465 F.3d at 1221-22. “To the extent that [Plaintiff] must file separate
lawsuits in two forums, the New Mexico defendant[] will be held accountable for [its]
conduct in New Mexico, and the [Indiana] defendant[ ] will be held accountable for [its]
conduct in” Indiana. Id. at 1222 (citation omitted).
4.

The most efficient resolution of controversies

With respect to the fourth factor, as to Sagamore Council, Indiana “seems to be
the most efficient place to litigate the dispute[,] because the wrong[s] alleged” in Counts
I, III, and IV – negligence in allowing Shafer’s participation and in failing to train and
implement child abuse prevention policies, and at least some of the incidents of abuse –
occurred in Indiana. See Intercon, Inc. v. Bell Atl. Internet Sols., Inc., 205 F.3d 1244,
1249 (10th Cir. 2000).
5.

The shared interest of the states

Finally, the Court finds Indiana’s interest in regulating and deterring conduct by a
not-for-profit in its borders to be substantial. Moreover, Indiana’s interest in deterring
criminal conduct by an Indiana resident that occurred both inside and outside of its
borders, as well as its interest in protecting its own statutes of repose, weigh heavily in
favor of an Indiana forum.
Upon balancing these five factors, the Court finds that exercising jurisdiction over
Sagamore Council for any of Plaintiff’s claims would violate due process.

16

IV.

Conclusion
The Court finds that Plaintiff has failed to establish Sagamore has minimum

contacts sufficient for the Court to exercise specific jurisdiction over it for purposes of
Count I. Plaintiff asserted an agency theory to assert minimum contacts for Counts II, III,
and IV, but Plaintiff has failed to demonstrate that Shafer acted as Sagamore’s agent.
Moreover, Sagamore demonstrated that exercising jurisdiction over it for any claim
would not comport with traditional notions of fair play and substantial justice.
Wherefore,
IT IS HEREBY ORDERED that Defendant Sagamore Council, Boy Scouts of
America’s Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 7) is granted.
Plaintiff’s claims against Sagamore Council are dismissed without prejudice.

________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent

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