Ramos v. Foam America, Inc., et al

Filing 220

MEMORANDUM OPINION AND ORDER denying 211 Motion to Strike; and granting 167 Motion to Dismiss for Lack of Jurisdiction by Chief Magistrate Judge Carmen E. Garza. (jrt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
REFUGIO RAMOS,
Plaintiff,
v.

CIV No. 15-980 CG/KRS

FOAM AMERICA, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendants Reeves Roofing Equipment Co.,
Inc., JNR Enterprises, Inc., Joe Reeves, John Reeves, and Amy Reeves’ (collectively the
“Reeves Defendants”) Motion to Dismiss for Lack of Personal Jurisdiction (the “Motion to
Dismiss”), (Doc. 167), filed August 21, 2017; Defendants Great Northern Building
Products, Great Northern Holding, LLC, and Harrisonville Equipment Company’s
Response in Opposition to Defendants Reeves Roofing Co., Inc., JNR Enterprises, Inc.,
Joe Reeves, John Reeves, and Amy Reeves’ Motion to Dismiss (the “Great Northern
Response”), (Doc. 168), filed September 5, 2017; Plaintiff Refugio Ramos’ Response to
Defendants Reeves Roofing Equipment Co., Inc., N/K/A JAJ Equipment, Inc., JNR
Enterprises, Inc., Joe S. Reeves, John Reeves, and Amy Reeves’ Motion to Dismiss for
Lack of Personal Jurisdiction (“Plaintiff’s Response”), (Doc. 171), filed September 5,
2017; and the Reeves Defendants’ Reply in Support of Their Motion to Dismiss for Lack of
Personal Jurisdiction (the “Reply”), (Doc. 189), filed October 10, 2017.
Also before the Court are Plaintiff’s Objection to Defendant JAJ Equipment, Inc.,
F/K/A Reeves Roofing Equipment Co., Inc.’s Motion to Dismiss for Lack of Personal
Jurisdiction and Notice of Waiver (the “Objection”), (Doc. 192), filed October 22, 2017; the

Reeves Defendants’ Motion to Strike or Disregard Plaintiff’s “Objection” to Their Motion to
Dismiss (the “Motion to Strike”), (Doc. 211), filed January 5, 2018; Plaintiff’s Response in
Opposition to Reeves Defendants’ Motion to Strike or Disregard Plaintiff’s Objection to
Their Motion to Dismiss (Doc. 211) (the “Response to the Motion to Strike”), (Doc. 215),
filed January 17, 2018.
After reviewing the briefing, the Court finds that it may consider the argument
Plaintiff raises in the Objection, but that the Court lacks personal jurisdiction over the
Reeves Defendants. Therefore, for the following reasons, the Reeves Defendants’
Motion to Strike is DENIED and the Reeves’ Defendants’ Motion to Dismiss is
GRANTED.
I.

Background
This case arises from injuries Plaintiff suffered on a commercial roofing job while

employed by Defendant C. Ortiz Corporation (“C. Ortiz”). Plaintiff was injured when a tar
lugger overturned and spilled hot tar onto him. (Doc. 192 at 1-2). The tar lugger involved
in the incident was designed, manufactured, marketed, and sold by defendant Reeves
Roofing Equipment Co., Inc. (“Reeves Roofing”), a Texas corporation. Defendants Joe
Reeves, John Reeves, and Amy Reeves (the “Individual Reeves Defendants”) were
employees and officers of Reeves Roofing before its sale to Defendant Great Northern
Holdings, LLC (“Great Northern”). (Docs. 167 at 4; 171 at 2). Following its sale, Reeves
Roofing changed its name to JAJ Equipment, Inc. (“JAJ”)1 and ceased operation. (Doc.
167 at 2). Defendant JNR Enterprises, Inc. (“JNR”), another Texas corporation, is a
holding company. JNR is the sole shareholder of JAJ, and leased land to JAJ on which
JAJ manufactured roofing equipment. (Doc. 167-1 at 2).
1 For clarity and ease of reference, the Court will refer to both Reeves Roofing and JAJ as “JAJ.”

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After his injury, Plaintiff brought claims against the Reeves Defendants alleging
strict liability, recklessness, and negligence in designing, manufacturing, marketing, and
selling the tar lugger. (Doc. 85 at 5-6) (Amended Complaint). Plaintiff alleged that JAJ and
JNR are Texas corporations doing business in New Mexico and that the Individual
Reeves Defendants participated in designing and marketing the tar lugger. Id. at 2, 4. In
its Answer to the Amended Complaint, JAJ denied that it does business in New Mexico,
(Doc. 93 at 2), while JNR and the Individual Reeves Defendants filed a Motion to Dismiss
for Lack of Personal Jurisdiction (the “First Motion to Dismiss”), (Doc. 102). Plaintiff then
moved to stay a ruling on the First Motion to Dismiss and to allow ninety days of
jurisdictional discovery. (Doc. 106). JNR and the Individual Reeves Defendants
consented to discovery provided it was narrowly tailored to facts related to personal
jurisdiction. (Doc. 108). The other Defendants in this case did not oppose allowing
jurisdictional discovery, but they preferred to proceed with general discovery rather than
wait for a ruling on the First Motion to Dismiss. (Doc. 115). Accordingly, the Court ordered
ninety days of jurisdictional discovery and allowed general discovery against the rest of
the Defendants, including JAJ. Id.
Jurisdictional discovery revealed the following facts. JAJ was originally founded
and incorporated in Texas in 1966 and manufactured roofing equipment, including tar
luggers. (Doc. 167-1 at 3). Between 2010 and 2011, JAJ sold to four customers in New
Mexico: The Flashing Company and L&P Building Supply in Las Cruces, NM; Reed
Roofing and Construction Co. in Clovis, NM; and Albuquerque Equipment and Roofing
Supply (“Albuquerque Equipment”) in Albuquerque, NM. (Doc. 167-7 at 7-10). In fiscal
year 2008-2009, JAJ made no sales to New Mexico-based customers, and in fiscal year
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2009-2010, JAJ made one sale to The Flashing Company. (Doc. 167-3 at 1-6). Ms.
Reeves estimated making 50 sales to New Mexican customers over 20 years, though she
was not the main order receiver, (Doc. 167-1 at 6), and sales were not made every year,
(Doc. 167-1 at 7).
JAJ owned no property and maintained no physical presence in New Mexico, nor
did it send agents or salespeople into New Mexico. Rather, JAJ considered Albuquerque
Equipment its “distributor.” (Doc. 167-1 at 7). JAJ provided Albuquerque Equipment with
brochures of its products and included Albuquerque Equipment on its mass email list. Id.
If a customer from New Mexico called JAJ, JAJ would refer the customer to Albuquerque
Equipment. Id. If Albuquerque Equipment did not have what the customer needed, the
customer could call JAJ directly. Id. JAJ’s representatives also occasionally spoke with
Albuquerque Equipment’s employees. (Doc. 167-1 at 4, 7). JAJ had a practice of
extending credit to customers and calling references as part of a credit check, but JAJ did
not extend credit to anyone in New Mexico. Id.
Regarding the particular tar lugger involved in this case, JAJ did not sell it to
Albuquerque Equipment or any other New Mexico customer. Rather, C. Ortiz bought the
tar lugger in El Paso, Texas, from another roofing company and brought it into New
Mexico. (Doc. 167-8 at 2). C. Ortiz purchased several tar luggers and does not know
which one contributed to Plaintiff’s injuries. Id. at 3.
Following jurisdictional discovery, the Reeves Defendants, including JAJ, filed the
Motion to Dismiss. (Doc. 167). The Reeves Defendants argue they lack the sufficient
minimum contacts with New Mexico for the Court to exercise personal jurisdiction over
them, and even if they did have sufficient contacts, they claim exercising jurisdiction over
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them would “offend traditional notions of fair play and substantial justice.” Id. at 10. In
Plaintiff’s Response, he argues that these defendants are subject to personal jurisdiction,
that exercising personal jurisdiction over them would not offend traditional notions of fair
play and substantial justice, and that the Reeves Defendants are alter-egos of one
another, therefore if the Court has jurisdiction over one of them, the Court has jurisdiction
over all of them. (Doc. 171). In their Reply, the Reeves Defendants dispute Plaintiff’s
contentions that their contacts with New Mexico are sufficient to establish personal
jurisdiction over them. (Doc. 189 at 2-12). The Reeves Defendants did not reply to
Plaintiff’s alter-ego argument.
Great Northern opposes dismissing the Reeves Defendants because the Reeves
Defendants agreed to indemnify, defend, and hold Great Northern harmless as part of
their purchase agreement. (Doc. 168 at 2-3). Great Northern only opposed the Motion to
Dismiss to preserve these rights and does not argue that the indemnification clause
confers personal jurisdiction. Id. The Reeves Defendants also did not reply to Great
Northern’s Response.
After the Reeves Defendants filed their Reply and a Notice of Completion of
Briefing, (Doc. 190), Plaintiff filed his Objection, arguing for the first time that JAJ has
waived its right to assert the Court lacks personal jurisdiction over it. (Doc. 192). Plaintiff
contends that JAJ waived this defense because it “did not challenge” personal jurisdiction
in its answer to the amended complaint, (Doc. 93), and was not a party to the First Motion
to Dismiss. (Doc. 192 at 1-2). The Reeves Defendants did not respond to the Objection.
Instead, the Reeves Defendants filed the Motion to Strike, stating the Court should
either strike the Objection from the record or at least disregard the arguments therein.
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(Doc. 211). The Reeves Defendants first claim the Objection is an improper surreply filed
without leave of court. Id. at 1-4. Second, according to the Reeves Defendants, Plaintiff’s
waiver argument is meritless because JAJ denied Plaintiff’s only jurisdictional allegation,
(Doc. 93 at 2), and lack of personal jurisdiction is not an affirmative defense that must be
pled in an answer. (Doc. 211 at 4-6).
In response to the Motion to Strike, Plaintiff first denies that his Objection should be
ignored because it is procedurally improper. Rather, he says, under the applicable
Federal Rules of Civil Procedure, plaintiffs cannot waive their right to assert a defendant
has waived its right to assert lack of personal jurisdiction. (Doc. 215 at 5-9). Second,
Plaintiff disputes that he is substantively incorrect. Assuming for the sake of argument
that JAJ sufficiently raised lack of personal jurisdiction in its answer, Plaintiff instead
argues that JAJ has waived the defense through its conduct and participation in this case.
Id. at 9-12. The Reeves Defendants have not filed a reply in support of the Motion to
Strike, and the time for doing so has passed.
The Motion to Dismiss, Objection, and Motion to Strike all affect the ultimate
question before the Court: are the Reeves Defendants subject to the Court’s jurisdiction?
Because the Motion to Strike and the Objection relate to what arguments and which
defendants are properly before the Court, the Court will start with those. The Court will
then discuss whether or not it has personal jurisdiction over the Reeves Defendants.
II.

Analysis
a. Whether the Court should strike or disregard Plaintiff’s Objection

In his Objection, Plaintiff argues JAJ has waived its right to assert lack of personal
jurisdiction. Plaintiff did not argue this in his Response and filed the Objection after
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briefing on the Motion to Dismiss was complete. The Reeves Defendants responded by
moving to strike or disregard the Objection because it is a surreply that Plaintiff filed
without leave of Court, which is required under Local Rule of Civil Procedure 7.4(b). (Doc.
211 at 3-4) (citing D.N.M.LR-Civ. 7.4(b)). In response, Plaintiff claims he is entitled to
raise his waiver argument at any time, including on appeal. (Doc. 215 at 4-9).
A surreply is a movant’s second reply to another’s party’s opposition to a motion.
Surreply, Black’s Law Dictionary (10th ed. 2014). Technically, Plaintiff’s Objection is a
surresponse: a second response by someone who opposes a motion, filed after a
movant’s reply. Surresponse, Black’s Law Dictionary (10th ed. 2014). However, the terms
have been used interchangeably. See Walker v. THI of N.M. at Hobbs Center, 2011 WL
2728344, at *1 (D.N.M. July 6, 2011) (unpublished). Filing a surreply requires leave of
court and should be allowed when a reply raises new arguments. Id. Here, Plaintiff did not
request leave of Court to file the Objection, and the Reeves Defendants’ Reply did not
raise any new arguments, so a surreply was not warranted.
Nonetheless, Plaintiff argues his Objection should not be stricken given the strict
provisions of Fed. R. Civ. P. 12(h). Under Rule 12(h), a party waives certain defenses,
including lack of personal jurisdiction, by failing to include them in an answer or
pre-answer motion. Fed. R. Civ. P. 12(h)(1)(B). The rule “reflects a strong policy against
tardily raising defenses that go not to the merits of the case but to the legal adequacy of
the initial steps taken by the plaintiff.” Myers v. Am. Dental Ass’n, 695 F.2d 716, 721 (3rd
Cir. 1982). Additionally, the rule “benefits the court as well as the opposing party by
requiring the litigant to raise certain technical objections, the basis of which should be
apparent from the outset of the action, before litigation has moved forward.” Id.
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In Myers, the American Dental Association (“ADA”) moved to dismiss the
complaint due to improper venue, which the trial court denied. Id. at 719; see Fed. R. Civ.
P. 12(b)(3). Then, on appeal, the ADA challenged whether the trial court had personal
jurisdiction over it. Id. The plaintiff did not object to the ADA untimely raising its
jurisdictional defense until after briefing was complete, and the ADA argued the plaintiff
lost its right to argue later that the ADA had waived the jurisdictional defense under Rule
12(h). Id. at 721.
Relying on Pila v. G.R. Leasing & Rental Corporation, 551 F.2d 941 (1st Cir. 1977),
the Third Circuit Court of Appeals rejected the idea that the plaintiff waived its 12(h)
argument by failing to object earlier. Id. The Third Circuit agreed with the First Circuit that
waiver under Rule 12(h) is a “fundamental and incurable matter,” and stated “it may
sometimes be appropriate for an appellate court to enforce [Rule 12(h)] sua sponte.” Id.
(quoting Pila, 551 F.2d at 943). In a similar situation, the New Mexico Court of Appeals
held that raising a Rule 12(h) defense is timely as long as it has been raised before trial.
See Rupp v. Hurley, 1999-NMCA-057, ¶¶ 34-43, 127 N.M. 222, 979 P.2d 733 (treating an
objection based on Rule 12(h)(1) as “failure to state a legal defense” under Rule 12(h)(2)).
Given the policy behind Rule 12(h) and the foregoing persuasive authority, the
Court agrees that Plaintiff has not forfeited its argument that JAJ has waived its
jurisdictional defense under Rule 12(h). The Rule requires defendants to raise
preliminary, technical arguments early in litigation, and as discussed, this is for the
Court’s and the parties’ benefit. Plaintiff has raised the argument prior to trial or resolution
of any claims on their merits, so the Court can consider this argument without affecting
any other parties’ claims and defenses. The Court will therefore deny the Motion to Strike,
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despite the fact Plaintiff filed the Objection without leave of court, and will consider
whether JAJ has waived its right to argue lack of personal jurisdiction.
b. Whether JAJ waived its right to argue lack of personal jurisdiction
Between his Objection and his Response to the Motion to Strike, Plaintiff argues
JAJ waived its right to argue the Court lacks jurisdiction over it for two reasons, one
procedural and one substantive. Procedurally, Plaintiff contends JAJ waived its right
under the Federal Rules of Civil Procedure. Substantively, Plaintiff claims JAJ waived its
right by participating in this case. The Court will address each in turn.
i. Whether JAJ waived the defense under Fed. R. Civ. P. 12(h)
As discussed, Rule 12(h) provides that a defendant waives lack of personal
jurisdiction as a defense if it is not included in an answer or a pre-answer motion. Fed. R.
Civ. P. 12(h)(1). Plaintiff argues that because JAJ “failed to challenge personal
jurisdiction” in its answer and was not a party to the First Motion to Dismiss, JAJ waived
the defense. (Doc. 192 at 3). JAJ counters that it denied Plaintiff’s jurisdictional allegation,
which was enough to include it in its responsive pleading under Rule 12(h). (Doc. 211 at
4-5).
In a thorough opinion, United States District Judge James O. Browning wrote that
denying a jurisdictional allegation is sufficient to preserve a personal jurisdiction defense.
Fabara v. GoFit, LLC, 308 F.R.D. 380 (D.N.M. 2015). Judge Browning concluded as
much for three reasons. First, lack of personal jurisdiction is not an affirmative defense
under the Federal Rules of Civil Procedure and other authorities. Id. at 399; see Fed. R.
Civ. P. 12(c). Second, courts that have considered the issue agree that denying
jurisdiction is sufficient to preserve the defense. Id. (discussing cases). Finally, “forcing
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defendants to plead lack of personal jurisdiction as an affirmative defense would elevate
form over substance and contravene the federal rules’ liberal pleading philosophy.” Id. at
400. Accordingly, because the defendant in Fabara denied jurisdiction was appropriate in
its answer, the defendant preserved the defense under Rule 12(h). Id.
Here, just as in Fabara, JAJ denied Plaintiff’s jurisdictional allegation in its answer.
(Doc. 93 at 2). Plaintiff claims JAJ failed to assert a jurisdictional challenge because JAJ
did not mention Rule 12 or mention lack of personal jurisdiction. Following Fabara’s
reasoning though, JAJ was not required to state lack of personal jurisdiction as an
affirmative defense or otherwise formally plead it. The Court therefore finds that JAJ
adequately preserved its personal jurisdiction defense in its answer by denying Plaintiff’s
jurisdictional allegation.
ii. Whether JAJ waived the defense through its conduct
Plaintiff also argues that JAJ has implicitly waived its defense through its conduct
in this case. Specifically, Plaintiff contends JAJ forfeited its defense by waiting eleven
months to file the Motion, participating in discovery, and not repeating its denial of
jurisdiction in its discovery responses. (Doc. 215 at 10-12). Plaintiff contrasts this case
with Fabara, where the defendant filed a motion to dismiss three months after filing its
answer, asserted the defense in the Joint Status Report, and did not participate in
discovery. Fabara, 308 F.R.D. at 400. Plaintiff also cites Schwartz v. M/V Gulf Supplier,
116 F.Supp.2d 831 (S.D.Tex. 2000), for the proposition that delay as short as nine
months is sufficient to find implicit waiver. (Doc. 93 at 12).
Actively participating in a case implicitly waives a jurisdictional objection when
participation “manifests an intent to submit to the court’s jurisdiction.” Yeldell v. Tutt, 913
10

F.2d 533, 539 (8th Cir. 1990). Participation includes engaging in discovery, taking part in
settlement conferences, and filing and opposing motions for relief on the merits. See id.;
see also Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2nd Cir. 1999); Bel-Rey Co. v.
Chemrite (Pty) Ltd., 181 F.3d 435, 443-444 (3rd Cir. 1999). How long a defendant takes to
file a motion to dismiss is a factor, but “the passage of time alone is generally not sufficient
to indicate forfeiture.” Hamilton, 197 F.3d at 61. Rather, “the time period provides the
context in which to assess the significance of the defendant’s conduct.” Id. Courts have
placed particular weight on a defendant’s request for relief on the merits. See Bel-Rey
Co., 181 F.3d at 443-444 (defendant moved for summary judgment on its counterclaim);
Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1296-97 (7th Cir. 1993) (defendants filed
and defended motions related to counterclaims); Yeldell, 913 F.2d 533 at 539 (defendant
did not assert lack of personal jurisdiction until after trial); cf. Thompson v. United States,
312 F.2d 516, 519-20 (10th Cir. 1962) (holding appellant waived improper venue defense
by filing a motion for summary judgment).
In this case, JAJ has participated in discovery, which weighs in favor of finding
waiver. Additionally, JAJ did not reassert its lack of jurisdiction defense in the Joint Status
Report or other discovery responses, which the court found persuasive in Fabara. 380
F.R.D at 400; see also Brokerwood Intern. (U.S.), Inc. v. Cuisine Crotone, Inc., 104 Fed.
Appx. 376, 380-81 (5th Cir. 2004) (unpublished). On the other hand, JAJ has not filed any
counterclaims, requested relief on the merits, or taken part in any settlement
conferences. JAJ filed the Motion nearly one year after asserting its lack of personal
jurisdiction defense, but JAJ did so after jurisdictional discovery provided evidence
supporting its denial that jurisdiction is appropriate. In context, this conduct and delay
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does not manifest intent to submit to the Court’s jurisdiction. Accordingly, the Court finds
JAJ did not waive its personal jurisdiction defense through its conduct in this case.
Plaintiff emphasizes that the District Court for the Southern District of Texas found
waiver after only nine months’ delay. (Doc. 215 at 11-12) (citing Schwartz, 116 F.Supp.2d
at 835). But, the delay itself was not what was significant in Schwartz. Rather, the court
found the defendant waived its defense by raising it “in a dilatory manner . . . on the eve of
trial.” Schwartz, 116 F.Supp.2d at 835. The court recognized that nine months “may not
be a long time in many courts,” but its “average trial track is less than nine months.” Id. at
835 n.1. No trial is set in this case; in fact, the parties are still completing discovery. (Doc.
219). And again, “the passage of time alone is generally not sufficient to indicate
forfeiture.” Hamilton, 197 F.3d at 61. Despite its participation in discovery, the Court does
not find that JAJ has implicitly conceded jurisdiction and thereby waived its defense.
c. Whether the Court has personal jurisdiction over the Reeves Defendants
i. Burden of Proof
Having determined that JAJ has not waived its jurisdictional defense, the Court
must now consider whether it has jurisdiction over it and the rest of the Reeves
Defendants. Plaintiffs bear the burden of proving jurisdiction when it is contested. Wenz v.
Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995) (citation omitted). When a court
does not have personal jurisdiction over defendants, it must dismiss the claims against
those defendants without prejudice. See Albert v. Smith’s Food & Drug Centers, Inc., 356
F.3d 1242, 1249 (10th Cir. 2004) (“In cases where the district court has determined that it
lacks jurisdiction, dismissal of a claim must be without prejudice.”); Walker v. THI of N.M.
at Hobbs Center, 801 F. Supp. 2d 1128, 1140-41 (D.N.M. 2011).
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When a motion to dismiss for lack of personal jurisdiction is decided on affidavits
and other written materials, plaintiffs must make a prima facie showing that jurisdiction
exists, which is a “light” burden. Id. (citation omitted). This means plaintiffs must present
facts that, if true, establish jurisdiction over the defendant. OMI Holdings, Inc. v. Royal Ins.
Co. of Can., 1479 F.3d 1086, 1091 (10th Cir. 1998). If plaintiffs make a prima facie
showing of jurisdiction, “defendants must present a compelling case demonstrating ‘that
the presence of some other considerations would render jurisdiction unreasonable.’” Id.
(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)).
Factual disputes must be resolved in plaintiffs’ favor when the parties present
conflicting affidavits, and a prima facie showing is sufficient notwithstanding defendants’
contrary evidence. Wenz, 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 affidavits.” Doe v.
Nat’l Med. Servs., 974 F.2d 143, 145 (10th Cir. 1992). However, only well pled facts must
be taken as true, as opposed to conclusory allegations. Wenz, 55 F.3d at 1505. Further,
the Court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
Finally, plaintiffs must show that exercising jurisdiction is sanctioned by the state’s
long-arm statute and is consistent with due process under the Fourteenth Amendment.
Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1166 (10th Cir. 2011). New Mexico’s
long-arm statute “extends the jurisdictional reach of New Mexico courts as far as
constitutionally permissible.” United Nuclear Corp. v. General Atomic Co.,
1977-NMSC-079, ¶ 2, 91 N.M. 41, 570 P.2d 305. The Court therefore does not need to

13

conduct a statutory analysis separate from its due process analysis. Marcus Food Co.,
671 F.3d at 1166.
ii. Personal Jurisdiction and Due Process
In order to exercise personal jurisdiction over a defendant, due process first
requires that the defendant have sufficient “minimum contacts” with the forum state such
that the defendant “should reasonably anticipate being haled into court there.” Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 473-76 (1985). For example, a defendant should
reasonably anticipate litigation in a forum state when the defendant has “purposefully
directed” its activities at residents of the forum and the litigation arises from or relates to
those activities. Id. at 472. Jurisdiction in this context is called specific jurisdiction. Daimler
A.G. v. Bauman, 134 S. Ct. 746, 755 (2014). General jurisdiction, by contrast, is
jurisdiction over litigation that does not arise from a defendant’s contacts with the forum
state. See id. at 880-81. A defendant has minimum contacts necessary for general
jurisdiction when the defendant’s contacts with the forum state are “so ‘continuous and
systematic’ so as to render them essentially at home in the forum state.” Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
If a defendant has minimum contacts with a forum state, due process then requires
that exercising jurisdiction would not “offend traditional notions of fair play and substantial
justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quotation omitted); see
OMI Holdings, 149 F.3d at 1091; Fabara, 308 F.R.D. at 406 (“Because the Court found
minimum contacts lacking, it is unnecessary to proceed to the second step of the due
process analysis.”). Courts typically consider five factors in making this determination: (1)
the burden on the defendant; (2) the forum state’s interest in resolving the dispute; (3) the
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plaintiff’s interest in receiving convenient and effective relief; (4) the interstate judicial
system’s interest in obtaining the most efficient resolution of the case; and (5) a shared
interest in promoting public policy. See Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514
F.3d 1063, 1080 (10th Cir. 2008); Zavala v. El Paso Cty. Hosp. Dist., 2007-NMCA-149, ¶
12, 143 N.M. 36, 172 P.3d 173.
iii. Whether the Court has Specific Jurisdiction
Specific jurisdiction exists when the defendant has “purposefully directed”
activities at residents of the forum state and the litigation “arise[s] out of or relate[s] to”
those activities. Burger King Corp., 471 U.S. at 472 (internal citation and quotation
omitted). In the tort context, a defendant purposefully directs its activity at the forum state
when it: (1) takes an intentional action; (2) the action was “expressly aimed” at the forum
state; and (3) the action was taken with the knowledge that “the brunt of the injury” would
be felt in the forum state. Dudnikov, 514 F.3d at 1072 (quoting Calder v. Jones, 465 U.S.
783, 789-90 (1984)). Random, fortuitous, or attenuated contacts are insufficient for
specific jurisdiction, as are contacts which result from the unilateral actions of a third
party. Id. at 475 (quotation and citation omitted).
In this case, the tar lugger at issue came into New Mexico after C. Ortiz went into
Texas, purchased the tar lugger, and brought it into New Mexico. This case therefore
arises from the unilateral actions of a third party, rather than any action by the Reeves
Defendants. Even assuming the Reeves Defendants purposefully directed activity at New
Mexico by selling roofing products, this litigation does not arise out of that activity. To the
extent any of the Reeves Defendants took intentional actions by designing,
manufacturing, and selling the tar lugger that contributed to Plaintiff’s injuries, Plaintiff has
15

not shown those actions were aimed at New Mexico or undertaken with the knowledge
that any injury would be felt in New Mexico. Accordingly, the Court finds it does not have
specific jurisdiction over the Reeves Defendants.
Plaintiff asserts the Reeves Defendants are subject to specific jurisdiction under a
“stream of commerce” theory. Specifically, Plaintiff argues the Reeves Defendants sold
the tar lugger involved in this case with the “intent, expectation, and desire” that it would
reach New Mexico through the stream of interstate commerce. (Doc. 171 at 16). As
discussed, specific jurisdiction lies when a defendant purposefully directs his activities at
a forum state. One way a defendant may do so is by “deliver[ing] its products into the
stream of commerce with the expectation that they will be purchased by consumers in the
forum State.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 197-98 (1980).
However, Plaintiff has not produced or cited any evidence that the Reeves Defendants
intended, expected, or desired that the tar lugger in this case would find its way into New
Mexico. Even if Plaintiff produced such evidence, Supreme Court precedent shows that a
single sale of an accident-causing product in a different state is insufficient to establish
minimum contacts for specific jurisdiction. See World-Wide Volkswagen, 444 U.S. at
197-98 (holding insufficient contacts with Oklahoma where automobile sold in New York
was involved in accident in Oklahoma); J.McIntyre Machinery, Ltd. v. Nicastro, 564 U.S.
873, 888 (2011) (Breyer, J., concurring in the judgment) (“The Court has held that a single
sale to a customer who takes an accident-causing product to a different state (where the
accident takes place) is not a sufficient basis for asserting jurisdiction.”) (citing
World-Wide Volkswagen). Accordingly, the Court finds no specific jurisdiction under a
stream of commerce theory.
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iv. Whether the Court has General Jurisdiction
Contrary to specific jurisdiction, general jurisdiction is jurisdiction over a defendant
that does not relate to the defendant’s contacts with the forum state. Dudnikov, 514 F.3d
at 1078. A corporation’s place of incorporation and principal place of business are the
“paradigm” states in which general jurisdiction is appropriate. Daimler A.G., 134 S. Ct. at
760. In order to establish general jurisdiction in a different state, a defendant’s contacts
with the state must be “so ‘continuous and systematic’ as to render [the defendant]
essentially at home in the state.” Goodyear, 564 U.S. at 919.
Commercial contacts “must be of a sort ‘that approximate physical presence’ in the
state. Shrader v. Biddinger, 633 F.3d 1235, 1243 (10th Cir. 2011) (quoting Bancroft &
Masters, Inc. v. August Nat’l, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000)). For instance, a
Philippine mining company was subject to general jurisdiction in Ohio after the company
operated out of a home there during World War II. Perkins v. Benguet Consol. Min. Co.,
342 U.S. 437, 447-49 (1952). Simply “engaging in commerce with residents of the forum
state is not in and of itself the kind of activity that approximates physical presence within
the state’s borders.” Bancroft & Masters, 223 F.3d at 1086. Rather, general jurisdiction is
rare “absent substantial sales.” Shrader, 633 F.3d at 1243. Courts in the Tenth Circuit
evaluate four factors to assist in deciding whether to exercise general jurisdiction over a
corporation: (1) whether the corporation solicits business in the state through local offices
or agents; (2) whether the corporation sends agents into the state to solicit business
regularly; (3) the extent to which the corporation holds itself out as doing business in the
forum state, e.g. through advertisements, listings, or bank accounts; and (4) the volume of

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business conducted in the forum state. Trierweiler v. Croxton, 90 F.3d 1523, 1533 (10th
Cir. 1996).
In this case, JAJ sold its products to New Mexico residents, both directly and
through Albuquerque Equipment. However, these sales were a small part of JAJ’s
business: between October 2011, and August 2012, sales to New Mexico customers
were under .05% of JAJ’s total sales. (Doc. 167-7 at 7-8). In dollar amounts, JAJ made
sales totaling $5,061 to Albuquerque Equipment, $744 to The Flashing Company,
$220.50 to L&P Building Supply, and $236 to Reed Roofing and Construction. (Doc.
167-7 at 7-8). Although JAJ had a close enough relationship with Albuquerque Equipment
to consider them a distributor, JAJ did not sell to Albuquerque Equipment every year.
(Doc. 167-1 at 7). JAJ’s other contacts with New Mexico residents included speaking with
their customers on the phone, providing brochures of their products to Albuquerque
Equipment, and emailing Albuquerque Equipment as part of a mass email list. (Doc. at
167-1 at 4-9). The other Reeves Defendants’ contacts with New Mexico arose solely
through their relationship with JAJ. In this regard, JNR, as JAJ’s sole shareholder and
landlord, had no contacts with New Mexico at all.
To the extent the Reeves Defendants’ commercial contacts with New Mexico were
systematic and continuous, they were not so systematic and continuous such that they
were “at home” or physically present in New Mexico. On the contrary, their sales and
other contacts were infrequent and irregular, and certainly not substantial. Shrader, 633
F.3d at 1243. Although the Reeves Defendants had commercial relationships with New
Mexico residents, “engaging in commerce with residents of the forum state is not in and of
itself the kind of activity that approximates physical presence with the state’s borders.”
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Bancroft, 223 F.3d at 1086. Here again, none of the Reeves Defendants’ contacts with
New Mexico were so substantial that they were effectively physically present in New
Mexico.
Furthermore, the Trierweiler factors are unavailing for Plaintiff. First, as discussed,
JAJ did not solicit business through its own local offices or agents. Albuquerque
Equipment was JAJ’s distributor, and if customers called JAJ directly, they would refer the
customers to Albuquerque Equipment. Similarly, regarding the second factor, JAJ never
sent representatives to New Mexico to solicit business. Third, JAJ did not significantly
hold itself out as doing business in New Mexico. JAJ’s only advertisement directed at New
Mexico was providing Albuquerque Equipment with a brochure of their products. Finally,
JAJ conducted very little business in New Mexico, both in terms of dollar amount and as a
proportion of their total sales. On the whole, these factors weigh against finding general
jurisdiction. The Court therefore finds that the Reeves Defendants do not have sufficient
minimum contacts to exercise general jurisdiction over them.
III.

Conclusion

For the foregoing reasons, the Court finds that although Plaintiff filed the Objection
without leave, the Court will deny the Motion to Strike. Still, the Court finds that JAJ did not
waive its personal jurisdiction defense and that none of the Reeves Defendants have
sufficient minimum contacts with New Mexico to exercise personal jurisdiction over them.
Because none of the Reeves Defendants have sufficient contacts with New Mexico, the
Court need not consider Plaintiff’s alter-ego argument or whether exercising jurisdiction
would offend traditional notions of fair play and substantial justice.

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IT IS THEREFORE ORDERED that the Reeves Defendants’ Motion to Strike or
Disregard Plaintiff’s “Objection” to Their Motion to Dismiss, (Doc. 211), is DENIED; and
IT IS FURTHER ORDERED that the Reeves Defendants’ Motion to Dismiss for Lack
of Personal Jurisdiction, (Doc. 167), is GRANTED and Plaintiff’s claims against the
Reeves Defendants are DISMISSED WITHOUT PREJUDICE.

________________________________
THE HONORABLE CARMEN E. GARZA
CHIEF UNITED STATES MAGISTRATE JUDGE

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