JAMES O. BROWNING, District Judge.
Executive Aircraft is an Arizona corporation, and its principal place of business is in Arizona. See Affidavit of James Nordstrom ¶ 5, at 1 (executed May 27, 2011), filed June 1, 2011 (Doc. 4) ("Nordstrom Aff."). Executive Aircraft provides "certain aircraft maintenance and inspection services in Arizona." See Nordstrom Aff. ¶ 6, at 1. Executive Aircraft "is not licensed to do business in the State of New Mexico; it does not pay taxes in New Mexico; and it does not own property in New Mexico." Nordstrom Aff. ¶ 8, at 1. "Executive Aircraft does not directly or intentionally advertise or solicit consumers in New Mexico." Nordstrom Aff. ¶ 9, at 1. It "does not have any employees, agents, representatives, statutory agents, physical presence, or offices, or property in New
On June 2, 2009, Christopher Morrell, a non-party and Connecticut resident, contracted with Executive Aircraft in Arizona to perform inspection and maintenance/repair services in Arizona on a Beechcraft model 35-A33 Bonanza aircraft. See Affidavit of James Butler ¶¶ 6-8, at 1 (executed June 1, 2011), filed June 1, 2011 (Doc. 4); Contract between Executive Aircraft Maintenance and Chris Morrell at 1, filed June 1, 2011 (Doc. 4). Executive Aircraft performed the inspections, service, and repairs in Glendale, Arizona and completed them on July 7, 2009. See Nordstrom Aff. ¶¶ 12, 14 at 2. Morrell purchased the aircraft on July 9, 2009, from Saunders, through Defendant Barron Thomas Scottsdale, LLC, an aircraft broker company located in Scottsdale, Arizona.
Plaintiff Sheryl Ann Raffile is a Connecticut resident who was a passenger in the aircraft when it crashed. See Complaint ¶¶ 1, 10, at 1, 5. She contends that Executive Aircraft failed to "exercise reasonable care in the testing, inspection, and maintenance of all component parts of the aircraft," Complaint ¶ 38, at 8, and that all Defendants failed to adequately warn Morrell about certain defects in the aircraft that made it "not capable of sustaining airworthy flight," Complaint ¶ 31, at 6. She also bases her claims on the theory of strict product liability. See Complaint ¶¶ 23-24, at 4-5.
Raffile filed her lawsuit in New Mexico state court in a case styled Raffile v. Executive Aircraft Maintenance, No. D412CV 201100099 (Fourth Judicial Court, San Miguel County, State of New Mexico), filed February 28, 2011 (Doc. 1-1). Executive Aircraft timely removed the case to federal court, based on diversity jurisdiction. See Notice of Removal by Executive Aircraft Maintenance ¶ 15, at 4, filed May 31, 2011 (Doc. 1).
Executive Aircraft and Saunders move the Court, pursuant to rule 12(b)(2) of the Federal Rules of Civil Procedure, to dismiss this action for lack of personal jurisdiction. See Executive Aircraft MTD at 1; Saunders' MTD at 17. Both Executive Aircraft and Saunders contend that the Court should dismiss Raffile's Complaint against them, because she has failed to show that they have sufficient minimum contacts with New Mexico to support jurisdiction under the Due Process Clause and, therefore, taking jurisdiction over them in New Mexico is unconstitutional. See Executive Aircraft MTD at 4; Saunders' MTD at 18. Both Executive Aircraft and Saunders support their motions with memoranda of points and authorities, and Executive Aircraft also filed affidavits and a
At the November 15, 2011 hearing on the motions, however, Raffile's counsel admitted that her response "certainly falls short of the issues raised in the motion" and asked "for a little leeway to address some of the issues of the motion separate from our response." Transcript of Hearing at 4:15-22 and 8:24 to 9:9 (taken November 15, 2011) (Heath) ("Tr.").
The plaintiff has the burden of proving personal jurisdiction. The court's jurisdiction may rest on specific or general personal jurisdiction. Due process, however, limits any state statutory basis of personal jurisdiction.
"[W]hen the court's jurisdiction is contested, the plaintiff has the burden of proving jurisdiction exists." Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995).
Clark v. Meijer, Inc., 376 F.Supp.2d 1077, 1082 (D.N.M.2004) (Browning, J.). When, however, "personal jurisdiction is assessed in an evidentiary hearing ..., the plaintiff generally must 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).
Marcus Food Co. v. DiPanfilo, No. 10-3285, 671 F.3d 1159, 1166, 2011 WL 5084997, at *3 (10th Cir. Oct. 27, 2011). New Mexico's long-arm "statute extends the jurisdictional reach of New Mexico courts as far as constitutionally permissible." Tercero v. Roman Catholic Diocese of Norwich, Conn., 132 N.M. 312, 315, 48 P.3d 50, 54 (2002). Consequently, the court "need not conduct a statutory analysis apart from the due process analysis." Marcus Food Co. v. DiPanfilo, 671 F.3d at 1166, 2011 WL 5084997, at *3 (internal quotation marks omitted).
Depending on the character and extent of a defendant's contacts, a court may exercise specific or general personal jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).
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).
Marcus Food Co. v. DiPanfilo, 671 F.3d at 1166, 2011 WL 5084997, at *4.
TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d at 1287-88. Thus, to establish specific personal jurisdiction that satisfies due process, a plaintiff must present evidence of "three salient factors that together indicate `purposeful direction': (a) an intentional action ... that was (b) expressly aimed at the forum state ... with (c) knowledge that the brunt of the injury would be felt in the forum state." Shrader v. Biddinger, 633 F.3d at 1239-40 (internal quotation marks omitted). The Supreme Court of the United States has held, however, that 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, 100 S.Ct. 559, 62 L.Ed.2d 490 (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"). In Roberts v. Piper Aircraft Corp., 100 N.M. 363, 670 P.2d 974 (Ct.App. 1983), the Court of Appeals of New Mexico similarly rejected the argument that foreseeability could establish minimum contacts, and found no personal jurisdiction or minimum contacts in the folloing circumstances:
100 N.M. at 367, 670 P.2d at 978. "[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, 100 S.Ct. 559. As the United States Court of Appeals for 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.
Similarly, to find general jurisdiction over a defendant, contacts must be "continuous and systematic" — therefore, "[s]imply because a defendant has a contractual relationship and business dealings with a person or entity in the forum state does not subject him to general jurisdiction there;" "correspondence with a forum resident does not support general jurisdiction;" and "sporadic or isolated visits to the forum state will not subject the defendant to general jurisdiction" because a "[defendant's] lack of a regular place of business in [the forum state] is significant, and is not overcome by a few visits." Shrader v. Biddinger, 633 F.3d at 1247. "[G]eneral jurisdiction over a web site that has no intrinsic connection with a forum state requires commercial activity carried on with forum residents in such a sustained manner that it is tantamount to actual physical presence within the state."
633 F.3d at 1242 n. 5 (internal quotation marks omitted).
Marcus Food Co. v. DiPanfilo, 671 F.3d at 1166-68, 2011 WL 5084997, at *4-5.
New Mexico's long-arm statute provides, in relevant part, that its courts may exercise personal jurisdiction over a party "whether or not a citizen or resident of this state ... as to any cause of action arising from: (1) the transaction of business within this state ... [or] (3) the commission of a tortious act within this
F.D.I.C. v. Hiatt, 117 N.M. 461, 463, 872 P.2d 879, 881 (1994). "When negligent acts occur outside New Mexico which cause injury within the state, a `tortious act' has been committed for purposes of the long-arm statute." Tercero v. Roman Catholic Diocese of Norwich, Conn., 132 N.M. at 319, 48 P.3d at 57. "As with the transaction of business analysis, rather than engage in a technical analysis of whether the defendant committed a tortious act, we must equate the `tortious act' which the defendant is alleged to have committed with minimum contacts to determine if due process has been satisfied." 132 N.M. at 319, 48 P.3d at 57 (alteration omitted) (internal quotation marks omitted).
Raffile has not established that Executive Aircraft or Saunders have sufficient minimum contacts to support a theory of general or specific personal jurisdiction over them. Raffile's analysis is based on products-liability cases, but she principally contends that Executive Aircraft and Saunders committed the torts of negligence and failure to warn in Arizona that ultimately caused injury to her in New Mexico. See Complaint ¶ 23, at 4; ¶¶ 30-31, at 8; ¶¶ 36-39, at 7-8.
As Executive Aircraft and Saunders point out, Raffile alleged no facts in her Complaint and presented no other evidence sufficient to indicate that they have sufficient minimum contacts with New Mexico that will support personal jurisdiction over them. Therefore, it would violate the Due Process Clause for the Court to exert jurisdiction over them. The Court will grant the motions to dismiss.
At the November 15, 2011 hearing, the parties agreed that the central issue in
At oral argument, despite the concession that only specific jurisdiction was at issue, Raffile submitted fifteen exhibits. Exhibit 1 shows that Executive Aircraft's website states that it provides "global service" to customers who reside in various nations who "ship your parts or engines to EAM for repair, or we orchestrate a `road trip' to your facility to repair an aircraft." Exhibit 2 is an Executive Aircraft's "contact form" that requests information from a prospective customer, including "country." Exhibits 3, 4, and 5 are "press releases" or articles from Executive Aircraft's website, Aviators Hot Line website, and Director Of Maintenance Magazine's website stating that Executive Aircraft was established "to support customers in 24 countries, from locations in Arizona and Alaska." Exhibit 6 is a "media kit" from Director Of Maintenance Magazine, which has as its purpose assisting people and companies "to reach the management of aircraft maintenance facilities." Exhibit 7 is an article from Aviation International News' official website stating that Executive Aircraft has been authorized to overhaul various Honeywell turboprop engines. Exhibit states that Aviation International News covers aviation news and trade shows world wide. Exhibit is Aviation International News' "media kit" that states that Aviation International News has a "world wide distribution that precisely matches the distribution of turbine business airplanes." Exhibit 10 is a document from the National Agricultural Aviation Association ("NAAA") stating that Executive Aircraft is one of its "allied member companies," and Exhibit 11 states that NAAA has 1500 members in 46 states. Exhibit 12 is Executive Aircraft's ad in the National Business Aviation Association's directory from its 2011 annual meeting. Exhibit 13 is Executive Aircraft's Facebook page stating that it provides "airline industry services" in "Scottsdale, Arizona." Raffile's counsel argued at the hearing that these thirteen exhibits demonstrate that Executive Aircraft does not limit its services to states other than New Mexico and that Executive Aircraft's advertisements are widely distributed, and, therefore,
In response, Executive Aircraft contends that the existence of indirect advertising through web sites is not sufficient to establish minimum contacts where there is no evidence that Executive Aircraft targeted New Mexico, and that Raffile has not rebutted Nordstrom's affidavit that Executive Aircraft "does not directly or intentionally advertise or solicit consumers in New Mexico." Nordstrom Aff. ¶ 9, at 1. The Court agrees.
At the hearing, the parties all agreed with the Court that the Court is not bound by the New Mexico Court of Appeals' opinions regarding the federal question whether minimum contacts exist to satisfy due process under the federal constitution. See Tr. at 5:9-13 (Worischeck), 10:12-15 (Heath). The Court finds that the more recent cases from the Tenth Circuit are binding precedent.
In Dudnikov v. Chalk & Vermilion Fine Arts, Inc., a specific-jurisdiction case, see 514 F.3d at 1070-71 (noting that plaintiffs had not appealed adverse ruling on general jurisdiction and "cabin[ing] our inquiry in this case to what `minimum contacts' means for purposes of specific jurisdiction"), the Tenth Circuit noted the distinction between tort claims and contract claims in jurisdictional analyses.
514 F.3d at 1071. In tort cases, "the forum state itself must be the `focal point of the tort.'" Id. at 1075 n. 9. The defendant in Dudnikov v. Chalk & Vermilion Fine Arts, Inc. intentionally directed its tortious acts at a Colorado resident; its "intended end [was] cancelling plaintiffs' auction in Colorado;" and "defendants e-mailed
Here, neither Raffile nor Morrell are residents of New Mexico, and there are no facts or evidence to indicate that Executive Aircraft purposefully directed its aircraft service activities that are allegedly associated with Raffile's injuries toward New Mexico residents or to the State. This case, therefore, is factually distinguishable from Dudnikov v. Chalk & Vermilion Fine Arts, Inc. and Silver v. Brown, Exhibits 1-13 do not provide any evidence that Executive Aircraft purposefully directed any of its activities or advertising toward New Mexico residents or that Raffile's injuries arose out of Executive Aircraft's forum-related activities, see Shrader v. Biddinger, 633 F.3d at 1239, in a way giving rise to specific jurisdiction over it.
Nor are there sufficient facts to demonstrate general jurisdiction. Raffile points to Roberts v. Piper Aircraft, in which the Court of Appeals of New Mexico concluded that New Mexico had general personal jurisdiction over Custom Airmotive, an out-of state company that repaired airplane engines, on two facts: (i) the president of the company admitted that the company, "on limited occasions, performed aircraft repair and overhaul operations for residents of the State of New Mexico," but that the work performed was "minimal"; and (ii) he admitted that, "[p]rior to the accident alleged in this suit, Custom Airmotive did advertise in national aircraft publications, namely Trade-A-Plane, and Aircraft Mechanic Journal, which publications your Affiant is informed to believe are circulated in the State of New Mexico." 100 N.M. at 367-68, 670 P.2d at 979. The Court of Appeals concluded that these two categories of contacts were sufficient minimum contacts to satisfy due-process concerns, even though Custom Airmotive did not have a telephone listing in New Mexico and it required the customer "to ship the aircraft component to it in Oklahoma." 100 N.M. at 367-368, 670 P.2d at 979. Raffile suggests that, because she can show that Executive Aircraft has advertised in national trade magazines, Executive Aircraft has had the minimum contacts to satisfy due process.
The Court disagrees that advertising in national trade magazines is enough to constitute minimum contacts. In Shrader v. Biddinger, the Oklahoma plaintiff brought
633 F.3d at 1238. All three defendants moved for dismissal based on the absence of personal jurisdiction. The Court noted that there is an "overarching requirement of continuous and systematic contacts for general jurisdiction." 633 F.3d at 1239. The Court noted:
633 F.3d at 1240. To avoid an "untenable result" of making every person who places information on the Internet subject to personal jurisdiction in every State that the information can reach, the Court held that the analysis of personal jurisdiction had to be adapted "by placing emphasis on the internet user or site intentionally directing his/her/its activity or operation at the forum state rather than just having the activity or operation accessible there." 633 F.3d at 1240 (emphasis in original). Thus, the Tenth Circuit adopted the principle that
Shrader v. Biddinger. 633 F.3d at 1240-41 (internal quotation marks omitted). The Tenth Circuit held that "[t]he maintenance of a web site does not in and of itself subject the owner or operator to personal jurisdiction, even for actions relating to the site, simply because it can be accessed by residents of the forum state." 633 F.3d at 1241. When "considering what `more' could create personal jurisdiction for such activities, courts look to indications that a defendant deliberately directed its message at an audience in the forum state and intended harm to the plaintiff occurring primarily or particularly in the forum state." 633 F.3d at 1241.
The Tenth Circuit noted that, for general jurisdiction to be found, commercial contacts
633 F.3d at 1243 (emphasis in original). Although the plaintiff in Shrader v. Biddinger submitted exhibits "relating to commercial activity on the Wave59 site, which show that (1) he purchased books, courses, and a data feed from Wave59; (2) another person from Tulsa purchased a book from Wave59; and (3) Wave59 advertized in a magazine called Traders World, which was available for purchase at a Tulsa bookstore," 633 F.3d at 1244, the Tenth Circuit held that "[t]his showing is clearly insufficient to warrant the exercise of general personal jurisdiction over the Beann defendants," noting that "[t]here is no indication that TradersWorld is an Oklahoma magazine. We have repeatedly held that advertizing in nationally distributed magazines does not support general jurisdiction." 633 F.3d at 1243-44 & n. 6.
As in Shrader v. Biddinger, Raffile has failed to show through Exhibits 1-13 Executive Aircraft's deliberate, continuous and systematic business contacts, such as deliberately using its web site "to conduct commercial transactions on a sustained basis with a substantial number of residents of the forum." 633 F.3d at 1243 (emphasis omitted). There is no evidence that Executive Aircraft specifically directed its advertising to New Mexico or that the advertisements drummed up any work in New Mexico. Because it is contrary to Shrader v. Biddinger's principles that "advertizing in nationally distributed magazines does not support general jurisdiction"; that "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"; and that a plaintiff must show that the defendant "has actually and deliberately used its website to conduct commercial transactions on a sustained basis with a substantial number of residents of the forum," 633 F.3d at 1243-44 & n. 6 (emphasis original), the Court is concerned that the conclusion suggested in Roberts v. Piper Aircraft that advertising in a national trade magazine which reaches New Mexico and that performing a limited amount of work outside New Mexico for New Mexico residents — satisfies the federal Due Process Clause's minimum-contacts test for general personal jurisdiction.
The Court concludes that, under Dudnikov v. Chalk & Vermilion Fine Arts, Inc. and Shrader v. Biddinger, Raffile cannot show that Executive Aircraft's general advertising on web sites or in national trade magazines are sufficient minimum contacts
At the hearing, Raffile submitted two additional exhibits in support of her claim that the Court has personal jurisdiction over Executive Aircraft. Exhibit 14 is Morrell's affidavit. In it, Morrell states that he "had just purchased the Beech aircraft, N4334W, from Barron Thomas Aviation and I had some maintenance performed on the aircraft, by Executive Aircraft Maintenance, while I was still in the Phoenix area." Affidavit of Christopher Morrell ¶ 2, at 1 (executed November 15, 2011). He "chose the mechanic that did the maintenance on the Beech Aircraft[,] partly because the mechanic was also a flight instructor who gave me a check out in the airplane." Morrell Aff. ¶ 3, at 1. After the maintenance was complete, Morrell began his flight back to Connecticut, but "[p]rior to leaving ... I informed the mechanic at [Executive Aircraft] that I would be flying across the southern U.S. and then up the east coast to Connecticut... [and] that I would be flying over New Mexico." Morrell Aff. ¶ 4, at 1; ¶ 5, at 2.
Exhibit 15 is typewritten notes of a "phone interview of James Butler" taken on July 15, 2009 by "Inspector Donald D. Halbert, ABQ FSDO."
World-Wide Volkswagen Corp. v. Woodson is a products-liability case, in which the Supreme Court used a stream-of-commerce analysis that does not appear to be applicable to Executive Aircraft or Saunders.
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1074. Telling an employee of Executive Aircraft where he was going to fly after Executive Aircraft had repaired the Beechcraft says little about what Executive Aircraft knew about the use of the plane in New Mexico when it signed a contract with a Connecticut resident to repair an airplane, and repaired the airplane in Arizona. According to Raffile's Complaint, when Executive Aircraft made the repairs, Morrell did not own the airplane. There is no indication either in the Morrell affidavit or in the Inspector's notes that, before Executive Aircraft agreed to service and repair the Beechcraft for Morrell, that Executive Aircraft knew that Morrell was definitely going to purchase the airplane and intended to later fly the plane over New Mexico, or that Executive Aircraft intentionally directed its allegedly negligent conduct toward New Mexico.
The Court will, pursuant to rule 12(b)(2), dismiss Raffile's claims against Executive Aircraft because the Court lacks personal jurisdiction over Executive Aircraft.
At the November 15, 2011 hearing, Raffile's counsel requested a 120-day discovery period in which to attempt to find contracts showing that Executive Aircraft has repaired aircraft for New Mexico residents. See Tr. at 17:1-7 (Heath). The Court concludes that, not only is this request untimely, given that Plaintiff has had over five months to make such a request and allowed the briefing period to pass without making such a request, but that this fishing expedition would not likely result in evidence to show that Executive Aircraft initiated the kinds of continuous, systematic, and substantial commercial contacts that would give rise to general jurisdiction over it. See Shrader v. Biddinger, 633 F.3d at 1243 (stating that "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"). Raffile did not request further discovery regarding Saunders' contacts with New Mexico. Of course, if Raffile discovers, in its discovery against the remaining Defendant, more evidence that suggests specific jurisdiction over Executive Aircraft or Saunders, she may move the Court to reconsider or re-add Executive Aircraft and/or Saunders.
As noted above, Raffile's Complaint states only that Saunders is a resident of Nevada, see Complaint ¶ 4, at 2, and that Defendant Barron Thomas Scottsdale, LLC sold the Beechcraft to Morrell on Saunders' "behalf," Complaint ¶ 20, at 6. Raffile has not submitted any additional facts or evidence to suggest that Saunders had the minimum contacts with New Mexico to satisfy due process. See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1070 & n. 4. At the hearing, Raffile's counsel did not attempt to rebut Saunder's contention that Raffile had alleged nothing to show that Saunder "had any contact with New Mexico, much less minimal contacts to give the court jurisdiction under the due-process clause of the constitution." Tr. at 7:17-19 (Racca). Saunders' attorney represented during the
Spectron Dev. Lab. v. Am. Hollow Boring Co., 123 N.M. 170, 174, 936 P.2d 852, 856 (Ct. App.1997). Because no facts indicate that either Executive Aircraft or Saunders are engaged in the business of selling or distributing airplanes, or that Executive Aircraft manufactured any part of the aircraft, it appears that they cannot be held liable for a manufacturing defect in the Beechcraft under this theory. Cases discussing general personal jurisdiction over manufacturers or companies that place a defective product into the stream of commerce are therefore distinguishable.
