Benally v. Hundred Arrows Press, Inc.

• Decision Date: 26 July 1985
• Docket Number: Civ. No. 84-0313-JB.
• Parties: Lillie BENALLY and Grant Benally, on Behalf of Norman Benally, an adult, Plaintiffs, v. HUNDRED ARROWS PRESS, INC., Mediatex Communication Corporation, Art Magazine Publishers, Inc., Communication Specialists, Inc., and Amon Carter Museum of Western Art, Defendants.
• Court: U.S. District Court — District of New Mexico

614 F. Supp. 969

Lillie BENALLY and Grant Benally, on Behalf of Norman Benally, an adult, Plaintiffs, v. HUNDRED ARROWS PRESS, INC., Mediatex Communication Corporation, Art Magazine Publishers, Inc., Communication Specialists, Inc., and Amon Carter Museum of Western Art, Defendants.

Civ. No. 84-0313-JB.

United States District Court, D. New Mexico.

July 26, 1985.

COPYRIGHT MATERIAL OMITTED

Stephen T. Lecuyer, Shiprock, N.M., for plaintiffs.

Rodey Law Firm, Albuquerque, N.M., Graves Law Firm, Austin, Tex., Cantey Law Firm, Ft. Worth, Tex., Keleher & McLeod, Albuquerque, N.M., Law Offices of Jerry Saegert, Austin, Tex., Modrall Law Firm, Albuquerque, N.M., for defendants.

MEMORANDUM OPINION

BURCIAGA, District Judge.

THIS MATTER comes before the Court on a Motion to Dismiss for lack of personal jurisdiction filed by Defendant The Amon Carter Museum of Western Art. The Defendants Hundred Arrows Press, Inc.; Mediatex Communication Corp.; Art Magazine Publishers, Inc.; and Communication Specialists, Inc., also moved the Court for dismissal, or, in the alternative, for summary judgment. The Court, having reviewed the memoranda and supporting materials submitted by the parties, and being otherwise fully advised in the premises, finds that the motions should be granted in part and denied in part.

Plaintiffs, Lillie Benally and her son Norman Benally, are both members of the Navajo Tribe of Indians and long-time residents of the State of New Mexico. In 1932, the photographer Laura Gilpin received permission from Mrs. Benally to take a still photograph of her and her young son Norman in the confines of their home on the reservation. The photograph showed Mrs. Benally in her native dress, holding the infant son in her arms. Prior to Laura Gilpin's death in 1979, the black and white print had been published on a postcard and in five books and been exhibited approximately thirty times, all without the consent of the plaintiffs. The plaintiffs were unaware of these events because of their secluded life on the Navajo Reservation.

Upon Ms. Gilpin's death, her photograph collection was devised to the Amon Carter Museum of Western Art in Texas. The Museum has a procedure that when a mail order for a print of one of its publications is received, a form is mailed back which requests information about how the print is going to be used. Based on this information the Museum will either grant or refuse the request. There is also a copying and handling fee charged by the Museum for each reprint ordered.

In either 1980 or 1981, three of the four nonresident defendant-publishers: Hundred Arrows Press; Mediatex Communications; and Art Magazine, followed the above procedure and received, at their offices in Texas, a copy of the Benally print, along with copies of the other photos they had ordered. All three publishers used the photograph in question to accompany an article about either Ms. Gilpin's work or the Museum itself. The fourth publisher, Communication Specialists, Inc. CSI, used the Benally photograph without the permission of the Museum. None of the defendant-publishers attempted to attain consent from either of the plaintiffs prior to publishing the photograph.

In August of 1981, Sophie Benally, the daughter-in-law of Grant and Lillie Benally, learned of the publication of the Benally photograph in Four Winds magazine (Hundred Arrows Press, Inc.) from a physician in Shiprock, New Mexico. She informed the Benallys of the publication of the photo. The plaintiffs became upset upon hearing the news because of the traditional Navajo belief that the publication of a photograph can have bad effects on the people who are the subjects of the photo.

In March of 1984, plaintiffs filed a Complaint charging Hundred Arrows Press, CSI, Mediatex Communications, Art Magazine and the Amon Carter Museum with unlawful public disclosure of private facts. The Complaint also charged Hundred Arrows Press, CSI and the Amon Carter Museum with misappropriation of likeness. The four defendant-publishers moved to dismiss the actions against them, or, in the alternative, moved for summary judgment. The Amon Carter Museum made a special appearance before this Court and moved to dismiss the charges against it for lack of personal jurisdiction. The Court will decide the jurisdictional issue first because "a lack of jurisdiction means an entire lack of power to hear or determine the case and the absence of authority over the subject matter or the parties." Grace v. Oil Conservation Commission of New Mexico, 87 N.M. 205, 208, 531 P.2d 939, 942 (1975).

As a general rule, federal courts sitting in diversity cases have personal jurisdiction to the extent permitted by the law of the forum. Yarbrough v. Elmer Bunker & Associates, 669 F.2d 614, 616 (10th Cir.1982). The court's jurisdiction is further subject to the limitations of the due process clause. Id. A federal district court can therefore only dismiss an action for lack of personal jurisdiction when the plaintiff's pleadings fail to establish prima facie that the jurisdictional requirements of both the statutory law and the constitutional standard have been met. Milligan v. Anderson, 522 F.2d 1202, 1207 (10th Cir. 1975).

The two-fold inquiry begins with an examination of the relevant state statute. Plaintiffs seek personal jurisdiction under the New Mexico Long-Arm Statute, § 38-1-16 NMSA 1978. In Winward v. Holly Creek Mills, Inc., 83 N.M. 469, 471, 493 P.2d 954, 956 (1972), the New Mexico Supreme Court interpreted the state statute as establishing a two-part test for asserting jurisdiction over a nonresident: "First, the defendant must have done one of the acts enumerated in the statute; and second, the plaintiff's cause of action must arise from defendant's doing the act."

Of the acts enumerated in the statute only two have been argued to apply in this case. Section 38-1-16(A)(1) provides that a nonresident may be subject to the jurisdiction of the courts of New Mexico if his actions amount to "the transaction of any business within the state." The New Mexico Supreme Court has defined the doing or transacting of business in the following terms: "doing a series of similar acts for the purpose of thereby realizing pecuniary benefit, or otherwise accomplishing an object, or doing a single act for such purpose with the intention of thereby initiating a series of such acts." Telephonic, Inc. v. Rosenblum, 88 N.M. 532, 534, 543 P.2d 825, 827 (1975).¹

Plaintiffs' pleadings establish that the Museum engaged in the following jurisdictional activities. The Gilpin will, which devised to the Museum the legal rights to the photograph, was probated in New Mexico. The Museum maintained continuous activity in New Mexico while arranging for the transfer of possession of the Gilpin photographs. The photograph in question, while distributed by the Museum in Texas, was later circulated in New Mexico by the defendant-publishers. The Museum has a practice of acquiring art objects from, and disseminating art objects and facsimilies, books and publications into New Mexico.

Plaintiffs concede that the above listed activities were not performed by the Museum for pecuniary gain. They assert, however, that the phrase "otherwise accomplishing an object" encompasses the Museum's forum-state transactions.

The question of whether the phrase "transacting business" includes noncommercial activity has not been addressed by the New Mexico courts.² Although the question is squarely before this Court it need not be resolved because the Court concludes that the second requirement of the two-part "nonresident jurisdiction" test has not been met.

Plaintiffs have failed to establish a close relationship between the jurisdictional activities related to their "transaction of business" claim and their cause of action. Winward v. Holly Creek Mills, Inc., supra; see Koplin v. Thomas, Haab & Botts, 73 Ill.App.2d 242, 219 N.E.2d 646 (1966); Morton v. Environmental Land Systems, Ltd., 55 Ill.App.3d 369, 370 N.E.2d 1106 (1977). The dates of the Museum's activities in the forum state and the date of the plaintiffs' awareness of the publications are too remote in time to satisfy the statutory requirement. The cause of action allegedly arose at the point in time, in either 1980 or 1981, that the Museum distributed the photograph in question to the defendant-publishers, but the majority of the Museum's jurisdictional activities occurred before or during the year 1979.

The plaintiffs allege that jurisdiction can be based, in the alternative, on another of the enumerated acts in the New Mexico Long-Arm Statute. Section 38-1-16(A)(3) provides that any nonresident committing a tortious act within the state becomes subject to the jurisdiction of the courts of New Mexico. Relying on the principles expressed in Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957), and Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961), the New Mexico Court of Appeals held in Roberts v. Piper Aircraft Corp., that a "tortious act" has been committed within the State of New Mexico when "negligent acts occur outside New Mexico which cause injury within New Mexico." 100 N.M. 363, 366, 670 P.2d 974, 977 (Ct.App. 1983).³ The "effects" basis of jurisdiction is therefore satisfied when the "last event constituting an element of the tort takes place" in New Mexico. Robert C. Casad, Jurisdiction in Civil Actions 4-52 (1983).

Although the Roberts court linked the phrase "tortious act" to defendant negligence, the New Mexico Supreme Court has held that the same jurisdictional analysis is applicable in intentional tort cases. Blount v. T.D. Publishing Corp., 77 N.M. 384, 390, 423 P.2d 421, 425 (1967).

Plaintiffs' Complaint charges the Museum with misappropriation of likeness and public disclosure, two forms of invasion of the right of privacy. The pleadings allege that the Museum distributed the photograph in question to the...