Beh v. Ostergard

• Decision Date: 17 March 1987
• Docket Number: No. CIV 86-0012 JC.,CIV 86-0012 JC.
• Citation: 657 F. Supp. 173
• Parties: Donna BEH, Plaintiff, v. Donald R. OSTERGARD, M.D., and the Regents of the University of California, Defendants.
• Court: U.S. District Court — District of New Mexico

657 F. Supp. 173

Donna BEH, Plaintiff, v. Donald R. OSTERGARD, M.D., and the Regents of the University of California, Defendants.

No. CIV 86-0012 JC.

United States District Court, D. New Mexico.

March 17, 1987.

Toulouse, Toulouse & Garcia P.A., Narcisco Garcia, Jr., Albuquerque, N.M., for plaintiff.

Jerrald J. Roehl, Roehl and Henkel, Albuquerque, N.M., Garcia, Emmons & Maranga, North Hollywood, Cal., Greines, Martin, Stein & Richland, Beverly Hills, Cal., for defendants.

AMENDED MEMORANDUM OPINION

CONWAY, District Judge.

THIS MATTER comes on for consideration of Defendant's Motion to Dismiss for lack of in personam jurisdiction and 11th amendment immunity, filed on July 15, 1986. The Court, having considered the pleadings, the memoranda submitted by the parties, and the applicable law, finds that the Motion to Dismiss for lack of in personam jurisdiction is well taken and will be granted. The Court accordingly does not reach the immunity issue.

The Plaintiff, Donna Beh, received an implant of a Dalkon Shield intrauterine contraceptive device (I.U.D.) from the Defendants in 1976. The Defendant doctor performed the operation in Torrance, California. Beh developed numerous complications upon her return to New Mexico. She brought suit alleging negligence, battery, breach of warranty and breach of fiduciary duty against Dr. Ostergard, and a claim of negligent supervision and respondeat superior against his employer, the Board of Regents of the University of California.

The Defendants moved to dismiss under Fed.R.Civ.P. 12(b)(2) for lack of in personam jurisdiction. The Plaintiff in response contends that jurisdiction over the Defendants is proper, and in the alternative, that if this Court does not have jurisdiction, I should transfer this case to the appropriate federal district court in California under 28 U.S.C. § 1404(a). This Court must analyze whether exercising in personam jurisdiction over the Defendants is proper, and if it is not, determine whether to transfer or dismiss the Plaintiff's claim.

A. PERSONAL JURISDICTION

Federal Courts, sitting in diversity, have personal jurisdiction to the extent permitted by the law of the state in which they sit. Yarbrough v. Elmer Bunker and Associates, 669 F.2d 614, 616 (10th Cir.1982). I must accordingly apply the personal jurisdiction law of the State of New Mexico.

In personam jurisdiction in New Mexico over non-resident Defendants has three elements. The Court must first determine whether the defendant has committed one of the acts enumerated in the long-arm statute as a basis for exercising extra-territorial jurisdiction. If the Court so finds, it must then determine whether the cause of action arises from the acts enumerated in the statute. The Court must then analyze whether the defendant has had "minimum contacts" with the State of New Mexico sufficient to satisfy the requirements of the Due Process Clause of the United States Constitution.

I. Commission of an enumerated act under the Long-Arm Statute.

In order to exercise in personam jurisdiction over a nonresident defendant, service of process must comport with Fed.R. Civ.P. 4(e), which states in part:

Whenever a statute or rule of court of the state in which the district court is held provides (1) for the service of a summons ... upon a party not an inhabitant of or found within the state ... service may be made under the circumstances and in the manner prescribed in the statute or rule.

This Court accordingly looks to the New Mexico Long-Arm Statute, N.M.Stat.Ann. § 38-1-16 (1978), which authorizes extraterritorial jurisdiction. The statute provides:

A. Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts enumerated in this subsection thereby submits himself or his personal representative to the jurisdiction of the courts of this state as to any cause of action arising from:

(1) the transaction of any business within this state; ....

(3) the commission of a tortious act within this state; ...

B. Service of process may be made upon any person subject to the jurisdiction of the courts of this state under this section by personally serving the summons upon the defendant outside this state and such service has the same force and effect as though service had been personally made within this state.

C. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction is based upon this section.

D. Nothing contained in this section limits or affects the right to serve any process in any other manner now or hereafter provided by law.

(Emphasis added). The Plaintiff contends that this Court has in personam jurisdiction over the Defendants since they have committed tortious acts and transacted business in New Mexico.¹

This Court must analyze Plaintiff's contentions in light of the common law interpretation of the New Mexico Long-Arm Statute.²

Plaintiff contends that, although the negligent implantation of the I.U.D. occurred in California, she developed complications in New Mexico. She argues that because a tort is not complete until the injury occurs, the place of injury determines where the tort occurs, and thus, the tortious act was committed in New Mexico.

This case is functionally indistinguishable from Tarango v. Pastrana, 94 N.M. 727, 616 P.2d 440 (Ct.App.1980). In Tarango, the Plaintiff underwent tubal ligation in Texas, but nevertheless became pregnant upon her return to New Mexico. The Court held that a tortious act had been committed in New Mexico:

Plaintiffs also contend that defendants committed a tortious act in New Mexico. Their theory is that even though any wrongful act on the part of defendants may have occurred in Texas, a tort is not complete until there is injury. See Peralta v. Martinez, 90 N.M. 391, 564 P.2d 194 (Ct.App.1977). Plaintiffs assert there was no injury until Angelina became pregnant. Inasmuch as Angelina became pregnant in New Mexico, plaintiffs assert the tortious act occurred in New Mexico. This view, of the place of commission of a tortious act, has been adopted in Illinois in connection with that state's long-arm statute. Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961); see Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137 (7th Cir. 1975). New Mexico's long-arm statute was adopted from Illinois and the interpretation of the Illinois statute by Illinois courts, although not binding, is persuasive. Hunter-Hayes Elevator Co. v. Petroleum Club Inn Co., 77 N.M. 92, 419 P.2d 465 (1966)

Id. at 728, 616 P.2d at 441. The Plaintiff satisfies the first prong of the test, as she has properly alleged that the Defendants have committed a tortious act within New Mexico. Further, the Defendants do not contest Plaintiff's contention that they transact business in New Mexico.

II. The cause of action arises from the acts enumerated in the long-arm statute.

By its own terms, the New Mexico Long Arm Statute provides that the cause of action must arise from the acts enumerated therein:

The purpose of requirements established by long-arm statute, that defendant must have done one of the acts enumerated in the statute and that plaintiff's cause of action must arise from defendant's doing the act is to insure that there is a close relationship between a non-resident defendant's jurisdictional activities and the cause of action against which he must defend.

Winward v. Holly Creek Mills, Inc., 83 N.M. 469, 471-472, 493 P.2d 954, 956, 957 (1972).³

In the present case, the negligence and battery causes of action against Dr. Ostergard, and the respondeat superior and negligent supervision claims against the Board of Regents arise from the alleged commission of a "tortious act" in New Mexico. The Plaintiff satisfies the second prong of the test as to the Defendants.⁴

However, the Plaintiff never alleges that her causes of action arose in any way from the Board of Regents' transaction of business in New Mexico. Absent this allegation, the Plaintiff cannot sustain her burden of establishing this Court's long-arm jurisdiction over the Defendant Board of Regents on that basis. The analysis therefore continues only as to the claim of "commission of a tortious act" in New Mexico.

III. Constitutionally adequate minimum contacts with the state.

The New Mexico Court of Appeals stated in Tarango: "Although the alleged tort may have been completed in New Mexico that, in itself, is insufficient. The minimum contact requirement must be met." 94 N.M. at 728, 616 P.2d at 441. The Due Process Clause of the United States Constitution allows extra-territorial jurisdiction whenever the Defendants have had sufficient "minimum contacts" with the forum so that hailing the Defendants into the forum will not offend "traditional notions of fair play and substantial justice," the due process cornerstone. International Shoe v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).⁵

The type of activity which satisfies the Due Process Clause has been defined as "... some act by which the defendant purposely avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958).

It is well settled law in New Mexico that performing an operation in California does not constitute "purposefully availing oneself of the privilege of conducting activities" within New Mexico:

When one seeks out services which are personal in nature, such as those rendered by attorneys, physicians, dentists, hospitals or accountants, and travels to the locality where he knows the services will actually be rendered, he must realize that the services are not directed to impact on any particular place, but are directed to the needy person himself. While it is true that the nature of such

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