Fabara v. Gofit, LLC
| Decision Date | 20 August 2015 |
| Docket Number | No. CIV 14-1146 JB/KK,CIV 14-1146 JB/KK |
| Parties | FRANCISCO FABARA, Plaintiff, v. GOFIT, LLC, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on the Motion to Dismiss for Lack of Personal Jurisdiction, filed March 17, 2015 (Doc. 21)("MTD"). The Court held a hearing on April 30, 2015. The primary issues are: (i) whether Defendant GoFit, LLC timely asserted the defense of lack of personal jurisdiction under rule 12(h) of the Federal Rules of Civil Procedure; and (ii) whether the Court has personal jurisdiction over GoFit, LLC under rule 12(b)(2) of the Federal Rules of Civil Procedure. GoFit, LLC timely asserted the defense of lack of personal jurisdiction, because it denied Plaintiff Francisco Fabara's allegation that the Court has personaljurisdiction over GoFit, LLC and submitted the MTD less than three months after filing the Defendant's Answer to Plaintiff's Complaint for Damages for Injury, filed December 23, 2014 (Doc. 4)("Answer"). The Court does not have general personal jurisdiction over GoFit, LLC, because Fabara has not established that GoFit, LLC's contacts with New Mexico are so continuous and systematic that it is essentially at home here. The Court does not have specific personal jurisdiction over GoFit, LLC, because Fabara has not shown that his claims arise out of GoFit, LLC's contacts with New Mexico. Accordingly, the Court will grant the MTD and dismiss this case without prejudice.
The plaintiff need only make a prima facie showing of personal jurisdiction to defeat a rule 12(b)(2) motion to dismiss. See OMI Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1090 (10th Cir. 1998). "A plaintiff may make this prima facie showing by demonstrating, by affidavit or other written materials, facts, that, if true, would support the exercise of personal jurisdiction over defendant." Rainy Day Books, Inc. v. Rainy Day Books & Café, LLC, 186 F. Supp. 2d 1158, 1160 (D. Kan. 2002). In considering whether plaintiff has made a prima facie showing of personal jurisdiction over defendant, the Court must take the complaint's allegations as true to the extent the defendant's affidavits do not controvert them. See Tompkins v. Executive Comm. of S. Baptist Convention, No. CIV 13-0840 JB/CG, 2015 WL 1569034, at *4 (D.N.M. Mar. 31, 2015)(Browning, J.). Moreover, "[w]hen conflicting affidavits are presented, factual disputes are resolved in plaintiff's favor . . . ." Behagen v. Amateur Basketball Ass'n. of U.S.A., 744 F.2d 731, 733 (10th Cir. 1984). To decide the MTD, the Court takes its facts from: (i) the Complaint for Damages for Injury, filed December 19, 2014 (Doc. 1-1)("Complaint")2;(ii) the Declaration of Charles Caswell (dated March 13, 2015), filed March 17, 2015 (Doc. 21-1)("Caswell Decl.")3; (iii) a press release entitled "Tulsa Company Unveils Multi-Million Dollar Corporate Headquarters" (dated Sept. 19, 2008), filed April 3, 2015 (Doc. 31-1)("Press Release")4; (iv) Affidavit of Francisco Fabara (dated March 26, 2015), filed April 6, 2015 (Doc. 32-1)("Fabara Aff."); (v) eight photographs that Fabara took at the Big 5 Sporting Goods store located at 2860 Cerrillos Rd., in Santa Fe, New Mexico on March 22, 2015, filed April 6, 2015 (Docs. 32-2 through 32-9)(collectively, "Big 5 Photographs"); (vi) two photographs that Fabara took at the REI store located at 500 Market St., Suite 100, in Santa Fe on March 22, 2015, filed April 6, 2015 (Docs. 32-10 & 32-11)(collectively, "REI Photographs"); and (vii) two photographs that Fabara took at the Target located at 3550 Zafarano Dr. in Santa Fe on March 22, 2015, filed April 6, 2015 (Docs. 32-12 & 32-13)(collectively, "Target Photographs").
This case is about an exercise ball that unexpectedly exploded. GoFit, LLC sells exercise balls worldwide and delivers its products into the stream of commerce with the expectation that New Mexico consumers will purchase and use them. See Complaint ¶ 3, at 1. GoFit, LLC is a corporation organized under Oklahoma law and has its principal place of business there. See Caswell Decl. ¶¶ 6-7, at 1. GoFit, LLC is not registered to do business in New Mexico, does not maintain bank accounts or file tax returns in New Mexico, and has no offices, employees, or agents in New Mexico. See Caswell Decl. ¶¶ 8-10, at 1-2. GoFit, LLC does not own any property in New Mexico, has no telephone listing in New Mexico, and does not send anyemployees to New Mexico to solicit business. See Caswell Decl. ¶¶ 11-13, at 2. GoFit, LLC's website and advertising does not target New Mexico citizens. See Caswell Decl. ¶¶ 14-15, at 2.
GoFit, LLC distributes its products to over 5,000 leading retailers in the United States, including Target, Big 5 Sporting Goods, and REI. See Press Release at 1. There are at least nineteen different GoFit, LLC products on the shelves at Big 5 Sporting Goods, see Big 5 Photographs, eight different GoFit, LLC products on the shelves at REI, see REI Photographs, and what appears to be two sets of weightlifting gloves at Target, see Target Photographs -- all in Santa Fe. Since 2006, GoFit, LLC has shipped 107 website orders to New Mexico for an average of less than twelve sales per year. See Caswell Decl. ¶ 16, at 2. GoFit, LLC's internet sales to New Mexico total $10,317.03 -- an average of about $1,146.34 per year. See Caswell Decl. ¶ 16, at 2. Since 2006, GoFit, LLC has had five commercial customers in New Mexico. See Caswell Decl. ¶ 17, at 2. Two of these customers have been inactive since 2008, two have been inactive since 2010, and the other customer placed one order in 2014, but has not placed another order since then. See Caswell Decl. ¶ 17, at 2. Two hotels in New Mexico also purchase items from GoFit, LLC. See Caswell Decl. ¶ 17, at 2. GoFit, LLC's sales to these five commercial customers and two hotels have totaled $10,525.33 over the nine-year period from January, 2006 to the present. See Caswell Decl. ¶ 17, at 2.
At some point before April 26, 2014, Fabara purchased, for his personal home use, a sixty-five centimeter Ultimate Core Stability Ball ("Exercise Ball") that GoFit, LLC manufactures. Complaint ¶¶ 4-5, at 1-2. GoFit, LLC has no record of selling the Exercise Ball to Fabara. See Caswell Decl. ¶¶ 6-7, at 1. On April 26, 2014, Fabara was using the Exercise Ball in the course of his exercise routine, and, suddenly and without warning, the Exercise Ball exploded and deflated, causing Fabara to tumble to the floor, and injuring his forearm, wrist,shoulders, and back. See Complaint ¶¶ 6-8, at 2. Before the Exercise Ball exploded, Fabara was using it according to its labeling and instructions, and in the same manner in which Fabara had previously used it. See Complaint ¶ 7, at 2. Because of the explosion, Fabara suffered personal injuries, that: (i) have required, and may in the future continue to require, medical, surgical, and related treatment; (ii) have resulted, and in the future will continue to result, in physical and emotional pain and suffering; (iii) have resulted, and may in the future continue to result, in lost earnings; and (iv) have resulted in disfigurement. See Complaint ¶ 9, at 2.
On November 11, 2014, Fabara filed suit in the First Judicial District Court, County of Santa Fe, New Mexico. See Complaint at 1. About a month later, on December 19, 2014, GoFit, LLC removed the case to federal court, asserting diversity jurisdiction. See Notice of Removal, filed December 19, 2014 (Doc. 1). Fabara brings three causes of action against GoFit, LLC: (i) strict product liability, see Complaint ¶¶ 10-13, at 2 (Count I); (ii) breach of implied warranty, see Complaint ¶¶ 14-17, at 3 (Count II); and (iii) negligence, see Complaint ¶¶ 18-21, at 3 (Count III). Fabara asks the Court for judgment against GoFit, LLC "for compensatory damages in a reasonable amount for the physical, emotion and financial harm suffered by plaintiff, for pre-judgment and post-judgment interest, and for taxable costs." Complaint at 4.
GoFit, LLC filed the MTD on March 17, 2015. In the MTD, GoFit, LLC asks the Court to dismiss the case, because it lacks specific and general personal jurisdiction over GoFit, LLC, and because exercising personal jurisdiction over GoFit, LLC would offend traditional notions of fair play and substantial justice. See MTD at 1. First, GoFit, LLC says that the Court lacks specific personal jurisdiction over it, because GoFit, LLC's forum-specific activities do not giverise to Fabara's claims. See MTD at 4. GoFit, LLC explains that, to establish specific personal jurisdiction, Fabara must show that: (i) GoFit, LLC purposefully directed its activities towards New Mexico; and (ii) his claims arise out of GoFit, LLC's contacts with New Mexico. See MTD at 4 (citing Kuenzle v. HTM Sport-Und Frizeitgerate, 102 F.3d 453, 456 (10th Cir. 1996)("Kuenzle")). GoFit, LLC asserts that the requirement that the plaintiff's claims arise out of the defendant's forum-related activities is "'not satisfied when the plaintiff would have suffered the same injury even if none of the defendant's forum contacts had taken place.'" MTD at 4 (quoting Kuenzle, 102 F.3d at 456-57).
GoFit, LLC contends that Kuenzle involved a plaintiff, Beverly Kuenzle, who bought ski bindings in Switzerland, brought the bindings to Wyoming for a ski trip, and suffered injuries while on the slopes in Wyoming. See MTD at 4. According to GoFit, LLC, Kuenzle brought suit in Wyoming against the bindings' manufacturer, an Austrian company. See MTD at 4. GoFit, LLC says that the United States Court of Appeals for the Tenth Circuit, in an opinion that the Honorable Stephanie K. Seymour, United States Circuit Judge for the Tenth Circuit, authored, and Judges Holloway and Briscoe joined, held that the district court did not have specific personal jurisdiction over the manufacturer, because the...
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