Gallegos v. Frezza

Decision Date19 March 2015
Docket Number32,606.,32,605
Citation357 P.3d 408
PartiesFernando GALLEGOS, Plaintiff–Appellant, v. Eldo FREZZA, M.D., Defendant–Appellee, and Presbyterian Health Plan, Inc., A New Mexico Domestic For–Profit Corporation, Defendant. Nellie Gonzales, Plaintiff–Appellant, v. Eldo Frezza, M.D., Defendant–Appellee, and Presbyterian Health Plan, Inc., A New Mexico Domestic For–Profit Corporation, Defendant.
CourtCourt of Appeals of New Mexico

Jones, Snead, Wertheim & Clifford, P.A., Jerry Todd Wertheim, Roxie P. Rawls–De Santiago, Samuel C. Wolf, Elizabeth C. Clifford, Santa Fe, NM, for Appellants.

Hinkle, Hensley, Shanor & Martin, LLP, William P. Slattery, Dana S. Hardy, Zachary T. Taylor, Santa Fe, NM, for Appellee.

Brown & Gay, P.C., Remo E. Gay, Melissa A. Brown, Albuquerque, NM, for Defendant Presbyterian Health Plan, Inc.



{1} Plaintiffs Nellie Gonzales and Fernando Gallegos appeal the district court's dismissal of their medical malpractice suit against Dr. Eldo Frezza, a Texas resident, for lack of personal jurisdiction. On appeal, we examine whether Dr. Frezza has sufficient contacts with the State of New Mexico to permit the state courts to assert either general or specific personal jurisdiction over him. We conclude that most of the asserted contacts with this state are insufficient to establish general jurisdiction. We remand for further proceedings, however, because the record on appeal is insufficient to address whether personal jurisdiction exists based on an arrangement between New Mexico Presbyterian Health Plan and Texas Tech Physicians Associates through which Dr. Frezza was referred New Mexico residents for care.


{2} After undergoing bariatric surgery, New Mexico residents Nellie Gonzales and Fernando Gallegos (collectively, Plaintiffs) sued Dr. Eldo Frezza for medical malpractice and Presbyterian Health Plan (Presbyterian) for breach of contract and negligent referral. Both surgeries took place in Lubbock, Texas at the Texas Tech University Health Sciences Center (the Center). Dr. Frezza was an employee of the Center, which is a governmental unit of the State of Texas. See Tex. Tech Univ. Health Scis. Ctr. v. Ward, 280 S.W.3d 345, 348 (Tex.App.2008) (stating that the Center is a governmental unit).

{3} Both Plaintiffs were employees of the State of New Mexico and covered by Presbyterian. When they sought insurance coverage for the bariatric procedure, they were directed to Dr. Frezza by Presbyterian. No other bariatric surgeons were in the Presbyterian network at that time.

{4} Dr. Frezza moved for dismissal based on the lack of personal jurisdiction and Plaintiffs' failure to state a claim. See Rule 1–012(B)(2), (6) NMRA. After a hearing at which it considered documentary evidence, the district court found that it did not have personal jurisdiction over Dr. Frezza and dismissed the complaint. The district court did not rule on Dr. Frezza's other motion. Plaintiffs appealed. Plaintiffs also filed a motion for reconsideration in the district court under Rule 1–060(B)(6) NMRA. Such motion “does not affect the finality of a judgment or suspend its operation.” Id. As of the time that briefs were submitted, the district court had not ruled on the motion for reconsideration. Additional facts are provided as pertinent to our discussion.

{5} We note that these cases are two of three presently before the Court of Appeals that are based on a similar set of facts. See Montaño v. Frezza, COA No. 32,403, 352 P.3d 666, 2015 WL 1275366 (N.M.App.2015). In Montaño, filed concurrently, we hold that the Second Judicial District Court did not err in concluding that application of Texas law would violate New Mexico public policy and denying Dr. Frezza's motion to dismiss for failure to state a claim.

A. The Law of Personal Jurisdiction

{6} The question before us on appeal is whether the district court properly concluded that it could not fairly exert jurisdiction over Dr. Frezza because he did not have sufficient contacts with New Mexico. See Zavala v. El Paso Cnty. Hosp. Dist., 2007–NMCA–149, ¶ 10, 143 N.M. 36, 172 P.3d 173 ([F]or purposes of personal jurisdiction, we ... focus on ... whether [the defendants] had the requisite minimum contacts with New Mexico to satisfy due process.”). [T]he minimum contacts required for the state to assert personal jurisdiction over a defendant depends on whether the jurisdiction asserted is general (all-purpose) or specific (case-linked).” Sproul v. Rob & Charlies, Inc., 2013–NMCA–072, ¶ 9, 304 P.3d 18. More specifically, [a] state exercises general jurisdiction over a nonresident defendant when its affiliations with the state are so continuous and systematic as to render it essentially at home in the forum state.” Id. ¶ 12 (alterations, internal quotation marks, and citation omitted). Specific jurisdiction may apply “if [a] defendant's contacts do not rise to the level of general jurisdiction, but the defendant nevertheless purposefully established contact with New Mexico.” Id. ¶ 16 (internal quotation marks and citation omitted). “In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.” Goodyear Dunlop Tires Operations, S.A. v. Brown, –––U.S. ––––, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011) (internal quotation marks and citation omitted). In analyzing a defendant's contacts with New Mexico, our focus is on the defendant's activities which ... provide the basis for personal jurisdiction, not the acts of other defendants or third parties.” Visarraga v. Gates Rubber Co., 1986–NMCA–021, ¶ 18, 104 N.M. 143, 717 P.2d 596.

{7} “Once it has been decided that a defendant purposefully established minimum contacts within the forum [s]tate, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (internal quotation marks and citation omitted). Thus, as part of the overall analysis of whether exercise of jurisdiction would comport with constitutional due process, we may consider “the burden on the defendant, the forum [s]tate's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several [s]tates in furthering fundamental substantive social policies.” Id. (internal quotation marks and citation omitted).

B. Standard of Review

{8} Here, the district court concluded that it had neither general nor specific jurisdiction over Dr. Frezza. We review this conclusion de novo. Cronin v. Sierra Med. Ctr., 2000–NMCA–082, ¶ 10, 129 N.M. 521, 10 P.3d 845. Our approach to review was stated succinctly in Cronin:

If[ ] ... a district court bases its ruling upon the parties' pleadings and affidavits, the applicable standard of review largely mirrors the standard that governs appeals from the award or denial of summary judgment. In this respect, both a district court and this appellate court must construe the pleadings and affidavits in the light most favorable to the complainant. The complainant need only make a prima facie showing that personal jurisdiction exists when a district court does not hold an evidentiary hearing.

Id. (citations omitted).

{9} Although only a prima facie showing is required, [w]hen a party contests the existence of personal jurisdiction under Rule 1–012(B)(2) and accompanies its motion with affidavits or depositions, ... the party resisting such motion may not stand on its pleadings and must come forward with affidavits or other proper evidence detailing specific facts” supporting jurisdiction. Doe v. Roman Catholic Diocese of Boise, Inc., 1996–NMCA–057, ¶ 10, 121 N.M. 738, 918 P.2d 17 ; see State ex rel. Anaya v. Columbia Research Corp., 1978–NMSC–073, ¶ 8, 92 N.M. 104, 583 P.2d 468 (holding that the state failed to establish personal jurisdiction over the defendant when it did not proffer proof of the jurisdictional facts alleged in its complaint after the defendant challenged them).

C. Plaintiffs' Allegations

{10} Given this standard of review, we set out Plaintiffs' allegations in some detail. Here, Plaintiffs made the following assertions:

2. [Dr. Frezza] is licensed to practice medicine in the State of New Mexico[;]
6. Plaintiff[s'] cause[s] of action arise[ ] from Dr. Frezza's and Presbyterian's transaction of business within the State of New Mexico through which Dr. Frezza and Presbyterian undertook to encourage New Mexico citizens to travel to Lubbock, Texas where they would receive bariatric surgery from Dr. Frezza[;]
7. Dr. Frezza used a combination of advertising in New Mexico, testimonials from former New Mexican patients, and a special relationship with Presbyterian to encourage New Mexico residents to seek treatment from him ... [;]
8. Dr. Frezza encouraged his patients to use his website to provide testimonials, prominently noting their status as New Mexico residents, in order to encourage other New Mexico residents to seek treatment from him[;]
9. Dr. Frezza used his website to reach New Mexico residents ... [;]
10. Dr. Frezza's advertising in New Mexico ... and the special relationship he developed with Presbyterian were successful efforts undertaken by [him] to secure patients from New Mexico, which constitute[s] the transaction of business within the [s]tate[;]
12. Dr. Frezza ... on numerous occasions traveled to Santa Fe and saw or treated patients during the trip ... [;]
13. On information and belief, Dr. Frezza owns six tracts of real property in the State of New Mexico, County of Taos, and is therefore also subject to general jurisdiction in ... New Mexico[;]
14. [Two] of many New Mexico citizens who learned of Dr.

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3 cases
  • Martinez v. Ye
    • United States
    • Court of Appeals of New Mexico
    • 28 Junio 2021
    ...personal jurisdiction would be appropriate. "We review [the district court's] conclusion de novo." Gallegos v. Frezza, 2015-NMCA-101, ¶ 8, 357 P.3d 408.{14} "Where, as here, the district court bases its ruling on the parties' pleadings, attachments, and non-evidentiary hearings, we apply a ......
  • Marchand v. Marchand (In re Kreindler)
    • United States
    • Court of Appeals of New Mexico
    • 17 Diciembre 2015
    ..."depends on whether the jurisdiction asserted is general (all-purpose) or specific (case-linked)." Gallegos v. Frezza, 2015-NMCA-101, ¶ 6, 357 P.3d 408 (internal quotation marks and citation omitted). General jurisdiction may be asserted over a non-resident defendant "when its affiliations ......
  • Rodriguez v. Ford Motor Co.
    • United States
    • Court of Appeals of New Mexico
    • 19 Junio 2018
    ...on its pleadings but must come forward with affidavits or other evidence supporting jurisdiction. Gallegos v. Frezza, 2015-NMCA-101, ¶ 9, 357 P.3d 408. Because the district court based its ruling on the parties' pleadings, attachments, and non-evidentiary hearings, this Court applies "a sta......

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