Pelton v. Methodist Hosp.

• Decision Date: 06 November 1997
• Docket Number: No. Civ. 97-0998 JP/LFG.,Civ. 97-0998 JP/LFG.
• Parties: Teri Ann PELTON, Plaintiff, v. METHODIST HOSPITAL, and Gurdev S. Gill, M.D., Defendants.
• Court: U.S. District Court — District of New Mexico

989 F.Supp. 1392

Teri Ann PELTON, Plaintiff, v. METHODIST HOSPITAL, and Gurdev S. Gill, M.D., Defendants.

No. Civ. 97-0998 JP/LFG.

United States District Court, D. New Mexico.

November 6, 1997.

Kurt Reif, Carlsbad, NM, for Teri Ann Pelton.

R. Alfred Walker, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, NM, for Methodist Hospital.

Alfred L. Green, Jr., Emily A. Franke, Butt, Thornton & Baehr, Albuquerque, NM, for Gurdev S Gill, M.D.

MEMORANDUM OPINION AND ORDER

PARKER, District Judge.

The subject of this Order is Defendant Methodist Hospital's Motion to Dismiss for Lack of Personal Jurisdiction [Doc. No. 12]. The plaintiff is a citizen of New Mexico and the defendant Methodist Hospital is a Texas corporation with its principal place of business in Lubbock, Texas. Under New Mexico law, a plaintiff suing in diversity has the burden of establishing that the requirements for personal jurisdiction over the defendant are met. See Allen v. Toshiba Corp., 599 F.Supp. 381, 387 (D.N.M.1984); Sanchez v. Church of Scientology of Orange County, 115 N.M. 660, 663, 857 P.2d 771 (1993).

The first step in our inquiry is to determine whether defendant Methodist Hospital has committed an act covered under New Mexico's long arm statute, NMSA 1978, § 38-1-16(A). That statute provides:

Any person ... 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; [or]

...

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

NMSA 1978, § 38-1-16(A). 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 on this section. NMSA 1978, § 38-1-16(C).

New Mexico courts have not specifically addressed what amounts to the transaction of business within New Mexico. However, the New Mexico long arm statute was taken from Illinois, and therefore Illinois law is persuasive on its interpretation. Beh v. Ostergard, 657 F.Supp. 173, 176 (D.N.M. 1987); FDIC v. Hiatt, 117 N.M. 461, 465 n. 4, 872 P.2d 879 (1994). The Illinois courts have laid out three factors in determining whether certain conduct constitutes transacting business under the long arm statute: (1) who initiated the transaction; (2) where the transaction was entered into; and (3) where the performance was to take place. Northwestern Sav. & Loan Ass'n v. Home Owners Fed. Sav. & Loan Ass'n, 706 F.Supp. 28, 29 (N.D.Ill.1989); Kadala v. Cunard Lines, Ltd., 226 Ill.App.3d 302, 168 Ill.Dec. 402, 589 N.E.2d 802, 806-07 (1992). The plaintiff has failed to demonstrate that her transaction with Methodist Hospital meets any of these factors. Methodist Hospital's uncontradicted allegations are that Methodist Hospital did not solicit plaintiff's business or initiate the transaction with plaintiff; that the transaction was entered into in Texas; and that the transaction, in the form of medical procedures and hospital care, was performed in Texas. Consequently, plaintiff has established no basis on which to invest New Mexico with jurisdiction under the "transaction of business" prong of the long-arm statute, NMSA 1978, § 38-1-16(A)(1). See Gordon v. Tow, 148 Ill.App.3d 275, 101 Ill.Dec. 394, 498 N.E.2d 718 (1986) (finding that defendant's activities did not amount to "transaction of any business" where plaintiff initiated the transaction outside Illinois, the agreement was entered into outside Illinois and the contract was to be performed outside Illinois).

Nor does an advertisement for nurses placed by the defendant in a Carlsbad, New Mexico newspaper constitute a transaction of business in this State sufficient to support plaintiff's claim of jurisdiction. The ad, which solicits applicants for nursing jobs at the hospital in Lubbock, Texas, states that the defendant offers "comprehensive health care services to our patients in West Texas and Eastern New Mexico." In construing the New Mexico long arm statute, NMSA 1978, § 38-1-16, the New Mexico Court of Appeals has stated "There must be a close relationship between the claimed transaction of business in New Mexico and the cause of action." Visarraga v. Gates Rubber Co., 104 N.M. 143, 146-47, 717 P.2d 596 (Ct.App.), cert. quashed sub nom. Visarraga v. Littlejohn's Equip. Co., 104 N.M. 137, 717 P.2d 590 (1986). Accord Rogers v. 5-Star Management, Inc., 946 F.Supp. 907, 911 (D.N.M. 1996). See Martin v. First Interstate Bank of California, 914 F.Supp. 473, 476 (D.N.M. 1995). The advertisement in question solicits nurses, not patients. Furthermore, plaintiff has not alleged that she saw the advertisement in the newspaper or that it in any way influenced her to do business with Methodist Hospital. I find that there is no relationship between defendant Methodist Hospital's advertisement in a Carlsbad newspaper seeking applicants for nursing positions and plaintiff's cause of action. Therefore, plaintiff fails to meet the requirements of NMSA 1978, § 38-1-16(A)(1).

Plaintiff also fails to show that there is jurisdiction under NMSA 1978, § 38-1-16(A)(3), which requires that Methodist Hospital have committed a tortious act within the state of New Mexico. Plaintiff alleges that she was negligently treated at Methodist Hospital in Lubbock, Texas. Furthermore, in determining where a personal injury has occurred in a tort claim, New Mexico courts generally apply the rule that the tort occurs at "the location of the last act necessary to complete the injury." Torres v. State, 119 N.M. 609, 613, 894 P.2d 386 (1995). Plaintiff pleads no facts that would support an assertion that her injury was completed anywhere but Texas. Thus, plaintiff has not met her burden of showing jurisdiction over defendant Methodist Hospital under any portion of the New Mexico long arm statute, NMSA 1978 § 38-1-16.

Even if defendant had committed an act covered by the New Mexico long arm statute, jurisdiction over Defendant Methodist Hospital would still have to satisfy due process concerns. The "constitutional touchstone" of the determination whether an exercise of personal jurisdiction comports with due process is whether the defendant purposefully established minimum contacts in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). It is insufficient if the contacts of the non-resident with the state are random,...