Sunwest Silver, Inc. v. Intern. Connection, Inc., No. 97-0838 PK/WWD.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtPaul Kelly, Jr.
Citation4 F.Supp.2d 1284
PartiesSUNWEST SILVER, INC., a New Mexico corporation, Plaintiff, v. INTERNATIONAL CONNECTION, INC., a foreign corporation, Defendant.
Decision Date10 February 1998
Docket NumberNo. 97-0838 PK/WWD.
4 F.Supp.2d 1284
SUNWEST SILVER, INC., a New Mexico corporation, Plaintiff,
v.
INTERNATIONAL CONNECTION, INC., a foreign corporation, Defendant.
No. 97-0838 PK/WWD.
United States District Court, D. New Mexico.
February 10, 1998.

Page 1285

Dennis F. Armino, Albuquerque, NM, for Plaintiff.

Henry Bohnoff, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, NM, Steven M. Rosenthal, Jonathan E. Moskin, Pennie & Edmonds, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

PAUL KELLY, Jr., Circuit Judge, Sitting by Designation.


THIS MATTER comes on for consideration of Defendant International Connection Inc.'s Motion to Dismiss and for Summary Judgment filed November 21, 1997 (doc. 9). In pertinent part, Defendant seeks dismissal of this action based upon lack of personal jurisdiction. Pursuant to this court's order dated December 22, 1997 (doc. 23), the parties were granted thirty days to complete discovery confined to the issue of personal jurisdiction. The time allowed for discovery has expired, and no additional evidence has been presented to the court. This matter is thus ripe for consideration, and the court, being fully advised in the premises, finds that the motion to dismiss is well taken on that ground, and should be granted.

Background

The court has reviewed the complaint and the affidavits submitted by both parties, and the facts relating to the jurisdictional issue are not materially in dispute. Sunwest Silver, Inc. (Sunwest) is a New Mexico corporation which designs, manufactures, and sells jewelry. Sunwest alleges International Connection, Inc. (ICI), a New York corporation with its principal place of business in New York, manufactured and distributed illegal copies of nine of Sunwest's original jewelry designs in several states, including New Mexico.

In January 1996, ICI placed one advertisement containing three of the nine disputed designs in Accent magazine, a New York trade publication. Although the parties dispute Accent magazine's breadth of distribution in New Mexico, and no evidence has been submitted regarding the magazine's circulation in New Mexico, it is undisputed that Sunwest subscribes to Accent magazine. Sunwest's president Ernest Montoya saw the Accent magazine advertisement containing the three disputed designs and ordered several pieces of jewelry from ICI by telephone, which were then delivered to Sunwest Silver's New Mexico store. With the exception of Sunwest's order, which accounted for less than .005 percent of ICI's annual sales, ICI has never sold any of the allegedly copied designs to purchasers in New Mexico. ICI has no contacts with the state of New Mexico; it maintains no bank accounts, telephone listings, offices, agents or representatives in New Mexico, and does not own or lease any real or personal property in New Mexico.

Discussion

The submission of affidavits in connection with a motion to dismiss for lack of personal jurisdiction does not convert the motion into one for summary judgment; thus, the court examines this jurisdictional issue pursuant to the standards applicable to a 12(b)(2) motion. See Attwell v. LaSalle Nat'l Bank, 607 F.2d 1157, 1161 (5th Cir. 1979), cert. denied, 445 U.S. 954, 100 S.Ct. 1607, 63 L.Ed.2d 791 (1980). To survive a motion to dismiss for lack of personal jurisdiction made pursuant to Fed.R.Civ.P. 12(b)(2), a plaintiff need only make a prima facie showing that the court may exercise personal jurisdiction over the defendant. See Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1075 (10th Cir.1995); Behagen v. Amateur Basketball Ass'n, 744 F.2d 731, 733 (10th Cir.1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171 (1985). In considering whether a plaintiff has met this burden, the court may not weigh the factual evidence before it. See Ten Mile Indus. Park v. Western Plains Service Corp., 810 F.2d 1518, 1524 (10th Cir.1987). Instead, the court applies the law to the well pleaded facts as set forth in the complaint and affidavits and determines whether the plaintiff's jurisdictional allegations are sufficient. See id. Accordingly, the plaintiff's jurisdictional allegations, as supported by affidavit, must establish that the defendant's contacts with the state would support the exercise of jurisdiction. See id. All factual disputes raised

Page 1286

by the parties' affidavits are resolved in favor of the plaintiff; if the plaintiff's prima facie showing is sufficient, the motion is denied notwithstanding the defendant's assertions. See id.

Where federal statutes governing the claims in a federal question case do not specifically provide for national service of process, the court applies the law of the forum state — here, New Mexico — to determine whether it has personal jurisdiction over a nonresident defendant. See Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104-05, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987); Janmark, Inc. v. Reidy, 132 F.3d 1200 (7th Cir.1997); PDK Labs, Inc., v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997). Under New Mexico's long-arm statute,1 a plaintiff must show that the defendant committed one of the acts enumerated in the statute, that the cause of action arises from that act, and that the defendant's contacts with the state of New Mexico are sufficient to satisfy the due process requirements of the federal Constitution. See Rogers v. 5-Star Management, 946 F.Supp. 907, 910 (D.N.M.1996). This court need not determine whether Sunwest has established the first two elements of this analysis, because Sunwest cannot establish as a matter of federal constitutional law that ICI's contacts with the state of New Mexico support the exercise of personal jurisdiction.

A forum state may constitutionally assert personal jurisdiction over a non-resident defendant only where the defendant has purposefully established minimum contacts with the forum state. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Defendant's minimum contacts with the forum state are sufficient to support the exercise of personal jurisdiction if "maintenance of the suit does not offend traditional notions of fair play and substantial justice." World-Wide...

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22 practice notes
  • Easterling v. American Optical Corp., No. 26566.
    • United States
    • Supreme Court of West Virginia
    • March 24, 2000
    ...Topliff v. Atlas Air, Inc., 60 F.Supp.2d 1175, 1177 (D.Kan.1999); Sunwest Silver, Inc. v. International Connection, Inc., 4 F.Supp.2d 1284, 1285 (D.N.M.1998); Bensusan Restaurant Corp. v. King, 937 F.Supp. 295, 298 (S.D.N.Y. 1996); VDI Tech. v. Price, 781 F.Supp. 85, 87 (D.N.H.1991); Coan v......
  • McManemy v. Roman Catholic Church of the Diocese of Worcester, No. 2:13–CV–00422–WJ/CG.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • November 19, 2013
    ...may be presented and are freely considered on a motion attacking jurisdiction. See Sunwest Silver, Inc. v. Int'l Connection, Inc., 4 F.Supp.2d 1284, 1285 (D.N.M.1998); Jones v. 3M Company, 107 F.R.D. 202, 204 (D.N.M.1984). When such evidence is presented to support personal jurisdiction, th......
  • System Designs, Inc. v. New Customware Co., Inc., No. 2:01-CV-0070PGC.
    • United States
    • U.S. District Court — District of Utah
    • March 5, 2003
    ...1247 (10th Cir.2000). 52. 2002 WL 1917258 (N.D.Ill. Aug.20, 2002) p. 1. 53. See Sunwest Silver, Inc. v. International Connection, Inc. 4 F.Supp.2d 1284 (D.N.M. 1998) citing Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Co-op. 17 F.3d 1302, 1305 (10th Cir.1994); and Williams v. Bowman L......
  • Smith v. Cutler, Civil No. 07-78 WJ/DJS.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 18, 2007
    ...matter may be presented and are freely considered on a motion attacking jurisdiction. See Sunwest Silver, Inc. v. Ina Connection, Inc., 4 F.Supp.2d 1284, 1285 (D.N.M.1998); Jones v. 3M Company, 107 F.R.D. 202, 204 I. Legal Standard "Federal courts sitting in diversity have personal jurisdic......
  • Request a trial to view additional results
22 cases
  • Easterling v. American Optical Corp., No. 26566.
    • United States
    • Supreme Court of West Virginia
    • March 24, 2000
    ...Topliff v. Atlas Air, Inc., 60 F.Supp.2d 1175, 1177 (D.Kan.1999); Sunwest Silver, Inc. v. International Connection, Inc., 4 F.Supp.2d 1284, 1285 (D.N.M.1998); Bensusan Restaurant Corp. v. King, 937 F.Supp. 295, 298 (S.D.N.Y. 1996); VDI Tech. v. Price, 781 F.Supp. 85, 87 (D.N.H.1991); Coan v......
  • McManemy v. Roman Catholic Church of the Diocese of Worcester, No. 2:13–CV–00422–WJ/CG.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • November 19, 2013
    ...may be presented and are freely considered on a motion attacking jurisdiction. See Sunwest Silver, Inc. v. Int'l Connection, Inc., 4 F.Supp.2d 1284, 1285 (D.N.M.1998); Jones v. 3M Company, 107 F.R.D. 202, 204 (D.N.M.1984). When such evidence is presented to support personal jurisdiction, th......
  • System Designs, Inc. v. New Customware Co., Inc., No. 2:01-CV-0070PGC.
    • United States
    • U.S. District Court — District of Utah
    • March 5, 2003
    ...1247 (10th Cir.2000). 52. 2002 WL 1917258 (N.D.Ill. Aug.20, 2002) p. 1. 53. See Sunwest Silver, Inc. v. International Connection, Inc. 4 F.Supp.2d 1284 (D.N.M. 1998) citing Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Co-op. 17 F.3d 1302, 1305 (10th Cir.1994); and Williams v. Bowman L......
  • Smith v. Cutler, Civil No. 07-78 WJ/DJS.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 18, 2007
    ...matter may be presented and are freely considered on a motion attacking jurisdiction. See Sunwest Silver, Inc. v. Ina Connection, Inc., 4 F.Supp.2d 1284, 1285 (D.N.M.1998); Jones v. 3M Company, 107 F.R.D. 202, 204 I. Legal Standard "Federal courts sitting in diversity have personal jurisdic......
  • Request a trial to view additional results

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