Sunwest Silver, Inc. v. Intern. Connection, Inc.

• Citation: 4 F.Supp.2d 1284
• Decision Date: 10 February 1998
• Docket Number: No. 97-0838 PK/WWD.,97-0838 PK/WWD.
• Parties: SUNWEST SILVER, INC., a New Mexico corporation, Plaintiff, v. INTERNATIONAL CONNECTION, INC., a foreign corporation, Defendant.
• Court: U.S. District Court — District of New Mexico

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.

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 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 Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (internal quotations and citations omitted). To satisfy this standard, at a minimum the court must determine that the defendant, through its conduct and connections with the forum state, "`purposefully avail[ed] itself of the privilege of conducting activities within the forum State.'" First City Bank, N.A. v. Air Capitol Aircraft Sales, Inc., 820 F.2d 1127, 1130-31 (10th Cir.1987) (alteration in original) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)); see also Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 455-56 (10th Cir.1996).

Sunwest essentially asserts that ICI's placement of an advertisement in a nationally distributed trade magazine and Sunwest's order and ICI's delivery of jewelry to Sunwest's New Mexico store constitute sufficient contact with the forum to support the exercise of jurisdiction over ICI. Neither of these acts, however, indicates that ICI has purposefully availed itself of the benefits and protections of New Mexico law. ICI's act of shipping the jewelry to New Mexico is attributable to Sunwest's initiation of the transaction by contacting ICI and ordering the jewelry, not to any "affirmative conduct by the defendant which promotes the transaction of business within the forum state." Martin v. First Interstate Bank, 914 F.Supp. 473, 477 (D.N.M.1995); see also Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1420 (10th Cir.1988). Courts have held repeatedly that a defendant's responses to the unilateral acts of a plaintiff are not contacts with the forum state sufficient to establish personal jurisdiction. See, e.g., Hanson, 357 U.S. at 254, 78 S.Ct. 1228; Trierweiler v. Croxton and Trench Holding Corp., 90 F.3d 1523, 1534 (10th Cir.1996); Towne, 46 F.3d at 1075; Rambo, 839 F.2d at 1420-21. Otherwise, plaintiffs would be granted "the power to manufacture personal jurisdiction in a forum that presents hardship and inconvenience to defendants." DeSantis v. Hafner Creations, Inc., 949 F.Supp. 419, 424 (E.D.Va.1996).

Similarly, the Tenth Circuit has held twice that the mere placement of an advertisement in a nationally distributed newspaper or magazine "does not rise to the level of purposeful contact with a forum required by the Constitution in order to exercise personal jurisdiction over the advertiser." Federated Rural Elec. Ins. Co. v. Kootenai Elec. Coop., 17 F.3d 1302, 1305 (10th Cir.1994); see also Williams v. Bowman Livestock Equip. Co., 927 F.2d 1128, 1131 (10th Cir.1991). Sunwest's reliance on Moore v. Graves, 99 N.M. 129, 654 P.2d 582 (Ct.App.1982), to support a contrary conclusion is unavailing. There, in addition to the defendant's advertising in a trade magazine in the forum, numerous other contacts with the state indicated the defendant had purposefully availed himself of the protection of New Mexico law. See id. at 585-86 (noting defendant had procured purchase and security agreement from plaintiff which provided that repossession of the subject property would take place in New Mexico courts). Here, although given the opportunity, Sunwest has proffered no additional allegations upon which personal jurisdiction may rest. Thus, Sunwest has not established a prima facie case which would support this court's exercise of personal jurisdiction over ICI, and dismissal of the action is proper.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Defendant International Connection Inc.'s Motion to Dismiss and for Summary Judgment filed November 21, 1997 (doc. 9), is GRANTED due to lack of personal jurisdiction over ICI. The action shall be dismissed without prejudice. Defendant's Motion to Dismiss under Rule 19 filed December 29, 1997 (doc. 27) is deemed moot.

ORDER

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