Walker v. THI of New Mexico at Hobbs Ctr. 

• Citation: 801 F.Supp.2d 1128
• Decision Date: 06 July 2011
• Docket Number: No. CIV 09–0060 JB/KBM.,CIV 09–0060 JB/KBM.
• Parties: Sarah WALKER, Plaintiff, v. THI OF NEW MEXICO AT HOBBS CENTER d/b/a Hobbs Health Care Center, Diana Melton, Jaime Andujo, Debbie Lothridge, Karen Hood (Miller), THI of New Mexico, LLC, Fundamental Clinical Consulting, LLC, Fundamental Administrative Services, LLC, THI of Baltimore, Inc., and Fundamental Long–Term Care Holdings, LLC, Defendants,andTHI of New Mexico at Hobbs Center, LLC, THI of New Mexico, LLC, Fundamental Administrative Services, LLC, and Fundamental Clinical Consulting, LLC, Counter–Plaintiffs, v. Sarah Walker, Counter–Defendant.
• Court: U.S. District Court — District of New Mexico

801 F.Supp.2d 1128

Sarah WALKER, Plaintiff,

v.THI OF NEW MEXICO AT HOBBS CENTER d/b/a Hobbs Health Care Center, Diana Melton, Jaime Andujo, Debbie Lothridge, Karen Hood (Miller), THI of New Mexico, LLC, Fundamental Clinical Consulting, LLC, Fundamental Administrative Services, LLC, THI of Baltimore, Inc., and Fundamental Long–Term Care Holdings, LLC, Defendants,andTHI of New Mexico at Hobbs Center, LLC, THI of New Mexico, LLC, Fundamental Administrative Services, LLC, and Fundamental Clinical Consulting, LLC, Counter–Plaintiffs,

v.Sarah Walker, Counter–Defendant.

No. CIV 09–0060 JB/KBM.

United States District Court, D. New Mexico.

July 6, 2011.

Katherine E. Murray, Daniel Yohalem, Richard Rosenstock, Santa Fe, NM, for Plaintiffs.

Danny Jarrett, Trent A. Howell, Jackson Lewis, LLP, Albuquerque, NM, Lori D. Proctor, Johnson, Trent, West & Taylor, LLP, Houston, TX, for Defendants THI of New Mexico at Hobbs Center, LLC and THI of New Mexico, LLC.

Barbara G. Stephenson, Quentin Smith, Sheehan & Sheehan, P.A., Albuquerque, NM, for Defendants Fundamental Administrative Services, LLC, Karen Hood (Miller), Debbie Lothridge, and Diana Melton.John A. Bannerman, Margaret A. Graham, Bannerman & Johnson, P.A., Albuquerque, NM, for Defendants Jaime Andujo and Fundamental Clinical Consulting, LLC.Colin T. Cameron, Rubin, Katz Law Firm, Santa Fe, NM, Rick L. Brunner, Columbus, OH, for Defendants Diana Melton, Jaime Andujo, Debbie Lothridge, and Karen Hood (Miller).

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) Defendant THI of Baltimore, Inc.'s Motion to Dismiss Pursuant to Rules 12(b)(1), (2), and (6), filed February 2, 2011 (Doc. 183); and (ii) Defendant Fundamental Long Term Care Holdings, LLC's Motion to Dismiss Pursuant to Rules 12(b)(1), (2), and (6), filed February 25, 2011 (Doc. 211). The Court held a hearing on April 29, 2011. The primary issues are: (i) whether the Court has personal jurisdiction over Defendant THI of Baltimore, Inc. (“THI of Baltimore”), because THI of Baltimore has minimum contacts with New Mexico such that maintenance of Walker's suit against THI of Baltimore does not offend traditional notions of fair play and substantial justice; and (ii) whether the Court has personal jurisdiction over Defendant Fundamental Long Term Care Holdings, LLC (“FLTCH”), because FLTCH has minimum contacts with New Mexico such that maintenance of Walker's suit against FLTCH does not offend traditional notions of fair play and substantial justice. The Court will grant THI of Baltimore's and FLTCH's motions to dismiss, because Walker has not made a prima-facie showing that either THI of Baltimore or FLTCH have minimum contacts with New Mexico sufficient to satisfy due-process concerns.

FACTUAL BACKGROUND

Walker was employed as a Business Office Manager (“BOM”) at Defendant THI of New Mexico at Hobbs Center (“THI of Hobbs”), a nursing home in Hobbs, New Mexico, from August 2005 until January 2007. See, e.g., Second Amended Complaint ¶ 3, at 2, filed December 14, 2009 (Doc. 50) (“SAC”). Walker, an African American, alleges that the Defendants unlawfully subjected her to numerous acts of racial discrimination and terminated her employment with THI of Hobbs because of her race. See SAC ¶ 1, at 1. Additional background on the case is set forth in the Court's Memorandum Opinion and Order deciding Walker's first motion to compel discovery. See Walker v. THI of N.M. at Hobbs Ctr., No. CIV 09–0060 JB/RLP, 2010 WL 552661, at *1–4 (D.N.M. Feb. 8, 2010) (Browning, J.).

FLTCH wholly owns THI of Baltimore. See Nursing Facility Licensure Application at 2, 4, filed March 25, 2011 (Doc. 248, Ex. 2, Ex. A) (“Nursing Licensure Application”); Declaration of Eva Gonzalez, ¶ 4, at 2 (dated February 23, 2011), filed February 25, 2011 (Doc. 212–1). FLTCH is the sole member of Defendant Fundamental Administrative Services, LLC (“FAS”), which has no subsidiaries. Defendant Fundamental Administrative Services, LLC's Answers to Plaintiff's First Interrogatories Interrogatory No. 14, filed March 25, 2011 (Doc. 248, Ex. 3) (“FAS' Answers to Interrogatories”). THI of Baltimore is the sole member of Defendant Fundamental Clinical Consulting, LLC (“FCC”), which has no subsidiaries. Defendant Fundamental Clinical Consulting, LLC's Answers to Plaintiff's First Interrogatories Interrogatory No. 15, filed March 25, 2011 (Doc. 248, Ex. 3) (“FCC's Answers to Interrogatories”). THI of Baltimore wholly owns Defendant THI of New Mexico (“THI of New Mexico”). Nursing Licensure Application at 2, 4. See Gonzales Decl. ¶ 3, at 2. During the relevant time period, THI of New Mexico wholly owned THI of Hobbs. See Nursing Licensure Application at 2, 4.

FLTCH's address is 930 Ridgebrook Road, Sparks, Maryland. See Deposition of Christine Zack at 183:9–13, Prendergast v. Fundamental Long Term Care Holdings, LLC, Civ. No. 07–1265 CEG/LFG (D.N.M.), filed March 25, 2011 (Doc. 248, Ex. 10). THI of Baltimore's address is 930 Ridgebrook Road, Sparks, Maryland. See Zack Depo. at 170:24–170:3. FAS' address is 930 Ridgebrook Road, Sparks, Maryland. See Electronic Mail Transmission from Wade R. Swanson to Whitney Warner at 1, filed March 25, 2011 (Doc. 248, Ex. 11) (“Swanson Electronic Mail Transmission”).

FLTCH is a Delaware limited liability company with its principal place of business in Sparks, Maryland. See Gonzales Decl. ¶ 3, at 1–2. FLTCH has not filed, nor has it ever sought to file, Articles of Incorporation or Articles of Organization with the State of New Mexico at any time; it has never been incorporated or regulated to do business in New Mexico at any time; and it is not authorized, and has never been authorized to do business in New Mexico. See Gonzales Decl. ¶ 5, at 2. FLTCH maintains that it is not and has never been engaged in the transaction of any business or the performance of any services in the State of New Mexico. See Gonzales Decl. ¶ 5, at 2. Since 2006, when FLTCH acquired THI of Baltimore and its subsidiaries, FLTCH “has been treated for federal tax purposes as the holding company for pass through entities.” Gonzales Decl. ¶ 6, at 2. The pass-through entities are the individual nursing and rehabilitation facilities. See Gonzales Decl. ¶ 6, at 2. “As a practical matter, that means FLTCH files a single tax return in each of the approximately 20 states in which the facilities do business (and in which this method of taxation is allowed), on behalf of all of its subchapter S companies, such as THI of New Mexico at Hobbs Center, LLC.” Gonzales Decl. ¶ 6, at 2. FLTCH is not, and has never been, a resident of New Mexico, and it has never been required to maintain, and has never maintained, any mailing address or telephone listing in the State of New Mexico at any time. See Gonzales Decl. ¶ 7, at 3. FLTCH does not maintain, and has never maintained a place of business in New Mexico, and does not have, and has never had, an agent or employee who was based in New Mexico, and it has never contracted to supply services or things in the State of New Mexico. See Gonzales Decl. ¶ 7, at 3. “FLTCH does not own or lease, and has never owned or leased, any real property in New Mexico, and has never paid any property taxes in New Mexico.” Gonzales Decl. ¶ 8, at 3. FLTCH does not own or lease, and has never owned or leased, any equipment located in New Mexico and does not have, and has never had, any accounts with any financial institutions in New Mexico. See Gonzales Decl. ¶ 8, at 3. “FLTCH has no employees, and thus has no payroll, benefits, personnel or training departments. Consequently, FLTCH does not prepare or issue paychecks to any employees of its subsidiaries. FLTCH also does not establish any personnel or payroll policies, or control the personnel issues of the entities....” Gonzales Decl. ¶ 9, at 3. FLTCH does not pay the salaries, expenses, or losses of any of the named Defendants. See Gonzales Decl. ¶ 9, at 3.

THI of Baltimore is not authorized, and has never been authorized, to do business in New Mexico. See Declaration of Kenneth Tabler ¶ 11, at 2 (dated February 2, 2011), filed February 2, 2011 (Doc. 184–1). THI of Baltimore is not, and has never been, engaged in the transaction of any business or the performance of any services in the State of New Mexico. See id. ¶ 11, at 2. THI of Baltimore has no employees, and thus conducts no operations in New Mexico or anywhere else. See id. ¶ 10, at 2. THI of Baltimore is not, and has never been a resident of New Mexico, and has never been required to maintain, or maintained, a registered agent for service of process in New Mexico. See Tabler Decl. ¶ 12, at 3. THI of Baltimore has never maintained a mailing address, telephone listing, or a place of business in New Mexico, and has never had an agent or employee based in New Mexico. See Tabler Decl. ¶ 12, at 3. THI of Baltimore has never owned or leased any real property, personal property, or equipment in New Mexico, and has never had any accounts with financial institutions in New Mexico. See Tabler Decl. ¶ 15, at 3. THI of Baltimore does not provide goods or services to the general public, including New Mexico, has never contracted to supply goods or services in New Mexico, has never contracted to supply goods or services in New Mexico, and has made no sales in New Mexico. See Tabler Decl. ¶ 17, at 3. THI of Baltimore has never paid any taxes or filed any tax returns in New Mexico. See Tabler Decl. ¶ 19, at 4. THI of Baltimore has never been the licensee of and did not own, operate or control any facility in Hobbs, and has never operated, managed, or controlled any other skilled nursing facilities. See Tabler Decl. ¶ 22, at 4.

FLTCH's two directors are Mary Foreman and Leonard Grunstein. See Zack Depo. at 183:14–16. THI of Baltimore's officers and directors are Kenneth Tabler, W. Bradley Bennett, and Mark Fulchino. See Deposition of Kenneth Tabler at 10:15–17, 12:13–17, Prendergast v....