2018 New Mexico Statutes
Chapter 38 - Trials
Article 1 - Process
Section 38-1-16 - Personal service of process outside state.
A. Any person, whether or not a citizen or resident of this state, 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;
(2) the operation of a motor vehicle upon the highways of this state;
(3) the commission of a tortious act within this state;
(4) the contracting to insure any person, property or risk located within this state at the time of contracting;
(5) with respect to actions for divorce, separate maintenance or annulment, the circumstance of living in the marital relationship within the state, notwithstanding subsequent departure from the state, as to all obligations arising from alimony, child support or real or personal property settlements under Chapter 40, Article 4 NMSA 1978 if one party to the marital relationship continues to reside in the state.
B. Service of process may be made upon any person subject to the jurisdiction of the courts of this state under this section by personally serving the summons upon the defendant outside this state and such service has the same force and effect as though service had been personally made within this state.
C. 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 upon this section.
D. Nothing contained in this section limits or affects the right to serve any process in any other manner now or hereafter provided by law.
History: 1953 Comp., § 21-3-16, enacted by Laws 1959, ch. 153, § 1; 1971, ch. 103, § 1.
Cross references. — For substituted service of process upon corporations generally, see 38-1-5 NMSA 1978.
For service of process upon foreign corporations generally, see 38-1-6 NMSA 1978.
For service of process upon unauthorized insurers, see 38-1-8 NMSA 1978.
For service of process upon registered agent of domestic corporation, see 53-11-14 NMSA 1978.
For service of process upon registered agent of foreign corporation, see 53-17-11 NMSA 1978.
For appointment of superintendent of insurance as attorney for service of process upon insurance companies, see 59A-5-31 NMSA 1978.
For appointment of secretary of state as agent for service of process upon nonresident owners and operators of motor vehicles, see 66-5-103 NMSA 1978.
For service of process in civil actions in district courts generally, see Rule 1-004 NMRA.
I. GENERAL CONSIDERATION.
Engaging in non-jurisdictional discovery was not a waiver of the jurisdictional defense. — Where defendant was a New York corporation that owned and operated a hotel in Texas pursuant to a franchise agreement with a franchisor which owned the hotel's brand; plaintiff, who was a guest at defendant's hotel in Texas, was injured while using equipment in the hotel's exercise facility; plaintiff sued defendant in New Mexico for personal injuries; and defendant filed an answer together with a motion to dismiss for lack of personal jurisdiction and sent plaintiff interrogatories, a request for production of documents, and requested authorizations to obtain records relating to plaintiff, defendant did not waive its jurisdictional defense by engaging in non-jurisdictional discovery. Trei v. AMTX Hotel Corp., 2014-NMCA-104.
Unauthorized credit reports. — Personal jurisdiction can be found to exist in a forum where a non-resident defendant obtains credit reports without the permission of the resident plaintiff. Smith v. Cutler, 504 F. Supp. 2d 1162 (D.N.M. 2007).
Constitutionality of section generally. — This section does not violate the due process clause of the fourteenth amendment to the constitution of the United States. Melfi v. Goodman, 1962-NMSC-020, 69 N.M. 488, 368 P.2d 582.
Separation of powers. — This section is not an unconstitutional invasion of the judicial branch in violation of the separation of powers provision of the constitution. Gray v. Armijo, 1962-NMSC-082, 70 N.M. 245, 372 P.2d 821; see also Clews v. Stiles, 303 F.2d 290 (10th Cir. 1960).
Retroactive application. — In adopting this section, the New Mexico legislature adopted the construction of the Illinois courts that the section has retroactive effect. Clews v. Stiles, 303 F.2d 290 (10th Cir. 1960).
Section is procedural in nature, and retrospective application does not affect substantial rights in violation of the constitution. Gray v. Armijo, 1962-NMSC-082, 70 N.M. 245, 372 P.2d 821.
Construction of section. — This section is a statute in derogation of the common law and must be strictly construed. Worland v. Worland, 1976-NMSC-027, 89 N.M. 291, 551 P.2d 981.
Because this section was adopted from the Illinois statutes, it is presumed that the New Mexico legislature also adopted the prior construction of the statute by the highest courts of Illinois, and while this presumption is not conclusive, it is persuasive. Melfi v. Goodman, 1962-NMSC-020, 69 N.M. 488, 368 P.2d 582.
New Mexico's long-arm statute was taken from Illinois, and the interpretations by the Illinois courts of the Illinois statute are persuasive. Telephonic, Inc. v. Rosenblum, 1975-NMSC-067, 88 N.M. 532, 543 P.2d 825.
Jurisdictional test. — In order to satisfy the requirements of this section, and invest the courts of New Mexico with jurisdiction, the act complained of must meet a three-prong test: (1) defendant must do one of the acts enumerated in Subsection A; (2) plaintiff's cause of action must arise from the specified act; and (3) defendant must have minimum contacts sufficient to satisfy due process. Visarraga v. Gates Rubber Co., 1986-NMCA-021, 104 N.M. 143, 717 P.2d 596, cert. quashed sub nom. Vissarraga v. Littlejohn's Equip. Co., Inc., 104 N.M. 137, 717 P.2d 590 (1986); Sanchez v. Church of Scientology, 1993-NMSC-034, 115 N.M. 660, 857 P.2d 771.
Section establishes two requirements for the assertion of jurisdiction over a nonresident not within the state. First, the defendant must have done one of the acts enumerated in the section; and second, the plaintiff's cause of action must arise from defendant's doing the act. Winward v. Holly Creek Mills, Inc., 1972-NMSC-009, 83 N.M. 469, 493 P.2d 954; Benally v. Hundred Arrows Press, Inc., 614 F. Supp. 969 (D.N.M. 1985), rev'd on other grounds sub nom. Benally v. Amon Carter Museum of W. Art, 858 F.2d 618 (10th Cir. 1988).
In personam jurisdiction in New Mexico over nonresident defendants has three elements: the court must first determine whether the defendant has committed one of the acts enumerated in this section as a basis for exercising extra-territorial jurisdiction. If the court so finds, it must then determine whether the cause of action arises from the acts enumerated. The court must then analyze whether the defendant has had "minimum contacts" with the state of New Mexico sufficient to satisfy the requirements of the due process clause of the United States constitution. Beh v. Ostergard, 657 F. Supp. 173 (D.N.M. 1987).
Specific jurisdiction based on stream of commerce theory. — A manufacturer of an allegedly defective component part that has placed the component part into a distribution channel with the expectation that it will be sold in the national market cannot be insulated from liability simply because the manufacturer does not specifically target or know that its products are being marketed in New Mexico. Sproul v. Rob & Charlie's Inc., 2013-NMCA-072.
Where plaintiff was thrown off a bicycle because the front wheel, which had a quick-release mechanism that was manufactured by appellee, separated from the bicycle's front fork assembly; appellee had its principal place of business in China and Taiwan and its manufacturing facilities were located in China; appellee sold its products internationally to bicycle manufacturers, had no distributors or clients in New Mexico, and did not know where the bicycles that incorporated its quick-release mechanism were sold; appellee had a full-time marketing and sales employee in California who sold appellee's products and provided customer services and support to appellee's clients in the United States; appellee did business with six bicycle manufacturers in the United States, including the third-party defendant who was a nation-wide distributor of bicycle parts located in Florida and who served the New Mexico market; plaintiff purchased the bicycle from defendant who was a retailer located in New Mexico, appellee had sufficient minimum contacts with New Mexico through appellee's distribution system to subject it to personal jurisdiction in New Mexico. Sproul v. Rob & Charlie's Inc., 2013-NMCA-072.
Burden of proof of jurisdictional allegations. — Generally, where jurisdiction is based on process served under this section, the plaintiff has the burden to prove the jurisdictional allegations at the hearing on defendant's motion to dismiss, but where defendant challenges all but one ground of alleged jurisdiction, the trial court did not err in failing to put the plaintiff to its jurisdictional proof in advance of trial. Plumbers Specialty Supply Co. v. Enter. Prod. Co., 1981-NMCA-083, 96 N.M. 517, 632 P.2d 752.
Burden of proof. — The least quantity of contacts possible in a given case upholds the maintenance of an action in the state forum. When such contacts are established, the burden shifts to the nonresident defendant to present facts that will convince the forum court that it would offend traditional notions of fair play and substantial justice. Moore v. Graves, 1982-NMCA-170, 99 N.M. 129, 654 P.2d 582.
A plaintiff must show that a defendant did an act included in the long-arm statute. Sublett v. Wallin, 2004-NMCA-089, 136 N.M. 102, 94 P.3d 845.
In order to determine personal jurisdiction based on a website, an approach that, at a minimum, requires a degree of interactivity on the site is adopted. Sublett v. Wallin, 2004-NMCA-089, 136 N.M. 102, 94 P.3d 845.
Physical presence of defendant within state not required. — Personal jurisdiction over a nonresident does not depend upon the physical presence of the defendant within the state. Moore v. Graves, 1982-NMCA-170, 99 N.M. 129, 654 P.2d 582.
Case by case determinations. — In order to subject a defendant to a judgment in personam, if he not be present within the territory of the forum, he must have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice," and what determines whether the defendant has sufficient contact to satisfy this test must be decided case by case. Hunter-Hayes Elevator Co. v. Petroleum Club Inn Co., 1966-NMSC-218, 77 N.M. 92, 419 P.2d 465.
Mere mailings not enough contact. — Ordinarily, use of the mails, telephone, or other international communications simply does not qualify as purposeful activity invoking the benefits and protection of the forum state. Sanchez v. Church of Scientology, 1993-NMSC-034, 115 N.M. 660, 857 P.2d 771.
Nonresident guarantying note insufficient for in personam jurisdiction. — Signing of a guaranty by a nonresident of a debt owed to a New Mexico creditor does not in and of itself constitute a sufficient contact upon which to base in personam jurisdiction over a nonresident. Rather, the circumstances surrounding the signing of such obligations must be closely examined in each case to determine whether the quality and nature of defendant's contacts with New Mexico justify the assertion of personal jurisdiction over him in an action on the obligation. FDIC v. Hiatt, 1994-NMSC-044, 117 N.M. 461, 872 P.2d 879.
No personal jurisdiction over defendants who send bills to residents. — New Mexico lacks personal jurisdiction over out-of-state defendants who send statements for payment of medical services rendered, which statements are received by plaintiffs in New Mexico. Tarango v. Pastrana, 1980-NMCA-110, 94 N.M. 727, 616 P.2d 440.
No personal jurisdiction over doctors where plaintiff claims out-of-state treatment. — New Mexico lacks personal jurisdiction over defendant doctors who have never conducted activities within New Mexico, where the basis of plaintiff's claim is her unilateral activity (medical treatment) in defendants' state of residence. Tarango v. Pastrana, 1980-NMCA-110, 94 N.M. 727, 616 P.2d 440.
Mailing of collection letters sufficient for jurisdiction. — District court properly exercised personal jurisdiction over California debt collection agency which sent one or more collection letters to a New Mexico resident when the cause of action was based upon that contact. Russey v. Rankin, 837 F. Supp. 1103 (D.N.M. 1993).
Assertion of lien insufficient. — Giving notice by mail and assertion of an attorney's charging lien by a nonresident attorney upon the proceeds of a settlement obtained by a New Mexico lawyer did not subject the nonresident to personal jurisdiction of a New Mexico court under the long-arm statute. Robinson-Vargo v. Funyak, 1997-NMCA-095, 123 N.M. 822, 945 P.2d 1040.
Allegations of conspiracy not sufficient. — Mere allegations of conspiracy, without some sort of prima facie factual showing of a conspiracy, cannot be the basis of personal jurisdiction of co-conspirators outside the territorial limits of the court. Sanchez v. Church of Scientology, 1993-NMSC-034, 115 N.M. 660, 857 P.2d 771.
No jurisdiction based on actions subsequent to claim. — As a general rule, the existence of personal jurisdiction may not be established by events which have occurred after the acts which gave rise to the plaintiff's claims. Doe v. Roman Catholic Diocese of Boise, Inc., 1996-NMCA-057, 121 N.M. 738, 918 P.2d 17, cert. denied, 121 N.M. 693, 917 P.2d 962.
Facts showed sufficient minimum contacts conferring in personam jurisdiction. Barker v. Barker, 1980-NMSC-024, 94 N.M. 162, 608 P.2d 138.
Personal jurisdiction to award attorney's fees, costs and travel costs cannot be based on this section. Worland v. Worland, 1976-NMSC-027, 89 N.M. 291, 551 P.2d 981.
Question whether claims arise from activities subjecting defendant to jurisdiction of state must be decided on case-by-case basis. Winward v. Holly Creek Mills, Inc., 1972-NMSC-009, 83 N.M. 469, 493 P.2d 954.
Cause of action held to arise from acts subjecting defendant to jurisdiction of state. — Where cause of action is based on sale of a majority stock ownership in a New Mexico corporation, in violation of an agreement made in New Mexico with a citizen of New Mexico, this would satisfy the requirements of this section. Pope v. Lydick Roofing Co., 1970-NMSC-090, 81 N.M. 661, 472 P.2d 375.
Manner of service of process. — Although substituted service is not explicitly provided for in this section, the legislature's purpose in adopting the statute was to permit service of process on out-of-state persons in the same manner as process may be served upon residents of the state. The procedure for service of process in New Mexico, outlined in the rules of civil procedure, applies to actions which are brought under this section. Vann Tool Co. v. Grace, 1977-NMSC-054, 90 N.M. 544, 566 P.2d 93.
Substituted service was insufficient to grant jurisdiction where defendants testified that they no longer lived at the residence where service was posted, and where there was no return of service indicating that the questioned address was defendants' "usual place of abode" to rebut that testimony. Vann Tool Co. v. Grace, 1977-NMSC-054, 90 N.M. 544, 566 P.2d 93.
Service of process on New Mexico driver by serving a copy of the summons, complaint and court order upon the driver by an Arizona sheriff was valid under this section. Crawford v. Refiners Coop. Ass'n, 1962-NMSC-131, 71 N.M. 1, 375 P.2d 212.
Preemption by federal law. — District court jurisdiction in ex-wife's case seeking declaration of her interest in husband's military retirement pay could not be predicated on this section since it was preempted by federal law. Sparks v. Caldwell, 1986-NMSC-053, 104 N.M. 475, 723 P.2d 244.
II. TRANSACTIONS OF BUSINESS.
A. IN GENERAL.
Passive website. — A passive website, which merely provides information and offers no opportunity for interaction, will ordinarily not be enough to support personal jurisdiction. Sublett v. Wallin, 2004-NMCA-089, 136 N.M. 102, 94 P.3d 845.
Long-arm jurisdiction more than technical "transaction" or "commission". — The question of personal jurisdiction over out-of-state residents involves more than a technical "transaction of any business" or the technical "commission of a tortious act" within New Mexico: the meaning of those terms, in this section, is to be equated with the minimum contacts sufficient to satisfy due process. Tarango v. Pastrana, 1980-NMCA-110, 94 N.M. 727, 616 P.2d 440.
"Transaction of business" requires certain minimal contracts by the defendant or his agent within the forum. Hunter-Hayes Elevator Co. v. Petroleum Club Inn Co., 1966-NMSC-218, 77 N.M. 92, 419 P.2d 465.
To subject a defendant to in personam jurisdiction if he is not within the state, there must be certain "minimum contacts" with the state, so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Winward v. Holly Creek Mills, Inc., 1972-NMSC-009, 83 N.M. 469, 493 P.2d 954.
Test to meet federal due process in order to subject a defendant to a judgment in personam when he is not present in the forum is that defendant must have certain minimum contacts with forum such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." McIntosh v. Navaro Seed Co., 1970-NMSC-040, 81 N.M. 302, 466 P.2d 868.
This section relates to the "minimum contacts" with New Mexico which are required to constitute the transaction of business within this state, and it is the transaction of such business within the state which makes the exercise of in personam jurisdiction under this section consistent with "traditional notions of fair play and substantial justice" and secures unto the defendant his constitutional right to due process. Telephonic, Inc. v. Rosenblum, 1975-NMSC-067, 88 N.M. 532, 543 P.2d 825.
Insofar as the acquisition of long-arm jurisdiction under this section is concerned, the "transaction of business" is equated with the due process standard of "minimum contacts" sufficient to satisfy the "traditional conception of fair play and substantial justice" announced in International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). Telephonic, Inc. v. Rosenblum, 1975-NMSC-067, 88 N.M. 532, 543 P.2d 825.
Doing or transacting business is doing a series of similar acts for the purpose of thereby realizing pecuniary benefit, or otherwise accomplishing an object, or doing a single act for such purpose with the intention of thereby initiating a series of such acts. Telephonic, Inc. v. Rosenblum, 1975-NMSC-067, 88 N.M. 532, 543 P.2d 825; Plumbers Specialty Supply Co. v. Enter. Prod. Co., 1981-NMCA-083, 96 N.M. 517, 632 P.2d 752.
Single act as minimum contact. — This section refers to "any transaction of business" and a single transaction negotiated, or to be performed, within the forum can be sufficient contact. McIntosh v. Navaro Seed Co., 1970-NMSC-040, 81 N.M. 302, 466 P.2d 868.
Whether or not party did transact business within the contemplation of this section must be determined by the facts in each case. Telephonic, Inc. v. Rosenblum, 1975-NMSC-067, 88 N.M. 532, 543 P.2d 825.
Factors determining "transaction of any business". — Various factors are relevant in determining whether a nonresident defendant transacted any business within the state, including, the voluntariness of the defendant's contact with the state, the nature of the transaction, the applicability of New Mexico law, the contemplation of the parties, and the location of likely witnesses. Kathrein v. Parkview Meadows, Inc., 1984-NMSC-117, 102 N.M. 75, 691 P.2d 462.
Neither defendant's placement of an advertisement in a nationally distributed trade magazine nor its delivery of allegedly counterfeit jewelry to plaintiff's New Mexico office was sufficient to establish personal jurisdiction, as these acts did not indicate that defendant had purposefully availed itself of the benefits and protections of New Mexico law. Sunwest Silver, Inc. v. Int'l Connection, Inc., 4 F. Supp. 2d 1284 (D.N.M. 1998).
Franchising agreement insufficient. — While entering into a franchise agreement with a New Mexico resident requiring payment of royalties outside the state may be the "transaction of any business" contemplated by this section, that fact alone is insufficient to establish personal jurisdiction; claims must arise from that transaction of business. Campos Enters., Inc. v. Edwin K. Williams & Co., 1998-NMCA-131, 125 N.M. 691, 964 P.2d 855, cert. denied, 126 N.M. 107, 967 P.2d 447.
Presence of subsidiary not enough for jurisdiction over foreign corporation. — A foreign corporation is not subject to the jurisdiction of a forum state merely because its subsidiary is present or doing business there, where subsidiary was separately controlled and could not be considered the alter ego or agent of the foreign corporation. Allen v. Toshiba Corp., 599 F. Supp. 381 (D.N.M. 1984).
The defendant properly and adequately challenged the prima facie jurisdictional allegations by submitting an affidavit that established the separateness of the corporate entities between the church and the New Mexico subsidiary, the lack of an employee or agency relationship between the church and the subsidiary, and the denial of a conspiracy. Therefore, the plaintiffs had the burden of proving the jurisdictional allegations, and the record does not reveal proof of the jurisdictional allegations contained in the complaint. Sanchez v. Church of Scientology, 1993-NMSC-034, 115 N.M. 660, 857 P.2d 771.
The mere existence of a parent-subsidiary corporate relationship is generally not sufficient to warrant jurisdiction over the foreign parent. However, acts of the subsidiaries may be used to predicate jurisdiction in two situations: first, if the parent's control of the subsidiary goes beyond that normally exercised by a majority shareholder, and is so complete as to render the subsidiary an instrumentality of the parent, the subsidiary may be the alter ego of the parent and thus a court may pierce the corporate veil; or second, if the subsidiary does an act at the direction of the parent, or in the course of the parent's business, a court may characterize the subsidiary as an agent of the parent and thereby hold the parent answerable as a principal. Jemez Agency, Inc. v. CIGNA Corp., 866 F. Supp. 1340 (D.N.M. 1994).
Successor liability. — The plaintiffs have not shown sufficient minimum contacts to satisfy the defendant parent corporation's right to due process. Not only was the successor subsidiary dissolved prior to the cause of action arising, but also the predecessor company in effect was sold, in conjunction with the dissolution, to another company. Thus, since the defendant corporation had no reason to anticipate defending a lawsuit more than three years later in New Mexico and had no significant opportunity either to improve the product or benefit from past sales, the policies behind successor liability are outweighed by the corporate law policies against imposition of liability. Smith v. Halliburton Co., 1994-NMCA-055, 118 N.M. 179, 879 P.2d 1198.
Out-of-state advertiser establishes "minimum contact". — A nonresident defendant who solicits business for his benefit by advertising in a trade magazine in the forum state as a result of which he sells his merchandise to be used in the forum state establishes a "minimum contact." Moore v. Graves, 1982-NMCA-170, 99 N.M. 129, 654 P.2d 582.
Place of execution of contract factor in making determination. — The place of execution of the contract, although a circumstance to be considered in determining whether or not a person is transacting business in this state within the contemplation of this section, is not a controlling, an essential or even a highly significant fact in making this determination. Telephonic, Inc. v. Rosenblum, 1975-NMSC-067, 88 N.M. 532, 543 P.2d 825.
Solicitation of orders factor in making determination. — The statutory language of 53-17-1 NMSA 1978, dealing with the solicitation of orders as not constituting transaction of business within New Mexico, is for "purposes of the Business Corporation Act," and not for testing jurisdiction under this section. Winward v. Holly Creek Mills, Inc., 1972-NMSC-009, 83 N.M. 469, 493 P.2d 954.
Cause of action held to arise from acts subjecting defendant to jurisdiction of state. — Any dispute arising out of payment to the agent for services in representing the defendant's business transactions in New Mexico would be within the wake of defendant's commercial activity. Plaintiff's claim, therefore, was one arising from the transaction of business within New Mexico. Winward v. Holly Creek Mills, Inc., 1972-NMSC-009, 83 N.M. 469, 493 P.2d 954.
B. PARENT CORPORATION AND SUBSIDIARY RELATIONSHIP.
Alter ego issues. — New Mexico's test for alter ego is a matter of substantive corporate law. Where the parent corporation did not simply own its subsidiary; but it completely controlled it to the point where the subsidiary existed as little more than an instrument to serve the parent corporation's real estate interests, there are sufficient minimum contacts. The true test for any assertion of personal jurisdiction is minimum contacts. New Mexico case law does not set a higher standard when the out-of-state defendant is a corporation. Alto Eldorado P'ship v. Amrep Corp., 2005-NMCA-131, 138 N.M. 607, 124 P.3d 585.
C. ACTS CONSTITUTING TRANSACTION OF BUSINESS.
Acts held to constitute transaction of business. — Where the defendant, which was a foreign corporation that had never qualified to do business in New Mexico, assumed the operation of an oil and gas well in New Mexico, employed personnel in New Mexico for the purpose of operating an oil and gas lease, held itself out as the operator of the oil and gas well, failed to pay net proceeds to other parties to the oil and gas lease, ignored the demands of the other parties for an accounting, and failed to market production and protect against drainage with respect to the oil and gas well, the defendant had the minimum contacts with New Mexico to confer jurisdiction over the defendant. Capco Acquisub, Inc. v. Greka Energy Corp., 2008-NMCA-153, 145 N.M. 328, 198 P.3d 354, cert. denied, 2008-NMCERT-010, 145 N.M. 524, 201 P.3d 855.
Acts held to constitute transaction of business. — Where defendant agreed in New Mexico to sell a judgment against a New Mexico corporation, received the initial payment in state and was assigned a mortgage to secure the deferred payments, he transacted business within the meaning of this section. Melfi v. Goodman, 1962-NMSC-020, 69 N.M. 488, 368 P.2d 582.
Where nonresident defendants transacted business in New Mexico by executing promissory notes secured by a mortgage deed executed in Oklahoma, which created a lien upon land located in New Mexico, the proceeds from which notes were to be used for the construction of a building in New Mexico, and defendants were physically present in New Mexico from time to time in negotiating these notes, the defendants were subject to the jurisdiction of New Mexico courts, although served with process outside the state of New Mexico, in accordance with this section as the facts were sufficient contacts with New Mexico to constitute the transaction of business therein. Hunter-Hayes Elevator Co. v. Petroleum Club Inn Co., 1966-NMSC-218, 77 N.M. 92, 419 P.2d 465.
The regular distribution plan of nonresident magazine publisher with the commercial benefit to the nonresident defendant which he derived from the sale of magazines was sufficient contact to satisfy the requirements of due process and subject the defendants to the jurisdiction of New Mexico courts. Blount v. TD Pub. Corp., 1966-NMSC-262, 77 N.M. 384, 423 P.2d 421.
Where Texas corporation's agent contacted plaintiff by telephone about buying grain and then came into New Mexico and took grain samples and returned them to Texas for testing, sent a truck into New Mexico for a load of the grain, and the agent who had negotiated the deal for the Texas corporation operated one of the trucks in returning the grain from New Mexico to the corporation's place of business in Texas, Texas corporation was subject to personal jurisdiction of New Mexico courts. McIntosh v. Navaro Seed Co., 1970-NMSC-040, 81 N.M. 302, 466 P.2d 868.
The actions of defendant in having plaintiff solicit orders, make delivery to purchasers, advertise its products through plaintiff and pay plaintiff wages and commissions within the state of New Mexico constituted the transaction of business within the meaning of this section. Winward v. Holly Creek Mills, Inc., 1972-NMSC-009, 83 N.M. 469, 493 P.2d 954.
Where evidence shows that California corporate manufacturer solicited a New Mexico corporate dealer's business and carried on an ongoing business relationship with that dealer by supplying goods bearing dealer's private label on a regular basis, the "doing business" ground for jurisdiction of New Mexico courts over the manufacturer is met. Plumbers Specialty Supply Co. v. Enter. Prod. Co., 1981-NMCA-083, 96 N.M. 517, 632 P.2d 752.
A nonresident alcoholism treatment center's general solicitation of referrals and advertising in phone directory in New Mexico and its invitation to New Mexican plaintiff to attend center's "Family Week" where plaintiff's husband was attending treatment program as a result of an earlier solicitation in New Mexico were sufficient to constitute "transaction of any business" for New Mexican courts to exercise jurisdiction over defendant in personal injury action against defendant resulting from plaintiff's visit to defendant's facilities. Kathrein v. Parkview Meadows, Inc., 1984-NMSC-117, 102 N.M. 75, 691 P.2d 462.
Texas museum's activities in New Mexico - soliciting the devise of a photography collection, negotiating the terms of the collection's maintenance and exhibition, traveling to New Mexico to take possession of the collection, and invoking the benefits of New Mexico's laws of testamentary disposition manifested a purposeful intent to conduct business in New Mexico. Benally v. Amon Carter Museum of W. Art, 858 F.2d 618 (10th Cir. 1988).
Insureds' purchase of an insurance policy in New Mexico constituted a transaction of business in New Mexico, for purposes of a declaratory judgment action to determine uninsured motorist coverage. State Farm Mut. Ins. Co. v. Conyers, 1989-NMSC-071, 109 N.M. 243, 784 P.2d 986.
Hospital transacted business in New Mexico when it placed advertisements in several New Mexico telephone directories, produced television commercials that could be, and were, viewed by New Mexico customers, and previously performed health care services for other New Mexico customers. Cronin v. Sierra Med. Ctr., 2000-NMCA-082, 129 N.M. 521, 10 P.3d 845, cert. denied, 129 N.M. 519, 10 P.3d 843, cert. denied, 532 U.S. 921, 121 S. Ct. 1357, 149 L. Ed. 2d 287 (2001).
D. ACTS NOT CONSTITUTING TRANSACTION OF BUSINESS.
Minimum contacts. — An ad in a New Mexico newspaper, which solicits applicants for nursing jobs in a hospital in Lubbock, Texas, stating that the defendant offers "comprehensive health care services to our patients in West Texas and Eastern New Mexico, does not constitute the type of "purposeful availment" of the benefits and protections of New Mexico's law that would satisfy the minimum contacts required by due process. Pelton v. Methodist Hosp., 989 F. Supp. 1392 (D.N.M. 1997).
Mortgage and note. — Where defendant, a Texas corporation, acquired a promissory note that was secured by a lien on New Mexico property and mortgages on property in Arizona, California and New York, defendant acquired the note in Missouri and did not participate in the negotiation for or execution of the note in New Mexico, the New Mexico long-arm statute did not confer personal jurisdiction over defendant in the plaintiff's action to contest whether defendant could foreclose on the New York mortgage. The court found that defendant did not purposefully decide to participate in the economy of New Mexico and to avail itself of the benefits of New Mexico law in acquiring and foreclosing on the New York mortgage. Defendant did not establish minimum contacts with New Mexico such that it could reasonably anticipate being hauled into New Mexico court, and the court could not exercise personal jurisdiction over defendant on the basis of the New York mortgage. Rogers v. 5-Star Mgmt., Inc., 946 F. Supp. 907 (D.N.M. 1996).
Lien. — Where defendant has not attempted to foreclose a New Mexico lien, nor has it attempted to participate in the management of the New Mexico real property, or ever met with plaintiffs in New Mexico regarding the New Mexico lien, there is no close relationship between the claimed transaction of business in New Mexico and the cause of action. Rogers v. 5-Star Mgmt., Inc., 946 F. Supp. 907 (D.N.M. 1996).
No continuous and systematic contacts. — A Texas hospital did not have the requisite minimum contacts with New Mexico to satisfy due process where the Texas hospital generated seven percent of its income from treatment of New Mexico patients; the Texas hospital and a New Mexico hospital entered into an agreement related to the transfer of patients between the hospitals; the Texas hospital maintained a website that was accessible in New Mexico; the Texas hospital was registered as a Medicaid provider in New Mexico; the Texas hospital was an accredited regional trauma center for a part of New Mexico; and the Texas hospital was located in the border region with a part of New Mexico. Zavala v. El Paso Cnty. Hosp. Dist., 2007-NMCA-149, 143 N.M. 36, 172 P.3d 173.
Contacts insufficient to support general personal jurisdiction. — In a medical malpractice action, where Texas surgeon performed surgeries on plaintiffs, New Mexico residents, in Texas and in a Texas hospital, evidence that the surgeon maintained a passive website that did not specifically target New Mexicans, possessed an inactive medical license, owned real property in New Mexico, and authored a book that was available in New Mexico, was insufficient to demonstrate that the nonresident surgeon had continuous and systematic contact with New Mexico to support general personal jurisdiction. Gallegos v. Frezza, 2015-NMCA-101.
Evidence insufficient to determine whether personal jurisdiction exists. — Where defendant, a Texas surgeon, treated New Mexico residents referred to him by Presbyterian Healthcare (Presbyterian), a New Mexico corporation, for bariatric procedures under an agreement between Presbyterian and a Texas organization established by defendant's employer to handle managed care contracting, the district court erred in finding that the fact that defendant was not a party to the agreement was dispositive of whether defendant had a relationship with Presbyterian sufficient for the state to assert personal jurisdiction over him, when it was unclear to what extent defendant benefited from the agreement, whether the agreement required defendant to accept Presbyterian patients, to what extent defendant himself sought to become credentialed with Presbyterian, and whether and how defendant became the sole provider of bariatric surgery services to Presbyterian members. Remand to the district court was necessary to determine the parameters of the relationship between defendant and Presbyterian and whether such agreement or arrangement was a contact sufficient for general jurisdiction and whether there was a relationship sufficient for specific jurisdiction. Gallegos v. Frezza, 2015-NMCA-101.
National advertising. — Where defendant was a New York corporation that owned and operated a hotel in Texas pursuant to a franchise agreement with a franchisor which owned the hotel brand; plaintiff, who was a guest at defendant's hotel in Texas, was injured while using equipment in the hotel's exercise facility; plaintiff sued defendant in New Mexico for personal injuries; defendant had no facilities, hotels, offices, employees or agent in New Mexico and did not conduct any business in New Mexico; plaintiff claimed that defendant had sufficient contacts with New Mexico to establish jurisdiction because defendant's franchisor engaged in advertising and marketing activities of the franchisor's brand in New Mexico through national television and radio, the out-of state franchisor's national advertising did not provide a basis to establish personal jurisdiction in New Mexico over defendant. Trei v. AMTX Hotel Corp., 2014-NMCA-104.
No contacts in New Mexico. — Where the state sued defendant to force defendant to contribute money to the tobacco escrow fund; defendant manufactured tobacco products, was incorporated in and had its principal place of business in Canada, operated exclusively on the Six Nation Indian Reserve in Canada, was not registered to do business in New Mexico, did not have an agent for service of process in New Mexico, and did not directly engage in business activity in New Mexico; in 2005, a retail tobacco store in New Mexico sold 19,540 cigarettes that were manufactured by defendant; the retail store purchased the cigarettes from a wholesale distributor located in Nevada; defendant did not have any contact or contractual arrangement with either the retail store or the wholesale distributor regarding sales of the cigarettes in New Mexico; and the state mailed a copy of the summons and complaint to defendant by certified mail, the district court lacked personal jurisdiction. State ex rel. Att'y Gen. v. Grand River Enters. Six Nations, Ltd., 2014-NMCA-073.
Acts held not to constitute transaction of business. — Where the decedent died in a car accident in Utah; plaintiffs contacted an Ohio shipping company to prepare the decedent's body for shipping to New Mexico; the shipping company contacted a Utah funeral home to prepare the decedent's body in Utah for shipping by the shipping company; the Utah funeral home prepared the decedent's body for shipment and billed the shipping company for its services; the Utah funeral home was a Utah limited liability company, licensed only in Utah and did not advertise its services in New Mexico or solicit business in New Mexico; an employee of the Utah funeral home had a telephone conversation with one of decedent's relatives who initiated the telephone call in Utah; after the decedent's body was delivered to New Mexico, an employee of the New Mexico funeral home delivered a bag to plaintiffs containing the decedent's personal effect; the bag contained the decedent's brain; and plaintiff's sued the Utah funeral home for tortious conduct in handling the decedent's body, the Utah funeral home did not have sufficient contacts with New Mexico to satisfy the requirement of due process. M.R. v. Serenicare Funeral Home, L.L.C., 2013-NMCA-022, 296 P.3d 492, cert. denied, 2013-NMCERT-001.
A resident of California, who allegedly executed an "authorization to obtain loan" contract with plaintiff, New Mexico mortgage investment broker, and who had not even been in New Mexico for the past 10 years, did not transact business within New Mexico and thereby submit himself to the jurisdiction of the New Mexico courts under the provisions of this section. Telephonic, Inc. v. Rosenblum, 1975-NMSC-067, 88 N.M. 532, 543 P.2d 825.
It would be neither fair nor just to subject defendant to a judgment in personam on the basis of three payments owed on a business account which were mailed into this state, as these contacts are not the requisite minimum contacts to satisfy due process requirements. Diamond A Cattle Co. v. Broadbent, 1973-NMSC-004, 84 N.M. 469, 505 P.2d 64.
Where Ohio auto dealer, doing no business in New Mexico, sold car to Ohio resident who later moved to New Mexico, and dealer assigned the sales contract to a national financing company with a New Mexico division, insufficient minimum contacts existed for New Mexico to exercise personal jurisdiction over Ohio dealer. Swindle v. GMAC, 1984-NMCA-019, 101 N.M. 126, 679 P.2d 268, cert. denied, 101 N.M. 77, 678 P.2d 705.
Defendant's contacts in New Mexico were insufficient to constitute a transaction of business within the state where the only contact made by the defendant, a construction company incorporated in Nevada and awarded a contract to build a large house in Nevada, consisted of its mailing of a purchase order to plaintiff in New Mexico pursuant to a prearranged agreement between the plaintiff and other parties. Customwood Mfg., Inc. v. Downey Constr. Co., 1984-NMSC-115, 102 N.M. 56, 691 P.2d 57.
Nonresident parent's support of resident minor children is not transacting business within the meaning of the long-arm statute. Fox v. Fox, 1985-NMCA-070, 103 N.M. 155, 703 P.2d 932.
Where the research and development by nonresident defendants of radioactive seeds for the treatment of cancer was not in any way connected to the state, the fact that some companies within the state received some financial assistance from the defendants and that information disseminated by the defendants fortuitously found its way into the state could not form the basis for the assertion of personal jurisdiction over the defendants. Jones v. 3M Co., 107 F.R.D. 202 (D.N.M. 1984).
The record failed to establish that a Colorado petroleum equipment company had sufficient minimum contacts with New Mexico to invest the state with in personam jurisdiction over it, either on the basis of its transaction of business or the commission of a tortious act, where the company was a secondary distributor, had not pursued a policy of purposeful business activity in the state and its contacts were minimal, did not purposefully cause an allegedly defective hose to be shipped into New Mexico, did not engage in a nationwide sales or distribution scheme, maintained no property or agents in the state, did not engage in business in New Mexico, and solicited no business nor made any direct sales in New Mexico. Visarraga v. Gates Rubber Co., 1986-NMCA-021, 104 N.M. 143, 717 P.2d 596, cert. quashed, sub nom. Visarraga v. Littlejohn's Equip. Co., Inc., 104 N.M. 137, 717 P.2d 590.
A Colorado doctor did not purposefully initiate activity in this state, thus invoking the benefits and protections of New Mexico laws, where he did return plaintiff's telephone call concerning plaintiff's daughter to a telephone number in New Mexico, but only after a doctor-patient relationship had been established in Colorado, and after plaintiff had left a message and request with the doctor's answering service. This single telephone call lacked the purposefulness of defendant's contact which is demanded by due process in order to invest a court in New Mexico with personal jurisdiction over the Colorado doctor's clinic. Valley Wide Health Servs., Inc. v. Graham, 1987-NMSC-053, 106 N.M. 71, 738 P.2d 1316.
It would offend fair play and substantial justice to subject an out-of-state nonresident defendant to suit in New Mexico where the defendant's only contact with New Mexico was mailing two documents and making a telephone call into the state, and where these contacts arose in the context of an essentially out-of-state transaction. Salas v. Homestake Enters., Inc., 1987-NMSC-094, 106 N.M. 344, 742 P.2d 1049.
Connecticut defendant's use of the mails and telephone in contacting New Mexico plaintiff, in response to plaintiffs' solicitations of business in Connecticut, and in subsequently purchasing a computer system from plaintiffs, were not sufficient "minimum contacts" to constitute the required jurisdictional nexus. Wesley v. H & D Wireless Ltd. P'ship, 678 F. Supp. 1540 (D.N.M. 1987).
California and British banks were not subject to personal jurisdiction in an action involving letters of credit, since the banks were not authorized to transact business in the state and did not commit acts in the state in any way related to the letters of credit. Martin v. First Interstate Bank, 914 F. Supp. 473 (D.N.M. 1995).
Acts of defendants in retaining a New Mexico attorney to contest plaintiff's appointment as personal representative in New Mexico probate action, following defendants' receipt of estate assets, did not constitute a sufficient basis to find that defendants transacted business in New Mexico. Harrell v. Hayes, 1998-NMCA-122, 125 N.M. 814, 965 P.2d 933.
An out-of-state company that arranged, essentially by telephone, fax and mail correspondence, to retain software program services from a New Mexico corporation did not transact business in New Mexico within the meaning of this section. Caba Ltd. Liab. Co. v. Mustang Software, Inc., 1999-NMCA-089, 127 N.M. 556, 984 P.2d 803.
Plaintiff failed to carry its burden of establishing that a nonresident purposely availed itself of the benefits and protections of New Mexico law, because, while the nonresident must have recognized selling its products through another company's web page and catalog could result in nationwide, if not worldwide, sales, up to the date of the action it had resulted in no contact with New Mexico other than plaintiff's one purchase over an internet web site. Origins Natural Res., Inc. v. Kotler, 133 F. Supp. 2d 1232 (D.N.M. 2001).
Personal jurisdiction does not exist over Connecticut diocese that sent priest to New Mexico for pedophilia treatment as the Connecticut diocese neither transacted business there nor committed a tortious act in New Mexico. Tercero v. Roman Catholic Diocese, 2002-NMSC-018, 132 N.M. 312, 48 P.3d 50.
III. TORTIOUS ACTS.
Franchisor must be connected to franchisee's tortious act. — For this section to be satisfied, plaintiff must establish a relationship, agency or otherwise, between a franchisor and franchisee that connects the franchisor to the alleged tortious act of franchisee; thus, where franchisee was independent contractor, not agent, there was no personal jurisdiction over the franchisor based on the actions of the franchisee. Campos Enters., Inc. v. Edwin K. Williams & Co., 1998-NMCA-131, 125 N.M. 691, 964 P.2d 855, cert. denied, 126 N.M. 107, 967 P.2d 447.
Mere mailings not enough contact. — The defendant non-resident law firm was not subject to personal jurisdiction in New Mexico since the law firm's alleged tortious acts were committed through the sending of fraudulent letters and the act of deceitful communications via telephone with the plaintiffs, who were New Mexico residents; the letters and telephone calls were merely ancillary to the primary function of providing legal services to the plaintiffs in the pursuit of rights and claims in California on behalf of the plaintiffs. DeVenzeio v. Rucker, Clarkson & McCashin, 1996-NMCA-064, 121 N.M. 807, 918 P.2d 723, cert. denied, 121 N.M. 783, 918 P.2d 369.
"Tortious conduct." — The acts of defendants in passively receiving distribution of funds or property in Texas, pursuant to the action of decedent's personal representative in New Mexico, were insufficient to establish the commission of a tort in New Mexico. Harrell v. Hayes, 1998-NMCA-122, 125 N.M. 814, 965 P.2d 933.
Voluntary intercourse is not "tortious act" for jurisdictional purposes. — Voluntary intercourse between two consenting adults is not a "tortious act," within Subsection A(3), so as to give a court jurisdiction over a nonresident putative father in a paternity action. State ex rel. Garcia v. Dayton, 1985-NMSC-015, 102 N.M. 327, 695 P.2d 477.
Act outside state causing injury within state. — When negligent acts occur outside New Mexico which cause injury within New Mexico, a "tortious act" has been committed within this state. Roberts v. Piper Aircraft Corp., 1983-NMCA-110, 100 N.M. 363, 670 P.2d 974).
Tort completed in New Mexico. — Where plaintiff and defendants formed a joint venture to bid on a federal contract; plaintiff was a New Mexico corporation and defendants were foreign corporations; some of defendants' employees were paid their salaries by plaintiff and were enrolled in plaintiff's insurance and plans; defendants decided to acquire another New Mexico corporation to replace plaintiff in the business venture; and plaintiff was excluded from the federal contract bid and suffered damages, the district court had personal jurisdiction over defendants in plaintiff's action for tortious interference with a business opportunity because plaintiff suffered economic loss which completed sue tort. Santa Fe Technologies, Inc. v. Argus Networks, Inc., 2002-NMCA-030, 131 N.M. 772, 42 P.3d 1221, cert. denied, 131 N.M. 737, 42 P.3d 842.
Situs of tortious act. — Where, although the negligent implantation of an intrauterine contraceptive device occurred in California, plaintiff developed complications in New Mexico, because a tort is not complete until the injury occurs, the place of injury determines where the tort occurs, and thus, the tortious act was committed in New Mexico, and the patient's negligence and battery causes of action against the physician, and the respondeat superior and negligent supervision claims against his employer, the board of regents of the University of California, arose from the alleged commission of a "tortious act" in New Mexico. Beh v. Ostergard, 657 F. Supp. 173 (D.N.M. 1987).
No jurisdiction for out-of-state injury. — This section could not be used to assert personal jurisdiction over the defendant, a Delaware department store corporation registered and doing business in New Mexico, since the plaintiff's negligence action, for an injury which incurred in Georgia, did not arise from the defendant's transaction of business in New Mexico, nor from its commission of a tortious act within the state. Werner v. Wal-Mart Stores, Inc., 1993-NMCA-112, 116 N.M. 229, 861 P.2d 270.
IV. DOMESTIC RELATIONS.
Subsection A(5) is inapplicable in paternity action against nonresident putative father because New Mexico does not recognize a common-law marriage. State ex rel. Garcia v. Dayton, 1985-NMSC-015, 102 N.M. 327, 695 P.2d 477.
Section gives jurisdiction to grant a divorce, but does not mention child custody, nor is child custody implied as an incident of divorce. Worland v. Worland, 1976-NMSC-027, 89 N.M. 291, 551 P.2d 981.
Law reviews. — For comment on Melfi v. Goodman, 69 N.M. 488, 368 P.2d 582 (1962), see 3 Nat. Resources J. 348 (1963).
For note, "The Entry and Regulation of Foreign Corporations Under New Mexico Law and Under the Model Business Corporation Act," see 6 Nat. Resources J. 617 (1966).
For comment on Blount v. TD Publishing Corp., 77 N.M. 384, 423 P.2d 421 (1966), see 8 Nat. Resources J. 348 (1968).
For survey, "Civil Procedure in New Mexico in 1975," see 6 N.M. L. Rev. 367 (1976).
For article, "Survey of New Mexico Law, 1979-80: Civil Procedure," see 11 N.M.L. Rev. 53 (1981).
For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982).
For annual survey of New Mexico law relating to civil procedure, see 13 N.M.L. Rev. 251 (1983).
For article, "Survey of New Mexico Law, 1982-83: Civil Procedure," see 14 N.M.L. Rev. 17 (1984).
For annual survey of New Mexico corporate law, see 17 N.M.L. Rev. 253 (1987).
For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988).
For article, "Statutory Adoption of Several Liability in New Mexico: A Commentary and Quasi-Legislative History," see 18 N.M.L. Rev. 483 (1988).
For note, "Civil Procedure - The New Mexico Long-Arm Statute and Due Process: Beh v. Ostergard, and the Regents of the University of California," see 19 N.M.L. Rev. 547 (1989).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 62B Am. Jur. 2d Process § 175 et seq.
Watercraft: validity of service of process on nonresident owner of watercraft under state "long-arm" statutes, 99 A.L.R.2d 287.
Products liability: in personam jurisdiction over nonresident manufacturer or seller under "long-arm" statutes, 19 A.L.R.3d 13.
Applicability, to actions not based on products liability, of state statutes or rules of court predicating in personam jurisdiction over foreign manufacturers or distributors upon use of their goods within state, 20 A.L.R.3d 957.
Contracts: construction and application of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations on making or performing a contract within the state, 23 A.L.R.3d 551.
Construction and application of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporation on the commission of a tort within the state, 24 A.L.R.3d 532.
Nonresidential parent: obtaining jurisdiction over nonresident parent in filiation or support proceedings, 76 A.L.R.3d 708.
In personam jurisdiction over nonresident director of forum corporation under long-arm statutes, 100 A.L.R.3d 1108.
In personam jurisdiction over nonresident based on ownership, use, possession, or sale of real property, 4 A.L.R.4th 955.
In personam jurisdiction under long-arm statute of nonresident banking institution, 9 A.L.R.4th 661.
In personam or territorial jurisdiction of state court in connection with obscenity prosecution of author, actor, photographer, publisher, distributor, or other party whose acts were performed outside the state, 16 A.L.R.4th 1318.
In personam jurisdiction, under long-arm statute, over nonresident attorney in legal malpractice action, 23 A.L.R.4th 1044.
In personam jurisdiction, under long-arm statute, over nonresident physician, dentist, or hospital in medical malpractice action, 25 A.L.R.4th 706.
Religious activities as doing or transaction of business under "long-arm" statutes or rules of court, 26 A.L.R.4th 1176.
Products liability: personal jurisdiction over nonresident manufacturer of component incorporated in another product, 69 A.L.R.4th 14.
In personam jurisdiction, in libel and slander action, over nonresident who mailed allegedly defamatory letter from outside state, 83 A.L.R.4th 1006.
Execution, outside of forum, of guaranty of obligations under contract to be performed within forum state as conferring jurisdiction over nonresident guarantors under "long-arm" statute or rule of forum, 28 A.L.R.5th 664.
Validity, construction, and application of "fiduciary shield" doctrine - modern cases, 79 A.L.R.5th 587.
Effect, on jurisdiction of state court, of 28 USCS § 1446(e), relating to removal of civil case to federal court, 38 A.L.R. Fed. 824.
Service of process by mail in international civil action as permissible under Hague Convention, 112 A.L.R. Fed. 241.
Effect of use, or alleged use, of Internet on personal jurisdiction in, or venue of, federal court case, 155 A.L.R. Fed. 535.
72 C.J.S. Process § 40.