Gallegos v. Frezza
This text of 2015 NMCA 101 (Gallegos v. Frezza) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _______________
3 Filing Date: March 19, 2015
4 NOS. 32,605 & 32,606 (Consolidated)
5 FERNANDO GALLEGOS,
6 Plaintiff-Appellant,
7 v.
8 ELDO FREZZA, M.D.,
9 Defendant-Appellee,
10 and
11 PRESBYTERIAN HEALTH PLAN, INC., 12 A New Mexico Domestic For-Profit Corporation,
13 Defendant.
14 Consolidated With
15 NELLIE GONZALES,
16 Plaintiff-Appellant,
17 v.
18 ELDO FREZZA, M.D.,
19 Defendant-Appellee,
20 and 1 PRESBYTERIAN HEALTH PLAN, INC., 2 A New Mexico Domestic For-Profit Corporation,
3 Defendant.
4 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 5 Sarah M. Singleton, District Judge
6 Jones, Snead, Wertheim & Clifford, P.A. 7 Jerry Todd Wertheim 8 Roxie P. Rawls-De Santiago 9 Samuel C. Wolf 10 Elizabeth C. Clifford 11 Santa Fe, NM
12 for Appellants
13 Hinkle, Hensley, Shanor & Martin, LLP 14 William P. Slattery 15 Dana S. Hardy 16 Zachary T. Taylor 17 Santa Fe, NM
18 for Appellee
19 Brown & Gay, P.C. 20 Remo E. Gay 21 Melissa A. Brown 22 Albuquerque, NM
23 for Defendant Presbyterian Health Plan, Inc. 1 OPINION
2 BUSTAMANTE, Judge.
3 {1} Plaintiffs Nellie Gonzales and Fernando Gallegos appeal the district court’s
4 dismissal of their medical malpractice suit against Dr. Eldo Frezza, a Texas resident,
5 for lack of personal jurisdiction. On appeal, we examine whether Dr. Frezza has
6 sufficient contacts with the State of New Mexico to permit the state courts to assert
7 either general or specific personal jurisdiction over him. We conclude that most of
8 the asserted contacts with this state are insufficient to establish general jurisdiction.
9 We remand for further proceedings, however, because the record on appeal is
10 insufficient to address whether personal jurisdiction exists based on an arrangement
11 between New Mexico Presbyterian Health Plan and Texas Tech Physicians
12 Associates through which Dr. Frezza was referred New Mexico residents for care.
13 I. BACKGROUND
14 {2} After undergoing bariatric surgery, New Mexico residents Nellie Gonzales and
15 Fernando Gallegos (collectively, Plaintiffs) sued Dr. Eldo Frezza for medical
16 malpractice and Presbyterian Health Plan (Presbyterian) for breach of contract and
17 negligent referral. Both surgeries took place in Lubbock, Texas at the Texas Tech
18 University Health Sciences Center (the Center). Dr. Frezza was an employee of the
19 Center, which is a governmental unit of the State of Texas. See Tex. Tech Univ. 1 Health Scis. Ctr. v. Ward, 280 S.W.3d 345, 348 (Tex. App. 2008) (stating that the
2 Center is a governmental unit).
3 {3} Both Plaintiffs were employees of the State of New Mexico and covered by
4 Presbyterian. When they sought insurance coverage for the bariatric procedure, they
5 were directed to Dr. Frezza by Presbyterian. No other bariatric surgeons were in the
6 Presbyterian network at that time.
7 {4} Dr. Frezza moved for dismissal based on the lack of personal jurisdiction and
8 Plaintiffs’ failure to state a claim. See Rule 1-012(B)(2), (6) NMRA. After a hearing
9 at which it considered documentary evidence, the district court found that it did not
10 have personal jurisdiction over Dr. Frezza and dismissed the complaint. The district
11 court did not rule on Dr. Frezza’s other motion. Plaintiffs appealed. Plaintiffs also
12 filed a motion for reconsideration in the district court under Rule 1-060(B)(6)
13 NMRA. Such motion “does not affect the finality of a judgment or suspend its
14 operation.” Id. As of the time that briefs were submitted, the district court had not
15 ruled on the motion for reconsideration. Additional facts are provided as pertinent
16 to our discussion.
17 {5} We note that these cases are two of three presently before the Court of Appeals
18 that are based on a similar set of facts. See Montaño v. Frezza, COA No. 32,403. In
19 Montaño, filed concurrently, we hold that the Second Judicial District Court did not
2 1 err in concluding that application of Texas law would violate New Mexico public
2 policy and denying Dr. Frezza’s motion to dismiss for failure to state a claim.
3 II. DISCUSSION
4 A. The Law of Personal Jurisdiction
5 {6} The question before us on appeal is whether the district court properly
6 concluded that it could not fairly exert jurisdiction over Dr. Frezza because he did not
7 have sufficient contacts with New Mexico. See Zavala v. El Paso Cnty. Hosp. Dist.,
8 2007-NMCA-149, ¶ 10, 143 N.M. 36, 172 P.3d 173 (“[F]or purposes of personal
9 jurisdiction, we . . . focus on . . . whether [the defendants] had the requisite minimum
10 contacts with New Mexico to satisfy due process.”). “[T]he minimum contacts
11 required for the state to assert personal jurisdiction over a defendant depends on
12 whether the jurisdiction asserted is general (all-purpose) or specific (case-linked).”
13 Sproul v. Rob & Charlies, Inc., 2013-NMCA-072, ¶ 9, 304 P.3d 18. More
14 specifically, “[a] state exercises general jurisdiction over a nonresident defendant
15 when its affiliations with the state are so continuous and systematic as to render it
16 essentially at home in the forum state.” Id. ¶ 12 (alterations, internal quotation marks,
17 and citation omitted). Specific jurisdiction may apply “if [a] defendant’s contacts do
18 not rise to the level of general jurisdiction, but the defendant nevertheless
19 purposefully established contact with New Mexico.” Id. ¶ 16 (internal quotation
3 1 marks and citation omitted). “In contrast to general, all-purpose jurisdiction, specific
2 jurisdiction is confined to adjudication of issues deriving from, or connected with, the
3 very controversy that establishes jurisdiction.” Goodyear Dunlop Tires Operations,
4 S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011) (internal quotation marks and citation
5 omitted). In analyzing a defendant’s contacts with New Mexico, our focus is on the
6 “defendant’s activities which . . . provide the basis for personal jurisdiction, not the
7 acts of other defendants or third parties.” Visarraga v. Gates Rubber Co., 1986-
8 NMCA-021, ¶ 18, 104 N.M. 143, 717 P.2d 596.
9 {7} “Once it has been decided that a defendant purposefully established minimum
10 contacts within the forum [s]tate, these contacts may be considered in light of other
11 factors to determine whether the assertion of personal jurisdiction would comport
12 with fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S.
13 462, 476 (1985) (internal quotation marks and citation omitted). Thus, as part of the
14 overall analysis of whether exercise of jurisdiction would comport with constitutional
15 due process, we may consider “the burden on the defendant, the forum [s]tate’s
16 interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and
17 effective relief, the interstate judicial system’s interest in obtaining the most efficient
18 resolution of controversies, and the shared interest of the several [s]tates in furthering
4 1 fundamental substantive social policies.” Id. (internal quotation marks and citation
2 omitted).
3 B.
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _______________
3 Filing Date: March 19, 2015
4 NOS. 32,605 & 32,606 (Consolidated)
5 FERNANDO GALLEGOS,
6 Plaintiff-Appellant,
7 v.
8 ELDO FREZZA, M.D.,
9 Defendant-Appellee,
10 and
11 PRESBYTERIAN HEALTH PLAN, INC., 12 A New Mexico Domestic For-Profit Corporation,
13 Defendant.
14 Consolidated With
15 NELLIE GONZALES,
16 Plaintiff-Appellant,
17 v.
18 ELDO FREZZA, M.D.,
19 Defendant-Appellee,
20 and 1 PRESBYTERIAN HEALTH PLAN, INC., 2 A New Mexico Domestic For-Profit Corporation,
3 Defendant.
4 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 5 Sarah M. Singleton, District Judge
6 Jones, Snead, Wertheim & Clifford, P.A. 7 Jerry Todd Wertheim 8 Roxie P. Rawls-De Santiago 9 Samuel C. Wolf 10 Elizabeth C. Clifford 11 Santa Fe, NM
12 for Appellants
13 Hinkle, Hensley, Shanor & Martin, LLP 14 William P. Slattery 15 Dana S. Hardy 16 Zachary T. Taylor 17 Santa Fe, NM
18 for Appellee
19 Brown & Gay, P.C. 20 Remo E. Gay 21 Melissa A. Brown 22 Albuquerque, NM
23 for Defendant Presbyterian Health Plan, Inc. 1 OPINION
2 BUSTAMANTE, Judge.
3 {1} Plaintiffs Nellie Gonzales and Fernando Gallegos appeal the district court’s
4 dismissal of their medical malpractice suit against Dr. Eldo Frezza, a Texas resident,
5 for lack of personal jurisdiction. On appeal, we examine whether Dr. Frezza has
6 sufficient contacts with the State of New Mexico to permit the state courts to assert
7 either general or specific personal jurisdiction over him. We conclude that most of
8 the asserted contacts with this state are insufficient to establish general jurisdiction.
9 We remand for further proceedings, however, because the record on appeal is
10 insufficient to address whether personal jurisdiction exists based on an arrangement
11 between New Mexico Presbyterian Health Plan and Texas Tech Physicians
12 Associates through which Dr. Frezza was referred New Mexico residents for care.
13 I. BACKGROUND
14 {2} After undergoing bariatric surgery, New Mexico residents Nellie Gonzales and
15 Fernando Gallegos (collectively, Plaintiffs) sued Dr. Eldo Frezza for medical
16 malpractice and Presbyterian Health Plan (Presbyterian) for breach of contract and
17 negligent referral. Both surgeries took place in Lubbock, Texas at the Texas Tech
18 University Health Sciences Center (the Center). Dr. Frezza was an employee of the
19 Center, which is a governmental unit of the State of Texas. See Tex. Tech Univ. 1 Health Scis. Ctr. v. Ward, 280 S.W.3d 345, 348 (Tex. App. 2008) (stating that the
2 Center is a governmental unit).
3 {3} Both Plaintiffs were employees of the State of New Mexico and covered by
4 Presbyterian. When they sought insurance coverage for the bariatric procedure, they
5 were directed to Dr. Frezza by Presbyterian. No other bariatric surgeons were in the
6 Presbyterian network at that time.
7 {4} Dr. Frezza moved for dismissal based on the lack of personal jurisdiction and
8 Plaintiffs’ failure to state a claim. See Rule 1-012(B)(2), (6) NMRA. After a hearing
9 at which it considered documentary evidence, the district court found that it did not
10 have personal jurisdiction over Dr. Frezza and dismissed the complaint. The district
11 court did not rule on Dr. Frezza’s other motion. Plaintiffs appealed. Plaintiffs also
12 filed a motion for reconsideration in the district court under Rule 1-060(B)(6)
13 NMRA. Such motion “does not affect the finality of a judgment or suspend its
14 operation.” Id. As of the time that briefs were submitted, the district court had not
15 ruled on the motion for reconsideration. Additional facts are provided as pertinent
16 to our discussion.
17 {5} We note that these cases are two of three presently before the Court of Appeals
18 that are based on a similar set of facts. See Montaño v. Frezza, COA No. 32,403. In
19 Montaño, filed concurrently, we hold that the Second Judicial District Court did not
2 1 err in concluding that application of Texas law would violate New Mexico public
2 policy and denying Dr. Frezza’s motion to dismiss for failure to state a claim.
3 II. DISCUSSION
4 A. The Law of Personal Jurisdiction
5 {6} The question before us on appeal is whether the district court properly
6 concluded that it could not fairly exert jurisdiction over Dr. Frezza because he did not
7 have sufficient contacts with New Mexico. See Zavala v. El Paso Cnty. Hosp. Dist.,
8 2007-NMCA-149, ¶ 10, 143 N.M. 36, 172 P.3d 173 (“[F]or purposes of personal
9 jurisdiction, we . . . focus on . . . whether [the defendants] had the requisite minimum
10 contacts with New Mexico to satisfy due process.”). “[T]he minimum contacts
11 required for the state to assert personal jurisdiction over a defendant depends on
12 whether the jurisdiction asserted is general (all-purpose) or specific (case-linked).”
13 Sproul v. Rob & Charlies, Inc., 2013-NMCA-072, ¶ 9, 304 P.3d 18. More
14 specifically, “[a] state exercises general jurisdiction over a nonresident defendant
15 when its affiliations with the state are so continuous and systematic as to render it
16 essentially at home in the forum state.” Id. ¶ 12 (alterations, internal quotation marks,
17 and citation omitted). Specific jurisdiction may apply “if [a] defendant’s contacts do
18 not rise to the level of general jurisdiction, but the defendant nevertheless
19 purposefully established contact with New Mexico.” Id. ¶ 16 (internal quotation
3 1 marks and citation omitted). “In contrast to general, all-purpose jurisdiction, specific
2 jurisdiction is confined to adjudication of issues deriving from, or connected with, the
3 very controversy that establishes jurisdiction.” Goodyear Dunlop Tires Operations,
4 S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011) (internal quotation marks and citation
5 omitted). In analyzing a defendant’s contacts with New Mexico, our focus is on the
6 “defendant’s activities which . . . provide the basis for personal jurisdiction, not the
7 acts of other defendants or third parties.” Visarraga v. Gates Rubber Co., 1986-
8 NMCA-021, ¶ 18, 104 N.M. 143, 717 P.2d 596.
9 {7} “Once it has been decided that a defendant purposefully established minimum
10 contacts within the forum [s]tate, these contacts may be considered in light of other
11 factors to determine whether the assertion of personal jurisdiction would comport
12 with fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S.
13 462, 476 (1985) (internal quotation marks and citation omitted). Thus, as part of the
14 overall analysis of whether exercise of jurisdiction would comport with constitutional
15 due process, we may consider “the burden on the defendant, the forum [s]tate’s
16 interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and
17 effective relief, the interstate judicial system’s interest in obtaining the most efficient
18 resolution of controversies, and the shared interest of the several [s]tates in furthering
4 1 fundamental substantive social policies.” Id. (internal quotation marks and citation
2 omitted).
3 B. Standard of Review
4 {8} Here, the district court concluded that it had neither general nor specific
5 jurisdiction over Dr. Frezza. We review this conclusion de novo. Cronin v. Sierra
6 Med. Ctr., 2000-NMCA-082, ¶ 10, 129 N.M. 521, 10 P.3d 845. Our approach to
7 review was stated succinctly in Cronin:
8 If[] . . . a district court bases its ruling upon the parties’ pleadings and 9 affidavits, the applicable standard of review largely mirrors the standard 10 that governs appeals from the award or denial of summary judgment. In 11 this respect, both a district court and this appellate court must construe 12 the pleadings and affidavits in the light most favorable to the 13 complainant. The complainant need only make a prima facie showing 14 that personal jurisdiction exists when a district court does not hold an 15 evidentiary hearing.
16 Id. (citations omitted).
17 {9} Although only a prima facie showing is required, “[w]hen a party contests the
18 existence of personal jurisdiction under Rule 1-012(B)(2) and accompanies its motion
19 with affidavits or depositions, . . . the party resisting such motion may not stand on
20 its pleadings and must come forward with affidavits or other proper evidence
21 detailing specific facts” supporting jurisdiction. Doe v. Roman Catholic Diocese of
22 Boise, Inc., 1996-NMCA-057, ¶ 10, 121 N.M. 738, 918 P.2d 17; see State ex rel.
23 Anaya v. Columbia Research Corp., 1978-NMSC-073, ¶ 8, 92 N.M. 104, 583 P.2d
5 1 468 (holding that the state failed to establish personal jurisdiction over the defendant
2 when it did not proffer proof of the jurisdictional facts alleged in its complaint after
3 the defendant challenged them).
4 C. Plaintiffs’ Allegations
5 {10} Given this standard of review, we set out Plaintiffs’ allegations in some detail.
6 Here, Plaintiffs made the following assertions:
7 2. [Dr. Frezza] is licensed to practice medicine in the State of New 8 Mexico[;]
9 ....
10 6. Plaintiff[s’] cause[s] of action arise[] from Dr. Frezza’s and 11 Presbyterian’s transaction of business within the State of New 12 Mexico through which Dr. Frezza and Presbyterian undertook to 13 encourage New Mexico citizens to travel to Lubbock, Texas 14 where they would receive bariatric surgery from Dr. Frezza[;]
15 7. Dr. Frezza used a combination of advertising in New Mexico, 16 testimonials from former New Mexican patients, and a special 17 relationship with Presbyterian to encourage New Mexico 18 residents to seek treatment from him . . . [;]
19 8. Dr. Frezza encouraged his patients to use his website to provide 20 testimonials, prominently noting their status as New Mexico 21 residents, in order to encourage other New Mexico residents to 22 seek treatment from him[;]
23 9. Dr. Frezza used his website to reach New Mexico residents . . . [;]
24 10. Dr. Frezza’s advertising in New Mexico . . . and the special 25 relationship he developed with Presbyterian were successful
6 1 efforts undertaken by [him] to secure patients from New Mexico, 2 which constitute[s] the transaction of business within the [s]tate[;]
3 ....
4 12. Dr. Frezza . . . on numerous occasions traveled to Santa Fe and 5 saw or treated patients during the trip . . . [;]
6 13. On information and belief, Dr. Frezza owns six tracts of real 7 property in the State of New Mexico, County of Taos, and is 8 therefore also subject to general jurisdiction in . . . New Mexico[;]
9 14. [Two] of many New Mexico citizens who learned of Dr. Frezza 10 through his advertising and [were] told by Presbyterian that Dr. 11 Frezza was the only “in network” bariatric surgeon from whom 12 [they] could receive treatment [were P]laintiffs, who traveled to 13 Lubbock, Texas for surgery by Dr. Frezza[;]
14 15. [Plaintiff[s’] causes of action arise[] directly from Dr. Frezza’s 15 transaction of business within the State of New Mexico.
16 {11} Thus, Plaintiffs asserted that Dr. Frezza had four types of contact with New
17 Mexico: (1) a website, (2) a New Mexico medical license, (3) ownership of property
18 in New Mexico, and (4) a relationship with Presbyterian. On appeal, they also argue
19 that a book by Dr. Frezza called The Business of Surgery, in which the author
20 discusses strategies for negotiating beneficial managed care agreements and which
21 is available in New Mexico, provides another contact with this state. In support of
22 these allegations, Plaintiffs offered a print out of Dr. Frezza’s website, selected pages
23 from Dr. Frezza’s book, and copies of the deeds to property in New Mexico owned
24 by Dr. Frezza.
7 1 D. Dr. Frezza’s Affidavits
2 {12} Dr. Frezza challenged Plaintiffs’ jurisdictional assertions by presenting his own
3 affidavit as well as an affidavit by Lori Velten, the Managing Director of Provider-
4 Payor Relations at the Center. In addition to these affidavits, Dr. Frezza provided a
5 copy of the “[s]pecialty [s]ervices [a]greement” (the agreement) between Presbyterian
6 and Texas Tech Physicians Associates (TTPA), an organization established by the
7 Center to handle managed care contracting.
8 {13} In his affidavit, Dr. Frezza stated that he was a “participating provider” with
9 Presbyterian and that he “did not solicit patients from the State of New Mexico [but]
10 treated several New Mexico residents who traveled to Texas by virtue of [his] status
11 as a participating provider with . . . Presbyterian.” He stated that he “ha[s] never
12 practiced medicine in the State of New Mexico” and “never provided care or
13 treatment to any of [his] patients in New Mexico.” He stated that he “did not engage
14 in any advertising activities that were directed at residents of New Mexico” and that
15 “[he] was unaware of any advertising activities by [the Center] that were undertaken
16 in New Mexico.” Finally, he stated that he “did not personally seek to become
17 credentialed with . . . Presbyterian. Rather, [TTPA] was credentialed with . . .
18 Presbyterian. As a member of that group, [he] was required to submit a credentialing
19 application to . . . Presbyterian.”
8 1 {14} Ms. Velten stated in her affidavit that “TTPA decides what insurance will be
2 accepted by [TTPA] physicians and health care providers” and that Dr. Frezza “did
3 not have the authority to decide which insurance he would or would not accept.” She
4 also stated that Dr. Frezza “was subject to the [a]greement [with Presbyterian].”
5 Finally, she stated, “As an employee of [the Center], and contracted with TTPA, Dr.
6 Frezza was requested to submit a credentialing application to [the Center] and TTPA
7 pursuant to the separate delegated credentialing agreement.”
8 E. Analysis
9 {15} Plaintiffs argue that New Mexico has both general and specific jurisdiction
10 over Dr. Frezza. Our next step, therefore, is to examine the alleged bases for each to
11 see whether they establish the contacts necessary for jurisdiction. Consistent with our
12 standard of review, we compare Plaintiffs’ complaints with the evidence submitted
13 by Dr. Frezza to see if Plaintiffs’ assertions of jurisdiction were challenged. See
14 Plumbers Specialty Supply Co. v. Enter. Prods. Co., 1981-NMCA-083, ¶ 9, 96 N.M.
15 517, 632 P.2d 752 (examining which of the alternate bases for jurisdiction were
16 challenged and holding that “[i]nasmuch as one ground of alleged jurisdiction was
17 not challenged, . . . the trial court did not err in [denying the defendant’s motion to
18 dismiss and request for an evidentiary hearing]”). We address general jurisdiction
19 first.
9 1 1. General Jurisdiction
2 {16} Plaintiffs argue that Dr. Frezza’s website, medical license, book, property
3 ownership, and agreement with Presbyterian are contacts sufficiently “continuous and
4 systematic” to give New Mexico general jurisdiction over Dr. Frezza. See Zavala,
5 2007-NMCA-149, ¶ 12. We examine each assertion in turn. We conclude that none
6 of the first four bases is sufficient to establish general jurisdiction. We also conclude
7 that there are factual questions related to the agreement with Presbyterian and that
8 resolution of those questions is a prerequisite to determining whether the agreement
9 is a sufficient contact with New Mexico.
10 Website
11 {17} “Establishment of a passive website that can be viewed internationally is not
12 sufficient to support general personal jurisdiction absent some showing that the
13 website targeted New Mexico.” Id. ¶ 20. Plaintiffs argue that Dr. Frezza’s website
14 targeted New Mexico residents by listing his New Mexico medical license and
15 including testimonials by New Mexico residents, and that it was not merely passive
16 because it “encouraged” visitors to submit testimonials through the website. We
17 disagree.
18 {18} First, the inclusion of Dr. Frezza’s licensure status and testimonials by New
19 Mexico residents does not by itself indicate that the website targeted New Mexico.
10 1 Dr. Frezza’s website also indicated that he was licensed by Texas, Illinois, and
2 Pennsylvania. Statement of the fact that he held those licenses does not target
3 residents of those states because (1) all that is required for Dr. Frezza to practice in
4 Texas is a Texas license; and (2) there is no indication in the record that the
5 requirements for a New Mexico license differ from those for a Texas license such that
6 a doctor with a New Mexico license would be more attractive to a New Mexico
7 resident. Cf. Schexnayder v. Daniels, 187 S.W.3d 238, 249 (Tex. App. 2006) (stating
8 that a website that included the defendant’s “biography, credentials, and job
9 description” was “informational in nature”); Advance Petroleum Serv., Inc. v.
10 Cucullu, 614 So. 2d 878, 880 (La. Ct. App. 1993) (holding that listing a Louisiana
11 law license on a Texas lawyer’s letterhead is not an advertisement targeted to
12 Louisiana clients and instead “should be considered merely a listing of professional
13 accomplishment”). Similarly, testimonials on the website may be read by any visitor
14 to the site and are equally persuasive regardless of the submitter’s state of residence.
15 In other words, the fact that a testimonial was written by a New Mexico resident does
16 not necessarily make it particularly compelling to other New Mexicans. In addition,
17 there is nothing about the site that specifically solicits testimonials by New Mexico
18 patients. Cf. Snowney v. Harrah’s Entm’t, Inc., 112 P.3d 28, 34 (Cal. 2005) (“By
19 touting the proximity of their hotels to California and providing driving directions
11 1 from California to their hotels, [the] defendants’ [w]eb site specifically targeted
2 residents of California.”).
3 {19} Plaintiffs rely on Silver v. Brown, 382 F. App’x 723, 730 (10th Cir. 2010), to
4 argue that an assessment of whether the website targeted New Mexico residents
5 hinges on “not who could access the site, but who is most likely to—here, patients
6 considering surgery by [Dr. Frezza].” In that case, after a business transaction
7 between Silver and Brown went sour, Brown created a blog called “A Special Report
8 on David Silver and [Silver’s company]” on which he warned other companies
9 against doing business with Silver and called Silver a thief. Id. at 725. The court
10 rejected the lower court’s determination that the blog did not target New Mexico,
11 stating that the district court’s “analysis disregard[ed] the ubiquitous nature of search
12 engines.” Id. at 730. It concluded that because of “sophisticated” search engines, “it
13 is becoming . . . irrelevant . . . how many worldwide or nationwide internet
14 connections there are . . . because . . . the people that are searching for information on
15 this David Silver are the ones who are going to end up viewing Mr. Brown’s blog.”
16 Id. In addition, there was evidence that Brown purposefully sought to “optimiz[e]”
17 the site so that it would be easier for New Mexico residents to find using a search
18 engine. Id. Since it was clear that Brown intended the impact of the blog to be felt
19 in New Mexico, the court concluded that the blog targeted New Mexico. Id. (stating
12 1 that “[a]ctions that are performed for the very purpose of having their consequences
2 felt in the forum state are more than sufficient to support a finding” that they targeted
3 the forum state. (internal quotation marks and citation omitted)). The court held that
4 specific personal jurisdiction over Brown was proper. Id. at 731.
5 {20} Silver is inapposite. There the court was considering whether the blog was
6 sufficient to permit specific, not general, jurisdiction. Id. at 728. Thus the analysis
7 necessarily addressed whether the tortious conduct arose out of the contact with the
8 forum state, i.e., the blog. Here, the issue is whether Dr. Frezza’s contacts with New
9 Mexico through the website are continuous and systematic. As discussed, the
10 standards for these types of personal jurisdiction are different.
11 {21} In addition, the Silver court noted that the blog “was about a New Mexico
12 resident and a New Mexico company [and] complained of . . . Silver’s . . . actions in
13 the failed business deal [which] occurred mainly in New Mexico.” Id. at 729-30. It
14 also noted that “Brown had knowledge that the brunt of the injury to . . . Silver would
15 be felt in New Mexico.” Id. at 730. These facts indicated that Brown “expressly
16 aimed his blog at New Mexico.” Id. at 729. The mere listing of a New Mexico
17 medical license and inclusion of testimonials by New Mexico residents are simply not
18 of the same quality and do not demonstrate that Dr. Frezza targeted this state.
13 1 {22} Second, the website is not sufficiently interactive. “[I]mplicit in ‘interactive’
2 activity is the exchange of information between parties.” Fenn v. Mleads Enters.,
3 Inc., 2006 UT 8, ¶ 21, 137 P.3d 706; see Merriam-Webster Dictionary,
4 http://www.merriam-webster.com/dictionary/interactive (last visited Dec. 2, 2014)
5 (defining “interactive” as “mutually or reciprocally active” or “involving the actions
6 or input of a user”). Here, the submission of testimonials through the website was a
7 one-way process. Cf. Sublett v. Wallin, 2004-NMCA-089, ¶ 30, 136 N.M. 102, 94
8 P.3d 845 (holding a website insufficiently interactive to establish specific jurisdiction
9 where “[t]he only interactive feature of the website . . . was the ‘Locate an inspector’
10 feature, which requested minimal information and provided little more than additional
11 advertising information, i.e., contact information and background information on [a
12 local inspector]”). Because there is no indication in the record that the website passed
13 any information back to the user based on submission of his or her testimonial and
14 Plaintiffs do not assert that it did, Dr. Frezza’s website is even less interactive than
15 that in Sublett. We conclude that the website neither targets New Mexicans nor is
16 sufficiently interactive to demonstrate that Dr. Frezza purposefully directed it toward
17 New Mexico. See Zavala, 2007-NMCA-149, ¶ 20.
14 1 Medical License
2 {23} Plaintiffs maintain that the “[m]ost notable” contact Dr. Frezza had with New
3 Mexico was his New Mexico medical license. Dr. Frezza held the license from
4 January 2006 to July 2009. In July 2009, Dr. Frezza’s status was changed to
5 “inactive.” Thus, Dr. Frezza did not hold an active New Mexico medical license at
6 the time of the surgeries or at the time of the filing of Plaintiffs’ complaints.
7 {24} We pause here to address the appropriate time frame relevant to the general
8 jurisdiction analysis. Several New Mexico cases state that “[a]s a general rule, the
9 existence of personal jurisdiction may not be established by events which have
10 occurred after the acts which gave rise to [a p]laintiff’s claims.” Doe, 1996-NMCA-
11 057, ¶ 19; Tercero v. Roman Catholic Diocese of Norwich, Conn., 2002-NMSC-018,
12 ¶ 9, 132 N.M. 312, 48 P.3d 50. Both of these cases cite Steel v. United States, 813
13 F.2d 1545, 1549 (9th Cir. 1987), in which the court stated that “courts must examine
14 the defendant’s contacts with the forum at the time of the events underlying the
15 dispute when determining whether they have jurisdiction.” But this statement was
16 made in the context of specific jurisdiction, not general jurisdiction. See id.
17 (referencing specific jurisdiction); DVI, Inc. v. Superior Court, 128 Cal. Rptr. 2d 683,
18 698 (2002) (stating that the Steel holding referred to specific jurisdiction). In
19 addition, neither Tercero nor Doe distinguished between “specific jurisdiction” or
15 1 “general jurisdiction,” but both cases hinged on whether the cause of action arose out
2 of the enumerated acts in New Mexico’s “long-arm statute,” NMSA 1978, § 38-1-16
3 (1971). See Tercero, 2002-NMSC-018, ¶ 10 (stating that jurisdiction based on the
4 transaction of business prong of the long-arm statute is consistent with due process
5 “only if the cause of action arises from the particular transaction of business”
6 (internal quotation marks and citation omitted)); Doe, 1996-NMCA-057, ¶ 12 (stating
7 that the appropriate test was “whether (1) the acts of the defendant are specifically set
8 forth in this state’s long-arm statute, (2) the plaintiff’s cause of action arises out of
9 and concerns such alleged acts, and (3) the defendant’s acts establish minimum
10 contacts to satisfy constitutional due process concerns”). It is not entirely clear,
11 therefore, that the statements in those cases as to the appropriate time frame apply in
12 the general jurisdiction context. 4 Charles Alan Wright & Arthur R. Miller, Federal
13 Practice and Procedure § 1067.5 (3d ed. 2002) (“As a practical matter, a general
14 jurisdiction inquiry is very different from a specific jurisdiction inquiry.”).
15 {25} The parties did not identify any New Mexico cases explicitly addressing the
16 time frame for a general jurisdiction analysis, nor did our own research uncover one.
17 See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569 (2d Cir. 1996)
18 (“Few cases discuss explicitly the appropriate time period for assessing whether a
19 defendant’s contacts with the forum state are sufficiently ‘continuous and systematic’
16 1 for the purposes of general jurisdiction.”). In addition, “[t]he [United States]
2 Supreme Court never has spoken on the issue of determining the proper time[]frame
3 for the defendant’s contacts with the forum [in a general jurisdiction analysis].”
4 Wright, supra (Supp. 2014). This issue raises two questions. “First, it must be
5 determined whether continuous and systematic contacts need to exist at the time the
6 claim accrues, or at the time the lawsuit is filed.” Id. The courts appear divided on
7 this question. See id. n.11.50 (collecting cases). But see Harlow v. Children’s Hosp.,
8 432 F.3d 50, 64 (1st Cir. 2005) (“It is settled law that unrelated contacts which
9 occurred after the cause of action arose, but before the suit was filed, may be
10 considered for purposes of the general jurisdiction inquiry.”). The second question
11 is “how far back from either the accrual or filing of the claim [courts] will look[.]”
12 Wright, supra (Supp. 2014). “[M]ost courts use a ‘reasonable time’ standard yielding
13 time[]frames of roughly three to seven years.” Id.; see, e.g., Helicopteros Nacionales
14 de Colombia, S.A. v. Hall, 466 U.S. 408, 410-11, 415-16 (1984) (examining contacts
15 over seven-year period (1970-1977), including after the 1976 accident from which the
16 plaintiff’s claims arose, in a general jurisdiction analysis).
17 {26} We need not determine whether general jurisdiction in New Mexico depends
18 on contacts extant at the time a claim accrued or at the time the complaint is filed,
19 however, because even if we consider the medical license in our analysis, we
17 1 conclude that possession of a medical license is not sufficient in and of itself to
2 subject Dr. Frezza to general jurisdiction in New Mexico courts. The general rule
3 gleaned from cases in sister states is that possession of a medical license in the forum
4 state may be considered a contact for purposes of general jurisdiction but is not
5 sufficient on its own. For instance, in Etchebarne-Bourdin v. Radice, the District of
6 Columbia Court of Appeals held that where “there [was] no allegation that the doctors
7 maintained their [District of Columbia] licenses in order to solicit patients in the
8 District[,]” the fact “that the doctors maintained medical licenses to practice in the
9 District cannot, without more, serve as a basis for jurisdiction under the ‘transacting
10 any business’ subsection of the [D.C. long-arm] statute.” 982 A.2d 752, 759 (D.C.
11 2009). Similarly, in Modlin v. Superior Court, the California Court of Appeals held
12 that the defendant’s contacts with California were “tenuous at best” and insufficient
13 for general jurisdiction where the contacts consisted of possession of a California
14 medical license and three trips to California in four years. 222 Cal. Rptr. 662, 665
15 (Ct. App. 1986); see also Ghanem v. Kay, 624 F. Supp. 23, 25 (D.D.C. 1984) (“A
16 nonresident physician who arranges to be licensed in the District [of Columbia]
17 would not by this act alone reasonably anticipate being required to defend a suit
18 brought in the District . . . [but] where a nonresident physician is not only licensed in
19 a jurisdiction but carries on significant activities within that jurisdiction, the due
18 1 process requirement of minimum contacts between a defendant and a forum state is
2 satisfied.”); Dean v. Johns, 789 So. 2d 1072, 1079 (Fla. Dist. Ct. App. 2001) (“The
3 various activities of [the Alabaman defendant], including the relationships he has
4 developed with referring Florida physicians to treat Florida patients and his
5 maintenance of a Florida medical license, easily pass the minimum contacts test of
6 the Due Process Clause.”); Estate of Jones v. Phillips ex rel. Phillips, 992 So. 2d
7 1131, 1141 (Miss. 2008) (considering licensure in the forum state as well as
8 arrangements the defendant made to treat the plaintiff in the foreign state); accord
9 Hines v. Clendenning, 1970 OK 28, 465 P.2d 460, 463; cf. Eastboro Found.
10 Charitable Trust v. Penzer, 950 F. Supp. 2d 648, 655-56 (S.D.N.Y. 2013)
11 (concluding that possession of a law license does not confer jurisdiction on the
12 licensing state and collecting cases); Katz v. Katz, 707 A.2d 1353, 1357 (N.J. Super.
13 Ct. App. Div. 1998) (“We are equally convinced that the defendant’s license to
14 practice law in this state does not afford a basis to exercise in personam jurisdiction
15 over him in a matter totally unrelated to his professional license.”).
16 Property
17 {27} Plaintiffs also point to Dr. Frezza’s ownership of property in New Mexico.
18 They argue that Dr. Frezza “purposefully availed himself of the protections and
19 benefits of New Mexico law by purchasing land here and making some use of that
19 1 land.” The land was purchased after the surgeries but before Plaintiffs’ complaints
2 were filed. The timing of these land purchases thus implicates the same questions
3 raised above. Nevertheless, we conclude that even if we consider the land purchases,
4 they are insufficient to demonstrate that Dr. Frezza had continuous and systematic
5 contact with New Mexico such that he could expect to be haled into court here. See
6 Zavala, 2007-NMCA-149, ¶ 12 (“If a defendant has continuous and systematic
7 contacts with New Mexico such that the defendant could reasonably foresee being
8 haled into court in that state for any matter, New Mexico has general personal
9 jurisdiction.” (alteration, internal quotation marks, and citation omitted)). Like a
10 medical license, Dr. Frezza’s ownership of property can be considered as a contact
11 with New Mexico but it is not sufficient on its own to establish jurisdiction over him.
12 Rush v. Savchuk, 444 U.S. 320, 328 (1980) (“[T]he mere presence of property in a
13 [s]tate does not establish a sufficient relationship between the owner of the property
14 and the [s]tate to support the exercise of jurisdiction over an unrelated cause of
15 action.”); cf. F.D.I.C. v. Hiatt, 1994-NMSC-044, ¶ 10, 117 N.M. 461, 872 P.2d 879
16 (considering property ownership in assessment of jurisdiction).
17 Book
18 {28} To the extent Plaintiffs argue that availability of Dr. Frezza’s book, The
19 Business of Surgery, in New Mexico provides a contact sufficient for general
20 1 jurisdiction, we are not persuaded. Even if we accept Plaintiffs’ assertion that
2 “[u]ndoubtedly, [Dr. Frezza] expects the State of New Mexico to protect his copyright
3 . . . and has a plan for the commercial success of his book and its distribution in New
4 Mexico[,]” the distribution of Dr. Frezza’s book in New Mexico does not rise to the
5 level of contact required by the Due Process Clause for general jurisdiction. Cf.
6 Sproul, 2013-NMCA-072, ¶ 14 (“[T]he flow of a manufacturer’s goods into the forum
7 state alone does not create sufficient ties with that state to give it general jurisdiction
8 over the manufacturer.”).
9 {29} Plaintiffs rely on Beh v. Ostergard for the proposition that “a plan [for
10 distribution in New Mexico] is sufficient for general jurisdiction to attach to [Dr.
11 Frezza].” 657 F. Supp. 173, 178 (D.N.M 1987). The Beh court stated that
12 jurisdiction would have been proper if the defendant there had “a regular distribution
13 plan for his publications into New Mexico for which he derived commercial
14 benefit[.]” Id. Beh is not persuasive for two reasons. First, the statement relied on
15 was dicta not essential to the holding. Id. Second and more importantly, this
16 statement was based on Blount v. T D Publishing Corp., in which the New Mexico
17 Supreme Court held that “placing . . . magazines in national channels of commerce
18 . . . submits the publisher to jurisdiction in all states where his product causes injury.”
19 1966-NMSC-262, ¶ 16, 77 N.M. 384, 423 P.2d 421 (emphasis added). This holding
21 1 obviously applies to specific jurisdiction. Thus neither Beh nor Blount are helpful to
2 Plaintiffs’ assertions related to general jurisdiction. See Wright, supra (noting the
3 differences in the general and specific jurisdiction analyses); see also Sproul, 2013-
4 NMCA-072, ¶ 16 (indicating that the contacts necessary for general jurisdiction are
5 more substantial than those for specific jurisdiction).
6 Arrangement with Presbyterian
7 {30} Plaintiffs argue that general jurisdiction is proper based on an “arrangement
8 with Presbyterian . . . [which] secur[ed] for [Dr. Frezza] a virtual guarantee of New
9 Mexico patient referrals.” The parties do not dispute that (1) Dr. Frezza treated New
10 Mexico residents, including Plaintiffs, referred to him by Presbyterian; (2) there were
11 no bariatric surgeons in New Mexico at the time; (3) Dr. Frezza was a credentialed
12 participating provider under the agreement between TTPA and Presbyterian; and (4)
13 Dr. Frezza was bound by the agreement. Plaintiffs maintain that these facts are
14 sufficient to establish the existence of a relationship between Dr. Frezza and
15 Presbyterian through which Dr. Frezza “reached into [New Mexico] in order to attract
16 [a] patient’s business[.]” Cronin, 2000-NMCA-082, ¶ 26; cf. Zavala, 2007-NMCA-
17 149, ¶ 21 (concluding that although “it is not necessarily sufficient by itself to justify
18 the exercise of general personal jurisdiction[,]” Medicaid registration “may be a factor
19 to consider” in a general jurisdiction analysis).
22 1 {31} We note that Dr. Frezza’s arguments in the district court and on appeal take
2 several different approaches. In his pleadings below, Dr. Frezza acknowledged that
3 his status as a participating provider in Presbyterian’s network established a
4 relationship between him and the insurer. For instance, he analogized the agreement
5 with Presbyterian to Medicaid registration and acknowledged that such registration
6 can be considered a contact for purposes of general jurisdiction, implicitly
7 acknowledging that the agreement was a contact between him and New Mexico. See
8 Zavala, 2007-NMCA-149, ¶ 21. Nevertheless, he argued that this contact was
9 insufficient for general jurisdiction. See id. He also made several references to “[t]he
10 contractual relationship between Dr. Frezza and Presbyterian,” arguing that it would
11 not support specific jurisdiction because Plaintiffs’ claims did not arise from it. In
12 spite of these statements in his pleadings, in the hearing before the district court Dr.
13 Frezza relied on the fact that he was not a party to the agreement and had no authority
14 to decide which insurance he would accept to argue that “there is no contract between
15 Dr. Frezza and Presbyterian.” Similarly, on appeal, Dr. Frezza maintains that,
16 because he was not an employee of TTPA, was not a party to the agreement, and had
17 no authority to select with whom he would become a participating provider, the
18 agreement cannot be considered a contact between him and New Mexico for purposes
19 of jurisdiction. On appeal, he argues that “Plaintiff[s’] relationship with
23 1 Presbyterian[,] Presbyterian’s relationship with TTPA[,] and TTPA’s relationship
2 with Dr. Frezza . . . cannot [be] combine[d] . . . to establish personal jurisdiction over
3 Dr. Frezza.”
4 {32} In support of his position at the hearing, Dr. Frezza submitted a copy of the
5 agreement to the district court. The district court concluded that the fact that Dr.
6 Frezza was not a party to the agreement was dispositive of whether Dr. Frezza had a
7 relationship with Presbyterian. We disagree because this conclusion does not
8 consider other facts surrounding the agreement, including, among other things, that
9 Dr. Frezza was a participating provider bound by the agreement, that New Mexico
10 patients were referred to him because of the agreement, and that there were no New
11 Mexico bariatric surgery providers at that time. See Sproul, 2013-NMCA-072, ¶ 17
12 (“The question [of whether jurisdiction exists] cannot be answered by applying a
13 mechanical formula or rule of thumb but [must be resolved] by ascertaining what is
14 fair and reasonable under the circumstances.” (alteration, internal quotation marks,
15 and citation omitted)); cf. Dunn v. Yager, 58 So. 3d 1171, 1186 (Miss. 2011) (holding
16 that Mississippi had general jurisdiction over the defendant where he “had
17 participated in various [preferred provider organizations (PPOs)], which, inter alia,
18 gave him access to more than 800,000 members of [a Mississippi PPO] as prospective
19 clients” and recognizing that the defendant “solicited patients through the PPOs, as
24 1 an approved preferred provider” and the plaintiff’s claim had been approved by a
2 Mississippi insurer).
3 {33} Neither does the rest of the record provide sufficient facts for us to assess
4 whether the arrangement with Presbyterian establishes a contact between Dr. Frezza
5 and New Mexico. Ms. Velten’s claims that Dr. Frezza had no authority to select
6 which insurance he would accept do not address the extent of Dr. Frezza’s rights and
7 obligations arising out of a contract with an insurer once it is selected by TTPA. Dr.
8 Frezza’s repeated reliance on the fact that he is not an employee of TTPA likewise
9 raises more questions than it answers. For instance, is Dr. Frezza a member, partner,
10 or owner of TTPA? Is he a third-party beneficiary of TTPA’s contract with
11 Presbyterian? Is there a contract with TTPA that defines Dr. Frezza’s relationship
12 with it, as Ms. Velten’s affidavit suggests, and/or do the terms of his employment
13 with the Center define his rights and obligations with respect to TTPA? The nature
14 of Dr. Frezza’s relationships with both the Center and TTPA likely will inform the
15 analysis of any relationship with Presbyterian.
16 {34} Plaintiffs also alleged that Dr. Frezza “used” or “developed” “a special
17 relationship with Presbyterian to encourage New Mexico residents to seek treatment
18 from him[.]” See Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990)
19 (“ ‘Purposeful availment’ requires that the defendant have performed some type of
25 1 affirmative conduct which allows or promotes the transaction of business within the
2 forum state.” (internal quotation marks and citation omitted)). Dr. Frezza challenged
3 Plaintiffs’ assertion through submission of the agreement and affidavits. But the
4 agreement requires each participating provider to be “credentialed by [Presbyterian].”
5 Ms. Velten stated in her affidavit that “Dr. Frezza was requested to submit a
6 credentialing application to [the Center] and TTPA pursuant to the separate delegated
7 credentialing agreement.” The “separate credentialing agreement” is not in the
8 record. Dr. Frezza stated in his affidavit that he “did not personally seek to become
9 credentialed with . . . Presbyterian. Rather, [TTPA] was credentialed
10 with . . . Presbyterian. As a member of that group, [he] was required to submit a
11 credentialing application to . . . Presbyterian.” The extent to which Dr. Frezza
12 personally acted to become credentialed with Presbyterian is unclear from this record.
13 For instance, although Dr. Frezza asserts that he did not “personally” seek to become
14 credentialed, he also states that he submitted an application to become credentialed.
15 At the same time that he asserts that TTPA was credentialed, he states that he
16 submitted his own credentialing application to Presbyterian.
17 {35} We conclude that, even if we view Plaintiffs’ assertions and Dr. Frezza’s
18 evidence in the light most favorable to jurisdiction, Cronin, 2000-NMCA-082, ¶ 10,
19 the parameters of the relationship are unclear such that we cannot assess whether it
26 1 is a contact sufficient for general jurisdiction. Cf. Russell v. SNFA, 946 N.E.2d 1076,
2 1080-81 (Ill. App. Ct. 2011) (“If we find that [the] plaintiff has made a prima facie
3 case for jurisdiction, we must then determine if any material evidentiary conflicts
4 exist. If a material evidentiary conflict exists, we must remand the case to the trial
5 court for an evidentiary hearing.” (citation omitted)); Sorezza v. Scheuch, No.
6 19717/07, 2008 WL 2186175, at *6 (N.Y. Sup. Ct. May 13, 2008) (denying a motion
7 for dismissal and stating, “Absent further discovery concerning the nature of the
8 contractual agreement or arrangement between BlueCross/Blue Shield and the
9 defendant with respect to his ‘participating provider’ status, the court is constrained
10 from determining whether such agreement or arrangement would qualify as a business
11 transaction [under New York’s long-arm statute]”). For instance, it remains unclear
12 to what extent Dr. Frezza was bound by or benefitted from the agreement, whether
13 the agreement required Dr. Frezza to accept Presbyterian patients, to what extent Dr.
14 Frezza himself sought to become credentialed with Presbyterian, and, perhaps most
15 importantly, whether and how Dr. Frezza became the sole provider of bariatric
16 surgery services to Presbyterian’s members. Cf. Almeida v. Radovsky, 506 A.2d
17 1373, 1375 (R.I. 1986) (relying on the specific terms of the defendants’ agreement
18 with a Rhode Island insurer and the fact that the insurer did not refer Rhode Island
19 patients to the defendants to hold that there were insufficient contacts for
27 1 jurisdiction). We therefore turn to whether Plaintiffs have made a prima facie
2 showing of specific jurisdiction.
3 2. Specific Jurisdiction
4 {36} Plaintiffs argue that New Mexico has specific personal jurisdiction over Dr.
5 Frezza because their claims arose from surgeries performed pursuant to Dr. Frezza’s
6 relationship with Presbyterian.1 Even if Dr. Frezza’s relationship with Presbyterian
7 is insufficient for general jurisdiction, it may nonetheless be sufficient for specific
8 jurisdiction. See ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 715
9 (4th Cir. 2002) (“[T]he threshold level of minimum contacts sufficient to confer
10 general jurisdiction is significantly higher than for specific jurisdiction.” (internal
11 quotation marks and citation omitted)). The district court determined that Plaintiffs’
12 claims arose from medical care provided in Texas, rejecting Plaintiffs’ argument that
13 they arose from Dr. Frezza’s relationship with Presbyterian. The district court
14 therefore concluded that it “[could not] exercise specific jurisdiction over Dr. Frezza”
15 because Plaintiffs’ claims were not connected with any contacts between Dr. Frezza
1 16 In a cursory argument, Plaintiffs contend that specific personal jurisdiction is 17 appropriate because Dr. Frezza traveled to New Mexico and consulted with at least 18 one patient here. However, they do not explain how their injuries arose from this 19 contact. We therefore decline to address this argument. Headley v. Morgan Mgmt. 20 Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review 21 unclear arguments, or guess at what [a party’s] arguments might be.”).
28 1 and New Mexico. In doing so, the district court avoided analyzing whether there was
2 a relationship between Dr. Frezza and Presbyterian sufficient for specific jurisdiction.
3 {37} The district court’s rejection of Plaintiffs’ contention that their claims arose
4 from a relationship between Dr. Frezza and Presbyterian rests on an overly narrow
5 construction of the requirement that the claims must “arise from” Dr. Frezza’s contact
6 with New Mexico. In Goodyear Dunlop Tires, the United States Supreme Court
7 stated that specific jurisdiction applied when the claims “deriv[e] from, or [are]
8 connected with” the defendant’s contacts. 131 S. Ct. at 2851 (internal quotation
9 marks and citation omitted); accord Helicopteros Nacionales, 466 U.S. at 414 (using
10 the phrase “arise out of or relate to” in discussing specific jurisdiction). This
11 language permits a more expansive construction than that applied by the district
12 court. Similarly, our cases have held that “for New Mexico to assert specific
13 jurisdiction over a nonresident defendant, the plaintiff’s claim must ‘lie in the wake’
14 of the defendant’s commercial activities in New Mexico.” Sproul, 2013-NMCA-072,
15 ¶ 17 (alteration omitted) (quoting Visarraga, 1986-NMCA-021, ¶ 15). For example,
16 in Kathrein v. Parkview Meadows, Inc., a New Mexican plaintiff sued an Arizona
17 defendant for “emotional and psychological trauma” she suffered after attending
18 “Family Week” at a treatment center where her husband was being treated. 1984-
19 NMSC-117, ¶ 3, 102 N.M. 75, 691 P.2d 462. The Court held that the cause of action
29 1 was “a direct outgrowth of [the] defendant’s general solicitation for business in New
2 Mexico” where the defendant had “advertised its alcoholism treatment center in the
3 yellow pages of the Albuquerque telephone directory[,] . . . contacted the director of
4 [a New Mexico organization] to solicit . . . referral of patients to the treatment
5 center[,] . . . mail[ed] a brochure [to the plaintiff], inviting her to attend the treatment
6 program’s ‘Family Week[,]’ [and] telephoned [the] plaintiff from Arizona, to
7 encourage her attendance.” Id. ¶¶ 2, 4; see Cronin, 2000-NMCA-082, ¶ 16 (agreeing
8 with the plaintiffs that their claims arose from the hospital’s transaction of business
9 in New Mexico because “but for [the h]ospital’s solicitations, [the p]atient would not
10 have sought treatment at [the h]ospital nor would he have endured certain health
11 complications arising from [the doctor’s] prescription and [the d]efendants’ negligent
12 failure to monitor the administration of potentially ototoxic antibiotics”); see also
13 Presbyterian Univ. Hosp. v. Wilson, 654 A.2d 1324, 1331 (Md. 1995) (stating that
14 the hospital’s “voluntary efforts to register as a Maryland [Medicaid] provider and to
15 be designated as a liver transplant referral center served in many respects to
16 effectively solicit Maryland residents to seek treatment” at the hospital and that
17 “[t]hese general business contacts are directly related to the [medical negligence and
18 wrongful death] action and serve as support for the finding of specific jurisdiction”).
30 1 {38} Consistent with Kathrein and Cronin, we conclude that, if the alleged
2 relationship exists, Plaintiffs’ claims here are sufficiently connected with it . The fact
3 that Dr. Frezza may have been the only provider covered by Presbyterian and thus
4 Plaintiffs had no option to seek treatment in New Mexico only strengthens the
5 connection between the two. But because the district court did not address the
6 alleged relationship in the context of specific jurisdiction, there is no factual record
7 addressing “the precise nature of the defendant’s contacts with the forum, the
8 relationship of these contacts with the cause of action, and [] weighing . . . whether
9 the nature and extent of contacts . . . between the forum and the defendant . . . satisfy
10 the threshold demands of fairness.” Presbyterian Univ. Hosp., 654 A.2d at 1330
11 (second and third omissions in original) (internal quotation marks and citation
12 omitted). The same questions about the relationship identified in our discussion of
13 general jurisdiction apply in an analysis of specific jurisdiction. Hence we expect the
14 district court will address them on remand in both contexts.
15 3. Fair Play and Substantial Justice
16 {39} “The United States Supreme Court has held that even if a defendant has
17 established sufficient minimum contacts with the forum state, the Due Process Clause
18 forbids the assertion of personal jurisdiction over that defendant under circumstances
19 that would offend traditional notions of fair play and substantial justice.”
31 1 Sproul, 2013-NMCA-072, ¶ 35 (internal quotation marks and citation omitted). Since
2 we have concluded that an evidentiary hearing is necessary to clarify Dr. Frezza’s
3 contacts with New Mexico and the strength of those contacts will affect the analysis
4 of whether it is unfair to assert jurisdiction over him, we do not address this issue
5 except to provide guidance on two points. First, Dr. Frezza argues on appeal that he
6 would be substantially burdened by having to defend himself in New Mexico because
7 (1) he is immune from suit under Texas law and (2) Texas courts are “better situated
8 [than New Mexico courts] to deal with the issues inherent in applying Texas’s Tort
9 Claims Act.” Both of these arguments assume that the Texas Tort Claims Act will
10 apply to this case, a proposition we rejected in the companion case, Montaño, COA
11 No. 32,403, ¶ 39. He also argues that Texas has “significant public policy interests
12 in litigating th[ese] case[s]” because he is a government employee. Although we
13 recognize that Texas has an interest in this case, we have concluded that, under the
14 facts of these cases, New Mexico has an equal or greater interest. See id. ¶ 30.
15 Finally, we reject this line of reasoning because, although there is some overlap, the
16 personal jurisdiction and choice of law inquiries are distinct and different. The
17 United States Supreme Court cautioned against entwining the two analyses, stating
18 that “[t]he question of [whether the forum state’s law applies] presents itself in the
19 course of litigation only after jurisdiction over [the] respondent is established, and we
32 1 do not think that such choice of law concerns should complicate or distort the
2 jurisdictional inquiry.” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 778 (1984).
3 {40} Second, the district court concluded that “[e]xercising personal jurisdiction
4 over Dr. Frezza in New Mexico would violate traditional notions of fair play and
5 substantial justice” because “many of the important fact witnesses in this case reside
6 in Texas and . . . Dr. Frezza will be unable to compel fact witnesses in Texas,
7 including the healthcare providers who subsequently treated Plaintiff[s] and allegedly
8 diagnosed [their] complications, to testify in person at trial in New Mexico.” At the
9 hearing, the district court stated that it would be a “horrible trial if we have to show
10 the jury video tapes of those people [because the jury] would be asleep.” Even if we
11 construe these findings as addressing the burden on Dr. Frezza and efficiency of the
12 trial, there is nothing in the record indicating that the district court considered the
13 other Zavala factors, such as “New Mexico’s interest, the plaintiff’s interest, . . . and
14 the interest in promoting public policy.” 2007-NMCA-149, ¶ 12. In addition, it is
15 difficult to see how the concerns voiced by the district court establish the
16 unconstitutionality of New Mexico’s assertion of jurisdiction. On remand, the district
17 court should consider all of the Burger King factors in relation to the strength of Dr.
18 Frezza’s contacts with New Mexico in assessing the fairness of personal jurisdiction
19 over him. See Burger King Corp., 471 U.S. at 476 (stating that if “it has been decided
33 1 that a defendant purposefully established minimum contacts within the forum [s]tate,
2 these contacts may be considered in light of other factors to determine whether the
3 assertion of personal jurisdiction would comport with fair play and substantial
4 justice” (internal quotation marks and citation omitted)); Salas v. Homestake Enters.
5 Inc., 1987-NMSC-094, ¶ 6, 106 N.M. 344, 742 P.2d 1049 (citing Burger King and
6 considering the defendant’s contacts in assessment of the fairness of jurisdiction).
7 F. CONCLUSION
8 {41} For the foregoing reasons, we remand for further proceedings consistent with
9 this Opinion.
10 {42} IT IS SO ORDERED.
11 12 MICHAEL D. BUSTAMANTE, Judge
13 WE CONCUR:
14 __________________________________ 15 JONATHAN B. SUTIN, Judge
16 __________________________________ 17 CYNTHIA A. FRY, Judge
Related
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