Citations
- 193 F. Supp. 3d 1200
Full opinion text
MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on Defendant Southampton Union Free School District, a New York School District’s Motion to Dismiss for Lack of Personal Jurisdiction or to Transfer Venue, filed December 17, 2015 (Doc. 5)(“MTD”). The Court held a hearing on March 8, 2016. The primary issues are: (i) whether the Court has personal jurisdiction over Defendant Southampton Union Free School District, a New York School District; and (ii) whether, if the Court concludes that it has personal jurisdiction over Southampton Union, it should order transfer of venue to the United States District Court for the Eastern District of New York. The Court will grant the MTD and will transfer this action to the Eastern District of New York pursuant to 28 U.S.C, § 1631. First, the Court concludes that it lacks personal jurisdiction over Southampton Union. The Court does not have general personal jurisdiction over Southampton Union, because Plaintiff Resource Associates Grant Writing & Evaluation Services, Inc.. has not established that Southampton Union’s contacts with New Mexico are so continuous and systematic that it is essentially at home in New Mexico. The Court also does not have specific personal jurisdiction over Southampton Union, because it does not have sufficient minimum contacts with New Mexico to comport with the requirements of - the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States of America. Second, the Court will transfer this action to the Eastern District of New York pursuant to 28 U.S.C. § 1631.
FACTUAL BACKGROUND
The plaintiff need make only a prima facie showing of personal jurisdiction to defeat a motion to dismiss under rule 12(b)(2) of the Federal Rules of Civil Procedure. See OMI Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1090 (10th Cir.1998). “A plaintiff may make this prima facie showing by demonstrating, by affidavit or other written materials, facts, that, if true, would support the exercise of personal jurisdiction over defendant.” Rainy Day Books, Inc. v. Rainy Day Books & Café, LLC, 186 F.Supp.2d 1158, 1160 (D.Kan.2002)(Waxse, J.). In considering whether plaintiff has made a prima facie showing of personal jurisdiction over the defendant, the Court must take the complaint’s allegations as true to the extent the defendant’s affidavits do not controvert them. See Tompkins v. Executive Comm. of S. Baptist Convention, No. CIV 13-0840 JB/CG, 2015 WL 1569034, at *4 (D.N.M. Mar. 31, 2015)(Browning, J.). Moreover, “[w]hen conflicting affidavits are presented, factual disputes are resolved in plaintiffs favor....” Behagen v. Amateur Basketball Ass’n of U.S.A., 744 F.2d 731, 733 (10th Cir.1984). To decide the MTD, the Court takes its facts from: (i) the Complaint for Damages, filed December 14, 2015 (Doc. l-2)(“Complaint”); (ii) the Declaration of Debbie Oftedal (dated January 14, 2016), filed January 14, 2016 (Doc. 11-l)(“Oftedal Decl.”); (iii) the Email from Karenann Volinski to Debbie Oftedal (dated October 9, 2013), filed January 14, 2016 (Doc. 11-1 at 3)(“Oct. 9th Email from Vo-linski to Oftedal”); (iv) the Email from Debbie Oftedal to Karenann Volinski (dated October 8, 2013), filed January 14, 2016 (Doc. 11-1 at 4)(“Oct. 8th Email from Of-tedal to Volinski”); (v) the Declaration of John Nawrocki, filed January 14, 2016 (dated January 14, 2016)(Doc. ll-2)(“Naw-rocki Decl.”); (vi) the Email from John Nawrocki to Debbie Oftedal (dated October 4, 2013), filed January 14, 2016 (Doc. 11-2 at 3)(“Oct. 4th Email from Nawrocki to Oftedal”); (vii) the Email Chain Between Deb Montgomery, Scott Farina, Amanda Gutierrez, and John Nawrocki (dated September 26, 2013), filed February 4, 2016 (Doc. 18-l)(“Feb. 4th Email Chain”); and (viii) the Resource Associates Website, filed February 4, 2016 (Doc. 18-2)(“Re-source Associates Website”).
This case is about a reciprocal agreement (the “Reciprocal Agreement”) into which Resource Associates and Southampton Union entered. See Complaint ¶ 3, at 1. Resource Associates is a New Mexico corporation doing business in the State of New Mexico, with an office in Farmington, New Mexico in San Juan County, which is the principal location of Resource Associates’ day-to-day operations. See Complaint ¶ 1, at 1; Oftedal Decl. ¶ 2, at 1. “Resource Associates’ business focuses on assisting nonprofit organizations, schools, businesses, government agencies and other entities with identifying and obtaining grants.” Oftedal Decl. ¶ 3, at 1. Southampton Union is a New York school district. See Complaint ¶ 2, at 1.
On approximately September 26, 2013, Deb Montgomery of Resource Associates sent an email advertisement to Scott Farina at Southampton Union. See Feb. 4th Email Chain at 1-5. This email advertisement “listed Resource Associates’ New Mexico telephone number (with a 505 area code) and contained a link to Resource Associates’ website, which featured information about the company’s New Mexico headquarters.” Nawrocki Decl. ¶ 4, at 1. See Oct. 4th Email from Nawrocki to Of-tedal at 2-3. See Resource Associates Website at 1-16. In or around September, 2013, Karenann Volinski, Southampton Union’s Coordinator of Data and Assessment, contacted Nawrocki in New Mexico to inquire about engaging Resource Associates’ services in connection with the New York State Extended Learning Time grant (“Extended Day Grant”). Nawrocki Decl. ¶ 3, at 1. Volinski indicated that Southampton Union had learned about Resource Associates through an email advertisement. See Nawrocki Decl. ¶ 3, at 1. After Volin-ski’s initial email, Nawrocki and Volinski engaged in a series of telephone calls and emails about Resource Associates’ services and Southampton Union’s interest in retaining Resource Associates in connection with applying for the Extended Day Grant. See Nawrocki Decl. ¶ 5, at 2. During these conversations, Nawrocki discussed with Volinski that Resource Associates is located in New Mexico. See Nawrocki Decl. ¶ 6, at 2. The communications between Naw-rocki and Volinski resulted in Southampton Union deciding to engage Resource Associates to provide services relating to the Extended Day Grant. See Nawrocki Decl. ¶ 7, at 2. On October 4, 2013, Volinski emailed Nawrocki in New Mexico to inform him that Southampton Union wished to proceed with the contract with Resource Associates. See Nawrocki, Decl. ¶7, at 2; Oct. 4th Email from Nawrocki to Oftedal at 1.
. On approximately October 4, 2013, Nawrocki informed his colleague Debbie Oftedal that Southampton Union wished to enter into a contract with Resource Associates, under which Resource Associates would provide grant-writing services in connection with the Extended Day Grant. See Oftedal Decl. ¶ 4, at 1; Oct. 4th Email from Nawrocki to Oftedal at 1. On approximately October 8, 2013, Oftedal forwarded a proposed contract, entitled a Reciprocal Agreement, to Southampton Union. See Oftedal Decl. ¶ 5, at 1; Oct. 8th Email from Oftedal to Volinski at 4. Southampton Union returned an executed copy, of the proposed contract to Oftedal on - October 9, 2013, using Oftedal’s Resource Associates email address. See Oftedal Decl. ¶5, at 1; Oct. 9th Email from Volinski to Oftedal at 3. In other words, on October 8, 2013, Resource Associates and Southampton Union entered into the Reciprocal Agreement, under which Resource Associates would assist Southampton Union in the development of the Extended Day Grant proposal, which was due October 25, 2013. See Complaint ¶ 3, at 1. At the time Resource Associates and Southampton Union entered into the Reciprocal Agreement, Resource Associates’ office was located in Farmington. See Complaint ¶ 9, at 3; Oftedal Decl. ¶ 2, at 1. The Reciprocal Agreement contains a section entitled “Other Terms, Jurisdiction and Attorney Fees,” which states:
Client and Vendor acknowledge that the Provider has no control over the budget of the funder, and that on very rare occasion the funder’s budget can be cut or withdrawn, so that a grant may not be funded. In this rare case, the Client and Vendor understand that the Client acknowledges that they are not entitled to a refund of fees or additional free services, if applicable. Client acknowledges that Client has fully read and completely understands this multi-page agreement. Client and Vendor acknowledge that the Provider must receive a signed and dated agreement in addition to compensation from the Vendor for its grant writing services prior to services being rendered. All rights in data and intellectual property of all materials related to the grant proposal shall remain with the Provider. If any provision of the agreement or the application thereof to any person or circumstance is held invalid such invalidity shall not affect any other provision which can be given effect without this invalid provision or application and to the end the provisions hereof shall be servable. If Resource Associates, the Provider, or its selected evaluator or post awards services company is damaged by a violation of this Agreement, it may file a complaint and seek redress for injunctive relief, restitution, and damages. Attorney’s fees and litigation costs shall be awarded to Resource Associates or its selected evaluator and/or post award services company in this action if it is the prevailing party. Client and Vendor hereby agree to the full, conditions of this Agreement, and any subsequent changes to this Agreement must be made in writing and signed by all parties: Vendor, Client and Provider.
Reciprpcal Agreement at 3.
Following the parties’ entry into the Reciprocal Agreement, Resource Associates proceeded to provide Southampton Union with the grant-writing and related services required under the Reciprocal Agreement. See Oftedal Decl. ¶7, at 2. “During the course of Resource Associates’ provision of services, [Southampton Union] continued its contacts with the State of New Mexico, including by posting the final Extended Day Grant application to Resource Associates’ website.” Oftedal Decl, ¶ 8, at 2. “The website is maintained in Farmington, New Mexico,” Oftedal Decl. ¶ 8, at 2. Resource Associates succeeded in its work on behalf of Southampton Union, in that in June, 2014, the State of New York Department of Education awarded an Extended Day Grant to Southampton Union in the amount of $2,572,402.00. See Oftedal Decl. ¶ 9, at 2; Complaint ¶ 4, at 2. On Tuesday, October 7, 2014, the Southampton Board of Education voted to reject the $2,572,402.00 state grant that would have extended the school year for elementary and intermediate students by 300 hours, most likely by expanding the typical school day. See Complaint ¶ 5, at 2. The Southampton Board rejected the grant because of concerns of having kids spend so much time in the classrooms and whether the schedule changes would be sustainable once the grant expires. See Complaint ¶ 5, at 2, In approximately March, 2015, Resource Associates learned that Southampton Union had declined the grant award. See Oftedal Decl. ¶ 9, at 2. On March 26, 2015, Resource Associates sent a letter to Southampton Union “demanding payment of $257,240.00 that was owed under the Reciprocal Agreement.” Complaint ¶ 10, at 3.
PROCEDURAL BACKGROUND
On November 5, 2015, Resource Associates filed suit in the Eleventh Judicial Diátrict Court, County of San Juan, New Mexico. See Complaint at 1. A little over a month later, on December 14, 2015, Southampton Union removed the case to federal court, asserting diversity jurisdiction. See Notice of Removal, filed December 14, 2015 (Doc. 1). Resources Associates asserts two causes of action against Southampton Union: (i) breach of contract, see Complaint ¶¶ 11-14, at 3-4 (Count 1); and (ii) quantum meruit, see Complaint ¶¶ 15-18, at 4 (Count 2). Resource Associates asks the Court for judgment against Southampton Union on both counts in the amount of $256,240.00 for its fee under the Reciprocal Agreement, plus statutory interest at the rate of fifteen percent per annum (which is $105.72 per day) from the date of judgment, until paid in full, court costs and attorney fees, and for such relief as the Court deems just and proper. See Complaint ¶¶ 14,18, at 3-4. Relevant to the Court’s analysis on the MTD, the Complaint states: “At the time.the Reciprocal Agreement was entered into, Plaintiffs office was located.in Farmington, San Juan County, New Mexico, as shown on Page 4 of the Reciprocal Agreement, thereby requiring any litigation over the Reciprocal Agreement to be brought in the District Court of San Juan County, New Mexico.” Complaint ¶ 9, at 3. ,
1. The MTD.
Southampton Union filed the MTD on December 17, 2015. See MTD at 1. Southampton Union moves the Court to dismiss this action for lack of personal jurisdiction or, in the alternative, to transfer to the fedéral District of New York. See MTD at 1. Southampton Union first argues that the Court lacks personal jurisdiction over it. See MTD at 1-6. Southampton Union contends that the Supreme Court of New Mexico has explained that New Mexico’s long-arm statute “extends the jurisdictional reach of New Mexico courts as far as constitutionally permissible.” MTD at 4 (quoting Tercero v. Roman Catholic Diocese of Norwich, Connecticut, 2002-NMSC-018, ¶ 6, 132 N.M. 312, 48 P.3d 50, 54).
Southampton Union maintains that the Court applies a three-part test to determine whether it has personal jurisdiction over an out-of-state defendant: (i) whether the defendant committed an act or omission specifically set forth in the long-arm statute; (ii) whether the plaintiffs cause of action arose out of the alleged acts or omissions; and (iii) whether sufficient minimum contacts with New Mexico have been established to satisfy due-process concerns. See MTD at 4 (citing Fed. Deposit Ins. Corp. v. Hiatt, 1994-NMSC-044, 463, ¶ 7, 117 N.M. 461, 872 P.2d 879, 881). Southampton Union asserts that, here, Resource Associates alleges in Paragraph 9 of the Complaint that the. “Plaintiffs office was located .in Farmington; San Juan County, New Mexico, as shown on Page 4 of the Reciprocal. Agreement”' and “thereby requiring any litigation over the Reciprocal Agreement to be brought in the District Court of San Juan County, New Mexico.” MTD at 5. Southampton Union argues that page 4 of the Reciprocal Agreement is not a choice-of-law provision and that the Reciprocal Agreement does not contain one. See MTD at 6. Southampton Union further asserts: “The mere fact that Petitioner summarily asserts jurisdiction in the Complaint does not confer jurisdiction on any basis, whether under the long-arm statute or by any evidence put forward by Plaintiff. Therefore, this case should be dismissed for lack of personal jurisdiction.” MTD at 6.
Southampton Union next argues that, in the alternative, the Court should order transfer of these proceedings to the federal District Court in New York pursuant to 28 U.S.C. § 1404(a). Southampton 'Union maintains that venue statutes are designed to protect the defendant and the witnesses against a plaintiffs choice of an unfair or inconvenient forum. See MTD at 6. Southampton Union asserts that the Court has broad discretion in deciding such transfer questions. See MTD at 7 (citing Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756 (3rd Cir.1973)). According to Southampton Union, the Court has two broad categories of factors to consider in deciding whether to transfer venue: (i) the convenience of the parties and witnesses; and (ii) the interests of justice. See MTD at 7 (citing 28 U.S.C. § 1404). Southampton Union further explains:
“Among the factors [a district court] should consider is the plaintiffs choice of forum; the accessibility of witnesses and other sources of proof, including the availability ,of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine questions of local law; and, all other considerations of a practical nature that make a trial easy, expeditious and economical.” Navajo Health Foundation-Sage Memorial Hosp., Inc. v. Burwell, 86 F.Supp.3d 1211 [(D.N.M.2015)] (citing Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir.1991)).
MTD at 7. Southampton Union maintairis that, in this case, the facts favor a transfer of this action to a New York court:
If the matter proceeds, the District will have a heavy burden to bring potential witnesses to New Mexico for trial, or to engage in the deposition process with witnesses who reside in New York, and have never entered the State of New Mexico. The-witnesses and potential relevant evidence will be more accessible if the matter is litigated in New York. Also, regarding the applicable law, as stated, the Defendant is a New York School District and has potential governmental immunities in New York, which would be advantageous for a New York District Court to interpret questions of local law.
MTD at 7-8.
2. The Response.
Resource Associates responded on January 14, 2016. See Plaintiffs Response to Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction or to Transfer Venue, filed January 14, 2016 (Doc. ll)(“Response”). Resource Associates first argues that the Court has specific personal jurisdiction over Southampton Union in this case. See Response at 7. Resource Associates maintains that Southampton Union has sufficient minimum contacts with New Mexico. See Response at 7. Resource Associates argues that Southampton Union purposefully directed activities at a New Mexico resident by: (i) voluntarily initiating and pursuing a business relationship with Resource Associates,' which Southampton Union knew was a New Mexico company, through a series of telephone and email communications; and (ii) entering into the Reciprocal Agreement with Resource Associates, thereby undertaking continuing obligations entailing contact with New Mexico. See Response at 7-8. Resource Associates maintains that the parties’ transaction “involved affirmative commitments by the School District to cooperate with, communicate with, and remit payment to a New Mexico company.” Response at 8. According to Resource Associates, the transaction between Resource Associates and Southampton Union “involved the performance of sustained interactions and mutual duties taking place over an extended period of time.” Response at 8. Resource Associates explains that Southampton Union entered into the Reciprocal Agreement in October, 2013, that the State of New York Department of Education awarded the grant in June, 2014, and that, if Southampton Union had accepted the award, the collaboration between Resource Associates and Southampton Union would have potentially continued during the grant’s two-year duration. See Response at 8.
Resource Associates quotes Burger King Corporation v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), for the proposition that, in the context of “interstate contractual obligations,” the Supreme Court of the United States has “emphasized that parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other State for the consequences of their activities.” Response at 8-9 (quoting Burger King Corporation v. Rudzewicz, 471 U.S. at 473, 105 S.Ct. 2174). Resource Associates also maintains that the significant monetary amount at issue—a $2.5 million grant—supports a finding that Southampton Union purposefully availed itself of New Mexico’s protections when it voluntarily pursued the transaction with Resource Associates. See Response at 9 (citing In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 227 (6th Cir.1972)). Resource Associates attacks Southampton Union’s suggestion that the only possible basis for jurisdiction would be if the parties had included a forum selection clause in the Reciprocal Agreement. See Response at 9. Resource Associates maintains that, “[o]n the contrary, the parties’ failure to include a forum selection clause within their Agreement—either designating New Mexico or New York as the exclusive forum for resolving disputes— means that personal jurisdiction should be determined by operation of law.” Response at 9. In sum, Resource Associates contends that there is ample legal support for the Court to exercise personal jurisdiction over Southampton Union, including Southampton Union’s initiation of contact with New Mexico. See Response at 9-10. Resource Associates also explains that the Court can consider the additional extrinsic evidence that it attached to its Response in considering the MTD. See Response at 10.
Resource Associates next argues that, because Southampton Union has sufficient minimum contacts with New Mexico, the Court must evaluate whether Southampton Union can “demonstrate ... that exercising personal jurisdiction would nonetheless offend traditional notions of fair play and substantial justice.” Response at 10 (quoting Newsome v. Gallacher, 722 F.3d 1257, 1271 (10th Cir.2013)). Resource Associates further explains:
Courts assessing the fairness of subjecting an out-of-state defendant to personal jurisdiction consider “(1) the burden on the defendant, (2) the forum state’s interest in resolving the dispute, (3) the plaintiffs interest in receiving convenient and effective relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies.” TH Agric. & Nutrition, 488 F.3d at 1292 (citation and quotation omitted).
Response at 11. Resource Associates argues that Southampton Union provides little analysis explaining why these factors weigh against the Court exercising personal jurisdiction in this case. See Response at 11.
First, Resource Associates quotes Dudnikov v. Chalk & Vermilion Fine Arts, 514 F.3d 1063 (10th Cir.2008), for the proposition that “one side must bear the inconvenience of litigating ‘on the road.’ ” Response at 11 (quoting Dudnikov v. Chalk & Vermilion Fine Arts, 514 F.3d at 1081). It contends that “[vjague allusions to having an unquantified number of witnesses in New York are not sufficient to show that personal jurisdiction in New Mexico would be unreasonable” and maintains that contract disputes such as this one generally do not require a large number of third-party witnesses. Response at 11. Resource Associates contends that most witnesses are Southampton Union employees whose presence at trial can be arranged without compulsory process. See Response at 12. Resource Associates also dismisses Southampton Union’s reference to “potential relevant evidence” in New York, contending that the evidence is likely to consist mostly of documents and that, :even if more documents are located in New York than in New Mexico, electronic discovery renders this fact relatively inconsequential. See Response at 12. Second, with respect to Southampton Union’s indication that it would be unfair to subject it to personal jurisdiction in New Mexico because it enjoys immunities under New York state law, Resource Associates argues that: (i) Southampton Union does not cite the New York laws to which it is referring, making it impossible for Resource Associates to respond to this assertion; and (ii) Southampton Union has not'identified any authority for its suggestion that sovereign immunity in one jurisdiction automatically translates into a lack of personal jurisdiction in another jurisdiction. See Response at 12. Resource Associates further asserts that it has been unable to substantiate Southampton, Union’s allegation that it would be immune from suit in New York courts. See Response at 13. Finally, Resource Associates argues that “the totality of factors weighs in favor of finding that it would be reasonable for this Court to exercise personal jurisdiction over the School District.” Response at 13.
Resource Associates next addresses Southampton Union’s motion to transfer venue. See Response at 13. Resource Associates first notes that, although Southampton Union does not identify which federal district court of New York to which it seeks to transfer venue, it will assume that Southampton Union is asking the Court to transfer venue to the United States District Court for the Eastern District of New York, which covers Southampton Union’s location in Long Island. See Response at 14. Resource Associates then argues that the Court should deny Southampton Union’s request that the Court, in the alternative, transfer venue. See Response- at 14. Resource Associates argues, that Southampton Union does not dispute , that venue is proper in the United States District Court for the District of New Mexico, but, rather, asserts that venue would be more convenient in a district court in New York. See Response at 14. Resource Associates contends that Southampton Union bases its motion to transfer venue on 28 U.S.C. § 1404(a), which states: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district court or division where it might have been brought _” Response at 14-15. Resource Associates asserts that Southampton Union has not met its burden of establishing that this action should be moved from the District of New Mexico, where it chose to file suit. See Response at 15.
First, according to Resource Associates, the Court should not transfer venue, because there is a significant basis for honoring Resource Associates’ choice of forum, given that a clear and logical connection exists between this action and the District of New Mexico, where Resource Associates is headquartered. See Response at 15-16. Second, Resource Associates contends that, although the location of witnesses and records is an important factor, Southampton Union has not: (i) identified the names of New York-based witnesses; (ii) described the materiality of the New York-based witnesses’ testimony; and (iii) shown that compulsory process would be necessary for the New York-based witnesses. See Response at 15-17. It adds that there is no indication that there are more relevant records in New York than in New Mexico or that such records cannot be obtained electronically. See Response at 15-17. Third, Resource Associates argues that Southampton Union’s “vague invocation of New York law—devoid of any statutory or case law reference—interferes with Resource Associates’ ability to meaningfully address the School District’s opinion.” Response at 17-18. Resource Associates argues that it cannot assess the complexity or novelty of the New York law on whieh Southampton Union relies without knowing the general statutory or common law basis for Southampton Union’s position. See Response at 18. Resource Associates also rejects the implicit assumption that any prospect that Southampton Union would have sovereign immunity under New York law means that this action must be transferred there. See Response at 18. Resource Associates contends that “[c]ourts should avoid granting motions to transfer venue ‘predicated wholly on conjecture’ that interpreting the law of a foreign jurisdiction could be complicated.” Response at 18 (quoting DiFederico v. Marriott Int’l, Inc., 714 F.3d 796, 808 (4th Cir.2013)). Resource Associates further explains:
If and when the School District states a prima facie basis for asserting sovereign immunity (including by citing a statute or case law), this Court can decide whether sovereign immunity would apply in New York, whether New York’s immunity laws differ from New Mexico’s, and if so, whether application of New York’s immunity laws would violate New Mexico’s public policies. See, e.g., Sam, 2006-NMSC-022 ¶¶ 16-18, 139 N.M. 474, 134 P.3d 761 (discussing [Nevada v.] Hall[, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979)] and [Franchise Tax Board of California v.] Hyatt[, 538 U.S. 488, 123 S.Ct. 1683, 155 L.Ed.2d 702 (2003)]). The School District has offered no rationale as to why this Court would be unable to perform such an analysis.
Response at 19. Resource Associates stresses that Southampton Union must do more than establish that a New York forum is convenient. See Response at 19. According to Resource Associates, Southampton Union “must show that the Eastern District of New York is more convenient than the District of New Mexico.” Response at 19 (citing Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964))(emphasis in original). In sum, Resource Associates maintains that it has shown that Southampton Union has not met its burden of overcoming the presumption in favor of Resource Associates’ choice of forum. See Response at 20. Accordingly, Resource Associates asks the Court to deny the MTD’s request that the Court dismiss for lack of personal jurisdiction or, in the alternative, to transfer this action to a venue in New York. See Response at 20,
3. The Reply.
Southampton Union replied on February 4, 2016. See Defendant Southampton Union Free School District, A New York School District’s Reply to Plaintiffs Response to Motion to Dismiss for lack of Personal Jurisdiction or to Transfer Venue, filed February 4, 2016 (Doc. 18)(“Re-ply”). Southampton Union first addresses Resource Associates’ argument that the Court has personal jurisdiction over Southampton Union. See Reply at 1-8. Southampton contends that, under the laws of New York, it is unable to agree to jurisdiction in another court, that it never agreed to perform any acts in New Mexico, and that it never agreed that the Court has jurisdiction over it. See Reply at 2. Southampton Union maintains that there is no choice-of-law or forum .selection clause in its contract with Resource Associates. See Reply at 2. According to Southampton Union, the only contacts between Resource Associates and Southampton Union were by telephone and email correspondence. See Reply at 2. Southampton Union argues that it has never conducted business in. New Mexico and that no Southampton Union representative has ever visited New Mexico. See Reply at 2. It maintains that the parties met via email solicitation that Resource Associates initiated through an email advertisement. See Reply at 2. Southampton Union asserts that Resource Associates initiated this transaction by directly soliciting Southampton Union through its Superintendent. See Reply at 2. Southampton Union stresses that it responded to this direct solicitation for services to be provided in New York by Resource Associates, which maintains a national presence and transacts business across the United States. See Reply at 2.
Southampton Union contends that the facts of this case are similar to CABA Ltd. Liability v. Mustang Software, Inc., 1999-NMCA-089, 127 N.M. 556, 984 P.2d 803, in which the Supreme Court of New Mexico concluded that it did not have jurisdiction over the out-of-state defendant where the parties’ contacts included: (i) the defendant approached the plaintiffs representatives at a conference in California; (ii) the plaintiff presented no facts showing that the defendant directly or throügh an agent, solicited, advertised, or otherwise initiated the business transaction within New Mexico; (iii) the parties entered into a contract by mail, facsimile, and telephone; (iv) the plaintiff endorsed the letter of intent in New Mexico; and (v) although the plaintiff was to perform its contractual obligations in New Mexico, the defendant was to perform its contractual duties outside of the state. See Reply at 2-4. Southampton Union maintains that use of mail and telephone services to contact a New Mexico resident is insufficient to satisfy the “purposeful availment” prong of a minimum-contacts analysis. Reply at 5. Southampton Union contends that, even if there are sufficient minimum contacts, the Court must decide whether the exercise of personal jurisdiction over it would comport with “traditional notions of fair play and substantial justice.” Reply at 5-6.
Southampton Union argues that Resource Associates solicited it for the services provided in this case, and that no Southampton Union representative has ever entered New Mexico or solicited services in New Mexico. See Reply at 6. Southampton Union maintains that the grant application in this case was to be provided to the New York State Education Department, located in New York, and that the work product was to transpire in New Mexico. See Reply at 6. Southampton Union insists that Resource Associates should reasonably anticipate being subjected to lawsuits in jurisdictions outside of New Mexico given that it is a multi-million dollar company, transacts business on a national level, and solicits new customers through direct email correspondence. See Reply at 6-7. Southampton Union stresses that, despite Resource Associates soliciting and engaging in business on a national level, it has failed to include a New Mexico choice-of-law provision and that it should therefore anticipate being haled into court in jurisdictions outside of New Mexico. See Reply at 7. Southampton Union also asserts that it is subject to immunities under New York state law and is precluded from consenting to out-of-state jurisdiction. See Reply at 8. Southampton Union explains:
By way of example, the District would have defenses under New York law. As the Plaintiff skillfully points out, if the case were litigated in New York, pursuant to New York law, under NYS Education Law Section 3813, a notice of claim must be filed as a condition precedent to filing suit. (Avgerinos v. Palmyra-Macedon CSD, 690 F.Supp.2d 115 (W.D.N.Y.2010)). These claims are deemed to accrue as of the date on which payment for the amount claimed was denied (§ 3813(1); Zurich Am. Ins. Co. v. Ramapo CSD, 63 A.D.3d 729, 879 N.Y.S.2d 585 (2d Dep’t 2009)). It is not sufficient to file the notice of claim with an employee (see Kingsley Arms, Inc. v. Copake Taconic Hills CSD, 9 A.D.3d 696, 780 N.Y.S.2d 805 (3d Dep’t 2004)), even the superintendent of schools (Newman v. LeRoy CSD, 2008 WL 974699, 2008 U.S. Dist. LEXIS 28581 (W.D.N.Y. Apr. 8, 2008)). Unverified emails and letters to staff regarding a plaintiffs complaint do not satisfy the statutory notice requirements either. (Gastman v. Dep’t of Educ. of City of N.Y., 60 A.D.3d 444, 874 N.Y.S.2d 459 (1st Dep’t 2009)). The notice of claim in this type of lawsuit must be filed within three months after the accrual of the claim (§ 3813(1); Carlson v. Geneva City Sch. Dist., 679 F.Supp.2d 355 (W.D.N.Y.2010)). In the instant case under New York law, the District could assert a defense such as this.
Reply at 8.
Southampton Union next turns to its request that the Court transfer venue. See Reply at 8. Southampton Union asks the Court to transfer these proceedings to the Eastern District of New York pursuant to 28 U.S.C. § 1404(a). See Reply at 8. Southampton Union reiterates its arguments from the MTD, contending that all of the factors favor transfer of this matter to the Eastern District of New York. See Reply at 9-10. Southampton Union explains:
If the matter proceeds, the District will have a heavy burden to bring its own witnesses from New York to New Mexico for deposition and trial. Also, in order to defend this matter, the Defendant has identified it will need witnesses from the New York State Education Department to discuss the New York State Extended Learning Program. It will be burdensome to compel attendance and fund attendance, and potentially impossible to compel live testimony at trial, as compared to a national corporation who already anticipated going to New York. Defendant’s trial will be severely diminished in New Mexico without the live witness testimony. It is these witnesses who will be needed for trial, and they will be unavailable if the case is tried in the District of New Mexico. Additionally, there was another party to the contract who was not located in New Mexico, and the parties would have to decide how to compel that party’s presence. Also, regarding the applicable law, there will most certainly be conflict of law issues. As stated, the Defendant is a New York School District and has potential governmental defense in New York regarding notice on a contract claim and a potential defense that this contract was not correctly procured under New York law, which would be advantageous for a New York District Court to interpret questions of local law. Finally, the Plaintiff is an entity most accustomed to dealing in multiple jurisdictions, would need fewer -witnesses to travel, and has the economic resources to do so.
Reply at 10.
4. The Hearing.
The Court held a hearing on the MTD on March 8, 2016. See Transcript of Hearing (taken March 8, 2016)(“Tr.”). The parties stuck to their arguments from the briefing. Southampton Union emphasized that the Reciprocal Agreement does not contain a forum selection clause and that the reference to any litigation being brought in the district court of San Juan County, New Mexico, comes from the Complaint and not the Reciprocal Agreement. See Tr. at 3:5-4:18 (Court, Gabal-don). Southampton Union maintained that it does not believe that there is general jurisdiction or specific jurisdiction. See Tr. at 6:4-10 (Gabaldon). Southampton Union attacked Resource Associates’ reliance on Burger King Corporation v. Rudzewicz, contending that there, the Supreme Court articulated that an individual contract with an out-of-state party cannot alone established sufficient minimum contacts. See Tr. at 6:14-19 (Gabaldon). Southampton Union asserted that the Court must consider prior negotiations and contemplated future consequences, as well as the parties’ actual course of dealing. See Tr. at 6:19-22 (Gabaldon). According to Southampton Union, this case is unlike Burger King Corporation v. Rudzewicz, which involved a very sophisticated client entering into a twenty-year contract which contained a forum selection clause. See Tr. at 6:24-7:11, (Gabaldon). Southampton Union emphasized .that a number of witnesses and evidence are located in New York, but the Court countered that convenience is not a factor with respect to personal jurisdiction. See Tr. at 8:1-25 (Court, Gabal-don). On the motion to transfer, Southampton Union reiterated its arguments from the briefing and emphasized that it would likely have a contractual defense such as impossibility of performance. See Tr. at 11:14-24 (Court, Gabaldon).
Resource Associates conceded that it is not contending that the Court has general jurisdiction over Southampton Union. See Tr. at 12:4-10 (Muehlenweg). Rather, Resource Associates maintained that the Court has specific jurisdiction, in light of the factual allegations set forth in the Complaint and in the affidavits that Resource Associates submitted with its Response. See Tr. at 12:10-16 (Muehlenweg), Resource Associates admitted that it sent out a blanket email directed at Southampton Union as well as other school districts—similar to a targeted website—as an initial communication, but argued that the “initial ... specific communication with respect to this work was initiated by the school district.” Tr. at 12:21-18:8 (Muehlen-weg). Resource Associates maintained that, if the grant was awarded, there was going, to be a series of ongoing communications back and forth between Southampton Union and Resource Associates, and not a single email or telephone- call. See Tr. at 18:24-24:8 (Muehlenweg). Resource Associates contended that this case differs from the Court’s decision in Diener v. Trapeze Asset Management, Inc., No. CIV 15-0566 JB/LAM, 2015 WL 8332933 (D.N.M. Nov. 30, 2015)(Browning, J.), in a number of respects, including: (i) in this case, the grant writing work was actually done in New Mexico, while in Diener v. Trapeze Asset Management, Inc., the asset management and investment work was performed in Canada; and in this case, Southampton Union initiated the specific contact that led to- the Reciprocal Agreement— albeit in response to an email mailing— while in Diener v. Trapeze Asset Management, the customer in New Mexico initiated contact with Trapeze Asset Management. See Tr. at 14:9-15-4 (Muehlenweg). Resource Associates maintained that there are sufficient minimum contacts based on the telephone calls, the solicitation, and the ongoing contemplated relationship. See Tr. at 15:5-9 (Muehlenweg). It also insisted that, under the relevant caselaw, someone from Southampton Union need not have visited New Mexico for the Court to have personal jurisdiction over Southampton Union. See Tr. at 15:9-13 (Muehlenweg). With respect to Southampton Union’s request, in the alternative, that the Court transfer this action to a federal court in New York, Resource Associates re-asserted its arguments from the briefing, and contended that it is a heavy burden on Southampton Union here to argue that New York would be a better and more convenient forum for this case. See Tr. at 18:24-19:2 (Muehlenweg).
The Court then stated that it was not inclined to make an immediate ruling. The parties had the following exchange:
THE COURT: Well, I don’t have a real inclination on this. I need to look at with I’ve done in the past. Mr. Muehlenweg, and y’all have cited some of the cases either here in oral argument and I need to go back [and look at] what I’ve done. Maybe that Trapeze case is the closest that I’ve done, but I want to give this a little bit of thought. So I’m not prepared to make a ruling today.... I need to give a little bit of thought to your motion to dismiss. Do you want to go ahead and have the scheduling, you’re probably it sounds to me like you’re going to need to do discovery somewhere and I could go ahead and give you dates and put you on a track here with the understanding that if I grant the defendant’s motion ... we’ll have to either dismiss the case or transfer it up to I think it will be the [E]astern [DJistrict? What [are] your thoughts? Do you want to go ahead and have an ISC and get some dates in place or do you . want me to leave the initial scheduling order or scheduling conference until I issue the opinion. What’s your thoughts, Mr. Muehlenweg?
MR. MUEHLENWEG: Your Honor, I think maybe [we’re] all here it might be efficient to get this moving along [with] discovery, even if this case were to be moved[, it] is still going, to be the same discovery ...
THE COURT: What [are] your thoughts Mr. Gabaldon.
MR. GABALDON: Your Honor I concur, I spoke with counsel ... and discussed a motion to stay discovery, but then read the court[’]s past rulings, and th[e] fact exists that if discovery is going to go on somewhere, then I believe the Court has generally denied that motion to stay. So I would be okay with going forward at this point.
THE COURT: Go ahead and setting them appeared and I’ll try to get the opinion out to you as soon as possible. Realistically this is March 8 it probably going to be after the first of the month. I’ve got a trial coming up and some things that are going to keep me hopping over the next 22 days. So it will probably be the first of April but I’ll try to get an opinion out to you as soon as possible. All right, I have reviewed your joint status report and provisional discovery plan, if everybody wants me to go ahead and set some dates while we’re together,
Tr. at 20:11-21:10 (Court, Gabaldon, Mueh-lenweg).
STANDARD FOR DETERMINING RULE 12(b)(2) MOTIONS
Motions to dismiss under rule 12(b)(2) test the plaintiffs theory of personal jurisdiction as well as the facts supporting personal jurisdiction. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 153-54 (2d Cir.1999). Rule 12(b)(2) concerns lack of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). In determining personal jurisdiction, a court must test not only the complaint’s jurisdictional theory, but also the facts on which jurisdiction is predicated. See Credit Lyonnais Sec. (USA), Inc. v. Acantara, 183 F.3d at 154 (holding that the court “must determine whether the defendant in fact subjected itself to the court’s jurisdiction”). Where a defendant raises a timely challenge contesting personal jurisdiction, the plaintiff bears the burden of establishing that there is personal jurisdiction over the defendant and that the exercise of personal jurisdiction would not violate due-process requirements. See Overton v. United States, 925 F.2d 1282, 1283 (10th Cir.1991); Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1417 (10th Cir.1988); Jemez Agency, Inc. v. CIGNA Corp., 866 F.Supp. 1340, 1342 (D.N.M.1994)(Burciaga, J). At this stage of the proceedings, it is not for the court to resolve disputed’ facts. See Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 45 (1st Cir.2002). Rather, the court “ ‘must accept the plaintiffs (properly documented) evidentiary proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing.’ ” Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d at 45 (quoting Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir.1995)).
LAW REGARDING PERSONAL JURISDICTION
The plaintiff has the burden of proving personal jurisdiction. The court’s jurisdiction may rest on general or specific personal jurisdiction. Due process, however, limits any state statutory basis for personal .jurisdiction.
1. Burden of Proof.
“[W]hen the court’s jurisdiction is contested, the plaintiff has the burden of proving jurisdiction exists.” Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995).
When jurisdiction is “decided on the basis of affidavits and other written materials, the plaintiff peed only make a prima facie showing” of facts that would support the assertion of jurisdiction. [Wenz v. Memery Crystal, 55 F.3d at 1505]. “The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant’s affidavit.” Behagen v. Amateur Basketball Ass’n, 744 F.2d at 733. When, however, a defendant presents credible evidence through affidavits or other materials suggesting the lack of personal jurisdiction, the plaintiff must come forward with sufficient evidence to create a genuine dispute of material fact on the issue. See Doe v. Nat’l Med. Servs., 974 F.2d 143, 145 (10th Cir.1992). Only if the plaintiff meets the obligation of contesting the credible -evidence that the defendant presents does the court resolve the factual disputes in favor of the plaintiff. See Wenz v. Memery Crystal, 55 F.3d at 1505; Behagen v. Amateur Basketball Ass’n, 744 F.2d at 733.
Clark v. Meijer, Inc., 376 F.Supp.2d 1077, 1082 (D.N.M.2004)(Browning, J.). When, however, “personal jurisdiction is assessed in an evidentiary hearing ..., the plaintiff generally must establish, by a preponderance of the evidence, that personal jurisdiction exists.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1070 n. 4. “The party seeking to establish personal jurisdiction over a foreign litigant must make two showings: first, that the exercise of jurisdiction is sanctioned by the state’s long-arm statute; and second, that it comports with the due process requirements of the Fourteenth Amendment.” Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1166 (10th Cir.2011). New Mexico’s long-arm “statute extends the jurisdictional reach of New Mexico courts as far as constitutionally permissible.” Tercero v. Roman Catholic Diocese of Norwich, Conn., 2002-NMSC-018, ¶ 6, 132 N.M. 312, 48 P.3d 50, 54. Consequently, the Court “need not conduct a statutory analysis apart from the due process analysis.” Marcus Food Co. v. DiPanfilo, 671 F.3d at 1166 (internal quotation marks omitted).
2. General and Specific Jurisdiction.
Depending on the character and extent of a defendant’s contacts, a court may exercise general or specific personal jurisdiction. See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).
General jurisdiction is based on an out-of-state defendant’s “continuous and systematic” contacts with the forum state, and does not require that the claim be related to those contacts. Specific jurisdiction, on the other hand, is premised on something of a quid pro quo: in exchange for “benefitting” from some purposive conduct directed at the forum state, a party is deemed to consent to the exercise of jurisdiction for claims related to those contacts.
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1078 (emphasis in original). Thus, “[s]uch contacts may give rise to personal jurisdiction over a.nonresident defendant either generally, for any lawsuit, or specifically, solely for lawsuits arising out of particular forum-related activities.” Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir.2011).
A court may assert specific jurisdiction “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. at 472, 105 S.Ct. 2174 (citations omitted)(internal quotation marks omitted). In the tort context, a defendant has “purposefully directed” his activities at New Mexico or its residents when1 he or She has: (i) taken intentional action; (ii) the action was “expressly aimed” at New Mexico; and (iii) the action was taken with the knowledge that “the brunt of th[e] injury” would be felt in New Mexico. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1072 (quoting Calder v. Jones, 465 U.S. 783, 789-90, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)).
Cases involving the internet amplify these general personal jurisdiction principles. In these cases, the United States Court of Appeals for the Tenth Circuit focuses whether the website or internet user “intentionally directed] his/ her/its activity or operation at the forum state rather than just having the activity or operation accessible there.” Shrader v. Biddinger, 633 F.3d 1235, 1240 (10th Cir.2011)(emphasis in original). Simply posting defamatory statements on a website will not, standing alone, establish personal jurisdiction over the poster in any state where the post may be read. See Shrader v. Biddinger, 633 F.3d at 1241. Instead, courts consider whether the “defendant deliberately directed its message at an audience in the forum, state and intended harm to the plaintiff occurring primarily or particularly in the forum state.” Shrader v. Biddinger, 633 F.3d at 1241. In short, “the forum state itself must be the focal point of the tort.” Shrader v. Biddinger, 633 F.3d at 1244 (emphasis in original)(quoting Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1074 n. 9)(internal quotation marks omitted).
3. Due Process and Personal Jurisdiction.
The due process analysis is also two-fold: First, [the defendant] must have “minimum contacts” with the forum state, demonstrating that he “purposefully availed” himself of the protections or benefits of the state’s laws and ‘‘should reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. at 473-76, 105 S.Ct. 2174; see also Emp’rs Mut. Cas. Co., 618 F.3d at 1159-60 (reiterating the Burger King standard). Although agreements alone are likely to be insufficient to establish minimum contacts, “ ‘parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities.’ ” TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d 1282, 1287-88 (10th Cir.2007)(quoting Burger King, 471 U.S. at 473, 478, 105 S.Ct. 2174 ....Marcus Food Co. v. DiPanfilo, 671 F.3d at 1166).
A defendant may reasonably anticipate being subject' to suit in the forum state “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)(internal citation omitted); see also Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)(“[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State.”).
TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d at 1287-88. The Supreme Court has held that the mere foreseeability of harm occurring in a particular forum will not support a finding of minimum contacts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)(holding that, although “an automobile is mobile by its very design and ‘purpose,” thus indicating that it is foreseeable that a particular automobile may cause injury in a forum state, “ ‘foreseeability1 alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause”). In Roberts v. Piper Aircraft Corp., 1983-NMCA-110, 100 N.M. 363, 670 P.2d 974, the Court of Appeals of New Mexico similarly rejected the argument that; foreseeability could establish minimum contacts, and found no personal jurisdiction or minimum contacts in the following circumstances:
[TJhe record is devoid of any contact between Scenic Aviation and New Mexico, Scenic Aviation is a fixed-base operator selling aviation fuel in Las Vegas, Nevada. There is no evidence that Scenic Aviation advertises in New Mexico, or sells fuel to New Mexico residents. Without “contacts, ties, or relations” with New Mexico the fact that fuel sold by Scenic Aviation found its way into our state does not support a valid exercise of personal jurisdiction.
1983-NMCA-110, ¶ 19, 100 N.M. 363, 670 P.2d at 978. “[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 297, 100 S.Ct. 559. As the Tenth Circuit has further explained, because “mere foreseeability” is not sufficient to establish minimum contacts, a plaintiff “must establish ..; not only that defendants foresaw (or knew) that the effects of them conduct would be felt in the forum state, but also that defendants undertook intentional actions that were expressly aimed at that forum state.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1077.
Similarly, to find general jurisdiction over a defendant, contacts must be “continuous and systematic”; therefore, “[s]imply because a defendant has a contractual relationship and business dealings with a person or entity in the forum state does not subject him to general jurisdiction there”; “correspondence with a forum resident does not support general jurisdiction;” and “sporadic or isolated visits to the forum state will not subject the defendant to general jurisdiction,” because a “[defendant’s] lack of a regular place of business in [the forum state] is significant, and is not overcome by a few visits.” Shrader v. Biddinger, 633 F.3d at 1247. “[G]eneral jurisdiction over a web site that has no intrinsic, connection with a forum state requires commercial activity carried on with forum residents in such a sustained manner that it is tantamount to actual physical presence within the state.” Shrader v. Biddinger, 633 F.3d at 1246. When analyzing minimum contacts - sufficient for general jurisdiction in regard to the operation of a web site, the Tenth Circuit has referred to, without adopting, a “sliding scale” framework. Shrader v. Biddinger, 633 F.3d at 1242 n. 5.
At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.
Shrader v. Biddinger, 633 F.3d at 1242 n. 5 (internal quotation marks omitted).
If [the defendant] is found to have the requisite minimum contacts with [the forum state], then we proceed to the second step in the due process analysis: ensuring that the exercise of jurisdiction over him “does not offend ‘traditional notions of fair play and substantial justice.’ ” See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). [The defendant] bears the burden at this stage to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1080 (10th Cir.2008). We consider the following five factor s, ... in deciding whether the exercise of jurisdiction would be fair:
(1) the burden on the defendant, (2) the forum state’s interests in resolving the disputé, (3) the plaintiffs interest in receiving convenient and effectual relief, (4) the interstate judicial system’s 'interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states or foreign nations in furthering fundamental social policies.
Id. (brackets omitted); see also OMI Holdings, Inc., 149 F.3d at 1095 (applying these factors in a case involving a Canadian corporation). “[T]he reasonableness prong of the due process inquiry evokes a sliding scale: the weaker the plaintiffs showing on minimum contacts, the less a defendant need show in terms of unreasonableness to defeat jurisdiction.” TH Agric. & Nutrition, LLC, 488 F.3d at 1292 (internal quotation marks and brackets omitted).
Marcus Food Co. v. DiPanfilo, 671 F.3d at 1167.
In Silver v. Brown, 678 F.Supp.2d 1187 (D.N.M.2009)(Browning, J.), aff'd in part and rev’d in part, 382 Fed.Appx. 723 (10th Cir.2010), the Court considered whether it had personal jurisdiction over defendants who allegedly slandered, defamed, and caused the plaintiff—Michael Silver—duress, by posting a blog on the internet that portrayed him in a negative light. See 678 F.Supp.2d at 1204. The Court determined that it did not have personal jurisdiction over defendant Jack McMullen, because Silver failed to demonstrate that McMullen “was significantly associated with the blog or controlled it in any way.” 382 Fed.Appx. at 727. The Court also concluded that it did not have personal jurisdiction over the blog post’s author—Matthew Brown—because he was not domiciled in New Mexico, had not traveled to New Mexico, and did not transact business there. See 678 F.Supp.2d at 1211. The Court said that Brown’s blog posts similarly did not establish personal jurisdiction, because
the blog is closer to an informative website. than a commercial website. No services are offered, and B