Presidential Hospitality, LLC v. Wyndham Hotel Grp., LLC (333 F. Supp. 3d 1179, 2018)

Citations

333 F. Supp. 3d 1179

Full opinion text

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendants' Brief in Support of Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), filed September 29, 2017 (Doc. 19)("Motion"). The Court held a hearing on June 4, 2018. The primary issues are: (i) whether the forum selection clause in the Microtel Inns and Suites Franchising, Inc. License Agreement, filed September 27, 2017 (Doc. 15-1)("Franchise Agreement"), is contractually valid; (ii) whether the United States District Court for the District of New Jersey would have personal jurisdiction over the Plaintiffs if the Court transferred the case; (iii) whether the forum selection clause in the Franchise Agreement and incorporated in the Amendment Assignment and Assumption Agreement, filed September 27, 2017 (Doc. 15-2)("Assignment Agreement"), is void under New Mexico law, as those agreements are construction contracts under N.M. Stat. Ann. § 57-28A-1 ; and (iv) whether the Court should transfer this matter to the United States District Court for the District of New Jersey so that it can be consolidated with Microtel Inns and Suites Franchising, Inc. v. Presidential Hospitality, LLC, No. 17-5637 (D.N.J.)(Wigenton, J.)("New Jersey Action"). The Court concludes that: (i) the forum selection clause is contractually valid; (ii) New Jersey has personal jurisdiction over Plaintiff Presidential Hospitality and Plaintiff Sam Blue, but not over Plaintiff Ace Development, Inc.; (iii) the Court may not consider New Mexico public policy when it sits in diversity and considers a 28 U.S.C. § 1404(a) motion, but, even if it could, the Franchise Agreement and the Assignment Agreement are not construction contracts under N.M. Stat. Ann. § 57-28A-1, so the forum selection clause at issue would not be void as against public policy; and (iv) the Court will transfer Presidential Hospitality's and Blue's claims. The Court may not transfer Ace Development's claims, because New Jersey does not appear to have personal jurisdiction over that Plaintiff. Accordingly, the Court grants the Motion in part and denies it in part. The Court severs Ace Development's claims under rule 21 of the Federal Rules of Civil Procedure and transfers the remaining parties and claims.

FACTUAL BACKGROUND

The Court draws its facts from the First Amended Complaint for Violation of the New Mexico Unfair Practices Act; Fraudulent Inducement; Negligent Misrepresentation; and Jury Demand, filed September 25, 2017 (Eleventh Judicial District Court, County of San Juan, State of New Mexico), filed in federal court on September 26, 2017 (Doc. 1-5)("FAC") and from various attachments to the parties' briefing. The Court uses and accepts those facts as true only for the purposes of this Memorandum Opinion and Order. The Court's acceptance and use of those facts here does not mean that those facts are true or that later litigation on those facts is foreclosed. The Court also notes that the case is at an uncommon posture on a motion to transfer in that the Court has already adjudicated a motion for a temporary restraining order, see Memorandum Opinion and Order, 2018 WL 2604831, filed June 2018 (Doc. 37)(" MOO"), so it has a greater grasp on the facts than it would have on a typical motion to transfer. The Court summarizes the facts relevant to the transfer issue and then states its more detailed factual findings from the MOO.

1. Summary of Facts.

Defendant Wyndham Hotel Group, LLC, through its affiliates, Defendants Baymont Inn and Suites Franchise Systems Inc., and Microtel Inn and Suites Franchising, Inc., offers, sells, owns, and operates hotels and hotel chains throughout the United States. See FAC ¶ 1, at 2. In March, 2011, Plaintiff Sam Blue, a managing member of Plaintiff Presidential Hospitality, LLC, entered the Franchise Agreement with Microtel Inn, purchasing the rights to a Microtel Inn franchise. See Franchise Agreement at 1. In exchange for the right to build and operate a Microtel Inn hotel in Durango, Colorado, Blue agreed, among other things, to pay monthly fees to Microtel Inn. See Franchise Agreement at 1, 6, 33. The Franchise Agreement includes a forum selection clause, which reads:

Venue. Any litigation arising out of or related to this Agreement including, without limitation, any breach of this Agreement and any and all disputes between the parties, regardless of the form of action, shall be instituted exclusively at our discretion in the state or federal court of general jurisdiction closest to our then-current principal business address. You expressly agree that you are subject to the jurisdiction and venue of those courts for purposes of such litigation. You hereby waive and covenant not to assert any claim that you are not subject to personal jurisdiction in those courts or that venue in those courts is for any reason improper, inconvenient, prejudicial or otherwise inappropriate (including, without limitation, any claim under the judicial doctrine of forum non conveniens). The provisions of this Paragraph 13N shall be self-executing.

See Franchise Agreement at 29. In May, 2013, Blue, Presidential Hospitality, and Microtel Inn, entered into the Assignment Agreement, which transferred Blue's rights and obligations under the Franchise Agreement to Presidential Hospitality, and allowed Presidential Hospitality to build and operate the hotel in Aztec, New Mexico, instead of in Durango. See Assignment Agreement at 1, 4. Blue remained secondarily liable for payment and performance of the Franchise Agreement. See Assignment Agreement at 1. The Assignment Agreement incorporates the Franchise Agreement, including the Franchise Agreement's forum selection clause. See Assignment Agreement at 2; Response at 2 n.1 (admitting that the forum selection clause is incorporated into the Assignment Agreement by reference). Related to the Assignment Agreement, Blue signed a Guaranty that Presidential Hospitality will punctually pay and perform its obligations. See Guaranty at 1, filed September 27, 2017 (Doc. 15-3)("Guaranty"). Blue acknowledged in the Guaranty that the Franchise Agreement's forum selection clause applies to the Guaranty. See Guaranty at 1.

The Assignment Agreement also stipulates that a Development Incentive Note, filed September 29, 2017 (Doc. 19-2)("Dev. Incentive Note") amends the Franchise Agreement. See Assignment Agreement at 4. In the Dev. Incentive Note, Microtel Inn agrees to loan $105,000.00 to Presidential Hospitality, at no interest, on the conditions that Presidential Hospitality passes a credit review, pays an application fee, completes the hotel in compliance with the standards set forth in the Franchise Agreement, and opens the hotel no later than April 5, 2014. See Dev. Incentive Note at 1. Under the Dev. Incentive Note, one-fifteenth of the loan amount will be forgiven on each anniversary of the hotel's opening date. See Dev. Incentive Note at 1.

In March, 2015, Presidential Hospitality and Blue defaulted on their fee payments to Microtel Inn. See Letter from Wyndham Hotel Group, LLC to Presidential Hospitality, LLC and Sam Blue, at 1 (dated March 10, 2015), filed September 26, 2017 (Doc. 1-3). In August, 2015, Presidential Hospitality and Microtel Inn entered a payment plan to pay off the past amount Presidential Hospitality and Blue owed as a result of the March, 2015 default. See Payment Plan Relating to the License Agreement between Microtel Inn & Suites and Presidential Hospitality, LLC, for the Facility Designated as Unit # 47176-03078-01-MTL, Located in Aztec, New Mexico at 1 (dated August 3, 2015), filed September 26, 2017 (Doc. 1-4)("Payment Plan"). Presidential Hospitality did not make the required payments under the Payment Plan. See Letter from Wyndham Hotel Group, LLC to Sam Blue and Presidential Hospitality, LLC at 1 (dated October 8, 2015), filed September 26, 2017 (Doc. 1-4)("October Default Notice"). In July, 2017, Wyndham Hotel sent Presidential Hospitality and Blue another default notice. See Letter from Wyndham Hotel Group, LLC to Sam Blue and Presidential Hospitality, LLC at 1 (dated July 12, 2017), filed September 26, 2017 (Doc. 1-4)("July Default Notice"). Presidential Hospitality and Blue never cured that default, so Wyndham Hotel and Microtel Inn terminated the Franchise Agreement. See Letter from Wyndham Hotel Group, LLC to Sam Blue and Presidential Hospitality, LLC at 1 (dated September 12, 2017), filed September 27, 2017 (Doc. 15-5)("Termination Notice").

On August 1, 2017, Microtel Inn sued Presidential Hospitality and Blue in New Jersey for the fees owed under the Franchise Agreement. See Microtel Inns and Suites Franchising, Inc. v. Presidential Hospitality, LLC, No. 17-5637, Complaint at ¶¶ 1-3, 35-44, at 1-2, 7-8 (D.N.J.)(Doc. 1). See also Microtel Inns and Suites Franchising, Inc. v. Presidential Hospitality, LLC, No. 17-5637, First Amended Complaint at ¶¶ 1-3, 67-86, at 1-2, 14-17 (D.N.J.)(Doc. 9)("NJ FAC"). In the NJ FAC, Microtel Inn alleges that Presidential Hospitality and Blue: (i) have violated the Lanham Act, 15 U.S.C. § 1125(a), by continuing to use the Microtel registered mark after the Franchise Agreement's termination, see NJ FAC ¶¶ 45-55, at 10-12; (ii) owe damages for breach of the Franchise Agreement, NJ FAC ¶¶ 56-81, at 12-16; and (iii) owe damages for breach of the Dev. Incentive Note, NJ FAC ¶¶ 82-86, at 16-17.

2. Previous Factual Findings.

1. Wyndham Hotel through its affiliates, Baymont Inn and Microtel Inn offers, sells, owns, and operates hotels and hotel chains throughout the United States. See FAC ¶ 1, at 2.

2. Plaintiff Sam Blue is a New Mexico citizen, who is a managing member of Plaintiff Presidential Hospitality, LLC. See Draft Transcript of Motion Proceedings at 10:7-17 (taken September 28, 2017)(Court, Enriquez)("Sept. Tr.").

3. The other member of Presidential Hospitality is Plaintiff Ace Development, Inc., a New Mexico corporation with its principal place of business in New Mexico. See Sept. Tr. at 10:11-14 (Court, Enriquez); id. at 10:18-24 (Court, Enriquez).

4. In March, 2011, Blue entered the Franchise Agreement, purchasing the rights to a Microtel Inn franchise. See Franchise Agreement at 1.

5. In May, 2013, Blue assigned his rights and obligations under the Contract to Presidential Hospitality. See Assignment Agreement at 1.

6. According to the Plaintiffs, "through various representations, promises, omissions," of which many were "false, incomplete, and misleading," in addition to "high-pressure-sales tactics," the Wyndham Hotel and Microtel Inn induced Blue to purchase that Microtel Inn franchise. FAC ¶ 2, at 1.

7. Again, according to the Plaintiffs, that inducement resulted from a relationship formed among Blue and an agent of the Wyndham Hotel, Gregg Koffler. See FAC ¶¶ 12-49, 65-70, at 4-11, 14-16.

8. Blue first met Koffler in June, 2010, because Koffler had contacted Blue to tell him that the Wyndham Hotel was interested in property that Blue owned in Aztec, New Mexico. See FAC ¶¶ 15-19, at 4-5.

9. Blue believed that the Wyndham Hotel wanted to buy his land. See FAC ¶ 18, at 5.

10. At his meeting with Koffler, however, instead of discussing the Wyndham Hotel's interest in buying Blue's property, Koffler solicited Blue to purchase a Baymont Inn franchise. See FAC ¶ 19, at 5.

11. Koffler told Blue that, if Blue purchased the franchise, Blue would be able to quickly flip the property for a profit. See FAC ¶ 21, at 5 ("Mr. Koffler told Mr. Blue that there would be a line of people interested in purchasing the hotel and he guaranteed a buyer by the time the hotel was built."); id. ¶ 28, at 7.

12. Blue was initially uninterested, because he wanted to sell his property. See FAC ¶¶ 13, 20, at 4-5.

13. To further persuade Blue that purchasing the franchise was a solid investment, Koffler told Blue that the Wyndham Hotel "would most likely want to invest in the construction of the hotel," FAC ¶ 22, at 5, and that Blue, who had no experience in running a hotel, would not have to operate it, see FAC ¶¶ 1, 21, 27 at 2, 5-6.

14. After speaking briefly with a Wyndham Hotel executive, Koffler represented to Blue that the Wyndham Hotel would invest $150,000.00 in the property. See FAC ¶ 23, at 6.

15. Koffler did not tell Blue that the Wyndham Hotel's investment would be a loan. See FAC ¶ 23, at 6.

16. Upon Koffler's representations, in particular the representation that the Wyndham Hotel would invest $150,000.00 of its own money in the property's development, Blue agreed to apply for a Baymont Inn franchise. See FAC ¶ 25, at 6.

17. About a month later, and after Blue received preliminary approval to buy the franchise, Blue had second thoughts and told Koffler that he did not think anyone would want to buy the hotel from him. See FAC ¶ 26, at 6.

18. Koffler again told Blue that the Wyndham Hotel "was going to have buyers 'lined up,' " FAC ¶ 28, at 7, and also that, if Blue did not agree to purchase the franchise, Koffler would probably lose his job, see FAC ¶ 29, at 7.

19. Blue subsequently agreed to the purchase and entered into the Baymont Franchise Systems Inc., Franchise Agreement ("Baymont Contract"). See FAC ¶¶ 34-35, at 8.

20. Baymont Inn did not provide Blue "a complete and timely copy of its Franchise Disclosure Document" ("FDD"). FAC ¶ 36, at 8.

21. According to Blue, as a result of the Baymont Contract, he and Koffler became friends. See FAC ¶¶ 37-38 at 8.

22. "Mr. Koffler often told Mr. Blue what a great person he was and that he bragged to his family about him." FAC ¶ 38, at 8.

23. Accordingly, "Mr. Blue felt compelled to help Mr. Koffler who referred to Mr. Blue as his 'friend.' " FAC ¶ 38, at 8.

24. Shortly after entering the Baymont Contract, Koffler asked Blue to accompany him on a potential deal to sell another franchise. See FAC ¶ 37, at 8 ("Mr. Koffler asked Mr. Blue to vouch for him and Wyndham.").

25. Koffler told Blue that his job had been stressful lately, straining relations with his family, so "he needed to make this sale." FAC ¶ 37, at 8.

26. When the potential deal did not happen, Koffler confessed to Blue that he needed to sell another franchise or the Wyndham Hotel would fire him, and he would lose both his house and his family. See FAC ¶ 39, at 9.

27. Koffler also told Blue that he "owed people money" and that those people "would hurt his family" if he did not pay them back. FAC ¶ 40, at 9.

28. As Koffler later recounted, the threats against him were "either you pay me or I'll come knock on your door; I know where you live and I am going to tell your wife exactly what's going on here and you know, who knows what else was going to happen." FAC ¶ 65, at 14.

29. In the following weeks, Koffler frequently solicited Blue to buy a Microtel Inn franchise for a property in Durango, Colorado. See FAC ¶ 41, at 9.

30. Koffler again aggressively pitched the deal to Blue. See FAC ¶ 41, at 9.

31. Koffler told Blue that Blue could easily re-sell the property for profit and that "Wyndham would have several buyers ready to purchase the hotel." FAC ¶ 42, at 9.

32. Koffler added that the Microtel Inn franchise would be an even better deal than the Baymont franchise, because Microtel Inn was a "new brand" that would be Wyndham Hotel's "top money maker." FAC ¶ 41, at 9.

33. Koffler also told Blue that "it was hard to get a Microtel franchise," but he could get Blue a special price. FAC ¶ 41, at 9.

34. To further induce the sale, Koffler provided Blue a Smith Travel Research Report ("Smith Report"). See FAC ¶ 43, at 9-10.

35. The Smith Report contained information about hotels in Durango from 2005 to 2011, including: occupancy percentage, average daily rate, revenue per available room, supply, demand, and revenue. See FAC ¶ 43, at 10.

36. Koffler represented that any Microtel Inn hotel would "perform as well or better than the hotels in the S[mith] report." FAC ¶ 43, at 10.

37. Relying on Koffler's representations, Blue entered the Contract for a Microtel Inn franchise and paid a $30,000.00 initial franchise fee. See FAC ¶¶ 44-46, at 10.

38. Under the Contract, Wyndham Hotel and Microtel Inn have the right to terminate the Contract with an opportunity to cure if Presidential Hospitality "fail[s] to pay us or any of our affiliates fees or other amounts due under this Agreement ... including, without limitation, Application Fees, Royalty Fees, Contributions, GDS fees, travel agent commission fees or ISP fees." Franchise Agreement at 22.

39. Wyndham Hotel and Microtel Inn also have the right to terminate the Contract "without giving you an opportunity to cure the default, effective upon written notice to you" if "you receive from us three (3) notices of default of this Agreement within a twelve (12) month period, regardless of whether the defaults are cured." Franchise Agreement at 22.

40. Microtel Inn did not provide Blue "a complete and timely copy of its FDD." FAC ¶ 50, at 11.

41. A few months after Blue entered the Contract, Blue had still not yet started building the Baymont hotel. See FAC ¶ 47, at 10.

42. When Koffler asked about the delay, Blue responded that he again had doubts about the Baymont hotel, and that he was willing to renege on it, losing his initial investment franchise fee. See FAC ¶ 47, at 10.

43. Koffler told Blue that building a Microtel Inn hotel in Aztec would cost less than building a Baymont hotel in the same location. See FAC ¶ 47, at 11.

44. Accordingly, Koffler stated to Blue that he would work with the Wyndham Hotel to transfer the Microtel Inn franchise from Colorado to New Mexico. See FAC ¶ 47, at 11.

45. Koffler assured Blue that a Microtel Inn hotel in Aztec would "perform equally as profitable as the hotels in the March 8, 2011 S[mith] report." FAC ¶ 48, at 11.

46. Blue agreed to the transfer. See FAC ¶ 51, at 11.

47. Thus, Blue assigned the Microtel Inn franchise to Presidential Hospitality-of which Blue was a managing member-and the Microtel Deal's franchise site was moved from Durango to Aztec. See FAC ¶¶ 51, 55, 57 at 11-12; Assignment Agreement, at 1.

48. There are several hotels in the Aztec area, many of which do not have brand names associated with them. See Step Back Inn, http://stepbackinn.com/; Miss Gail's Inn, https://bit.ly/2xxKple; Enchantment Lodge, https://bit.ly/2xxKple.

49. Many people who travel to Aztec do not travel there again.

50. Many hotels exist without a well-known brand, such as Wyndham or Hilton or Hyatt, attached to their name. See, e.g., Hotel Encanto, https://www.hotelencanto.com/; MCM Elegenté Hotel, http://www.mcmelegantealbuquerque.com/.

51. Under the Assignment Agreement, Blue and the other owner of Presidential Hospitality-ACE Development-remain secondarily liable for Presidential Hospitality's performance under the Contract. See FAC ¶¶ 54, 59 at 12.

52. Presidential Hospitality subsequently built the Microtel Inn hotel in Aztec. See FAC ¶ 58, at 12.

53. As the Microtel Inn hotel neared completion, Blue contacted the Wyndham Hotel to determine whether it had found a buyer. See FAC ¶ 60, at 12.

54. At that time, Koffler no longer worked for the Wyndham Hotel. See FAC ¶ 60, at 12-13.

55. The Wyndham Hotel had no buyers yet, but a representative said it would "put the word out." FAC ¶ 60, at 13.

56. When the Microtel Inn hotel was completed on October 3, 2013, the Wyndham Hotel still had not found a buyer. See FAC ¶ 63, at 13.

57. According to Blue, "Wyndham never intended or tried to find a buyer.... Mr. Koffler's representations and promises were only intended to induce Mr. Blue to purchase the hotel franchises and construct the hotel so that Wyndham could collect on royalty payments for 20 years." FAC ¶ 63, at 13.

58. Since completion, the Microtel Inn hotel has not performed on par or better than the hotels listed in the Smith Report. See FAC ¶ 64, at 13.

59. On March 10, 2015, Wyndham Hotel sent Presidential Hospitality and Blue a notice of monetary default, stating that they were past due in recurring fees and charges in the amount of $38,453.96. See Letter from Wyndham Hotel Group to Sam Blue and Presidential Hospitality, LLC at 1 (dated March 10, 2015), filed September 26, 2017 (Doc. 1-3)("March Default Notice").

60. The default notice also states:

If you do not pay this amount within the time permitted, we reserve all rights under the terms of the Agreement including but not limited to termination of the Agreement and your right to operate in the Microtel Inn and Suites by Wyndham System. This Notice does not modify, replace, or affect any default under the Agreement, or any other default and termination notices, if any, from us or any of our affiliates regarding the Facility. We also reserve the right to take any interim steps permitted under the Agreement because of your default, such as suspending the Facility's access to our central reservation system.

March Default Notice at 1

61. Blue received a copy of the March Default Notice. See Declaration of Sam Blue in Support of Plaintiffs' Application for Temporary Restraining Order ¶ 9, at 3 (dated September 22, 2017), filed September 26, 2017 (Doc. 1-2)("Blue Declaration").

62. On April 17, 2015, Wyndham Hotel sent Presidential Hospitality and Blue another notice of monetary default, stating they were past due in fees in the amount of $41,101.56. See Letter from Wyndham Hotel Group to Sam Blue and Presidential Hospitality, LLC at 1 (dated April 17, 2015), filed September 26, 2017 (Doc. 1-3)("April Default Notice").

63. The April Default Notice notes that Wyndham Hotel and Microtel Inn had extended the cure period, but states that it is not "waiving the default or any other default under the Agreement by extending the cure period. We are simply giving you a final opportunity to avoid termination." April Default Notice at 1.

64. Blue received a copy of the April Default Notice. See Blue Declaration ¶ 10, at 3.

65. In August, 2015, Presidential Hospitality and Microtel Inn entered a payment plan to pay off the past amount owed. See Payment Plan relating to the License Agreement between Microtel Inn & Suites and Presidential Hospitality, LLC, for the facility designated as Unit # 47176-03078-01-MTL, located in Aztec, NM at 1 (dated August 3, 2015), filed September 26, 2017 (Doc. 1-4)("Payment Plan").

66. The Payment Plan again reserved all of Wyndham Hotel's rights:

This plan does not affect our rights or remedies for any other default that has or may arise under the Agreement. You expressly acknowledge that you are obligated to pay timely any other amounts due under the Agreement or any ancillary agreement and that we may also issue default notices for any other defaults under this Agreement.

Payment Plan at 1.

67. Presidential Hospitality did not make the required payments under the Payment Plan. See Letter from Wyndham Hotel to Sam Blue and Presidential Hospitality at 1 (dated October 8, 2015), filed September 26, 2017 (Doc. 1-4)("October Default Notice").

68. Accordingly, in October, 2015, Wyndham Hotel sent Presidential Hospitality and Blue a third notice of default. See October Default Notice at 1.

69. In the October Default Notice, Wyndham Hotel again reserved all rights under the Contract, stating:

October Default Notice at 1.

70. Blue received a copy of the October Default Notice. See Blue Declaration ¶ 11, at 3.

71. Presidential Hospitality and Blue never cured that default. See Tr. at 13:1-4 (Sager).

72. They did, however, make payments to Wyndham Hotel between October, 2015, and July, 2017, in an amount "totaling approximately $42,000.00." Declaration of Theresa Bailey in Support of Plaintiffs' Application for Temporary Restraining Order ¶ 4, at 2 (dated September 22, 2017), filed September 26, 2017 (Doc. 1-4)("Bailey Declaration").

73. Blue also exchanged various emails in the following months with Wyndham Hotel "in an attempt to work out a resolution regarding unpaid monies." Blue Declaration ¶ 12, at 3.

74. On January 23, 2017, Blue spoke with Jennifer Constantinou-a Wyndham Hotel in-house attorney-who told him that "Wyndham would not pursue collection of the amounts due as long as the parties were discussing a workable solution." Blue Declaration ¶ 12, at 3.

75. By July 12, 2017, Presidential Hospitality and Blue were past due in charges owed to Wyndham Hotel to the tune of $169,915.47. See Letter from Wyndham Hotel to Sam Blue and Presidential Hospitality, LLC at 1 (dated July 12, 2017), filed September 26, 2017 (Doc. 1-4)("July Default Notice").

76. On July 12, 2017, Wyndham Hotel sent another default notice. See July Default Notice at 1.

77. The July Default Notice informs Presidential Hospitality and Blue that they have thirty days to cure the default and that Wyndham Hotel reserves all rights under the Contract, but the July Default Notice does not state when the Contract will be terminated if Presidential Hospitality and Blue fail to cure the default. See July Default Notice at 1.

78. Blue received a copy of the July Default Notice. See Blue Declaration ¶ 14, at 4.

79. After receiving a copy of the July Default Notice, Blue spoke with Lay El-Bassuni-Wyndham Hotel's Vice President of Brand Operations for Microtel Inn-who told Blue that "while we work[ ] together on a workable solution, Wyndham would not shut off the Hotel's access to the central reservation system ("CRS") or Wyndham My Portal Communications website." Blue Declaration ¶ 15, at 4.

80. Presidential Hospitality and Blue never cured the default. See Letter from Wyndham Hotel to Sam Blue and Presidential Hospitality, LLC at 1 (dated September 12, 2017), filed September 27, 2017 (Doc. 15-5)("Termination Notice").

81. At some time after July 12, 2017, but before September 12, 2017, Wyndham Hotel filed suit against Blue and Presidential Hospitality in the United States District Court for the District of New Jersey to recover amounts owed. See Blue Declaration ¶ 16, at 4.

82. At some time unknown, Presidential Hospitality "spent over $5000 in marketing the hotel in the local community and local groups." Blue Declaration ¶ 20, at 5.

83. On September 12, 2017, Wyndham Hotel terminated the Contract. See Termination Notice at 1.

84. As a result of that Contract termination, the Plaintiffs' Microtel Inn hotel was delisted from internet websites that advertise available hotel rooms. See Bailey Declaration ¶¶ 7, 10, at 2-3.

85. A Google search of "Aztec New Mexico Hotel," however, still yields "Microtel Inn & Suites by Wyndham Aztec" at the correct location with a local phone number. https://bit.ly/2xxKple.

86. Also as a result of the Contract termination, the Plaintiffs' have not been able to access Wyndham Hotel's central reservation system, which allows the Plaintiffs' to reserve hotel rooms for guests. See Bailey Declaration ¶ 12, at 3.

87. Ninety percent of the Plaintiffs' Microtel Inn hotel's reservations are made through third-party websites. See Bailey Declaration ¶ 13, at 3.

88. From September 1, 2017 to September 18, 2017, one hundred and seventy-four reservations were made through third parties and two hundred and six reservations were made through Wyndham Hotel's central reservation system. See Bailey Declaration ¶ 13, at 3.

89. The Plaintiffs "had projected that between September 21, 2017 and September 30, 2017," they "would receive 40 reservations through third parties." Bailey Declaration ¶ 13, at 3-4.

90. Since the Termination Notice, reservations have dropped ninety percent and the hotel has lost revenue. See Blue Declaration ¶ 19, at 5; Bailey Declaration ¶ 15, at 4.

PROCEDURAL BACKGROUND

On September 12, 2017, Presidential Hospitality, Ace Development, and Blue filed suit in the Eleventh Judicial District Court, County of San Juan, State of New Mexico contending that Koffler, as the Wyndham Hotel's agent, fraudulently induced Blue into entering the Franchise Agreement, fraudulently induced Presidential Hospitality and Blue into the Assignment Agreement, and fraudulently induced Ace Development and Blue into guaranteeing Presidential Hospitality's performance under the Assignment Agreement. See Presidential Hospitality, LLC v. Wyndham Hotel Group, No. D-1116-CV-2017-01329, Complaint for Violation of the New Mexico Unfair Practices Act; Fraudulent Inducement; Negligent Misrepresentation; and Jury Demand ¶¶ 110-125, at 23-27, filed September 12, 2017 (Eleventh Judicial District Court, County of San Juan, State of New Mexico), filed in federal court September 26, 2017 (Doc. 1-1). See also FAC ¶¶ 110-125, at 23-27. The Plaintiffs also bring two claims premised on the New Mexico Unfair Practices Act, N.M. Stat. Ann. § 57-12-1 to 26 ("UPA"), and a negligent misrepresentation claim. See FAC ¶¶ 77-109, 126-132, at 19-23, 27-28. In addition to damages, the Plaintiffs seek rescission of the Franchise Agreement and the Assignment Agreement. See FAC ¶ at 29. On September 26, 2017, the Defendants removed the action to federal court on the basis of diversity jurisdiction. See Notice of Removal at 1, filed September 26, 2017 (Doc. 1).

1. The Motion.

The Defendants move to transfer this matter to the District of New Jersey, so that it may be consolidated with the New Jersey Action. See Motion at 1. The Defendants argue that transfer and consolidation are proper, because they meet 28 U.S.C. § 1404(a)'s factors: "(1) whether the case could have been brought in the other district or division; (2) whether discretionary factors weigh in favor of transfer based on the convenience of parties and witnesses; and (3) whether transfer is in the interest of justice." Motion at 7 (citing Biotronik, Inc. v. Lamorak Ins. Co., 2015 WL 3522362, at *4 (D.N.M. June 3, 2015) (Johnson, J.) ). The Defendants argue that they meet the first factor, because the Defendants all maintain a principal place of business in New Jersey and are subject to personal jurisdiction in New Jersey. See Motion at 7-8 (citing 28 U.S.C. § 1391(b)(1) ("A civil action may be brought in ... a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located.") ).

The Defendants argue that the second factor also weighs in favor of transfer. See Motion at 8-12. According to the Defendants, the United States Court of Appeals for the Tenth Circuit recognizes nine discretionary factors a court can consider when faced with a motion to transfer: (i) the plaintiff's choice of forum; (ii) the accessibility of witnesses and other sources of proof; (iii) the cost of making the necessary proof; (iv) the likelihood of enforcing the judgment if one is obtained; (v) the relative advantages and obstacles to a fair trial; (vi) congested dockets; (vii) conflict-of-law issues; (viii) the advantage of having a local court determine local law questions; and (ix) all other economical considerations. See Motion at 8 (citing Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1167 (10th Cir. 2010) ). The Defendants argue that, because they filed the New Jersey Action first, the Court should transfer the case. See Motion at 9 (citing Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163-64 (10th Cir. 1982) ("[T]he first court in which jurisdiction attaches has priority to consider the case.") ). According to the Defendants, courts "should depart from the first-filed rule only in extraordinary circumstances involving inequitable conduct, bad faith, anticipatory suits or forum shopping." Motion at 10 ("The Court should not depart from the first-filed rule as there are no extraordinary or special circumstances.").

The Defendants also argue that conflicts of law issues favor transfer. See Motion at 10. The Defendants contend that the operative agreements contain New Jersey choice-of-law provisions, so, according to the Defendants, a New Jersey Court would be better equipped to apply New Jersey contract law. See Motion at 11. The Defendants admit that, should the Court transfer this action, a New Jersey court will be required to interpret two New Mexico UPA claims and two New Mexico tort claims, but they argue that transfer is still proper, because the "majority of claims will still be governed by New Jersey law and the outcome will depend on facts rather than novel or difficult legal issues." Motion at 11.

The Defendants argue that many of the remaining factors favor transfer. Specifically they contend that: (i) "many of the witnesses are located in New Jersey"; (ii) "[b]oth sides may have to travel regardless of the venue"; (iii) both districts "would provide for fair trials"; and (iv) "there is no evidence that the District of New Jersey is more congested than the District of New Mexico." Motion at 11-12. Finally, the Defendants contend that the interests-of-justice factor favors transfer "primarily due to the first filed rule," as it would "waste judicial resources" for two federal courts to adjudicate separate cases with "the same nucleus of operative facts." Motion at 12-13.

2. The Response.

The Plaintiffs respond. See Plaintiffs' Response to Defendants' Brief in Support of Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), filed October 13, 2017 (Doc. 23)("Response"). The Plaintiffs contend that the Franchise Agreement, the Assignment Agreement, and the Dev. Incentive Note are related to construction, and, accordingly, under New Mexico law, the forum selection clause is void as against public policy. See Response at 2 (citing N.M. Stat. Ann. § 57-28A-1 ). See id. at 9. In support of that contention, the Plaintiffs highlight language that mentions construction from the Franchise Agreement, Assignment Agreement, and the Dev. Incentive Note. See Response 3-11; id. at 3 (quoting Franchise Agreement at 1)("We have the exclusive right ... to establish and operate all new construction. ")(emphasis in Response); Response at 4 (quoting Franchise Agreement at 2)("[W]e hereby grant to you a non-exclusive license ... to build and operate the Hotel. ")(emphasis in Response); Response at 5 (quoting Franchise Agreement at 16)("In connection with the construction or any material renovations of the Hotel , you also agree to cause your general contractor to maintain comprehensive liability insurance. ")(emphasis in Response); Response at 6 (quoting Assignment Agreement at 3)("Notwithstanding any other provision of this Agreement, the deadline for completion of the Hotel shall be no later than April 5, 2014.")(emphasis in Response). The Plaintiffs also argue that the operative agreements are construction agreements, because the "Plaintiffs were required to construct a new hotel," otherwise Microtel Inn could terminate the Contract. Response at 8-9 (emphasis in Response).

The Plaintiffs' second argument is that 28 U.S.C. § 1404(a)'s factors do not favor transfer. First, they argue that the case could not have been brought in New Jersey, because New Mexico law requires construction-contract disputes to be conducted in New Mexico. See Response at 12. Second, they contend that the first-filed rule does not apply, because the service was defective in New Jersey, and because the Plaintiffs challenge whether New Jersey has personal jurisdiction over them. See Response at 12. They also contend that, even if New Jersey can assert personal jurisdiction, the first-filed rule is inapplicable, because the operative agreements are construction contracts, so are a "special circumstance sufficient" to supplant "the first filed rule." Response at 13. They argue that conflicts of law issues favor a New Mexico forum, because the operative agreements are construction contracts. See Response at 13. The Plaintiffs assert that the other factors counsel against transfer, because: (i) litigation would be costly for the Plaintiffs; (ii) the Defendants are part of a hotel conglomerate that can easily travel and defend themselves in New Mexico; (iii) two key witnesses, Blue and Koffler, reside in New Mexico and in Arizona respectively, so travel to New Jersey as opposed to Albuquerque, New Mexico would be costlier; (iv) New Jersey law is inapplicable as to every claim; and (v) the New Jersey docket is more congested than the New Mexico docket. See Response at 13-14. Accordingly, the Plaintiffs request that this Court deny the Motion. See Response at 15.

3. The Reply.

The Defendants reply. See Defendants' Reply Brief In Further Support of Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), filed October 27, 2017 (Doc. 26)("Reply"). The Defendants contend that Presidential Hospitality and Blue waived their rights to challenge venue and personal jurisdiction by entering into the Franchise Agreement and the Assignment Agreement. See Reply at 2. According to the Defendants, because Presidential Hospitality and Blue do not contend that their consent was procured by fraud, the Court may properly transfer the case to New Jersey. See Reply at 2 (citing Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 957 (10th Cir. 1992) ). The Defendants argue that the Franchise Agreement and Assignment Agreement are licensing agreements and not construction contracts. See Reply at 3 ("Plaintiffs have not identified any case from any court in which a hotel license agreement was construed as a construction contract merely because the licensee built the facility."). The Defendants also assert that, even if the operative agreements are construction contracts, their provisions about venue and jurisdiction cannot be voided under N.M. Stat. Ann. § 57-28A-1. See Reply at 4. They argue that N.M. Stat. Ann. § 57-28-1(A) voids provisions that "require [ ] any litigation arising from the construction contract to be conducted in another state," but the Franchise Agreement's and Assignment Agreement's provisions do not require that litigation be brought in New Jersey, Reply at 4 (emphasis added); rather, according to the Defendants, they merely allow litigation to be brought in New Jersey, see Reply at 4.

The Defendants argue that, because the Plaintiffs' construction-contract argument fails, the first-filed doctrine applies. See Reply at 5. They contend that, contrary to the Plaintiffs' assertion, defective service does not negate the first-filed rule. See Reply at 5-6. They conclude that the discretionary factors and the interests of justice favor transfer, because the Plaintiffs consented to a New Jersey forum, and because judicial economy would be served if the Court transferred this action, so that the two actions could be consolidated. See Reply at 7-8.

4. The New Jersey Action.

In the New Jersey Action, Presidential Hospitality and Blue moved to stay, dismiss, or transfer the action to the United States District Court for the District of New Mexico. See Microtel Inns and Suites Franchising, Inc. v. Presidential Hospitality, LLC, Opinion and Order on Motion to Transfer, 2018 WL 1221160, at *1 (D.N.J. March 8, 2018) (Mannion, M.J.). The Honorable Steven C. Mannion, Magistrate Judge for the United States District Court for the District of New Jersey, declined to stay or transfer the action. See Microtel Inns and Suites Franchising, Inc. v. Presidential Hospitality, LLC, 2018 WL 1221160, at *2-3. He denied the request for a stay, because the two actions are "nearly identical," so, according to Magistrate Judge Mannion, the first-filed rule favored the action continuing in New Jersey. See 2018 WL 1221160, at *2-3. Magistrate Judge Mannion denied the request for transfer, even though a substantial part of the events giving rise to the action occurred in New Mexico, because: (i) Microtel Inn-the plaintiff in the New Jersey Action-chose New Jersey as a venue, and "the plaintiff's choice of venue should not be lightly disturbed"; (ii) "[w]hile [Presidential Hospitality and Blue] argue that the books and records and witnesses are located in New Mexico," there is no evidence that producing that evidence in New Jersey will burden Presidential Hospitality and Blue; (iii) the first-filed rule counsels toward denying transfer; (iv) although New Jersey has a "higher average number of civil cases per judge than the District of New Mexico," that fact does not mean the District of New Jersey would be "less expeditious"; and (v) Presidential Hospitality and Blue, who hold the burden of demonstrating transfer, do not make a sufficient showing that the District of New Jersey lacks personal jurisdiction over them. 2018 WL 1221160, at *3. Finally, Magistrate Judge Mannion ordered additional discovery to determine whether he should dismiss the case for lack of personal jurisdiction. See 2018 WL 1221160, at *4. He noted that, if the forum selection clause is valid, "then Defendants have consented to venue and jurisdiction in this District," but he needed more information to determine if that consent exists, more facts to determine whether N.M. Stat. Ann. § 57-28A-1 applies, and, if the forum selection clause is invalid, whether Presidential Hospitality and Blue had minimum contacts with New Jersey. 2018 WL 1221160, at *4.

5. The Hearing.

The Court held a hearing. See Draft Transcript of Motion Proceedings at 1:5 (dated June 4, 2018)(Court)("Tr."). The Defendants argued briefly that the Franchise Agreement and Assignment Agreement are not construction contracts, as the Plaintiffs' FAC has no construction-based claims. See Tr. at 4:11-5:1 (Sager). They argued that transfer would achieve efficiency "having all of the issues relating to this franchise relationship litigated in one forum at one time." Tr. at 5:1-6 (Sager).

The Plaintiffs emphasized that transfer to New Jersey was improper, because "New Jersey has not yet determined whether there is jurisdiction over my client." Tr. at 5:20-21 (Enriquez). The Plaintiffs argued that the operative agreements were construction contracts, because, under N.M. Stat. Ann. § 57-28A-1, a contract merely has to relate to construction to be a construction contract. See Tr. at 6:1-11 (Enriquez)("There is nothing in the statute, Your Honor, that states that claims must be[ ] of a construction nature."). They asserted that the Franchise Agreement "dictated h[ow the] hotel should be built," indicating that it is a construction contract. Tr. at 8:9-21 (Enriquez). The Plaintiffs also argue that one of their fraudulent inducement theories relates to the Dev. Incentive Note, which does not have a forum selection clause, so, according to the Plaintiffs, even if the forum selection clause in the Franchise Agreement is valid, New Jersey would not have personal jurisdiction over that claim. See Tr. at 9:19-10:7 (Enriquez). The Court expressed doubt that, once a party consents to personal jurisdiction, such jurisdiction had to be litigated claim-by-claim, see Tr. at 11:11 (Court), to which the Plaintiffs argued that it is the scope of consent that matters, see Tr. at 11:21-12:5 (Enriquez). The Plaintiffs contended that, if the forum selection clause is valid, they consent to jurisdiction only to claims arising out of the Franchise Agreement and not claims arising out of the Dev. Incentive Note. See Tr. at 11:23-12:5 (Enriquez).

The Plaintiffs also argued that, in terms of witness convenience, every relevant Plaintiffs' witness resides in New Mexico, Arizona, or Colorado, so it would be hard for them to travel to New Jersey. See Tr. 6:18-7:2 (Enriquez). The Plaintiffs asserted that, in terms of docket congestion, 28 U.S.C. § 1404(a) favors New Mexico, because the District of New Jersey has more civil cases per judge, but the Court noted that the civil statistics do not capture the District of New Mexico's criminal docket, which is one of the busiest in the nation. See Tr. at 7:3-8:2 (Court).

The Defendants argued that the Franchise Agreement's forum selection clause covers "any litigation arising out of or related to this agreement," which, according to the Defendants, includes any litigation on the Dev. Incentive Note. Tr. at 12:19-13:3 (Sager). They contended that, in terms of convenience to witnesses, keeping the case in New Mexico would inconvenience the defense witnesses-who reside in New Jersey-and that the first-filed rule favors New Jersey as a forum. See Tr. at 13:16-24 (Sager). The Defendants asserted that, if N.M. Stat. Ann. § 57-28A-1 was applied to "any contract that has in any way relation to construction, alteration, repair, or maintenance," there would be no limiting principle. Tr. at 14:13-17 (Sager). They argued that the operative contracts "in no way relate to or require the building of a facility, the alteration of a facility, the repair or maintenance of a facility.... Wyndham is not a construction company [and] [M]icrotel[ ] is not a construction company." Tr. at 14:17-24 (Sager). The Defendants added:

I think the fair limitation that can be drawn is that ... where you're dealing with nails and hammers and actual construction mechanisms, and those issues relating to the quality or the competency of the actual construction ... itself are at issue, New Mexico courts want to make sure that a New Mexico plaintiff has the opportunity to litigate [in New Mexico].

Tr. at 15:1-9 (Sager). The Defendants conceded that the Franchise Agreement mandates that the hotel look a certain way, see Tr. at 17:8-13 (Sager)("So a McDonalds looks like a McDonalds and a Microtel looks like a Microtel"), but they asserted that the Franchise Agreement does not "tell them how to construct or what materials they have to use," so, according to the Defendants N.M. Stat. Ann. § 57-28A-1 does not encompass the Franchise Agreement, Tr. at 17:14-18:13 (Sager). The Plaintiffs rejoined that the Franchise Agreement gives the Defendants the power to ensure that the hotel is "built according to their specification," so the Franchise Agreement is a construction agreement. Tr. at 19:19-25 (Enriquez).

The Defendants noted that the Plaintiffs have gone beyond the briefing, so made an additional argument that N.M. Stat. Ann. § 57-28A-1 does not apply to the Franchise Agreement, which was executed on 2010, because the statute applies "to contracts entered into or after July 1st, 2011." Tr. at 20:14-21:13 (Sager). The Plaintiffs countered that the Assignment Agreement was signed in 2013, which incorporates the Franchise Agreement, so N.M. Stat. Ann. § 57-28A-1 applies to both contracts. See Tr. at 21:17-22:1 (Enriquez). The Defendants rejoined that none of the construction provisions upon which the Plaintiffs rely come from the Assignment Agreement. See Tr. at 22:4-10 (Sager).

LAW REGARDING PERSONAL JURISDICTION

When contested, the party asserting the claim has the burden of proving personal jurisdiction. See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). To assert personal jurisdiction over a nonresident defendant, federal courts must satisfy state law and federal due process. See Doering v. Copper Mountain, Inc., 259 F.3d 1202, 1209-10 (10th Cir. 2001). Under due process, the Court's jurisdiction exists if the defendants have "minimum contacts" with the forum state, which may rest on specific or general personal jurisdiction, and the exercise of personal jurisdiction must comport with "traditional notions of fair play and substantial justice." Dudnikov v. Chalk & Vermilion Fine Arts Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (quotation marks omitted). See Bristol-Myers, Squibb Co. v. Superior Court of California, San Francisco Cty., --- U.S. ----, 137 S.Ct. 1773, 1779-80, 198 L.Ed.2d 395 (2017) (" Bristol-Myers"); Daimler AG v. Bauman, 571 U.S. 117, 134 S.Ct. 746, 754, 187 L.Ed.2d 624 (2014).

1. Burden of Proof.

As already noted, the Plaintiff bears the burden of proving personal jurisdiction. See Wenz v. Memery Crystal, 55 F.3d at 1505. When jurisdiction is "decided on the basis of affidavits and other written materials, the plaintiff need 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 731, 733 (10th Cir. 1984). When, however, a defendant presents credible evidence through affidavits or other materials suggesting the absence 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 the plaintiff's favor. 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.).

2. Due Process and Personal Jurisdiction.

The personal-jurisdiction due process analysis is two-fold. See Fabara v. GoFit, LLC, 308 F.R.D. 380, 400 (D.N.M. 2015) (Browning, J.). First, the defendant must have "minimum contacts" with the forum state such that it "should reasonably anticipate being haled into court there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Second, exercising personal jurisdiction over the defendant must comport with "traditional notions of fair play and substantial justice." Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1070 (quotation marks omitted). A defendant may have "minimum contacts" with the forum state in one of two ways, providing a court with either general or specific personal jurisdiction. Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532-33 (10th Cir. 1996) (citations omitted).

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. Thus, "[s]uch contacts may give rise to personal jurisdiction over a non-resident 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).

For a court to exercise specific jurisdiction " 'the suit' must 'aris[e] out of or relat[e] to the defendant's contacts with the forum. ' " Bristol-Myers, 137 S.Ct. at 1780 (quoting Daimler AG v. Bauman, 134 S.Ct. at 754 )(alterations and emphasis in Bristol-Myers ). See Bristol-Myers, 137 S.Ct. at 1781 ("[T]here must be an 'affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.' ")(quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (" Goodyear") ); Burger King Corp. v. Rudzewicz, 471 U.S. at 472, 105 S.Ct. 2174 (ruling that 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.")(citations and quotation marks omitted). The Tenth Circuit has characterized this inquiry as a two part test: "[F]irst ... the out-of-state defendant must have 'purposefully directed' its activities at residents in the forum state, and second, ... the plaintiff's injuries must 'arise out of' defendant's forum-related activities." Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1071. The Supreme Court of the United States of America has recently emphasized that, "[f]or specific jurisdiction, a defendant's general connections with the forum are not enough." Bristol-Myers, 137 S.Ct. at 1781. In the tort context, a defendant has "purposefully directed" his activities at New Mexico or its residents when 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) ).

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 Corp. v. Rudzewicz, 471 U.S. at 473, 478, 105 S.Ct. 2174 ). 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. at 295, 100 S.Ct. 559 (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, " 'foreseeability' alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause"). "[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 their 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.

General personal jurisdiction jurisprudence has "followed a markedly different trajector[y]" than specific personal jurisdiction. Daimler AG v. Bauman, 134 S.Ct. at 757. The test for general personal jurisdiction turns on whether the defendant is "at home" within the forum State. Daimler AG v. Bauman, 134 S.Ct. at 760. For individuals, "the paradigm forum for the exercise of general jurisdiction is the individual's domicile." Daimler AG v. Bauman, 134 S.Ct. at 760 (quoting Goodyear, 564 U.S. at 924, 131 S.Ct. 2846 ). For corporations, "the place of incorporation and principal place of business are 'paradig[m] ... bases for general jurisdiction.' " Daimler AG v. Bauman, 134 S.Ct. at 760 (quoting Goodyear, 564 U.S. at 924, 131 S.Ct. 2846 ). In Daimler AG v. Bauman, the Supreme Court rejected an argument that "continuous or systematic" contacts within a forum state were, in and of themselves, sufficient to subject a corporation to general personal jurisdiction. See Daimler AG v. Bauman, 134 S.Ct. at 761-62. In so doing, the Supreme Court reemphasized that a corporation is most often exposed to general personal jurisdiction only if that entity is incorporated in the forum state or if the forum state hosts the entity's principal place of business. See Daimler AG v. Bauman, 134 S.Ct. at 761.

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 factors, ... 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 dispute, (3) the plaintiff's 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. [v. Royal Ins. Co. of Canada], 149 F.3d [1086] at 1095 [ (10th Cir. 1998) ] (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 plaintiff's 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 1159, 1167 (10th Cir. 2011). The Supreme Court has recently emphasized that, among these factors, the primary concern "is 'the burden on the defendant.' " Bristol-Myers, 137 S.Ct. at 1780 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980) ). "Assessing this burden obviously requires a court to consider the practical problems resulting from litigating in the forum, but it also encompasses the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question." Bristol-Myers, 137 S.Ct. at 1780.

Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.

Bristol-Myers, 137 S.Ct. at 1780-81 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 294, 100 S.Ct. 580 ).

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) (unpublished), the Court considered whether it had personal jurisdiction over defendants who allegedly slandered, defamed, and caused the plaintiff-Michael Silver-distress, 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." 678 F.Supp.2d at 1212. 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. S