       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ___________

Filing Date: June 24, 2014

Docket No. 33,048

CATHY TREI,

       Plaintiff-Appellant,

v.

AMTX HOTEL CORPORATION,
d/b/a HOLIDAY INN,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
William A. Sanchez, District Judge

Amavalise F. Jaramillo
Tome, NM

for Appellant

Peterson Farris Byrd & Parker
Rhett J. Hubbard
Amarillo, TX

for Appellee

                                          OPINION

SUTIN, Judge.

{1}      Plaintiff Cathy Trei appeals the district court’s grant of Defendant AMTX Hotel
Corporation’s motion to dismiss for lack of personal jurisdiction. Plaintiff argues that the
district court erred in finding insufficient contacts with New Mexico to establish jurisdiction.
She also argues that even if the contacts were insufficient, Defendant waived its
jurisdictional defense by engaging in non-jurisdictional discovery. We conclude that the
out-of-state franchisor’s national advertising does not provide a basis to establish personal
jurisdiction in New Mexico over the nonresident franchisee Defendant in this case.

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Additionally, we conclude that Defendant did not waive its jurisdictional defense. We
therefore affirm the district court’s dismissal for lack of personal jurisdiction.

BACKGROUND

{2}    Plaintiff is a resident of New Mexico. Defendant is a New York corporation that
owns and operates a hotel in Amarillo, Texas. Defendant’s hotel does business as a
“Holiday Inn,” pursuant to its franchise agreement with Intercontinental Hotels Group
(IHG), which owns the “Holiday Inn” brand.1

{3}    In March 2012, Plaintiff was a guest at Defendant’s hotel in Amarillo, Texas. She
was injured while using equipment in the hotel’s exercise facility. Plaintiff sued in Valencia
County, New Mexico, seeking damages for personal injuries at the hotel. In response,
Defendant filed a motion to dismiss based on lack of jurisdiction, along with an answer to
the complaint. Defendant also sent Plaintiff a set of interrogatories, a request for production
of documents, and requested authorizations to obtain various records relating to Plaintiff.

{4}     Following a hearing on Defendant’s motion to dismiss, the district court determined
that there were not sufficient contacts between New Mexico and Defendant to establish
jurisdiction and entered an order dismissing the case on that basis. This appeal followed.

DISCUSSION

{5}     “The determination whether a district court has personal jurisdiction over a
nonresident defendant is a question of law that we review de novo.” Sproul v. Rob &
Charlies, Inc., 2013-NMCA-072, ¶ 6, 304 P.3d 18. Where the district court bases its ruling
on the parties’ pleadings and affidavits, we apply a standard of review mirroring that of our
standard governing appeals from summary judgment. See Sublett v. Wallin, 2004-NMCA-
089, ¶ 11, 136 N.M. 102, 94 P.3d 845. “We construe the pleadings and affidavits in the light
most favorable to the complainant, and the complainant need only make a prima facie
showing that personal jurisdiction exists.” Id.

{6}     “[W]e consider the long-arm statute as being coextensive with the requirements of
due process and undertake a single search for the outer limits of what due process permits.”
M.R. v. SereniCare Funeral Home, L.L.C., 2013-NMCA-022, ¶ 8, 296 P.3d 492 (internal
quotation marks and citation omitted). “Due process requires that an out-of-state defendant
have ‘minimum contacts’ with the forum state ‘such that the maintenance of the suit does
not offend traditional notions of fair play and substantial justice.’ ” Alto Eldorado P’ship
v. Amrep Corp., 2005-NMCA-131, ¶ 31, 138 N.M. 607, 124 P.3d 585 (quoting Int’l Shoe


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         There is nothing in the record indicating IHG’s state of incorporation. Neither party
alleges that New Mexico is the state of incorporation. We analyze the jurisdictional issue
accordingly.

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Co. v. Washington, 326 U.S. 310, 316 (1945)). Personal jurisdiction can be either general
(all-purpose) or specific (case-linked). Sproul, 2013-NMCA-072, ¶ 9. Because the
jurisdiction asserted in this case is specific, we must determine whether Defendant purposely
established contact with New Mexico and, if so, whether Plaintiff’s cause of action arose out
of those contacts with New Mexico. See Zavala v. El Paso Cnty. Hosp. Dist., 2007-NMCA-
149, ¶ 12, 143 N.M. 36, 172 P.3d 173.

Plaintiff’s Agency Theory

{7}     Plaintiff can point to no direct contact between New Mexico and Defendant.
Defendant has no facilities, hotels, offices, or employees in New Mexico, has no agent in
New Mexico, does not advertise in New Mexico, and does not conduct any business in New
Mexico. In short, Defendant has no presence whatsoever in New Mexico. Plaintiff argues
that Defendant’s purposeful contact with New Mexico stems from “the advertising and
marketing activities of Holiday Inn in New Mexico, which can be imputed or attributed to
[Defendant.]” Plaintiff relies on “[IHG’s national] advertising . . . on television and radio,”
which she alleges she saw and heard prior to her stay at Defendant’s hotel. She also points
out that she was a member of IHG’s Priority Club at the time of her injury, which is also
advertised nationally. Plaintiff asks this Court to impute IHG’s advertising to Defendant in
order to demonstrate contacts between Defendant and New Mexico. She argues that IHG’s
advertisements should be attributed to Defendant “through theories of agency or apparent
agency.” In her reply brief, Plaintiff states that her position is “premised on [Defendant’s]
use of the Holiday Inn name, and how it benefits from that advertisement and promotional
activities conducted via its agent [IHG].” We reject Plaintiff’s imputation and attribution
contacts theories.

{8}      “The existence of a franchisor-franchisee relationship alone is insufficient to create
a principal-agent relationship.” Campos Enters., Inc. v. Edwin K. Williams & Co., 1998-
NMCA-131, ¶ 18, 125 N.M. 691, 964 P.2d 855; see also Sublett, 2004-NMCA-089, ¶¶ 14-
22, 28 (declining to find an agency relationship between a nonresident franchisor defendant
and a New Mexico franchisee for the purpose of establishing jurisdiction over the franchisor,
and emphasizing that “it is a defendant’s activities which must provide the basis for personal
jurisdiction, not the acts of other defendants or third parties” (alterations, internal quotation
marks, and citation omitted)); Alto Eldorado P’ship, 2005-NMCA-131, ¶ 32 (“[T]he mere
relationship of [a] parent corporation and subsidiary corporation is not in itself a sufficient
basis for subjecting both to the jurisdiction of the forum state, where one is a nonresident and
is not otherwise present or doing business in the forum state. When speaking of jurisdiction,
this rule is only common sense, since personal jurisdiction is precisely that: personal.”
(internal quotation marks and citation omitted)).

{9}     These cases involve attempts to assert jurisdiction over a nonresident defendant
based on the contacts of a resident franchisee or subsidiary. In the case now before us,
Plaintiff is attempting to use alleged New Mexico contacts of a nonresident franchisor to
sustain jurisdiction over a nonresident franchisee. Although not on point, Campos, Sublett,

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and Alto are instructive. We examine whether one party exerted control over the other to the
extent that one party’s contacts with New Mexico can be imputed to the other. We will not
impute the alleged contacts of nonresident franchisor IHG to nonresident franchisee
Defendant unless Plaintiff has proved sufficient facts to demonstrate that Defendant, the
party over which Plaintiff seeks jurisdiction, has exerted some level of control over IHG, the
party that has the alleged contacts with New Mexico through its national advertising. See
Coleman v. Chen, 712 F. Supp. 117, 122 (S.D. Ohio 1988) (addressing a plaintiff’s attempt
to impute Holiday Inn’s national advertising to its franchisee for the purpose of establishing
jurisdiction and rejecting the argument because “[t]here [was] no evidence that [the
d]efendants [(the franchisee)] control[led] the time, place, or manner of [the d]efendant
Holiday Inns’ solicitation” and, therefore, “no jurisdiction [could] be based upon the
franchisor’s being an agent of the franchisee”).

{10} Asserting that IHG has contacts in New Mexico via national advertisements, Plaintiff
asks this Court to impute those alleged contacts to Defendant through a theory of agency.
In other words, Plaintiff argues that IHG acted as Defendant’s agent with respect to IHG’s
advertisements. The argument fails because no evidence exists that Defendant exerted any
control over IHG in any respect, much less in regard to IHG’s national advertising program.
Further, without any facts about the relationship, all of Plaintiff’s assertions about an agency
relationship are speculative and hollow. We, therefore, decline to impute IHG’s alleged
contacts with New Mexico to Defendant.

{11} Plaintiff’s claim also fails because national advertisements alone by a nonresident
defendant cannot support personal jurisdiction over that nonresident defendant. See
Giangola v. Walt Disney World Co., 753 F. Supp. 148, 155-56 (D.N.J. 1990) (concluding
that advertising to the general public on television and in newspapers cannot constitute
minimum contacts necessary to satisfy due process); Jacobs v. Walt Disney World, Co., 707
A.2d 477, 485 (N.J. Super. Ct. App. Div. 1998) (indicating that advertisements, national in
scope, for the purpose of informing the general public and not designed to solicit business
from a specific geographic area should not form the basis for jurisdiction). In relation to
advertisements to the general public and national in design, the court in Giangola
insightfully concluded:

       In an age of modern advertising and national media publications and markets,
       [the] plaintiffs’ argument that such conduct would make a defendant
       amenable to suit wherever the advertisements were aired would substantially
       undermine the law of personal jurisdiction. Courts generally have refused to
       adopt such a standard and embark on such a course.

753 F. Supp. at 156. Invoking personal jurisdiction when based on national advertisements
directed solely to the general public, as in the present case, does not pass the fairness and
reasonable tests for jurisdiction. See Roberts v. Piper Aircraft Corp., 1983-NMCA-110,
¶ 24, 100 N.M. 363, 670 P.2d 974 (indicating that whether personal jurisdiction exists is a
question of fairness and reasonableness).

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{12} Plaintiff’s reliance on Roberts is of no benefit to her. Roberts does not support
Plaintiff’s agency and imputation theory either factually or legally. In Roberts, the injury
at issue occurred in New Mexico, id. ¶¶ 2-4, and the advertisements at issue, which came
directly from one of the nonresident defendants, specifically directed customers in New
Mexico to its business through national trade publications that were circulated in New
Mexico. Id. ¶¶ 21-22. Here, the circumstances differ significantly. Plaintiff’s injury
occurred in Texas at the nonresident franchisee Defendant’s hotel, and the purely national
advertising came from a non-party, nonresident franchsior. No evidence exists that
Defendant had any control over IHG’s advertisements. No evidence exists that IHG’s
advertisements related specifically to Defendant’s Amarillo hotel, or to the Texas panhandle
area, or directed customers to Defendant’s hotel.

{13} Nor does Cronin v. Sierra Medical Center, on which Plaintiff also relies, support
Plaintiff’s arguments. 2000-NMCA-082, 129 N.M. 521, 10 P.3d 845. The nonresident
defendant in Cronin was a hospital that “intentionally, purposefully, and persistently
solicit[ed] the business of New Mexico customers.” Id. ¶ 22. Specifically, “[i]t placed
advertisements in several New Mexico telephone directories, produced television
commercials that could be and were viewed by potential customers in New Mexico, and
previously performed health care services for other New Mexico customers.” Id. Like in
Roberts, and unlike here, the advertisements at issue in Cronin came directly from the
nonresident defendant and specifically directed customers to its business. See id. Plaintiff’s
out-of-state authorities are equally distinguishable and inapposite, and we see no reason to
discuss them.

The Jurisdictional Defense

{14} Plaintiff argues that Defendant waived its jurisdictional defense by propounding
discovery and seeking certain relief in its answer. Defendant served Plaintiff with a set of
interrogatories, a request for production of documents, and requested authorizations to obtain
certain records about Plaintiff. One day prior, Defendant filed its motion to dismiss for lack
of personal jurisdiction. At the same time, Defendant also filed an answer to Plaintiff’s
complaint in which Defendant requested that it “be discharged from all liability and recover
its costs[.]”

{15} “The defense of lack of personal jurisdiction is subject to waiver when not properly
asserted.” Stetz v. Skaggs Drug Ctrs., Inc., 1992-NMCA-104, ¶ 18, 114 N.M. 465, 840 P.2d
612. Typically, a waiver occurs when a defendant fails to raise the defense in a responsive
pleading or a Rule 1-012 NMRA motion. Defendant raised the defense in a motion to
dismiss, along with its answer to Plaintiff’s complaint, a procedure permitted in Rule 1-
012(B). Id. (“No defense or objection is waived by being joined with one or more other
defenses or objections in a responsive pleading or motion.”). However, the defense may be
waived, even if a defendant has preserved the defense in an answer, if the defendant
substantially participates in the litigation without actively pursuing its jurisdictional defense.
See 5C Charles Alan Wright et al., Federal Practice and Procedure § 1391 (3d ed.) (“[A]

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party can be held to have waived a defense listed in [Federal] Rule 12(h)(1) through conduct,
such as extensive participation in the discovery process or other aspects of the litigation of
the case even if the literal requirements of [the rule] have been met[.]”).

{16} We have addressed waiver in this context on at least two occasions. In Williams v.
Arcoa International, Inc., 1974-NMCA-037, ¶¶ 11-19, 86 N.M. 288, 523 P.2d 23, this Court
held that the defendant waived its personal jurisdiction defense when it invoked the
jurisdiction of the district court by seeking permissive, affirmative relief in the form of a
third-party complaint. In Capco Acquisub, Inc. v. Greka Energy Corp., 2008-NMCA-153,
¶ 32, 145 N.M. 328, 198 P.3d 354, this Court concluded that a defendant did not waive its
defense when it filed an answer, a motion to dismiss, a motion for summary judgment, and
participated in certain aspects of the pretrial process because the conduct was defensive in
nature. In other words, the defendant did not seek affirmative relief. Id.

{17} We reject Plaintiff’s claim that Defendant waived its jurisdictional defense by
seeking affirmative relief from the district court. A party is permitted under Rule 1-026
NMRA to propound discovery upon an opposing party once an action has been instituted.
Cf. Sanchez v. Church of Scientology of Orange Cnty., 1993-NMSC-034, ¶ 17, 115 N.M.
660, 857 P.2d 771 (explaining that when challenging personal jurisdiction, the opportunity
for discovery exists from the inception of a case). The relief Plaintiff characterizes as
“affirmative” was requested in Defendant’s answer, which was filed simultaneously with its
motion to dismiss. Plaintiff points out that Defendant’s requests “were not limited to
jurisdictional discovery[.]” We decline to penalize Defendant for requesting information
that would be relevant to the subject matter of the action awaiting the district court’s ruling
on Defendant’s early filed motion to dismiss for lack of jurisdiction. An answer to a
complaint is defensive in nature, and we have previously rejected an argument similar to that
of Plaintiff. See Capco Acquisub, Inc., 2008-NMCA-153, ¶¶ 7-8, 31-32.

CONCLUSION

{18} New Mexico does not have personal jurisdiction over Defendant in this case, and
Defendant did not waive its jurisdictional defense. Accordingly, we affirm the district
court’s grant of Defendant’s motion to dismiss for lack of personal jurisdiction.

{19}   IT IS SO ORDERED.

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                                               JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
RODERICK T. KENNEDY, Chief Judge


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____________________________________
MICHAEL D. BUSTAMANTE, Judge




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