 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number:

 3 Filing Date:      June 19, 2018

 4 NO. A-1-CA-35910

 5   GABRIEL ARTURO RASCON
 6   RODRIGUEZ, RAYITO DEL CARMEN
 7   GUTIERREZ DE RASCON; JAVIER
 8   ORTIZ TARANGO, deceased; LEE
 9   HUNT, representative of the estate of
10   JAVIER ORTIZ TARANGO; BERTA
11   EBILA RAMIREZ; LORENZA SUSANA
12   ORTIZ; MARITZA BERENICE ORTIZ
13   RAMIREZ; CARMEN TARANGO CASTRO;
14   CRISTIAN ANTONIO ROMERO GARCIA,
15   deceased; LEE HUNT, representative of the
16   estate of CRISTIAN ANTONIO ROMERO
17   GARCIA; ROBERTO ROMERO and
18   HILDA TELLEZ, next friend of C.D.R.,
19   a minor, and C.D.R., a minor; ROBERTO
20   ROMERO, individually; LAURO CRUZ,
21   deceased; LEE HUNT, representative of
22   the estate of LAURO CRUZ; ORALIA NAJERA;
23   MARIA CONCEPTION CRUZ NAJERA,
24   individually and as next friend of L.M.A.C.,
25   a minor; CARLOS CRUZ; OLGALIDIA CRUZ;
26   EUFEMIO CRUZ; MIGUEL CRUZ; PERLA
27   ALEJANDRA CRUZ; MAYRA PAMELA CRUZ;
28   MARIA ESTHER CRUZ; AGUSTINA CRUZ;
29   JAVIER ACOSTA RAMIREZ; BERENICE
30   ACOSTA; JOSE JAVIER ACOSTA; JAVIER
31   ACOSTA; ADRIAN RAMOS, individually and
32   as next friend of R.A.R.R., a minor, A.R.R.,
33   a minor, Y.A.R.R., a minor, and A.R.R., a minor;
 1   YADIRA RUVALCABA DE RAMOS; LUIS
 2   CANSECO VAZQUEZ, individually and as
 3   next friend of G.C., a minor, and S.A.C., a minor;
 4   GUADALUPE LOPEZ; JULIA CANSECO;
 5   LUIS CANSECO; LUIS RAUL ORTEGA
 6   GABALDON; JESUS ALEJANDRO JIMENEZ
 7   ORTEGA; and ERNESTO VARGAS LOPEZ,

 8      Plaintiffs-Appellees,

 9 v.

10 FORD MOTOR COMPANY, and COOPER
11 TIRE AND RUBBER COMPANY,

12      Defendants-Appellants,

13 and

14 FERNANDO GAYTAN BUSTOS,

15      Defendant-Appellee,

16 and

17 FERNANDO GAYTAN BUSTOS,

18      Cross-Plaintiff/Appellee,

19 v.

20 FORD MOTOR COMPANY and COOPER
21 TIRE AND RUBBER COMPANY,

22      Cross-Defendants/Appellants.

23 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
24 Francis J. Mathew, District Judge
 1 Jaramillo Touchet LLC
 2 David J. Jaramillo
 3 Albuquerque, NM

 4 Touchet Law Firm, PC
 5 Maria E. Touchet
 6 Albuquerque, NM

 7   The Edwards Law Firm
 8   John B. Gsanger
 9   Gary Scott Marshall
10   Corpus Christi, TX

11 for Appellees Gabriel Rascon Rodriguez, et al.

12   Rodey, Dickason, Sloan, Akin & Robb, P.A.
13   Jeffrey M. Croasdell
14   Todd E. Rinner
15   Albuquerque, NM

16 Hogan Lovells US LLP
17 Sean Marotta
18 Washington, D.C.

19 for Appellant Ford Motor Company

20 Brownstein Hyatt Farber Schreck, LLP
21 Eric R. Burris
22 Albuquerque, NM

23 Norton Rose Fulbright US LLP
24 Troy L. Vancil
25 San Antonio, TX

26 for Appellant Cooper Tire and Rubber Company
1 Law Offices of James B. Ragan
2 James B. Ragan
3 Corpus Christi, TX

4 for Appellee Fernando Gaytan Bustos
 1                                        OPINION

 2 FRENCH, Judge.

 3   {1}   Plaintiffs sued Ford Motor Company and Cooper Tire and Rubber Company

 4 (collectively, Defendants) for injuries sustained when their vehicle rolled over while

 5 they were traveling through New Mexico. Defendants each filed motions to dismiss

 6 for lack of personal jurisdiction, which the district court denied. We granted

 7 Defendants’ applications for interlocutory appeal and consolidated both appeals.

 8 Concluding that New Mexico has specific personal jurisdiction over Defendants, we

 9 affirm the district court.

10 BACKGROUND

11   {2}   In August 2012, Plaintiffs, all Mexican nationals, were passengers in a 1993

12 Ford E-350 Super Club Wagon that was en route to Colorado from Mexico. While

13 traveling on U.S. Highway 54 in Guadalupe County, New Mexico, “the tread peeled

14 off the right rear tire on the vehicle.” The vehicle left the road and rolled three times.

15 Two of the occupants, Javier Ortiz Tarango and Cristian Antonio Romero, were

16 fatally ejected from the vehicle, while occupant Lauro Cruz was rendered

17 quadriplegic and eventually died from his injuries. Occupants Gabriel Arturo Rascon

18 Rodriguez, Javier Acosta Ramirez, Adrian Ramos, Luis Canseco, Luis Raul Ortega
 1 Gabaldon, Jesus Alejandro Jimenez Ortega, and Ernesto Vargas Lopez all sustained

 2 injuries as a result of the crash.

 3   {3}   In August 2015, Plaintiffs filed a wrongful death and personal injury complaint

 4 against Defendants as well as against Fernando Gaytan Bustos who installed the tire

 5 on the van in 2012. Shortly after the complaint was filed, Defendants moved to

 6 dismiss for lack of personal jurisdiction. They argued that because the van and tire

 7 were not purchased in New Mexico, New Mexico had no personal jurisdiction over

 8 them. In particular, Ford argued that the Ford E-350 was not designed in New

 9 Mexico, was manufactured in Ohio, was sold first by an independent dealer located

10 in Kentucky, and “was not serviced by any Ford independent dealer located in the

11 State of New Mexico[.]” Moreover, at the time of the accident, the van was licensed

12 in Mexico, and was being driven by a citizen of Mexico. Cooper argued that the tire

13 was not designed in New Mexico and was manufactured in Cooper’s Texarkana,

14 Arkansas plant. In addition, the tire was purchased in Oklahoma, and installed on the

15 van by Fernando Gaytan Bustos in Mexico.

16   {4}   In response, Plaintiffs provided evidence of Defendants’ New Mexico contacts,

17 which we summarize in the following paragraphs. Ford has fourteen official Ford

18 dealerships in New Mexico. Ford also engages in marketing targeted at New Mexico

19 consumers, including Ford sponsorship of New Mexico events such as the 2013


                                              2
 1 professional bull riding championship. Ford maintains an interactive website that

 2 allows New Mexico consumers to obtain a quote for a Ford vehicle, search inventory

 3 of Ford vehicles in stock in New Mexico, apply for credit to purchase vehicles in

 4 New Mexico, configure a Ford vehicle, and obtain a purchase price. Ford has “in-

 5 forum advertising and defense and indemnity contracts with its dealerships,” and Ford

 6 has been a frequent party in New Mexico litigation.

 7   {5}   Cooper has sixty-two official Cooper tire dealers in New Mexico, and Cooper

 8 personnel travel to Cooper tire dealers “to assess the in-field performance of its

 9 tires[.]” Cooper maintains a website with an interactive tire service bulletin page

10 providing information to New Mexico consumers about services available through

11 Cooper dealers. Cooper’s advertising targets New Mexico consumers, including via

12 sponsorship of professional bull riding events in Albuquerque, New Mexico. Cooper

13 has appeared as a litigant in New Mexico courts.

14   {6}   After a hearing on Defendants’ motions to dismiss for lack of personal

15 jurisdiction, the district court entered an order denying the motions but noted that the

16 decision “involves a controlling question of law as to which there is substantial

17 ground for difference of opinion and an immediate appeal from this order may

18 materially advance the ultimate termination of the litigation.” Defendants timely filed

19 applications for interlocutory appeal, which we now consider.


                                              3
 1 DISCUSSION

 2 Standard of Review

 3   {7}   “The determination whether a district court has personal jurisdiction over a

 4 nonresident defendant is a question of law that we review de novo.” Sproul v. Rob &

 5 Charlies, Inc., 2013-NMCA-072, ¶ 6, 304 P.3d 18. “Plaintiffs have the burden of

 6 making a prima facie showing of personal jurisdiction.” Zavala v. El Paso Cty. Hosp.

 7 Dist., 2007-NMCA-149, ¶ 13, 143 N.M. 36, 172 P.3d 173. When a party contests the

 8 exercise of personal jurisdiction, the party asserting jurisdiction may not rely on its

 9 pleadings but must come forward with affidavits or other evidence supporting

10 jurisdiction. Gallegos v. Frezza, 2015-NMCA-101, ¶ 9, 357 P.3d 408. Because the

11 district court based its ruling on the parties’ pleadings, attachments, and non-

12 evidentiary hearings, this Court applies “a standard of review mirroring that of our

13 standard governing appeals from summary judgment.” Sproul, 2013-NMCA-072, ¶ 6.

14 This Court will “construe the pleadings and affidavits in the light most favorable to

15 the complainant” who needs only to “make a prima facie showing that personal

16 jurisdiction exists.” Id. (internal quotation marks and citation omitted). Dismissal is

17 proper in this case only if all facts Plaintiffs allege collectively fail to make a prima

18 facie case of jurisdiction over Defendants based on the statements in the pleadings.




                                               4
 1 Analysis

 2   {8}   When determining personal jurisdiction over nonresident defendants, we apply

 3 a two-step analysis. Id. ¶ 7. First, we determine whether personal jurisdiction satisfies

 4 the “requirements of New Mexico’s long-arm statute.” Id. If it does, we then turn to

 5 whether Defendants had sufficient minimum contacts to subject them to suit in New

 6 Mexico. See id. The parties do not dispute that the requirements of the long-arm

 7 statute are satisfied, and we thus turn to the second step in our analysis.

 8   {9}   Sproul is dispositive of the analysis here. In Sproul, we held that New Mexico

 9 courts could exercise jurisdiction over a Chinese corporation defendant who

10 manufactured bicycle parts when the defendant placed allegedly defective products

11 on the market with the intention that they be distributed and sold throughout the

12 United States, including in New Mexico. Id. ¶¶ 2-3, 45. In determining whether the

13 defendant had established sufficient contacts to allow the court to exercise specific

14 jurisdiction in that products liability case, we looked at whether the defendant had

15 placed products into the stream of commerce with the expectation that their products

16 would be purchased and used in the forum state. Id. ¶ 20. This inquiry required some

17 activity on the part of the defendant to directly or indirectly serve the market in the

18 forum state. Id. In other words, to satisfy due process there had to be “some act

19 purposefully directed at the forum state[,]” such that the defendant reasonably


                                               5
 1 anticipated being brought into a New Mexico court. Id. ¶ 25. The claims at issue did

 2 not need to be causally related to the defendant’s contacts in the forum; they needed

 3 only “lie in the wake” of the defendant’s activities in the forum state. Id. ¶ 17

 4 (alteration, internal quotation marks, and citation omitted).

 5   {10}   Applying Sproul to the facts of this case, we conclude that Defendants have

 6 minimum contacts sufficient for specific jurisdiction in New Mexico. We explain.

 7 Plaintiffs have alleged that Defendants regularly sell their products in New Mexico,

 8 advertise in New Mexico, and service their products in New Mexico. Defendants

 9 produce New Mexico-targeted advertising, and place their products into the stream

10 of commerce with the intention of selling, maintaining, and repairing them in New

11 Mexico. Defendants have been litigants in New Mexico courts. Defendants have

12 engaged in efforts to directly serve the New Mexico market and have sold and

13 advertised allegedly defective products in New Mexico. These facts provide the

14 requisite activity on the part of Defendants to satisfy due process. We are not

15 persuaded by Defendants’ assertion that specific jurisdiction cannot exist because the

16 vehicle and tire involved in the accident were not purchased in New Mexico,

17 particularly given that the accident occurred in New Mexico, Defendants engaged in

18 targeted marketing and sales activities in the state of New Mexico, and they placed




                                             6
 1 their products into the stream of commerce with the intention that they be sold in New

 2 Mexico.

 3   {11}   Our conclusion is consistent with other prior cases in which we have held that

 4 specific jurisdiction existed over defendants. For example, in Cronin v. Sierra

 5 Medical Center, 2000-NMCA-082, ¶ 22, 129 N.M. 521, 10 P.3d 845, we held that

 6 minimum contacts sufficient for specific jurisdiction over a Texas hospital existed

 7 when the hospital placed advertisements in New Mexico telephone directories,

 8 produced television commercials that could be viewed in New Mexico, and

 9 performed health care services for New Mexico customers. In Roberts v. Piper

10 Aircraft Corp., 1983-NMCA-110, ¶¶ 20-24, 100 N.M. 363, 670 P.2d 974, we held

11 that the district court could exercise specific personal jurisdiction over an Oklahoma

12 company that serviced a plane in Oklahoma that was shipped from Texas and that was

13 involved in an accident in New Mexico. The defendant company in Roberts also

14 advertised in trade journals that circulated in New Mexico and performed repair work

15 for New Mexico customers even though the plane involved in the specific cause of

16 action was not serviced in New Mexico. Id. ¶¶ 20-21, 24. We hold that Plaintiffs have

17 met their burden of establishing that Defendants had sufficient minimum contacts to

18 subject them to suit in New Mexico.




                                               7
 1   {12}   Defendants rely heavily on Fabara v. GoFit, LLC, 308 F.R.D. 380 (D.N.M.

 2 2015), in support of their argument that personal jurisdiction does not exist in this

 3 case. That decision, however, is distinguishable from the instant matter and further,

 4 is not precedential. In Fabara, the plaintiff sued a manufacturer of an exercise ball

 5 that exploded and injured the plaintiff. Id. at 385. After a lengthy discussion on the

 6 distinction between general and personal jurisdiction, the Federal District Court of

 7 New Mexico, in a memorandum opinion, ultimately concluded that defendant GoFit’s

 8 contacts with New Mexico did not trigger general personal jurisdiction. Id. at 394,

 9 406. Although the plaintiff had relied heavily on Sproul to justify why New Mexico

10 had general personal jurisdiction over the defendant, the court correctly pointed out

11 that “[t]he analysis on which [the plaintiff] relies falls under the heading of ‘Specific

12 Jurisdiction,’ ” and not general jurisdiction as was pertinent in that case. Fabara, 308

13 F.R.D. at 405. Just as the Fabara plaintiff misread Sproul, so too Defendants misread

14 Fabara here. The question is not whether the district court has general personal

15 jurisdiction over Defendants but whether it has specific jurisdiction and we have

16 concluded that it does.

17   {13}   Once minimum contacts are established, the burden shifts to the defendant to

18 prove that the exercise of jurisdiction would be unfair. Moore v. Graves, 1982-

19 NMCA-170, ¶ 14, 99 N.M. 129, 654 P.2d 582. Defendants presented no evidence


                                               8
1 about unfairness in the district court, and did not raise it on appeal, so we do not

2 consider it.

3 CONCLUSION

4   {14}   We affirm.

5   {15}   IT IS SO ORDERED.


6                                        ______________________________
7                                        STEPHEN G. FRENCH, Judge


8 WE CONCUR:


 9 ___________________________________
10 LINDA M. VANZI, Chief Judge


11 ___________________________________
12 M. MONICA ZAMORA, Judge




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