                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         APR 27 2004
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 SHANNON YOUNG,

          Plaintiff - Appellant,

 v.
                                                       No. 03-2180
 STATE GOVERNMENT OF                             District of New Mexico
 OKLAHOMA; STEPHEN P. GRAY,                  (D.C. No. CIV-02-1577 LH/RHS)
 individually; FORREST DAVID
 NELSON, individually; KELLY
 BURKE, individually; RUDY
 BRIGGS, individually; BRUCE G.
 SEWELL, individually; JOHN DOES,
 1-12; JANE DOES, 1-12,

          Defendants - Appellees.




                             ORDER AND JUDGMENT         *




Before EBEL , MURPHY , and McCONNELL , Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore submitted without oral argument.

       Mr. Young appeals from the district court’s dismissal of his complaint for

lack of personal jurisdiction. Because we conclude that the district court lacked

personal jurisdiction over the defendants and that the district court did not err or

abuse its discretion in dismissing, rather than transferring, the case, we affirm the

district court.

                                     Background

       In September 1999, Mr. Young was the defendant in a divorce proceeding

in Oklahoma. The divorce decree was entered January 6, 2000. In May 2001, his

ex-wife filed an application for citation for contempt, alleging failure to pay

alimony and to abide by other requirements of the divorce decree. After a hearing

on December 18, 2001, Mr. Young was found guilty of contempt and sentenced to

sixty days in county jail. On December 28, 2001, Mr. Young paid $3,900 to

expunge his sentence, and was released from custody. Subsequently, Mr. Young’s

Oklahoma home was sold at a sheriff’s sale, and the sale was confirmed by an

Order of Disbursement on April 5, 2002.

       Mr. Young filed suit   pro se in the Federal District Court for the District of

New Mexico against the “Government of Oklahoma” and the judges, officers and

attorneys involved in the divorce and contempt proceedings, alleging various


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constitutional violations. The defendants moved to dismiss for lack of personal

jurisdiction. The district court found Mr. Young had failed to allege facts

sufficient to confer personal jurisdiction under both the due process clause and

relevant New Mexico law. Mr. Young appeals from this dismissal.

                                        Discussion

       Because Mr. Young appears       pro se , we construe his arguments broadly.

See, e.g. , United States v. Distefano , 279 F.3d 1241, 1244 (10th Cir. 2002).

Construed broadly, Mr. Young presents two arguments on appeal: first, that the

district court erred when it found it lacked personal jurisdiction over the

defendants; and second, that it abused its discretion in deciding to dismiss the

case without prejudice rather than transferring the case pursuant to 28 U.S.C. §

1631. Neither argument has merit.

1. Personal Jurisdiction

       We review the district court’s determination of personal jurisdiction    de

novo. OMI Holdings, Inc. v. Royal Ins. Co. of Canada        , 149 F.3d 1086, 1091

(10th Cir. 1998). The plaintiff bears the burden of alleging and proving facts that

support the exercise of personal jurisdiction, though in the absence of an

evidentiary hearing, he need only make a prima facie showing of personal

jurisdiction.   Id. Two requirements must be met for a federal district court to

assert personal jurisdiction over a defendant.     United States v. Botefuhr , 309 F.3d


                                             -3-
1263, 1271 (10th Cir. 2002). First, the defendant must be “subject[] to the

jurisdiction of a court of general jurisdiction in the state in which the district

court is located.” Fed. R. Civ. P. 4(k)(1)(A). Second, “the exercise of personal

jurisdiction must ‘not offend the due process clause of the Fourteenth

Amendment.’” Botefuhr , 309 F.3d at 1271 (quoting         Far West Capital, Inc. v.

Towne , 46 F.3d 1071, 1074 (10th Cir. 1995)). Mr. Young has failed to allege

facts sufficient to meet either requirement.

       New Mexico applies a three part test to determine whether personal

jurisdiction lies, asking: (1) whether the defendant committed an act or omission

specifically set forth in the statute; (2) whether the cause of action arises out of

that act or omission; and (3) whether the defendant has sufficient minimum

contacts to satisfy due process concerns. Tercero v. Roman Catholic Diocese of

Norwich, Connecticut , 48 P.3d 50, 54 (N.M. 2002). The statute has been

interpreted to “extend[] the jurisdictional reach of New Mexico as far as

constitutionally permissible.” Thus, the personal jurisdiction inquiry largely

collapses into the constitutional due process analysis.     See id . at 54-55, 57.

       Under the Constitution, the defendant must have sufficient minimum

contacts with the forum state that allowing the action will not offend traditional

conceptions of fair play and substantial justice.     Int’l Shoe Co. v. Washington , 326

U.S. 310, 319-20 (1945). “It is essential in each case that there be some act by


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which the defendant purposefully avails itself of the privilege of conducting

activities within the forum State, thus invoking the benefits and protections of its

laws.” Hanson v. Denkla , 357 U.S. 235, 253 (1958). “[T]he defendant’s conduct

and connection with the forum State [must be] such that he should reasonably

anticipate being haled into court there.”   World-Wide Volkswagen Corp. v.

Woodson , 444 U.S. 286, 297 (1980).

       In the instant case, the defendants lack the requisite minimum contacts with

New Mexico. After reviewing the record and the briefs we conclude, as the

district court did, that:

       According to all allegations and proof before this Court, all of the
       Defendants reside in the State of Oklahoma, and all of the actions
       complained of occurred in the State of Oklahoma. There is nothing
       in the record to indicate that any of the Defendants has ties to the
       State of New Mexico, with the exception of this lawsuit.

Mem. Opinion & Order of Dismissal Without Prejudice at 2. Moreover, aside

from asserting that he does not concede the claim, Appellant’s Reply Br. at 3, Mr.

Young’s briefs are devoid of any argument, factual or legal, that the defendants

had sufficient contacts with New Mexico to allow the district court to exercise

personal jurisdiction over them. We find the district court did not err in holding

it lacked personal jurisdiction over defendants, and agree that the exercise of such

jurisdiction in this case would violate the defendants’ due process rights.




                                            -5-
2. Transfer Under 28 U.S.C. § 1631

        Mr. Young argues that even if the district court lacked personal

jurisdiction, it should have transferred the case, pursuant to 28 U.S.C. § 1631,

rather than dismissing the case without prejudice. Section 1631 reads in relevant

part:

        Whenever a civil action is filed in a court . . . and that court finds
        that there is a want of jurisdiction, the court shall, if it is in the
        interest of justice, transfer such action . . . to any other such court in
        which the action or appeal could have been brought at the time it was
        filed or noticed, and the action or appeal shall proceed as if it had
        been filed in or noticed for the court to which it is transferred on the
        date upon which it was actually filed or noticed for the court from
        which it is transferred.

28 U.S.C. § 1631.

        Defendants argue Mr. Young waived any right to have the case transferred

by not timely requesting transfer before the district court. For purposes of this

case, we assume, without deciding, that the mandatory language of Section 1631

requires a court to consider the merits of transfer before dismissing a case for

lack of jurisdiction, and that Mr. Young therefore cannot have waived his right to

a transfer.   See Miller v. Hambrick , 905 F.2d 259, 262 (9th Cir. 1990) (“Although

Miller did not move the district court to transfer the case, we have held that ‘[a]

motion to transfer is unnecessary because of the mandatory cast of section 1631's

instructions.’” (quoting   In re McCauley , 814 F.2d 1350, 1352 (9th Cir. 1987)).



                                           -6-
       Mr. Young argues the word “shall” in Section 1631 mandates transfer in all

cases where a lack of jurisdiction can be cured by transfer. However, this Court

and others have interpreted the phrase “if it is in the interest of justice” to confer

discretion on the trial court in making a decision to transfer an action or to

dismiss without prejudice.     Botefuhr , 309 F.3d at 1274 n.8; see also Phillips v.

Seiter , 173 F.3d 609, 610 (7th Cir. 1999). We therefore review the district court’s

failure to transfer the case under Section 1631 for an abuse of discretion.       See,

e.g. , Paul v. I.N.S. , 348 F.3d 43, 47 (2d Cir. 2003);   cf. Trierweiler v. Machol,

Davis & Michael, P.C. , 90 F.3d 1523, 1543 (10th Cir. 1996).

       Factors considered in deciding whether a transfer is in the interests of

justice include whether the claims would be barred by a statute of limitations if

filed anew in the proper forum,     e.g. Haugh v. Booker , 210 F.3d 1147, 1150 (10th

Cir. 2000) (citing Coleman v. United States , 106 F.3d 339, 341 (10th Cir. 1997)),

whether the claims alleged are likely to have merit,      e.g. Haugh , 210 F.3d at 1150

(citing Phillips , 173 F.3d at 610), and whether the claims were filed in good faith

or if, on the other hand, it was clear at the time of filing that the court lacked the

requisite jurisdiction,   Trierweiler , 90 F.3d at 1544 (“[I]t is not in the interest of

justice to transfer where a plaintiff either realized or should have realized that the

forum in which he or she filed was improper.”).




                                             -7-
       In this case, even if we assume Mr. Young’s complaint will be time-barred

if refiled in Oklahoma, the other factors outweigh this consideration and render

transfer not in the interests of justice.   See Haugh , 210 F.3d at 1150-51 (finding

lack of merit outweighed the fact that claims would be time-barred if not

transferred).

       First, Mr. Young’s complaint is unlikely to have merit.      See id . at 1150

(“[A] court is authorized to consider the consequences of a transfer by taking ‘a

peek at the merits’ to avoid raising false hopes and wasting judicial resources that

would result from transferring a case which is clearly doomed” (quoting        Phillips ,

173 F.3d at 610-11)). Essentially, Mr. Young complains of the results of an

ordinary divorce proceeding and an ordinary contempt proceeding following

failure to pay alimony. It is unlikely that any of Mr. Young’s rights were violated

by either proceeding and even if they were, it seems unlikely that Mr. Young will

be able to show a lack of governmental immunity on the part of the state actors.

Our “peek at the merits” of Mr. Young’s case lead us to believe that to transfer

Mr. Young’s case would raise false hopes and waste judicial resources.

       Second, Mr. Young, though appearing         pro se , must have been aware that all

the parties he attempted to sue had little or no contact with the state of New

Mexico and that Oklahoma would be the proper forum.           See Keaveney v. Larimer ,

242 F.3d 389, 2000 WL 1853994, *2 (10th Cir. Dec. 19, 2000) (“Keaveney’s pro


                                             -8-
se status does not excuse his obligation to comply with the procedural rules,

including jurisdiction . . . . This is not a case in which jurisdiction . . . turned on

the existence of some elusive fact about which Keaveney made an erroneous

guess. Rather, the error here is obvious” (internal citations and quotation marks

omitted)). Mr. Young’s failure to file his complaint in the proper forum cannot

be excused as a good faith technical error, and therefore this second factor does

not militate in favor of transfer.

      Considering these factors in combination, we find transfer would not be in

the interests of justice, and that therefore the district court did not err or abuse its

discretion in ordering dismissal rather than transferring the case to the District of

Oklahoma.

      The judgment of the United States District Court for the District of New

Mexico, dismissing Appellant's case for lack of personal jurisdiction over the

Defendants, is AFFIRMED .

                                                 Entered for the Court,



                                                 Michael W. McConnell
                                                 Circuit Judge




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