Opinion
Civ. No. 00-1560 JP/RLP
September 13, 2001
MEMORANDUM OPINION AND ORDER OF DISMISSAL OF CERTAIN CLAIMS
On March 29, 2001 , Defendants Ronald Angelone, Stanley K. Young, Warden Harvey, C. O. Cochrane, C. O. Necessary, and unnamed correction officers (collectively identified as the Virginia Defendants) filed a motion to dismiss (Doc. No. 29) under, inter alia, Federal Rule of Civil Procedure 12(b)(2).
Virginia Defendants motion to dismiss will be granted for two reasons. First, five months have passed since Virginia Defendants served their motion on Plaintiff. During this time Plaintiff has not responded to Defendants motion. Plaintiffs inaction constitutes consent to grant the motion under D.N.M.L.R.-Civ. 7.5(b).
Second, Plaintiff has the burden of pleading and proving the existence of facts supporting his invocation of the jurisdiction of the court. Yarbrough v. Elmer Bunker Associates,
669 F.2d 614, 616 (10th Cir. 1982). To establish personal jurisdiction over the Virginia Defendants, Plaintiff must demonstrate facts that satisfy both New Mexicos long-arm statute, NMSA 1978, § 38-1-16 (1971), and constitutional requirements of due process. Id. Under Section 38-1-16, a defendant submits himself to the jurisdiction of New Mexicos courts by (1) transacting any business within the state; (2) operating a motor vehicle upon the highways of this state; (3) committing a tortious act within the state; (4) contracting to insure any person, property or risk located within the state at the time of contracting; or (5) living in [a] marital relationship within the state, notwithstanding subsequent departure from the state.
Plaintiff has neither pleaded nor demonstrated that the Virginia Defendants conduct fell within the terms of the long-arm statute of New Mexico. From a constitutional perspective, Plaintiff has not alleged or shown that the Virginia Defendants had sufficient contacts with New Mexico such that they should reasonably anticipate being haled into court here. World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297 (1980). In sum, Plaintiff has failed to meet his burden of pleading or proving the existence of facts that would allow the Court to exercise personal jurisdiction over the Virginia Defendants.
IT IS THEREFORE ORDERED that the motion for dismissal (Doc. No. 29) is GRANTED and Plaintiffs claims against the Virginia Defendants are DISMISSED WITHOUT PREJUDICE.