SPERIDIAN TECHNOLOGIES, LLC V. AMSOL, INC.
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SPERIDIAN TECHNOLOGIES, LLC,
a/k/a Karma Consulting Services, LLC,
Plaintiff-Appellant,
v.
AMSOL, INC., a Wyoming Corporation and
SHAILENDER KOLIPAKA, an individual,
Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Nan
G. Nash, District Judge
Sutin, Thayer & Browne, P.C., Susan
G. Chappell, Timothy J. Atler, Albuquerque, NM, for Appellants
AMSOL, Inc., Pro Se, Newark, DE,
Shailender Kolipaka, Pro Se, Exton, PA, Appellees
J. MILES HANISEE, Judge. WE CONCUR:
RODERICK T. KENNEDY, Chief Judge, TIMOTHY L. GARCIA, Judge
{1} Plaintiff Speridian
Technologies, LLC (Speridian) brought suit against Defendants Shailender
Kolipaka (Kolipaka) and his employer Amsol, Inc. (Amsol) for breach of
contract, intentional interference with contractual relations, and defamation.
Amsol did not challenge New Mexico’s exercise of jurisdiction; however,
Kolipaka filed a motion to dismiss the complaint for lack of personal
jurisdiction pursuant to Rule
1-012(B)(2) NMRA. Kolipaka asserted that he
lacked the minimum contacts necessary for the state of New Mexico to exercise
personal jurisdiction over him. Based on the parties’ pleadings and affidavits,
the district court agreed with Kolipaka and granted his motion.
{2} On appeal,
Speridian argues that the district court erred in granting the motion to
dismiss because Kolipaka established sufficient minimum contacts to support
personal jurisdiction. Further, Speridian asserts that New Mexico jurisdiction
is proper because Kolipaka could reasonably anticipate being sued in New Mexico
based on his actions in this case, and therefore, New Mexico’s assertion of
jurisdiction over Kolipaka would not offend traditional notions of fair play
and substantial justice. Neither Amsol nor Kolipaka submitted a brief to this
Court for the purposes of this appeal. Accordingly, the argument on appeal is
confined to Speridian’s brief-in-chief.
See Rule
12-312(B) NMRA;
Mannick
v. Wakeland,
2005-NMCA-098, ¶ 39,
138 N.M. 113,
117 P.3d 919 (noting that
“an appellee does not even have to file a brief, and the appellate court will
review the case in accordance with the same favorable view of the proceedings
below”). Based on our review of the issue presented and the district court
record, we conclude that Kolipaka’s communications with Speridian employees and
clients and his independent contract work on a Speridian project based in
Pennsylvania were insufficient to establish a basis for personal jurisdiction.
Thus, we affirm the district court’s ruling.
{3} Speridian is an
information technology company incorporated in Delaware, with its principal
place of business in New Mexico. On certain projects, Speridian uses contract workers
to provide services for their clients in certain fields of expertise where
Speridian employees may lack the requisite training or experience. Speridian
contracted with Amsol, a company incorporated in Wyoming, creating a Master
Contractor Agreement (MCA) for this purpose. A Pennsylvania corporation then
retained Speridian to provide it with services related to its customer
relations management. Pursuant to the MCA, Amsol designated its employee,
Kolipaka, to provide consultation services to Speridian’s Pennsylvania based
client. Despite never being directly employed by Speridian, Kolipaka was
assigned an email address on the Speridian server that he used during the
project to communicate with Speridian employees for “Speridian work-related
issues and concerning his performance of Speridian’s work.” Kolipaka performed
all work on the project in the state of Pennsylvania. He was a resident of
Pennsylvania and never visited New Mexico.
{4} In its civil
complaint, Speridian alleged that after beginning work on the project,
“Kolipaka sent a rude, unprofessional[,] and unproductive email to Speridian’s
client[.]” In response to the incident, Kolipaka and the on-site Speridian
project manager agreed that any future emails that Kolipaka wished to send
would first need to be submitted to and approved by the project manager.
Speridian then claimed that after a series of “unauthorized, rude, demeaning,
unprofessional, and unproductive emails” to the Pennsylvania based client,
Kolipaka sent a subsequent email to Speridian and the client, making false
accusations. As a result of Kolipaka’s conduct, Speridian alleged that the
client was seeking to discontinue its contractual relations with Speridian, and
Speridian was forced to hire a replacement for Kolipaka at its own expense.
Lastly, Speridian asserted that Kolipaka’s “defamatory statements ...caused
actual injury to [its] business and reputation.
{5} Whether the
district court has jurisdiction over a non-resident party to a lawsuit is a
question of law that we review de novo.
See Santa Fe Techs.,
Inc. v.
Argus Networks, Inc.,
2002-NMCA-030, ¶ 12,
131 N.M. 772,
42 P.3d 1221. When
the district court issues a ruling, without an evidentiary hearing, based
solely on the pleadings and affidavits, we review those documents “in the light
most favorable to the party asserting jurisdiction.”
Id. Thus, “the
party asserting jurisdiction need only make a prima facie showing that personal
jurisdiction exists.”
Id. (internal quotation marks and citation
omitted).
{6} In the past, in
order to establish personal jurisdiction over a non-resident defendant through
the long-arm statute, NMSA 1978, §
38-1-16 (1971), the party asserting
jurisdiction was first required to show that the non-resident defendant
committed one of the enumerated acts contained in the long-arm statute.
See
Zavala v. El Paso Cnty. Hosp. Dist.,
2007-NMCA-149, ¶ 10,
143 N.M. 36,
172
P.3d 173;
Telephonic, Inc. v. Rosenblum,
1975-NMSC-067, ¶ 4,
88 N.M.
532,
543 P.2d 825. However, we no longer adhere to such a technical statutory
determination.
See Zavala, 2007-NMCA-149, ¶ 10
. Instead, we now
focus our inquiry on whether the collectively considered contacts alleged by
the party asserting jurisdiction supply the requisite level of connections with
New Mexico to satisfy due process.
See id.
{7} “Due process
requires that [a non-resident] 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.”
Santa Fe Techs.,
Inc.,
2002-NMCA-030, ¶ 16 (internal quotation marks and citation omitted). “A
defendant will be found to have sufficient minimum contacts to satisfy due
process where the defendant has a connection with the forum state and has acted
in the state in such a manner that the defendant should reasonably anticipate
being haled into court there.”
DeVenzeio v. Rucker,
Clarkson &
McCashin,
1996-NMCA-064, ¶ 9,
121 N.M. 807,
918 P.2d 723 (internal
quotation marks and citation omitted). “There must be some act by which the
defendant purposefully avail[ed himself] of the privilege of conducting
activities [in New Mexico,] thus invoking the benefits and protections of its
laws[.]”
Santa Fe Techs.,
Inc.,
2002-NMCA-030, ¶ 16 (internal
quotation marks and citation omitted). In determining whether a defendant has
engaged in “purposeful availment,” we examine whether the defendant
purposefully initiated any activity within the state and whether the actions of
the defendant were directed toward New Mexico.
See Zavala,
2007-NMCA-149,
¶ 11 (internal quotation marks and citation omitted). Accordingly, “personal
jurisdiction cannot be based on random, isolated, or fortuitous contacts[]”
with the state.
Santa Fe Techs., Inc.,
2002-NMCA-030, ¶ 17 (internal
quotation marks and citation omitted.
{8} Speridian asserts
the following points regarding Kolipaka’s activities in New Mexico: (1)
although he was not employed by Speridian, Kolipaka worked as part of the
Speridian team and was integrated into its business model; (2) he was assigned
an email account on the Speridian server; (3) he used that email account to
communicate daily with Speridian employees; and (4) he knowingly and
intentionally engaged in conduct that would harm Speridian in New Mexico.
Speridian contends that these activities established minimum contacts with New
Mexico sufficient for personal jurisdiction because Kolipaka purposefully
established contact with New Mexico and purposefully acted in a way that was
intended to harm Speridian in New Mexico. Further, Speridian alleges that these
contacts with New Mexico gave rise to the cause of action and were not
isolated, random, or fortuitous.
{9} At the outset,
assuming that Speridian is able to prove that Kolipaka engaged in tortious
conduct that harmed Speridian in New Mexico, we agree that the tort was
committed here in New Mexico. Our Supreme Court has previously recognized the
“place-of-the-wrong” rule, stating that for the purposes of personal
jurisdiction, a tort “can occur in New Mexico when the actual harmful act
originates outside the state, but the injury itself occurs inside New Mexico.”
Id.
¶ 15 (internal quotation marks and citation omitted). However, this is not
the deciding factor in determining whether New Mexico may exercise personal
jurisdiction over a non-resident defendant.
See M.R. v. SereniCare Funeral
Home, L.L.C.,
2013-NMCA-022, ¶ 12,
296 P.3d 492. The essential
determination remains whether Kolipaka established minimum contacts with New
Mexico such that due process is satisfied.
See id. We conclude that
Kolipaka lacked the minimum contacts necessary to establish personal
jurisdiction in New Mexico in a manner that comports with due process under our
caselaw.
{10} Speridian alleges
that Kolipaka’s conduct in the context of his work for the Pennsylvania project
was “purposefully directed toward residents of New Mexico[,]” thereby creating
sufficient minimum contacts with the state to establish personal jurisdiction
in New Mexico. Although, in the course of his work on Speridian’s Pennsylvania
based project, Kolipaka communicated with Speridian personnel via Speridian’s
email server, we have repeatedly recognized that the use of communications is
typically insufficient to establish the “‘purposeful availment’ prong of a
minimum-contacts analysis.”
DeVenzeio,
1996-NMCA-064, ¶ 11;
see
Sanchez v. Church of Scientology,
1993-NMSC-034, ¶ 15,
115 N.M. 660,
857
P.2d 771. Further, New Mexico caselaw indicates that in cases involving the
provision of personal services by a non-resident defendant, the “focus must be
on the place where the services are rendered, since this is the place of the
receiver’s need.”
SereniCare,
2013-NMCA-022, ¶ 18 (alteration, internal
quotation marks, and citation omitted).
{11} Here, Kolipaka’s
performance of personal services were provided solely to a single client in
Pennsylvania, and his contacts with New Mexico were wholly limited to the
emails that he exchanged within the Speridian server “regarding Speridian
work-related issues and concerning his performance of Speridian’s work.”
Speridian provides no indication that Kolipaka ever solicited work from
Speridian or otherwise reached into the state in any other way. Under these
circumstances, Kolipaka’s actions that were directed toward New Mexico were
strictly administrative communications, non-forum directed, and merely
ancillary to his primary function in working on the Pennsylvania project.
See
DeVenzeio,
1996-NMCA-064, ¶ 13. Thus, Kolipaka’s actions do not rise to
the level of minimum contacts such that he purposefully availed himself of the
benefits and protections of New Mexico law.
See id. ¶ 16 (determining
that where the non-resident defendant’s only contacts with New Mexico were
communications related to the performance of services outside of New Mexico,
the defendant did not purposefully avail himself of opportunities in New
Mexico);
SereniCare,
2013-NMCA-022, ¶ 18 (holding that the rendering of
personal services, where the defendant did not reach into the forum state to attract
business, did not amount to purposeful availment sufficient to satisfy due
process).
{12} Even instances where
New Mexico courts have found personal jurisdiction over a non-resident
defendant are factually distinguishable. Where New Mexico courts have
previously found that an exercise of jurisdiction over a non-resident defendant
was appropriate, the non-resident defendant reached out into New Mexico in
order to derive some benefit from the state. For example, in
Santa Fe Techs.,
the non-resident defendant corporation and its president reached out and
initiated contact with the plaintiff, a New Mexico based corporation.
2002-NMCA-030, ¶ 23. This contact ultimately resulted in the intermingling of
funds between the two companies, payment to a defendant from the plaintiff’s
payroll, loan extensions, and plans for a future merger.
Id. ¶ 24. The
court noted that this conduct indicated “an intent [by the defendants] to do
business themselves in New Mexico and with a New Mexico company.”
Id. Consequently,
these contacts indicated purposeful availment on the part of the defendants
sufficient to establish minimum contacts.
Id. ¶ 29. Thus, in order to
find that the non-resident defendant established minimum contacts, New Mexico
courts look for activities where the defendant purposefully engaged in contact
with the state in order to derive a benefit from those contacts.
See Kathrein
v. Parkview Meadows,
Inc. 1984-NMSC-117, ¶¶ 2, 8,
102 N.M. 75,
691
P.2d 462 (holding that the non-resident defendant could have foreseen being
subjected to New Mexico jurisdiction where the defendant initiated contact in
the state through the advertisement of its business in the yellow pages, in
contacting an organization in the state to solicit business, and in inviting a
New Mexico resident to an event at its out-of-state facility);
Winward v.
Holly Creek Mills, Inc.,
1972-NMSC-009, ¶ 5, 83 N.M 469,
493 P.2d 954
(holding that the non-resident defendant established minimum contacts with New
Mexico when it used the plaintiff to solicit business, advertise, and deliver
orders in the state and when it paid the plaintiff’s wages and commissions in
New Mexico). The level of contacts established by our prior exercise of
personal jurisdiction over non-resident defendants is simply not present in the
circumstances of this case. Here, Kolipaka did not have minimum contacts
sufficient to justify the exercise of jurisdiction in New Mexico.
{13} To the extent that
Speridian asserts that New Mexico has personal jurisdiction because Kolipaka
established minimum contacts in purposefully directing an intended harm toward
New Mexico residents, our law in New Mexico does not provide for such a
jurisdictional basis. Although “[i]t may have been foreseeable to [Kolipaka]
that tortious acts committed” in relation to his work on the Pennsylvania
project would have economic consequences to Speridian in New Mexico, this is
not sufficient to justify the exercise of personal jurisdiction where Kolipaka
did not purposefully avail himself of the benefits and protections of New
Mexico laws.
DeVenzeio,
1996-NMCA-064, ¶ 18.
See Santa Fe Techs.,
Inc.,
2002-NMCA-030, ¶ 19 (“An intentional tort without minimum contacts
does not comport with due process.”) Speridian’s injury occurred when Kolipaka
dispatched emails in Pennsylvania to Speridian’s Pennsylvania based client.
Thus, any inappropriate or tortious conduct by Kolipaka that resulted in harm
to Speridian occurred solely in Pennsylvania. As Speridian concedes, as a
result of Kolipaka’s actions, Speridian’s relationship was damaged with its
Pennsylvania client, and it suffered economic loss resulting solely from the
Pennsylvania project. Despite the nature of the intentional tort alleged,
Speridian’s damages are insufficient to establish minimum contacts with New
Mexico.
See DeVenzeio,
1996-NMCA-064, ¶¶ 20-21 (concluding that it would
offend traditional notions of fair play and substantial justice to allow New
Mexico to exercise personal jurisdiction over a non-resident defendant that
provided exclusively out-of-state legal services to New Mexico Plaintiffs and
whose only contacts with New Mexico were attorney-client communications with
Plaintiffs). Accordingly, the State of New Mexico has no interest in this
litigation except to see that its own residents are afforded justice, and we
have no reason to believe that Speridian would be unable to seek remediation of
its damages in a Pennsylvania court.
{14} Thus, we conclude
that Kolipaka did not establish minimum contacts with New Mexico sufficient to
satisfy due process such that he purposefully availed himself of the benefits
and protections of New Mexico law and could reasonably foresee being haled into
a New Mexico court. However, in the event that we affirmed the district court
in this regard, Speridian asks us, in the alternative, to adopt the analysis
set forth in
Calder v. Jones, 465 U.S. 783 (1984). We decline to do so.
Calder
is distinct from the present case in two respects. First, purposeful availment
was widely apparent in the
Calder case.
See SereniCare,
2013-NMCA-022,
¶ 16. In
Calder, the defendant newspaper company purposefully availed
itself of selling approximately 600,000 copies of its newspaper per week in the
forum state, a due process element that we have concluded is lacking in this
case. 465 U.S. at 785. Second, the
Calder court employs a basis for
jurisdiction distinct from that recognized in New Mexico: jurisdiction premised
upon intentional conduct calculated to injure a member of the forum state. This
Court has already declined to accept the
Calder analysis where minimum
contacts were lacking, despite the purposeful nature of the intentional tort.
See
Santa Fe Techs., Inc.,
2002-NMCA-030, ¶ 19 (recognizing that personal
jurisdiction premised solely upon the commission of a tort does not comport
with due process). Because we likewise determine that the requisite minimum
contacts to satisfy due process were lacking herein, we decline to apply the
Calder
analysis in this case as well.
{15} For the above stated
reasons, we affirm the ruling of the district court.
RODERICK T. KENNEDY, Chief Judge