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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

BENJAMIN RADFORD, Plaintiff, v. KAREN STOLLZNOW, Defendant. DEFENDANT KAREN STOLLZNOWS MOTION TO DISMISS Defendant Karen Stollznow (Stollznow), by and through her attorneys, Allen, Shepherd, Lewis & Syra, P.A., pursuant to Fed. R. Civ. P. 12(b)(2) and in the alternative Fed. R. Civ. P. 12(b)(3), respectfully submits this Motion to Dismiss Plaintiff Benjamin Radfords Complaint for lack of personal jurisdiction and in the alternative Motion to Dismiss Plaintiffs Complaint for improper venue, and in support states as follows: I. INTRODUCTION Case No: 1:14-cv-334 SMV/KBM

Plaintiff Benjamin Radford (Radford) filed a Complaint against Stollznow alleging defamation, fraud, and interference with beneficial contractual relations. Radford alleged that Stollznow made defamatory statements about him to Radfords employer and colleagues. See e.g., Complaint, 3, 17. Radford also alleged that Stollznow made fraudulent representations to his employer, and that Radford was ultimately suspended as a result of Stollznows comments. See e.g., id. 1819. Additionally, Radford claimed that Stollznow posted a guest blog on the Scientific American web-site, and that the blog allegedly contained defamatory statements directed at Radford related to sexual harassment, inappropriate sexual advances, and assault. See e.g., id. 3. Stollznow vehemently denies Radfords claims of defamation, fraud, and

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interference with beneficial contractual relations, and further claims that this Court has no jurisdiction over her. There is no dispute that Stollznow is a resident of the State of Colorado. See Complaint, 8; and see Affidavit of Karen Stollznow, attached hereto as Exhibit 1, 3. In fact, Radford does not allege that any of the events giving rise to his Complaint occurred in the State of New Mexico. See generally Complaint. Stollznow has never been a resident of New Mexico, owns no property in New Mexico, and during 2013, when the alleged conduct occurred, Stollznow never entered the State of New Mexico. See Exhibit 1, 37. Radford has simply not articulated sufficient minimum contacts that would allow this Court to exercise personal jurisdiction over Stollznow. In the alternative, venue is improperly laid in this Judicial District pursuant to 28 U.S.C. Section 1391. As this Court does not have personal jurisdiction over Stollznow, and in the alternative, as venue is not properly laid in this Judicial District, Radfords Complaint against Stollznow should be dismissed. II. STANDARD OF REVIEW

A district courts jurisdictional decisions are reviewed de novo. See Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1533 (10th Cir. 1996). When considering a 12(b)(2) motion to dismiss for lack of personal jurisdiction, the Court has wide discretion to consider affidavits and other documents beyond the allegations of the complaint. See Sunwest Silver v. International Connection, 4 F. Supp. 2d 1284, 1285 (D.N.M. 1998). In ascertaining the facts necessary to establish jurisdiction, the district court must accept as true the allegations set forth in the complaint to the extent they are uncontroverted by defendants affidavits. Ten Mile Industrial Park v. Western Plains Service Corp., 810 F.2d 1518, 1524 (10th Cir. 1987). However, only the well pled facts of plaintiffs complaint, as distinguished from mere

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conclusory allegations, must be accepted as true. Id. [T]he court applies the law to the well pleaded facts as set forth in the complaint and affidavits and determines whether the plaintiffs jurisdictional allegations are sufficient. See Sunwest Silver, 4 F. Supp. 2d at 1285. Whether to dismiss an action based on improper venue pursuant to Fed. R. Civ. P. 12(b)(3), is within the district courts sound discretion and reviewed for abuse of discretion only. See Ballesteros v. Ashcroft, 452 F.3d 1153, 1160 (10th Cir. 2006). The district courts determination of where the action may be brought involves an interpretation of the venue statute, and is, therefore, a question of law subject to de novo review. Pierce v. Shorty Smalls, 137 F.3d 1190, 1191 (10th Cir. 1998). III. A. ARGUMENTS AND AUTHORITIES

This Court lacks personal jurisdiction over Stollznow.

To obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment. See Far W. Capital v. Towne, 46 F.3d 1071, 1074 (10th Cir. 1995). Plaintiff has the burden of establishing personal jurisdiction. See Dudnikov v. Chalk & Vermilion Fine Arts, 514 F.3d 1063, 1070 (10th Cir. 2008); Zavala v. El Paso County Hosp. Dist., 2007-NMCA-149, 13, 143 N.M. 36, 172 P.3d 173. As Stollznow was not served in New Mexico, Radford must establish that this Court has jurisdiction over Stollznow. See Zavala, 2007-NMCA-149, at 10. Although New Mexicos long arm statute, in Section 38-1-16 NMSA (1978), enumerates specific acts which may subject a non-resident to personal jurisdiction in the statenone of which Stollznow committedthe rigid requirement of whether a defendant committed one of the enumerated acts has been removed. See Zavala, 2007-NMCA-149, at 10. Thus, if jurisdiction is consistent

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with the due-process clause, then New Mexicos long-arm statute authorizes jurisdiction over a nonresident defendant. Whiting v. Hogan, 855 F. Supp. 2d 1266, 1279 (D.N.M. 2012). In order to satisfy due process, Radford must show that Stollznow had sufficient minimum contacts with New Mexico whereby, through her conduct and connection with New Mexico, Stollznow should reasonably anticipate being haled into court [here]. See World Wide Volkswagen v. Woodson, 444 U.S. 286, 297 (1980); see also Zavala, 2007-NMCA-149, at 10. Even if Radford could meet this initial thresholdwhich he cannotRadford would then have to show that this Courts exercise of personal jurisdiction would not offend traditional notions of fair play and substantial justice. See Helicopteros Nacionales de Columbia S.A. v. Hall, 466 U.S. 408, 414 (1984); see also Zavala, 2007-NMCA-149, at 12. 1. Stollznow does not have sufficient minimum contacts with New Mexico.

For Stollznow to have sufficient minimum contacts with New Mexico, she must have purposefully availed [herself] of the privilege of conducting activities within [New Mexico]. See Hanson v. Denckla, 357 U.S. 235, 253 (1958); Alto Eldorado Pship v. Amrep Corp., 2005NMCA-131, 31, 138 N.M. 607, 124 P.3d 585. New Mexico recognizes that this minimum contact requirement can be addressed in two ways, under either a specific jurisdiction analysis or a general jurisdiction analysis. See Zavala, 2007-NMCA-149, at 12. Radford has failed to allege facts showing Stollznow had the requisite minimum contacts to establish either specific jurisdiction or general jurisdiction. a. Radford has failed to establish specific jurisdiction over Stollznow.

For Radford to establish specific jurisdiction over Stollznow, he must not only show that Stollznow purposefully directed her activities towards New Mexico, but Radford must also show

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that his claim arises out of Stollznows actions that create a substantial connection with New Mexico. See OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998); see also Zavala, 2007-NMCA-149, at 12. Radford must therefore demonstrate a connection between Stollznows contacts with New Mexico and the cause of action in Radfords Complaint. Zavala, 2007-NMCA-149, at 12. Radford alleged in the Complaint that:

[Stollznows] actions that are the subject of this complaint were intentional and malicious, directed toward causing harm to plaintiff in New Mexico, and did cause harm to the plaintiff in this state, where he lives. Complaint, 8. However, as articulated below, jurisdictional argument fails. In all events, the shared aim of purposeful direction doctrine has been said by the Supreme Court to ensure that an out-of-state defendant is not bound to appear to account for merely random, fortuitous, or attenuated contacts with the forum state. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir. 2008) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183, 85 L. Ed. 2d 528 (1985)). In fact, the Tenth Circuit has taken a somewhat more restrictive approach than other Circuits, holding that the forum state itself must be the focal point of the tort, and not merely a known resident of the state. See Dudnikov, 514 F.3d at 1075, n.9. Similarly, posting allegedly defamatory comments or information on an internet site does not, without more, subject the poster to personal jurisdiction wherever the posting could be read (and the subject of the posting may reside). Shrader v. Biddinger, 633 F.3d 1235, 1241 (10th Cir. 2011). Specifically, courts look to whether the defendant directed the message to an audience in the forum state and intended harm to occur primarily in the forum state. Id. Other than Radford being a resident of New Mexico, Radford has not claimed that the audience of the alleged defamatory statements was principally a New

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Mexico audience. As Radford fails to satisfy the purposeful direction prong, this Court does not have specific jurisdiction over Stollznow. Radford also fails to satisfy the second prong of the specific jurisdiction analysis as he has not shown that Stollznows alleged actions create a substantial connection with New Mexico. Radfords Complaint alleged that Stollznow is a resident of Arvada, Colorado. Complaint, at 8; see also Exhibit 1, at 34. Radfords Complaint is premised on allegedly defamatory statements made in 2013. See generally Complaint. However, the only contact Stollznow allegedly had with New Mexico occurred on or around November 14, 2008five years prior to the alleged events giving rise to the Complaint. Id. 3, 14, and 25; see Exhibit 1, at 7. One visit to the State five years prior to the alleged events does not rise to the level of creating a substantial connection with New Mexico. The Court in Shrader noted: [M]erely posting information on the internet does not, in itself, subject the poster to personal jurisdiction wherever that information be accessed. This principle has particular salience for defamation cases: Posting on the internet from [outside the forum state] an allegedly defamatory statement [about a forum resident] . . . does not create the type of substantial connection between [the poster] and [the forum state] necessary to confer specific personal jurisdiction. Id. 1244 (quoting from Johnson v. Arden, 614 F.3d 785, 797 (8th Cir. 2010)). Merely because Radford lives in New Mexico and claims to have suffered harm in New Mexico cannot support jurisdiction on its own. Id. (internal citations omitted). Therefore, this Court does not have specific jurisdiction over Stollznow, and therefore, Stollznows Motion to Dismiss should be granted. b. Radford has failed to establish general jurisdiction over Stollznow.

General jurisdiction is appropriate only if a defendant has continuous and systematic contacts with New Mexico such that the defendant could reasonably foresee being haled into

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court in that state for any matter. Zavala v. El Paso County Hosp. Dist., 2007-NMCA-149, 12, 143 N.M. 36, 172 P.3d 173. The determination of whether Stollznows contacts with New Mexico arise to the level of continuous and systematic is a more stringent minimum contacts test than applied in a specific jurisdiction analysis. See OMI Holdings v. Royal Ins. Co. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998). For this Court to exercise general jurisdiction over Stollznow, her contacts must be so numerous and significant to establish that she has a near domicile relation to New Mexico. See Haas v. A.M. King Indus., 28 F. Supp. 2d 644, 648 (D. Utah 1998); see also KEBD Enters., LLC v. Hider, No. 08-cv-02665-REBCBS, 2009 WL 1504748, *3 (D. Colo. May 26, 2009). Radford has alleged that Stollznow and Radford were professional colleagues and collaborated as authors and presenters at various conventions and were co-hosts of a podcast. See e.g., Complaint, at 14. However, other than the one trip in 2008 to Albuquerque, New Mexico, where Stollznow and Radford appeared on a radio show; Stollznow has not returned to New Mexico. See e.g., Exhibit 1, at 5, 7. The Court in Shrader noted that collaboration with a forum-state author . . . did not support general jurisdiction. 633 F.3d at 1247 (citing Johnson v. Woodcock, 444 F.3d 953, 95556 (8th Cir. 2006)). At all times material to the allegations in the Complaint, Stollznow did not have an office or any property in New Mexico, and she did not conduct any business in New Mexico. See Exhibit 1, at 68. One trip to New Mexico, over six years ago, is insufficient to subject Stollznow to general jurisdiction in New Mexico. Shrader, 633 F.3d at 1247. Therefore, this Court should dismiss Radfords Complaint for lack of personal jurisdiction.

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2.

This Courts exercise of personal jurisdiction over Stollznow would offend traditional notions of fair play and substantial justice.

Even assuming Radford could establish that Stollznow had sufficient minimum contacts with New Mexico, Radford must also show that this Courts exercise of personal jurisdiction comports with traditional notions of fair play and substantial justice. See Whiting, 855 F. Supp. 2d at 1282. The Court makes this fairness determination by balancing the following five factors: (1) the burden on Stollznow; (2) New Mexicos interest in adjudicating the dispute; (3) Radfords interest in obtaining convenient and effective relief; (4) the interstate judicial systems interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several States in furthering fundamental substantive social policies. See id. (citing Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1080 (10th Cir. 2008)). [T]he

reasonableness prong of the due process inquiry evokes a sliding scale: the weaker the plaintiffs showing on minimum contacts, the less a defendant need show in terms of unreasonableness to defeat jurisdiction. Id. (quoting TH Agric. & Nutrition, LLC v. Ace European Group Ltd., 488 F.3d 1282, 1292 (10th Cir. 2007)). First, defending this lawsuit in New Mexico places a significant burden on Stollznow, as she is an individual residing in Colorado with no offices or other property in New Mexico. See Stollznow Affidavit, at 3, 6. Further, other than Radford residing in New Mexico, Radford has not identified any other witnesses or evidence within New Mexico. This will also burden Stollznows ability to fully and fairly defend herself against Radfords claims. Therefore, the first factor weighs against this Courts exercise of jurisdiction over Stollznow. Second, while New Mexico has an interest in providing a forum for its residents to resolve conflicts, the burden to Stollznow far outweighs any interest in exercising jurisdiction in New Mexico. Additionally,

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the third factor does not favor Radford as he is not precluded from seeking fair an effective relief, if his lawsuit was brought in a more convenient jurisdiction for Stollznow. Fourth, the Court should look to the interest of the interstate judicial system in obtaining the most efficient resolution of controversy. Keys to this inquiry are the location of witnesses, where the underlying acts or omissions allegedly occurred, what forums substantive law governs, and whether jurisdiction is necessary to prevent piecemeal litigation. See Benton v. Cameco Corp., 375 F.3d 1070, 1080 (10th Cir. 2004). Other than Mr. Radford, the Complaint does not identify any witnesses that are located in New Mexico. Next, Radfords Complaint does not allege that Stollznows acts or omissions occurred in New Mexico. As it is undisputed that Stollznow is a resident of Colorado, a Colorado and not New Mexico forum would be favored. Further, as outlined infra in Section III(B), Colorado is the proper venue, and it is likely that Colorado law will govern the dispute. See Wood Bros. Homes, Inc. v. Walker Adjustment Bureau, 198 Colo. 444, 447-48, 601 P.2d 1369, 1372 (1979) (Colorado follows the Restatement (Second) most significant relationship test for choice of law issues); In re Air Crash Disaster at Stapleton Int'l Airport, Denver, Colo., on Nov. 15, 1987, 720 F. Supp. 1445, 1453 (D. Colo. 1988) (place of injury is far too fortuitous; therefore, the place of the alleged misconduct should bear the most significant relationship for choice of law purposeswhich would be Colorado and not New Mexico). Therefore, the fourth factor weighs against jurisdiction in New Mexico. Finally, A court should normally refrain from exercising jurisdiction when another state has expressed a substantially stronger sovereignty interest and that states courts will take jurisdiction. Zavala, 2007-NMCA-149, 34 (quoting Cubbage v. Merchant, 744 F.2d 665,671 (9th Cir. 1984)). In light of the choice of law issues present in this case, Colorado has a more significant interest and ability to control behavior by deterrence or punishment, [and] to protect

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defendants from liability than New Mexico. See In re Air Crash Disaster at Stapleton Int'l Airport, Denver, Colo., on Nov. 15, 1987, 720 F. Supp. at 1453 (quoting In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594, 615 (7th Cir. 1981)). Further, as Stollznow is a resident of Colorado, Colorado is both the site of the alleged conduct to which and award of punitive damages could attach . . . [and] thus its relationship to the litigation is most significant. Id. (emphasis added). Overall the five fairness factors weigh against jurisdiction in New Mexico. As this Courts exercise of personal jurisdiction over Stollznow would offend the traditional notions of fair play and substantial justice, this Court should dismiss Radfords Complaint against Stollznow. B. The United States District Court for the District of New Mexico is an improper venue under 28 U.S.C. 1391.

As an alternative reason to dismiss Radfords claims, Radfords Complaint lays venue in an improper judicial district. Under 28 U.S.C. Section 1391(b), venue is proper only in (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action. 28 U.S.C. 1391(b). Radfords Complaint does not satisfy any of the three requirements. Radford has alleged that Stollznow is a resident of Colorado. Complaint, at 8.

Stollznow is the only defendant in the lawsuit. Id. Therefore, New Mexico is an improper venue for the lawsuit. 10

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New Mexico is also an improper venue pursuant to 28 U.S.C. Section 1391(b)(2), as a substantial part of the events or omissions giving rise to his claim allegedly occurred outside of New Mexico, and Radford has not alleged that there is property involved that is situated in New Mexico. See generally Complaint. In fact, Radford has only claimed that Stollznows alleged actions caused him harm in New Mexico. See id. 8. The mere allegation that Radford suffered damages in New Mexico is not enough to satisfy the second venue prong. [T]he damages suffered . . . do not constitute a substantial part of the events giving rise to the claim for venue purposes. See Whiting v. Hogan, 855 F. Supp. 2d 1266, 1286 (D.N.M. 2012); Hanyuan Dong v. Garcia, 553 F. Supp. 2d 962, 965 (N.D. Ill. 2008) (The fact that [the plaintiff] alleges to have suffered from his injuries after returning to Illinois does not constitute a substantial part of the events or omissions giving rise to the claim.). Therefore, this Court is an improper venue under the second venue rule. Pursuant to the third venue rule, the general section of the venue statute applies only if there is no other district in which the action may otherwise be brought. 28 U.S.C. 1391(b)(3). As venue is likely proper in Colorado, this case does not fall within 1391(b)(3)s catch-all provision. Whiting, 855 F. Supp. 2d at 1287. Therefore, the Court should dismiss Radfords Complaint for improper venue. Finally, pursuant to D.N.M.LR-Civ. 7.1, Defendant Stollznow has requested the concurrence of Plaintiff, and Plaintiff opposes this Motion. IV. CONCLUSION

WHEREFORE, Defendant Karen Stollznow respectfully requests the Court grant her Motion to Dismiss as this Court lacks personal jurisdiction over Defendant Karen Stollznow and,

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alternatively, because Plaintiff Benjamin Radfords Complaint is laid in an improper venue pursuant to 28 U.S.C. 1391, and for such other relief as this Court deems just and appropriate.

Electronically Filed, ALLEN, SHEPHERD, LEWIS & SYRA, P.A. /s/ Christopher P. Winters E.W. Shepherd Christopher P. Winters Address: P.O. Box 94750 Albuquerque, NM 87199-4750 Phone #: (505) 341-0110 Attorneys for Defendant Karen Stollznow

I HEREBY CERTIFY that on the 25th day of April, 2014, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:

John W. Boyd, Esq. Freedman, Boyd, Hollander Goldberg, Urias & Ward, P.A. jwb@fbdlaw.com Attorney for Plaintiff Benjamin Radford

/s/ Christopher P. Winters

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