Good v. Khosrowshahi ( 2008 )


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  •                                                                           FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
    
                                                                        October 15, 2008
                        UNITED STATES COURT OF APPEALS
                                                                      Elisabeth A. Shumaker
                               FOR THE TENTH CIRCUIT                      Clerk of Court
    
    
    
    
        ANDREA GOOD,
    
                   Plaintiff-Appellant,
    
        v.                                                   No. 08-2061
                                                (D.C. No. 1:08-CV-00059-LFG-LAM)
        BIJAN KHOSROWSHAHI,                                   (D. N.M.)
        individually and in his capacity as
        President of Fuji Fire and Marine
        Insurance Company Ltd.; DAVID
        BUNTING, individually and in his
        capacity as attorney for the Rodey
        Law Firm; RODEY LAW FIRM;
        HAKODATE CITY HALL; TOYOMI
        TAKIMOTO, individually and in his
        capacity as attorney for the Asahi
        Koma Law Firm; KENJI INOUE,
        individually and in his capacity as
        attorney for the Asahi Koma Law
        Firm; ASAHI KOMA LAW FIRM;
        NORIO SUGAWARA, individually
        and in his capacity as attorney for
        Fuji Fire and Marine Insurance
        Company, Ltd; HAKODATE BAR
        ASSOCIATION, (Hakodate Bengoshi
        Kai),
    
                   Defendants-Appellees.
    
    
                                ORDER AND JUDGMENT *
    
    *
         After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
                                                                           (continued...)
    Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.
    
    
    
          Andrea Good appeals from several orders leading to the dismissal of this
    
    action asserting federal and state claims for the allegedly improper disclosure of
    
    certain personal information during a prior lawsuit. We affirm.
    
          Ms. Good filed the prior suit against several Japanese citizens and entities,
    
    invoking diversity jurisdiction in the federal district court in New Mexico. Some
    
    of these defendants moved to dismiss on the ground that she, like they, actually
    
    resided in Japan at all relevant times. In support of this motion their counsel,
    
    defendants David Bunting and the Rodey Law Firm here, submitted copies of
    
    Ms. Good’s Japanese alien registration and family registration documents, which
    
    contained ages, birthdays, addresses, and marriage status information for her and
    
    her family. When these materials were posted on the public Pacer docket system,
    
    Ms. Good filed a motion in limine and complained of the disclosure of personal
    
    information, some of which should have been redacted under the court’s privacy
    
    policy (now reflected in Fed. R. Civ. P. 5.2). The district court dismissed the suit
    
    without addressing this motion.
    
    
    *
     (...continued)
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and
    collateral estoppel. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    
                                             -2-
          Ms. Good then filed this action in state court alleging that the registration
    
    documents had been improperly acquired and publicly disclosed without legally
    
    required redaction, resulting in an actionable invasion of privacy. Defendant
    
    Hakodate City Hall, a “foreign state” as defined in 28 U.S.C. § 1603(a), removed
    
    the case to federal court under 28 U.S.C. § 1441(d), and the parties consented to
    
    disposition by a magistrate judge under 28 U.S.C. § 636(c)(1).
    
          There are three groups of defendants: Hakodate City Hall, the government
    
    source for some of the offending material; the Asahi Koma Law Firm, Hakodate
    
    Bar Association, Bijan Khosrowshahi, Toyomi Takimoto, Kenji Inoue, and Norio
    
    Sugawara (“foreign defendants”), who were allegedly involved in or accountable
    
    for acquiring the material; and David Bunting and the Rodey Law Firm, who filed
    
    the material without redaction. The magistrate judge granted dismissal for each
    
    group on a distinct basis: the Foreign Sovereign Immunity Act (FSIA) barred suit
    
    against Hakodate City Hall; there was no personal jurisdiction over the foreign
    
    defendants; and the complaint failed to state a claim against Bunting and the
    
    Rodey Law Firm. Ms. Good challenges the latter two decisions. 1
    
    
    
    1
          She does not address the application of the FSIA to Hakodate City Hall and
    has thus waived the point. See Utah ex rel. Div. of Forestry, Fire & State Lands
    v. United States, 
    528 F.3d 712
    , 724 (10th Cir. 2008); Stein v. Disciplinary Bd.,
    
    520 F.3d 1183
    , 1189 (10th Cir. 2008). In any event, we agree with the magistrate
    judge that Hakodate City Hall’s immunity under the FSIA was not waived when it
    exercised its right under § 1441(d) to remove the case from state to federal court.
    See Rodriguez v. Transnave Inc., 
    8 F.3d 284
    , 288-89 (5th Cir. 1993).
    
                                             -3-
                     Personal Jurisdiction over Foreign Defendants
    
          We review a dismissal for lack of personal jurisdiction de novo, asking
    
    whether the plaintiff made a prima facie showing of facts that, if true, support
    
    jurisdiction over the defendants. Melea, Ltd. v. Jawer SA, 
    511 F.3d 1060
    , 1065
    
    (10th Cir. 2007). We accept the plaintiff’s allegations as true if uncontradicted
    
    by evidence from the defendants, and resolve evidentiary disputes in favor of
    
    jurisdiction. Id. But these favorable principles apply only to well-pled facts;
    
    conclusory assertions in pleadings or other materials will not suffice to establish
    
    jurisdiction. See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 
    514 F.3d 1063
    ,
    
    1070 (10th Cir. 2008).
    
          In diversity and civil rights cases, personal jurisdiction is ultimately a
    
    question of due process when, as here, the forum state has a long-arm statute with
    
    a reach coextensive with the Due Process Clause:
    
                 In determining whether a federal court has personal
          jurisdiction over a defendant, the court must determine (1) whether
          the applicable statute potentially confers jurisdiction by authorizing
          service of process on the defendant and (2) whether the exercise of
          jurisdiction comports with due process. Because 42 U.S.C. § 1983
          does not, by itself, confer nationwide service of process or
          jurisdiction upon federal district courts to adjudicate claims,
          Fed.R.Civ.P. 4(k)(1)(A) refers us to the New Mexico long-arm
          statute, which is coextensive with constitutional limitations imposed
          by the Due Process Clause. See Tercero v. Roman Catholic Diocese,
          
    132 N.M. 312
    , 
    48 P.3d 50
    , 54 (N.M.2002). Thus, if jurisdiction is
          consistent with the Due Process Clause, then New Mexico’s long-arm
          statute authorizes jurisdiction over a nonresident defendant.
    
    
    
    
                                             -4-
    Trujillo v. Willaims, 
    465 F.3d 1210
    , 1217 (10th Cir. 2006) (quotation, citations,
    
    and footnote omitted); see also Melea, 511 F.3d at 1065 (holding to same effect
    
    in diversity case). To satisfy due process, Ms. Good must show that the foreign
    
    defendants had “minimum contacts” with New Mexico sufficient to anticipate
    
    being haled into courts there and, if so, that the exercise of personal jurisdiction
    
    based on such contacts is consistent with “traditional notions of fair play and
    
    substantial justice.” Melea, 511 F.3d at 1065-66 (quotations omitted). Here, as
    
    in Melea, “[w]e need only consider the first of these steps, as we conclude that
    
    [defendants] had insufficient contacts with [New Mexico] to permit the exercise
    
    of jurisdiction over [them] in that state.” Id. at 1066.
    
          There are two ways, one general and one specific, to demonstrate the
    
    requisite minimum contacts. “First, if a defendant has ‘continuous and systematic
    
    general business contacts’ with the forum state, it may be subjected to the general
    
    jurisdiction of the forum state’s courts.” Id. (quoting Helicopteros Nacionales de
    
    Colombia v. Hall, 
    466 U.S. 408
    , 416 (1984)). “Second, even in the absence of
    
    ‘continuous and systematic’ contacts, a state’s courts may exercise specific
    
    jurisdiction over a defendant that ‘purposefully directed’ its activities at the
    
    state’s residents, if the cause of action arises out of those activities.” Id. (quoting
    
    Burger King Corp. v. Rudzewicz, 
    471 U.S. 462
    , 472 (1985)).
    
    
    
    
                                               -5-
          The magistrate judge thoroughly considered the circumstances of each of
    
    the foreign defendants and concluded that minimum contacts for either general or
    
    specific jurisdiction did not exist. See R. Doc. 38 (Amended Memorandum
    
    Opinion and Order Granting Defendants’ Motions to Dismiss for Lack of Personal
    
    Jurisdiction), at 8-24. Ms. Good takes issue with this analysis in only one
    
    particular respect, arguing that the magistrate judge erred by “applying a normal
    
    jurisdiction[al] analysis to this case,” i.e., by “fail[ing] to consider [her allegation
    
    of] conspiracy” in assessing the foreign defendants’ contacts with New Mexico.
    
    Aplt. Opening Br. at 19; see id. at 20 (noting magistrate judge “consider[ed] in
    
    fair detail the jurisdictional analysis,” but arguing he failed to give “consideration
    
    to the jurisdictional arguments behind conspiracy”).
    
          “In order for personal jurisdiction based on a conspiracy theory to exist, the
    
    plaintiff must offer more than ‘bare allegations’ that a conspiracy existed, and
    
    must allege facts that would support a prima facie showing of a conspiracy.”
    
    Melea, 511 F.3d at 1069 (quoting Lolavar v. de Santibanes 
    430 F.3d 221
    , 229
    
    (4th Cir. 2005)). Ms. Good’s pleadings clearly fail in this respect. She claimed
    
    that the foreign defendants were to blame in various ways for the release of her
    
    registration materials through improper means (misrepresentations by defendant
    
    Sugawara), R. Doc. 1, Ex. 1 at 3-4, 6, and that Bunting and the Rodey Law Firm
    
    were to blame for the unredacted manner in which the materials were filed in the
    
    prior case, id. at 4, 6, but nowhere did she allege that either was aware of the
    
                                               -6-
    alleged misconduct of the other—much less that they had a prior conspiratorial
    
    agreement as to such matters. The only factual allegations touching on concerted
    
    action had to do with a common understanding among the foreign defendants
    
    regarding the improper acquisition of the registration materials in Japan, see id. at
    
    8, not between the foreign defendants and Bunting and the Rodey Law Firm
    
    regarding the latters’ unredacted filing of the materials in New Mexico. As to
    
    any connection that could tie the foreign defendants to the alleged wrongful
    
    conduct of Bunting and the Rodey Law Firm in the forum state, we have only the
    
    bare conclusory allegation that “Defendants . . . conspired to violate Good’s civil
    
    rights to due process.” Id. at 7. That is a plainly inadequate basis on which to
    
    extend any personal jurisdiction existing over Bunting and the Rodey Law Firm to
    
    reach the foreign defendants.
    
          As the magistrate judge explained at length, the foreign defendants do not
    
    reside, conduct business, own property, or have personal or professional interests
    
    in New Mexico. Nor does the retention of Bunting and the Rodey Law Firm as
    
    local counsel to defend against the prior suit that Ms. Good unilaterally chose to
    
    bring in New Mexico constitute purposeful contact by defendants with the forum.
    
    Petrik v. Pub. Serv. Mut. Ins. Co., 
    879 F.2d 682
    , 683-84 (9th Cir. 1989); cf. Far
    
    West Capital, Inc. v. Towne, 
    46 F.3d 1071
    , 1076 (10th Cir. 1995) (rejecting
    
    suggestion that retaining counsel to consult on a transaction would establish
    
    minimum contacts with counsel’s home forum). Aside from her unsubstantiated
    
                                             -7-
    conspiracy theory, Ms. Good does not assert any particular error in the magistrate
    
    judge’s jurisdictional analysis and, under the circumstances, we shall not belabor
    
    the matter with further discussion of our own. It is not the province of this court
    
    to advocate on behalf of litigants (counseled or pro se) by attempting to construct
    
    for them potential arguments of either a legal or factual nature. Garrett v. Selby
    
    Connor Maddux & Janer, 
    425 F.3d 836
    , 840 (10th Cir. 2005); SEC v. Thomas,
    
    
    965 F.2d 825
    , 826-27 (10th Cir. 1992).
    
                       Claims against Bunting and Rodey Law Firm
    
          The magistrate judge dismissed the case against Bunting and the Rodey
    
    Law Firm (in this section referred to as “defendants”) for failure to state a claim.
    
    We review that decision de novo, applying the same standard as the magistrate
    
    judge. Anderson v. Suiters, 
    499 F.3d 1228
    , 1232 (10th Cir. 2007). Thus, we
    
    affirm the dismissal if, viewing the well-pleaded factual allegations as true and in
    
    a light most favorable to the plaintiff, the complaint does not contain enough facts
    
    to state a claim to relief that is plausible on its face. Id.
    
          Ms. Good alleged that defendants violated her privacy by filing, without
    
    redaction on a publicly accessible electronic docket, her alien and family
    
    registration materials from Japan. The magistrate judge carefully analyzed the
    
    broadly framed complaint in terms of several possible claims: (1) a professional
    
    negligence claim; (2) a constitutional (civil rights) claim; (3) a cause of action for
    
    violation of the court’s privacy policy, now set out in Rule 5.2; and (4) a common
    
                                               -8-
    law tort claim for invasion of privacy. The magistrate judge properly dismissed
    
    the first three claims for basic legal deficiencies that may be summarized briefly
    
    as follows: (1) under New Mexico law, attorneys owe a professional duty of care
    
    only to their clients and thus cannot be held liable for professional negligence to
    
    an adversary, Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 
    750 P.2d 118
    , 122 (N.M. 1988); (2) defendants were not state actors or acting under color
    
    of state law and thus cannot be liable for a civil rights violation under 42 U.S.C.
    
    § 1983, Beedle v. Wilson, 
    422 F.3d 1059
    , 1073 (10th Cir. 2005) (“The conduct of
    
    an attorney acting in his professional capacity while representing his client does
    
    not constitute action under color of state law for the purposes of § 1983.”
    
    (quotation omitted)); and (3) rules governing procedure in the federal courts do
    
    not give rise to private causes of action, see Living Designs, Inc. v. E.I. DuPont
    
    De Nemours, 
    431 F.3d 353
    , 372 (9th Cir. 2005); Digene Corp. v. Ventana Med.
    
    Sys., Inc., 
    476 F. Supp. 2d 444
    , 452 (D. Del. 2007); Rogers v. Furlow, 729 F.
    
    Supp. 657, 660 (D. Minn. 1989).
    
          The magistrate judge’s dismissal of the privacy tort claim was justified on
    
    several bases. First, the tort concerns the publication of “intimate or private facts
    
    about the plaintiff, such as matters concerning [her] sexual life or health.” Moore
    
    v. Sun Publ’g Corp., 
    881 P.2d 735
    , 743 (N.M. App. 1994) (quotation omitted).
    
    The magistrate judge held that the information at issue here, involving birthdays,
    
    marriages, and addresses, is not “intimate or private,” at least not on the order of
    
                                              -9-
    sexual or personal health matters. Ms. Good has not offered any argument or
    
    legal authority to call that judgment into question. Second, the publication of
    
    facts that have already been publicly disclosed is not actionable, see McNutt v.
    
    New Mexico State Tribune Co., 
    538 P.2d 804
    , 808 (N.M. App. 1975), and the
    
    magistrate judge noted that nearly all of the information at issue here had been
    
    previously disclosed by Ms. Good herself. And, we would add, to the extent she
    
    relies on defendants’ publication of the birthdays of her husband and children,
    
    which she had not previously disclosed, that is not a matter of which she has
    
    standing to complain. See Gruschus v. Curtis Publ’g Co., 
    342 F.2d 775
    , 776
    
    (10th Cir. 1965) (holding, under New Mexico law, that children could not sue for
    
    invasion of father’s privacy because the cause of action does not extend to “one
    
    whose own privacy has not been invaded”). Lastly, New Mexico recognizes a
    
    privilege insulating from suit “any publication made in a court of justice,” which
    
    encompasses court records. Hubbard v. Journal Publ’g Co., 
    368 P.2d 147
    , 148
    
    (N.M. App. 1962) (quotation omitted) (dismissing privacy claim based on
    
    newspaper’s publication of information in court records). For any and all of these
    
    reasons, the magistrate judge properly dismissed Ms. Good’s tort claim against
    
    defendants.
    
          Finally, we note that Ms. Good objects to all of the dismissal orders here on
    
    the ground that opposing counsel did not first inquire whether she would concur
    
    in their motions to dismiss before filing them. A local rule governing general
    
                                            -10-
    motions practice directs movants to seek the concurrence of opposing parties
    
    before filing motions and states that a motion neglecting to recite that this has
    
    been done “may be summarily denied.” D.N.M.LR.7.4(a) (moved to D.N.M.LR
    
    7.1(a) effective September 9, 2008). The magistrate judge expressly declined to
    
    deny the motions on this basis, noting that it was obvious that Ms. Good would
    
    oppose defendants’ motions seeking the dismissal of her case. The Rule clearly
    
    affords the trial court discretion to overlook noncompliance, and we cannot say
    
    the magistrate judge abused that discretion here. See Amundsen v. Jones, 
    533 F.3d 1192
    , 1197 (10th Cir. 2008) (“We review a district court’s application of its
    
    local rules for an abuse of discretion.”).
    
                          Prejudicial Effect of Dismissal Orders
    
          Ms. Good complains that the magistrate judge dismissed her claims against
    
    Bunting and the Rodey Law Firm with prejudice. But that was the appropriate
    
    disposition of those claims, which were dismissed on the merits for legal defects
    
    that could not be cured by amendment. See Brereton v. Bountiful City Corp.,
    
    
    434 F.3d 1213
    , 1219 (10th Cir. 2006) (citing Curley v. Perry, 
    246 F.3d 1278
    ,
    
    1282 (10th Cir. 2001), and Grossman v. Novell, Inc., 
    120 F.3d 1112
    , 1126 (10th
    
    Cir. 1997)). Indeed, her only argument in this respect is a restatement of her
    
    position that she stated a viable claim against these defendants—which, of course,
    
    we have rejected for the reasons explained above.
    
    
    
    
                                                 -11-
          In this vein, we consider it prudent to clarify for Ms. Good that while her
    
    claims against the other defendants failed for jurisdictional reasons and thus were
    
    properly dismissed without prejudice, see Brereton, 434 F.3d at 1218 (reaffirming
    
    this circuit’s “longstanding line of cases requiring that a dismissal for lack of
    
    jurisdiction be without prejudice”), “even a dismissal without prejudice will have
    
    a preclusive effect on the [dispositive jurisdictional] issue in a future action,” id.
    
    at 1218-19 (emphasis added). That is, although the merits of her underlying
    
    claims were not resolved here, the judgment in this case precludes relitigation of
    
    the jurisdictional issues that have defeated her effort to prosecute those claims in
    
    federal court. Id. at 1219.
    
          The judgment of the district court is AFFIRMED.
    
    
                                                          Entered for the Court
    
    
    
                                                          John C. Porfilio
                                                          Circuit Judge
    
    
    
    
                                              -12-