Navarrette Rodriguez v. Ford Motor Co.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ________________
3 Filing Date: December 20, 2018
4 NO. A-1-CA-36402
5 MANUEL EDEL NAVARRETE
6 RODRIGUEZ, Individually and as
7 Personal Representative of the Estate
8 of EDGAR NAVARRETE RODRIGUEZ,
9 Deceased,
10 Plaintiff-Appellee,
11 v.
12 FORD MOTOR COMPANY,
13 Defendant-Appellant,
14 and
15 LUIS A. PONCE,
16 Defendant.
17 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
18 David K. Thomson, District Judge
19 Law Offices of James B. Ragan
20 James B. Ragan
21 Corpus Christi, TX
22 Arrazolo Law, P.C.
23 Gilbert Arrazolo
24 Albuquerque, NM
25 for Appellee
1 Hogan Lovells US LLP
2 Sean Marotta
3 Washington, DC
4 Rodey, Dickason, Sloan, Akin and Robb, P.A.
5 Jeffrey M. Croasdell
6 Albuquerque, NM
7 Snell & Wilmer LLP
8 Todd E. Rinner
9 Albuquerque, NM
10 for Appellant
OPINION
1 VANZI, Chief Judge.
2 {1} In this appeal, we consider whether Ford consented to general personal
3 jurisdiction in New Mexico courts when it registered to do business here. To
4 answer this question, we must determine whether the United States Supreme
5 Court’s decision in Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue
6 Mining & Milling Co., 243 U.S. 93 (1917), and this Court’s decision in Werner v.
7 Wal-Mart Stores, Inc., 1993-NMCA-112, 116 N.M. 229, 861 P.2d 270, remain
8 binding precedent in light of the evolution of general jurisdiction jurisprudence
9 found in International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945), and
10 Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). We recognize the tension
11 between the two lines of cases. Nevertheless, because we conclude that both
12 Pennsylvania Fire and Werner are still binding, we conclude that Ford consented
13 to general jurisdiction in New Mexico.
14 {2} The district court found that New Mexico could exercise specific personal
15 jurisdiction, but not general personal jurisdiction, and therefore denied Ford’s
16 motion to dismiss for lack of personal jurisdiction. Because we conclude to the
17 contrary—that Ford consented to general jurisdiction—we affirm the denial of
18 Ford’s motion to dismiss but for a different reason than relied on by the district
19 court. We do not reach the issue of specific jurisdiction.
1 BACKGROUND
2 {3} “Where, as here, the district court bases its ruling on the parties’ pleadings,
3 attachments, and non-evidentiary hearings, . . . [we] construe th[ose] pleadings and
4 affidavits in the light most favorable to the complainant[.]” Sproul v. Rob &
5 Charlies, Inc., 2013-NMCA-072, ¶ 6, 304 P.3d 18 (internal quotation marks and
6 citation omitted). Edgar Navarrete Rodriguez (Decedent), a New Mexico resident,
7 purchased a 2000 Ford F-250 (the F-250) from a private seller in New Mexico.
8 Decedent later died in a single vehicle accident when the roof structure of the F-
9 250 collapsed after the vehicle rolled over on New Mexico State Road 206.
10 Manuel Edel Navarrete Rodriguez, as personal representative for Decedent’s
11 estate, (Plaintiff) filed this wrongful death action against Ford, claiming that the F-
12 250’s roof structure was defectively designed. In the complaint, Plaintiff claimed
13 that the district court had jurisdiction over Ford “by virtue of its manufacture, and
14 distribution of the vehicle and by virtue of Ford’s overall conduct in conducting
15 business within the state.” He also alleged that “Ford designed, tested, approved,
16 manufactured, marketed, distributed, and sold the subject F-250 and its
17 components for sale in New Mexico and elsewhere throughout the United States.”
18 Finally, Plaintiff alleged that “Ford . . . is a foreign corporation and can be served
19 through its registered agent . . . located . . . [in] New Mexico.”
2
1 {4} Ford filed a motion to dismiss for lack of general or specific personal
2 jurisdiction. While Ford did not contest any of the facts asserted by Plaintiff, Ford
3 argued that the district court did not have specific personal jurisdiction because
4 Plaintiff’s claims did not arise out of any in-state activities, as the F-250 was not
5 designed, manufactured, sold, or serviced by Ford in New Mexico. Although it
6 acknowledged that it “interjected its products into the stream of commerce
7 knowing full well its products would be sold by independent dealers in New
8 Mexico,” Ford argued that its in-state activities did not lead to Plaintiff’s claims
9 because the F-250 was designed in Michigan, assembled in Kentucky, and sold by
10 Ford to an independent Ford dealership in Arizona. Ford also argued that general
11 jurisdiction was lacking because “Ford was not incorporated in New Mexico and
12 does not have its principal place of business here.”
13 {5} Plaintiff did not contest any of Ford’s asserted facts. However, Plaintiff
14 argued that the district court had specific personal jurisdiction due to Ford’s
15 substantial contacts with New Mexico and Ford’s placement of the F-250 “into the
16 stream of commerce under circumstances such that Ford should reasonably
17 anticipate being haled into court in New Mexico to answer claims about the failure
18 of that product in New Mexico.” In support of his argument, Plaintiff provided an
19 affidavit detailing the following connections Ford had with New Mexico: (1) Ford
20 has at least thirteen official Ford dealerships in New Mexico; (2) Ford maintains an
3
1 interactive website where New Mexico consumers can purchase Ford automotive
2 parts, search inventory of Ford vehicles in the state, obtain coupons and discounts,
3 find safety recall information, and apply for credit for vehicle purchases; (3) Ford
4 targets New Mexican consumers through marketing techniques such as sponsoring
5 local professional bull riding championships; and (4) Ford has “in-forum
6 advertising and defense and indemnity contracts with its dealerships” and is a
7 “frequent” litigant in New Mexico.
8 {6} The district court held a non-evidentiary hearing on the motion and
9 concluded that it had specific, but not general, personal jurisdiction over Ford.
10 Ford filed a motion for reconsideration. After another non-evidentiary hearing, the
11 district court denied Ford’s motion for reconsideration. However, the district court
12 certified its order for interlocutory appeal, which we granted. After initial briefing
13 was complete, we requested simultaneous supplemental briefing on the “viability
14 and applicability of Werner” and “whether, under Werner, [Ford] consented to
15 general jurisdiction in New Mexico courts by registering in compliance with
16 Article 17 of the Business Corporation Act [(the Act)], NMSA 1978, §§ 53-11-1 to
17 53-18-12 (1967, as amended through 2003).”
18 DISCUSSION
19 {7} “In reviewing an appeal from an order granting or denying a motion to
20 dismiss for lack of personal jurisdiction, the determination of whether personal
4
1 jurisdiction exists is a question of law, which an appellate court reviews de novo
2 when the relevant facts are undisputed.” CABA Ltd. Liab. Co. v. Mustang Software,
3 Inc., 1999-NMCA-089, ¶ 9, 127 N.M. 556, 984 P.2d 803. As we explain, we
4 conclude that Ford consented to general jurisdiction in New Mexico under Werner.
5 We therefore affirm the district court’s denial of Ford’s motion to dismiss, but for a
6 different reason. See State v. Vargas, 2008-NMSC-019, ¶ 8, 143 N.M. 692, 181
7 P.3d 684 (“Under the right for any reason doctrine, we may affirm the district
8 court’s order on grounds not relied upon by the district court if those grounds do
9 not require us to look beyond the factual allegations that were raised and
10 considered below.” (internal quotation marks and citation omitted)). Given our
11 conclusion, we need not address Ford’s arguments related to specific jurisdiction.
12 Preliminary Matters
13 {8} We begin by addressing whether this Court’s review is limited by
14 preservation principles or the scope of interlocutory appeal. First, to the extent
15 Ford argues that this Court should not address whether Ford consented to general
16 jurisdiction because Plaintiff failed to raise the issue of consent in the district court,
17 we disagree that this fact precludes our review of the issue here. This Court has
18 “broad discretion to decide jurisdictional issues on appeal.” Capco Acquisub, Inc.
19 v. Greka Energy Corp., 2008-NMCA-153, ¶ 35, 145 N.M. 328, 198 P.3d 354.
20 Although the district court did not address specifically whether registration by Ford
5
1 indicated consent to jurisdiction, it found that Ford is registered in New Mexico
2 and made findings, which are undisputed, about Ford’s other activities in New
3 Mexico. Thus, the factual record is adequately developed for our review of this
4 question and remand for a hearing on the legal significance of undisputed facts
5 would be duplicative and wasteful. See id. (considering personal jurisdiction issue
6 in light of evidence produced at trial because remand for a hearing on jurisdiction
7 “would be duplicative—and possibly futile”). Ford points to Chaleunphonh v.
8 Parks & Recreation Division, in which this Court stated that reversing on a ground
9 not raised below is “especially inappropriate when the ground requires a factual
10 predicate and the party who prevailed below had no reason to make a record
11 regarding the factual predicate.” 1996-NMCA-066, ¶ 14, 121 N.M. 801, 918 P.2d
12 717. Here, Ford prevailed in the district court on the issue of general jurisdiction
13 based on minimum contacts, but it did not dispute the factual predicate underlying
14 consent by registration, i.e., that it registered in New Mexico. Moreover, Ford
15 provided a supplemental brief on consent by registration and, therefore, was not
16 blindsided by the issue. Consideration of this issue is therefore not unfair to Ford.
17 {9} Second, in an interlocutory appeal, as here, this Court’s review is “limited to
18 the issues fairly contained in the order[,]” although “we are not confined to the
19 particular questions the district court certified” for appeal. Curry v. Great Nw. Ins.
20 Co., 2014-NMCA-031, ¶ 8, 320 P.3d 482. In other words, an appellate court can
6
1 decide issues other than those certified, so long as they are not “wholly unrelated to
2 the issues identified by the district court” in its order. Armijo v. Wal-Mart Stores,
3 Inc., 2007-NMCA-120, ¶ 19, 142 N.M. 557, 168 P.3d 129. Here, the district court
4 considered and ruled on both general and specific jurisdiction. Because the district
5 court granted Ford’s motion to dismiss as to general jurisdiction and denied Ford’s
6 motion as to specific jurisdiction, Ford appealed only the latter portion of the
7 district court’s order. Nevertheless, the question of general jurisdiction based on
8 registration is not “wholly unrelated” to personal jurisdiction generally or “to the
9 issues identified by the district court” in its order. See id.
10 Jurisdiction
11 {10} “The Due Process Clause of the Fourteenth Amendment limits the power of
12 a state court to render a valid personal judgment against a nonresident defendant.”
13 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). The “limits
14 on the State’s adjudicative authority principally protect the liberty of the
15 nonresident defendant—not the convenience of plaintiffs or third parties.” Walden
16 v. Fiore, 571 U.S. 277, 284 (2014). Thus, a key aspect of all personal jurisdiction
17 analyses is the “fairness” and “reasonableness” of subjecting the defendant to the
18 state’s jurisdiction. World-Wide Volkswagen, 444 U.S. at 292. Jurisdiction is fair
19 and reasonable when “the defendant’s conduct and connection with the forum
20 [s]tate are such that he should reasonably anticipate being haled into court there.”
7
1 Id. at 297. “[R]equiring that individuals have fair warning that a particular activity
2 may subject them to the jurisdiction of a foreign sovereign” provides
3 “predictability to the legal system that allows potential defendants to structure their
4 primary conduct with some minimum assurance as to where that conduct will and
5 will not render them liable to suit[.]” Burger King Corp. v. Rudzewicz, 471 U.S.
6 462, 472 (1985) (alterations, internal quotation marks, and citations omitted).
7 Hence, “[t]he primary focus of our personal jurisdiction inquiry is the defendant’s
8 relationship to the forum [s]tate.” Bristol-Myers Squibb Co. v. Super. Ct. of Cal.,
9 S.F. Cty., ___ U.S. ___, ___, 137 S. Ct. 1773, 1779 (2017); see World-Wide
10 Volkswagen, 444 U.S. at 294 (“[T]he Due Process Clause ‘does not contemplate
11 that a state may make binding a judgment in personam against an individual or
12 corporate defendant with which the state has no contacts, ties, or relations.’ ”
13 (quoting Int’l Shoe, 326 U.S. at 319)).
14 {11} The exercise of general personal jurisdiction is fair when the defendant is “at
15 home” in the state—e.g., it is incorporated or has its principal place of business in
16 the state. Daimler, 571 U.S. at 137. On the other hand, “specific personal
17 jurisdiction” is fair where (1) the defendant has purposefully availed itself of the
18 benefits of the market in the forum state (i.e., has “minimum contacts” with the
19 state); (2) the plaintiff’s claims arise out of or relate to the defendant’s contacts
8
1 with the forum state; and (3) it is not otherwise unfair or unreasonable to exert
2 jurisdiction over the defendant. Burger King, 471 U.S. at 473-76.
3 Consent to Jurisdiction by Registration
4 {12} Personal jurisdiction is also fair when the defendant consents to it. J.
5 McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011) (“A person may
6 submit to a [s]tate’s authority in a number of ways. There is, of course,
7 explicit consent.”). “A variety of legal arrangements have been taken to represent
8 express or implied consent to the personal jurisdiction of the court.” Ins. Corp. of
9 Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982); see id. at
10 704 (collecting cases and stating that “the [United States Supreme] Court has
11 upheld state procedures which find constructive consent to the personal jurisdiction
12 of the state court in the voluntary use of certain state procedures”). In some states,
13 compliance with the state’s statute requiring registration to do business in the state
14 constitutes consent to that state’s jurisdiction. Kevin D. Benish, Pennoyer’s Ghost:
15 Consent, Registration Statutes, and General Jurisdiction After Daimler AG v.
16 Bauman, 90 N.Y.U.L. Rev. 1609, 1647-61 (2015) (providing a survey of state
17 statutes and their effect). The United States Supreme Court recognized consent by
18 registration as a valid avenue for general jurisdiction at least as early as 1917 in
19 Pennsylvania Fire, 243 U.S. at 95. In that case, the plaintiff sued the defendant, an
20 Arizona corporation, in Missouri for claims related to an insurance policy covering
9
1 buildings in Colorado. Id. at 94. The defendant, “in compliance with [a Missouri
2 statute], had filed with the superintendent of the insurance department a power of
3 attorney consenting that service of process upon the superintendent should be
4 deemed personal service upon the company so long as it should have any liabilities
5 outstanding in the state.” Id. The defendant argued that the statute pertained only to
6 “suits upon Missouri contracts, and that if the statute were construed to govern the
7 present case, it encountered the [Fourteenth] Amendment by denying to the
8 defendant due process of law.” Id. at 94-95. Noting that the Missouri Supreme
9 Court had found that the statute was not limited to suits related to Missouri
10 contracts and that it did not deny the defendant due process, the United States
11 Supreme Court agreed that the statute’s “language . . . rationally might be held to
12 [apply to the suit at issue],” and that such a “construction did not deprive the
13 defendant of due process of law.” Id. at 95; see Acorda Therapeutics Inc. v. Mylan
14 Pharm. Inc., 817 F.3d 755, 767-68 (Fed. Cir. 2016) (O’Malley, J., concurring)
15 (discussing Pennsylvania Fire and the history of consent to jurisdiction through
16 registration), cert. denied sub nom. Mylan Pharm. v. Acorda Therapeutics, 137 S.
17 Ct. 625 (2017); Jack B. Harrison, Registration, Fairness, and General Jurisdiction,
18 95 Neb. L. Rev. 477, 510 (2016) (same).
19 {13} Much has changed in the jurisprudence of personal jurisdiction since 1917.
20 However, in the 100-plus years since Pennsylvania Fire was decided, the Supreme
10
1 Court has not expressly overturned it. Acorda Therapeutics, 817 F.3d at 755.
2 Instead, it was clarified in Robert Mitchell Furniture Co. v. Selden Breck
3 Construction Co., 257 U.S. 213, 215-16 (1921), and reaffirmed in Neirbo Co. v.
4 Bethlehem Shipbuilding Corp., 308 U.S. 165, 175 (1939). In spite of this fact,
5 some courts have held that Pennsylvania Fire has been overtaken by more recent
6 pronouncements on jurisdiction, particularly those found in International Shoe and
7 Daimler. See, e.g., Genuine Parts Co. v. Cepec, 137 A.3d 123, 145 n.119 (Del.
8 2016) (collecting cases holding that Daimler negates consent by registration);
9 Tanya J. Monestier, Registration Statutes, General Jurisdiction, and the Fallacy of
10 Consent, 36 Cardozo L. Rev. 1343, 1361 (2015) (discussing critiques of the
11 consent by registration approach in light of case law). However, we agree with
12 those courts holding to the contrary that Pennsylvania Fire and its progeny are still
13 binding precedent. See Brieno v. Paccar, Inc., No. 17-cv-867 SCY/KBM, 2018
14 WL 3675234, at *2 (D.N.M. Aug. 2, 2018), motion for reconsideration denied, 17-
15 cv-00867-SCY/KBM (Nov. 5, 2018); Genuine Parts, 137 A.3d at 148-49 n.130
16 (Vaughn, J., dissenting) (collecting cases holding that consent by registration
17 remains valid after Daimler); Harrison, supra, at 510-12 (discussing consent by
18 registration generally and cases following and departing from Pennsylvania Fire).
19 {14} In International Shoe, the Court held that “due process requires only that in
20 order to subject a defendant to a judgment in personam, if he be not present within
11
1 the territory of the forum, he have certain minimum contacts with it such that the
2 maintenance of the suit does not offend traditional notions of fair play and
3 substantial justice.” 326 U.S. at 316 (internal quotation marks and citation
4 omitted). The Court thus departed from Pennoyer v. Neff, 95 U.S. 714, 714-15
5 (1877), under which jurisdiction of the state court rested on a defendant’s
6 “presence” in the forum. Int’l Shoe, 326 U.S. at 316; Harrison, supra, at 485-88
7 (discussing the effect of International Shoe on Pennoyer). Although International
8 Shoe changed the analysis for jurisdiction, it did so in the context of situations in
9 which there had not been consent. The Court noted that the defendant there “had
10 no agent within the state upon whom service could be made[,]” and also held that a
11 corporation may have sufficient activities in a state to satisfy due process when
12 those activities are “continuous and systematic” and “also give rise to the liabilities
13 sued on, even though no consent to be sued or authorization to an agent to accept
14 service of process has been given.” Int’l Shoe, 326 U.S. at 312, 317 (emphasis
15 added). By specifying that jurisdiction may be proper “even though” there was no
16 consent, the International Shoe Court acknowledged that consent remains a
17 separate and distinct avenue to jurisdiction. See Otsuka Pharm. Co. v. Mylan Inc.,
18 106 F. Supp. 3d 456, 467 (D.N.J. 2015) (stating that “International Shoe itself
19 clearly reflects that the Supreme Court’s jurisdictional determinations related to
20 cases where no consent to be sued or authorization to an agent to accept service of
12
1 process has been given” and that “it cannot be genuinely disputed that consent,
2 whether by registration or otherwise, remains a valid basis for personal jurisdiction
3 following International Shoe” (internal quotation marks and citation omitted)).
4 International Shoe, therefore, did not undermine Pennsylvania Fire’s holding
5 regarding consent by registration.
6 {15} In Daimler, decided in 2014, the Court addressed general jurisdiction where
7 the plaintiffs’ “claims involv[ed] only foreign plaintiffs and conduct occurring
8 entirely abroad.” 571 U.S. at 125. The Court noted that “general and specific
9 jurisdiction have followed markedly different trajectories post-International Shoe.
10 Specific jurisdiction has been cut loose from Pennoyer’s sway, but we have
11 declined to stretch general jurisdiction beyond limits traditionally recognized.”
12 Daimler, 571 U.S. at 132. The Court held that “[w]ith respect to a corporation, the
13 place of incorporation and principal place of business are paradigm bases for
14 general jurisdiction” because “[t]hose affiliations have the virtue of being unique—
15 that is, each ordinarily indicates only one place—as well as easily ascertainable.”
16 Id. at 137 (omission, alteration, internal quotation marks, and citation omitted).
17 Noting that general jurisdiction is not limited to the place of incorporation and
18 principal place of business, the Court nevertheless held that the “exercise of
19 general jurisdiction in every [s]tate in which a corporation engages in a substantial,
20 continuous, and systematic course of business . . . is unacceptably grasping.” Id. at
13
 1 138 (internal quotation marks omitted). It concluded that “the inquiry . . . is not
2 whether a foreign corporation’s in-forum contacts can be said to be in some sense
3 ‘continuous and systematic,’ it is whether that corporation’s ‘affiliations with the
4 [s]tate are so continuous and systematic’ as to render [it] essentially at home in the
5 forum [s]tate.’ ” Id. at 138-39 (quoting Goodyear Dunlop Tires Operations, S.A. v.
6 Brown, 564 U.S. 915, 919 (2011)). Neither the plaintiff nor its subsidiary, were
7 incorporated in California, nor did either have its principal place of business there.
8 Id. at 139. The Court declined to hold that sales by the plaintiff’s subsidiary in
9 California were sufficient for general jurisdiction because such a holding would
10 mean that “every other [s]tate in which [the subsidiary]’s sales are sizable” would
11 also have general jurisdiction. Id. “Such exorbitant exercises of all-purpose
12 jurisdiction would scarcely permit out-of-state defendants ‘to structure their
13 primary conduct with some minimum assurance as to where that conduct will and
14 will not render them liable to suit.’ ” Id. (quoting Burger King, 471 U.S. at 472).
15 The Court emphasized that its holding did not rest on the quantity of in-forum
16 contacts alone, but instead was based on “an appraisal of a corporation’s activities
17 in their entirety, nationwide and worldwide.” Id. at 139 n.20. It concluded, “A
18 corporation that operates in many places can scarcely be deemed at home in all of
19 them. Otherwise, ‘at home’ would be synonymous with ‘doing business’ tests
20 framed before specific jurisdiction evolved in the United States.” Id. In sum, the
14
1 Daimler Court “substantial[ly] curb[ed] the exercise of general jurisdiction” by
2 limiting the types of contacts adequate to satisfy due process. Bristol-Myers Squibb
3 Co., ___ U.S. at ___, 137 S. Ct. at 1784 (Sotomayor, J., dissenting).
4 {16} However, Daimler neither cited Pennsylvania Fire nor addressed its holding.
5 Harrison, supra, at 523 (“[T]he Daimler Court never stated that it was overruling
6 Pennsylvania Fire or cases that came after it, like Neirbo.”). Indeed, the Daimler
7 Court implicitly acknowledged that a defendant might consent to jurisdiction. In
8 discussing the state of the law of general jurisdiction after International Shoe, the
9 Court stated that “[t]he Court’s 1952 decision in Perkins v. Benguet [Consolidated]
10 Mining Co., [342 U.S. 437 (1952)] remains the textbook case of general
11 jurisdiction appropriately exercised over a foreign corporation that has not
12 consented to suit in the forum.” Daimler, 571 U.S. at 129 (emphasis added)
13 (alteration, internal quotation marks, and citation omitted). By citing Perkins as
14 “the textbook case” for situations not involving consent, the Court indicated that its
15 ensuing discussion applying Perkins also presumed the absence of consent. “Thus,
16 Daimler did not impliedly eradicate the distinction between cases involving an
17 express consent to general jurisdiction and those analyzing general jurisdiction in
18 the absence of consent; it actually maintains it.” Acorda Therapeutics, 817 F.3d at
19 769 (O’Malley, J., concurring); accord Perrigo Co. v. Merial Ltd., No. 8:14-CV-
20 403, 2015 WL 1538088, at *7 (D. Neb. Apr. 7, 2015) (“Daimler only speaks to
15
1 whether general jurisdiction can be appropriately exercised over a foreign
2 corporation that has not consented to suit in the forum. It does nothing to affect the
3 long-standing principle that a defendant may consent to personal jurisdiction.”
4 (citations omitted)); Forest Labs., Inc. v. Amneal Pharm. LLC, No. 14-508-LPS,
5 2015 WL 880599, at *13 (D. Del. Feb. 26, 2015) (stating that “in the one instance
6 in which Daimler mentions consent to jurisdiction—in the context of a discussion
7 regarding general jurisdiction—it does so to distinguish the concept of consent
8 from the circumstances relevant to its decision”); Webb-Benjamin, LLC v. Int’l Rug
9 Grp., LLC, 192 A.3d 1133, 1139 (Pa. Super. Ct. 2018) (“Daimler does not
10 eliminate consent as a method of obtaining personal jurisdiction.”). Moreover, the
11 Daimler Court had no occasion to address the impact of consent by registration
12 because the forum state (California) did not construe its registration statute as
13 giving rise to jurisdiction. Acorda Therapeutics, 817 F.3d at 769 (O’Malley, J.,
14 concurring); AM Tr. v. UBS AG, 681 F. App’x 587, 588-89 (9th Cir. 2017)
15 (“California does not require corporations to consent to general personal
16 jurisdiction in that state when they designate an agent for service of process or
17 register to do business.”).
18 {17} In sum, both International Shoe and Daimler recognized that consent
19 presented a distinct avenue for jurisdiction, but neither directly addressed consent
20 by registration given that such a circumstance was not present in the facts of those
16
1 cases. Hence, neither of those cases explicitly overrules the Supreme Court’s
2 earlier holdings that one way in which a corporate defendant may consent to
3 jurisdiction is by registering in the forum state. See Mitchell v. Eli Lilly & Co., 159
4 F. Supp. 3d 967, 977 (E.D. Mo. 2016) (stating that “the Supreme Court’s recent
5 decisions do not sub silentio reverse” cases recognizing consent by registration).
6 {18} Moreover, even if we viewed consent by registration as conflicting with the
7 spirit of Daimler, we see no basis for departure from Pennsylvania Fire and its
8 progeny. The Supreme Court has stated that a lower court should not, “on its own
9 authority . . . take[] the step of renouncing [Supreme court precedent].” Rodriguez
10 de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Instead, “[i]f a
11 precedent of [the Supreme] Court has direct application in a case, yet appears to
12 rest on reasons rejected in some other line of decisions, [courts] should follow the
13 case which directly controls, leaving to th[e Supreme] Court the prerogative of
14 overruling its own decisions.” Id. Similarly, in State Oil Co. v. Khan, the Court
15 observed that the court of appeals was correct in applying a principle laid down in
16 an earlier case, despite its “infirmities, and its increasingly wobbly, moth-eaten
17 foundations,” because “it is this Court’s prerogative alone to overrule one of its
18 precedents.” 522 U.S. 3, 20 (1997) (alteration, internal quotation marks, and
19 citation omitted); accord In re Syngenta AG MIR 162 Corn Litig., No. 14-md-
20 2591-JWL, 2016 WL 2866166, at *3 (D. Kan. May 17, 2016) (“[The court] is not
17
1 prepared to ignore such Supreme Court precedent based on speculation about how
2 the Court might view jurisdiction in contexts other than that discussed in Daimler.”
3 (internal quotation marks omitted)); Novartis Pharm. Corp. v. Mylan Inc., No. 14-
4 777-RGA, No. 14-820 RGA, 2015 WL 1246285, at *3 (D. Del. Mar. 16, 2015)
5 (stating that it is not “appropriate . . . to ‘overrule’ Supreme Court precedent that
6 the Supreme Court has not overruled”); cf. Aguilera v. Palm Harbor Homes, Inc.,
7 2002-NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d 993 (stating that the New Mexico
8 Court of Appeals “remains bound by [New Mexico] Supreme Court precedent”
9 even if this Court harbors reservations about that precedent’s continuing validity).
10 {19} Having concluded that Pennsylvania Fire remains binding precedent, we
11 turn to Ford’s argument that registration statutes such as the Act are
12 unconstitutional because they violate the unconstitutional conditions doctrine or
13 the dormant Commerce Clause. Ford first argues that consent by registration
14 violates the unconstitutional conditions doctrine, which “vindicates the
15 Constitution’s enumerated rights by preventing the government from coercing
16 people into giving them up.” Koontz v. St. Johns River Water Mgmt. Dist., 570
17 U.S. 595, 604 (2013). Ford maintains that the registration statute here “bar[s]
18 companies, as a condition of doing business in New Mexico, from asserting their
19 federal due process rights to resist state-court jurisdiction over matters
20 unconnected to their activities in New Mexico.” For support, Ford relies on
18
1 Southern Pacific Co. v. Denton, 146 U.S. 202, 203 (1892), in which the statute
2 violated the unconstitutional conditions doctrine because it not only “regulated
3 procedure for suit but sought to deny foreign corporations access to the federal
4 courts.” Neirbo, 308 U.S. at 173 (discussing Denton). In Neirbo, the Court
5 distinguished Denton, stating that the statute there presented “an entirely different
6 situation” and went on to affirm that “[a] statute calling for . . . designation [of an
7 agent] is constitutional, and the designation of the agent a ‘voluntary act,’ ” and
8 also that such designation is “actual consent . . . to be sued in the courts” of the
9 state. Id. at 175 (quoting Pa. Fire, 243 U.S. at 96); see Acorda Therapeutics, 817
10 F.3d at 770 n.1 (O’Malley, J., concurring) (stating that “the Supreme Court has
11 upheld the validity of consent-by-registration statutes numerous times since the
12 development of the unconstitutional conditions doctrine”); In re Syngenta, 2016
13 WL 2866166, *3 (discussing Neirbo and rejecting the argument that consent by
14 registration violates the unconstitutional conditions doctrine by impinging on a
15 defendant’s “right to be free from general jurisdiction” unless certain requirements
16 are satisfied).
17 {20} Ford next argues that consent by registration is unconstitutional because it
18 “unduly burdens interstate commerce” and hence violates the dormant Commerce
19 Clause. U.S. Const. art. I, § 8, cl. 3. “The Commerce Clause not only empowers
20 Congress to regulate [c]ommerce among the several [s]tates, but also denies the
19
1 [s]tates the power unjustifiably to discriminate against or burden the interstate flow
2 of articles of commerce[.]” Am. Target Advert., Inc. v. Giani, 199 F.3d 1241, 1254
3 (10th Cir. 2000) (omission, internal quotation marks, and citations omitted). “This
4 implied restraint upon the states is often referred to as the negative or ‘dormant’
5 aspect of the Commerce Clause.” Id. “Where the burden of a state regulation falls
6 on interstate commerce, restricting its flow in a manner not applicable to local
7 business and trade,” Bendix Autolite Corp. v. Midwesco Enters., 486 U.S. 888, 891
8 (1988), the statute or regulation violates the dormant Commerce Clause unless “it
9 serves a ‘legitimate public interest,’ its effects on interstate commerce are only
10 ‘incidental,’ and the burden imposed on interstate commerce is not ‘clearly
11 excessive in relation to the putative local benefits.’ ” Am. Target Advert., 199 F.3d
12 at 1254 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).
13 {21} Some scholars and courts have stated that the dormant Commerce Clause
14 limits general jurisdiction derived from consent by registration to actions in which
15 the plaintiff is a resident of the forum state or suffered injury in the forum state.
16 For instance, in In re Syngenta, the court held that “the Kansas registration statute,
17 as applied . . . to claims by the nonresident plaintiffs, discriminates against
18 interstate commerce in practical effect, and thus is invalid under the [dormant]
19 Commerce Clause.” 2016 WL 2866166, at *5 (emphasis added). This is so because
20 “a state has no legitimate interest in hosting litigation between two out-of-state
20
1 parties that does not arise from either parties’ activities in the state.” Id. at *6. The
2 court acknowledged that “it may be argued that a state has an interest in allowing a
3 corporation to be sued locally on claims arising out of the corporation’s activities
4 there (specific jurisdiction), or in providing a forum for claims by its residents[.]”
5 Id. Because the plaintiffs there had identified no “legitimate state interest” in the
6 nonresidents’ claims against nonresident defendants, however, jurisdiction over the
7 nonresident defendants was an unjustified burden on interstate commerce. Id.; cf.
8 Genuine Parts, 137 A.3d at 128, 143 (holding that a Delaware registration statute
9 was an undue burden as to a defendant incorporated in Georgia where the plaintiffs
10 were residents of Georgia and injured in Florida).
11 {22} A different result was reached in Hegna v. Smitty’s Supply, Inc., No. 16-
12 3613, 2017 WL 2563231 (E.D. Pa. June 13, 2017). There, the defendant argued
13 that “the imposition of general personal jurisdiction over it based on its registration
14 to do business in this Commonwealth violates the dormant Commerce Clause.” Id.
15 at *4. The court rejected this argument, stating that the defendant had “not
16 identified any authority in which a registration statute that imposes general
17 personal jurisdiction over foreign corporations that register to do business in a state
18 has been found to violate the dormant Commerce Clause in a lawsuit brought by a
19 state resident.” Id. at *5 (emphasis added). Because the plaintiff there was a
21
1 Pennsylvania resident, the court concluded that the registration statute at issue did
2 not violate the dormant Commerce Clause as applied. Id.
3 {23} Unlike In re Syngenta and Genuine Parts, and like Hegna, Decedent was a
4 New Mexico resident. Moreover, he suffered injury in this state. New Mexico has
5 an interest in providing a forum for its residents and those injured here. See Zavala
6 v. El Paso Cty. Hosp. Dist., 2007-NMCA-149, ¶ 31, 143 N.M. 36, 172 P.3d 173
7 (stating that “New Mexico certainly has an interest in providing its residents with a
8 forum to allow resolution of conflicts” and that “a forum state has a significant
9 interest in obtaining jurisdiction over a defendant who causes tortious injury within
10 its borders” (internal quotation marks and citation omitted)); Int’l Milling Co. v.
11 Columbia Transp. Co., 292 U.S. 511, 520 (1934) (stating that “[r]esidence [of the
12 plaintiff] . . . is a fact of high significance” in a Commerce Clause analysis); John
13 F. Preis, The Dormant Commerce Clause As A Limit on Personal Jurisdiction, 102
14 Iowa L. Rev. 121, 143 (2016) (observing that “states have a legitimate interest in
15 providing a forum for redress to residents injured in and out of state . . . and
16 nonresidents injured in state”). Thus, assuming without deciding that the Act
17 burdens interstate commerce, we conclude that the burden is justified by New
18 Mexico’s interest in providing access to the courts for residents and those injured
19 in the state. See Preis, supra, at 138, 143 (observing that “jurisdiction-via-
20 registration” laws “have the ‘practical effect’ of discriminating against out-of-state
22
1 companies” but that such “effects will nonetheless be tolerable when the plaintiff is
2 a state resident (whether injured in or out of state) or a non-resident injured in
3 state”).
4 Consent by Registration in New Mexico
5 {24} Consistent with Pennsylvania Fire, then, we turn to whether Ford consented
6 to jurisdiction here by complying with the registration requirements in the Act.
7 Whether consent to jurisdiction is inherent in corporate registration depends on
8 language of the forum state’s registration statute itself or on how a state court has
9 construed it. See Robert Mitchell Furniture Co., 257 U.S. at 215-16 (stating that
10 the “purpose in requiring the appointment of such an agent is primarily to secure
11 local jurisdiction in respect of business transacted within the [s]tate” and that
12 jurisdiction under the statute may be extended to business conducted elsewhere
13 only if the law “expressly or by local construction gives to the appointment [of an
14 agent] a larger scope”); Brieno, 2018 WL 3675234, at *2.
15 {25} This Court construed the Act in Werner. There, the plaintiff, a New Mexico
16 resident, sued the defendant, which was incorporated in Delaware, for injuries
17 suffered in Georgia. 1993-NMCA-112, ¶ 2. This Court held that the defendant had
18 consented to jurisdiction in New Mexico by registering pursuant to the Act. Id. ¶
19 11. In its analysis, the Court construed Sections 53-17-2, -11, and -15 of the Act.
23
1 Werner, 1993-NMCA-112, ¶¶ 10-11. In relevant part, Section 53-17-2 provides
2 that
3 [a] foreign corporation which has received a certificate of authority
4 under the Business Corporation Act shall . . . enjoy the same, but no
5 greater, rights and privileges as a domestic corporation . . . ; and,
6 except as otherwise provided in the Business Corporation Act, is
7 subject to the same duties, restrictions, penalties and liabilities now or
8 hereafter imposed upon a domestic corporation of like character.
9 (Emphases added.) Section 53-17-11 states that
10 [t]he registered agent appointed by a foreign corporation authorized to
11 transact business in this state shall be an agent of the corporation upon
12 whom any process, notice or demand required or permitted by law to
13 be served upon the corporation may be served.
14 Finally, Section 53-17-15(A)(4) provides that, to withdraw its registration,
15 the foreign corporation shall deliver to the commission [secretary of
16 state] an application for withdrawal, which shall set forth . . . a
17 statement that the corporation revokes the authority of its registered
18 agent in this state to accept service of process and consents that
19 service of process in an action, suit or proceeding based upon a cause
20 of action arising in this state during the time the corporation was
21 authorized to transact business in this state may thereafter be made on
22 the corporation by service thereof on the secretary of state[.]
23 (Emphasis added) (first alteration in original).
24 {26} The Werner Court first noted that Section 53-17-11, which provided for
25 service of process on a “registered agent appointed by a foreign corporation,”
26 could be a basis for jurisdiction over a foreign corporation if the Legislature so
27 intended. Werner, 1993-NMCA-112, ¶ 8; see id. (“One of the most solidly
28 established ways of giving such consent is to designate an agent for service of
24
1 process within the State.” (internal quotation marks and citation omitted)). It then
2 found that, because “[S]ection 53-17-2 defines the power of a registered foreign
3 corporation as the same but no greater than that of a domestic corporation[,]” the
4 Legislature intended “to equalize foreign and domestic corporations operating
5 within New Mexico with respect to ‘rights and privileges,’ as well as ‘duties,
6 restrictions, penalties and liabilities,’ ” including being subject to state court
7 jurisdiction. Werner, 1993-NMCA-112, ¶ 10 (quoting Section 53-17-2). Finally, it
8 found that, because Section 53-17-15(A)(4)’s limiting language did not appear in
9 Section 53-17-11, Section 53-17-11 applied “to any claims against a foreign
10 corporation with a registered agent in New Mexico[,]” not just those arising from
11 activities in the state. Werner, 1993-NMCA-112, ¶ 11 (emphasis added). Although
12 the defendant had not argued before this Court that jurisdiction was barred by due
13 process concerns, the Court stated that it “suspect[ed] that [the d]efendant
14 recognize[d] that it has a sufficient presence in New Mexico to satisfy due process
15 concerns.” Id. ¶ 14. However, this Court also cited Knowlton v. Allied Van Lines,
16 Inc., 900 F.2d 1196, 1200 (8th Cir. 1990), for the proposition that “when personal
17 jurisdiction is based on consent, resort to minimum-contacts or due-process
18 analysis is unnecessary[.]” Werner, 1993-NMCA-112, ¶ 14.
19 {27} Werner was decided in 1993. In the twenty-five years since, neither this
20 Court nor the New Mexico Supreme Court has reversed or abrogated it. Hence,
25
1 Werner “remain[s] controlling precedent upon which we rely until overruled or
2 reversed by [our] Supreme Court.” Gulbransen v. Progressive Halcyon Ins. Co.,
3 2010-NMCA-082, ¶ 13, 148 N.M. 585, 241 P.3d 183 (stating that Court of Appeals
4 decisions are binding even when the New Mexico Supreme Court has granted
5 certiorari to review them). Federal district courts in this state have relied on
6 Werner to find jurisdiction. See Brieno, 2018 WL 3675234, at *3 (discussing
7 Werner and holding that a defendant had consented to general jurisdiction by
8 registering in the state); Fireman’s Fund Ins. Co. v. Thyssen Mining Constr. of
9 Can., Ltd., No. 10cv0401 MV/LFG, 2011 WL 13085934, at *2 (D.N.M. July 29,
10 2011) (same), aff’d in part, rev’d in part on other grounds, 703 F.3d 488 (10th Cir.
11 2012).
12 {28} Importantly, the Werner decision gives companies notice that registration
13 under the Act and continued compliance with its reporting requirements, indicates
14 consent to general jurisdiction. Cf. Burger King, 471 U.S. at 472 (stating that the
15 Due Process Clause “requir[es] that individuals have fair warning that a particular
16 activity may subject them to the jurisdiction of a foreign sovereign” (alteration,
17 internal quotation marks, and citation omitted)); Brown v. Lockheed Martin Corp.,
18 814 F.3d 619, 637 (2d Cir. 2016) (discussing due process concerns when, at the
19 time the defendant “registered to transact business in Connecticut in 1995, the
20 statute was neither explicit about the scope of jurisdiction conferred, nor had there
26
1 issued an authoritative state judicial decision construing the statute”1 (emphasis
2 added)); Forest Labs., 2015 WL 880599, at *12 (stating that the defendant had fair
3 notice that registration entailed consent to jurisdiction because a state court had so
4 construed the registration statute in 1988 and, therefore, “when [the defendant] was
5 considering whether to comply with the Delaware registration statute in 2010, it
6 could not have been taken by surprise”); see generally § 53-17-17 (stating that the
7 certificate of authority may be revoked if an annual report is not timely filed).
8 {29} To the extent Ford asks that we overrule Werner because it is “out of step
9 with other Model Business Corporation Act [s]tates,” we decline to do so. See §§
10 53-17-2, -11, -17, compiler’s notes (stating that these sections were “derived from .
11 . . the [American Bar Association] Model Business Corporation Act”). First, a
12 careful review of the cases Ford cites in support of this proposition reveals that
1
In Brown, the Second Circuit Court of Appeals concluded that “in the
absence of a clear legislative statement and a definitive interpretation by the
Connecticut Supreme Court and in light of constitutional concerns, we construe
Connecticut’s registration statute . . . not to require registrant corporations . . . to
submit to the general jurisdiction of Connecticut courts.” Id. at 641 (emphasis
added). Although the Connecticut Appellate Court had construed the Connecticut
statute and stated that compliance with it constituted consent, the Brown court
found this statement to be “less than fully supported” dicta. Id. at 635 n.15. It
therefore went on to construe the statute itself and found that the statute did not
give notice that compliance with it would entail consent to general jurisdiction. Id.
at 637. Hence, Brown is distinguishable on its facts. Moreover, the Brown court
also stated that “a carefully drawn state statute that expressly required consent to
general jurisdiction as a condition on a foreign corporation’s doing business in the
state, at least in cases brought by state residents, might well be constitutional” but
did not reach this question. Id. at 641.
27
1 most of those courts construed their statutes in light of Daimler and held that
2 consent by registration was inconsistent with its holding. See Genuine Parts, 137
3 A.3d at 141 (examining the Delaware registration statute in the context of
4 Daimler); Dutch Run-Mays Draft, LLC v. Wolf Block, LLP, 164 A.3d 435, 446
5 (N.J. Super. Ct. App. Div. 2017) (“In light of Daimler, we reject [an earlier]
6 holding as allowing general jurisdiction solely based on the fiction of implied
7 consent by a foreign corporation’s compliance with New Jersey’s business
8 registration statute.”); Segregated Account of Ambac Assurance Corp. v.
9 Countrywide Home Loans, Inc., 2017 WI 71, ¶ 25, 898 N.W.2d 70 (citing Daimler
10 and stating that it “give[s] preference to prevailing due process standards when
11 interpreting a contemporary statute for the first time”). Unlike these courts, we
12 have concluded that Daimler did not address consent to jurisdiction or overrule
13 Pennsylvania Fire. But see Missouri ex rel. Norfolk S. Ry. Co. v. Dolan, 512
14 S.W.3d 41, 52 (Mo. 2017) (concluding that the plain language of the registration
15 statute does not “provide an independent basis for . . . personal jurisdiction”).
16 {30} Second, while some states have construed their statutes differently, others
17 have reached results similar to Werner. For instance, the Supreme Court of
18 Minnesota, construing its statute based on the Model Business Corporation Act,
19 held that it is “well-established . . . that a state may exact from the nonresident, as a
20 condition of performing some activity in the state, consent to personal jurisdiction”
28
1 and that “Minnesota has done so by requiring the appointment of an agent for
2 service of process as a condition to transacting business in the state.” Rykoff-
3 Sexton, Inc. v. Am. Appraisal Assocs., 469 N.W.2d 88, 90 (Minn. 1991) (citing
4 Minn. Stat. §§ 303.03, .06, .13 (1990)); see also Perrigo, 2015 WL 1538088, at *7
5 (“[I]t is equally clear that designating an agent upon whom process may be served
6 operates, under Nebraska law, as a consent to jurisdiction.”); Bohreer v. Erie Ins.
7 Exch., 165 P.3d 186, 191-94 (Ariz. Ct. App. 2007) (holding that registration
8 constitutes consent to jurisdiction); Allstate Ins. Co. v. Klein, 422 S.E.2d 863, 864-
9 65 (Ga. 1992) (same); Read v. Sonat Offshore Drilling, Inc., 515 So. 2d 1229,
10 1230-31 (Miss. 1987) (same); Green Mountain Coll. v. Levine, 139 A.2d 822, 824-
11 25 (Vt. 1958) (same); cf. Allstate Ins. Co. v. Electrolux Home Prods., No. 5:18-cv-
12 00699, 2018 WL 3707377, at *5 (E.D. Pa. Aug. 3, 2018), (applying Pennsylvania’s
13 registration statute); Kearns v. N.Y. Cmty. Bank, 400 P.3d 182, at *5 (Kan. Ct.
14 Ohio App. 2017) (“When a corporation applies to do business in Kansas, it consents to
15 personal jurisdiction. Consenting to jurisdiction in Kansas by applying to do
16 business in the state does not violate the requirements of due process.”); Davenport
17 v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 679, 684 (Tenn. 1988) (holding
18 that “the consent theory as a basis of in personam jurisdiction over foreign
19 corporations” was recognized in the state and not limited by an 1887 statute
20 restricting jurisdiction over foreign corporations to transactions or activities
29
1 occurring within the state). Moreover, contrary to Ford’s suggestion that Werner is
2 an outlier, “[m]ost states . . . have not yet clarified the jurisdictional consequences
3 of their registration statutes.” Benish, supra, at 1647; see Model Business
4 Corporation Act Annotated §§ 15.05, 15.10, 15.31 (Am. Bar Ass’n 2013) (listing
5 states that have adopted relevant portions of the Model Business Corporation Act).
6 Hence, although we agree that “[o]ur interpretation of [a model act] should
7 effectuate the purpose of uniformity with other states that have likewise adopted
8 the . . . [a]ct,” there appears to be little uniformity on this issue. See Corum v.
9 Roswell Senior Living, LLC, 2010-NMCA-105, ¶ 5, 149 N.M. 287, 248 P.3d 329
10 (citing NMSA 1978, § 12-2A-18(B) (1997)). Given this context, Ford’s argument
11 is unavailing.
12 Ford Consented to General Jurisdiction by Complying With the Act
13 {31} Here, the district court found, and Ford conceded, that Ford is registered in
14 New Mexico as required by Section 53-17-11. Hence, Ford consented to
15 jurisdiction in New Mexico and was on notice that it should “anticipate being haled
16 into court” in New Mexico. See World-Wide Volkswagen, 444 U.S. at 297; see also
17 Forest Labs., 2015 WL 880599, at *12 (holding that the defendant had fair notice
18 where a state court had construed the statute twenty-two years prior to the
19 defendant’s registration); cf. Bane v. Netlink, Inc., 925 F.2d 637, 641 (3d Cir.
20 1991) (stating that “[t]he [registration] statute . . . gave [the defendant] notice that
30
1 [it] was subject to personal jurisdiction in Pennsylvania and thus it should have
2 been reasonably able to anticipate being haled into court in Pennsylvania” (internal
3 quotation marks and citation omitted)).
4 CONCLUSION
5 {32} We recognize that courts differ on the breadth and impact of Daimler. When
6 squarely presented with the issue, the United States Supreme Court may hold that
7 registration pursuant to a state statute, does not, by itself, indicate consent to
8 general jurisdiction that is consistent with due process. But we will not divest New
9 Mexico courts of jurisdiction in anticipation of a holding that may or may not
10 manifest, especially when there is binding precedent directly on point. Hence, we
11 decline to depart from Pennsylvania Fire and Werner. Here, Ford had notice
12 through Werner that registration and compliance with the Act would subject it to
13 the jurisdiction of New Mexico courts. In addition, the accident giving rise to the
14 present suit occurred in New Mexico to a New Mexico resident. Hence, New
15 Mexico has a substantial interest in adjudicating the suit. See Zavala, 2007-
16 NMCA-149, ¶ 31. We therefore conclude that Ford consented to general
17 jurisdiction in New Mexico courts by registering to do business here and
18 appointing an agent for service of process under the Act. The district court’s denial
19 of Ford’s motion to dismiss for lack of jurisdiction is affirmed.
20 {33} IT IS SO ORDERED.
31
1 ______________________________
2 LINDA M. VANZI, Chief Judge
3 WE CONCUR:
4 _________________________________
5 J. MILES HANISEE, Judge
6 _________________________________
7 STEPHEN G. FRENCH, Judge Pro Tem
32