Mata v. Cade, No. CV 2:21-217 JCH/GJF, 2022 WL 1452898 (D. N.M. May 9, 2022)
Successfully moved for reconsideration of denial of motion to remand on behalf of a client who was seriously injured by a commercial motor vehicle in Lea County, New Mexico. On reconsideration, the district court agreed that federal diversity jurisdiction requires diversity to exist at both the time an action is filed in state court and the time it is removed to federal court. Because the parties were non-diverse at the time of removal, remand to state court was required.
Rosalind Bienvenu, Partner
Schmidt v. Int’l Playthings LLC, 536 F.Supp.3d 856 (D. N.M. 2021)
In products liability case arising out of the choking death of a two-year-old child who died from choking on a Calico Critters toy, successfully defeated partial summary judgment filed by toy manufacturer, Epoch Everlasting Play, LLC and instead finding Epoch negligent per se because the toy, which has small parts that present a choking hazard and is marketed to children under three years age, violated Consumer Product Safety Commission Regulations and constituted a “banned hazardous substance.”
Justin R. Kaufman, Partner, Rosalind Bienvenu, Partner
Lopez/Romero v. Ford Motor Co., D-101-cv-2019-03306 (N.M. Dist. Ct. June 26, 2020)
Working with trial counsel The Tracy Firm and Williams Injury Law on behalf of a minor client who was seriously injured in a rollover, DP&S defeated Defendant Ford Motor Company’s motion to dismiss on personal jurisdiction grounds. As it had in past cases, the Court rejected Ford’s arguments that its contacts in New Mexico were insufficient to confer specific jurisdiction, and that its registered agent in New Mexico did not equate to consent jurisdiction.
Justin R. Kaufman, Partner, Rosalind Bienvenu, Partner
Hurd v. Novartis Pharmaceuticals Corp., No. 20-CV-262 JAP/GBW (D. N.M. June 12, 2020)
Successfully defeated motion to dismiss filed by Defendant Novartis Pharmaceuticals Corp. in a case alleging that Novartis hid serious side effects of its blood cancer drug Tasigna, finding that the plaintiff was not required to preemptively refute Novartis’ affirmative defenses by alleging the exact date he was diagnosed with the drug's side effects.
Justin R. Kaufman, Partner, Rosalind Bienvenu, Partner
Aquifer Science, LLC v. Verhines, et al., D-202-cv-2014-07209 (N.M. Dist. Ct. Jan. 27, 2020)
Working with trial counsel Paul Hultin and the New Mexico Environmental Law Center, who had previously secured an important ground water victory after a 2-week bench trial on behalf of the San Pedro Creek Homeowners’’ Association and other homeowners, DP&S prevailed on a bill of costs in the amount of $379,854.05, plus post-judgment interest. The cost bill was opposed by Aquifer Science and the Office of State Engineer (“OSE”), and the Court rejected arguments made by both parties in favor of DP&S’ clients. The Court further denied motions to reconsider filed by both Aquifer Science and the OSE following the ruling. DP&S continues to serve as lead appellate counsel in this case pending in the New Mexico Court of Appeals.
Caren I. Friedman, Partner, Justin R. Kaufman, Partner, Rosalind Bienvenu, Partner
Chicas v. Bayerische Motoren Werke AG et al., D-101-cv-2018-03023 (N.M. Dist. Ct. Dec. 26, 2019)
DP&S assisted trial counsel Hossley & Embry in prevailing on a motion to dismiss filed by Defendant Bayerische Motoren Werke, AG (“BMW AG”). BMW AG argued that it could not be subject to jurisdiction in New Mexico as a German entity lacking substantial contacts with the United States and New Mexico in particular. After two hearings and two rounds of legal briefs, the Court held that BMW AG was subject to specific personal jurisdiction in New Mexico’s courts and denied BMW AG’s motion to dismiss.
Justin R. Kaufman, Partner, Rosalind Bienvenu, Partner
Jennifer Caudillo, et. al., v. Clariant Corporation, et. al. (N.M. Dist. Ct. Nov. 27, 2019)
DP&S worked with trial counsel Sico Hoelscher Harris LLP on legal research, briefing, and strategy on various pre-trial motions including motions to exclude plaintiffs’ experts, a motion for spoliation sanctions against defendants, and a motion to exclude a defense expert. After securing favorable rulings, the case settled before trial for an undisclosed sum.
Justin R. Kaufman, Partner
Joseph/Acton v. Mitsubishi Motors Corp. et al., D-101-cv-2019-01124 (N.M. Dist. Ct. Nov. 14, 2019)
On behalf of The Tracy Firm, DP&S successfully defeated Defendant Mitsubishi Motors Corp.’s Motion to Dismiss for Lack of Personal Jurisdiction. The Defendant had argued that New Mexico’s courts could not exercise specific jurisdiction over Mitsubishi due to its limited contacts in New Mexico and its presence in Japan, working through a U.S.-based distributor. The Court disagreed, adopting the argument advanced by DP&S, that under current and established New Mexico case law, the exercise of specific jurisdiction over Defendant was proper and denied the motion.
Justin R. Kaufman, Partner, Rosalind Bienvenu, Partner
Green/Smith v. Ford Motor Co., D-101-cv-2019-01083 (N.M. Dist. Ct. Nov. 12, 2019)
On behalf of trial counsel The Tracy Firm and Keller & Keller, successfully defeated Defendant Ford Motor Company’s personal jurisdiction challenge in this wrongful death/products liability case. Ford argued that it should not be subject to the jurisdiction of New Mexico’s courts under a specific jurisdiction analysis, and further it argued that its registration as a foreign corporation doing business in New Mexico did not equate to consent jurisdiction. DP&S was able to convince the court that Ford was wrong on both counts under existing New Mexico and U.S. Supreme Court precedent. The court held that Ford was subject to specific jurisdiction under the “stream of commerce” theory, and that Ford’s compliance with New Mexico’s Business Corporation Act meant that Ford had consented to jurisdiction in New Mexico.
Justin R. Kaufman, Partner, Rosalind Bienvenu, Partner
Brieno v. Paccar, Inc., No. 17-cv-867 SCY/KBM, 2018 WL 3675234 (D.N.M. Aug. 2, 2019)
Working with trial counsel Guajardo & Marks, helped defeat Defendant Paccar, Inc.’s Motion to Dismiss for Lack of Jurisdiction. The court approved of Plaintiff’s argument that Defendant Paccar Inc.’s compliance with the New Mexico Business Corporation Act constitutes consent to be sued in New Mexico for the purposes of personal jurisdiction.
Justin R. Kaufman, Partner, Rosalind Bienvenu, Partner
Schmidt v. Navistar, Inc., No. 18CV321 KG/KBM, 2019 WL 1024285 (D.N.M. Mar. 4, 2019)
Successfully defeating Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, re-affirming that a foreign corporation's registration to do business in the state constitutes consent to New Mexico personal jurisdiction.
Justin R. Kaufman, Partner, Rosalind Bienvenu, Partner
Aquifer Science, LLC v. Verhines, et al., Cause No. D-202-CV-2014-07209 (2nd Jud. D. N.M. Jan. 29, 2019).
The Second Judicial District Court of New Mexico applied the “conservation” element of the state’s ground water permit statute, NMSA 72-12-3, to uphold the Office of the State Engineer’s denial of a major developer’s (Aquifer Science) application to withdraw ground water in the East Mountains near Albuquerque. In reviewing the application de novo, Judge Shannon Bacon not only agreed with the local landowners who protested the permit that withdrawing the proposed amount of water would significantly impair existing water rights with no feasible mitigation plan, but also concluded that the developer’s application was “contrary to conservation of water within the state,” in violation of NMSA 72-12-3’s requirements. In denying the application, the court rejected Aquifer Science’s claim that that its plan achieved “conservation” by building golf courses as a place to reuse wastewater and determined that Aquifer Science’s other plans to conserve water through efficient appliances, fixtures, and landscaping were “speculative.” The court also concluded that the developer’s failure to consider the impact of climate change on the supply of surface water—and, thus, ground water—when calculating water demand “suggests a lack of long-term planning regarding conservation.”
Justin R. Kaufman, Partner, Rosalind Bienvenu, Partner
