1032-1034 Lex. Ave., Ltd. v. Fox et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
1032-1034 LEX. AVE., LTD.
Plaintiff,
vs. 	1:25-cv-00491-WJ-LF
ALAN C. FOX,
ACF PROPERTY MANAGEMENT,
THE ALAN C. FOX REVOCABLE TRUST,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS FOR
LACK OF PERSONAL JURISDICTION
THIS MATTER is before the Court on Defendants’ Motion to Dismiss for Lack of
Personal Jurisdiction [Doc. 4] (“Motion”). Having reviewed the parties’ briefs [Doc. 4, 5, 11] and
the applicable law, the Court concludes that this Court’s exercise of personal jurisdiction over
Defendants would not be consistent with due process; accordingly, Defendants’ Motion [Doc. 4]
is GRANTED.
BACKGROUND
Plaintiff 1032-1034 Lex Ave. Ltd. (“Lex”) filed its Original Complaint in the First Judicial
District Court, County of Santa Fe, State of New Mexico, on March 12, 2025. [Doc. 1-2]. 	The
Complaint names Alan C. Fox, ACF Property Management, Inc., and the Alan C. Fox Revocable
Trust as Defendants. [Doc. 1-2 at 1]. The Original Complaint asserts two state law causes of action
for (1) breach of contract and (2) fraud. [Doc. 1-2 at 2-3].
The allegations of the Complaint relate to a commercial property in Denver, Colorado,
Writer Square Shopping Center. [Doc. 1-2 at 2]. The Original Complaint asserts that:
“This court has personal jurisdiction over Defendants
because each of them has conducted business in this
District and have otherwise directed their conduct toward this District.”
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[Doc. 1-2 at 1]. The Complaint makes no further reference to New Mexico.
The case was removed to this Court by the Defendants based on diversity of citizenship
jurisdiction. [Doc. 1 at 1]. There is no dispute that complete diversity of citizenship exists and
Plaintiff has not contested removal of the case.
Defendants filed their Motion on May 30, 2025. [Doc. 4]. The Motion seeks dismissal on
two grounds. 	First, the Motion asserts that there is no personal jurisdiction over Defendants in
New Mexico. 	[Doc. 4 at 4-8]. 	Second, the Motion argues that the Original Complaint fails to
state a claim on which relief can be granted. 	[Doc. 4 at 8-15]. The Motion is supported by the
Declaration of Alan C. Fox. [Doc. 4-1]. 	Plaintiff filed his Response in opposition to Defendants’
Motion on June 18, 2025. 	[Doc. 5]. 	Attached to the Response is the Affidavit of Stephen
Kirshenbaum. [Doc. 5-1]. 	Defendants’ Reply was then filed on July 2, 2025. 	[Doc. 11]. 	The
Reply is accompanied by the Supplemental Declaration of Alan C. Fox and the Declaration of
Edward Delava. [Doc. 11-1; Doc. 11-2].
DISCUSSION
A motion to dismiss is an appropriate procedural vehicle for resolving personal jurisdiction
issues. See Fed. R. Civ. P. 12(b)(2). The plaintiff bears the burden of establishing personal
jurisdiction over the defendant. AST Sports Sci. Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1056
(10th Cir. 2008). However, when a pre-trial motion to dismiss is considered by the court without
an evidentiary hearing, the plaintiff “need only make a prima facie showing of personal jurisdiction
to defeat the motion.” Id. at 1057. At this early stage in the litigation, the plaintiff’s burden is
“light.” Id. at 1056.
“The allegations in the complaint must be taken as true to the extent they are
uncontroverted by the defendant’s affidavits.” Intercon, Inc. v. Bell Atl. Internet Sols., Inc., 205
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F.3d 1244, 1247 (10th Cir. 2000) (citation omitted). Plaintiff may also submit affidavits and
declarations “that if true would support jurisdiction over the defendant.” XMission, L.C. v. Fluent
LLC, 955 F.3d 833, 839 (10th Cir. 2020) (citation omitted). “If the parties present conflicting
affidavits, all factual disputes must be resolved in the plaintiff’s favor, and the plaintiff’s prima
facie showing is sufficient notwithstanding the contrary presentation by the moving party.”
Intercon, Inc., 205 F.3d at 1247 (citation omitted).
To show personal jurisdiction over a nonresident in a diversity action, Plaintiff must show
that personal jurisdiction is proper under the laws of the forum state—here, the laws of New
Mexico—and that the exercise of personal jurisdiction over Defendants complies with the Due
Process Clause of the Fourteenth Amendment. Dental Dynamics, LLC v. Jolly Dental Grp., LLC,
946 F.3d 1223, 1228 (10th Cir. 2020). New Mexico’s long-arm statute enumerates certain acts that
can subject a defendant to personal jurisdiction in New Mexico. NMSA 1978, § 38-1-16(A).
Among these enumerated acts is “the transaction of any business within this state” and “the
contracting to insure any person, property or risk located within this state at the time of
contracting.” Id. § 38-1-16(A)(1), (4). The New Mexico Supreme Court has held the State’s long-
arm statute “extends the jurisdictional reach of New Mexico courts as far as constitutionally
permissible”; thus, the jurisdictional analysis collapses into a single due-process inquiry. Tercero
v. Roman Cath. Diocese of Norwich, Connecticut, 2002-NMSC-018, ¶ 6, 48 P.3d 50, 54.
The Due Process Clause authorizes personal jurisdiction where (1) a defendant has
established minimum contacts within the forum state, and (2) where the exercise of personal
jurisdiction comports with traditional notions of fair play and substantial justice. Dental Dynamics,
LLC, 946 F.3d at 1229. A plaintiff satisfies the “minimum contacts” standard by showing the court
may properly exercise either general or specific jurisdiction over the non-resident defendant. The
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parties do not argue general jurisdiction; therefore, the Court need only address specific
jurisdiction. Specific jurisdiction is proper if (1) the out-of-state defendant “purposefully directed”
its activities at a resident of the forum, and (2) the litigation results from plaintiff’s alleged injuries
that “arise out of or relate to” the defendant’s activities. Burger King Corp. v. Rudzewicz, 471 U.S.
462, 472 (1985) (citation omitted).
To show a defendant directed its activities at New Mexico, Plaintiff must point to “some
act by which the defendant purposefully avails itself of the privilege of conducting activities within
the forum State.” Hanson v. Denckla, 357 U.S. 235, 253 (1958). The guiding principle behind the
minimum contacts’ analysis is that “the defendant’s conduct and connection with the forum State
are such that [it] should reasonably anticipate being haled into court there.” Benton v. Cameco
Corp., 375 F.3d 1070, 1078 (10th Cir. 2004) (citation omitted). A defendant may not be “haled
into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Burger
King Corp., 471 U.S. at 475 (citation omitted). However, the Supreme Court has emphasized:
“where individuals ‘purposefully derive benefit’ from their interstate activities, it may well be
unfair to allow them to escape having to account in other States for consequences that arise
proximately from such activities.” Id. at 473-74 (citation omitted).
For minimum contacts analysis, even minor contacts with a state, when aggregated, have
been found to be sufficient. Benton, 375 F.3d at 1078. And, although personal jurisdiction is
assessed individually, personal jurisdiction may be found over a defendant who is a “primary
participant[] in an alleged wrongdoing” intentionally directed at the forum state by a different
defendant. Calder v. Jones, 465 U.S. 783, 790 (1984); see also Burger King Corp, 471 U.S. at 479
n.22. A defendant’s direct communication with a forum-state resident can provide “some
evidence” of purposeful direction. Old Republic Ins. Co. v. Cont’l Motors, Inc., 877 F.3d 895, 905
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(10th Cir. 2017) (citation omitted). Further, the Supreme Court and Tenth Circuit have found it
relevant whether the defendant entered into a contractual relationship with the plaintiff with
knowledge that the plaintiff was based in the forum state. See, e.g., Burger King Corp., 471 U.S.
at 480 (finding minimum contacts in part because of “substantial record evidence indicating that
[defendant] most certainly knew that he was affiliating himself with an enterprise based primarily
in [the forum state]”); Benton, 375 F.3d at 1078 (finding minimum contacts in part because
defendant “voluntarily conducted business with [plaintiff], whom [defendant] knew to be located
in [the forum state] for many years prior to and at the time of the events at issue”).
If a defendant has “no meaningful contacts” in New Mexico, the Court may not assert
personal jurisdiction. Burger King Corp., 471 U.S. at 472. However, if minimum contacts are
found, the Court must still assess whether asserting personal jurisdiction over Defendants would
be unreasonable such that it would offend “traditional notions of fair play and substantial justice.”
Benton, 375 F.3d at 1078 (citation omitted). The defendant bears the burden of presenting “a
compelling case” that personal jurisdiction would be unreasonable. Old Republic Ins. Co., 877
F.3d at 909 (citation omitted). Unreasonableness is determined by weighing five factors: “(1) the
burden on the defendant, (2) the forum State’s interest in resolving the dispute, (3) the plaintiff’s
interest in receiving convenient and effective relief, (4) the interstate judicial system’s interest in
obtaining the most efficient resolution of controversies, and (5) the shared interest of the several
states in furthering fundamental social policies.” Id. (citation omitted). While these factors may be
used to defeat jurisdiction, an “especially strong showing of reasonableness may serve to fortify a
borderline showing of minimum contacts.” Benton, 375 F.3d at 1079 (citation and brackets
omitted); see also Burger King Corp., 471 U.S. at 477.
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The Court’s first task is to determine whether Lex Ave’s allegations, supported by
affidavits, make a prima facie showing of minimum contacts necessary to establish jurisdiction
over Defendants in New Mexico. 	The Court concludes that they do not establish personal
jurisdiction over Defendants in New Mexico.
Plaintiff bears the initial burden of showing that the exercise of personal jurisdiction over
Defendants complies with the Due Process Clause of the Fourteenth Amendment. Dental
Dynamics, LLC v. Jolly Dental Grp., LLC, 946 F.3d at 1228 (10th Cir. 2020). The sole named
Plaintiff in this action is Lex. 	[Doc. 1-2 at 1]. 	The Original Complaint contains a single,
conclusory allegation that” each of [the Defendants] has conducted business in this District and
have otherwise directed their conduct toward this District”. [Doc. 1-2 at 1, ¶ 5]. The Complaint
contains no factual allegations to support this statement.
The Court may, however, also consider affidavits, declarations, and sworn statements
submitted by Plaintiff. XMission, L.C. v. Fluent LLC, 955 F.3d at 839. Attached to Plaintiff Lex’s
Response is the Affidavit of non-party Stephen Kirschenbaum. [Doc. 5-1]. The Affidavit appears
to have been prepared and submitted in connection with a different case. [Doc. 5-1 at 1, ¶ 1].1
The Affidavit of Mr. Kirschenbaum does not mention Lex or Writer Square Shopping Center.
Instead, it recites information about a personal friendship between Mr. Kirschenbaum’s sister and
Defendant Alan Fox, a visit by Mr. Fox to New Mexico around 2011, a visit by non-party Ed
Delava, CFO of Defendant ACR Property Management to New Mexico in 2014, and Mr.
Kirschenbaum’s personal “generalized” knowledge of the business of ACF Property Management.
[Doc. 5-1 at 1-4]. Mr. Kirschenbaum asserts that during those visits, he was solicited by Mr. Fox
1 The Affidavit recites that Mr. Kirschenbaum is “one of the plaintiffs in 1:24-cv-00765.” [Doc. 5-
1 at 1, ¶ 1]. Case no. 1:24-cv-00765 was dismissed due to lack of personal jurisdiction. [1:24-
cv-00765, Doc. 28]. 	A third case brought by Lex, 1:25-cv-00490, was voluntarily dismissed.
[1:25-cv-00490, Doc. 8].
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and as a result of those solicitations, he invested with Mr. Fox and ACF Property Management.
[Doc. 5-1 at 1]. 	The Affidavit does not provide any factual detail about the nature of these
solicitations, the nature of any investments, or how non-party Kirschenbaum’s investments are
related to Plaintiff Lex and Lex’s claimed harm.
The Affidavit of Mr. Kirschenbaum establishes no more than attenuated contacts with him
in New Mexico. Burger King Corp., 471 U.S. at 475. Construing the Affidavit in the light most
favorable to Plaintiff, the Affidavit still does not establish (1) the out-of-state defendant
“purposefully directed” its activities at the forum, and (2) the litigation results from Plaintiff Lex’s
alleged injuries that “arise out of or relate to” the defendant’s activities. Burger King Corp, 471
U.S. at 472; Hanson v. Denckla, 357 U.S. 235, 253 (1958). The Affidavit fails to establish that the
Defendants’ conduct and connection with the forum State are such that they should reasonably
anticipate being haled into court here. Benton v. Cameco Corp., 375 F.3d at 1078.
The Defendants’ Motion to Dismiss asserts a lack of personal jurisdiction over the
Defendants. 	[Doc. 4]. 	The lack of any purposeful contacts of Defendants with New Mexico
sufficient to support personal jurisdiction is bolstered by the Declaration of Alan C. Fox [Doc. 4-
1], the Supplemental Declaration of Alan C. Fox, [Doc. 11-1], and the Declaration of Edward
Delava [Doc. 11-2] (all of which also appear to have been prepared for a different case, case no.
1:24-cv-00765). 	The declarations indicate that Defendant ACF Property Management is not
registered to do business in New Mexico, has no offices, assets, employees, or real property in
New Mexico, does not own or operate properties in New Mexico, has no bank accounts in New
Mexico, has no officer, director, or shareholder in New Mexico, does not solicit investors in New
Mexico, and does not advertise or perform any outreach in New Mexico. 	[Doc. 4-1 at 1-2]. The
Declaration also shows that Defendant Alan Fox resides in California, the Alan C. Fox Revocable
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Trust is a personal trust he created to manage his personal assets, and the Trust was formed in
California and is governed by California law. [Doc. 4-1 at 2]. The Declaration of Edward Delava
states that his visit to Mr. Kirschenbaum in New Mexico was for personal reasons and not in
connection with solicitation of an investment by Plaintiff Lex or the Writer’s Square Shopping
Center. [Doc. 11-2].
The Original Complaint, Affidavit, and Declarations are insufficient to make a prima facie
showing of personal jurisdiction over the Defendants in New Mexico. Absent sufficient minimal
contacts, the exercise of personal jurisdiction over the Defendants in New Mexico does not
comport with due process. Burger King Corp., 471 U.S. at 472. Therefore, the Court will dismiss
this case without prejudice for lack of personal jurisdiction.2
CONCLUSION
The Court finds that Defendants lack sufficient minimum contacts with New Mexico and
the exercise of personal jurisdiction over would not comport with Due Process. Defendants’
Motion to Dismiss [Doc. 4] is GRANTED and the case is DISMISSED without prejudice.
IT IS SO ORDERED.
/s/__________________________________
WILLIAM P. JOHNSON
SENIOR UNITED STATES DISTRICT JUDGE
2 The Defendants’ Motion to Dismiss also raises other grounds for dismissal, including statute of
limitations. [Doc. 4]. Because the Court dismisses the case based on lack of personal
jurisdiction, the Court does not reach those issues. The Court notes, however, that the
allegations of the Complaint show an approximate 9-year gap between the last date noted (2016)
[Doc. 14 at 2] and the filing of the Original Complaint in 2025.
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