Velasquez v. Tafoya Lucero et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
AUGUST VELASQUEZ,
Plaintiff,
v. 	No. 2:24-cv-01162-MIS-JHR
ALISHA TAFOYA LUCERO, Secretary New Mexico
Corrections 	Department 	(NMCD), 	in 	her 	individual
capacity; HOPE SALAZAR, NMCD Director Office Of
Inspector General, in her individual capacity; WENCE
ASONGANYI, NMCD Health Services Administrator, in
his individual capacity; ORION STRADFORD, NMCD
Bureau Chief, in his individual capacity; ED SMITH,
NMCD 	Director 	of 	Administrative 	Services, 	in 	his
individual capacity MARK LOVATO, NMCD General
Counsel, 	in 	his 	individual 	capacity; 	JEANNETTE
CHAVEZ, Risk Management Director, New Mexico Risk
Management Division (RMD), in her individual capacity;
WEXFORD HEALTH SOURCES, INC.; JOE EBBITT,
Wexford Director of Risk Management, HIPAA, and
Legal Affairs Wexford Health, in his individual capacity
and 	official 	capacity; 	MICHAEL 	HILDENBRANDT,
Wexford Director of Operations, in his individual capacity
and 	official 	capacity; 	LEANNE 	FUDOR, 	Wexford
Director 	Utilization 	Management, 	in 	her 	individual
capacity 	and 	official 	capacity; 	KATHRYN 	KEIM,
Wexford Health Services Administrator, in her individual
capacity 	and 	official 	capacity; 	LORENZO 	TORRES,
Wexford Health Services Administrator, in his individual
capacity 	and 	official 	capacity; 	ASTEN 	PACELLIO,
Wexford Risk Manager, in her individual capacity and
official 	capacity; 	ELAINE 	J. 	GEDMAN, 	Wexford
Executive 	Vice 	President 	and 	Chief 	Administrative
Officer, in her individual capacity and official capacity;
DR. KESHAB PAUDEL, Wexford Regional Medical
Director, in his individual capacity and official capacity;
SARAH CARTWRIGHT, Wexford Regional Director of
Nursing, in her individual capacity and official capacity;
LYNNSEY 	VIGIL, 	Wexford 	Utilization 	Management
Coordinator, 	in 	her 	individual 	capacity 	and 	official
capacity; AISTE CHAMBLIN, CNP, in her individual
capacity 	and 	official 	capacity; 	DWAYNE
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SANTISTEVAN, Warden of the Lea County Correctional
Facility, 	in 	his 	individual 	capacity; 	and 	RONALD
MARTINEZ, Warden of the Lea County Correctional
Facility, in his individual capacity, and GEO Group Inc.,
Defendants.
ORDER GRANTING DEFENDANTS EBBITT’S AND FUDOR’S MOTION TO DISMISS
COMPLAINT FOR LACK OF PERSONAL JURISDICTION
THIS MATTER is before the Court on Defendant Joe Ebbit’s and Defendant Leanna
Fudor’s (“Defendants”) Motion to Dismiss for Lack of Personal Jurisdiction (“Motion”), filed
October 21, 2025. ECF No. 20. Plaintiff August Velasquez (“Plaintiff”) did not file a Response.
Pursuant to the Local Rules of this District, “[a] response must be served and filed within
fourteen (14) calendar days after service of the motion.” D.N.M.LR-Civ. 7.4(a). “The failure of
a party to file and serve a response in opposition to a motion within the time prescribed for doing
so constitutes consent to grant the motion.” D.N.M.LR-Civ. 7.1(b).1
Although the Tenth Circuit Court of Appeals has held that “a district court may not grant
a motion to dismiss for failure to state a claim merely because a party failed to file a response[,]”
Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003) (emphasis added) (citation modified),
the Court has not found any binding authority holding that a district court may not grant a motion
to dismiss for lack or personal jurisdiction pursuant to a court’s local rules for the plaintiff’s failure
to respond to the motion. 	Indeed, the Tenth Circuit has affirmed non-merits-based dismissals
1 	Deadlines to file responses and replies “may be extended by agreement of all parties. For each
agreed extension, the party requesting the extension must file a notice identifying the new deadline and the document
(response or reply) to be filed.” D.N.M.LR-Civ 7.4(a) (emphasis added). Implicit in this rule is that the Notice “must”
be filed before the original filing deadline. Here, Plaintiff did not file a notice stating that the Parties agreed to an
extension of the deadline to file a response, and any notice of agreed-upon extension filed at this stage would be
untimely. See Order Denying County Defs.’ Unopposed Mot. to Vacate Order Striking Defs.’ Reply to Pls.’ Resp. to
County Defs.’ Mot. for Summ. J., Alexander v. Lopez, Case No. 2:24-cv-00618-MIS-GBW, ECF No. 39 (D.N.M. Apr.
30, 2025) (denying motion to “vacate” order striking reply as untimely where the defendants filed a notice of agreed-
upon extension of the reply deadline after the Court issued its Order striking the reply as untimely).
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based on the application of local rules permitting district courts to grant motions as uncontested
following a party’s failure to respond. See Lopez v. Cantex Health Care Ctrs. II, LLC, No. 23-
2038, 2023 WL 7321637, at *4-5 (10th Cir. Nov. 7, 2023) (affirming order granting motions to
remand as unopposed pursuant to Local Rule 7.1, because “a remand order is not a merits
disposition because the case will continue in state court”); Parker v. Comm’r, SSA, 845 F. App’x
786, 787-88 (10th Cir. 2021) (affirming Rule 12(b)(1) dismissal for lack of jurisdiction).
Because dismissal for lack of personal jurisdiction is not a merits-based dismissal, see
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (observing that “dismissals
for lack of jurisdiction should be without prejudice because the court, having determined that it
lacks jurisdiction over the action, is incapable of reaching a disposition on the merits of the
underlying claims”), the Court will grant the motion to dismiss under Local Rule 7.1(b) for
Plaintiff’s failure to file a response.
Accordingly, it is HEREBY ORDERED that Defendants Ebbit’s and Fudor’s Motion to
Dismiss for Lack of Personal Jurisdiction, ECF No. 20, is GRANTED, and the claims against
Ebbit and Fudor are DISMISSED WITHOUT PREJUDICE.
………………………………………….
MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE
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