March 19, 2015 – Fernando Gallegos v. Eldo Frezza, M.D. and Presbyterian Health Plan, Inc., a New Mexico Domestic For-Profit Coproration, consolidated with Nellie Gonzales v. Eldo Frezza, M.D. and Presbyterian Health Plan, Inc., a New Mexico Domestic For-Profit Coproration, Nos. 32,605 & 32,606

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _March 19, 2015

NOS. 32,605 & 32,606 (Consolidated)
FERNANDO GALLEGOS,
Plaintiff-A ppellant,
V.
ELDO FREZZA, M_D.,
Defendant- Appellee,
and

PRESBYTERIAN HEALTH PLAN, INC.,
A New Mexico Domestic For-Profit Corporation,

Defendant.
Consolidated With
NELLIE GONZALES,

Plaintiff-A ppellant,
V.

ELDO FREZ7ZA, M.D.,

Defendant- Appellee,

PRESBYTERIAN HEALTH PLAN, INC.,
A New Mexico Domestic For-Profit Corporation,
Defendant.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah M. Singleton, District Judge
Jones, Snead, Wertheim & Clifford, P.A.
Jerry Todd Wertheim
Roxie P. Rawls-De Santiago
Samuel C. Wolf
Elizabeth C. Clifford
Santa Fe, NM
for Appellants
Hinkle, Hensley, Shanor & Martin, LLP
William P. Slattery
Dana S. Hardy
Zachary T. Taylor
Santa Fe, NM
for Appellee
Brown & Gay, P.C.
Remo E. Gay
Melissa A. Brown
Albuquerque, NM
for Defendant Presbyterian Health Plan, Inc.

OPINION
BUSTAMANTE, Judge.
{1} 	Plaintiffs Nellie Gonzales and Fernando Gallegos appeal the district court’s
dismissal of their medical malpractice suit against Dr. Eldo Frezza, a Texas resident,
for lack of personal jurisdiction. 	On appeal, we examine whether Dr. Frezza has
sufficient contacts with the State of New Mexico to permit the state courts to assert
either general or specific personal jurisdiction over him. We conclude that most of
the asserted contacts with this state are insufficient to establish general jurisdiction.
We remand for further proceedings, however, because the record on appeal is
insufficient to address whether personal jurisdiction exists based on an arrangement
between New Mexico Presbyterian Health Plan and Texas Tech Physicians Associates
through which Dr. Frezza was referred New Mexico residents for care.
I. 	BACKGROUND
{2} 	After undergoing bariatric surgery, New Mexico residents Nellie Gonzales and
Fernando Gallegos (collectively, Plaintiffs) sued Dr. Eldo Frezza for medical
malpractice and Presbyterian Health Plan (Presbyterian) for breach of contract and
negligent referral. Both surgeries took place in Lubbock, Texas at the Texas Tech
University Health Sciences Center (the Center). Dr. Frezza was an employee of the
Center, which is a governmental unit of the State of Texas. 	See Tex. Tech Univ.

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Health Scis. Ctr. v. Ward, 280 S.W.3d 345, 348 (Tex. App. 2008) (stating that the
Center is a governmental unit).
{3} 	Both Plaintiffs were employees of the State of New Mexico and covered by
Presbyterian. When they sought insurance coverage for the bariatric procedure, they
were directed to Dr. Frezza by Presbyterian. No other bariatric surgeons were in the
Presbyterian network at that time.
{4} 	Dr. Frezza moved for dismissal based on the lack of personal jurisdiction and
Plaintiffs’ failure to state a claim. See Rule 1-012(B)(2), (6) NMRA. After a hearing
at which it considered documentary evidence, the district court found that it did not
have personal jurisdiction over Dr. Frezza and dismissed the complaint. The district
court did not rule on Dr. Frezza’s other motion. Plaintiffs appealed. Plaintiffs also
filed a motion for reconsideration in the district court under Rule 1-060(B)(6) NMRA.
Such motion “does not affect the finality of a judgment or suspend its operation.” Id.
As of the time that briefs were submitted, the district court had not ruled on the motion
for reconsideration. Additional facts are provided as pertinent to our discussion.
{5} 	We note that these cases are two of three presently before the Court of Appeals
that are based on a similar set of facts. See Montaño v. Frezza, COA No. 32,403. In
Montaño, filed concurrently, we hold that the Second Judicial District Court did not
err in concluding that application of Texas law would violate New Mexico public
policy and denying Dr. Frezza’s motion to dismiss for failure to state a claim.

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II. 	DISCUSSION
A. 	The Law of Personal Jurisdiction
{6} 	The question before us on appeal is whether the district court properly
concluded that it could not fairly exert jurisdiction over Dr. Frezza because he did not
have sufficient contacts with New Mexico. See Zavala v. El Paso Cnty. Hosp. Dist.,
2007-NMCA-149, ¶ 10, 143 N.M. 36, 172 P.3d 173 (“[F]or purposes of personal
jurisdiction, we . . . focus on . . . whether [the defendants] had the requisite minimum
contacts with New Mexico to satisfy due process.”). 	“[T]he minimum contacts
required for the state to assert personal jurisdiction over a defendant depends on
whether the jurisdiction asserted is general (all-purpose) or specific (case-linked).”
Sproul v. Rob & Charlies, Inc., 2013-NMCA-072, ¶ 9, 304 P.3d 18. 	More
specifically, “[a] state exercises general jurisdiction over a nonresident defendant
when its affiliations with the state are so continuous and systematic as to render it
essentially at home in the forum state.” Id. ¶ 12 (alterations, internal quotation marks,
and citation omitted). Specific jurisdiction may apply “if [a] defendant’s contacts do
not rise to the level of general jurisdiction, but the defendant nevertheless purposefully
established contact with New Mexico.” Id. ¶ 16 (internal quotation marks and citation
omitted). 	“In contrast to general, all-purpose jurisdiction, specific jurisdiction is
confined to adjudication of issues deriving from, or connected with, the very
controversy that establishes jurisdiction.” Goodyear Dunlop Tires Operations, S.A.

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v. Brown, 131 S. Ct. 2846, 2851 (2011) (internal quotation marks and citation
omitted). In analyzing a defendant’s contacts with New Mexico, our focus is on the
“defendant’s activities which . . . provide the basis for personal jurisdiction, not the
acts of other defendants or third parties.” 	Visarraga v. Gates Rubber Co., 1986-
NMCA-021, ¶ 18, 104 N.M. 143, 717 P.2d 596.
{7} 	“Once it has been decided that a defendant purposefully established minimum
contacts within the forum [s]tate, these contacts may be considered in light of other
factors to determine whether the assertion of personal jurisdiction would comport with
fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476
(1985) (internal quotation marks and citation omitted). Thus, as part of the overall
analysis of whether exercise of jurisdiction would comport with constitutional due
process, we may consider “the burden on the defendant, the forum [s]tate’s interest in
adjudicating the dispute, the plaintiff’s interest in obtaining convenient and effective
relief, the interstate judicial system’s interest in obtaining the most efficient resolution
of controversies, and the shared interest of the several [s]tates in furthering
fundamental substantive social policies.” Id. (internal quotation marks and citation
omitted).
B. 	Standard of Review
{8} 	Here, the district court concluded that it had neither general nor specific
jurisdiction over Dr. Frezza. We review this conclusion de novo. Cronin v. Sierra

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Med. Ctr., 2000-NMCA-082, ¶ 10, 129 N.M. 521, 10 P.3d 845. 	Our approach to
review was stated succinctly in Cronin:
If[] . . . a district court bases its ruling upon the parties’ pleadings and
affidavits, the applicable standard of review largely mirrors the standard
that governs appeals from the award or denial of summary judgment. In
this respect, both a district court and this appellate court must construe
the 	pleadings 	and 	affidavits 	in 	the 	light 	most 	favorable 	to 	the
complainant. The complainant need only make a prima facie showing
that personal jurisdiction exists when a district court does not hold an
evidentiary hearing.
Id. (citations omitted).
{9} 	Although only a prima facie showing is required, “[w]hen a party contests the
existence of personal jurisdiction under Rule 1-012(B)(2) and accompanies its motion
with affidavits or depositions, . . . the party resisting such motion may not stand on its
pleadings and must come forward with affidavits or other proper evidence detailing
specific facts” supporting jurisdiction. Doe v. Roman Catholic Diocese of Boise, Inc.,
1996-NMCA-057, ¶ 10, 121 N.M. 738, 918 P.2d 17; see State ex rel. Anaya v.
Columbia Research Corp., 1978-NMSC-073, ¶ 8, 92 N.M. 104, 583 P.2d 468
(holding that the state failed to establish personal jurisdiction over the defendant when
it did not proffer proof of the jurisdictional facts alleged in its complaint after the
defendant challenged them).
C. 	Plaintiffs’ Allegations

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{10} 	Given this standard of review, we set out Plaintiffs’ allegations in some detail.
Here, Plaintiffs made the following assertions:
2. 	[Dr. Frezza] is licensed to practice medicine in the State of New
Mexico[;]
. . . .
6. 	Plaintiff[s’] cause[s] of action arise[] from Dr. Frezza’s and
Presbyterian’s transaction of business within the State of New
Mexico through which Dr. Frezza and Presbyterian undertook to
encourage New Mexico citizens to travel to Lubbock, Texas
where they would receive bariatric surgery from Dr. Frezza[;]
7. 	Dr. Frezza used a combination of advertising in New Mexico,
testimonials from former New Mexican patients, and a special
relationship with Presbyterian to encourage New Mexico residents
to seek treatment from him . . . [;]
8. 	Dr. Frezza encouraged his patients to use his website to provide
testimonials, prominently noting their status as New Mexico
residents, in order to encourage other New Mexico residents to
seek treatment from him[;]
9. 	Dr. Frezza used his website to reach New Mexico residents . . . [;]
10. 	Dr. Frezza’s advertising in New Mexico . . . and the special
relationship he developed with Presbyterian were successful
efforts undertaken by [him] to secure patients from New Mexico,
which constitute[s] the transaction of business within the [s]tate[;]
. . . .
12. 	Dr. Frezza . . . on numerous occasions traveled to Santa Fe and
saw or treated patients during the trip . . . [;]

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13. 	On information and belief, Dr. Frezza owns six tracts of real
property in the State of New Mexico, County of Taos, and is
therefore also subject to general jurisdiction in . . . New Mexico[;]
14. 	[Two] of many New Mexico citizens who learned of Dr. Frezza
through his advertising and [were] told by Presbyterian that Dr.
Frezza was the only “in network” bariatric surgeon from whom
[they] could receive treatment [were P]laintiffs, who traveled to
Lubbock, Texas for surgery by Dr. Frezza[;]
15. 	[Plaintiff[s’] causes of action arise[] directly from Dr. Frezza’s
transaction of business within the State of New Mexico.
{11} 	Thus, Plaintiffs asserted that Dr. Frezza had four types of contact with New
Mexico: (1) a website, (2) a New Mexico medical license, (3) ownership of property
in New Mexico, and (4) a relationship with Presbyterian. On appeal, they also argue
that a book by Dr. Frezza called The Business of Surgery, in which the author
discusses strategies for negotiating beneficial managed care agreements and which is
available in New Mexico, provides another contact with this state. In support of these
allegations, Plaintiffs offered a print out of Dr. Frezza’s website, selected pages from
Dr. Frezza’s book, and copies of the deeds to property in New Mexico owned by Dr.
Frezza.
D. 	Dr. Frezza’s Affidavits
{12} 	Dr. Frezza challenged Plaintiffs’ jurisdictional assertions by presenting his own
affidavit as well as an affidavit by Lori Velten, the Managing Director of Provider-
Payor Relations at the Center. In addition to these affidavits, Dr. Frezza provided a

8
copy of the “[s]pecialty [s]ervices [a]greement” (the agreement) between Presbyterian
and Texas Tech Physicians Associates (TTPA), an organization established by the
Center to handle managed care contracting.
{13} 	In his affidavit, Dr. Frezza stated that he was a “participating provider” with
Presbyterian and that he “did not solicit patients from the State of New Mexico [but]
treated several New Mexico residents who traveled to Texas by virtue of [his] status
as a participating provider with . . . Presbyterian.” 	He stated that he “ha[s] never
practiced medicine in the State of New Mexico” and “never provided care or treatment
to any of [his] patients in New Mexico.” He stated that he “did not engage in any
advertising activities that were directed at residents of New Mexico” and that “[he]
was unaware of any advertising activities by [the Center] that were undertaken in New
Mexico.” Finally, he stated that he “did not personally seek to become credentialed
with . . . Presbyterian. Rather, [TTPA] was credentialed with . . . Presbyterian. As a
member of that group, [he] was required to submit a credentialing application to . . .
Presbyterian.”
{14} 	Ms. Velten stated in her affidavit that “TTPA decides what insurance will be
accepted by [TTPA] physicians and health care providers” and that Dr. Frezza “did
not have the authority to decide which insurance he would or would not accept.” She
also stated that Dr. Frezza “was subject to the [a]greement [with Presbyterian].”
Finally, she stated, “As an employee of [the Center], and contracted with TTPA, Dr.

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Frezza was requested to submit a credentialing application to [the Center] and TTPA
pursuant to the separate delegated credentialing agreement.”
E. 	Analysis
{15} 	Plaintiffs argue that New Mexico has both general and specific jurisdiction over
Dr. Frezza. Our next step, therefore, is to examine the alleged bases for each to see
whether they establish the contacts necessary for jurisdiction. Consistent with our
standard of review, we compare Plaintiffs’ complaints with the evidence submitted by
Dr. Frezza to see if Plaintiffs’ assertions of jurisdiction were challenged. 	See
Plumbers Specialty Supply Co. v. Enter. Prods. Co., 1981-NMCA-083, ¶ 9, 96 N.M.
517, 632 P.2d 752 (examining which of the alternate bases for jurisdiction were
challenged and holding that “[i]nasmuch as one ground of alleged jurisdiction was not
challenged, . . . the trial court did not err in [denying the defendant’s motion to dismiss
and request for an evidentiary hearing]”). We address general jurisdiction first.
1. 	General Jurisdiction
{16} 	Plaintiffs argue that Dr. Frezza’s website, medical license, book, property
ownership, and agreement with Presbyterian are contacts sufficiently “continuous and
systematic” to give New Mexico general jurisdiction over Dr. Frezza. 	See Zavala,
2007-NMCA-149, ¶ 12. We examine each assertion in turn. We conclude that none
of the first four bases is sufficient to establish general jurisdiction. We also conclude
that there are factual questions related to the agreement with Presbyterian and that

10
resolution of those questions is a prerequisite to determining whether the agreement
is a sufficient contact with New Mexico.
Website
{17} 	“Establishment of a passive website that can be viewed internationally is not
sufficient to support general personal jurisdiction absent some showing that the
website targeted New Mexico.” Id. ¶ 20. Plaintiffs argue that Dr. Frezza’s website
targeted New Mexico residents by listing his New Mexico medical license and
including testimonials by New Mexico residents, and that it was not merely passive
because it “encouraged” visitors to submit testimonials through the website. 	We
disagree.
{18} 	First, the inclusion of Dr. Frezza’s licensure status and testimonials by New
Mexico residents does not by itself indicate that the website targeted New Mexico.
Dr. Frezza’s website also indicated that he was licensed by Texas, Illinois, and
Pennsylvania. 	Statement of the fact that he held those licenses does not target
residents of those states because (1) all that is required for Dr. Frezza to practice in
Texas is a Texas license; and (2) there is no indication in the record that the
requirements for a New Mexico license differ from those for a Texas license such that
a doctor with a New Mexico license would be more attractive to a New Mexico
resident. Cf. Schexnayder v. Daniels, 187 S.W.3d 238, 249 (Tex. App. 2006) (stating
that a website that included the defendant’s “biography, credentials, and job

11
description” was “informational in nature”); Advance Petroleum Serv., Inc. v. Cucullu,
614 So. 2d 878, 880 (La. Ct. App. 1993) (holding that listing a Louisiana law license
on a Texas lawyer’s letterhead is not an advertisement targeted to Louisiana clients
and instead “should be considered merely a listing of professional accomplishment”).
Similarly, testimonials on the website may be read by any visitor to the site and are
equally persuasive regardless of the submitter’s state of residence. In other words, the
fact that a testimonial was written by a New Mexico resident does not necessarily
make it particularly compelling to other New Mexicans. In addition, there is nothing
about the site that specifically solicits testimonials by New Mexico patients. 	Cf.
Snowney v. Harrah’s Entm’t, Inc., 112 P.3d 28, 34 (Cal. 2005) (“By touting the
proximity of their hotels to California and providing driving directions from
California to their hotels, [the] defendants’ [w]eb site specifically targeted residents
of California.”).
{19} 	Plaintiffs rely on Silver v. Brown, 382 F. App’x 723, 730 (10th Cir. 2010), to
argue that an assessment of whether the website targeted New Mexico residents hinges
on “not who could access the site, but who is most likely to—here, patients
considering surgery by [Dr. Frezza].” 	In that case, after a business transaction
between Silver and Brown went sour, Brown created a blog called “A Special Report
on David Silver and [Silver’s company]” on which he warned other companies against
doing business with Silver and called Silver a thief. Id. at 725. The court rejected the

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lower court’s determination that the blog did not target New Mexico, stating that the
district court’s “analysis disregard[ed] the ubiquitous nature of search engines.” Id.
at 730. It concluded that because of “sophisticated” search engines, “it is becoming
. . . irrelevant . . . how many worldwide or nationwide internet connections there are
. . . because . . . the people that are searching for information on this David Silver are
the ones who are going to end up viewing Mr. Brown’s blog.” Id. In addition, there
was evidence that Brown purposefully sought to “optimiz[e]” the site so that it would
be easier for New Mexico residents to find using a search engine. 	Id. 	Since it was
clear that Brown intended the impact of the blog to be felt in New Mexico, the court
concluded that the blog targeted New Mexico. 	Id. (stating that “[a]ctions that are
performed for the very purpose of having their consequences felt in the forum state
are more than sufficient to support a finding” that they targeted the forum state.
(internal quotation marks and citation omitted)). The court held that specific personal
jurisdiction over Brown was proper. Id. at 731.
{20} 	Silver is inapposite. 	There the court was considering whether the blog was
sufficient to permit specific, not general, jurisdiction. Id. at 728. Thus the analysis
necessarily addressed whether the tortious conduct arose out of the contact with the
forum state, i.e., the blog. Here, the issue is whether Dr. Frezza’s contacts with New
Mexico through the website are continuous and systematic. 	As discussed, the
standards for these types of personal jurisdiction are different.

13
{21} 	In addition, the Silver court noted that the blog “was about a New Mexico
resident and a New Mexico company [and] complained of . . . Silver’s . . . actions in
the failed business deal [which] occurred mainly in New Mexico.” Id. at 729-30. It
also noted that “Brown had knowledge that the brunt of the injury to . . . Silver would
be felt in New Mexico.” 	Id. at 730. 	These facts indicated that Brown “expressly
aimed his blog at New Mexico.” 	Id. at 729. 	The mere listing of a New Mexico
medical license and inclusion of testimonials by New Mexico residents are simply not
of the same quality and do not demonstrate that Dr. Frezza targeted this state.
{22} 	Second, the website is not sufficiently interactive. “[I]mplicit in ‘interactive’
activity is the exchange of information between parties.” Fenn v. Mleads Enters., Inc.,
2006 	UT 	8, 	¶ 	21, 	137 	P.3d 	706; 	see 	Merriam-Webster 	Dictionary,
http://www.merriam-webster.com/dictionary/interactive (last visited Dec. 2, 2014)
(defining “interactive” as “mutually or reciprocally active” or “involving the actions
or input of a user”). Here, the submission of testimonials through the website was a
one-way process. 	Cf. Sublett v. Wallin, 2004-NMCA-089, ¶ 30, 136 N.M. 102, 94
P.3d 845 (holding a website insufficiently interactive to establish specific jurisdiction
where “[t]he only interactive feature of the website . . . was the ‘Locate an inspector’
feature, which requested minimal information and provided little more than additional
advertising information, i.e., contact information and background information on [a
local inspector]”). Because there is no indication in the record that the website passed

14
any information back to the user based on submission of his or her testimonial and
Plaintiffs do not assert that it did, Dr. Frezza’s website is even less interactive than
that in Sublett. We conclude that the website neither targets New Mexicans nor is
sufficiently interactive to demonstrate that Dr. Frezza purposefully directed it toward
New Mexico. See Zavala, 2007-NMCA-149, ¶ 20.
Medical License
{23} 	Plaintiffs maintain that the “[m]ost notable” contact Dr. Frezza had with New
Mexico was his New Mexico medical license. 	Dr. Frezza held the license from
January 2006 to July 2009. 	In July 2009, Dr. Frezza’s status was changed to
“inactive.” Thus, Dr. Frezza did not hold an active New Mexico medical license at
the time of the surgeries or at the time of the filing of Plaintiffs’ complaints.
{24} 	We pause here to address the appropriate time frame relevant to the general
jurisdiction analysis. Several New Mexico cases state that “[a]s a general rule, the
existence of personal jurisdiction may not be established by events which have
occurred after the acts which gave rise to [a p]laintiff’s claims.” Doe, 1996-NMCA-
057, ¶ 19; Tercero v. Roman Catholic Diocese of Norwich, Conn., 2002-NMSC-018,
¶ 9, 132 N.M. 312, 48 P.3d 50. Both of these cases cite Steel v. United States, 813
F.2d 1545, 1549 (9th Cir. 1987), in which the court stated that “courts must examine
the defendant’s contacts with the forum at the time of the events underlying the
dispute when determining whether they have jurisdiction.” But this statement was

15
made in the context of specific jurisdiction, not general jurisdiction. 	See id.
(referencing specific jurisdiction); DVI, Inc. v. Superior Court, 128 Cal. Rptr. 2d 683,
698 (2002) (stating that the Steel holding referred to specific jurisdiction). In addition,
neither Tercero nor Doe distinguished between “specific jurisdiction” or “general
jurisdiction,” but both cases hinged on whether the cause of action arose out of the
enumerated acts in New Mexico’s “long-arm statute,” NMSA 1978, § 38-1-16 (1971).
See Tercero, 2002-NMSC-018, ¶ 10 (stating that jurisdiction based on the transaction
of business prong of the long-arm statute is consistent with due process “only if the
cause of action arises from the particular transaction of business” (internal quotation
marks and citation omitted)); Doe, 1996-NMCA-057, ¶ 12 (stating that the appropriate
test was “whether (1) the acts of the defendant are specifically set forth in this state’s
long-arm statute, (2) the plaintiff’s cause of action arises out of and concerns such
alleged acts, and (3) the defendant’s acts establish minimum contacts to satisfy
constitutional due process concerns”). 	It is not entirely clear, therefore, that the
statements in those cases as to the appropriate time frame apply in the general
jurisdiction context. 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1067.5 (3d ed. 2002) (“As a practical matter, a general jurisdiction
inquiry is very different from a specific jurisdiction inquiry.”).
{25} 	The parties did not identify any New Mexico cases explicitly addressing the
time frame for a general jurisdiction analysis, nor did our own research uncover one.

16
See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569 (2d Cir. 1996)
(“Few cases discuss explicitly the appropriate time period for assessing whether a
defendant’s contacts with the forum state are sufficiently ‘continuous and systematic’
for the purposes of general jurisdiction.”). In addition, “[t]he [United States] Supreme
Court never has spoken on the issue of determining the proper time[]frame for the
defendant’s contacts with the forum [in a general jurisdiction analysis].” 	Wright,
supra (Supp. 2014). This issue raises two questions. “First, it must be determined
whether continuous and systematic contacts need to exist at the time the claim accrues,
or at the time the lawsuit is filed.” 	Id. 	The courts appear divided on this question.
See id. n.11.50 (collecting cases). But see Harlow v. Children’s Hosp., 432 F.3d 50,
64 (1st Cir. 2005) (“It is settled law that unrelated contacts which occurred after the
cause of action arose, but before the suit was filed, may be considered for purposes
of the general jurisdiction inquiry.”). 	The second question is “how far back from
either the accrual or filing of the claim [courts] will look[.]” Wright, supra (Supp.
2014). 	“[M]ost courts use a ‘reasonable time’ standard yielding time[]frames of
roughly three to seven years.” Id.; see, e.g., Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 410-11, 415-16 (1984) (examining contacts over seven-
year period (1970-1977), including after the 1976 accident from which the plaintiff’s
claims arose, in a general jurisdiction analysis).

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{26} 	We need not determine whether general jurisdiction in New Mexico depends
on contacts extant at the time a claim accrued or at the time the complaint is filed,
however, because even if we consider the medical license in our analysis, we conclude
that possession of a medical license is not sufficient in and of itself to subject Dr.
Frezza to general jurisdiction in New Mexico courts. The general rule gleaned from
cases in sister states is that possession of a medical license in the forum state may be
considered a contact for purposes of general jurisdiction but is not sufficient on its
own. For instance, in Etchebarne-Bourdin v. Radice, the District of Columbia Court
of Appeals held that where “there [was] no allegation that the doctors maintained their
[District of Columbia] licenses in order to solicit patients in the District[,]” the fact
“that the doctors maintained medical licenses to practice in the District cannot,
without more, serve as a basis for jurisdiction under the ‘transacting any business’
subsection of the [D.C. long-arm] statute.” 	982 A.2d 752, 759 (D.C. 2009).
Similarly, in Modlin v. Superior Court, the California Court of Appeals held that the
defendant’s contacts with California were “tenuous at best” and insufficient for
general jurisdiction where the contacts consisted of possession of a California medical
license and three trips to California in four years. 222 Cal. Rptr. 662, 665 (Ct. App.
1986); see also Ghanem v. Kay, 624 F. Supp. 23, 25 (D.D.C. 1984) (“A nonresident
physician who arranges to be licensed in the District [of Columbia] would not by this
act alone reasonably anticipate being required to defend a suit brought in the District

18
. . . [but] where a nonresident physician is not only licensed in a jurisdiction but
carries on significant activities within that jurisdiction, the due process requirement
of minimum contacts between a defendant and a forum state is satisfied.”); Dean v.
Johns, 789 So. 2d 1072, 1079 (Fla. Dist. Ct. App. 2001) (“The various activities of
[the Alabaman defendant], including the relationships he has developed with referring
Florida physicians to treat Florida patients and his maintenance of a Florida medical
license, easily pass the minimum contacts test of the Due Process Clause.”); Estate of
Jones v. Phillips ex rel. Phillips, 992 So. 2d 1131, 1141 (Miss. 2008) (considering
licensure in the forum state as well as arrangements the defendant made to treat the
plaintiff in the foreign state); accord Hines v. Clendenning, 1970 OK 28, 465 P.2d
460, 463; cf. Eastboro Found. Charitable Trust v. Penzer, 950 F. Supp. 2d 648, 655-
56 (S.D.N.Y. 2013) (concluding that possession of a law license does not confer
jurisdiction on the licensing state and collecting cases); Katz v. Katz, 707 A.2d 1353,
1357 (N.J. Super. Ct. App. Div. 1998) (“We are equally convinced that the
defendant’s license to practice law in this state does not afford a basis to exercise in
personam jurisdiction over him in a matter totally unrelated to his professional
license.”).
Property
{27} 	Plaintiffs also point to Dr. Frezza’s ownership of property in New Mexico.
They argue that Dr. Frezza “purposefully availed himself of the protections and

19
benefits of New Mexico law by purchasing land here and making some use of that
land.” The land was purchased after the surgeries but before Plaintiffs’ complaints
were filed. The timing of these land purchases thus implicates the same questions
raised above. Nevertheless, we conclude that even if we consider the land purchases,
they are insufficient to demonstrate that Dr. Frezza had continuous and systematic
contact with New Mexico such that he could expect to be haled into court here. See
Zavala, 2007-NMCA-149, ¶ 12 (“If a defendant has continuous and systematic
contacts with New Mexico such that the defendant could reasonably foresee being
haled into court in that state for any matter, New Mexico has general personal
jurisdiction.” (alteration, internal quotation marks, and citation omitted)). 	Like a
medical license, Dr. Frezza’s ownership of property can be considered as a contact
with New Mexico but it is not sufficient on its own to establish jurisdiction over him.
Rush v. Savchuk, 444 U.S. 320, 328 (1980) (“[T]he mere presence of property in a
[s]tate does not establish a sufficient relationship between the owner of the property
and the [s]tate to support the exercise of jurisdiction over an unrelated cause of
action.”); cf. F.D.I.C. v. Hiatt, 1994-NMSC-044, ¶ 10, 117 N.M. 461, 872 P.2d 879
(considering property ownership in assessment of jurisdiction).
Book
{28} 	To the extent Plaintiffs argue that availability of Dr. Frezza’s book, The
Business of Surgery, in New Mexico provides a contact sufficient for general

20
jurisdiction, we are not persuaded. 	Even if we accept Plaintiffs’ assertion that
“[u]ndoubtedly, [Dr. Frezza] expects the State of New Mexico to protect his copyright
. . . and has a plan for the commercial success of his book and its distribution in New
Mexico[,]” the distribution of Dr. Frezza’s book in New Mexico does not rise to the
level of contact required by the Due Process Clause for general jurisdiction. 	Cf.
Sproul, 2013-NMCA-072, ¶ 14 (“[T]he flow of a manufacturer’s goods into the forum
state alone does not create sufficient ties with that state to give it general jurisdiction
over the manufacturer.”).
{29} 	Plaintiffs rely on Beh v. Ostergard for the proposition that “a plan [for
distribution in New Mexico] is sufficient for general jurisdiction to attach to [Dr.
Frezza].” 657 F. Supp. 173, 178 (D.N.M 1987). The Beh court stated that jurisdiction
would have been proper if the defendant there had “a regular distribution plan for his
publications into New Mexico for which he derived commercial benefit[.]” Id. Beh
is not persuasive for two reasons. First, the statement relied on was dicta not essential
to the holding. Id. Second and more importantly, this statement was based on Blount
v. T D Publishing Corp., in which the New Mexico Supreme Court held that “placing
. . . magazines in national channels of commerce . . . submits the publisher to
jurisdiction in all states where his product causes injury.” 1966-NMSC-262, ¶ 16, 77
N.M. 384, 423 P.2d 421 (emphasis added). This holding obviously applies to specific
jurisdiction. Thus neither Beh nor Blount are helpful to Plaintiffs’ assertions related

21
to general jurisdiction. See Wright, supra (noting the differences in the general and
specific jurisdiction analyses); see also Sproul, 2013-NMCA-072, ¶ 16 (indicating
that the contacts necessary for general jurisdiction are more substantial than those for
specific jurisdiction).
Arrangement with Presbyterian
{30} 	Plaintiffs argue that general jurisdiction is proper based on an “arrangement
with Presbyterian . . . [which] secur[ed] for [Dr. Frezza] a virtual guarantee of New
Mexico patient referrals.” The parties do not dispute that (1) Dr. Frezza treated New
Mexico residents, including Plaintiffs, referred to him by Presbyterian; (2) there were
no bariatric surgeons in New Mexico at the time; (3) Dr. Frezza was a credentialed
participating provider under the agreement between TTPA and Presbyterian; and (4)
Dr. Frezza was bound by the agreement. 	Plaintiffs maintain that these facts are
sufficient to establish the existence of a relationship between Dr. Frezza and
Presbyterian through which Dr. Frezza “reached into [New Mexico] in order to attract
[a] patient’s business[.]” Cronin, 2000-NMCA-082, ¶ 26; cf. Zavala, 2007-NMCA-
149, ¶ 21 (concluding that although “it is not necessarily sufficient by itself to justify
the exercise of general personal jurisdiction[,]” Medicaid registration “may be a factor
to consider” in a general jurisdiction analysis).
{31} 	We note that Dr. Frezza’s arguments in the district court and on appeal take
several different approaches. In his pleadings below, Dr. Frezza acknowledged that

22
his status as a participating provider in Presbyterian’s network established a
relationship between him and the insurer. For instance, he analogized the agreement
with Presbyterian to Medicaid registration and acknowledged that such registration
can 	be 	considered 	a 	contact 	for 	purposes 	of 	general 	jurisdiction, 	implicitly
acknowledging that the agreement was a contact between him and New Mexico. See
Zavala, 2007-NMCA-149, ¶ 21. Nevertheless, he argued that this contact was
insufficient for general jurisdiction. See id. He also made several references to “[t]he
contractual relationship between Dr. Frezza and Presbyterian,” arguing that it would
not support specific jurisdiction because Plaintiffs’ claims did not arise from it. In
spite of these statements in his pleadings, in the hearing before the district court Dr.
Frezza relied on the fact that he was not a party to the agreement and had no authority
to decide which insurance he would accept to argue that “there is no contract between
Dr. Frezza and Presbyterian.” Similarly, on appeal, Dr. Frezza maintains that, because
he was not an employee of TTPA, was not a party to the agreement, and had no
authority to select with whom he would become a participating provider, the
agreement cannot be considered a contact between him and New Mexico for purposes
of 	jurisdiction. 	On 	appeal, 	he 	argues 	that 	“Plaintiff[s’] 	relationship 	with
Presbyterian[,] Presbyterian’s relationship with TTPA[,] and TTPA’s relationship with
Dr. Frezza . . . cannot [be] combine[d] . . . to establish personal jurisdiction over Dr.
Frezza.”

23
{32} 	In support of his position at the hearing, Dr. Frezza submitted a copy of the
agreement to the district court. 	The district court concluded that the fact that Dr.
Frezza was not a party to the agreement was dispositive of whether Dr. Frezza had a
relationship with Presbyterian. We disagree because this conclusion does not consider
other facts surrounding the agreement, including, among other things, that Dr. Frezza
was a participating provider bound by the agreement, that New Mexico patients were
referred to him because of the agreement, and that there were no New Mexico
bariatric surgery providers at that time. 	See Sproul, 2013-NMCA-072, ¶ 17 (“The
question [of whether jurisdiction exists] cannot be answered by applying a mechanical
formula or rule of thumb but [must be resolved] by ascertaining what is fair and
reasonable under the circumstances.” (alteration, internal quotation marks, and citation
omitted)); cf. Dunn v. Yager, 58 So. 3d 1171, 1186 (Miss. 2011) (holding that
Mississippi had general jurisdiction over the defendant where he “had participated in
various [preferred provider organizations (PPOs)], which, inter alia, gave him access
to more than 800,000 members of [a Mississippi PPO] as prospective clients” and
recognizing that the defendant “solicited patients through the PPOs, as an approved
preferred provider” and the plaintiff’s claim had been approved by a Mississippi
insurer).
{33} 	Neither does the rest of the record provide sufficient facts for us to assess
whether the arrangement with Presbyterian establishes a contact between Dr. Frezza

24
and New Mexico. Ms. Velten’s claims that Dr. Frezza had no authority to select which
insurance he would accept do not address the extent of Dr. Frezza’s rights and
obligations arising out of a contract with an insurer once it is selected by TTPA. Dr.
Frezza’s repeated reliance on the fact that he is not an employee of TTPA likewise
raises more questions than it answers. For instance, is Dr. Frezza a member, partner,
or owner of TTPA? 	Is he a third-party beneficiary of TTPA’s contract with
Presbyterian? Is there a contract with TTPA that defines Dr. Frezza’s relationship
with it, as Ms. Velten’s affidavit suggests, and/or do the terms of his employment with
the Center define his rights and obligations with respect to TTPA? The nature of Dr.
Frezza’s relationships with both the Center and TTPA likely will inform the analysis
of any relationship with Presbyterian.
{34} 	Plaintiffs also alleged that Dr. Frezza “used” or “developed” “a special
relationship with Presbyterian to encourage New Mexico residents to seek treatment
from him[.]” See Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990) (“ ‘Purposeful
availment’ requires that the defendant have performed some type of affirmative
conduct which allows or promotes the transaction of business within the forum state.”
(internal quotation marks and citation omitted)). 	Dr. Frezza challenged Plaintiffs’
assertion through submission of the agreement and affidavits. 	But the agreement
requires each participating provider to be “credentialed by [Presbyterian].” 	Ms.
Velten stated in her affidavit that “Dr. Frezza was requested to submit a credentialing

25
application to [the Center] and TTPA pursuant to the separate delegated credentialing
agreement.” The “separate credentialing agreement” is not in the record. Dr. Frezza
stated in his affidavit that he “did not personally seek to become credentialed
with . . . Presbyterian. Rather, [TTPA] was credentialed with . . . Presbyterian. As a
member of that group, [he] was required to submit a credentialing application
to . . . Presbyterian.” 	The extent to which Dr. Frezza personally acted to become
credentialed with Presbyterian is unclear from this record. For instance, although Dr.
Frezza asserts that he did not “personally” seek to become credentialed, he also states
that he submitted an application to become credentialed. At the same time that he
asserts that TTPA was credentialed, he states that he submitted his own credentialing
application to Presbyterian.
{35} 	We conclude that, even if we view Plaintiffs’ assertions and Dr. Frezza’s
evidence in the light most favorable to jurisdiction, Cronin, 2000-NMCA-082, ¶ 10,
the parameters of the relationship are unclear such that we cannot assess whether it is
a contact sufficient for general jurisdiction. Cf. Russell v. SNFA, 946 N.E.2d 1076,
1080-81 (Ill. App. Ct. 2011) (“If we find that [the] plaintiff has made a prima facie
case for jurisdiction, we must then determine if any material evidentiary conflicts
exist. If a material evidentiary conflict exists, we must remand the case to the trial
court for an evidentiary hearing.” (citation omitted)); Sorezza v. Scheuch, No.
19717/07, 2008 WL 2186175, at *6 (N.Y. Sup. Ct. May 13, 2008) (denying a motion

1In a cursory argument, Plaintiffs contend that specific personal jurisdiction is
appropriate because Dr. Frezza traveled to New Mexico and consulted with at least
26
for dismissal and stating, “Absent further discovery concerning the nature of the
contractual agreement or arrangement between BlueCross/Blue Shield and the
defendant with respect to his ‘participating provider’ status, the court is constrained
from determining whether such agreement or arrangement would qualify as a business
transaction [under New York’s long-arm statute]”). For instance, it remains unclear
to what extent Dr. Frezza was bound by or benefitted from the agreement, whether the
agreement required Dr. Frezza to accept Presbyterian patients, to what extent Dr.
Frezza himself sought to become credentialed with Presbyterian, and, perhaps most
importantly, whether and how Dr. Frezza became the sole provider of bariatric surgery
services to Presbyterian’s members. Cf. Almeida v. Radovsky, 506 A.2d 1373, 1375
(R.I. 1986) (relying on the specific terms of the defendants’ agreement with a Rhode
Island insurer and the fact that the insurer did not refer Rhode Island patients to the
defendants to hold that there were insufficient contacts for jurisdiction). We therefore
turn to whether Plaintiffs have made a prima facie showing of specific jurisdiction.
2. 	Specific Jurisdiction
{36} 	Plaintiffs argue that New Mexico has specific personal jurisdiction over Dr.
Frezza because their claims arose from surgeries performed pursuant to Dr. Frezza’s
relationship with Presbyterian.1 Even if Dr. Frezza’s relationship with Presbyterian

one patient here. 	However, they do not explain how their injuries arose from this
contact. We therefore decline to address this argument. Headley v. Morgan Mgmt.
Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review
unclear arguments, or guess at what [a party’s] arguments might be.”).
27
is insufficient for general jurisdiction, it may nonetheless be sufficient for specific
jurisdiction. See ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 715
(4th Cir. 2002) (“[T]he threshold level of minimum contacts sufficient to confer
general jurisdiction is significantly higher than for specific jurisdiction.” (internal
quotation marks and citation omitted)). The district court determined that Plaintiffs’
claims arose from medical care provided in Texas, rejecting Plaintiffs’ argument that
they arose from Dr. Frezza’s relationship with Presbyterian. 	The district court
therefore concluded that it “[could not] exercise specific jurisdiction over Dr. Frezza”
because Plaintiffs’ claims were not connected with any contacts between Dr. Frezza
and New Mexico. In doing so, the district court avoided analyzing whether there was
a relationship between Dr. Frezza and Presbyterian sufficient for specific jurisdiction.
{37} 	The district court’s rejection of Plaintiffs’ contention that their claims arose
from a relationship between Dr. Frezza and Presbyterian rests on an overly narrow
construction of the requirement that the claims must “arise from” Dr. Frezza’s contact
with New Mexico. 	In Goodyear Dunlop Tires, the United States Supreme Court
stated that specific jurisdiction applied when the claims “deriv[e] from, or [are]
connected with” the defendant’s contacts. 	131 S. Ct. at 2851 (internal quotation

28
marks and citation omitted); accord Helicopteros Nacionales, 466 U.S. at 414 (using
the phrase “arise out of or relate to” in discussing specific jurisdiction). This language
permits a more expansive construction than that applied by the district court.
Similarly, our cases have held that “for New Mexico to assert specific jurisdiction
over a nonresident defendant, the plaintiff’s claim must ‘lie in the wake’ of the
defendant’s commercial activities in New Mexico.” Sproul, 2013-NMCA-072, ¶ 17
(alteration omitted) (quoting Visarraga, 1986-NMCA-021, ¶ 15). For example, in
Kathrein v. Parkview Meadows, Inc., a New Mexican plaintiff sued an Arizona
defendant for “emotional and psychological trauma” she suffered after attending
“Family Week” at a treatment center where her husband was being treated. 1984-
NMSC-117, ¶ 3, 102 N.M. 75, 691 P.2d 462. The Court held that the cause of action
was “a direct outgrowth of [the] defendant’s general solicitation for business in New
Mexico” where the defendant had “advertised its alcoholism treatment center in the
yellow pages of the Albuquerque telephone directory[,] . . . contacted the director of
[a New Mexico organization] to solicit . . . referral of patients to the treatment center[,]
. . . mail[ed] a brochure [to the plaintiff], inviting her to attend the treatment program’s
‘Family Week[,]’ [and] telephoned [the] plaintiff from Arizona, to encourage her
attendance.” 	Id. ¶¶ 2, 4; see Cronin, 2000-NMCA-082, ¶ 16 (agreeing with the
plaintiffs that their claims arose from the hospital’s transaction of business in New
Mexico because “but for [the h]ospital’s solicitations, [the p]atient would not have

29
sought treatment at [the h]ospital nor would he have endured certain health
complications arising from [the doctor’s] prescription and [the d]efendants’ negligent
failure to monitor the administration of potentially ototoxic antibiotics”); see also
Presbyterian Univ. Hosp. v. Wilson, 654 A.2d 1324, 1331 (Md. 1995) (stating that the
hospital’s “voluntary efforts to register as a Maryland [Medicaid] provider and to be
designated as a liver transplant referral center served in many respects to effectively
solicit Maryland residents to seek treatment” at the hospital and that “[t]hese general
business contacts are directly related to the [medical negligence and wrongful death]
action and serve as support for the finding of specific jurisdiction”).
{38} 	Consistent with 	Kathrein 	and 	Cronin, we conclude that, if the alleged
relationship exists, Plaintiffs’ claims here are sufficiently connected with it . The fact
that Dr. Frezza may have been the only provider covered by Presbyterian and thus
Plaintiffs had no option to seek treatment in New Mexico only strengthens the
connection between the two. But because the district court did not address the alleged
relationship in the context of specific jurisdiction, there is no factual record addressing
“the precise nature of the defendant’s contacts with the forum, the relationship of
these contacts with the cause of action, and [] weighing . . . whether the nature and
extent of contacts . . . between the forum and the defendant . . . satisfy the threshold
demands of fairness.” Presbyterian Univ. Hosp., 654 A.2d at 1330 (second and third
omissions in original) (internal quotation marks and citation omitted). 	The same

30
questions about the relationship identified in our discussion of general jurisdiction
apply in an analysis of specific jurisdiction. Hence we expect the district court will
address them on remand in both contexts.
3. 	Fair Play and Substantial Justice
{39} 	“The United States Supreme Court has held that even if a defendant has
established sufficient minimum contacts with the forum state, the Due Process Clause
forbids the assertion of personal jurisdiction over that defendant under circumstances
that 	would 	offend 	traditional 	notions 	of 	fair 	play 	and 	substantial 	justice.”
Sproul, 2013-NMCA-072, ¶ 35 (internal quotation marks and citation omitted). Since
we have concluded that an evidentiary hearing is necessary to clarify Dr. Frezza’s
contacts with New Mexico and the strength of those contacts will affect the analysis
of whether it is unfair to assert jurisdiction over him, we do not address this issue
except to provide guidance on two points. First, Dr. Frezza argues on appeal that he
would be substantially burdened by having to defend himself in New Mexico because
(1) he is immune from suit under Texas law and (2) Texas courts are “better situated
[than New Mexico courts] to deal with the issues inherent in applying Texas’s Tort
Claims Act.” Both of these arguments assume that the Texas Tort Claims Act will
apply to this case, a proposition we rejected in the companion case, Montaño, COA
No. 32,403, ¶ 39. He also argues that Texas has “significant public policy interests
in litigating th[ese] case[s]” because he is a government employee. 	Although we

31
recognize that Texas has an interest in this case, we have concluded that, under the
facts of these cases, New Mexico has an equal or greater interest. 	See id. ¶ 30.
Finally, we reject this line of reasoning because, although there is some overlap, the
personal jurisdiction and choice of law inquiries are distinct and different. The United
States Supreme Court cautioned against entwining the two analyses, stating that “[t]he
question of [whether the forum state’s law applies] presents itself in the course of
litigation only after jurisdiction over [the] respondent is established, and we do not
think that such choice of law concerns should complicate or distort the jurisdictional
inquiry.” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 778 (1984).
{40} 	Second, the district court concluded that “[e]xercising personal jurisdiction over
Dr. Frezza in New Mexico would violate traditional notions of fair play and
substantial justice” because “many of the important fact witnesses in this case reside
in Texas and . . . Dr. Frezza will be unable to compel fact witnesses in Texas,
including the healthcare providers who subsequently treated Plaintiff[s] and allegedly
diagnosed [their] complications, to testify in person at trial in New Mexico.” At the
hearing, the district court stated that it would be a “horrible trial if we have to show
the jury video tapes of those people [because the jury] would be asleep.” Even if we
construe these findings as addressing the burden on Dr. Frezza and efficiency of the
trial, there is nothing in the record indicating that the district court considered the
other Zavala factors, such as “New Mexico’s interest, the plaintiff’s interest, . . . and

32
the interest in promoting public policy.” 2007-NMCA-149, ¶ 12. In addition, it is
difficult 	to 	see 	how 	the 	concerns 	voiced 	by 	the 	district 	court 	establish 	the
unconstitutionality of New Mexico’s assertion of jurisdiction. On remand, the district
court should consider all of the Burger King factors in relation to the strength of Dr.
Frezza’s contacts with New Mexico in assessing the fairness of personal jurisdiction
over him. See Burger King Corp., 471 U.S. at 476 (stating that if “it has been decided
that a defendant purposefully established minimum contacts within the forum [s]tate,
these contacts may be considered in light of other factors to determine whether the
assertion of personal jurisdiction would comport with fair play and substantial justice”
(internal quotation marks and citation omitted)); Salas v. Homestake Enters. Inc.,
1987-NMSC-094, ¶ 6, 106 N.M. 344, 742 P.2d 1049 (citing Burger King and
considering the defendant’s contacts in assessment of the fairness of jurisdiction).
F. 	CONCLUSION
{41} 	For the foregoing reasons, we remand for further proceedings consistent with
this Opinion.
{42} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:

JONATHANB. SUTIN, Judge

CYNTHIA A. FRY, Judge

33