M.R. v. Serenicare Funeral Home, L.L.C.

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 14:29:26 2013.02.13
Certiorari Denied, January 2, 2013, No. 33,920

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-022

Filing Date: October 24, 2012

Docket No. 30,879

M.R., V.D., P.R., and C.R.,

Plaintiffs-Appellants,

v.

SERENICARE FUNERAL HOME, L.L.C.,

Defendant-Appellee,

and

CANTRUP/De VARGAS CORP, d/b/a
De VARGAS FUNERAL HOME,
VINCENT R. SALAZAR, INMAN
SHIPPING WORLDWIDE, and JOHN DOES 1-5,

Defendants.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
C. Shannon Bacon, District Judge

Carter & Valle Law Firm, P.C.
Richard J. Valle
Criostoir O’Cleireachain
Kathryn Lueker-Eaton
Albuquerque, NM

for Appellants
Allen, Shepherd, Lewis, Syra & Chapman, P.A.
E. W. Shepherd
Ryan T. Sanders
Albuquerque, NM

1
for Appellee
OPINION

FRY, Judge.

{1} In this case, we must decide whether a Utah funeral home established sufficient
minimum contacts with New Mexico to justify a New Mexico court’s exercise of personal
jurisdiction over the funeral home. The funeral home contracted with an Ohio shipping
company to prepare Plaintiffs’ relative’s (Decedent’s) body for shipping from Utah, where
Decedent died, to New Mexico, her residence. The district court concluded that the funeral
home did not have sufficient contacts with New Mexico to satisfy the requirements of due
process and dismissed Plaintiffs’ claims against the funeral home. We affirm.

BACKGROUND

{2} Decedent died in a car accident in Utah in September 2009. Plaintiff M.R., a New
Mexico resident, contacted Defendant De Vargas Funeral Home (De Vargas) in New Mexico
regarding funeral arrangements. De Vargas contacted Defendant Inman Shipping
Worldwide (Inman), an Ohio corporation, and Inman contacted Defendant SereniCare
Funeral Home, L.L.C. (SereniCare), to prepare Decedent’s body for shipping to New
Mexico.1

{3} SereniCare is a Utah limited liability company with offices in two Utah towns, and
it is licensed to perform funeral services only in Utah. SereniCare prepared the body
according to its agreement with Inman and, according to SereniCare’s funeral director, it
turned custody of the body over to Inman.2 SereniCare then billed Inman for the services
performed by sending an invoice to Inman in Ohio.

1
In their reply brief Plaintiffs dispute that SereniCare’s agreement was with Inman.
However, Plaintiffs offered no evidence to refute the evidence presented by SereniCare
establishing that SereniCare and Inman were in fact the contracting parties. See Doe v.
Roman Catholic Diocese of Boise, Inc., 1996-NMCA-057, 121 N.M. 738, 742, 918 P.2d 17,
21 (explaining that “the party asserting jurisdiction has the burden of establishing such fact”
and that if the party resisting jurisdiction presents affidavits or depositions, the party
asserting jurisdiction must present affidavits or other evidence demonstrating jurisdiction
over the defendant).
2
Inman filed the affidavit of its general manager in support of its own motion to
dismiss for lack of personal jurisdiction. The general manager attested that Inman “never
had physical possession, custody or control of” Decedent’s body. We do not consider this
affidavit in our analysis because Plaintiffs did not rely on the affidavit in attempting to refute
SereniCare’s evidence. See id. In addition, whether Inman did or did not have custody of
the body is immaterial to our analysis.

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{4} Before Decedent’s body was sent to New Mexico, Plaintiff M.R. learned from De
Vargas that SereniCare was preparing the body in Utah. M.R., who was in Utah at the time,
telephoned SereniCare to inquire about viewing the body. The SereniCare employee with
whom M.R. spoke suggested that the family not view the body because of severe head
trauma and that, in any event, it would be another day before the family could view the body.
The family then decided to return to New Mexico and informed SereniCare of this fact.
Later, during the viewing of Decedent in New Mexico before the funeral, an employee of
De Vargas gave Plaintiffs a bag containing Decedent’s personal effects. The next day,
Plaintiffs smelled a “foul odor” coming from the bag and discovered Decedent’s brain in a
Ziploc bag labeled with her name and the word “brain.”

{5} Plaintiffs sued SereniCare, Inman, De Vargas, De Vargas’s owner, and five unnamed
John Does for several torts, unfair trade practices, breach of contract, and breach of fiduciary
duty. The present appeal involves only Plaintiffs’ claims against SereniCare.

{6} SereniCare filed a motion to dismiss Plaintiffs’ claims, arguing that the district court
lacked personal jurisdiction over it. After considering the pleadings and affidavits filed by
the parties and following a non-evidentiary hearing, the district court concluded that
Plaintiffs failed to establish that SereniCare had sufficient minimum contacts with New
Mexico to comport with due process and dismissed the claims against SereniCare.

DISCUSSION

Standard of Review

{7} We undertake de novo review when considering whether the district court had
personal jurisdiction over SereniCare in this case. Santa Fe Techs., Inc. v. Argus Networks,
Inc., 2002-NMCA-030, ¶ 12, 131 N.M. 772, 42 P.3d 1221. Because the district court based
its ruling on the pleadings and affidavits rather than on evidence presented at an evidentiary
hearing, “the standard of review resembles that of summary judgment; the appellate court
reviews the pleadings and affidavits or sworn testimony in the light most favorable to the
party asserting jurisdiction.” Id. The party asserting jurisdiction—in this case,
Plaintiffs—“need only make a prima facie showing that personal jurisdiction exists.” Id.
(internal quotation marks and citation omitted).

Elements of Personal Jurisdiction Analysis

{8} Plaintiffs argue that SereniCare’s tortious acts and/or business transactions in New
Mexico establish minimum contacts sufficient to satisfy due process considerations. In
analyzing arguments like those advanced by Plaintiffs, our earlier cases utilized a three-part
test that considered whether (1) the defendant’s acts fell within New Mexico’s long-arm
statutes, (2) the plaintiff’s claims arise out of those acts, and (3) the defendant’s acts
establish sufficient minimum contacts to satisfy due process concerns. See Doe, 121 N.M.
at 742, 918 P.2d at 21. However, our more recent cases have observed that it is no longer

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necessary to determine whether a defendant has committed one of the acts enumerated by
our long-arm statute. Zavala v. El Paso Cnty. Hosp. Dist., 2007-NMCA-149, ¶ 10, 143 N.M.
36, 172 P.3d 173. Instead, we consider the long-arm statute “as being coextensive with the
requirements of due process” and undertake “a single search for the outer limits of what due
process permits.” F.D.I.C. v. Hiatt, 117 N.M. 461, 463, 872 P.2d 879, 881 (1994) (internal
quotation marks and citation omitted).

{9} “Due process is satisfied when a defendant has engaged in acts within the state that
indicate that the defendant reasonably anticipated being brought into a New Mexico court.”
Zavala, 2007-NMCA-149, ¶ 11. “[T]he minimum contacts required for the state to assert
personal jurisdiction over a defendant depend[] on whether the jurisdiction asserted is
general (all-purpose) or specific (case-linked).” Sproul v. Rob & Charlies, Inc., 2012-
NMCA- ___, ¶ 9, ___ P.3d ___ (No. 31, 167, Aug. 15, 2012).

{10} Plaintiffs argue that the theory of specific jurisdiction is applicable to SereniCare
because it purposefully established contact with New Mexico. See Zavala, 2007-NMCA-
149, ¶¶ 17-29 (setting out the distinctions between the theories of general jurisdiction and
specific jurisdiction). We consider whether SereniCare “purposefully avail[ed] itself of the
privilege of conducting activities within [New Mexico], thus invoking the benefits and
protections of its laws.” Id. ¶ 11 (first alteration in original) (internal quotation marks and
citation omitted). “[S]pecific jurisdiction is confined to adjudication of issues deriving from,
or connected with, the very controversy that establishes jurisdiction.” Sproul, 2012-
NMCA____, ¶ 17 (internal quotation marks and citation omitted).

{11} Although our case law establishes that the long-arm statute’s requirements are
coextensive with the requirements of due process, Plaintiffs have organized their arguments
to coincide with two of the acts specified in our long-arm statute. Plaintiffs maintain that
SereniCare (1) committed torts in New Mexico because the injury to them occurred in New
Mexico and (2) transacted business in New Mexico by agreeing to participate in the process
of returning the body to New Mexico. We follow Plaintiffs’ organization and address each
argument in turn.

Tortious Acts

{12} Assuming that Plaintiffs are ultimately able to prove that SereniCare was guilty of
some form of tortious conduct in its handling of Decedent’s body, we agree that the tort
occurred in New Mexico. We have stated that for purposes of personal jurisdiction analysis,
a tort “can occur in New Mexico when the actual harmful act originates outside the state, but
the injury itself occurs inside New Mexico.” Santa Fe Techs., Inc., 2002-NMCA-030, ¶ 15.
“The place of the wrong is the location of the last act necessary to complete the injury.” Id.
(internal quotation marks and citation omitted). However, as we have noted, the central
question is whether Plaintiffs have established that SereniCare had the minimum contacts
with New Mexico to satisfy due process.

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{13} Plaintiffs contend that SereniCare had sufficient contacts with New Mexico because
it knew its preparation of Decedent’s body was for purposes of a viewing and funeral service
in New Mexico and that the effects of its improper handling of Decedent’s brain would be
experienced in New Mexico. Plaintiffs primarily rely for support on the so-called “effects”
test articulated in Calder v. Jones, 465 U.S. 783, 787 (1984).

{14} In Calder, the respondent, an entertainer, sued a national newspaper reporter and
editor for libel in California. 465 U.S. at 784-85. The petitioners were Florida residents and
challenged the California court’s exercise of personal jurisdiction over them. Id. at 783. The
United States Supreme Court held that the newspaper story published by the petitioners
“concerned the California activities of a California resident. It impugned the professionalism
of an entertainer whose television career was centered in California. The article was drawn
from California sources, and the brunt of the harm . . . was suffered in California.” Id. at
788-89 (footnote omitted). The Court concluded that “[j]urisdiction over [the reporter and
editor] is therefore proper in California based on the ‘effects’ of their Florida conduct in
California.” Id. at 789.

{15} We are not persuaded that under Calder SereniCare’s knowledge of the body’s
destination in New Mexico and its knowledge that the body was being prepared for a funeral
service in New Mexico constitute minimum contacts sufficient to satisfy due process.
SereniCare did not engage in any purposeful activities directed at New Mexico. It is a Utah
limited liability company, licensed only in Utah, and it has not advertised its services in New
Mexico. It did nothing to solicit business from New Mexico. Instead, it entered into an
agreement initiated by Inman to prepare a body that was located in Utah for shipping by
Inman. Although a SereniCare employee had a telephone conversation with Decedent’s
relative, it was the relative who initiated the phone call in Utah. SereniCare billed Inman for
its services.

{16} These circumstances are in sharp contrast to the situation described in Calder which
involved an article printed in a nationally circulated newspaper whose largest market was
the state of California. Id. at 785. Thus, the petitioners in Calder purposefully availed
themselves of the privilege of selling about 600,000 newspapers in California per week, id.,
and the Supreme Court reasonably concluded that they knew and intended that the effects
of their article would be felt in California. Unlike the petitioners in Calder, SereniCare’s
contact with New Mexico was “random, fortuitous, [and] attenuated,” and such contacts are
insufficient. Zavala, 2007-NMCA-149, ¶ 11 (alteration, internal quotation marks, and
citation omitted). It was sheer happenstance that the body Inman asked SereniCare to
prepare had New Mexico as its destination.

{17} Furthermore, even if Plaintiffs are able to prove that SereniCare’s preparation of
Decedent’s body constituted an intentional tort, “[a]n intentional tort without minimum
contacts does not comport with due process.” Santa Fe Techs., Inc., 2002-NMCA-030, ¶ 19.
“The constitutional inquiry . . . is not dependent upon the type of tort or the underlying
transaction in dispute. The inquiry is whether [the d]efendants have such minimum contacts

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with New Mexico so that the suit does not offend due process.” Id. ¶ 21.

{18} In addition, New Mexico case law emphasizes that in cases like the present one
involving a nonresident defendant’s personal services, “focus must be on the place where
the services are rendered, since this is the place of the receiver’s . . . need.” Tarango v.
Pastrana, 94 N.M. 727, 729, 616 P.2d 440, 442 (Ct. App. 1980) (internal quotation marks
and citation omitted). Here, Decedent’s family needed the embalming services provided by
SereniCare in Utah as part of the process of returning Decedent’s body to New Mexico.
Assuming that Plaintiffs can prove that SereniCare’s performance of those services was
deficient, “the idea that tortious rendition of such services is a portable tort which can be
deemed to have been committed wherever the consequences foreseeably were felt is wholly
inconsistent with the public interest in having services of this sort generally available.” Id.
(internal quotation marks and citation omitted); see Cronin v. Sierra Med. Ctr., 2000-
NMCA-082, ¶ 25, 129 N.M. 521, 10 P.3d 845 (explaining that “the residence of a recipient
of personal services rendered elsewhere is irrelevant and totally incidental to the benefits
provided by the defendant at his own location” (internal quotation marks and citation
omitted)). The rendering of personal services, like those provided by SereniCare here,
without evidence that the defendant “reached into the forum state in order to attract the
[service recipient’s] business, simply does not constitute the purposeful availment that is
both contemplated in and required by our due process analysis.” Id. ¶ 26.

Transaction of Business

{19} Plaintiffs also argue that SereniCare transacted business in New Mexico by agreeing
to return the body to New Mexico and that specific personal jurisdiction may be exercised
due to a clear nexus between the transaction and the cause of action. They maintain that the
nexus arose because SereniCare engaged in for-profit activities with the goal of serving New
Mexico consumers through direct contact with Plaintiffs and in conjunction with the other
Defendants to perform part of the funeral services initiated in Utah and concluded in New
Mexico.

{20} In support of their argument, Plaintiffs rely on Monks Own, Ltd. v. Monastery of
Christ in the Desert (Monks Own I), 2006-NMCA-116, 140 N.M. 367, 142 P.3d 955, aff’d,
Monks Own, Ltd. v. Monastery of Christ in the Desert (Monks Own II), 2007-NMSC-054,
142 N.M. 549, 168 P.3d 121, which Plaintiffs claim adopted the “clear nexus” test. The
problem with Plaintiffs’ argument is that the New Mexico Supreme Court granted certiorari
in Monks Own I and utilized reasoning different from that relied on by this Court. See
Monks Own II, 2007-NMSC-054, ¶ 1 (stating that the Supreme Court used “a somewhat
different analysis from the Court of Appeals”). The Supreme Court in Monks Own II did not
mention a “ ‘clear nexus’ test” or use the term “nexus” at all.

{21} Monks Own II does not help Plaintiffs establish personal jurisdiction over
SereniCare. That case involved a Canadian company, Monks Own, that wanted to
domesticate in New Mexico a Canadian judgment against a New Mexico monastery. Id. ¶¶

6
2-3. The judgment was for the monastery’s breach of a contract to purchase Monks Own’s
trade name. Id. ¶ 2. Our Supreme Court concluded that the Canadian court had personal
jurisdiction over the New Mexico monastery in part because the monastery had sufficient
minimum contacts with Canada since the subject of the contract was a Canadian trade name,
the monastery’s agent traveled to Canada for meetings in connection with the contract in
question, the monastery filed a trademark agreement with a Canadian governmental office,
and the contract stated that Ontario law governed the agreement. Id. ¶ 25. Together, these
contacts established purposeful availment of the protections of the Canadian government.
Id. ¶ 28.

{22} In contrast to the monastery in Monks Own II, SereniCare demonstrated no
purposeful availment of the protections of New Mexico law. There is no evidence in the
record that any SereniCare agents initiated contact with Plaintiffs or ever visited or
advertised in New Mexico on SereniCare’s behalf. The business transaction at issue was
between SereniCare and Inman. The only contact with New Mexico was fortuitous and
indirect. SereniCare knew the body was being shipped by Inman to New Mexico, and a
SereniCare employee spoke to Plaintiff M.R., a New Mexico resident, on the telephone.
However, it was M.R. who initiated the call while he was in Utah. These indirect contacts
are not the kind of contacts demonstrating a focus on New Mexico that would warrant the
exercise of personal jurisdiction over SereniCare.

{23} The circumstances in the present case are closer to those in Zavala, where this Court
determined that New Mexico courts did not have personal jurisdiction over a Texas hospital.
2007-NMCA-149, ¶ 1. In Zavala, even though the hospital treated many New Mexicans,
had a generally accessible website, and had a patient transfer agreement with a New Mexico
hospital, we nonetheless concluded that these contacts were insufficient to satisfy due
process. Id. ¶¶ 17-18, 20, 23. We noted that the only contact related to the cause of action
was the agreement with the New Mexico hospital, and that agreement was intended “to
promote the continuity of care and the timely transfer of patients and records between the
facilities[,] . . . not to get more business for either hospital.” Id. ¶ 23. Similarly, in the
present case, the only direct contact with New Mexico related to the cause of action was the
telephone call between M.R. and a SereniCare employee that took place in Utah, and there
is no evidence that SereniCare had anything to do with initiating that call or that it intended
to solicit Plaintiffs or other New Mexico consumers in any way. See id. ¶¶ 17-18 (noting
that even though seven percent of the hospital’s income came from New Mexico residents,
there was “no evidence that [the h]ospital intentionally solicited New Mexico patients”).

{24} We are equally unpersuaded by Plaintiffs’ remaining arguments. They contend that
New Mexico has an interest in providing redress to its residents when a suit is based on a
contract having a substantial connection with the state. Alternatively, they maintain that
SereniCare established minimum contacts when it “placed Decedent’s body in the stream
of commerce by shipping her remains to New Mexico for viewing and burial.”

{25} With respect to its argument regarding the contract’s substantial connection with

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New Mexico, Plaintiffs rely on McGee v. International Life Insurance Co., 355 U.S. 220
(1957), where the United States Supreme Court stated that “a trend is clearly discernible
toward expanding the permissible scope of state jurisdiction over foreign corporations and
other nonresidents” and held that a California court properly exercised personal jurisdiction
over a Texas life insurance company that had issued a policy to a California resident. 355
U.S. at 221-22, 224. The Court stated that “[i]t is sufficient for purposes of due process that
the suit was based on a contract which had substantial connection with [California].” Id. at
223.

{26} As the Court later explained in Hanson v. Denckla, 357 U.S. 235 (1958), the holding
of McGee is not as broad as Plaintiffs argue it to be. The Hanson Court acknowledged that
economic developments have caused the requirements for personal jurisdiction to evolve but
stated that “it is a mistake to assume that this trend heralds the eventual demise of all
restrictions on the personal jurisdiction of state courts. . . . However minimal the burden of
defending in a foreign tribunal, a defendant may not be called upon to do so unless he has
had the minimal contacts with that [s]tate that are a prerequisite to its exercise of power over
him.” Id. at 251 (internal quotation marks omitted).

{27} The McGee facts are distinguishable from those in the present case. In McGee, the
insurance company initiated contact with the ultimate insured in California, the insurance
policy was delivered in California, and the premiums were mailed from there. 355 U.S. at
221-22, 223. Here, SereniCare did nothing directed at New Mexico other than to comply
with Inman’s request to prepare Decedent’s body for shipping to New Mexico. Under these
circumstances, “the Due Process Clause as a ‘territorial shield’ is correctly invoked to
protect a non-resident who is brought into a forum with which [it] has no contact.” Santa
Fe Techs., Inc., 2002-NMCA-030, ¶ 35.

{28} Plaintiffs’ “stream of commerce” argument is equally misplaced. The stream- of-
commerce analysis originated in the United States Supreme Court’s case, World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), where the Court explained that a court
may exercise personal jurisdiction over a nonresident defendant that “delivers its products
into the stream of commerce with the expectation that they will be purchased by consumers
in the forum [s]tate.” Id. at 297-98. As an initial matter, we are not prepared under the
circumstances of this case to characterize Decedent’s body as a “product,” much less a
product being placed into commerce. In addition, stream-of-commerce minimum contacts
require something more than “an isolated occurrence,” id. at 297, and must “arise[] from the
efforts of the manufacturer or distributor to serve directly or indirectly, the market for its
product in other [s]tates.” Id.; see Sproul, 2012-NMCA- ___, ¶ 26 (reaffirming a preference
for the approach to stream of commerce in World-Wide Volkswagen). While we agree with
the dissent that it is possible for services as well as products to be placed into the stream of
commerce, Dissent ¶ 33, the evidence in this case fails to show that SereniCare’s unsolicited
contact with this single Utah-to-New Mexico shipment equates to efforts to serve an
interstate market, as contemplated by Worldwide Volkswagen.

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{29} In summary, we conclude that Plaintiffs failed to make a prima facie showing that
SereniCare had minimum contacts with New Mexico sufficient to satisfy the requirements
of due process. The district court properly dismissed Plaintiffs’ claims against SereniCare.

CONCLUSION

{30} For the foregoing reasons, we affirm the district court’s judgment dismissing
Plaintiffs’ claims against SereniCare.

{31} IT IS SO ORDERED.

____________________________________
CYNTHIA A. FRY, Judge

I CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

TIMOTHY L. GARCIA, Judge (dissenting).

GARCIA, Judge (dissenting).

{32} I respectfully dissent in this case. The tortious injury asserted in this case was
suffered as a result of SereniCare’s business services that it provided as part of a specific
multi-party transaction in interstate commerce. As a result, minimum contacts and personal
jurisdiction must be addressed in the context of an interstate commercial transaction, similar
to the recent analysis by this Court in Sproul, 2012-NMCA-__, ¶¶ 16-26 (recognizing the
interstate commerce analysis for personal jurisdiction, also known as the stream of
commerce rule established under World-Wide Volkswagen). Although the present case did
not involve the sale of a good or product transported into the stream of commerce, the
funeral services provided by SereniCare were part of a direct and continuous stream of
commerce that began in Utah and concluded in New Mexico.

{33} The majority did focus on the distinction between a service placed into the stream
of commerce and a product placed into the stream of commerce. Majority Opinion ¶ 28.
Although this distinction appears misplaced, the majority did proceed to address the merits
of Plaintiffs’ argument. See Hollinger v. Sifers, 122 S.W.3d 112, 117 (Mo. Ct. App. 2003)
(recognizing that the stream of commerce theory can justify long-arm jurisdiction over a
non-resident defendant engaged in providing a service, but holding that the contact
requirements are more stringent when the basis for jurisdiction is a service rather than a
product); Bergherr v. Sommer, 523 N.W.2d 17, 22 (Minn. Ct. App. 1994) (applying stream
of commerce theory to assert jurisdiction over non-resident service provider who used an
intermediary to provide its services, rather than goods, to forum state residents). At this

9
early stage of the proceedings involving a motion to dismiss, I would conclude that
SereniCare’s voluntary participation in this commercial event, being conducted through the
stream of interstate commerce, was sufficient to establish minimum contacts and personal
jurisdiction in New Mexico.

{34} It is undisputed that the funeral services provided by SereniCare for the preparation
the Decedent’s body were part of a commercial interstate transaction. Majority Opinion ¶¶
1-4. Despite the fact that a portion of these funeral services were performed in Utah,
SereniCare was fully aware of the overall interstate transaction and the fact that these
services would conclude with the burial of Decedent’s body in New Mexico. Id. It is within
this specific factual context that SereniCare’s minimum contacts with the Plaintiffs and New
Mexico must be analyzed. Does this interstate activity by SereniCare invoke the benefits
and protections of New Mexico’s laws? Tarango, 94 N.M. at 729, 616 P.2d at 442
(recognizing that “it is essential in each case that there be some act by which the defendant
purposefully avails itself of the privilege of conduction activities within the forum [s]tate”).

{35} “A single transaction of business within the state can be sufficient to subject a
nonresident defendant to in personam jurisdiction in this state, provided that the cause of
action involved in the suit arises from the transaction of that particular business.” Visarraga
v. Gates Rubber Co., 104 N.M. 143, 146, 717 P.2d 596, 599 (Ct. App. 1986). It is also
important to consider whether minimum contacts are asserted under a “general (all-purpose)
or specific (case linked)” basis for personal jurisdiction. Sproul, 2012-NMCA-__, ¶ 9. It
is undisputed that this case only involved a specific burial transaction that originated in Utah
and was consummated in New Mexico. Majority Opinion ¶ 9. SereniCare has attempted to
isolate the portion of the transaction that occurred in Utah as a means of separating its
portion of the funeral services from the full interstate burial transaction that was being
arranged by Decedent’s family.

{36} Our courts recognize the liberalization and expansion of jurisdiction in state courts
over foreign corporations and nonresidents under the stream of commerce rule identified in
World-Wide Volkswagen. Visarraga, 104 N.M. at 148-49, 717 P.2d at 596, 601-02. As we
noted in Sproul, the delivery of “products into the stream of commerce with the expectation
that they will be purchased by consumers in the forum [s]tate” may be sufficient to satisfy
the foreseeability aspects of due process. 2012-NMCA-__, ¶ 20 (citation omitted).

{37} Where a business like SereniCare knowingly undertakes to participate in the
interstate commercial activity of burying a body in another state, their burial services
provided for the nonresident family are sufficiently foreseeable to purposefully avail their
business to the benefits and privileges of the state where the burial will ultimately occur.
The knowing and voluntary act of participating this type of specific interstate business
activity is neither random, fortuitous, or attenuated as asserted by the majority. See Majority
Opinion ¶ 16. If a single business transaction in interstate commerce can be sufficient to
establish minimum contacts with the forum of a nonresident, then the present case meets the
“nexus” test when applied to a specific personal jurisdiction scenario. Burial services are

10
a once in a lifetime event for every person. When SereniCare knowingly participates in the
burial services for an out-of-state family located in a nonresident forum, then New Mexico
should recognize that SereniCare is accepting the benefits and protections of our laws when
the ultimate burial occurs in this state. SereniCare’s voluntary decision to participate in this
type of individualized and case-specific interstate commerce should be sufficient to meet
minimum due process requirements and we should recognize that SereniCare has
purposefully availed itself to personal jurisdiction in New Mexico.

{38} In conclusion, I do not concur with the result reached by the majority in this case and
would reverse the district court’s decision to dismiss Plaintiffs’ claims against SereniCare.

____________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for M.R. v. Serenicare Funeral Home, L.L.C., No. 30,879

APPEAL AND ERROR
Standard of Review

CONSTITUTIONAL LAW
Due Process

JURISDICTION
Jurisdiction, General
Long-Arm Statute
Minimum Contacts
Personal Jurisdiction

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