Filed: Patrick Fisher

F I L E D
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
APR 27 2004
PATRICK FISHER
Clerk
SHANNON YOUNG,
Plaintiff - Appellant,
v.
STATE GOVERNMENT OF
OKLAHOMA; STEPHEN P. GRAY,
individually; FORREST DAVID
NELSON, individually; KELLY
BURKE, individually; RUDY
BRIGGS, individually; BRUCE G.
SEWELL, individually; JOHN DOES,
1-12; JANE DOES, 1-12,
No. 03-2180
District of New Mexico
(D.C. No. CIV-02-1577 LH/RHS)
Defendants - Appellees.
ORDER AND JUDGMENT
Before EBEL , MURPHY , and McCONNELL , Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
of this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument.

Mr. Young appeals from the district courts dismissal of his complaint for
lack of personal jurisdiction. Because we conclude that the district court lacked
personal jurisdiction over the defendants and that the district court did not err or
abuse its discretion in dismissing, rather than transferring, the case, we affirm the
district court.
Background
In September 1999, Mr. Young was the defendant in a divorce proceeding
in Oklahoma. The divorce decree was entered January 6, 2000. In May 2001, his
ex-wife filed an application for citation for contempt, alleging failure to pay
alimony and to abide by other requirements of the divorce decree. After a hearing
on December 18, 2001, Mr. Young was found guilty of contempt and sentenced to
sixty days in county jail. On December 28, 2001, Mr. Young paid $3,900 to
expunge his sentence, and was released from custody. Subsequently, Mr. Youngs
Oklahoma home was sold at a sheriffs sale, and the sale was confirmed by an
Order of Disbursement on April 5, 2002.
Mr. Young filed suit
pro se in the Federal District Court for the District of
New Mexico against the Government of Oklahoma and the judges, officers and
attorneys involved in the divorce and contempt proceedings, alleging various
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constitutional violations. The defendants moved to dismiss for lack of personal

jurisdiction. The district court found Mr. Young had failed to allege facts
sufficient to confer personal jurisdiction under both the due process clause and
relevant New Mexico law. Mr. Young appeals from this dismissal.
Discussion
Because Mr. Young appears
pro se , we construe his arguments broadly.
See, e.g. , United States v. Distefano , 279 F.3d 1241, 1244 (10th Cir. 2002).
Construed broadly, Mr. Young presents two arguments on appeal: first, that the
district court erred when it found it lacked personal jurisdiction over the
defendants; and second, that it abused its discretion in deciding to dismiss the
case without prejudice rather than transferring the case pursuant to 28 U.S.C.
1631. Neither argument has merit.
1. Personal Jurisdiction
We review the district courts determination of personal jurisdiction
novo. OMI Holdings, Inc. v. Royal Ins. Co. of Canada
de
, 149 F.3d 1086, 1091
(10th Cir. 1998). The plaintiff bears the burden of alleging and proving facts that
support the exercise of personal jurisdiction, though in the absence of an
evidentiary hearing, he need only make a prima facie showing of personal
jurisdiction.
Id. Two requirements must be met for a federal district court to
assert personal jurisdiction over a defendant.

-3-
United States v. Botefuhr , 309 F.3d
1263, 1271 (10th Cir. 2002). First, the defendant must be subject[] to the
jurisdiction of a court of general jurisdiction in the state in which the district
court is located. Fed. R. Civ. P. 4(k)(1)(A). Second, the exercise of personal
jurisdiction must not offend the due process clause of the Fourteenth
Amendment. Botefuhr , 309 F.3d at 1271 (quoting
Far West Capital, Inc. v.
Towne , 46 F.3d 1071, 1074 (10th Cir. 1995)). Mr. Young has failed to allege
facts sufficient to meet either requirement.
New Mexico applies a three part test to determine whether personal
jurisdiction lies, asking: (1) whether the defendant committed an act or omission
specifically set forth in the statute; (2) whether the cause of action arises out of
that act or omission; and (3) whether the defendant has sufficient minimum
contacts to satisfy due process concerns. Tercero v. Roman Catholic Diocese of
Norwich, Connecticut , 48 P.3d 50, 54 (N.M. 2002). The statute has been
interpreted to extend[] the jurisdictional reach of New Mexico as far as
constitutionally permissible. Thus, the personal jurisdiction inquiry largely
collapses into the constitutional due process analysis.
See id . at 54-55, 57.
Under the Constitution, the defendant must have sufficient minimum

contacts with the forum state that allowing the action will not offend traditional
conceptions of fair play and substantial justice.
Intl Shoe Co. v. Washington , 326
U.S. 310, 319-20 (1945). It is essential in each case that there be some act by
-4-
which the defendant purposefully avails itself of the privilege of conducting

activities within the forum State, thus invoking the benefits and protections of its
laws. Hanson v. Denkla , 357 U.S. 235, 253 (1958). [T]he defendants conduct
and connection with the forum State [must be] such that he should reasonably
anticipate being haled into court there.
World-Wide Volkswagen Corp. v.
Woodson , 444 U.S. 286, 297 (1980).

In the instant case, the defendants lack the requisite minimum contacts with
New Mexico. After reviewing the record and the briefs we conclude, as the
district court did, that:
According to all allegations and proof before this Court, all of the
Defendants reside in the State of Oklahoma, and all of the actions
complained of occurred in the State of Oklahoma. There is nothing
in the record to indicate that any of the Defendants has ties to the
State of New Mexico, with the exception of this lawsuit.
Mem. Opinion & Order of Dismissal Without Prejudice at 2. Moreover, aside
from asserting that he does not concede the claim, Appellants Reply Br. at 3, Mr.
Youngs briefs are devoid of any argument, factual or legal, that the defendants
had sufficient contacts with New Mexico to allow the district court to exercise
personal jurisdiction over them. We find the district court did not err in holding
it lacked personal jurisdiction over defendants, and agree that the exercise of such
jurisdiction in this case would violate the defendants due process rights.
-5-
2. Transfer Under 28 U.S.C. 1631

Mr. Young argues that even if the district court lacked personal
jurisdiction, it should have transferred the case, pursuant to 28 U.S.C. 1631,
rather than dismissing the case without prejudice. Section 1631 reads in relevant
part:
Whenever a civil action is filed in a court . . . and that court finds
that there is a want of jurisdiction, the court shall, if it is in the
interest of justice, transfer such action . . . to any other such court in
which the action or appeal could have been brought at the time it was
filed or noticed, and the action or appeal shall proceed as if it had
been filed in or noticed for the court to which it is transferred on the
date upon which it was actually filed or noticed for the court from
which it is transferred.
28 U.S.C. 1631.
Defendants argue Mr. Young waived any right to have the case transferred
by not timely requesting transfer before the district court. For purposes of this
case, we assume, without deciding, that the mandatory language of Section 1631
requires a court to consider the merits of transfer before dismissing a case for
lack of jurisdiction, and that Mr. Young therefore cannot have waived his right to
a transfer.
See Miller v. Hambrick , 905 F.2d 259, 262 (9th Cir. 1990) (Although
Miller did not move the district court to transfer the case, we have held that [a]
motion to transfer is unnecessary because of the mandatory cast of section 1631's
instructions. (quoting
In re McCauley , 814 F.2d 1350, 1352 (9th Cir. 1987)).
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Mr. Young argues the word shall in Section 1631 mandates transfer in all
cases where a lack of jurisdiction can be cured by transfer. However, this Court
and others have interpreted the phrase if it is in the interest of justice to confer
discretion on the trial court in making a decision to transfer an action or to
dismiss without prejudice.
Botefuhr , 309 F.3d at 1274 n.8; see also Phillips v.
Seiter , 173 F.3d 609, 610 (7th Cir. 1999). We therefore review the district courts
failure to transfer the case under Section 1631 for an abuse of discretion.
e.g. , Paul v. I.N.S. , 348 F.3d 43, 47 (2d Cir. 2003);
See,
cf. Trierweiler v. Machol,
Davis & Michael, P.C. , 90 F.3d 1523, 1543 (10th Cir. 1996).
Factors considered in deciding whether a transfer is in the interests of
justice include whether the claims would be barred by a statute of limitations if
filed anew in the proper forum,
e.g. Haugh v. Booker , 210 F.3d 1147, 1150 (10th
Cir. 2000) (citing Coleman v. United States , 106 F.3d 339, 341 (10th Cir. 1997)),
whether the claims alleged are likely to have merit,
e.g. Haugh , 210 F.3d at 1150
(citing Phillips , 173 F.3d at 610), and whether the claims were filed in good faith
or if, on the other hand, it was clear at the time of filing that the court lacked the
requisite jurisdiction,
Trierweiler , 90 F.3d at 1544 ([I]t is not in the interest of
justice to transfer where a plaintiff either realized or should have realized that the
forum in which he or she filed was improper.).
-7-
In this case, even if we assume Mr. Youngs complaint will be time-barred

if refiled in Oklahoma, the other factors outweigh this consideration and render
transfer not in the interests of justice.
See Haugh , 210 F.3d at 1150-51 (finding
lack of merit outweighed the fact that claims would be time-barred if not
transferred).
First, Mr. Youngs complaint is unlikely to have merit.
See id . at 1150
([A] court is authorized to consider the consequences of a transfer by taking a

peek at the merits to avoid raising false hopes and wasting judicial resources that
would result from transferring a case which is clearly doomed (quoting
Phillips ,
173 F.3d at 610-11)). Essentially, Mr. Young complains of the results of an

ordinary divorce proceeding and an ordinary contempt proceeding following
failure to pay alimony. It is unlikely that any of Mr. Youngs rights were violated
by either proceeding and even if they were, it seems unlikely that Mr. Young will
be able to show a lack of governmental immunity on the part of the state actors.
Our peek at the merits of Mr. Youngs case lead us to believe that to transfer
Mr. Youngs case would raise false hopes and waste judicial resources.
Second, Mr. Young, though appearing
pro se , must have been aware that all
the parties he attempted to sue had little or no contact with the state of New
Mexico and that Oklahoma would be the proper forum.
See Keaveney v. Larimer ,
242 F.3d 389, 2000 WL 1853994, *2 (10th Cir. Dec. 19, 2000) (Keaveneys pro
-8-
se status does not excuse his obligation to comply with the procedural rules,
including jurisdiction . . . . This is not a case in which jurisdiction . . . turned on
the existence of some elusive fact about which Keaveney made an erroneous
guess. Rather, the error here is obvious (internal citations and quotation marks
omitted)). Mr. Youngs failure to file his complaint in the proper forum cannot
be excused as a good faith technical error, and therefore this second factor does
not militate in favor of transfer.
Considering these factors in combination, we find transfer would not be in
the interests of justice, and that therefore the district court did not err or abuse its
discretion in ordering dismissal rather than transferring the case to the District of
Oklahoma.
The judgment of the United States District Court for the District of New
Mexico, dismissing Appellant's case for lack of personal jurisdiction over the
Defendants, is AFFIRMED .
Entered for the Court,
Michael W. McConnell
Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

ORDER AND JUDGMENT

Before EBEL , MURPHY , and McCONNELL , Circuit Judges.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore submitted without oral argument.

pro se in the Federal District Court for the District of

constitutional violations. The defendants moved to dismiss for lack of personal

pro se , we construe his arguments broadly.

, 149 F.3d 1086, 1091

Id. Two requirements must be met for a federal district court to

assert personal jurisdiction over a defendant.

United States v. Botefuhr , 309 F.3d

Far West Capital, Inc. v.

See id . at 54-55, 57.

Under the Constitution, the defendant must have sufficient minimum

Intl Shoe Co. v. Washington , 326

which the defendant purposefully avails itself of the privilege of conducting

World-Wide Volkswagen Corp. v.

Woodson , 444 U.S. 286, 297 (1980).

2. Transfer Under 28 U.S.C. 1631

In re McCauley , 814 F.2d 1350, 1352 (9th Cir. 1987)).

Botefuhr , 309 F.3d at 1274 n.8; see also Phillips v.

cf. Trierweiler v. Machol,

e.g. Haugh v. Booker , 210 F.3d 1147, 1150 (10th

e.g. Haugh , 210 F.3d at 1150

Trierweiler , 90 F.3d at 1544 ([I]t is not in the interest of

In this case, even if we assume Mr. Youngs complaint will be time-barred

See Haugh , 210 F.3d at 1150-51 (finding

([A] court is authorized to consider the consequences of a transfer by taking a

173 F.3d at 610-11)). Essentially, Mr. Young complains of the results of an

pro se , must have been aware that all

See Keaveney v. Larimer ,

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