F I L E D

United States Court of Appeals

Tenth Circuit

OCT 13 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAPHAEL F. NEVINS,

Plaintiff-Appellant/Cross-Appellee,

v.

MCKINLEY CAPITAL MANAGEMENT,

INC., an Alaska corporation,

Defendant-Appellee,

MCKINLEY SELECT, LTD., (Bermuda), a

Bermuda exempt company; MCKINLEY

OFFSHORE MANAGEMENT, LTD, a

Bermuda exempt company; MCKINLEY

PARTNERS LLC, a Delaware limited

liability company; ROBERT B. GILLAM,

individually, as Chief Investment Officer of

McKinley Capital Management, Inc., as

Director of McKinley Select (Bermuda) Ltd.

and as Director of McKinley Offshore

Management Ltd.; DIANE WILKE,

individually and as Chief Operating Officer

and Compliance Officer of McKinley Capital

Management, Inc., and as Director of

McKinley Offshore Management, Ltd.;

CHRISTOPHER J. GUPTILL, individually

and on behalf of McKinley Capital

Management, Inc.; ERIC SIPPEL,

individually and as partner in Shartsis, Friese

& Ginsburg, LLP, a law firm in San

Francisco, CA,

Defendants-Appellees/CrossAppellants.

Nos. 97-2355

 97-2364

 97-2365

(D.C. No. CIV-96-1387-BB)

(D.N.M.)
*This order and judgment is not binding precedent, except under the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.

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ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, ANDERSON and HENRY, Circuit Judges.

This suit arises out of an alleged agreement between Raphael Nevins, a

New York resident, and McKinley Capital Management, Inc. (MCM), an Alaskabased corporation, to set up an off-shore investment fund. Per the agreement, Mr. 

Nevins worked from New York with Eric Sippel of Shartsis, Friese & Ginsburg, 

MCM’s California-based law firm. In late 1995, MCM and Mr. Sippel ceased all

communications with Mr. Nevins. Mr. Nevins asserts he continually attempted to

contact defendants, but to no avail. In early 1996, Mr. Nevins moved to New

Mexico where he continued his attempts to contact defendants. Mr. Nevins

eventually discovered the offshore investment fund had already been formed and

filed suit in New Mexico claiming breach of contract and various business torts

against MCM, all of the companies formed in accordance with the agreement, the

executives of MCM as individuals, the firm of Shartsis, Friese & Ginsburg, and

Mr. Sippel individually. Mr. Nevins appeals the district court’s dismissal of his
1N.M. Stat. Ann. § 38-1-16(a) states, “Any person, whether or not a citizen

or resident of this state, who in person or through an agent does any of the acts

enumerated in this subsection thereby submits himself or his personal

representative to the jurisdiction of the courts of this state as to any cause of

action arising from: (1) the transaction of any business within this state; . . . (3)

the commission of a tortious act within this state; . . . .

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suit against all named defendants for lack of personal jurisdiction. All defendants

except MCM cross-appeal the district court’s denial of their motions for

imposition of Rule 11 sanctions. We affirm in part and remand in part.

On a motion to dismiss for lack of personal jurisdiction, the plaintiff must

show that the district court has power over each foreign defendant under the

state’s long-arm statute and that exercise of such jurisdiction is consistent with

due process limitations. See Far West Capital, Inc., v. Towne, 46 F.3d 1071,

1074 (10th Cir. 1995). We review de novo a dismissal for lack of personal

jurisdiction. See Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523,

1533 (10th Cir. 1996).

New Mexico’s long-arm statute, N.M. Stat. Ann. § 38-1-16 (Michie 1978),1

requires a pled cause of action to arise out of the same activity by which the

foreign defendant submitted to New Mexico’s personal jurisdiction. See CABA,

Ltd. Liab. Co. v. Mustang Software, Inc., 1999 WL 428242 at *8 (N.M. Ct. App.

May 25, 1999). Mr. Nevins’ complaint alleges breach of a contract negotiated

and formed in New York and Alaska. Mr. Nevins’ claims do not arise from any

of defendants’ activities within or contacts with New Mexico.
2Mr. Nevins asserts that he was harmed within New Mexico by MCM’s and

related defendants’ breach and tortious conduct, thereby satisfying § 38-1-16. 

This argument ignores New Mexico law holding that the mere effect in New

Mexico of wrongful activity elsewhere does not confer jurisdiction on its courts. 

See DeVenzeio v. Rucker, Clarkson & McCashin, 918 P.2d 723, 727 (N.M. Ct.

App. 1996).

3Mr. Nevins also claims MCM is generally present in New Mexico, thereby

permitting personal jurisdiction over it. See Visarraga, 717 P.2d at 601 (where

activities of a nonresident defendant are extensive, systematic and continuous,

New Mexico courts may subject the defendant to personal jurisdiction on a cause

of action unrelated to those activities). Although he put forth evidence that MCM

had a license from the New Mexico Securities Division, Mr. Nevins did not

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The analysis does not end there, however. New Mexico courts equate the

transaction of business or tortious conduct requirements of section 38-1-16 with

the due process requirement of minimum contacts. See CABA, 1999 WL 428242,

at *3 (quoting Telephonic, Inc. v. Rosenblum, 543 P.2d 825, 827 (N.M. 1975)). In

this case, defendants had no contacts with New Mexico that led to the subject

matter of this suit other than Mr. Nevins’ decision to relocate there.2 Defendants

cannot be subjected to personal jurisdiction in New Mexico merely because of

Mr. Nevins’ unilateral act. See Burger King Corp. v. Rudzewicz, 471 U.S. 462,

474-75 (1985); Visarraga v. Gates Rubber Co., 717 P.2d 596, 600 (N.M. Ct. App.

1986). In addition, Mr. Sippel’s and his firm’s alleged malpractice in California

is not considered a contact with New Mexico establishing personal jurisdiction. 

See DeVenzeio, 918 P.2d at 727. The district court’s dismissal of all defendants

was therefore proper.3
timely present any evidence regarding its actual engagement in business or the

volume of its business in New Mexico. Mr. Nevins attempted to enter evidence

regarding the MCM office in Santa Fe, its web site, and copies of its

advertisements, but the district court refused to admit such evidence as untimely. 

We will not consider evidence that was not properly before the district court. 

Thus, we have no basis for considering Mr. Nevins’ argument that MCM is

generally present in New Mexico.

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Mr. Nevins further asserts MCM consented to personal jurisdiction in New

Mexico by signing a waiver consenting to service of process when registering

with the New Mexico Securities Division. The waiver was specific, however,

consenting only to service for those actions arising out of its investment advisor

activities. See N.M. Stat. Ann. § 58-13B-50 (Michie 1978). Since Mr. Nevins’

complaint does not arise out of MCM’s investment advisor activities, MCM’s

consent does not extend to this action.

All defendants except MCM cross-appeal the district court’s refusal to

impose Rule 11 sanctions against Mr. Nevins for filing this complaint. We

review the denial of Rule 11 sanctions for an abuse of discretion. See Barrett v.

Tallon, 30 F.3d 1296, 1301 (10th Cir. 1994). Whether Rule 11 sanctions are

available is determined by an objective standard of reasonableness. See Adamson

v. Bowen, 855 F.2d 668, 673 (10th Cir. 1988). 

Judge Black stated he declined to impose sanctions because as an attorney

he had asserted similar arguments, thus implying Mr. Nevins’ complaint was

reasonable. See Aplee. Jt. App. at 227, 257. This statement was clearly directed
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at Mr. Nevins’ complaint against the non-lawyer defendants. See id. at 227

(citing Budde v. Ling-Temco-Vaught, Inc., 511 F.2d 1033 (10th Cir. 1975)

(holding service on New Mexico corporation’s statutory service agent ineffective

to establish jurisdiction for cause of action unrelated to corporation’s activities in

state). We are not convinced the district court abused its discretion in so deciding

as to those defendants. It is not clear, however, whether Judge Black gave

separate consideration to the lawyer-defendants’ arguments regarding

reasonableness. See id. at 257. We therefore remand this case to Judge Black to

separately state whether Mr. Nevins should or should not be sanctioned under

Rule 11 for filing this complaint against the lawyer-defendants, and to state his

reasons for so deciding. See Griffen v. City of Oklahoma City, 3 F.3d 336, 340 &

340 n.4 (10th Cir. 1993).

We AFFIRM in part and REMAND in part.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge