                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    October 15, 2008
                    UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                      Clerk of Court




    ANDREA GOOD,

               Plaintiff-Appellant,

    v.                                                   No. 08-2061
                                            (D.C. No. 1:08-CV-00059-LFG-LAM)
    BIJAN KHOSROWSHAHI,                                   (D. N.M.)
    individually and in his capacity as
    President of Fuji Fire and Marine
    Insurance Company Ltd.; DAVID
    BUNTING, individually and in his
    capacity as attorney for the Rodey
    Law Firm; RODEY LAW FIRM;
    HAKODATE CITY HALL; TOYOMI
    TAKIMOTO, individually and in his
    capacity as attorney for the Asahi
    Koma Law Firm; KENJI INOUE,
    individually and in his capacity as
    attorney for the Asahi Koma Law
    Firm; ASAHI KOMA LAW FIRM;
    NORIO SUGAWARA, individually
    and in his capacity as attorney for
    Fuji Fire and Marine Insurance
    Company, Ltd; HAKODATE BAR
    ASSOCIATION, (Hakodate Bengoshi
    Kai),

               Defendants-Appellees.


                            ORDER AND JUDGMENT *

*
     After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
                                                                       (continued...)
Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.



      Andrea Good appeals from several orders leading to the dismissal of this

action asserting federal and state claims for the allegedly improper disclosure of

certain personal information during a prior lawsuit. We affirm.

      Ms. Good filed the prior suit against several Japanese citizens and entities,

invoking diversity jurisdiction in the federal district court in New Mexico. Some

of these defendants moved to dismiss on the ground that she, like they, actually

resided in Japan at all relevant times. In support of this motion their counsel,

defendants David Bunting and the Rodey Law Firm here, submitted copies of

Ms. Good’s Japanese alien registration and family registration documents, which

contained ages, birthdays, addresses, and marriage status information for her and

her family. When these materials were posted on the public Pacer docket system,

Ms. Good filed a motion in limine and complained of the disclosure of personal

information, some of which should have been redacted under the court’s privacy

policy (now reflected in Fed. R. Civ. P. 5.2). The district court dismissed the suit

without addressing this motion.


*
 (...continued)
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                         -2-
      Ms. Good then filed this action in state court alleging that the registration

documents had been improperly acquired and publicly disclosed without legally

required redaction, resulting in an actionable invasion of privacy. Defendant

Hakodate City Hall, a “foreign state” as defined in 28 U.S.C. § 1603(a), removed

the case to federal court under 28 U.S.C. § 1441(d), and the parties consented to

disposition by a magistrate judge under 28 U.S.C. § 636(c)(1).

      There are three groups of defendants: Hakodate City Hall, the government

source for some of the offending material; the Asahi Koma Law Firm, Hakodate

Bar Association, Bijan Khosrowshahi, Toyomi Takimoto, Kenji Inoue, and Norio

Sugawara (“foreign defendants”), who were allegedly involved in or accountable

for acquiring the material; and David Bunting and the Rodey Law Firm, who filed

the material without redaction. The magistrate judge granted dismissal for each

group on a distinct basis: the Foreign Sovereign Immunity Act (FSIA) barred suit

against Hakodate City Hall; there was no personal jurisdiction over the foreign

defendants; and the complaint failed to state a claim against Bunting and the

Rodey Law Firm. Ms. Good challenges the latter two decisions. 1



1
      She does not address the application of the FSIA to Hakodate City Hall and
has thus waived the point. See Utah ex rel. Div. of Forestry, Fire & State Lands
v. United States, 528 F.3d 712, 724 (10th Cir. 2008); Stein v. Disciplinary Bd.,
520 F.3d 1183, 1189 (10th Cir. 2008). In any event, we agree with the magistrate
judge that Hakodate City Hall’s immunity under the FSIA was not waived when it
exercised its right under § 1441(d) to remove the case from state to federal court.
See Rodriguez v. Transnave Inc., 8 F.3d 284, 288-89 (5th Cir. 1993).

                                         -3-
                 Personal Jurisdiction over Foreign Defendants

      We review a dismissal for lack of personal jurisdiction de novo, asking

whether the plaintiff made a prima facie showing of facts that, if true, support

jurisdiction over the defendants. Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1065

(10th Cir. 2007). We accept the plaintiff’s allegations as true if uncontradicted

by evidence from the defendants, and resolve evidentiary disputes in favor of

jurisdiction. Id. But these favorable principles apply only to well-pled facts;

conclusory assertions in pleadings or other materials will not suffice to establish

jurisdiction. See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063,

1070 (10th Cir. 2008).

      In diversity and civil rights cases, personal jurisdiction is ultimately a

question of due process when, as here, the forum state has a long-arm statute with

a reach coextensive with the Due Process Clause:

             In determining whether a federal court has personal
      jurisdiction over a defendant, the court must determine (1) whether
      the applicable statute potentially confers jurisdiction by authorizing
      service of process on the defendant and (2) whether the exercise of
      jurisdiction comports with due process. Because 42 U.S.C. § 1983
      does not, by itself, confer nationwide service of process or
      jurisdiction upon federal district courts to adjudicate claims,
      Fed.R.Civ.P. 4(k)(1)(A) refers us to the New Mexico long-arm
      statute, which is coextensive with constitutional limitations imposed
      by the Due Process Clause. See Tercero v. Roman Catholic Diocese,
      132 N.M. 312, 48 P.3d 50, 54 (N.M.2002). Thus, if jurisdiction is
      consistent with the Due Process Clause, then New Mexico’s long-arm
      statute authorizes jurisdiction over a nonresident defendant.




                                         -4-
Trujillo v. Willaims, 465 F.3d 1210, 1217 (10th Cir. 2006) (quotation, citations,

and footnote omitted); see also Melea, 511 F.3d at 1065 (holding to same effect

in diversity case). To satisfy due process, Ms. Good must show that the foreign

defendants had “minimum contacts” with New Mexico sufficient to anticipate

being haled into courts there and, if so, that the exercise of personal jurisdiction

based on such contacts is consistent with “traditional notions of fair play and

substantial justice.” Melea, 511 F.3d at 1065-66 (quotations omitted). Here, as

in Melea, “[w]e need only consider the first of these steps, as we conclude that

[defendants] had insufficient contacts with [New Mexico] to permit the exercise

of jurisdiction over [them] in that state.” Id. at 1066.

      There are two ways, one general and one specific, to demonstrate the

requisite minimum contacts. “First, if a defendant has ‘continuous and systematic

general business contacts’ with the forum state, it may be subjected to the general

jurisdiction of the forum state’s courts.” Id. (quoting Helicopteros Nacionales de

Colombia v. Hall, 466 U.S. 408, 416 (1984)). “Second, even in the absence of

‘continuous and systematic’ contacts, a state’s courts may exercise specific

jurisdiction over a defendant that ‘purposefully directed’ its activities at the

state’s residents, if the cause of action arises out of those activities.” Id. (quoting

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).




                                           -5-
      The magistrate judge thoroughly considered the circumstances of each of

the foreign defendants and concluded that minimum contacts for either general or

specific jurisdiction did not exist. See R. Doc. 38 (Amended Memorandum

Opinion and Order Granting Defendants’ Motions to Dismiss for Lack of Personal

Jurisdiction), at 8-24. Ms. Good takes issue with this analysis in only one

particular respect, arguing that the magistrate judge erred by “applying a normal

jurisdiction[al] analysis to this case,” i.e., by “fail[ing] to consider [her allegation

of] conspiracy” in assessing the foreign defendants’ contacts with New Mexico.

Aplt. Opening Br. at 19; see id. at 20 (noting magistrate judge “consider[ed] in

fair detail the jurisdictional analysis,” but arguing he failed to give “consideration

to the jurisdictional arguments behind conspiracy”).

      “In order for personal jurisdiction based on a conspiracy theory to exist, the

plaintiff must offer more than ‘bare allegations’ that a conspiracy existed, and

must allege facts that would support a prima facie showing of a conspiracy.”

Melea, 511 F.3d at 1069 (quoting Lolavar v. de Santibanes 430 F.3d 221, 229

(4th Cir. 2005)). Ms. Good’s pleadings clearly fail in this respect. She claimed

that the foreign defendants were to blame in various ways for the release of her

registration materials through improper means (misrepresentations by defendant

Sugawara), R. Doc. 1, Ex. 1 at 3-4, 6, and that Bunting and the Rodey Law Firm

were to blame for the unredacted manner in which the materials were filed in the

prior case, id. at 4, 6, but nowhere did she allege that either was aware of the

                                           -6-
alleged misconduct of the other—much less that they had a prior conspiratorial

agreement as to such matters. The only factual allegations touching on concerted

action had to do with a common understanding among the foreign defendants

regarding the improper acquisition of the registration materials in Japan, see id. at

8, not between the foreign defendants and Bunting and the Rodey Law Firm

regarding the latters’ unredacted filing of the materials in New Mexico. As to

any connection that could tie the foreign defendants to the alleged wrongful

conduct of Bunting and the Rodey Law Firm in the forum state, we have only the

bare conclusory allegation that “Defendants . . . conspired to violate Good’s civil

rights to due process.” Id. at 7. That is a plainly inadequate basis on which to

extend any personal jurisdiction existing over Bunting and the Rodey Law Firm to

reach the foreign defendants.

      As the magistrate judge explained at length, the foreign defendants do not

reside, conduct business, own property, or have personal or professional interests

in New Mexico. Nor does the retention of Bunting and the Rodey Law Firm as

local counsel to defend against the prior suit that Ms. Good unilaterally chose to

bring in New Mexico constitute purposeful contact by defendants with the forum.

Petrik v. Pub. Serv. Mut. Ins. Co., 879 F.2d 682, 683-84 (9th Cir. 1989); cf. Far

West Capital, Inc. v. Towne, 46 F.3d 1071, 1076 (10th Cir. 1995) (rejecting

suggestion that retaining counsel to consult on a transaction would establish

minimum contacts with counsel’s home forum). Aside from her unsubstantiated

                                         -7-
conspiracy theory, Ms. Good does not assert any particular error in the magistrate

judge’s jurisdictional analysis and, under the circumstances, we shall not belabor

the matter with further discussion of our own. It is not the province of this court

to advocate on behalf of litigants (counseled or pro se) by attempting to construct

for them potential arguments of either a legal or factual nature. Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005); SEC v. Thomas,

965 F.2d 825, 826-27 (10th Cir. 1992).

                   Claims against Bunting and Rodey Law Firm

      The magistrate judge dismissed the case against Bunting and the Rodey

Law Firm (in this section referred to as “defendants”) for failure to state a claim.

We review that decision de novo, applying the same standard as the magistrate

judge. Anderson v. Suiters, 499 F.3d 1228, 1232 (10th Cir. 2007). Thus, we

affirm the dismissal if, viewing the well-pleaded factual allegations as true and in

a light most favorable to the plaintiff, the complaint does not contain enough facts

to state a claim to relief that is plausible on its face. Id.

      Ms. Good alleged that defendants violated her privacy by filing, without

redaction on a publicly accessible electronic docket, her alien and family

registration materials from Japan. The magistrate judge carefully analyzed the

broadly framed complaint in terms of several possible claims: (1) a professional

negligence claim; (2) a constitutional (civil rights) claim; (3) a cause of action for

violation of the court’s privacy policy, now set out in Rule 5.2; and (4) a common

                                           -8-
law tort claim for invasion of privacy. The magistrate judge properly dismissed

the first three claims for basic legal deficiencies that may be summarized briefly

as follows: (1) under New Mexico law, attorneys owe a professional duty of care

only to their clients and thus cannot be held liable for professional negligence to

an adversary, Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 750 P.2d

118, 122 (N.M. 1988); (2) defendants were not state actors or acting under color

of state law and thus cannot be liable for a civil rights violation under 42 U.S.C.

§ 1983, Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (“The conduct of

an attorney acting in his professional capacity while representing his client does

not constitute action under color of state law for the purposes of § 1983.”

(quotation omitted)); and (3) rules governing procedure in the federal courts do

not give rise to private causes of action, see Living Designs, Inc. v. E.I. DuPont

De Nemours, 431 F.3d 353, 372 (9th Cir. 2005); Digene Corp. v. Ventana Med.

Sys., Inc., 476 F. Supp. 2d 444, 452 (D. Del. 2007); Rogers v. Furlow, 729 F.

Supp. 657, 660 (D. Minn. 1989).

      The magistrate judge’s dismissal of the privacy tort claim was justified on

several bases. First, the tort concerns the publication of “intimate or private facts

about the plaintiff, such as matters concerning [her] sexual life or health.” Moore

v. Sun Publ’g Corp., 881 P.2d 735, 743 (N.M. App. 1994) (quotation omitted).

The magistrate judge held that the information at issue here, involving birthdays,

marriages, and addresses, is not “intimate or private,” at least not on the order of

                                          -9-
sexual or personal health matters. Ms. Good has not offered any argument or

legal authority to call that judgment into question. Second, the publication of

facts that have already been publicly disclosed is not actionable, see McNutt v.

New Mexico State Tribune Co., 538 P.2d 804, 808 (N.M. App. 1975), and the

magistrate judge noted that nearly all of the information at issue here had been

previously disclosed by Ms. Good herself. And, we would add, to the extent she

relies on defendants’ publication of the birthdays of her husband and children,

which she had not previously disclosed, that is not a matter of which she has

standing to complain. See Gruschus v. Curtis Publ’g Co., 342 F.2d 775, 776

(10th Cir. 1965) (holding, under New Mexico law, that children could not sue for

invasion of father’s privacy because the cause of action does not extend to “one

whose own privacy has not been invaded”). Lastly, New Mexico recognizes a

privilege insulating from suit “any publication made in a court of justice,” which

encompasses court records. Hubbard v. Journal Publ’g Co., 368 P.2d 147, 148

(N.M. App. 1962) (quotation omitted) (dismissing privacy claim based on

newspaper’s publication of information in court records). For any and all of these

reasons, the magistrate judge properly dismissed Ms. Good’s tort claim against

defendants.

      Finally, we note that Ms. Good objects to all of the dismissal orders here on

the ground that opposing counsel did not first inquire whether she would concur

in their motions to dismiss before filing them. A local rule governing general

                                        -10-
motions practice directs movants to seek the concurrence of opposing parties

before filing motions and states that a motion neglecting to recite that this has

been done “may be summarily denied.” D.N.M.LR.7.4(a) (moved to D.N.M.LR

7.1(a) effective September 9, 2008). The magistrate judge expressly declined to

deny the motions on this basis, noting that it was obvious that Ms. Good would

oppose defendants’ motions seeking the dismissal of her case. The Rule clearly

affords the trial court discretion to overlook noncompliance, and we cannot say

the magistrate judge abused that discretion here. See Amundsen v. Jones, 533

F.3d 1192, 1197 (10th Cir. 2008) (“We review a district court’s application of its

local rules for an abuse of discretion.”).

                      Prejudicial Effect of Dismissal Orders

      Ms. Good complains that the magistrate judge dismissed her claims against

Bunting and the Rodey Law Firm with prejudice. But that was the appropriate

disposition of those claims, which were dismissed on the merits for legal defects

that could not be cured by amendment. See Brereton v. Bountiful City Corp.,

434 F.3d 1213, 1219 (10th Cir. 2006) (citing Curley v. Perry, 246 F.3d 1278,

1282 (10th Cir. 2001), and Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th

Cir. 1997)). Indeed, her only argument in this respect is a restatement of her

position that she stated a viable claim against these defendants—which, of course,

we have rejected for the reasons explained above.




                                             -11-
      In this vein, we consider it prudent to clarify for Ms. Good that while her

claims against the other defendants failed for jurisdictional reasons and thus were

properly dismissed without prejudice, see Brereton, 434 F.3d at 1218 (reaffirming

this circuit’s “longstanding line of cases requiring that a dismissal for lack of

jurisdiction be without prejudice”), “even a dismissal without prejudice will have

a preclusive effect on the [dispositive jurisdictional] issue in a future action,” id.

at 1218-19 (emphasis added). That is, although the merits of her underlying

claims were not resolved here, the judgment in this case precludes relitigation of

the jurisdictional issues that have defeated her effort to prosecute those claims in

federal court. Id. at 1219.

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      John C. Porfilio
                                                      Circuit Judge




                                          -12-
