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April 24th, 2013

Forum Shopping in the Other ‘Las Vegas’

Apparently tired of living in the shadow of Las Vegas, Nevada, jackpot justice capital of the Mountain West, little Las Vegas, New Mexico, in rural San Miguel County, has now become notorious for forum shopping as it vies for Judicial Hellholes status in its own right.

At least since 2007, when the Albuquerque Journal reported on a wrongful death lawsuit following a car crash, San Miguel and other “northern New Mexico counties have” been known for their history of “excessively generous” damages awards “against out-of-state defendants.”

Though New Mexico’s venue statute is fairly standard and requires that lawsuits be heard in the county where either the plaintiff resides, the defendant resides or does business, or where the cause of action (or injury) allegedly occurred, defense counsel say another law on the books offers a loophole through which a personal injury lawyer can drive a big rig.

PERSONAL REPRESENTATIVES

The Land of Enchantment’s law governing wrongful death claims requires them to “be brought by and in the name of the personal representative of the deceased person.”  NMSA 1978, § 41-2-3 (2001).  But a personal representative need not be a relative of the deceased or have any particular connection to the action, and courts there have broadly construed who qualifies as a personal representative under the Wrongful Death Act.

If a personal representative may be considered a “plaintiff” under the New Mexico venue statute, then a plaintiff’s estate can bring suit in any county in the state as long as its personal representative resides in that county.  And not coincidentally, a growing cottage industry now comprises a number of personal injury lawyers who just happen to reside these days in notoriously plaintiff-friendly San Miguel County.

REFORM LEGISLATION REQUIRED

Some other states’ courts have limited venue relative to personal representatives, but New Mexico courts have not.  Though New Mexico’s courts have acknowledged the concerns about forum shopping raised by defendants, they’ve said that reform must come from the legislature.  See Gardiner, 142 N.M. at 549, 168 P.3d at 121 (“[R]egardless of the policy choices that may have motivated the particular language of the venue statute, to the extent they are not reflected in the current statute, it is for the Legislature to address.”); First Fin. Trust Co., 122 N.M. at 577, 929 P.2d at 268 (“If intrastate forum shopping is objectionable, then this must be remedied by legislative action not judicial intervention.”).

So Judicial Hellholes reporters hereby put New Mexico’s lawmakers in Santa Fe on notice.  It’s time to crack down on forum shopping, or your Land of Enchantment will soon be branded as a Judicial Hellhole instead.

 

 

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