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Seng v. Americana Investments, LLC

United States District Court, D. Colorado

August 20, 2014

CHUN CHEE SENG, Plaintiff,
v.
AMERICANA INVESTMENTS, LLC, MARGARET
v.
ANDERSON-CLARKE, ANDERSON-CLARKE LAW, BRIAN D. WEST, and WEST LAW GROUP, P.C., Defendants.

ORDER RE: RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ROBERT E. BLACKBURN, District Judge.

The matters before me are (1) the Recommendation of United States Magistrate Judge [#91], [1] filed July 28, 2014; and (2) Plaintiff's Objection to the Finding and Recommendation of the United States Magistrate Judge To Dismiss Defendants Brian D. West and West Law Group P.C. [#100], filed August 6, 2014. I overrule the objection, adopt the recommendation, and grant the apposite motion to dismiss for lack of personal jurisdiction over the movants in this forum.

As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed, and have considered carefully the recommendation, objections, and applicable caselaw. The recommendation is detailed and well-reasoned. It is clear that there is no general personal jurisdiction over these defendants in Colorado, and plaintiff does not argue otherwise. As for specific, personal jurisdiction, it is true that Colorado has adopted the minority view in "show[ing] no hesitation to exercise jurisdiction over out-of-state attorneys." Newsome v. Gallacher, 722 F.3d 1257, 1280 (10th Cir. 2013) (citing Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40 P.3d 1267, 1272-73 (Colo. 2002)).[2] Nevertheless, in applying this precept, Colorado courts have done no more than allow a Colorado resident to sue its own out-of-state attorney based on an ongoing relationship. See, e.g., Keefe, 40 P.3d at 1270; Scheuer v. District Court, in and for City and County of Denver, 684 P.2d 249, 251-52 (Colo. 1984); Waterval v. District Court in and for El Paso County, 620 P.2d 5, 8 (Colo. 1980). Plaintiff cites no authority, and the court has found none, that expands this principle to allow a non-resident to sue a Colorado corporation's out-of-state attorney based on that attorney's representation of his Colorado client. In these circumstances, defendants' contacts with this state are far too tenuous to satisfy the requirements of due process.[3]

Plaintiff's belated, alternative request - raised within the context of his objection - to transfer this case to the Eastern District of Virginia fails on at least three grounds. First, matters raised for the first time in an objection are deemed waived. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). Second, the local civil rules of this district require that a motion be filed in a separate paper. D.C.COLO.LCivR 7.1(d). Third, plaintiff's bare bones invocation of the transfer statute, proffered without any effort to show how the requirements of the statute are met in this case, see 28 U.S.C. § 1631 (permitting transfer to another federal district (1) in which suit could have been brought originally (2) if the interests of justice require), creates no obligation on this court to fashion appropriate arguments on plaintiff's behalf, see Kaiser-Hill Co., LLC ex rel. Diversified Technologies Services, Inc. v. MACTEC, Inc., 2006 WL 2348757 at *3 (D. Colo. Aug. 11, 2006).

I thus find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted.

THEREFORE, IT IS ORDERED as follows:

1. That the Recommendation of United States Magistrate Judge [#91], [4] filed July 28, 2014, is APPROVED AND ADOPTED as an order of this court;

2. That the objections in Plaintiff's Objection to the Finding and Recommendation of the United States Magistrate Judge To Dismiss Defendants Brian D. West and West Law Group P.C. [#100], filed August 6, 2014, are OVERRULED;

3. That Defendants Brian D. West and West Law Group P.C.'s Motion To Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(6) and Memorandum in Support [#17], filed September 3, 2013, is GRANTED IN PART and DENIED AS MOOT IN PART as follows:

a. That the motion is GRANTED to the extent it seeks dismissal of plaintiff's claims against these defendants on the basis of lack of personal jurisdiction in this forum; and
b. That in all other respects, the motion is DENIED AS MOOT;

4. That plaintiff's claims against defendants, Brian D. West, and West Law Group, P.C., are DISMISSED WITHOUT PREJUDICE;

5. That at the time judgment enters, judgment without prejudice SHALL ENTER on behalf of defendants, Brian D. West, and West Law Group, P.C., and against plaintiff, Chun Chee Seng, as to all claims for relief and causes of action asserted against them in this action; and

6. That defendants, Brian D. West, and West Law Group, P.C., are DROPPED as a named parties to this action, and the case caption AMENDED accordingly.


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