United States District Court, D. Colorado
OPINION AND ORDER DENYING MOTION TO DISMISS
S. Krieger United States District Court
MATTER comes before the Court on the Defendant's
Motion to Dismiss for Lack of Personal Jurisdiction and
Improper Venue Under Federal Rules of Civil Procedure
12(b)(2) and 12(b)(3) or, in the Alternative, Motion to
Transfer to the Northern District of Georgia Under 28 U.S.C.
§ 1404(a) (#19), the Plaintiff's
response (#22), and the Defendant's
Court has subject-matter jurisdiction to hear this case under
28 U.S.C. § 1332(a). The parties dispute whether the
Court can exercise personal jurisdiction over the Defendant.
Court offers a brief summary of the facts here and elaborates
as necessary in its analysis.
Plaintiffs, Level 3 Communications, LLC and Level 3 Telecom
Holdings, LLC (collectively “Level 3”), are
Delaware limited liability companies. On February 5, 2013, tw
telecom holdings inc. (“tw”), a corporation
headquartered in Colorado, entered into a contract (“tw
contract”) with the Defendant BeavEx Incorporated
(“BeavEx”), a Connecticut corporation with its
principal place of business in Georgia. Under the tw
contract, tw agreed to provide telecommunication services to
BeavEx. Level 3 Communications, LLC purchased tw and
converted it into Level 3 Telecom Holdings, LLC.
2015 and 2016, Level 3 and BeavEx entered into additional
agreements, which incorporated terms of the tw contract, for
Level 3 to create and maintain secure private
telecommunications network for BeavEx's operations at
some of its 33 locations throughout the United States. As
part of these agreements, Level 3 installed equipment and
provided other telecommunications services at BeavEx's
Denver, Colorado office. Level 3's invoices to BeavEx
showed that Level 3 was located in Broomfield, Colorado and
required BeavEx to send payments to a PO Box in Denver,
Colorado. Over the course of their relationship, BeavEx sent
multiple payments to the PO Box.
was not satisfied with the Level 3 network. BeavEx and Level
3 convened a “Get Well” telephone conference,
which included Level 3 representatives in Colorado, to
address those issues. Unsatisfied, BeavEx sent a notice to
Level 3's general counsel in Colorado to cancel all of
Level 3's services. Level 3 alleges that BeavEx owes it
$1, 364, 528.54 (#13).
instant motion, BeavEx moves to dismiss (#
19) the claims against it for lack of personal
jurisdiction and for improper venue. Alternatively, BeavEx
requests that this action be transferred to the Northern
District of Georgia.
Whether the Court lacks personal jurisdiction over
the Court's jurisdiction over a defendant is challenged
pursuant to Rule 12(b)(2), the plaintiff bears the burden of
establishing that personal jurisdiction exists. Soma
Medical Intern. v. Standard Chartered Bank, 196 F.3d
1292, 1295 (10th Cir. 1999); Omi Holdings, Inc. v. Royal
Ins. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998).
Courts may elect to resolve the jurisdictional question
immediately, by conducting an evidentiary hearing on the
issue, or they may defer resolution of the jurisdictional
question until trial, requiring the plaintiff to make only a
prima facie showing of jurisdiction at the pretrial
phase. Wenz v. Memery Crystal, 55 F.3d 1503, 1505
(10th Cir. 1995). The Court may receive affidavits and other
evidentiary material to assist in resolving the issue, but it
must resolve any disputed facts in the light most favorable
to the plaintiff. Id.
the jurisdictional inquiry comprises two components. The
plaintiff must show: (i) whether the laws of the forum state
confer jurisdiction by authorizing service upon the
defendant; and (ii) whether the exercise of such jurisdiction
comports with the principles of due process. Niemi v.
Lasshofer, 770 F.3d 1331, 1348 (10th Cir. 2014).
However, in Colorado, that inquiry is short-circuited,
insofar as Colorado's Long-Arm Statute “confers the
maximum jurisdiction permissible, consistent with the Due