United States District Court, D. Colorado
ORDER GRANTING MOTION FOR RECONSIDERATION AND MOTION
TO DISMISS FOR LACK OF PERSONAL JURISDICTION
S. Krieger United States District Court
MATTER comes before the Court on the Defendant's
Motion for Reconsideration (# 66), the
Plaintiff's response (# 70), and the
Defendant's reply (# 72). For the
reasons that follow, the Motion is granted.
facts are summarized in the Court's order on Defendant
Dollar Phone Corp.'s Motion to Dismiss (#
65), which held that the Court has personal
jurisdiction over Dollar Phone.
relevant part, the Court's order read:
Neither side has identified the physical location of the
wholesale switch owned by Nationwide and accessed by Dollar
Phone, but the Court construes the Amended Complaint's
allegation that “Nationwide's business is within
the territorial boundaries of . . . Colorado” to assert
that Nationwide maintains equipment of this type in Colorado.
Thus, it appears that Dollar Phone made a form of electronic
contact with property belonging to Nationwide in Colorado.
# 65 at 7.
Phone now moves the Court to reconsider that order because
the wholesale switches the Court presumed were in Colorado
instead are actually located in Los Angeles, California. To
that end, Dollar Phone includes evidence that the geolocation
of each of the five IP addresses that it is alleged to have
accessed is in Los Angeles. # 66-4 at 2-6; # 66-5 at 2.
for reconsideration are not addressed by Federal Rule of
Civil Procedure. However, relief from an order can be sought
pursuant to Fed.R.Civ.P 60. Rule 60(b) permits the Court to
grant relief from an order due to, among other things, a
substantive mistake of law or fact by the Court, newly
discovered evidence that, with reasonable diligence, could
not have been discovered earlier, or as a result of any other
reason that justifies relief. See Fed. R. Civ. P.
60(b)(1)-(2), (6); Yapp v. Excel Corp., 186 F.3d
1222, 1231 (10th Cir. 1999). Reconsideration under Rule 60(b)
is extraordinary, and may only be granted in exceptional
circumstances. Rogers v. Andrus Transp. Servs., 502
F.3d 1147, 1153 (10th Cir. 2007). Reconsideration is not a
tool to rehash previously-presented arguments already
considered and rejected by the Court, nor is it properly used
to present new arguments based upon law or facts that existed
at the time of the original argument. FDIC v. United Pac.
Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998); Van
Skiver v. United States, 952 F.2d 1241, 1243-44 (10th
Phone seeks to correct the Court's personal-jurisdiction
analysis with regard to whether minimum contacts exist
between Dollar Phone and Colorado, the forum state, such that
it “should reasonably anticipate being haled into court
there”. AST Sports Science Inc. v. CLF Distribution
Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008). The
Court's minimum-contacts determination was based on
specific jurisdiction, which focuses on whether a defendant
purposefully directed its activities at the forum, and is
based on three factors: (1) an intentional action that was
(2) expressly aimed at the forum state with (3) knowledge
that the brunt of the injury would be felt in the forum
state. Dudnikov v. Chalk & Vermilion Fine Arts
Inc., 514 F.3d 1063, 1072 (10th Cir. 2008). By
submitting evidence that Nationwide's relevant switches
are in Los Angeles, Dollar Phone has shown that its
intentional action was not necessarily aimed at Colorado, and
has thus identified a substantive mistake of fact.
Accordingly, the Court will reconsider whether it has
specific jurisdiction over Dollar Phone.
personal jurisdiction query focuses on the Dollar Phone's
alleged action, whether it was directed at Colorado and
whether Dollar Phone knew that the injury would be felt in
Colorado. The burden of proof is on Nationwide.
the alleged action by Dollar Phone was routing approximately
157, 000 calls through Nationwide's IP address. In its
prior Order, the Court found that Dollar Phone's actions
were purposeful and that the injuries were felt in Colorado.
Based on the record, the Court found that there was nothing
to suggest that Dollar Phone was unable to ascertain the
physical location of the switch over which the calls would be
processed. However, the Court incorrectly assumed that the
switches over which the calls were routed were located in
Colorado. Because the switches are not located in Colorado,
the issue now is not merely a technical question of how calls
are routed. Instead, it is a factual one - is there evidence
that shows that Dollar Phone expressly directed its activity
offers the affidavit of Omid Shekarchian (who also appears in
other exhibits as Dave Abadi). Nationwide agrees that the
switches connected to the IP addresses in this case are in
Los Angeles, California. However, Mr. Shekarchian states that
Nationwide spread the components of its wholesale switch
across multiple locations, and the California location is
merely an “extended service end point from [its] Denver
facility site.” # 70-1 ¶ 8. Mr. Shekarchian
insists that Denver is the core switch for its widely
dispersed servers, gateways, and firewall. As an example, Mr.
Shekarchian provides a “traceroute” for a
California IP address not at issue in this case that shows an
endpoint IP located in Denver.
evidence suggests that some IP addresses may have an endpoint
IP address in Colorado, but it does not establish that the
particular IP addresses that Dollar Phone used are tied to
Colorado, nor that Dollar Phone knew or could have known of
the connection to Colorado at the time it routed calls
through Nationwide. Indeed, Mr. Shekarchian's statement
that Nationwide's wholesale switches are spread across
multiple locations suggests just the opposite -that there is
no way for Dollar Phone to have known how the calls would be
routed, and thus could not have purposely routed such calls
Court has some doubt that traceroute evidence is helpful to
this analysis because it is retrospective and neither party
has correlated traceroute evidence with knowledge of what
route a call will take before the call is made. Put
differently, the importance of the location of physical
switches in Colorado, was the inference that Dollar Phone
knew or could have known that the calls it routed would go
through Colorado and thus that its contact with Colorado was
purposeful. If a traceroute is only retrospective, there is
no necessary inference of intentional action by Dollar Phone.
If an inference of intentional action can be drawn from a
traceroute, then Nationwide's example is irrelevant
because it is not one of the calls at issue in this case.
(listed in the Amended Complaint # 17 ¶¶ 19-20).
Dollar Phone's inclusion of a traceroute for an IP
address in the family of IP addresses at ...