United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR LIMITED DISCOVERY AND DENYING
WITHOUT PREJUDICE DEFENDANT'S MOTION TO DISMISS
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant H2OFloss's Motion
to Dismiss for Want of Personal Jurisdiction (Doc. # 43) and
Plaintiff Water Pik, Inc.'s Motion for Limited
Jurisdictional Discovery (Doc. # 54). For the following
reasons, the Court grants in part and denies in part
Plaintiff's request for limited discovery, and the Court
denies without prejudice Defendant's Motion to Dismiss.
brings this patent infringement action against four foreign
entities: H2OFloss; Shenzhen Baofengtong Electrical
Manufacturing Co., Ltd.; H2OFloss Limited; and Homecare
Household Supplies Company. (collectively Defendants).
Plaintiff specifically alleges that Defendants are infringing
on Plaintiff's patents by “import[ing], offer[ing]
for sale, and [selling] . . . the H2OFloss HF-7 model oral
irrigator series (HF-7), H2OFloss HF-8 model oral irrigator
series (HF-8), and H2OFloss orthodontic tips sole and used
with at least the HF-8 (HF-8 Tips) (collectively, the Accused
Products). (Doc. # 22 at ¶ 2.)
January 8, 2018, H2OFloss filed a Motion to Dismiss for Want
of Personal Jurisdiction, arguing that Plaintiff has
insufficiently pled or demonstrated that H2OFloss has minimum
contacts with Colorado and/or that an agency theory of
jurisdiction applies. (Doc. # 43.) H2OFloss adds that it is
distinct and separate from the trademark h2ofloss and the
other Defendant entities, who are “the real parties in
interest (i.e. the manufacturer and the seller).”
(Id. at 6.) Plaintiff responds that it has
sufficiently pled that H2OFloss has minimum contacts with
Colorado and that, moreover, the contacts of the other
Defendants can be imputed to H2OFloss through an agency
theory of jurisdiction. (Doc. # 50.) Plaintiff also requests
limited jurisdictional discovery to supplement the factual
record in the event that “the Court is unable to
resolve the factual disputes in [Plaintiff's]
favor.” (Doc. # 54 at 4.)
exercise jurisdiction over H2OFloss, a nonresident defendant,
the Court must ensure that jurisdiction complies with
Colorado's long-arm statute and constitutional due
process. Grynberg v. Ivanhoe Energy, Inc., No.
08-cv-02528, 666 F.Supp.2d 1218, 2009 WL 3217394, *6 (D.
Colo. September 30, 2009). In Colorado, this two-pronged
inquiry collapses into one, because
“‘Colorado's long arm statute is coextensive
with constitutional limitations imposed by the due process
clause. Therefore, if jurisdiction is consistent with the due
process clause, Colorado's long arm statute authorizes
jurisdiction over a nonresident defendant.'”
Id. at *6 (quoting Benton v. Cameco Corp.,
375 F.3d 1070, 1075 (10th Cir. 2004)).
ensure that the Court's jurisdiction comports with due
process, the Court first examines “whether the
non-resident defendant has ‘minimum contacts' with
the forum state such that he should reasonably anticipate
being [brought] into court there.” Melea, Ltd. v.
Jawer SA, 511 F.3d 1060, 1065 (10th Cir. 2007) (quoting
TH Agriculture & Nutrition, LLC v. Ace European
Group Ltd., 488 F.3d 1282, 1287 (10th Cir. 2007)).
“minimum contacts” inquiry naturally involves
examining whether the nonresident defendant has
“purposefully directed” its activities at
Colorado. See TH Agriculture & Nutrition, LLC,
488 F.3d at 1287, 1291. Under certain circumstances, “a
nonresident defendant may be subject to personal jurisdiction
in Colorado based on the imputed contacts of the
[nonresident] defendant's agent.” Goettman v.
N. Fork Valley Rest., 176 P.3d 60, 67 (Colo. 2007). In
other words, where applicable, a court can impute a
subsidiary corporation's contacts to the parent
corporation. Vacation Travel Int'l, Inc. v. Sunchase
Beachfront Condo. Owners Ass'n, Inc., No. CIVA
06CV02195 LTBCB, 2007 WL 757580, at *5 (D. Colo. Mar. 8,
2007) (stating that “[w]hile under some circumstances a
subsidiary corporation's contacts may be imputed to a
parent for the purposes of jurisdiction, the reverse is not
true.); see also Kim v. Czerny, No. 16-CV-1362
MCA/LF, 2017 WL 3084466, at *8 (D.N.M. July 17, 2017) (same);
Weisler v. Cmty. Health Sys., Inc., No. CIV. 12-0079
MV/CG, 2012 WL 4498919, at *11 (D.N.M. Sept. 27, 2012)
a defendant moves to dismiss for lack of jurisdiction, either
party should be allowed discovery on the factual issues
raised by that motion.” Budde v. Ling-Temco-
Vought, Inc., 511 F.2d 1033, 1035 (10th Cir. 1975). The
Court has broad discretion to shape jurisdictional discovery.
Grynberg v. Ivanhoe Energy, Inc., 490 Fed.Appx. 86,
103 (10th Cir. 2012); Breakthrough Mgmt. Grp., Inc. v.
Chukchansi Gold Casino & Resort, 629 F.3d 1173,
1188-89 (10th Cir. 2010) (“As with the court's
handling of discovery in other stages of litigation, in the
context of a [motion to dismiss for lack of jurisdiction],
‘[w]e give the district court much room to shape
discovery.'”) (second alteration in original).
refusal to grant discovery constitutes an abuse of discretion
if the denial results in prejudice to a litigant. Prejudice
is present where ‘pertinent facts bearing on the
question of jurisdiction are controverted or where a more
satisfactory showing of the facts is necessary.'”
Sizova v. Nat'l Inst. of Standards & Tech.,
282 F.3d 1320, 1326 (10th Cir.2002) (ellipsis omitted).
“[T]he burden of demonstrating a legal entitlement to
jurisdictional discovery-and the related prejudice flowing
from the discovery's denial- [is] on the party seeking
the discovery. . . .” Breakthrough Mgmt. Grp.,
Inc., 629 F.3d at 1189 n. 11; Grynberg, 490
Fed.Appx. at 103. “To obtain jurisdictional discovery,
a plaintiff must present a sufficient factual predicate for
the establishment of personal jurisdiction.” Gordon
Howard Assocs., Inc. v. Lunareye, Inc., No.
13-CV-01829-CMA-MJW, 2013 WL 5637678, at *4 (D. Colo. Oct.
15, 2013) (internal quotation omitted).