United States District Court, D. Colorado
JON A. GOODWIN, Plaintiff,
MARCIA ANN BRUGGEMAN HATCH, SEAMUS JOHN PAUL HATCH, MICHAEL DOUGLAS BOCK, GUNDERSON DETTMER STOUGH VILLENEUVE FRANKLIN & HACHIGIAN, LLP, ROBERT V. GUNDERSON, JR., SCOTT CHARLES DETTMER, THOMAS F. VILLENEUVE, DANIEL JURG NIEHANS, DANIEL E. O'CONNOR, KENNETH ROBERT McVAY, IVAN ALEXANDER GAVIRIA, JOHNSON & JOHNSON LLP, NEVILLE LAWRENCE JOHNSON, DOUGLAS LOWELL JOHNSON, JONATHAN MARTIN TURCO, LAN PHONG VU, DIANA BIAFORA SPARAGNA, TINA LOUISE SCATUORCHIO-GOODWIN, BARRY STEVEN LEVIN, MATHEW LLOYD LARRABEE, ROBERT A. EPSEN, DAVID MARK JARGIELLO, RAMSEY & EHRLICH LLP, MILES FREDRICK EHRLICH, ISMAIL JOMO RAMSE, FOLGER LEVIN KAHN, LLP, MICHAEL ALEXANDER KAHN, JOHN DANIEL SHARP, DENELLE MARIE DIXON-THAYER, LEWIS ROCA ROTHGERBER CHRISTIE, LLP, FREDRICK JAMES BAUMANN, ALEX C. MYERS, HELLER EHRMAN CALIFORNIA, A PROFESSIONAL CORPORATION, VLG INVESTMENTS LLC, VLG INVESTMENTS 2006 LLC, VLG INVESTMENTS 2007 LLC, VLG INVESTMENTS 2008, LLC, HEWM INVESTORS, LLC, HEWM INVESTORS II, LLC, HEWM/VLG INVESTMENTS, LLC, ARAN STRATEGIC FINANCE, LLC, AND DOES 1 - 100, Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the Motion to Set Aside
Default (FRCP 55(c)) or Quash Service; Motion to Dismiss
Under Rules 12(b)(2) and 12(b)(5); Memorandum in
Support [#115] (the “Motion”) filed by
Defendants VLG Investments LLC, VLG Investments 2006 LLC, VLG
Investments 2007 LLC, VLG Investments 2008 LLC, HEWM
Investors LLC, and HEWM Investors II LLC (collectively,
“Defendants”). Plaintiff filed a Response [#119]
and Defendants filed a Reply [#120]. The Court has reviewed
the briefing on the Motion [#115], the entire case file, and
the applicable law, and is sufficiently advised in the
premises. For the reasons stated below, Defendants'
request to set aside the Clerk's entry of default is
GRANTED, and the Court respectfully
RECOMMENDS that the Motion [#115] be
GRANTED with respect to Defendants'
motion to dismiss for lack of personal jurisdiction.
proceeds as a pro se litigant. As noted in the November 4, 2016
Order to Show Cause [#90], this is the second lawsuit that
Plaintiff has filed in this Court relating to the break up of
his business, Barra Partners LLP (“Barra
Partners”) in 2003. In short, Plaintiff contends that
Defendants conspired to break up Barra Partners, as well as
to steal money and business opportunities from him and Barra
Partners. The previous lawsuit that Plaintiff filed in 2013,
Goodwin v. Bruggeman-Hatch, 13-cv-02973-REB-MEH (the
“2013 Case”), contained twenty-two claims against
sixty-five named defendants and one thousand Doe defendants.
Eventually, all of the claims in the 2013 Case were dismissed
against all defendants. See 2013 Case Final Judgment
[#388]. Plaintiff appealed to the Tenth Circuit Court of
Appeals, which dismissed the case for failure to prosecute on
May 21, 2015. 2013 Case USCA Order [#404]. Thirty of
the defendants named in the 2013 Case are also named in the
current lawsuit. See 2013 Case Compl. [#1]. This
lawsuit also adds eleven new Defendants and one hundred Doe
Defendants. See Second Am. Compl. [#83] at 1. Like
the 2013 Case, Plaintiff's pleadings in this lawsuit
allege a criminal enterprise and conspiracy against Plaintiff
that gives rise to claims of racketeering, breaches of
fiduciary duties, breaches of contract, and fraud, among
other claims. See Second Am. Compl. [#83].
request of various Defendants, the Court ordered Plaintiff to
show cause as to: (1) why his claims are not barred by claim
preclusion, issue preclusion, and/or the
Rooker-Feldman doctrine, and (2) why the United
States District Court for the District of Colorado should not
enjoin him from filing any future pro se actions in this
Court in the event that this case is deemed to be legally
frivolous. Order to Show Cause [#90] at 5-6.
Plaintiff filed a Response [#92]. The Court thereafter issued
a Recommendation to dismiss various claims, which was adopted
by the District Judge. See Recommendation [#93];
Order [#97]. The Court also issued another Order to
Show Cause [#95], noting that several Defendants had not been
served, and directing Plaintiff to file proofs of timely
service. Plaintiff responded by filing several executed
Summonses, see [#98-#103], along with a Response
[#112] seeking permission to serve the last remaining
unserved Defendant, HEWM/VLG Investments LLC. The Defendants
who were served then filed the Motion [#115].
Motion to Set Aside Default
February 5, 2018, the day after Plaintiff filed the executed
Summonses [#98-#103], Plaintiff filed Motions for Entry of
Default as to those Defendants [#104-109]. The Clerk of the
Court entered default on the same date. See Clerk's
Entry of Default [#110]. Defendants ask the Court to set
aside the entry of default. Motion [#115] at 4.
Rule Civ. P. 55(c) permits a court to aside an entry of
default “for good cause.” The good cause
requirement is a “lesser standard for the defaulting
party than the excusable negligence which must be shown for
relief from judgment under Fed.R.Civ.P. 60(b).”
Pinson v. Equifax Credit Info. Servs., Inc., 316
Fed.Appx. 744, 750 (10th Cir. 2009) (quoting Dennis
Garberg & Assocs., Inc. v. Pack-Tech Int'l
Corp., 115 F.3d 767, 775 n.6 (10th Cir. 1997)). In
determining whether a defendant has met the good cause
standard, the Court may consider, among other things, whether
the default was the result of culpable conduct of the
defendant, whether the plaintiff would be prejudiced if the
default should be set aside, and whether the defendant
presents a meritorious defense. Pinson, 316
Fed.Appx. at 750; Guttman v. Silverberg, 167
Fed.Appx. 1, 4 (10th Cir. 2005).
stated in the Order to Show Cause [#95], the pleading that
named these Defendants for the first time was filed on July
14, 2016. See First Am. Compl. [#41]. Thus, the
service deadline was October 12, 2016. See Fed. R.
Civ. P. 4(m) (“If a defendant is not served within 90
days after the complaint is filed, the court - on motion or
on its own after notice to the plaintiff - must dismiss the
action without prejudice against that defendant . . .
.”); Bolden v. City of Topeka, Kan., 441 F.3d
1129, 1148 (10th Cir. 2006) (stating that the period for
service “is not restarted by the filing of an amended
complaint except as to those defendants newly added in the
amended complaint”). The executed Summonses indicate
that the Defendants were served on November 2, 2016, which
was untimely. See [#98-#103]. Therefore, the Court
finds that there is good cause to set aside the entry of
default, as Defendants did not cause the untimely service.
See Pinson, 316 Fed.Appx. at 750. Furthermore, it
would not prejudice Plaintiff to set aside the default, as
this case is procedurally in its beginning stages. See
the Motion [#115] is granted with respect to
Defendants' request to set aside the entry of default
against them. See Ashby v. McKenna, 331 F.3d 1148,
1152 (10th Cir. 2003) (indicating appropriateness of a
Magistrate Judge entering an order under 28 U.S.C. §
636(b)(1)(A) on a motion to set aside clerk's entry of
default). Thus, the Court turns to the analysis of
Defendants' motions to dismiss.
Motion to Dismiss for Lack of Personal Jurisdiction
argue that the Court lacks personal jurisdiction over them
pursuant to Fed.R.Civ.P. 12(b)(2). Plaintiff contends that
Defendants are subject to personal jurisdiction because he
alleges that Defendants have “direct[ed] tortious acts
at Barra Partners and Plaintiff” that caused Plaintiff
injury in Colorado. Response [#119] at 12-13.
Plaintiff further argues that the Court has jurisdiction
pursuant to 18 U.S.C. § 1965(b), because some of his
claims arise pursuant to the Racketeer Influenced and Corrupt
Organizations Act (“RICO”). Id. at
13-15. The Court first addresses personal jurisdiction under
Colorado's long-arm statute, Colo. Rev. Stat. §
Personal Jurisdiction ...