United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kathleen M Tafoya United States Magistrate Judge.
case comes before the court on Defendants' “Motion
to Dismiss or, in the alternative, Transfer to the Southern
District of California” (Doc. No. 43, filed 4/11/2018
[Motion]). The motion is ripe for review and recommendation.
OF THE CASE
Complaint (Doc. No. 1 [Compl.]) was filed on December 29,
2017, and arises from his purchase of a guestroom condominium
[Unit] at the Hard Rock Hotel located in San Diego,
California in or around May 2006. Plaintiff alleges that
Defendants should have informed Plaintiff of a two-year right
to rescind his contract to purchase the Unit, and, since they
did not, he is entitled to $35, 000, 000. Plaintiff's
Complaint asserts five causes of action: (1) Violation of
ILSA, 15 U.S.0 § 1703(a), (2) (A), (B) and (C); (2)
Violation of the SLA, California's B&P Code section
11000, et seq.; (3) Fraud; (4) Negligence; and (5)
Violation of California's Unfair Competition Laws,
B&P Code section 17200, et seq.
filed their Motion to Dismiss, arguing that Plaintiff's
claims are barred for several reasons, including procedural
default, failure to state a claim, and lack of personal
jurisdiction. As the court finds that personal
jurisdiction is lacking in this matter, it does not address
parties' merits based arguments.
Pro Se Plaintiff
is proceeding pro se. The court, therefore, “review[s]
his pleadings and other papers liberally and hold[s] them to
a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472
F.3d 1242, 1243 (10th Cir. 2007). See also Haines v.
Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d
652 (1972) (holding allegations of a pro se complaint
“to less stringent standards than formal pleadings
drafted by lawyers”).
a pro se litigant's “conclusory allegations without
supporting factual averments are insufficient to state a
claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court
may not assume that a plaintiff can prove facts that have not
been alleged, or that a defendant has violated laws in ways
that a plaintiff has not alleged. Associated Gen.
Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526103 S.Ct. 897, 74 L.Ed.2d
723 (1983). See also Whitney v. New Mexico, 113 F.3d
1170, 1173-74 (10th Cir. 1997) (noting that a court may not
“supply additional factual allegations to round out a
plaintiff's complaint”); Drake v. City of Fort
Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (noting
the court may not “construct arguments or theories for
the plaintiff in the absence of any discussion of those
issues”). The plaintiff's pro se status does not
entitle him to application of different rules. See
Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
Lack of personal Jurisdiction
Rule of Civil Procedure 12(b)(2) provides that a defendant
may move to dismiss a complaint for “lack of
jurisdiction over the person.” Fed.R.Civ.P. 12(b)(2).
Plaintiff bears the burden of establishing personal
jurisdiction over Defendants. OMI Holdings, Inc. v. Royal
Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998). In the
preliminary stages of litigation, Plaintiff's burden is
light. Wenz v. Memery Crystal, 55 F.3d 1503, 1505
(10th Cir. 1995). Where, as here, there has been no
evidentiary hearing, and the motion to dismiss for lack of
personal jurisdiction is decided on the basis of affidavits
and other materials, Plaintiff need only make a prima
facie showing that jurisdiction exists. Id.
“has the duty to support jurisdictional allegations in
a complaint by competent proof of the supporting facts if the
jurisdictional allegations are challenged by an appropriate
pleading.” Pytlik v. Prof'l Res., Ltd.,
887 F.2d 1371, 1376 (10th Cir. 1989). The allegations in
Plaintiff's complaint “‘must be taken as true
to the extent they are uncontroverted by [Defendants']
affidavits.'” Wenz, 55 F.3d at 1505
(quoting Doe v. Nat'l Med. Servs., 974 F.2d 143,
145 (10th Cir. 1992)). If the parties present conflicting
affidavits, all factual disputes must be resolved in
Plaintiff's favor, and “plaintiff's prima
facie showing is sufficient notwithstanding the contrary
presentation by the moving party.” Id.
(citation omitted). Only well-pleaded facts, as opposed to
mere conclusory allegations, must be accepted as true.
determine whether a federal court has personal jurisdiction
over a nonresident defendant in a diversity action, the court
looks to the law of the forum state. Taylor v.
Phelan, 912 F.2d 429, 431 (10th Cir. 1990). In Colorado,
the assertion of personal jurisdiction must both: (1) satisfy
the requirements of the long-arm statute; and (2) comport
with due process. Id.; Doering v. Copper
Mountain, Inc., 259 F.3d 1202, 1209 (10th Cir. 2001);
Classic Auto Sales, Inc. v. Schocket, 832 P.2d 233,
235 (Colo. 1992). Colorado's long-arm statute subjects a
defendant to personal jurisdiction for engaging in - either
in person or by an agent - the “commission of a
tortious act within this state, ” or the
“transaction of any business within this state.”
Colo. Rev. Stat. 13B1B124(1)(a)B(b) (2007). To comport with
due process, a defendant must have minimum contacts with the
forum state such that maintenance of the lawsuit would not
offend “traditional notions of fair play and
substantial justice.” Int'l Shoe Co. v.
Washington, 326 U.S. 310, 66 S.Ct. 154');">31666 S.Ct. 154, 90 L.Ed. 95
(1945). Colorado's long-arm statute is a codification of
the “minimum contacts” principle required by ...