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Brooks v. Hotels

United States District Court, D. Colorado

May 21, 2018

JASON BROOKS, Plaintiff,
v.
TARSADIA HOTELS, 5TH ROCK, LLC, MKP ONE, LLC, GASLAMP HOLDING, LLC, TUSHAR PATEL, B.U. PATEL, GREGORY CASSERLY, PLAYGROUND DESTINATION PROPERTIES, INC., DOES 1-50, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Kathleen M Tafoya United States Magistrate Judge.

         This 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.

         STATEMENT OF THE CASE

         Plaintiff's 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.

         Defendants 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.[1] As the court finds that personal jurisdiction is lacking in this matter, it does not address parties' merits based arguments.

         LEGAL STANDARD

         1. Pro Se Plaintiff

         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”).

         However, 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).

         2. Lack of personal Jurisdiction

         Federal 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.

         Plaintiff “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. Id.

         To 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 ...


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