United States District Court, D. Colorado
GLOBAL POWER SUPPLY LLC, a California limited liability company, Plaintiff,
ACOUSTICAL SHEET METAL INCORPORATED, a Virginia corporation, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE
KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE
case comes before the court on Defendant's “Motion
to Dismiss for Lack of Personal Jurisdiction” (Doc. No.
11, filed 11/24/2018) to which Plaintiff filed a Response
(Doc. No. 19, filed 9/24/2018) and to which Defendant filed a
Reply (Doc. No. 21 filed 10/9/2018).
following facts are taken from the Plaintiff's Complaint
and the parties' submissions with respect to this
Recommendation. Plaintiff Global Power Supply, LLC
(“GPS”) is a California company that sells, rents
and services electrical power generation systems. (Doc. No.
3, ¶¶ 1, 4.) Defendant Acoustical Sheet Metal Inc.
(“ASI”) is a Virginia company (Doc. No. 11 at 1)
that creates enclosures for power generation systems (Doc.
No. 3, ¶ 4). GPS contends that it entered into a
contract with ASI for the fabrication and assembly of metal
enclosures for use on a construction site in El Paso County,
Colorado. (Id. at ¶ 6.) According to GPS, ASI
was obligated to prepare the enclosures for shipping so that
no damage would occur while being shipped, but failed to
properly prepare one generator that was ultimately damaged.
(Id. at ¶ 8- 11.) GPS brought the present
lawsuit against ASI in which GPS alleges a breach of
contract. (Id. at 2.) ASI subsequently filed a
motion to dismiss for lack of personal jurisdiction. (Doc.
No. 11.) In its motion, ASI contends that it has no
connections to Colorado other than the single shipment of
enclosures that GPS arranged to have shipped to Colorado
after purchase. (Id. at 7- 10.)
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 the defendant. 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 [Defendant's]
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 “[P]laintiff'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 agent-the “commission of a tortious act
within the state, ” or the “transaction of any
business within this state.” Colo.Rev.Stat.
§§ 13-1-124(1)(a)-(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, 316 (1945). Colorado's
long-arm statute is a codification of the “minimum
contacts” principle required by due process. See
Lichina v. Futura, Inc., 260 F.Supp. 252, 255 (D. Colo.
1966). Accordingly, under Colorado Law, a court may assert
jurisdiction to the fullest extent permitted by the Due
Process Clause of the Fourteenth Amendment. See OMI
Holdings, Inc., 149 F.3d at 1090; Scheuer v. Dist.
Ct., 684 P.2d 249 (Colo. 1984).
asserts it is not subject to this court's personal
jurisdiction because the court does not have general or
specific jurisdiction over Defendant. (Doc. No. 11 at 1-2.)
More specifically, Defendant contends that it does not have
any employees, offices, agents or distributors in Colorado,
or marketing in or directed toward Colorado. With the
exception of a single product shipment at Plaintiff's
direction, Defendant claims to have no contacts with the
state of Colorado. (Id. at 2.) Plaintiff contends
that this court may exercise jurisdiction over Defendant
because Defendant contracted to assemble and sell generator
enclosures to Plaintiff that Defendant knew Plaintiff would
ship to Colorado. (Doc. No. 19 at 3-4.)
determine whether personal jurisdiction is proper under the
Constitution, a court first looks to find minimum contacts
with the forum state. See Int'l Shoe Co., 326
U.S. at 316. To establish minimum contacts with the forum
state, it is “essential . . . that there be some act by
which the defendant[s] purposefully avail [themselves] of
the privilege of conducting activities within the forum
State, thus invoking the benefits and protections of its
laws.” Hanson v. Denckla, 357 U.S. 235, 253
(1958). Where defendants have “purposefully
directed” their activities at residents of the forum
state, they have had “fair warning” that a
particular activity may subject them to the jurisdiction of a
foreign sovereign. Burger King Corp. v. Rudzewicz,
471 U.S. 462, 472 (1985). “The purposeful availment
requirement also assures that a defendant will not be subject
to the laws of a jurisdiction ‘solely as a result of
random, fortuitous, or attenuated contacts, or of the
unilateral activity of another party or a third
person.'” AST Sports Sci., Inc. v. CLF
Distribution Ltd., No. 06-1157, 2008 WL 217722, at *3
(10th Cir. Jan. 18, 2008) (quoting Benally v. Amon Carter
Museum of W. Art, 858 F.2d 618, 625 (10th Cir. 1988)).
minimum contacts standard can be met in two ways.
Id. A court may either assert specific jurisdiction
over a nonresident defendant if the defendant has
“purposefully directed” its activities at
residents of the forum and the litigation results from the
alleged injuries that arise out of or relate to those
activities, Burger King Corp., 471 U.S. at 472, or,
where a court's jurisdiction does not directly arise from
a defendant's forum-related activities, the court may
maintain general jurisdiction over the defendant based on the
defendant's general business contacts within the forum
state. Helicopteros Nacionales de Colombia v. Hall,
466 U.S. 408, 415 (1984). In assessing minimum contacts in a
breach of contracts case, pertinent factors include prior
negotiations, contemplated future consequences, the terms of
the contract and the parties' course of dealing.
Benton v. Cameco Corp., 375 F.3d 1070, 1077 (10th