United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Bayerische Motoren
Werke Aktiengesellschaft's Amended Motion to Dismiss for
Lack of Personal Jurisdiction Pursuant to Fed.R.Civ.P.
12(b)(2) [Docket No. 46]. The Court has subject matter
jurisdiction over this case pursuant to 28 U.S.C. §
about January 14, 2016, plaintiff was changing the front tire
of a 2003 BMW when the tire jack and/or jacking point failed,
causing the vehicle to drop and pin plaintiff's finger
between the asphalt and a lug wrench. Docket No. 1 at 3,
¶¶ 9, 12-13. As a result of the incident, plaintiff
suffered permanent injuries, including the amputation of a
portion of his middle finger. Id., ¶ 13.
filed this lawsuit on January 16, 2018 asserting claims for
strict product liability, negligence, and breach of warranty
against various entities involved in the manufacture and
distribution of the jack and jacking point involved in the
incident. Docket No. 1. On July 6, 2018, defendant Bayerische
Motoren Werke Aktiengesellschaft, a German automobile
manufacturer, moved to dismiss plaintiff's claims against
it for lack of personal jurisdiction. Docket No. 46.
Plaintiff filed a response to the motion on August 3, 2018.
Docket No. 53. Defendant filed a reply on August 24, 2018.
Docket No. 55.
purpose of a motion to dismiss under Rule 12(b)(2) is to
determine whether the Court has personal jurisdiction over a
defendant. The plaintiff bears the burden of establishing
personal jurisdiction. Rambo v. Am. S. Ins. Co., 839
F.2d 1415, 1417 (10th Cir. 1988). The plaintiff can satisfy
its burden by making a prima facie showing.
Dudnikov, 514 F.3d at 1070. The Court will accept
the well-pleaded allegations of the complaint as true in
determining whether plaintiff has made a prima facie showing
that personal jurisdiction exists. AST Sports Sci., Inc.
v. CLF Distribution Ltd., 514 F.3d 1054, 1057 (10th Cir.
2008). If the presence or absence of personal jurisdiction
can be established by reference to the complaint, the Court
need not look further. Id. The plaintiff, however,
may also make this prima facie showing by putting forth
evidence that, if proven to be true, would support
jurisdiction over the defendant. Dudnikov, 514 F.3d
at 1070. “[A]ny factual disputes in the parties'
affidavits must be resolved in plaintiffs' favor.”
determining whether a federal court has personal jurisdiction
over a defendant, the court must determine (1) whether the
applicable statute potentially confers jurisdiction by
authorizing service of process on the defendant and (2)
whether the exercise of jurisdiction comports with due
process.” Niemi v. Lasshofer, 770 F.3d 1331,
1348 (10th Cir. 2014); Trujillo v. Williams, 465
F.3d 1210, 1217 (10th Cir. 2006) (quoting Peay v.
BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209
(10th Cir. 2000)). The Colorado long-arm statute, Colo. Rev.
Stat. § 13-1-124, has been construed to extend
jurisdiction to the full extent permitted by the
Constitution, so the jurisdictional analysis here reduces to
a single inquiry of whether jurisdiction offends due process.
See Pro Axess, Inc. v. Orlux Distrib., Inc., 428
F.3d 1270, 1276 (10th Cir. 2005); Archangel Diamond Corp.
v. Lukoil, 123 P.3d 1187, 1193 (Colo. 2005). Personal
jurisdiction comports with due process where a defendant has
minimum contacts with the forum state and where those
contacts are such that assuming jurisdiction does not offend
“traditional notions of fair play and substantial
justice.” Int'l Shoe Co. v. Wash., 326
U.S. 310, 316 (1945). Minimum contacts may be established
under the doctrines of general jurisdiction or specific
jurisdiction. Where general jurisdiction is asserted over a
nonresident defendant who has not consented to suit in the
forum, minimum contacts exist if the plaintiff demonstrates
that the defendant maintains “continuous and systematic
general business contacts” in the state. OMI
Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d
1086, 1091 (10th Cir. 1998). Plaintiff does not argue that
defendant is subject to general jurisdiction in Colorado.
See Docket No. 53 at 2 (“Specific personal
jurisdiction over BMW AG complies with Colorado's long
arm statute and constitutional due process.”), 7
(“BMW AG has sufficient minimum contacts for specific
personal jurisdiction in Colorado based on the stream of
commerce doctrine.”). The Court therefore limits its
analysis to the issue of specific jurisdiction.
jurisdiction is present only if the lawsuit “aris[es]
out of or relat[es] to the defendant's contacts with the
forum.” Bristol-Myers Squibb Co. v. Superior Court
of Calif., San Francisco Cty., 137 S.Ct. 1773, 1780
(2017). The specific jurisdiction analysis is two-fold.
First, the Court must determine whether a defendant has such
minimum contacts with Colorado that the defendant
“should reasonably anticipate being haled into
court” here. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980). Within this inquiry,
the Court must determine whether the defendant purposefully
directed its activities at residents of the forum, Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985), and
whether plaintiff's claim arises out of or results from
“actions by . . . defendant . . . that create a
substantial connection with the forum State.” Asahi
Metal Indus. Co. v. Superior Court of Cal., 480 U.S.
102, 109 (1987) (internal quotations omitted). Second, if
defendant's actions create sufficient minimum contacts,
the Court must consider whether the exercise of personal
jurisdiction over defendant offends “traditional
notions of fair play and substantial justice.”
Id. at 105. The Court considers several factors as
part of this analysis, including: (1) the burden on the
defendant; (2) the forum state's interest in adjudicating
the dispute; (3) the plaintiff's interest in obtaining
convenient and effective relief; (4) the interstate judicial
system's interest in obtaining the most efficient
resolution of controversies; and (5) the shared interest of
the several states in furthering fundamental substantive
social policies. Burger King Corp., 471 U.S. at 477.
Stream of Commerce Framework
seeks to establish specific personal jurisdiction under a
stream of commerce theory. See Docket No. 53 at 7.
This theory was first articulated in World Wide
Volkswagen Corp., where the Supreme Court stated that a
“forum State does not exceed its powers under the Due
Process Clause if it asserts personal jurisdiction over a
corporation that delivers its products into the stream of
commerce with the expectation that they will be purchased by
consumers in the forum State.” 444 U.S. at 297-98. As
plaintiff notes, however, two subsequent Supreme Court
decisions have placed the “proper framework for a
stream of commerce analysis . . . in flux.” Docket No.
53 at 7. In Asahi Metal Industry Co., the Supreme
Court addressed “whether the mere awareness on the part
of a foreign defendant that the components it manufactured,
sold, and delivered outside the United States would reach the
forum State in the stream of commerce constitutes
‘minimum contacts' between the defendant and the
forum State such that the exercise of jurisdiction
‘does not offend “traditional notions of fair
play and substantial justice.”'” 480 U.S. at
105. In a plurality opinion, Justice O'Connor answered
this question in the negative. She concluded that
[t]he “substantial connection” between the
defendant and the forum State necessary for a finding of
minimum contacts must come about by an action of the
defendant purposefully directed toward the forum State.
The placement of a product into the stream of commerce,
without more, is not an act of the defendant purposefully
directed toward the forum State.
Id. at 112 (plurality op.) (internal citations
omitted). Justice Brennan, joined by three other justices,
filed an opinion concurring in the judgment but disagreeing
with Justice O'Connor's stream of commerce analysis.
Justice Brennan concluded it was unnecessary to require
plaintiffs to show “‘additional conduct'
directed toward the forum before finding the exercise of
jurisdiction over the defendant to be consistent with the ...