United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION
TO DISMISS FOR LACK PERSONAL JURISDICTION (DKT. #1)
REID. NEUREITER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendant Datacolor
Inc.'s (“Datacolor”) Motion to Dismiss for
Lack of Personal Jurisdiction (Dkt. #1), filed on February 8,
2019 (the same date the case was removed to this Court from
Colorado state court). Plaintiff BlueRadios, Inc.
(“BlueRadios”) filed an Opposition to the Motion
to Dismiss which attached an affidavit from BlueRadios'
principal plus some additional e-mail exhibits (Dkt. #16 and
#16-1.) Datacolor filed a Reply. (Dkt. #19.)
argument on the Motion to Dismiss on April 2, 2019 and took
the matter under advisement. Having considered the argument
of counsel, and having reviewed the briefs, the attached
exhibits and the relevant caselaw, I recommend that Defendant
Datacolor's Motion to Dismiss be DENIED.
Procedure for Deciding a Personal Jurisdiction
motion has been filed challenging personal jurisdiction over
a defendant, “the plaintiff bears the burden to
establish the court's jurisdiction, which normally is not
a heavy one.” 5B Wright & Miller Federal Practice
and Procedure: Civil 3d §1351 at 274 (3d ed. 2004).
See also Wise v. Lindamood, 89 F.Supp.2d 1187, 1189
(D. Colo. 1999) (“The burden on the plaintiff is
light.”). In considering a challenge to its
jurisdiction, the Court has “considerable leeway”
in deciding the methodology for deciding the motion.
“The Court may receive and weigh the contents of
affidavits and any other relevant matter submitted by the
parties to assist it in determining the jurisdictional
facts.” Wright and Miller, supra, at 305.
See also Schramm v. Oaks, 352 F.2d 143, 149 (10th
Cir. 1965) (“Certainly the trial court may gather
evidence on the question of jurisdiction by affidavits or
otherwise in an effort to determine the facts as they
judge restricts the review of the Rule 12(b)(2) motion solely
to affidavits and other written evidence (without taking any
testimony), the plaintiff need only make a prima facie
showing of personal jurisdiction. Wright and Miller,
supra, at 288; Wise, 89 F.Supp.2d at 1189
(holding that when the issue is raised before trial and
decided on the basis of affidavits and other written
materials, “a plaintiff need only make a prima facie
showing”). “The plaintiff may make this prima
facie showing by demonstrating, via affidavit or other
written materials, facts that if true would support
jurisdiction over the defendant.” OMI Holdings,
Inc. v. Royal Ins. Of Canada, 149 F.3d 1086, 1091 (10th
Cir. 1998). “In order to defeat a plaintiff's prima
facie showing of jurisdiction, a defendant must present a
compelling case demonstrating ‘that the presence of
some other considerations would render jurisdiction
unreasonable.'” Id. (quoting Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)).
Reply in Support of Motion to Dismiss, Datacolor argues that
the exhibits attached to the affidavit submitted by
BlueRadios (Dkt #16-1), consisting of e-mail communications,
should not be considered in deciding the issue of personal
jurisdiction. (Dkt. #19.) Datacolor suggests that I should be
limited to considering only the allegations in the Complaint
and documents referred to or attached to the Complaint.
(Id.) (arguing that courts want to avoid situations
where “a plaintiff with a deficient claim could survive
a motion to dismiss simply by not attaching a dispositive
document on which the plaintiff relied”).
is mistaken and appears to be confusing the procedure for a
motion to dismiss for failure to state a claim under Rule
12(b)(6), with the procedure for deciding a motion to dismiss
under Rule 12(b)(2) for lack of personal jurisdiction.
the two cases Datacolor cites for the proposition that I
cannot consider exhibits provided for the first time in
opposition to a motion to dismiss under 12(b)(2), Burns
v. Mac, No. 13-cv-2109-WJM-KLM, 2015 WL 4051998 at *4
(D. Colo. July 1, 2015), and Illig v. Union Elec.
Co., 652 F.3d 971, 976 (8th Cir. 2011), are cases
involving motions to dismiss for failure to state a claim
under Rule 12(b)(6). In the failure to state a claim
scenario, the Court generally is limited to
considering the complaint and documents referred to in the
complaint. But, as noted above, the procedure for pretrial
resolution of a motion to dismiss for lack of personal
jurisdiction is different.
argument, counsel for Datacolor did not dispute the
authenticity of the emails provided with BlueRadios'
affidavit. Therefore, consistent with the Tenth Circuit's
direction in OMI Holdings, Inc., I will consider
both the affidavit submitted by BlueRadios and the attached
e-mail documents in making this decision. 149 F.3d at 1091.
deciding whether BlueRadios has made out a prima facie case
of personal jurisdiction, I must view the facts alleged in
the Complaint and other materials, including affidavits
submitted in opposition to any motion and attached documents,
in the light most favorable to the plaintiff-the non-moving
party. See Wright and Miller, supra, at 299
(explaining that courts will “take as true the
allegations of the nonmoving party with regard to
jurisdictional issues and resolve all factual disputes in his
or her favor”); Wise 89 F.Supp.2d at 1189
(where jurisdictional facts are disputed, the court
“must resolve all disputed facts and draw all
reasonable inferences in the plaintiff's favor”).
essentially a breach of contract/quasi-contract case
involving BlueRadios, a procurer, supplier, and servicer of
electrical components, based in Colorado, and Datacolor, the
American subsidiary of a Swiss color instrument company,
based in New Jersey. As explained at the motion hearing,
BlueRadios is a Colorado-based wireless data communications
company, specializing in hardware and software solutions
allowing for use of Bluetooth wireless communication
technology between and among a broad range of electronic
devices. Datacolor is, for its part, the American operating
company of its Swiss parent, providing customers in a variety
of industries (such as photography and design, textile and
apparel, paint and coatings, and plastics) with accurate
color measurement instruments and algorithms to ensure color
of the general high technology migration toward wireless
communication between devices, Datacolor allegedly sought out
BlueRadios' expertise and products, and allegedly asked
BlueRadios to place orders for tens of thousands of wireless
antennas and tens of thousands of Bluetooth 4.0 modules.
After BlueRadios received this request and placed the orders,
Datacolor allegedly cancelled its request without
gist of Datacolor's motion to dismiss is that it cannot
be required to answer a breach of contract lawsuit filed in a
Colorado court by a Colorado entity where Datacolor has no
presence in Colorado and never physically came to Colorado in
connection with the alleged contract. In short, Datacolor
challenges the courts exercise of jurisdiction over it.
Facts relevant to Datacolor's challenge to personal
on the allegations of the Complaint and the affidavit and
exhibits submitted in opposition to the Motion to Dismiss,
the following facts are relevant to the issue of personal
1. BlueRadios is a Colorado corporation with its principal
place of business in Douglas County. Compl. (Dkt. #4 ¶
2. Defendant Datacolor is the United States operating company
of Datacolor AG, a Swiss company. Datacolor has its principal
place of business in Lawrenceville, New Jersey. (Id.
3. NEOTech-On-Core (“Oncore”) is a contract
manufacturer for and agent of Datacolor. (Id. ¶
3.) As alleged in the Complaint, Datacolor uses Oncore as its
agent to enter into purchase agreements on Datacolor's
behalf. (Id. ¶ 4.)
4. Over several years prior to 2017, BlueRadios and Datacolor
(and its agents) conducted business together and established
a course of conduct whereby business was conducted (including
the ordering and purchasing of products from BlueRadios)
through email exchanges, purchase orders, and invoices.
(Id. ¶ 8.)
5. In each instance of prior business between BlueRadios and
Datacolor (or its agents), an order was initiated by
Datacolor calling BlueRadios in Colorado by telephone. As
early as 2012, Datacolor had been contacting BlueRadios in
Colorado for technical support by phone and e-mail. As one
example, Datacolor had requested a piece of hardware called
BlueRadios Break-Out-Board (“BOB”), and
BlueRadios provided Datacolor with guidance on the phone ...