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Baldwin v. Athens Gate Belize, LLC

United States District Court, D. Colorado

September 24, 2019

CAROLYN BALDWIN, individually and as next friend of J.D.B, Jr., her minor child, Plaintiffs,


          PHILIP A. BRIMMER, Chief United States District Judge.

         This matter is before the Court on Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction [Docket No. 38], Defendants’ Motion to Dismiss for Forum Non Conveniens [Docket No. 39], and Plaintiffs’ Motion to Conduct Jurisdictional Discovery [Docket No. 58]. Plaintiffs filed a combined response to defendants’ motions to dismiss [Docket No. 62], to which defendants replied. Docket No. 66.

         I. BACKGROUND

         This dispute arises out of a tragic accident that occurred in San Pedro, Belize at a vacation resort called Athens Gate Resort (“the resort”). Docket No. 21 at 3, ¶ 11; id. at 7, ¶ 39. Plaintiffs allege that both defendants – Pelican Reef and Athens Gate Belize – own and operate the resort. Id. at 2, ¶¶ 4-5.[1] The resort owns and maintains a pier that leads from the beach into the ocean. Id. at 6, ¶ 27. On June 4, 2017, plaintiff Carolyn Baldwin dove from the pier into the ocean and hit her head on the ocean f loor. Id. at 7, ¶ 39. She suffered a burst fracture of her cervical spine at the C5 vertebrae, which caused immediate paralysis from the neck down. Id.

         Ms. Baldwin’s stay in Belize was planned by Ms. Kristin Viger. Id. at 3, ¶ 9. When planning the trip, Ms. Viger landed on the resort website after clicking on an advertisement for the resort on Id. at 4, ¶ 12. The resort website allows potential customers to complete the reservation process via the website and also allows customers to ask questions, request information, and receive responses from resort personnel. Id., ¶ 14. Ms. Viger called a phone number listed on the resort’s website, which directed her to a call center in Houston, Texas. Id., ¶ 15. Ms. Viger booked the trip and completed payment for one half of the total cost of the trip. Id., ¶ 17. Employees of the resort subsequently emailed Ms. Viger to remind her to complete the remaining payment, id. at 5, ¶ 20, which Ms. Viger did by contacting the call center again. Id. at 4, ¶ 18. During each of these telephone calls, Ms. Viger was physically located in Colorado. Id., ¶ 19. The call center representative was aware that Ms. Viger was located in Colorado. Id.

         Plaintiffs claim that there are no warning signs against diving or swimming from the pier, id. at 6, ¶ 31, and alleges that, at no point during Ms. Baldwin’s visit was she warned by resort employees about diving off of the pier. Id., ¶ 33; id. at 7, ¶ 36. Plaintiffs filed this lawsuit on March 9, 2018 raising claims of (1) negligence under Texas law; (2) gross negligence under Texas law; (3) vicarious liability under Texas law; and (4) loss of parental consortium. Docket No. 2 at 8-10. On September 6, 2018, defendants filed their motion to dismiss for lack of personal jurisdiction [Docket No. 38] and their motion to dismiss for forum non conveniens. Docket No. 39.


         The purpose of a motion to dismiss under Rule 12(b)(2) is to determine whether a 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 v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). 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.” Id.

         III. ANALYSIS

         “In 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.” 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)). Plaintiffs claim that the Court has personal jurisdiction over defendants under the Colorado long-arm statute, Colo. Rev. Stat. § 13-1-124. Docket No. 21 at 3, ¶ 7. Defendants argue that the long-arm statute does not confer personal jurisdiction here because there was no “commission of a tortious act within [the] state” under § 13-1-124(1)(b). Docket No. 38 at 4. Plaintiffs contend that the long-arm statute does allow for the Court to exercise personal jurisdiction over defendants because defendants engaged in the “transaction of any business” within Colorado under § 13-1-124(1)(a). Docket No. 62 at 16.

         The Court finds that neither argument is on point. The Colorado long-arm statute 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 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. Shaw v. Vircurex, No. 18-cv-00067-PAB-SKC, 2019 WL 2636271, at *2 (D. Colo. Feb. 21, 2019). Plaintiffs argue that the Court has both specific and general personal jurisdiction over defendants. Docket No. 21 at 3, ¶ 7.

         A. Specific Jurisdiction

         Specific 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. This latter inquiry requires a determination of whether the Court’s exercise of personal jurisdiction over the defendant is “reasonable” in light of the circumstances of the case. Id.

         Plaintiffs argue that the Court has specific personal jurisdiction over defendants based on defendants’ maintenance of an “interactive website” plus other contacts with the state of Colorado. Docket No. 62 at 16. In support of their argument, plaintiffs cite several cases that rely on Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa. 1997), which created a “sliding scale” based on website interactivity to determine whether a defendant’s maintenance of a website is sufficient to confer personal jurisdiction over a defendant. In cases concerning “interactive Web sites where a user can exchange information with the host computer, ” Zippo stated that “the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.” Id. at 1124. Under Zippo, a “passive” website “that does little more than make information available . . . is not grounds for the exercise [of] personal jurisdiction, ” but a more interactive website, “where a defendant clearly does ...

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