United States District Court, D. Colorado
CAROLYN BALDWIN, individually and as next friend of J.D.B, Jr., her minor child, Plaintiffs,
ATHENS GATE BELIZE, LLC and PELICAN REEF MANAGEMENT, LLC, Defendants.
A. BRIMMER, Chief United States District Judge.
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.
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. 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.
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 TripAdvisor.com. 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
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
LEGAL STANDARD – PERSONAL JURISDICTION
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.
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.
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.
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
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 ...