United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Check Point Software
Technologies, Ltd.’s Motion to Dismiss [Docket No. 28].
The Court has jurisdiction under 28 U.S.C. §§ 1331
case arises out of a dispute over the alleged
misappropriation of trade secrets. Plaintiff zvelo, Inc. is a
technology company that offers to customers a database of
categorized website addresses, or Uniform Resource Locators
(“URLs”), for purposes of domain name filtering,
content filtering, parental controls, content categorization,
and other purposes. Docket No. 1 at 3, ¶ 12. This type
of technology allows companies to filter or block access to
certain websites on the companies’ computers.
Id. at 2, ¶ 7. Because websites differ so
widely, filtering websites based on form or content can be
difficult. Id., ¶ 8. Thus, plaintiff’s
database assigns categories to each unique URL, such as
“news” or “malicious software” so
that users can filter or block websites based on category.
Id. at 2-3, ¶¶ 8-9. Plaintiff also
compiles data about URLs that are actively visited to keep
its database up-to-date on active and inactive websites.
Id. at 3-4, ¶ 14. Plaintiff calls this
knowledge of active websites the “zvelo Active Web,
” which, along with the categorizations of the URLs,
makes up plaintiff’s database. Id. at 4,
¶ 15. Plaintiff contends its database is unique and
valuable intellectual property that would be challenging for
another company to recreate. Id. at 3-4, ¶ 14.
Check Point Software Technologies, Ltd. is a company located
in Israel that offers products and services that provide URL
filtering functionality. Id. at 1, ¶ 2;
id. at 8, ¶ 41. Plaintiff alleges that
defendant’s products and services have illegally used
plaintiff’s database and the proprietary information
contained therein, resulting in trade secret
misappropriation. Id. at 8-9, ¶¶ 42-43.
filed this lawsuit on September 5, 2018, raising claims of
(1) trade secret misappropriation under the Defend Trade
Secrets Act (“DTSA”), 18 U.S.C. § 1836,
et seq., (2) trade secret misappropriation under the
Colorado Uniform Trade Secrets Act, Colo. Rev. Stat. §
7-74-101, et seq., and (3) unjust enrichment. Docket
No. 1 at 9-13. Plaintiff also seeks injunctive relief.
Id. at 14. On February 8, 2019, defendant filed a
motion to dismiss for lack of personal jurisdiction and for
failure to state a claim under Rules 12(b)(2) and 12(b)(6) of
the Federal Rules of Civil Procedure, respectively. Docket
No. 28. Plaintiff filed a response, Docket No. 37, to which
defendant replied. Docket No. 46. The Court will first
address the threshold question of whether it has personal
jurisdiction over defendant. U.S. v. Botefuhr, 309
F.3d 1263, 1270 (10th Cir. 2002).
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). A 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.
establishing 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)). 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). Plaintiff argues that the Court has specific
personal jurisdiction over defendant. Docket No. 37 at 2. In
the alternative, plaintiff contends that personal
jurisdiction is proper under Rule 4(k)(2) of the Federal
Rules of Civil Procedure. Id. at 4.
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
argues that defendant has the requisite minimum contacts with
Colorado because defendant “purposefully directed
marketing and sales for its URL Filtering Software Blade in
the United States, ” “willingly acknowledges that
it has used [a] U.S.-based wholly-owned subsidiary” as
a distributor for its products and services, and
“admits that it sells its URL Filtering Software Blade
to end-users in the United States through third-party
resellers or distributors.” Docket No. 37 at 2-3.
Further, plaintiff states that defendant “does not
claim that it, its resellers, or its distributors make any
effort to exclude Colorado from their sale efforts.”
Id. at 3.
argument misses the mark. The relevant inquiry is not whether
defendant has minimum contacts with the United States in
general and, incidentally, Colorado, but whether defendant
has “purposefully availed itself of the privilege of
conducting activities within the forum State or [has]
purposefully directed its conduct into the forum
State.” Bristol-Myers Squibb, 137 S.Ct. at
1785 (internal quotation marks and alteration marks omitted).
“A defendant has ‘purposefully directed’
its activities at Colorado or its residents when it has (1)
taken intentional action, (2) that was expressly aimed at
Colorado, (3) with the knowledge that the brunt of the injury
from the action would be felt in Colorado.” Pandaw
Am. Inc., v. Pandaw Cruises India Pvt. Ltd., 842
F.Supp.2d 1303, 1309-10 (D. Colo. 2012) (citing
Dudnikov, 514 F.3d at 1071). Plaintiff’s
allegations fail to plead an intentional action that was
expressly aimed at Colorado. Allegations that defendant
directed its activities at the United States generally are
insufficient to establish that defendant took intentional
action that was expressly aimed at Colorado such that
defendant is subject to personal jurisdiction in Colorado
courts. See J. McIntyre Machinery, Ltd. v. Nicastro,
564 U.S. 873, 885-86 (2011) (finding no personal jurisdiction
in New Jersey court where the defendant had “directed
marketing and sales efforts at the United States, ” but
plaintiff had “not established that [defendant] engaged
in conduct purposefully directed at New Jersey”);
see also Id . ...