Case 1:15-cv-00871-KLM Document 41 Filed 03/28/16 USDC Colorado Page 1 of 44
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Civil Action No. 15-cv-00871-KLM
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`BRADLEY D. OASTER,
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`Plaintiff,
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`v.
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`STANLEY ROBERTSON,
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`Defendant.
`_____________________________________________________________________
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`ORDER
`_____________________________________________________________________
`ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
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`This matter is before the Court1 on Defendant’s Motion to Dismiss Pursuant to
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`12(b)(1), 12(b)(2), and 12(b)(6) and if Necessary, Request for Evidentiary Hearing [#18]2
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`(the “Motion”). Plaintiff filed a Response [#22] in opposition to the motion and Defendant
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`filed a Reply [#23]. On October 9, 2015, the Court entered a Minute Order [#30] informing
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`the parties that it was converting Defendant’s Motion [#18] filed pursuant to Rule 12(b)(6)3
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`to a motion for summary judgment pursuant to Rule 56. See Minute Order [#30]. As a
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`1 The parties consented to proceed before the undersigned for all proceedings pursuant to
`28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. See generally Consent Form [#20].
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`2 “[#18]” is an example of the convention the Court uses to identify the docket number
`assigned to a specific paper by the Court’s electronic case filing and management system
`(CM/ECF). This convention is used throughout the Order.
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`3 Rule 12(d) provides that “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside
`the pleadings are presented to and not excluded by the court, the motion must be treated as one
`for summary judgment under Rule 56.” Thus, although Plaintiff filed the Motion pursuant to Rules
`12(b)(1), 12(b)(2), and 12(b)(6), only the Rule 12(b)(6) portion of the Motion has been converted
`to a Rule 56 motion for summary judgment. See Minute Order [#30].
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`Case 1:15-cv-00871-KLM Document 41 Filed 03/28/16 USDC Colorado Page 2 of 44
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`result of the conversion of the Motion, the Court allowed the parties the opportunity to file
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`supplemental briefs. Id. The parties both filed supplemental briefs, which the Court has
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`reviewed. See Am. Suppl. Brief in Support (“Suppl. Brief in Support”) [#35]; Response Brief
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`to Defendant’s Suppl. Brief in Support (“Suppl. Response”) [#37]. The Court has also
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`reviewed the Motion, the Response, the Reply, the entire case file, and the applicable law,
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`and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#18]
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`is GRANTED IN PART and DENIED IN PART.
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`I. Background
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`A.
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`Factual Background
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`In 2000, Plaintiff Bradley Oaster and Defendant Stanley Robinson entered into a
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`business relationship which centered on the design and development of various church
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`facilities throughout the United States. Am. Compl. [#14] ¶ 2. Plaintiff alleges that he and
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`Defendant, an architect, entered into a personal services contract in 2000 whereby
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`Defendant would be paid for animation services and that, starting in 2006, this contract was
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`expanded to include supplemental drafting services involving the addition of supplemental
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`detail to existing schematic designs. Id. According to Plaintiff, the two agreed that the work
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`product produced by Defendant would remain the property of Plaintiff, and also that the
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`original schematic designs to which Defendant added detail were created and owned by
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`either Plaintiff or Plaintiff’s business partner.4 Id. ¶¶ 5, 11. Plaintiff alleges that he has
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`registered copyrights on the designs. Id. ¶ 8. The Complaint also states that the parties
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`worked on twenty-five church development projects together over their ten-year business
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`4 Plaintiff’s business partner, Pat Morgan, has assigned his rights in this matter to Plaintiff.
`See generally Assignment of Claim [#14-1].
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`Case 1:15-cv-00871-KLM Document 41 Filed 03/28/16 USDC Colorado Page 3 of 44
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`relationship. Id. ¶ 10. While the parties worked together, Plaintiff alleges that the Defendant
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`had access to all planning, development, and design information related to each project.
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`Id. ¶ 12.
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`At the outset, Defendant disagrees on the exact characterization of the parties’
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`relationship. Specifically, Defendant maintains that although he entered into the contract
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`with Plaintiff in his individual capacity, from 2003 onwards the only work he performed was
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`in his official capacity as an owner of two companies he had created in Texas: Gone Virtual
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`Studios, Inc. (“GVS”) and Halo Architects, Inc. (“Halo”). Brief in Support of Motion to
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`Dismiss [#19] (“Brief in Support”) at 2. Thus, Defendant claims that his business relationship
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`with Plaintiff can be divided into two discrete periods: (1) the period of time from 2000 to
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`2003 where Defendant and Plaintiff had a business relationship as two individuals working
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`together; and (2) the period of time from 2003 to 2010, where Defendant worked with
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`Plaintiff in his capacity as an officer of either GVS or Halo. Id.
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`Regardless, both parties agree that the relationship ended in either late 2009 or 2010.
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`Id.; Am. Compl. [#14] ¶ 2. On January 5, 2010, Defendant’s lawyer – writing on behalf of
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`Defendant and Defendant’s companies, Halo and GVS – sent Plaintiff a letter demanding
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`that Plaintiff stop using schematic designs prepared by Halo, GVS, or Defendant. Appendix
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`in Support of Motion to Dismiss [#19-1] at 7. Plaintiff then sent Defendant a letter in which
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`he outlined several things that he believed Defendant was doing wrong. Appendix in
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`Support of Summary Judgment [#33] at 21. In the letter, Plaintiff informed Defendant that
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`Plaintiff was planning to bring these allegations of wrongdoing to the proper authorities. Id.
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`One of the allegations reads “[Defendant] ha[s] attempted to hijack Harvestime’s project by
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`intentionally and willfully going around Harvestime and working directly with Harvestime’s
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`Case 1:15-cv-00871-KLM Document 41 Filed 03/28/16 USDC Colorado Page 4 of 44
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`client.” Id. The letter goes on to state “[Defendant is] guilty of torsos [sic] interference with
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`a contractual relationship[.]” Id.
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`In 2013, Plaintiff alleges that he discovered that Defendant told one of Plaintiff’s
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`clients that Defendant owned Plaintiff’s copyrighted designs. Am. Compl. [#14] ¶ 14.
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`Plaintiff claims that Defendant told the client that he was the owner of the designs in an
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`attempt to persuade the client to terminate its relationship with Plaintiff. Id. Additionally,
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`Plaintiff alleges that he learned that Defendant had disparaged him while talking to the
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`client, telling the client that Plaintiff often used “bait and switch” sales techniques. Id.
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`According to Plaintiff, based on this knowledge, in November 2014 Plaintiff began
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`investigating and found that Defendant was misrepresenting to the public that Defendant
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`was the owner of the copyrighted designs, and Defendant had the right to use them and sell
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`them. Id. ¶ 15.
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`During Plaintiff’s investigation, Plaintiff also alleges he learned that Defendant sold
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`Plaintiff’s protected designs on a website, www.worshipplaces.com, but that Defendant
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`refused to stop selling the designs and did not compensate Plaintiff in any way for use of the
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`designs. Id. ¶¶ 17-19. Plaintiff alleges that this website is Defendant’s website. Id. Again,
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`however, Defendant disagrees with this characterization, and claims that the website is not
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`owned and operated by him, but is owned and operated by GVS. Brief in Support [#19] at
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`12. Additionally, Plaintiff claims that Defendant exploited Plaintiff’s confidential lists of
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`potential clients and encouraged these clients to work with Defendant instead of Plaintiff.
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`Am. Compl. [#14] ¶ 20.
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`B.
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`Procedural History
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`On March 2, 2015, Plaintiff filed a complaint in state court alleging numerous claims
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`Case 1:15-cv-00871-KLM Document 41 Filed 03/28/16 USDC Colorado Page 5 of 44
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`against Defendant. State Court Compl. [#1-3]. Defendant filed a Notice of Removal on April
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`24, 2015 pursuant to 28 U.S.C. § 1441(b). Id. On May 1, 2015, Defendant filed a motion
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`to dismiss, and Plaintiff then responded by filing an Amended Complaint on May 19, 2015.
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`Motion to Dismiss [#6]; Am. Compl. [#14]. Plaintiff’s Amended Complaint brings eleven5
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`claims against Defendant: (1) breach of contract; (2) fraud; (3) conversion; (4) civil theft; (5)
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`slander; (6) breach of fiduciary duty; (7) interference with contract; (8) violation of the
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`Colorado Consumer Protection Act, C.R.S. § 6-1-101, et seq.; (9) replevin; (10) unjust
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`enrichment; and (11) copyright infringement. Id. ¶¶ 24-83. The Court then denied the
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`motion to dismiss as moot. Minute Order [#16].
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`Subsequently, Defendant filed the present Motion to Dismiss on June 8, 2015.
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`Motion [#18]. In support of his Motion to Dismiss, Defendant provides an appendix
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`containing an affidavit executed by himself, the aforementioned 2010 letter from his counsel
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`to Plaintiff formally severing the business relationship, and the certificates of formation of
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`GVS and Halo. Appendix in Support of Motion to Dismiss [#19-1]. Additionally, Plaintiff
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`cites to his own affidavit in response to Defendant’s Motion to Dismiss. See Response
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`[#22]; Affidavit of Bradley D. Oaster [#15-1].
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`In the original briefing provided with the Motion, Defendant requested that the Court
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`“dismiss this entire cause of action pursuant to Rule 12(b)(1), or in the alternative, Rule 56
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`5 Plaintiff lists thirteen claims in his complaint, but Plaintiff’s sixth claim, bad faith breach
`of contract, is not recognized as a separate cause of action in Colorado. Ohio Spine Network, Inc.
`v. Lanx, Inc., No. 10-cv-02402-CMA-MJW, 2012 WL 1596915, at *1 (D. Colo. May 7, 2012) (stating
`that except in the case of a breach of an insurance contract, Colorado law does not recognize a
`claim for bad faith breach of contract); see also Energex Enters., Inc. v. Anthony Doors, Inc., 250
`F.Supp.2d 1278, 1284 (D. Colo. 2003); William H. White Co. v. B & A Mfg. Co., 794 P.2d 1099,
`1101 (Colo. App. 1990). Further, Plaintiff’s eleventh claim, injunction, is a remedy, not a cause of
`action.
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`Case 1:15-cv-00871-KLM Document 41 Filed 03/28/16 USDC Colorado Page 6 of 44
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`because all of the claims are barred by the applicable statute of limitations.” Brief in Support
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`[#19] at 11. However, because the evidence put forth by Defendant pertains to whether
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`Plaintiff has sufficiently alleged a claim (as discussed below), on October 9, 2015, the Court
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`converted the Motion to a Rule 56 Motion for Summary Judgment pursuant to Rule 12(d).6
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`Minute Order [#30]. The parties submitted supplemental briefing to the Court pursuant to
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`the Court’s Order. See Suppl. Brief in Support [#35]; Suppl. Response [#37]. Defendant
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`also submitted a supplemental appendix of evidence in support of the Motion; similarly,
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`Plaintiff has provided a supplemental affidavit. See Appendices in Support of Motion for
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`Summary Judgment [#33, #34]; Suppl. Affidavit of Bradley D. Oaster [#37-2] (“Suppl. Oaster
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`Affidavit”).
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`On January 11, 2016, the Court granted in part Defendant’s motion to strike portions
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`of the supplemental affidavit provided by Plaintiff. Order [#40]. Specifically, the Court struck
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`portions of paragraph 9, all of paragraph 10 except for the first and last sentences, the last
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`two sentences of paragraph 11, and a portion of paragraph 14 on the basis that these
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`statements were inadmissable hearsay. Id. Thus, in analyzing the parties’ respective
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`arguments, the Court does not consider the portions of Plaintiff’s affidavit stricken by the
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`Court.
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`II. Discussion
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`Defendant’s Motion makes three arguments: (1) lack of personal jurisdiction; (2) lack
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`6 The Court has not converted the Rule 12(b)(2) portion of the Motion to a Rule 56 motion
`for summary judgment. See Minute Order [#30]; Fed. R. Civ. P. 12(d). Thus, the jurisdictional
`issues presented by Defendant are considered pursuant to a motion to dismiss pursuant to Rule
`12(b)(2) standard. Although a portion of Defendant’s motion requested dismissal under Rule
`12(b)(1), the Court has construed Defendant’s argument as pertaining to the merits of Plaintiff’s
`claims.
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`Case 1:15-cv-00871-KLM Document 41 Filed 03/28/16 USDC Colorado Page 7 of 44
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`of subject matter jurisdiction; and (3) failure to state a claim pursuant to Rule 12(b)(6). Brief
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`in Support [#19] at 1. In the alternative, Defendant requests that the Court transfer this
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`matter to the United States District Court for the Northern District of Texas pursuant to 28
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`U.S.C. § 1404. Id. at 2.
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`As a preliminary matter, the Court notes that Defendant’s second argument – lack
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`of subject matter jurisdiction – is premised on the contention that the Court lacks jurisdiction
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`because the statutes of limitations have run on Plaintiff’s claims. Brief in Support [#19] at
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`11. However, “[i]f the allegations . . . show that relief is barred by the applicable statute of
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`limitations, the complaint is subject to dismissal for failure to state a claim[.]” Jones v. Bock,
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`549 U.S. 199, 215 (2007). Thus, because the statute of limitations issues are not
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`jurisdictional, this argument must be analyzed pursuant to Rule 56 rather than Rule
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`12(b)(1).7
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`Accordingly, the Court will address Defendant’s arguments as follows: (A) dismissal
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`for lack of personal jurisdiction pursuant to Rule 12(b)(2); (B) entry of summary judgment
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`in Defendant’s favor pursuant to Rule 56; and (C) the Court should transfer this action
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`pursuant to 28 U.S.C. § 1404. The Court’s analysis of Defendant’s Rule 56 arguments will
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`consist of two subparts: (1) Defendant’s argument that, as a threshold matter, Plaintiff’s
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`claims are barred by the applicable statutes of limitations and (2) Defendant’s argument
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`7 Defendant makes no other argument concerning whether the Court lacks subject matter
`jurisdiction. Brief in Support [#19]. Moreover, the Court notes that subject matter jurisdiction is
`appropriate here pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), as Plaintiff alleges
`a federal copyright claim against Defendant. Am. Compl. [#14] ¶¶ 72-83. However, although
`Defendant originally removed this action pursuant to 28 U.S.C. § 1441(b) (removal by a defendant
`based on diversity jurisdiction), neither Plaintiff’s original complaint nor the Amended Complaint
`allege any amount in controversy. See Am. Compl. [#14]. Here, removal on the basis of diversity
`of citizenship is likely improper. 28 U.S.C. § 1332.
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`Case 1:15-cv-00871-KLM Document 41 Filed 03/28/16 USDC Colorado Page 8 of 44
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`that, substantively, no genuine dispute of any material fact exists and judgment should be
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`entered in favor of Defendant.
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`A.
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`Motion to Dismiss for Lack of Personal Jurisdiction
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`The Court analyzes Defendant’s argument that the Court lacks personal jurisdiction
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`pursuant to Rule 12(b)(2). A plaintiff bears the burden of establishing personal jurisdiction
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`over a defendant. Behagen v. Amateur Basketball Ass’n of the United States, 744 F.2d 731,
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`733 (10th Cir. 1984). Before trial, a plaintiff need only make a prima facie showing of
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`jurisdiction. Id. The Court accepts the well-pled allegations (namely the plausible,
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`nonconclusory, and nonspeculative facts) of the operative pleading as true to determine
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`whether the plaintiff has made a prima facie showing that the defendants are subject to the
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`Court's personal jurisdiction. Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063,
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`1070 (10th Cir. 2008). The Court “may also consider affidavits and other written materials
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`submitted by the parties.” Impact Prods., Inc. v. Impact Prods., LLC, 341 F. Supp. 2d 1186,
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`1189 (D. Colo. 2004). However, any factual disputes are resolved in the plaintiff’s favor.
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`Benton v. Cameco Corp., 375 F.3d 1070, 1074-75 (10th Cir. 2004).
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`The exercise of personal jurisdiction over a non-resident defendant must satisfy the
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`requirements of the forum state’s long-arm statute as well as constitutional due process
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`requirements. Doe v. Nat’l Med. Servs., 974 F.2d 143, 145 (10th Cir. 1992). Colorado’s
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`long-arm statute “is to be interpreted as extending jurisdiction of our state courts to the
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`fullest extent permitted by the due process clause of the United States Constitution.” Mr.
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`Steak, Inc. v. Dist. Court In & For Second Judicial Dist., 194 Colo. 519, 521 (1978).
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`Therefore, if jurisdiction is consistent with the due process clause, Colorado’s long-arm
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`statute authorizes jurisdiction over a nonresident defendant. Under the due process clause
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`Case 1:15-cv-00871-KLM Document 41 Filed 03/28/16 USDC Colorado Page 9 of 44
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`of the Fourteenth Amendment, personal jurisdiction may not be asserted over a party unless
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`that party has sufficient “minimum contacts” with the state, so that the imposition of
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`jurisdiction would not violate “traditional notions of fair play and substantial justice.”
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`Helicopteros Nacionales De Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984) (quoting
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`International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
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`Here, Defendant contends that Plaintiff does not allege facts to demonstrate the
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`Court’s general or specific jurisdiction over him. Brief in Support [#19] at 7. Defendant
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`further argues that his contacts with Plaintiff (and thus Colorado) were not on a personal
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`level, but through Defendant’s business, and thus, Defendant himself has no contacts with
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`Colorado. Id. at 8. In response, Plaintiff directs the Courts’s attention to a number of ways
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`in which Defendant has contacts with Colorado, including the fact that Defendant used to
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`have a professional license from Colorado, and previously resided in Colorado. Response
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`[#22] at 5-7.
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`1.
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`General jurisdiction.
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`Under principles of general jurisdiction, a nonresident defendant may be subject to
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`a state’s jurisdiction even where the alleged injury is unrelated to the defendant’s contacts
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`with the forum state. If a defendant’s contacts with a state are strong enough, the state may
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`assert jurisdiction over a defendant on any matter, whether or not it arises out of the
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`defendant’s contacts with the state. See Perkins v. Benguet Consol. Mining Co., 342 U.S.
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`437, 446 (1952). General jurisdiction is appropriate only when a defendant has “continuous
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`and systematic” general business contacts with the forum state, Helicopteros, 466 U.S. at
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`415, so that the defendant could reasonably anticipate being haled into court in that forum.
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`See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985).
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`Plaintiff does not allege sufficient facts to demonstrate that the Court has general
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`jurisdiction over Defendant. General jurisdiction is appropriate only when a defendant has
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`“continuous and systematic” general business contacts with the forum state. Helicopteros,
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`466 U.S. at 415. Plaintiff’s only allegation to this effect is the conclusory statement “at all
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`material times, [Defendant] did and continues to do business in Colorado.” Am. Compl.
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`[#14] at 1. Plaintiff also includes facts about Defendant that demonstrate that Colorado may
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`have previously had general jurisdiction over Defendant (e.g., Defendant previously lived
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`in Colorado and had a professional license issued by Colorado). Id. However, it is
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`undisputed that Defendant has lived outside of Colorado since 2002. Reply [#18] at 8.
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`Plaintiff offers no support to show that an individual’s prior connections continue into
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`perpetuity, and to so find would be illogical. Plaintiff has not demonstrated that the Court
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`has general jurisdiction over Defendant.
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`2.
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`Specific jurisdiction.
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`When pervasive contacts to assert a finding of general personal jurisdiction are
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`lacking, specific jurisdiction may nevertheless be asserted if a defendant has “purposefully
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`directed” his activities toward the forum state, and if the lawsuit is based upon injuries that
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`“arise out of” or “relate to” the defendant’s contacts with the state. Burger King, 471 U.S.
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`at 472. “Because a state’s sovereignty is territorial in nature, a defendant’s contacts with
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`the forum state must be sufficient such that, notwithstanding [his] lack of physical presence
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`in the state, the state’s exercise of sovereignty over [him] can be described as fair and just.”
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`Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). To
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`implement this principle, courts typically make three inquiries: (1) whether the defendant
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`purposefully directed his activities at residents of the forum state; (2) whether the plaintiff’s
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`injury arose from those purposefully directed activities; and (3) whether exercising
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`jurisdiction would offend traditional notions of fair play and substantial justice. Id.
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`a.
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`Contract claims.
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`Plaintiff must allege sufficient facts to demonstrate that Defendant purposefully
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`directed his activities at residents of the forum state. Dudnikov, 514 F.3d at 1070.
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`Plaintiff’s allegations demonstrate this to be the case. It is undisputed that Defendant
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`entered into a contract with Plaintiff, and worked for him over a ten-year period. Plaintiff is
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`a Colorado resident, and Plaintiff worked from an office located in Colorado while Defendant
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`performed his work for and submitted it to Plaintiff. Am. Compl. [#14] ¶ 1, 4. This is not to
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`say that every time a party enters into a contract with a nonresident that the party has
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`sufficient connections with the other party’s home forum. “If the question is whether an
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`individual’s contract with an out-of-state party alone can automatically establish sufficient
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`minimum contacts in the other party’s home forum, we believe the answer clearly is that it
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`cannot.” Burger King, 471 U.S. at 478 (emphasis in original). Prior negotiations and
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`contemplated future consequences, along with the terms of the contract8 and the parties’
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`actual course of dealing, must be evaluated in determining whether the defendant
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`purposefully established minimum contacts with the forum. Id. at 479.
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`The facts of this case mirror AST Sports Sci., Inc. v. CLF Distribution Ltd., 514 F.3d
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`1054 (10th Cir. 2008). In Sports Sci., the plaintiff (a Colorado company) and defendant (a
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`British company) entered into an contract allowing defendant to sell plaintiff’s products in
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`8 The Court notes that the terms of the contract itself cannot be examined because neither
`party provided the Court with the contract or any language from the contract.
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`England. Id. at 1056. The parties did business together via telephone and e-mail for six
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`years, until the defendant stopped paying the plaintiff. Id. The plaintiff brought contract and
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`tort claims against the defendant. Id. The district court held that it did not have specific
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`personal jurisdiction over defendant, and dismissed the claims. Id.
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`The 10th Circuit reversed, finding that specific personal jurisdiction did exist based
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`on the contract and business relationship between the two parties. Id. at 1060. The court
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`noted that the contract evidenced prior negotiations and future consequences of a
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`continuing business relationship. Id. at 1058. In making this determination, the court also
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`relied on the phone calls, letters, facsimiles, and e-mails which “provided additional evidence
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`that the [foreign defendant] pursued a continuing business relationship with [the plaintiff].”
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`Id. at 1059 (quoting Pro Axess v. Orlux Distrib., Inc., 428 F.3d 1270, 1278 (10th Cir. 2005)).
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`In summary, the court stated: “Quite simply, defendants reached out to become AST’s
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`European distributor, the relationship was allegedly memorialized in [a] contract, and the
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`relationship lasted for a . . . period of seven years. It should not be a surprise to defendants
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`that this continuing relationship and the resulting obligations to plaintiff subjects them to
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`regulation and sanctions in Colorado for the consequences of their alleged activities.”
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`Sports Sci., 514 F.3d at 1059-60.
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`Based on Plaintiff’s allegations, the scope and length of the agreement along with the
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`parties’ course of dealing suggest that Defendant intended to engage in a significant amount
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`of business with Plaintiff and Plaintiff’s Colorado-based business. Plaintiff and Defendant
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`did not agree to work on one project together and go their separate ways. The contract they
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`entered into facilitated a business relationship that lasted ten years. Am. Compl. [#14] ¶ 2.
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`Over the course of those ten years, Plaintiff paid Defendant $1,287,607. Id. ¶ 3. Halfway
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`Case 1:15-cv-00871-KLM Document 41 Filed 03/28/16 USDC Colorado Page 13 of 44
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`through their business relationship, Defendant increased the role he played in Plaintiff’s
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`business operations. Id. ¶ 2. These contacts between Defendant and Plaintiff in Colorado
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`are not the type of “random,” “fortuitous,” or “attenuated” contacts that are insufficient to give
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`a court jurisdiction over a defendant. Keeton v. Hustler Magazine, Inc., 465 U.S. 770 ,774
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`(1984). Just as in Sports Science, Defendant should not be surprised that, as a result of the
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`continuing business relationship with Plaintiff, Colorado courts have personal jurisdiction
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`over him with regard to claims brought based on those contacts.
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`Having made this determination, the Court must examine whether Plaintiff sufficiently
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`alleges that his injuries arose from these activities. Dudnikov, 514 F.3d at 1070. Plaintiff
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`alleges that Defendant breached the contract that the parties entered into, and that the
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`breach caused Plaintiff damages. See generally Am. Compl. [#14]. Plaintiff’s other claims
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`relate to the business relationship between the parties as well. If not for the business
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`relationship, Defendant would never have had access to the intellectual property at issue,
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`and Defendant would never have had access to Plaintiff’s client lists.
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`Because the Court has determined that the contract and business relationship
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`between the parties constituted purposeful availment on the part of Defendant, any
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`damages that relate to the business relationship between the parties stem from Defendant’s
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`actions directed at Colorado. Without commenting on the legitimacy of Plaintiff’s claims, the
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`Court, based on the findings above, finds that Plaintiff’s allegations establish that his injuries
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`arose from Defendant’s contacts with Colorado.
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`The only dispute Defendant raises with respect to personal jurisdiction is that
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`Defendant, individually, did not do business with Plaintiff after 2003. Brief in Support [#19]
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`at 8. Thus, Defendant argues, because all of the contractual disputes concern a period of
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`Case 1:15-cv-00871-KLM Document 41 Filed 03/28/16 USDC Colorado Page 14 of 44
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`time (i.e., after 2003) when Defendant was doing business with Plaintiff in his capacity as
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`an officer of GVS or Halo, there is no specific jurisdiction with respect to Defendant
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`individually. Suppl. Brief in Support [#35] at 7. However, the evidence cited to by Defendant
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`does not support this assertion. Specifically, Defendant cites to an affidavit executed by
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`Defendant. Id. However, this affidavit merely asserts the following: “Neither myself, nor
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`GVS or Halo Architects, have had any business relationship or any relationship . . . with
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`[Plaintiff] since 2010.” Appendix in Support of Summary Judgment [#33] at 4 (emphasis
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`added).9
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`Nonetheless, even were the Court to accept Defendant’s assertion that Defendant
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`only acted as an officer of one of his corporations, the outcome would still be the same.
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`Although Defendant does not address the issue in his briefing, his argument implicates the
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`fiduciary shield doctrine. Under the fiduciary shield doctrine, “a nonresident corporate agent
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`generally is not individually subject to a court's jurisdiction based on acts undertaken on
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`behalf of the corporation.” Newsome v. Gallacher, 722 F.3d 1257, 1275 (10th Cir. 2013)
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`(quotation marks and citation omitted). However, “under Newsome, the threshold question
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`is whether Colorado recognizes the fiduciary shield doctrine.” Carskadon v. Diva Int'l, Inc.,
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`No. 12-cv-01886-RM-KMT, 2014 WL 7403237, at *5 (D. Colo. Feb. 26, 2014) report and
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`recommendation adopted, No. 12-cv-01886-RM-KMT, 2014 WL 7403233 (D. Colo. Dec. 29,
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`2014). The Court has been unable to find any instances of a Colorado court adopting or
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`applying the fiduciary shield doctrine. In the absence of such law, the consideration of all
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`9 As noted above, the Court may consider evidence outside the pleadings on a request for
`dismissal pursuant to Rule 12(b)(2). See Impact Prods., 341 F. Supp. at 1189; see also Dazey
`Corp. v. Wolfman, 948 F. Supp. 969, 972 (D. Kan. 1996) (stating that the “parties may submit
`affidavits and other documentary evidence for the court's consideration” on a Rule 12(b)(2) motion).
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`-14-
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`

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`Case 1:15-cv-00871-KLM Document 41 Filed 03/28/16 USDC Colorado Page 15 of 44
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`of Defendant’s contacts with Colorado is required. See id. (declining to apply the fiduciary
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`shield doctrine and considering all of the defendant’s contacts with Colorado). Accord
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`Carnrick v. Riekes Container Corp., No. 15-cv-01899-CMA-KMT, 2016 WL 740998, at *6
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`n.1 (D. Colo. Feb. 24, 2016); Powers v. Emcon Associates, Inc., No. 14-cv-03006-KMT,
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`2016 WL 1111708, at *5 (D. Colo. Mar. 22, 2016).
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`Therefore, because the Court has found that Plaintiff has sufficiently alleged that
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`Defendant purposefully availed himself of Colorado’s laws by entering into a contract with
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`Plaintiff and working with Plaintiff for ten years, and that Plaintiff’s injuries arose from this
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`business relationship, Plaintiff has pled a prima facie case for personal jurisdiction.
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`As Defendant purposefully availed himself of Colorado’s laws, and Plaintiff’s alleged
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`injuries arise out of Defendant’s contacts with Colorado, the Court can exercise jurisdiction
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`over Defendant in this case unless exercising jurisdiction would offend traditional notions
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`of fair play and substantial justice. Dudnikov, 514 F.3d at 1070. With minimum contacts
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`established, it is incumbent on Defendant to “present a compelling case that the presence
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`of some other considerations would render jurisdiction unreasonable.” Id. at 1080.
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`Defendant makes no argument here10 that the Court’s exercise of jurisdiction would be
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`“unreasonable” or offensive to the notions of fair play and substantial justice. Accordingly,
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`the Court finds that it has personal jurisdiction over Defendant with respect to the contract
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`claims.
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`10 Defendant makes a related but separate argument that the matter should be transferred
`to the Northern District of Texas pursuant to 28 U.S.C. § 1404 based on the principles of justice and
`convenience. Brief in Support [#19] at 14. Defendant’s argument is addressed below.
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`-15-
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`

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`Case 1:15-cv-00871-KLM Document 41 Filed 03/28/16 USDC Colorado Page 16 of 44
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`b.
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`Tort claims.
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`Plaintiff asserts that Defendant committed a variety of torts. See generally Am.
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`Compl. [#14]. Under the Colorado long arm statute, a person is subject to the jurisdiction
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`of the courts of Colorado, “concerning any cause of action arising from the commission of
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`a tortious act within [the] state.” Sports Sci., 514 F.3d at 1060. To satisfy the long arm
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`statute, there must be a showing that the tortious action occurred within the state and that
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`the exercise of jurisdiction over the defendant comports with due process. Id. The Court
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`must first determine whether the Amended Complaint alleges the commission of a tortious
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`act within the state. Id. Tortious act “implies the total act embodying both cause and effect.”
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`Id. (citing Classic Auto Sales, Inc. v. Schocket, 832 P.2d 233, 235 (Colo. 1992)). Next, the
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`Court must “undertake a particularized inquiry as to the extent to which the defendant has
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`purposefully availed [him]self of the benefits of the forum’s laws.” Archangel Diamond Corp.
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`v. Lukoil, 123 P.3d 1187, 1199-1200 (Colo. 2005).
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`In Sports Sci., the district court dismissed the plaintiff’s tort claims because the
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`alleged tortious conduct took place in England. The district court held that because the
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`tortious conduct did not take place in Colorado, the court did not have jurisdiction over the
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`tort claims. 514 F.3d at 1060. The Tenth Circuit reversed, holding that