August 14, 2018

Colorado Supreme Court: Non-resident’s Harassment and Threatening of Colorado Victim Sufficient to Establish Long-arm Jurisdiction for Civil Protection Order

The Colorado Supreme Court issued its opinion in Parocha v. Parocha on Monday, May 21, 2018.

Personal Jurisdiction.

The supreme court considered whether and when a civil protection order is available to a victim of alleged domestic abuse who comes to Colorado seeking refuge from a non-resident. The court concluded that an out-of-state party’s harassment of, threatening of, or attempt to coerce an individual known by the non-resident to be located in Colorado is a tortious act sufficient to establish personal jurisdiction under the state’s long-arm statute, C.R.S. § 13-1-124. The court also concluded that such conduct creates a sufficient nexus between the out-of-state party and Colorado to satisfy the requisite minimum contacts such that the exercise of jurisdiction by a Colorado court to enter a protection order comports with traditional notions of fair play and substantial justice.

The court reversed the district court’s order vacating the permanent civil protection order and remanded the case for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court had Personal Jurisdiction over Out of State Client in Legal Fee Dispute

The Colorado Court of Appeals issued its opinion in Dorsey & Whitney LLP v. RegScan, Inc. on Thursday, February 22, 2018.

Attorney Fees—Personal Jurisdiction—Long Arm Statute—Due Process—Expert Witness—Fed. R. Evid. 703—Jury Instructions—CRE 408—Settlement Negotiations—Evidence.

RegScan, Inc., a Pennsylvania-based Internet company, reached out to and retained a specific Colorado attorney in Dorsey & Whitney LLP (the law firm) to represent it in a matter ultimately filed in Virginia. After a disagreement about the amount of fees owed, the law firm sued RegScan in Denver District Court. Judgment was ultimately entered for $373,707.43 against RegScan.

On appeal, RegScan argued that the district court lacked personal jurisdiction. It contended that its actions connecting it to Colorado did not demonstrate purposeful availment because it merely contacted a Minnesota-based firm that happened to staff the case with Colorado attorneys. A plaintiff desiring to invoke a Colorado court’s jurisdiction over a nonresident defendant must show that doing so comports with the long-arm statute and due process. Here, RegScan specifically retained an attorney in Colorado based on an existing relationship. The totality of the circumstances surrounding this retention demonstrates that RegScan’s purposeful activities directed at Colorado satisfy the minimum contacts requirement. Further, requiring RegScan to defend this case in Colorado was not unreasonable. Therefore, the district court did not err in denying RegScan’s motion to dismiss for lack of personal jurisdiction.

RegScan next contended that the court erred by allowing the law firm’s expert witness on the reasonableness of its fees to testify to the substance of information in pro forma bills (records reflecting the total number of hours worked) that the law firm didn’t offer into evidence. Fed. R. Evid. 703 allows an expert to base his opinion on facts or data that wouldn’t be admissible if such facts and data are of a type on which experts in the field would reasonably rely. But the expert may not disclose those inadmissible facts to the jury unless the court so allows after engaging in the balancing analysis required by the rule. RegScan’s argument confuses information that can’t be admitted under the evidence rules with information that simply has not been admitted. Here, RegScan failed to timely argue that the pro formas weren’t admissible. Further, the substance of the testimony was already in evidence, and RegScan did not argue that the witness’s ultimate opinion was inadmissible or wrong. Therefore, there was no violation of Fed. R. Evid. 703.

RegScan also contended that the district court erred by failing to include a fairness element in the elemental breach of contract jury instruction. Even if the court erred in omitting the element that the fee agreement was “fair and reasonable under the circumstances,” all relevant evidence in the record overwhelmingly shows that the fee agreement was fair and reasonable under the circumstances. Thus, any error was harmless.

Finally, RegScan argued that the district court erred by relying on CRE 408 to exclude email communications in which RegScan disputed the reasonableness of the law firm’s fees and didn’t admit liability. This evidence was properly excluded under CRE 408 because at the time the communications occurred the parties disputed the amount owed and were exchanging offers to resolve the dispute.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Newly Announced Griffith Test Applied to Determine Personal Jurisdiction

The Colorado Supreme Court issued its opinion in Meeks v. SSC Colorado Springs Colonial Columns Operating Co. on Monday, September 26, 2017.

Constitutional Law—Personal Jurisdiction—Corporations and Business Organizations—Related or Affiliated Entities.

The Supreme Court holds that the trial court must apply the test announced in Griffith v. SSC Pueblo Belmont Operating Co., 2016 CO 60, __ P.3d __, to determine whether nonresident parent companies may be haled into court in Colorado based on the actions of their resident subsidiaries. It also held that, although an evidentiary hearing is not always required for a ruling on a CRCP 12(b)(2) motion, this case requires a hearing to fully address this case’s complex record and to apply the fact-intensive Griffith test.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Corporate Defendant Not “Essentially At Home” in Colorado, Therefore Jurisdiction Did Not Attach

The Colorado Supreme Court issued its opinion in Magill v. Ford Motor Co. on Monday, September 12, 2016.

Constitutional Law—Personal Jurisdiction—General Jurisdiction—Corporations and Business Organizations—Related or Affiliated Entities.

The Supreme Court issued a rule to show cause to review the trial court’s  conclusion that defendant Ford Motor Company (Ford) is subject to general personal  jurisdiction in Colorado and that venue was proper in Denver County. The Court  concluded that, under Daimler A.G. v. Bauman, 134 S. Ct. 746 (2014), the record does not support a finding that Ford is “essentially at home” in Colorado. Therefore, Ford is not subject to general personal jurisdiction in Colorado. Because the trial court did not  determine whether Ford was subject to specific jurisdiction, the Court did not reach that issue. The Court also held that maintaining a registered agent in the state does not convert a foreign corporation to a resident. Because none of the parties reside in Denver and the accident did not occur there, venue was not appropriate in Denver County.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: No Personal Jurisdiction When Only Plaintiff Had Contacts in Forum State

The Tenth Circuit Court of Appeals issued its opinion in Rockwood Select Asset Fund XI (6)-1, LLC v. Devine, Millimet & Branch on Tuesday, May 6, 2014.

Rockwood, a Utah company, was asked to loan money and required the borrower to obtain an opinion letter from its New Hampshire law firm, Devine, Millimet & Branch. The letter was picked up by someone and forwarded to Rockwood in Utah. Rockwood determined that the letter contained falsehoods and sued Devine in Utah federal court, but the suit was dismissed for lack of personal jurisdiction. Rockwood appealed the dismissal to the Tenth Circuit.

The Tenth Circuit evaluated Rockwood’s claim of specific personal jurisdiction to determine whether Utah law would allow service on Devine and, if so, whether service would deprive Devine of due process. Because Utah law allows service on Devine under its long-arm statute, the Tenth Circuit focused its attention on whether service of process would have deprived Devine of due process. Rockwood did not meet its burden of a prima facie showing that Devine’s connections with Utah were sufficient to establish personal jurisdiction. The dismissal of the district court was affirmed.

Tenth Circuit: Corporation May Sue Canadian Officers and Directors in Oklahoma

The Tenth Circuit Court of Appeals published its opinion in Newsome v. Gallacher on Wednesday, July 17, 2013.

Plaintiff David Newsome is a litigation trustee appointed by the Bankruptcy Court for the Eastern District of Oklahoma to administer the legal claims of Mahalo Energy (USA), Inc. Newsome brought suit in the Northern District of Oklahoma alleging various breaches of fiduciary duty against the corporation’s former directors and officers, other closely affiliated persons, and a law firm that provided legal services to the corporation. All defendants are Canadian citizens or entities.

The defendants moved to dismiss for lack of personal jurisdiction and the district court granted that motion. Newsome appealed.

The Tenth Circuit concluded the district court erred in part. Specifically, the Court held the that individual defendants (every defendant but the law firm) cultivated sufficient contacts with Oklahoma to justify suit there: (1) the defendant purposefully directed its activities at residents of the forum state; (2) the plaintiff’s injury arose from those purposefully directed activities; and (3) defendants did not show that exercising jurisdiction in Oklahoma would offend traditional notions of fair play and substantial justice.

The Tenth Circuit further held that the fiduciary shield doctrine—under which personal jurisdiction may not attach to a corporate agent by virtue of actions the agent takes solely on the corporation’s behalf—did not apply. The Tenth Circuit therefore reversed as to the individual defendants and remanded for further proceedings.

As for the law firm, however, the Tenth Circuit affirmed. Given the law firm’s out-of-state character and that it performed all of its relevant services out of state on an out-of-state transaction, it did not cultivate sufficient contacts with Oklahoma to justify personal jurisdiction there. The Tenth Circuit held that the district court correctly dismissed the law firm.

Tenth Circuit: In Mine Collapse Case, One Defendant Properly Dismissed for Lack of Jurisdiction; Dismissal of Remaining Defendants Under Forum Non Conveniens Doctrine Was Premature

The Tenth Circuit published its opinion in Fireman’s Fund Insurance Company v. Thyssen Mining Construction of Canada on Wednesday, December 19, 2012.

Fireman’s Fund Insurance Company and Zurich Insurance Company Ltd. (collectively “Plaintiffs”), as subrogees of Boart Longyear, Inc., sued Thyssen Mining Construction of Canada Ltd. (“Thyssen”) and Mudjatik Thyssen Mining Joint Venture (“MTM”) (collectively “Defendants”) in New Mexico for negligence relating to the collapse of a mine that MTM was excavating in Canada. The district court dismissed MTM for lack of personal jurisdiction and dismissed the entire case under the forum non conveniens doctrine. Plaintiffs appealed.

On appeal, Plaintiffs contest (1) the dismissal of MTM for lack of personal jurisdiction and (2) the grant of Defendants’ motion to dismiss under the forum non conveniens doctrine.

Personal jurisdiction over a nonresident defendant satisfies due process if there are sufficient minimum contacts between the defendant and the forum State, and jurisdiction over the defendant cannot offend traditional notions of fair play and substantial justice. Because Plaintiffs did not allege any facts to establish that MTM had the requisite minimum contacts with New Mexico to confer personal jurisdiction, nor did they allege facts showing that the New Mexico district court had personal jurisdiction over MTM under the agency theory, the Tenth Circuit affirmed dismissal of Defendant MTM for lack of personal jurisdiction.

Courts apply a two-step test to determine whether a case may be dismissed under the forum non conveniens doctrine when the only alternative forum is in a foreign country. First, there must be an adequate alternative forum in which the defendant is amenable to process. Second, the court must confirm that foreign law is applicable.

The Tenth Circuit held that the district court was premature in determining that the Canadian court was an adequate alternative forum. The forum non conveniens decision focused on the applicability of Canadian law and the inconvenience of New Mexico as a forum. The district court’s dismissal of Plaintiffs’ claims was premature because the Canadian court had not yet ruled on Defendants’ statute of limitations defense. Until this ruling occurs, the availability of the Canadian court as an adequate alternative forum was unclear and dismissal of the case in New Mexico risked depriving the Plaintiffs of any forum.

Dismissal of MTM AFFIRMED. Dismissal of Plaintiffs’ case under the forum non conveniens doctrine REVERSED and REMANDED.

Tenth Circuit: Dismissal For Lack Of Personal Jurisdiction in Product Liability Case Affirmed

The Tenth Circuit issued its opinion in Monge v. RG Petro Machinery on Friday, December 7, 2012.

Employees of Richard Energy, an Oklahoma company, traveled to China and purchased rigs that are used to repair oil wells from RG Petro, a Chinese manufacturer. Richard Energy took possession of the rigs in China and exported them to the United States. The rigs were consigned to Eagle Well Service, Inc. (EWS), a Kansas corporation, and delivered in Kansas. EWS later moved one of the rigs to Oklahoma, where Joel Monge, an EWS employee covered by workers’ compensation, was seriously injured during an accident involving the rig.

Monge filed a diversity action against EWS under Oklahoma’s intentional tort exception to the exclusive remedy of Oklahoma’s Workers’ Compensation Act and against Richard Energy and RG Petro under Oklahoma’s manufacturers’ products liability laws. RG Petro filed a motion to dismiss based on lack of personal jurisdiction, and EWS filed a motion for summary judgment contending the intentional tort exception does not apply. The district court granted both motions.

To come under the intentional tort exception to Oklahoma’s Workers’ Compensation Act, Monge would have to prove that EWS “acted with the knowledge that [Monge’s] injury was substantially certain to result from [its] conduct.” Showing a high probability of injury was not enough. EWS’s failure to follow the industry safety standard was also not enough to give rise to an intentional tort. The Tenth Circuit affirmed summary judgment for EWS.

Monge had filed a motion under FRCP 59(e) to alter or amend the court’s summary judgment order, which the district court denied except for a request to fix a date in the order. The motion was based on the deposition testimony of an EWS employee that Monge argued constituted newly discovered evidence. The Tenth Circuit agreed with the district court that the evidence was not newly discovered. Monge’s counsel knew about the employee several months before EWS filed its motion for summary judgment and deposed him before the court granted summary judgment. Minge could have asked the court to defer consideration of the summary judgment motion or supplemented his response to the motion after taking the deposition.

The Tenth Circuit found that the district court lacked personal jurisdiction over the Chinese company RG Petro. Specific jurisdiction did not exist because Monge’s injuries did not arise out of or relate to activities that RG Petro purposefully directed at residents of Oklahoma. Although an Oklahoma company bought the rig, RG Petro knew it was consigned to EWS, a Kansas company, and shipped to Kansas. The rig’s presence in Oklahoma was due to the unilateral act of EWS in moving it there, not to RG Petro’s acts. General personal jurisdiction also did not exist because a limited number of emails and limited number of sales to Oklahoma residents did not constitute “continuous and systematic general business contacts” with Oklahoma.