Day v. Snowmass Stables, Inc., Civ. A. No. 92-B-609.

• Decision Date: 14 January 1993
• Docket Number: Civ. A. No. 92-B-609.
• Citation: 810 F. Supp. 289
• Parties: Aline B. DAY, Plaintiff, v. SNOWMASS STABLES, INC., a Colorado Corporation, Big Sky Leatherworks, a Montana Company, and the Evener Shop, an Ohio Company, Defendants.
• Court: U.S. District Court — District of Colorado

810 F. Supp. 289

Aline B. DAY, Plaintiff, v. SNOWMASS STABLES, INC., a Colorado Corporation, Big Sky Leatherworks, a Montana Company, and the Evener Shop, an Ohio Company, Defendants.

Civ. A. No. 92-B-609.

United States District Court, D. Colorado.

January 14, 1993.

COPYRIGHT MATERIAL OMITTED

Bruce E. Rohde, Davis & Ceriani, P.C., Denver, CO, for plaintiff.

Geoffrey S. Race and Suanne M. Dell, Weller, Friedrich, Ward & Andrew, Denver, CO, for Snowmass Stables, Inc.

Douglas I. McQuiston, Law Offices of Taylor, McQuiston & McCune, Aurora, CO, for Big Sky.

Michael D. Plachy, Rothgerber, Appel, Powers & Johnson, Denver, CO, and John R. Waltman and Steven J. Shrock, Schuler Law Firm, Critchfield, Critchfield & Johnston, Millersburg, OH, for Evener Shop.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Defendant The Evener Shop (Evener) moves to dismiss for lack of personal jurisdiction and defendant Snowmass Stables Inc., (Snowmass Stables) moves for summary judgment. The issues are adequately briefed and oral argument will not materially aid in their resolution. Evener's motion will be GRANTED and Snowmass Stables' motion will be DENIED for the reasons set out below.

I.

Plaintiff Day was injured during a wagon ride conducted by Snowmass Stables. Before the ride Day signed a form titled, "Release, Acknowledgment of the Risks, Acceptance of Responsibility." Day was a passenger in the first of two horse-drawn wagons which were proceeding down a dirt road. While both wagons were moving, the neck yoke ring on the rear wagon broke. When the ring broke it allowed the rear wagon to move forward freely, bumping its team of horses which then bolted. The rear wagon collided with the first wagon as it passed the first wagon. Day was thrown from the first wagon and injured.

Day filed a complaint against three defendants: Snowmass Stables, the concessioner; Big Sky Leatherworks (Big Sky), supplier of the neck yoke ring to Snowmass Stables; and Evener, manufacturer of the neck yoke ring.

II.

Evener filed a motion to dismiss for lack of personal jurisdiction arguing that the exercise of jurisdiction would violate Colorado's long-arm statute and the due process clause of the Fourteenth Amendment to the United States Constitution because Evener does not have "minimum contacts" with Colorado and Evener did not "purposely avail" itself of Colorado laws. I agree.

A plaintiff bears the burden of establishing personal jurisdiction over a defendant. Behagen v. Amateur Basketball Ass'n of the United States, 744 F.2d 731, 733 (10th Cir.1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171 (1985). Prior to trial, a plaintiff need only make a prima facie showing of jurisdiction. All disputes of fact are to be construed in a light most favorable to the plaintiff. Id.

The exercise of personal jurisdiction over a non-resident defendant must satisfy the requirements of the forum state's long-arm statute as well as constitutional due process requirements. Doe v. National Medical Services, 974 F.2d 143, 145 (10th Cir.1992). Colorado's long arm statute is coextensive with constitutional limitations imposed by the due process clause. Mr. Steak, Inc. v. District Court, 194 Colo. 519, 574 P.2d 95, 96 (1978). Therefore, if jurisdiction is consistent with the due process clause, Colorado's long arm statute authorizes jurisdiction over a nonresident defendant. Under the due process clause of the Fourteenth Amendment, personal jurisdiction may not be asserted over a party unless that party has sufficient "minimum contacts" with the state, so that the imposition of jurisdiction would not violate "traditional notions of fair play and substantial justice." Helicopteros Nacionales De Columbia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)).

A. Specific Jurisdiction

Specific jurisdiction may be asserted if a defendant has "purposefully directed" its activities toward the forum state, and if the lawsuit is based upon injuries that "arise out of" or "relate to" the defendant's contacts with the state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985) (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984) and Helicopteros, 466 U.S. at 414, 104 S.Ct. at 1872). The contacts must be established by the defendant itself. "The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958).

In this case, Evener, an Ohio resident, has only two Colorado customers, but the neck yoke ring was sold to Big Sky, a Montana resident. Furthermore, Day's lawsuit is not based on any action of these customers, or on any product sold to them. Evener's sole link with Colorado stems from the unilateral activity of Big Sky. Big Sky's contacts with Colorado cannot be used to impose personal jurisdiction on Evener. See Helicopteros, 466 U.S. at 417, 104 S.Ct. at 1873. Accordingly, because Day's alleged injury does not arise out of or relate to Evener's contacts with Colorado, and because in selling the neck yoke ring to Big Sky, Evener did not purposely direct its activities toward Colorado, the exercise of specific jurisdiction over Evener is improper.

B. General Jurisdiction

Under general jurisdiction, a non-resident defendant may be subject to a state's jurisdiction even where the alleged injury is unrelated to the defendant's contacts with the forum state. If a defendant's contacts with a state are strong enough, the state may assert jurisdiction over a defendant on any matter, whether or not it arises out of the defendant's contacts with the state. See Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 446, 72 S.Ct. 413, 418, 96 L.Ed. 485 (1952).

For general jurisdiction, a defendant's contacts with a state must be greater than those required for specific jurisdiction. Doe, 974 F.2d at 146. General jurisdiction is appropriate only when a defendant has "continuous and systematic" general business contacts with the forum state, Helicopteros, 466 U.S. at 415, 104 S.Ct. at 1872, so that the defendant could reasonably anticipate being haled into court in that forum. See Burger King, 471 U.S. at 474, 105 S.Ct. at 2183, (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980)).

Here, Evener's contacts with the State of Colorado are insufficient to support general jurisdiction. In reaching this conclusion I rely on two Tenth Circuit cases, Doe v. National Medical Services, 974 F.2d 143 (10th Cir.1992), and Fidelity and Casualty Co. Of N.Y. v. Philadelphia Resins, 766 F.2d 440 (10th Cir.1985).

In Doe, personal jurisdiction was held unavailable in Colorado over National Medical Services ("NMS"), a Pennsylvania corporation which performs drug tests on urine samples. Through a contract with a California company, NMS tested a sample from Doe, a Colorado resident. The positive test results caused Doe to lose his job and he sued NMS for negligence in Colorado. The Tenth Circuit held that specific jurisdiction was not available because NMS had not purposefully established the contacts with Colorado that gave rise to Doe's cause of action.

Similarly, general jurisdiction was also unavailable. Despite having four regular clients based in Colorado for whom NMS had performed nearly 3,500 tests at a cost of $810,000 over a five-year period, the Tenth Circuit held that NMS lacked "traditional and general business contacts" with Colorado. This conclusion was based on the fact that the samples were not solicited by NMS but, rather, were sent by the Colorado clients to be tested in Pennsylvania.

The jurisdiction analysis in Fidelity was determined under Utah law. However, the analysis is helpful because Utah, like Colorado, interprets its long-arm statute to the fullest extent permitted by the due process clause.

In Fidelity, an insurer brought a products liability action against the manufacturer of synthetic fiber cables, Philadelphia Resins Corporation ("PRC"), a Pennsylvania Corporation, for injuries sustained when the cable broke. As here, the product was brought into the forum state by a PRC customer from another state. The issue was reduced to the single question, whether PRC had sufficient "minimum contacts" with the state of Utah to establish general jurisdiction. Fidelity, 766 F.2d at 442. The Tenth Circuit refused to find that jurisdiction was proper over PRC despite the facts that (1) PRC had ten customers in Utah, amounting to less than one-tenth of one percent of PRC's gross sales, and (2) PRC advertised its products in trade publications, presumably with a national circulation. Id. at 447.

Evener lacks traditional general business contacts with Colorado. Evener's only contact with Colorado is annual sales averaging less than $700 to two Colorado-based entities, one of which orders, purchases, and receives all its goods in Ohio. (Affirmation of Noah Troyer, paragraphs 13-16). These sales represent less than one-half of one percent of Evener's business. Although Evener advertises in a national trade publication, there is no evidence that Evener advertises by any method specifically directed at the Colorado market, or that the advertising was seen and acted upon in Colorado. See id. at 443-47. In addition, Evener has no presence in Colorado. It owns no property and has no agents in this state. Accordingly, I hold that Evener's contacts with the State of Colorado are insufficient to support the exercise of personal jurisdiction over Evener in accordance with the due process clause. Evener's motion to dismiss will be GRANTED.

III.

Snowmass Stables moves for summary judgment dismissing all claims...