Fairbrother v. American Monument Foundation, LLC

• Decision Date: 27 August 2004
• Docket Number: No. CIV.A.03-BB-1238 PAC.,CIV.A.03-BB-1238 PAC.
• Citation: 340 F.Supp.2d 1147
• Parties: Jeffory P. FAIRBROTHER, Plaintiff, v. AMERICAN MONUMENT FOUNDATION, LLC, a Nevada corporation, Amtech Corporation, a Nevada corporation, and Thomas J. Neavitt, individually, Defendants.
• Court: U.S. District Court — District of Colorado

340 F.Supp.2d 1147

Jeffory P. FAIRBROTHER, Plaintiff, v. AMERICAN MONUMENT FOUNDATION, LLC, a Nevada corporation, Amtech Corporation, a Nevada corporation, and Thomas J. Neavitt, individually, Defendants.

No. CIV.A.03-BB-1238 PAC.

United States District Court, D. Colorado.

August 27, 2004.

COPYRIGHT MATERIAL OMITTED

Anne Lee McGihon, McGihon & Associates, LLC, Denver, CO, for Plaintiff.

Lee M. Kutner, Kutner, Miller, Kearns, PC, Denver, CO, for Defendants.

ORDER

BOLAND, United States Magistrate Judge.

In this lawsuit, the plaintiff seeks among other things to collect $2.5 million allegedly owed to him on a promissory note and to foreclose liens and security interests in certain collateral securing payment of the promissory note. The case involves convoluted claims concerning two large monuments — the Monument to the Bicentennial of the United States Constitution (the "Constitution Monument"), and the United States Presidency Monument (the "Presidential Monument").

The defendants have moved to dismiss the case for lack of personal jurisdiction. Consequently, the question presently is whether there are sufficient minimum contacts by any or all of the defendants to support the exercise of jurisdiction. I conclude that there are not. Accordingly, the defendants' Motion to Dismiss for Lack of Personal Jurisdiction (the "Motion") is GRANTED, and the Amended Complaint and this action are DISMISSED.

I. BACKGROUND

The plaintiff is a resident of the State of Colorado. Plaintiff's Verified Amended Response to Motion to Dismiss for Lack of Personal Jurisdiction and Brief in Opposition Thereto (the "Amended Response"), Exhibit A, ¶ 1.

Defendant AmTech Corporation ("AmTech") is a Nevada corporation. Motion, Exhibit A, ¶ 2. Defendant American Monument Foundation, LLC ("AMF"), is a Nevada limited liability company. Id. Defendant Neavitt is an individual and a resident of the State of Nevada. Id. at ¶ 3.

The plaintiff met Neavitt on March 28, 2001, in Las Vegas, Nevada. Amended Response, Exhibit A, ¶ 2; Motion, Exhibit A, ¶ 5. Neavitt is the President of AmTech. Motion, Exhibit A, ¶ 1. AmTech developed a suspension stabilizer system called "RollGard" that is designed to dramatically decrease the risk of rollovers in sport utility vehicles, trucks, and vans. Amended Response, Exhibit B. Subsequently, the plaintiff worked for AmTech as a consultant in 2001-02. Id. at Exhibit A, ¶ 3.

AMF was formed on February 1, 2002, for the purpose of purchasing the Constitution Monument and the Presidential Monument. Id. at ¶ 8. Neavitt was the manager and a member of AMF. Id.

On January 22, 2002, the plaintiff purchased the Presidential Monument from Brian Hermalin and Linden Nelson for $20,000 at the signing of the purchase agreement and $280,000.00 due at the closing. Id. at ¶ 12. On February 5, 2002, the plaintiff sold the Presidential Monument to AMF for $10.00 and AMF's agreement to pay the $280,000.00 owed to Hermalin and Nelson. Id. Also on February 5, 2002, the plaintiff sold the Constitution Monument to AMF for $2.5 million, with payment due in full on or before June 30, 2003. Amended Complaint, ¶ 33. Both monuments were pledged by AMF as collateral securing the payment of the $2.5 million owed to the plaintiff. Id. at ¶¶ 33, 36.

All of the documents relating to the plaintiff's sale of the monuments to AMF were prepared by AMF. Amended Response, Exhibit A, ¶ 9.

The plaintiff alleges that he "believed" that he was a 25% owner of AMF. Id. at ¶ 11 (where the plaintiff states that "it was my belief that I was ... a one-quarter member of AMF"). The plaintiff claims this one-quarter interest in AMF as a result of his "agreement to benefit Neavitt personally by arranging and delivering to Neavitt personally, and not AMF, a replica of the Presidential Monument" (the "Replica"). Amended Response, Exhibit A, ¶ 11. This Replica was in the possession of Howard Tullman. Id. at ¶ 13. To ensure that the Replica was delivered to Neavitt, the plaintiff withheld $15,000.00 of the purchase price of the Presidential Monument pending receipt of the Replica by Neavitt. Id. The Replica was delivered to Neavitt on May 10, 2002, and the $15,000.00 hold back was released. Id.

The plaintiff seeks an award of amounts due under the promissory note; an accounting of AMF partnership profits; a judgment against Neavitt for conversion of the Replica; and a declaration that the plaintiff is the owner of the monuments. Amended Complaint, ¶¶ 55-73.

II. PROCEDURAL BACKGROUND

The plaintiff's initial response to the Motion was stricken because I was not able to determine which arguments in the response were directed against which defendants, or whether the plaintiff was attempting to establish general jurisdiction, specific jurisdiction, or both. Order dated April 6, 2004 (filed April 8, 2004). Moreover, although the plaintiff attached numerous exhibits to the initial response, and although the response relied in part on the allegations of the Amended Complaint, it was not clear which exhibits or allegations supported which arguments. Id. Consequently, the plaintiff was ordered to submit an amended response which (1) addressed each defendant separately; (2) clearly asserted whether the defendant is alleged to be subject to general jurisdiction, specific jurisdiction, or both; (3) supported the assertions of jurisdiction with specific factual allegations; and (4) supported each factual allegation with a citation to supporting evidence. Id.

The plaintiff's Amended Response contains twenty-three numbered paragraphs which purport to establish sufficient minimum contacts for each defendant. Amended Response, pp. 10-23. Paragraphs 1 through 7 comply in part with my Order of April 6, 2004, because they address the defendants separately and clearly assert whether the defendant is claimed to be subject to general jurisdiction or specific jurisdiction. Amended Response, pp. 10-11, ¶¶ 1-7. The remaining sixteen paragraphs, however, do not in any way comply with the directives of my Order, leaving me to speculate as to which defendant and which type of jurisdiction they address.¹

III. STANDARD OF REVIEW

Where, as here, a defendant seeks dismissal under Rule 12(b)(2) for lack of personal jurisdiction, the plaintiff bears the burden of establishing personal jurisdiction over the defendant. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995). This burden, however, is light. Id. When "there has been no evidentiary hearing, and the motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written material, the plaintiff need only make a prima facie showing that jurisdiction exists." Id. Additionally:

The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits. If the parties present conflicting affidavits, all factual disputes must be resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party. However, only the well pled facts of plaintiff's complaint, as distinguished from mere conclusory allegations, must be accepted as true.

Id. (internal quotations and citation omitted).

"The plaintiff has the duty to support jurisdictional allegations in a complaint by competent proof of the supporting facts if the jurisdictional allegations are challenged by an appropriate pleading." Pytlik v. Professional Resources, Ltd., 887 F.2d 1371, 1376 (10th Cir.1989). "[A]ffidavits submitted in support of or in opposition to the motion to dismiss for lack of [personal] jurisdiction must comply with the requirements of Rule 56(e). Therefore, such affidavits must contain personal knowledge, admissible facts, and affirmative showing of competency." Encore Productions, Inc. v. Promise Keepers, 53 F.Supp.2d 1101, 1115 (D.Colo.1999) (internal quotations and citations omitted).

In this case, my order requiring the plaintiff to submit more focused briefing notwithstanding, I have been confronted by a problem "increasingly encountered by the federal courts: the submission of voluminous and poorly organized materials" filed in connection with a dispositive motion. See Cuenca v. University of Kansas, 101 Fed.Appx. 782, 2004 WL 1328676 (10th Cir.2004) (not selected for publication). Where a party fails to present to me specific facts by reference to exhibits, I am not required to go beyond the referenced portions of the voluminous materials submitted, comb the record, and make a party's case for it. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir.1998). As the circuit court put it, a party opposing a dispositive motion

must carry its burden in the district court in a timely fashion.... Otherwise, the nonmovant acts, or fails to act, at its peril. The burden is not an onerous one for the nonmoving party in each case, but does not at any point shift from the nonmovant to the district court.

Id. Or, put more colorfully, "[j]udges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991).

IV. ANALYSIS

In order for a court to obtain jurisdiction over a non-resident defendant in a diversity action, the plaintiff must "establish that (1) jurisdiction is proper under the laws of the forum state and (2) the exercise of jurisdiction does not offend due process." Doering v. Copper Mountain, Inc., 259 F.3d 1202, 1209 (10th Cir.2001). Under Colorado law, personal jurisdiction exists only if the requirements of both the state long-arm statute, section 13-1-124, C.R.S., and due process of law are satisfied. Doe v. National Medical Servs., 748 F.Supp. 793, 795 (D.Colo.1990); D & D Fuller CATV Constr., Inc. v. Pace, 780 P.2d 520, 523 (Colo.1989). The Colorado long-arm statute confers jurisdiction to the fullest extent consistent with due process of law. Waterval v. District Court, 620 P.2d 5, 8 (Colo.1980), cert. denied, 452 U.S. 960, 101...