GCI 1985-1 LTD. v. Murray Properties Partnership, Civ. A. No. 90-B-2039.

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtDale A. Gaar, Gulley & Gaar, P.C., Englewood, Colo., for Murray
Citation770 F. Supp. 585
Docket NumberCiv. A. No. 90-B-2039.
Decision Date14 August 1991
PartiesGCI 1985-1 LTD., a Colorado limited partnership, Plaintiff, v. The MURRAY PROPERTIES PARTNERSHIP OF DALLAS, and Merry Land & Investment Company, Inc., Defendants.

770 F. Supp. 585

GCI 1985-1 LTD., a Colorado limited partnership, Plaintiff,
v.
The MURRAY PROPERTIES PARTNERSHIP OF DALLAS, and Merry Land & Investment Company, Inc., Defendants.

Civ. A. No. 90-B-2039.

United States District Court, D. Colorado.

August 14, 1991.


770 F. Supp. 586

R. Nicholas Palmer, Palmer & Paoli, P.C., Denver, Colo., for GCI 1985-1 Ltd.

Dale A. Gaar, Gulley & Gaar, P.C., Englewood, Colo., for Murray.

David S. Steefel, Lawrence Michael Zavadil, Holme Roberts & Owen, Denver, Colo., for Merry Land.

770 F. Supp. 587

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

On August 13, 1991, hearing was held on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2) filed by defendant Merry Land & Investment Company, Inc. (Merry Land). Defendant Murray Properties Partnership of Dallas (Murray Properties) has reportedly settled with plaintiff. Merry Land contends that I have no personal jurisdiction over it. In the alternative, Merry Land asks that I transfer the action to the United States District Court for the District of North Carolina. Because the Colorado long-arm statute does not reach Merry Land and exercise of personal jurisdiction over Merry Land would violate due process, I grant the motion to dismiss.

According to the complaint, this dispute arises from an agreement (agreement) to provide cable television service to Chatham Woods apartment complex in High Point, North Carolina. The agreement was originally negotiated and executed in February, 1986, by Murray Properties, the owner of Chatham Woods at the time, and Gila Communications. In October, 1986, Gila Communications assigned the agreement to plaintiff GCI 1985-1 Ltd. (GCI). NCNB Texas Bank (NCNB) foreclosed on a mortgage on Chatham Woods and became the owner of Chatham Woods in February, 1989. In January 1990, NCNB sold the apartment complex to Merry Land. Merry Land subsequently wrote to GCI terminating the agreement.

GCI filed a verified complaint in the District Court, City and County of Denver, Colorado. The action was removed to this court. In the complaint, GCI alleges that Merry Land: (1) breached the agreement; (2) interfered with contracts between GCI and tenants of Chatham Woods, and; (3) intentionally interfered with a prospective business arrangement between GCI and another provider of cable television service.

To defeat the 12(b)(2) motion, GCI need only make a prima facie case of personal jurisdiction. Kennedy v. Freeman, 919 F.2d 126, 128 (10th Cir.1990).

The plaintiff bears the burden of establishing personal jurisdiction over the defendant. Prior to trial, however, when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facia showing. 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 are resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.

Behagen v. Amateur Basketball Ass'n., 744 F.2d 731, 733 (10th Cir.1984) (citations omitted), cert. denied, 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171 (1985); see Leidy's, Inc. v. H2O Eng'g, Inc., 811 P.2d 38, 40 (Colo.1991).

GCI must satisfy a two-prong test to make its prima facie showing that I have personal jurisdiction over Merry Land. See Schocket v. Classic Auto Sales, Inc., 817 P.2d 561 (Colo.App.1991). First, it must show that the Colorado long-arm statute, Colorado Revised Statute section 13-1-124, extends to reach Merry Land. This is a matter of Colorado state law. Taylor v. Phelan, 912 F.2d 429, 431 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 786, 112 L.Ed.2d 849 (1991). Should I conclude that Colorado state law requires dismissal for lack of personal jurisdiction, then I must dismiss, for I may not exercise personal jurisdiction where Colorado state courts would not. Second, GCI must show that the requirements of the fourteenth amendment due process clause of the federal constitution are satisfied. D & D Fuller CATV Constr., Inc. v. Pace, 780 P.2d 520, 523 (Colo.1989); see Taylor, 912 F.2d at 431-32.

There are two ways to establish personal jurisdiction.

Jurisdiction may be either general or specific. General jurisdiction arises from
770 F. Supp. 588
a defendant's continuous and systematic activity in the forum state. See Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1418 (10th Cir.1988); Behagen, 744 F.2d at 733. Specific jurisdiction arises in the absence of such activity and is predicated on a defendant's minimum contacts with the forum which give rise to the cause of action.

Kennedy, 919 F.2d at 128 n. 2. See Waterval v. District Court, 620 P.2d 5, 9 (Colo. 1980), cert. denied, 452 U.S. 960, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981). GCI contends that personal jurisdiction over Merry Land is found under either theory.

I. REACH OF THE COLORADO LONG-ARM STATUTE

The first inquiry is whether the Colorado long-arm statute reaches Merry Land. The jurisdiction of Colorado courts extends to any person who engages in the transaction of any business within Colorado where the cause of action arises from the transaction of the business. Colo.Rev. Stat. § 13-1-124(1)(a). The jurisdiction also extends to any person who commits a tortious act in Colorado where the cause of action arises from the tortious conduct. Colo.Rev.Stat. § 13-1-124(1)(b). GCI relies on both these subsections of the long-arm statute.

A. Transaction of Business

I employ a three-prong test to determine whether Merry Land transacted any business within Colorado:

First, the defendant must purposefully avail himself of the privilege of acting in the forum state or of causing important consequences in that state. Second, the cause of action must arise from the consequences in the forum state of the defendant's activities. Finally, the activities of the defendant or the consequences of those activities must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.

Van Schaack & Co. v. District Court, 538 P.2d 425, 426 (1975); see Panos Inv. Co. v. District Court, 662 P.2d 180, 181 (Colo. 1983); Waterval, 620 P.2d at 9; Marquest Medical Prod., Inc. v. Daniel McKee & Co., 791 P.2d 14, 16...

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9 practice notes
  • FDIC v. First Interstate Bank of Denver , NA, Civil Action No. 93-B-85.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • July 10, 1996
    ...affidavits, all factual disputes are resolved in plaintiff's favor. Id.; GCI 1985-1 LTD. v. Murray Properties Partnership of Dallas, 770 F.Supp. 585, 587 1. Alter-ego/piercing corporate veil FDIC seeks to hold RGL, RI, RSI, and RCC liable for each other's acts alleging that these entities a......
  • Gognat v. Ellsworth, No. 08CA1158.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 17, 2009
    ...under the long-arm statute), aff'd, 16 Fed.Appx. 959, 2001 WL 912796 (10th Cir.2001); GCI 1985-1 Ltd. v. Murray Prop. P'ship, 770 F.Supp. 585, 590 (D.Colo. 1991) (dismissing claims against a nonresident defendant for lack of personal jurisdiction where the alleged loss of anticipated profit......
  • Plus System, Inc. v. New England Network, Inc., Civ. A. No. 92-F-1217.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • September 23, 1992
    ...Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); GCI 1985-1 LTD. v. Murray Properties Partnership of Dallas, 770 F.Supp. 585, 589-90 (D.Colo. 1991). Unlike a forum selection clause, a choice of law clause designates only the body of law to be applied in resolving the......
  • Wenz v. Memery Crystal, No. 94-1259
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 31, 1995
    ...economic consequences in Colorado is insufficient to confer personal jurisdiction); GCI 1985-1 LTD. v. Murray Properties Partnership, 770 F.Supp. 585, 589-90 (D.Colo.1991) (where plaintiff alleged economic injury resulting from defendant's tortious conduct in North Carolina, court responded......
  • Request a trial to view additional results
9 cases
  • FDIC v. First Interstate Bank of Denver , NA, Civil Action No. 93-B-85.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • July 10, 1996
    ...affidavits, all factual disputes are resolved in plaintiff's favor. Id.; GCI 1985-1 LTD. v. Murray Properties Partnership of Dallas, 770 F.Supp. 585, 587 1. Alter-ego/piercing corporate veil FDIC seeks to hold RGL, RI, RSI, and RCC liable for each other's acts alleging that these entities a......
  • Gognat v. Ellsworth, No. 08CA1158.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 17, 2009
    ...under the long-arm statute), aff'd, 16 Fed.Appx. 959, 2001 WL 912796 (10th Cir.2001); GCI 1985-1 Ltd. v. Murray Prop. P'ship, 770 F.Supp. 585, 590 (D.Colo. 1991) (dismissing claims against a nonresident defendant for lack of personal jurisdiction where the alleged loss of anticipated profit......
  • Plus System, Inc. v. New England Network, Inc., Civ. A. No. 92-F-1217.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • September 23, 1992
    ...Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); GCI 1985-1 LTD. v. Murray Properties Partnership of Dallas, 770 F.Supp. 585, 589-90 (D.Colo. 1991). Unlike a forum selection clause, a choice of law clause designates only the body of law to be applied in resolving the......
  • Wenz v. Memery Crystal, No. 94-1259
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 31, 1995
    ...economic consequences in Colorado is insufficient to confer personal jurisdiction); GCI 1985-1 LTD. v. Murray Properties Partnership, 770 F.Supp. 585, 589-90 (D.Colo.1991) (where plaintiff alleged economic injury resulting from defendant's tortious conduct in North Carolina, court responded......
  • Request a trial to view additional results

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