Klein Frank, P.C. v. Girards

• Decision Date: 18 March 2013
• Docket Number: Civil Action No. 12–cv–01843–PAB–KMT.
• Citation: 932 F.Supp.2d 1203
• Parties: KLEIN FRANK, P.C., Plaintiff, v. James E. GIRARDS and James E. Girards, P.C., d/b/a The Girards Law Firm, Defendants.
• Court: U.S. District Court — District of Colorado

932 F.Supp.2d 1203

KLEIN FRANK, P.C., Plaintiff,

v.James E. GIRARDS and James E. Girards, P.C., d/b/a The Girards Law Firm, Defendants.

Civil Action No. 12–cv–01843–PAB–KMT.

United States District Court,

D. Colorado.

March 18, 2013.

Beth Ann Morrison Klein, Carrie R. Frank, Klein Frank, P.C., Boulder, CO, W. Randolph Barnhart, W. Randolph Barnhart, P.C., Denver, CO, for Plaintiff.

Thomas J. Overton, Overton Law Firm, Denver, CO, for Defendants.

ORDER

PHILIP A. BRIMMER, District Judge.

This matter is before the Court on the Motion to Dismiss [Docket No. 11] filed by defendants James E. Girards and James E. Girards, P.C. Defendants move to dismiss the complaint [Docket No. 17] filed by plaintiff Klein Frank, P.C. (“Klein Frank”) on the grounds that the Court lacks personal jurisdiction over them.

I. BACKGROUND¹

This case arises out of a state personal injury lawsuit filed by David Dawson in the District Court for the County of Dallas, Texas. See Dawson v. Fluor Intercontinental, Inc., Case No. 09–cv–15340 (“ Fluor ”). In Fluor, defendants James E. Girards and James E. Girards, P.C. were local counsel for Mr. Dawson. Klein Frank also represented Mr. Dawson in that case. Mr. Dawson terminated defendants' representation of him in the Fluor case in September 2011. On December 7, 2011, Klein Frank filed this action in the District Court for the County of Boulder, Colorado seeking a declaratory judgment that defendants are not entitled to attorneys' fees for work performed in Fluor because defendants were terminated for cause. Docket No. 17 at 6, ¶¶ 12–13. While this case was pending in Boulder County, Colorado the Fluor case went to trial in Dallas and, on June 15, 2012, the jury awarded Mr. Dawson approximately $18.78 million in damages. See Docket No. 24–1.² On June 15, 2012, Klein Frank served defendants with the complaint in this case, Docket No. 1 at 1, ¶ 3, and on July 13, 2012, pursuant to 28 U.S.C. § 1332, defendants removed the case to this court. Id. at 2, ¶ 4. On July 23, 2012, defendants filed the present motion to dismiss [Docket No. 11] pursuant to Fed.R.Civ.P. 12(b)(2).

II. STANDARD OF REVIEW

The purpose of a motion to dismiss under Rule 12(b)(2) is to determine whether the Court has personal jurisdiction. The plaintiff bears the burden of establishing personal jurisdiction over defendants. Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1417 (10th Cir.1988). The plaintiff can satisfy its burden by making a prima facie showing of personal jurisdiction. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir.2008). The Court will accept the well-pleaded allegations of the complaint as true to determine whether plaintiff has made a prima facie showing that personal jurisdiction exists. AST Sports Science, Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1057 (10th Cir.2008). If the presence or absence of personal jurisdiction can be established by reference to the complaint, the Court need not look further. Id. The plaintiff, however, may also make this prima facie showing by putting forth evidence that, if proven to be true, would support jurisdiction over the defendant. Dudnikov, 514 F.3d at 1070. “[A]ny factual disputes in the parties' affidavits must be resolved in plaintiffs' favor.” Id.

III. ANALYSISA. Forum Selection Clause

Klein Frank argues that defendants consented to personal jurisdiction in Colorado because Mr. Dawson's representation agreement contains a forum selection clause requiring that any disputes regarding the contract be heard in Denver County, Colorado. See Docket No. 13–1 at 4. Generally, forum selection clauses are “ prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances.” Milk ‘N’ More, Inc. v. Beavert, 963 F.2d 1342, 1346 (10th Cir.1992) (emphasis in original). However, Klein Frank is not entitled to enforce this forum selection clause against defendants because the contract at issue is a contract between Klein Frank and Mr. Dawson. Docket No. 13–1 at 4 (“[i]n the event that a dispute arises between you [Dawson] and the firm ... concerning costs, attorney fees ... [t]his arbitration agreement is intended to be inclusive as to all possible claims and is binding upon the parties”). Although defendants are signatories to the contract, the language of the arbitration and forum selection clauses makes it clear that these clauses were intended to resolve disputes between Mr. Dawson and the law firms.³ Because Mr. Dawson is not involved in this fee dispute, defendants are not bound by the forum selection clause. Moreover, to the extent that the forum selection clause is ambiguous, the Court will “construe it against the drafter,” in this case Klein Frank. Milk ‘N’ More, 963 F.2d at 1346;accord K & V Scientific, 314 F.3d at 500. Accordingly, since the forum selection clause does not reflect defendants' consent to personal jurisdiction in Colorado, the Court finds that the forum selection clause does not form a basis for personal jurisdiction over defendants. See Ruggieri v. General Well Service, Inc., 535 F.Supp. 525 (D.Colo.1982) (noting that a court may exercise personal jurisdiction based upon the defendant's consent, presence in the state, or sufficient minimum contacts with the state).

B. Personal Jurisdiction

In a diversity action, a federal court has personal jurisdiction over a defendant if jurisdiction is consistent with the state's long arm statute and if jurisdiction does not violate the due process clause of the Fourteenth Amendment. Benton v. Cameco Corp., 375 F.3d 1070, 1074–75 (10th Cir.2004). The Colorado long arm statute, Colo.Rev.Stat. § 13–1–124, has been construed to extend jurisdiction to the full extent of the Constitution, so the jurisdictional analysis here reduces to a single inquiry of whether jurisdiction offends due process. Pro Axess, Inc. v. Orlux Distrib., Inc., 428 F.3d 1270, 1276 (10th Cir.2005); Classic Auto Sales, Inc. v. Schocket, 832 P.2d 233, 235 (Colo.1992); Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187, 1193 (Colo.2005).

Personal jurisdiction comports with due process where a defendant has minimum contacts with the forum state and where those contacts are such that jurisdiction does not offend “traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Minimum contacts may be established under the doctrines of general jurisdiction or specific jurisdiction. Where general jurisdiction is asserted over a non-resident defendant who has not consented to suit in the forum, minimum contacts exist if the plaintiff demonstrates that the defendant maintains “continuous and systematic general business contacts” in the state. OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998). Specific jurisdiction is present where the defendant has purposefully directed his activities at the residents of the forum and the litigation results from injuries that arise out of or relate to those activities. Soma Medical Int'l v. Standard Chartered Bank, 196 F.3d 1292, 1298 (10th Cir.1999).

1. General Jurisdiction

General jurisdiction requires that a defendant have contacts with the forum “so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, ––– U.S. ––––, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011); see also Trujillo v. Williams, 465 F.3d 1210, 1218 n. 7 (10th Cir.2006). “Because general jurisdiction is not related to the events giving rise to the suit, courts impose a more stringent minimum contacts test, requiring the plaintiff to demonstrate the defendant's continuous and systematic general business contacts.” Benton, 375 F.3d at 1080. To establish general jurisdiction, courts consider the frequency of a defendant's travel to the forum state, amount of work a defendant performs in the forum state, and whether a defendant owns property in the forum state. Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1544 (10th Cir.1996); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).

Klein Frank's evidence of defendants' contacts with Colorado consists of defendant Girards' pro hac vice appearance in Garrigan v. Bowen, Case No. 06–cv–399 (2008), a civil case in the District Court for Mesa County, Colorado, a few business trips defendant Girards took to Colorado, phone conferences between defendants and attorneys located in Colorado, emails defendants sent to Klein Frank in Colorado, and defendants' agreement to deposit the disputed attorneys' fees in this case in Klein Frank's COLTAF Trust Account (“Trust Account”), which is located in Boulder, Colorado. See Docket No. 13. However, because defendants do not reside in Colorado, do not own property in Colorado, and have performed only minimal and sporadic work in Colorado, the Court finds that defendants' occasional contacts with Colorado are too random and attenuated to rise to the level of continuous and systematic business contacts necessary to confer general jurisdiction. Benton, 375 F.3d at 1080;Trierweiler, 90 F.3d at 1532. Accordingly, Klein Frank has not alleged sufficient facts to establish that the Court's exercise of general jurisdiction over defendants is appropriate.

2. Specific Jurisdiction

The specific jurisdiction analysis is two-fold. First, the Court must determine whether defendants have such minimum contacts with Colorado that defendants “should reasonably anticipate being haled into court” here. World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Within this inquiry, the Court must determine whether defendants purposefully directed their activities at residents of the forum, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), and whether Klein Frank's claim arises...