Shepherd v. U.S. Olympic Committee

• Decision Date: 20 April 2000
• Docket Number: No. CIV.A.99-K-2077.,CIV.A.99-K-2077.
• Citation: 94 F.Supp.2d 1136
• Parties: Mark SHEPHERD, Plaintiff, v. UNITED STATES OLYMPIC COMMITTEE, a corporation; and International Olympic Committee, a corporation, Defendants.
• Court: U.S. District Court — District of Colorado

94 F.Supp.2d 1136

Mark SHEPHERD, Plaintiff, v. UNITED STATES OLYMPIC COMMITTEE, a corporation; and International Olympic Committee, a corporation, Defendants.

No. CIV.A.99-K-2077.

United States District Court, D. Colorado.

April 20, 2000.

COPYRIGHT MATERIAL OMITTED

Countess Pease Jeffries, Jeffries Advocates Law Offices, Costa Mesa, CA, for Plaintiff.

Raymond M. Deeny, Nancy Dawn Webber, Edward John Butler, Sherman & Howard, John William Cook, Virginia S. Morgan, Hogan & Hartson, LLP, Colorado Springs, James R. Asperger, Peter J. Shakow, O'Melveny & Myers, LLP, Los Angeles, CA, Susan Bernhardt, Cortez Macaulay Bernhardt & Scheutze, LLC, Denver, CO, for Defendant.

MEMORANDUM OPINION AND ORDER

KANE, Senior District Judge.

Plaintiff Mark E. Shepherd, an Olympic Class Athlete with Disabilities, has been an employee of the Defendant United States Olympic Committee ("USOC") since September 6, 1994. He asserts he was hired pursuant to a written employment contract to which he was induced to enter by USOC's representation that he would be able to compete as a wheelchair basketball athlete as part of the duties of his position.

Shepherd sues USOC and the International Olympic Committee ("IOC"), asserting violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794 (" § 504"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. He also brings claims pursuant to the Colorado Anti-Discrimination Act (CADA), Colo.Rev.Stat. § 24-34-301 et seq., as well as other state claims under Colorado common law. Shepherd's twenty-three claims consist of those in which he asserts disability discrimination or employment-related claims and those in which he asserts discrimination against him as a disabled athlete in USOC's athlete programs.¹

Pending are IOC's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2) and Fed. R.Civ.P. 12(b)(5) and USOC's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) or in the Alternative for Summary Judgment Pursuant to Fed.R.Civ.P. 56(c), and Motion to Strike Pursuant to Fed.R.Civ.P. 12(b).

I. Applicable Legal Standards.

"The Plaintiff bears the burden of establishing personal jurisdiction over the defendant." OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998). When a district court rules on a Fed.R.Civ.P. 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff need only make a prima facie showing of personal jurisdiction to defeat the motion. Id.

"[T]he Federal Rules of Civil Procedure erect a powerful presumption against rejecting pleadings for failure to state a claim." Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir.1989). In considering whether dismissal is proper under Rule 12(b)(6), all well-pleaded allegations in the complaint are accepted as true and viewed in the light most favorable to the nonmoving party. Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). Only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims which would entitle him to relief, should a Rule 12(b)(6) motion be granted. Id.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. Simms v. Oklahoma ex rel. Dep't Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.), cert. denied, ___ U.S. ___, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999). Although the movant must show the absence of a genuine issue of material fact, he or she need not negate the nonmovant's claim. Id. Once the movant carries this burden, the nonmovant cannot rest upon his or her pleadings, but "must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which [he or she] carries the burden of proof." Id. "The mere existence of a scintilla of evidence in support of the nonmovant's position is insufficient to create a dispute of fact that is `genuine'; an issue of material fact is genuine only if the nonmovant presents facts such that a reasonable jury could find in favor of the nonmovant." Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir.1997).

II. Merits.

A. IOC's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2) and Fed. R.Civ.P. 12(b)(5).

IOC, an international non-profit association, based in Lausanne, Switzerland, seeks dismissal of the Complaint against it under Rule 12(b)(2) for lack of personal jurisdiction and under Rule 12(b)(5) for insufficiency of service of process. Although Shepherd is not now nor has he ever been an employee of IOC, the Complaint asserts a number of employment-related claims against IOC, based on the allegation that USOC was "an agent and subcontractor to the [IOC], subject to the management and supervision of the IOC." (Compl.¶ 15, 229.) In addition to the numerous other claims asserted against both Defendants, the Twenty Second Claim for Principal Agent Liability — Negligent Supervision, (Compl.¶ 228-234), is asserted against IOC only.

1. Personal Jurisdiction.

IOC argues the exercise of jurisdiction would violate Colorado's long-arm statute because IOC does not have "minimum contacts" with Colorado and 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). Before 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. Day v. Snowmass Stables, Inc., 810 F.Supp. 289, 291 (D.Colo.1993). 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, 80 L.Ed.2d 404 (1984) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

a. General Jurisdiction

Under general jurisdiction, a nonresident 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, 96 L.Ed. 485 (1952).

For general jurisdiction, a defendant's contacts with a state must be greater than those required for specific jurisdiction. Day, 810 F.Supp. at 292. 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. 1868, so that the defendant could reasonably anticipate being haled into court in that forum. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

Here, IOC's contacts with the State of Colorado are insufficient to support general jurisdiction. It is not incorporated in Colorado, and neither conducts business nor has qualified to do so in Colorado. It has no subsidiaries incorporated or qualified to conduct business in Colorado, nor do any of its officers or employees reside in Colorado. It maintains no bank account, telephone listing, or mailing address in Colorado, nor does it pay taxes here.

Shepherd's reliance on Behagen, 744 F.2d 731, is misplaced. There, the plaintiff sued the Federal Internationale de Basketball Amateur (FIBA), the international association governing amateur basketball in its member countries and its American member, the Amateur Basketball Association of the United States of America (ABA/USA). FIBA moved to dismiss for lack of personal jurisdiction on the grounds, inter alia, that it had no office or assets in Colorado, and had committed no acts in the United States. The Tenth Circuit held the evidence produced by Behagen constituted a prima facie case showing FIBA maintained continuous and substantial activity in Colorado through the action taken on behalf of its constituent, ABA/USA. Id. at 734. That evidence included the fact that ABA/USA was the American member of FIBA and according to the ABA/USA Handbook was required to "adhere to the regulations and policies set forth by FIBA" and to "carry out the responsibilities of" FIBA. Id. Viewed most favorably to the plaintiff, the Tenth Circuit found the record reflected "FIBA is its members, and that it governs internationally related amateur basketball through its member organization in each country." Id.

Shepherd attempts to analogize the IOC to FIBA, citing the description of IOC as the "umbrella organization of the Olympic Movement whose primary responsibility is the regular staging of the summer and...