Wardell v. Am. Dairy Goat Ass'n

• Docket Number: Civil Action 21-cv-01186-PAB-NRN
• Decision Date: 08 February 2022
• Parties: W. ROBERT WARDELL, Plaintiff, v. AMERICAN DAIRY GOAT ASSOCIATION, Defendant.
• Court: U.S. District Court — District of Colorado

1

W. ROBERT WARDELL, Plaintiff, v. AMERICAN DAIRY GOAT ASSOCIATION, Defendant.

Civil Action No. 21-cv-01186-PAB-NRN

United States District Court, D. Colorado

February 8, 2022

REPORT AND RECOMMENDATION ON DEFENDANT AMERICAN DAIRY GOAT ASSOCIATION'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE (Dkt. #59)

N Reid Neureiter, United States Magistrate Judge

This case is before the Court pursuant to an Order (Dkt. #60) issued by Chief Judge Philip A. Brimmer referring Defendant American Dairy Goat Association's (the “ADGA” or “Defendant”) Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue. (Dkt. #59.) The Court granted leave for Plaintiff W. Robert Wardell to conduct limited jurisdictional discovery. (See Dkt #42.) Mr. Wardell responded to the Motion (Dkt. #74) and Defendant replied. (Dkt. #76.) The Court heard oral argument on the Motion on November 30, 2021. (See Dkt. #81.) The Court ordered the ADGA to produce certain additional documents to Mr. Wardell and permitted Mr. Wardell to file a supplemental response. (Id.) Mr. Wardell submitted his supplemental response on December 14, 2021 (Dkt. #81) and the ADGA submitted a supplemental reply on December 21, 2021. (Dkt. #83.)

The Court has taken judicial notice of the Court's file and considered the applicable Federal Rules of Procedure and case law. Now, being fully informed and for the reasons discussed below, the Court hereby RECOMMENDS that motion be DENIED but that the matter be TRANSFERRED to the United States District Court for the District of North Carolina.

BACKGROUND

This case arises from the ADGA's refusal to renew Mr Wardell's membership in the organization. According to its website, the ADGA is a non-profit corporation created to “collect, record and preserve the pedigrees of dairy goats and to provide genetic, management, and related services to dairy goat breeders.” About Us, Am. Dairy Goat Assoc., https://adga.org/about-us/ (last visited February 3, 2022). According to Mr. Wardell, “the ADGA is the sole entity in the United States for the registration and/or recordation of the pedigrees of American dairy goats” and by registering animals with the ADGA, the value of the animals (and thus of a dairy goat breeder's business) is significantly increased. (Dkt. #16 at ¶ 18.) Mr. Wardell states that an ADGA registration is the “gold standard in dairy goat registrations” and that the ADGA offers performance programs, such as linear appraisal, not offered by any other registry. (Id.)

Mr. Wardell filed his Third Amended Complaint^[1] (“TAC”) on May 5, 2021. (Dkt. #16.) The TAC named the ADGA and several individuals, in both their individual and official capacities: Lance Gerlach, Kennon D. Feaster-Eychison, Thomas Peter Considine, Kristina S. Bozzo-Baldenegro, Lynn Benedict, Melissa O'Rourke, Robin M. Saum, and Shirley McKenzie. (Id.)

In the summer of 1995, Ms. McKenzie placed a hold on Mr. Wardell's ADGA account for blood typing fees and, despite efforts to correct the issue, the hold remains in place. (Id. at ¶ 26.) Mr. Wardell previously filed suit against the ADGA^[2] and, before the ultimate outcome of the case, the ADGA “purported to revoke [his] membership permanently” without giving him any prior notice or an opportunity to be heard. (Id. at ¶¶ 30-33.) He alleges that the ADGA failed to follow their own rules concerning the revocation. Further, the ADGA has refused to allow Mr. Wardell to “register or transfer American and/or purebred dairy goats as a non-member.” (Id. at ¶ 36.)

Mr. Wardell also generally alleges that “[a]nnouncements were made at shows and conventions that plaintiff was under investigation, in an effort to damage and ruin [his] reputation” and that ADGA members “were urged not to deal with [him].” (Id. at ¶ 34(a)-(b).) The ADGA and the individual (now-dismissed) defendants allegedly defamed Mr. Wardell, including by making “statements to the effect that [Mr. Wardell] had defrauded the registry.” (Id. at ¶ 59.) Mr. Wardell alleges that the ADGA's actions effectively prevent him from conducting his dairy goat business.

Based on this conduct, Counts I and II of the TAC allege the ADGA and individual defendants violated Sections I and II of the Sherman Act, 15 U.S.C. §§ 1, 2. Mr. Wardell also brings claims for tortious interference (Count III), unfair competition under Colo. Rev. Stat. § 10-3-1104 (Count IV), and defamation (Count V). Further, Mr. Wardell alleges that he was denied due process when Defendants failed to follow their own constitution and bylaws in declining to renew Mr. Wardell's membership.

Each Defendant filed a separate motion to dismiss challenging the Court's personal jurisdiction over them. (See Dkt. ##48, 50, 52, 54, 56-58.) On October 20, 2021, Mr. Wardell requested an order dismissing the individual defendants from this case because he discovered they no longer serve in leadership at the ADGA. (Dkt. #77.) On October 22, 2021, Chief Judge Brimmer entered an Order dismissing all of the individuals from the case under Fed.R.Civ.P. 41 and denied each of their respective motions to dismiss as moot. (Dkt. #80.) Thus, the only remaining defendant in this matter is the ADGA. The ADGA's Motion to Dismiss (Dkt. #59) is the only remaining motion pending before the Court.

With respect to the issues of jurisdiction and venue, the following facts are taken from the TAC and the exhibits submitted with the parties briefing:

1. The ADGA is a “membership dairy goat registry corporation, incorporated under the laws of Missouri, with its principal office and place of business at 161 W. Main St., Spindale, NC 28160.” (Dkt. #16 at ¶ 4; see also Dkt. #59-1, McKenzie Decl., at ¶ 3.)

2. The ADGA has over 20, 000 members nationwide. (Dkt. #59-1 at ¶ 5.) As of March 1, 2021, there were 313 adult and 50 youth members in Colorado. (Id. at ¶ 9.)

3. The ADGA sends quarterly newsletters, an annual guidebook, and an annual membership directory to its members. (Id. at ¶ 13.)

4. The ADGDA does not send unsolicited mail communications to Colorado residents. (Id. at ¶ 14.)

5. ADGA does not have an office, telephone listing, or bank account in Colorado, and does not have any employees in Colorado. (Id. at ¶¶ 15- 16.)

6. The ADGA does not sell dairy goats except for in association with consignment sales at its National Show or its National Convention. In such cases, the ADGA is involved in the consignment sale of less than 20 goats per event (Id. at ¶ 18.) The ADGA has not been involved in the consignment sale of any dairy goats in Colorado since 2012. (Id. at ¶ 19.)

7. The ADGA holds its National Show in a different location each year. Since 2005, it hosted one National Show in Colorado (in 2012). (Id. at ¶ 20.)

8. The ADGA holds an Annual Meeting/Convention in a different location each year. Since 2005, it hosted one Annual Meeting/Convention in Colorado (in 2007). (Id. at ¶ 21.)

9. In 2021, the ADGA issued approximately 18 permits to test DHIR^[3] in Colorado herds. (Dkt. #82-1, Wardell Decl., ¶ 2.)

10. In 2021, there were 14 herds in Colorado that participate in linear appraisal. (Id. at ¶ 3.)

11. The ADGA sanctions dairy goat shows nationwide. The ADGA sanctioned six shows in Colorado in 2019 through 2020. (Dkt. #83-2.)

In its Motion, the ADGA argues that Mr. Wardell's TAC must be dismissed pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction because the ADGA does not have sufficient contacts with Colorado. It also argues for dismissal under Rule 12(b)(3) for improper venue because the ADGA does not “transact business” sufficient to justify venue in this forum within the meaning of the Sherman Act.

For his part, Mr. Wardell contends that the ADGA's contacts with Colorado are sufficient to confer this Court with jurisdiction over the ADGA and that venue is proper. The Court permitted Mr. Wardell to conduct limited discovery concerning the jurisdictional issues. (See Dkt. ##42 & 81.)

LEGAL STANDARDS

I. Pro Se Litigants

Mr. Wardell proceeds pro se. Accordingly, the Court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Bellmon, 935 F.2d at 1110. A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico,  113 F.3d 1170, 1175 (10th Cir. 1997) (the court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”).

II. Venue

Defendant moved to dismiss, in part, based on improper venue pursuant to 12(b)(3). The Court may consider venue prior to considering personal jurisdiction. See Aspen Corps., Inc. v. Gorman, No. 18-cv-01325-CMA-SKC, 2019 WL 1281211, at *3 (D. Colo. Mar. 20, 2019) (considering defendants' venue argument first because “[t]here is no mandatory sequencing of jurisdictional issues.” (quoting Sinochem Int'l Co. Ltd v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007)). As the Supreme Court explained:

The question of personal jurisdiction, which goes to the court's power to exercise control over the parties, is typically decided in advance of venue, which is

...