Wise v. Lindamood

• Decision Date: 28 September 1999
• Docket Number: No. CIV.A. 98-B-1645.,CIV.A. 98-B-1645.
• Citation: 89 F.Supp.2d 1187
• Parties: Barbara W. WISE; and Remedies for Reading Disabilities, Inc., a Colorado Corporation, Plaintiff, v. Patricia C. LINDAMOOD; and Lindamood-Bell Learning Processes, Inc., a California Corporation, Defendant.
• Court: U.S. District Court — District of Colorado

Page 1187

89 F.Supp.2d 1187

Barbara W. WISE; and Remedies for Reading Disabilities, Inc., a Colorado Corporation, Plaintiff, v. Patricia C. LINDAMOOD; and Lindamood-Bell Learning Processes, Inc., a California Corporation, Defendant.

No. CIV.A. 98-B-1645.

United States District Court, D. Colorado.

September 28, 1999.

David Mastbaum, Arthur H. Travers, David Mastbaum Law Office, Boulder, CO, for Plaintiff.

Christopher W. Blakemore, Hurth, Yeager & Sisk, Boulder, CO, James Edward Houpt, Kimberly J. Mueller, Norman Carter Hile, Orrick, Herrington & Sutcliff, LLP, Sacramento, CA, for Defendant.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Defendants move to dismiss this action pursuant to Rule 12(b)(2) for lack of personal jurisdiction, and pursuant to 28 U.S.C. § 1391(b) for improper venue. Alternatively, Defendants move to transfer this action pursuant to 28 U.S.C. § 1404. The motions are fully briefed. For the reasons set forth below, I deny Defendant's motions.

I.

Patricia Lindamood (Ms. Lindamood) is a resident of southern California. Ms. Lindamood and her late husband authored programs to develop the sensory cognitive processes that underlie reading, spelling, language comprehension, math, and visual motor skills. These programs are included in a text originally written by Ms. Lindamood and her late husband and subsequently revised by Ms. Lindamood with the support of others. Ms. Lindamood owns the copyright in the text, and claims trademark protection for her name.

Lindamood-Bell is a California corporation headquartered in San Luis Obispo. One of the purposes of Lindamood-Bell, of which Ms. Lindamood is a director, "is to ensure that [Ms. Lindamood's] research-based programs ... are available on a broader scale." Defendants' Motion to Dismiss at Ex. A, ¶ 12. Toward that end, Ms. Lindamood permits Lindamood-Bell to use her copyrighted materials and trademark in educational programs.

Barbara Wise (Ms. Wise) is a resident of Boulder, Colorado who conducts seminars for teachers and other professionals who work with students with reading disabilities. Each seminar participant receives a manual authored by Ms. Wise entitled Linguistic Remedies for Reading Disabilities (Linguistic Remedies). Remedies for Reading Disabilities, Inc., of which Ms. Wise is the sole shareholder, director, and President, holds the copyright to Linguistic Remedies. Linguistic Remedies references Ms. Lindamood and her programs.

Beginning in February 1998, Ms. Lindamood commenced communications with Ms. Wise in which she conveyed her belief that Linguistic Remedies infringed her copyright and trademark. In the course of those communications, attorneys for Ms. Lindamood sent two letters to Ms. Wise's attorneys. Plaintiffs filed the complaint in this action on July 31, 1998 seeking a declaratory judgment that Linguistic Remedies does not infringe Ms. Lindamood's rights.

II.

A.

Plaintiffs bear the burden of establishing personal jurisdiction over the defendants. See Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1075 (10th Cir.1995). When the issue is raised before trial and decided on the basis of affidavits and other written materials, a plaintiff need only make a prima facie showing. See id. The burden on the plaintiff is light. See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995). I may consider matters outside the pleadings. See Schramm v. Oakes, 352 F.2d 143, 149 (10th Cir.1965). If the parties present conflicting affidavits, I must resolve all disputed facts and draw all reasonable inferences in the plaintiff's favor. See Behagen v. Amateur Basketball Ass'n of U.S.A., 744 F.2d 731, 733 (10th Cir.1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171 (1985). However, "only the well pled facts of plaintiff's complaint, as distinguished from mere conclusory allegations, must be accepted as true." See Wenz, 55 F.3d at 1505.

The determination of jurisdiction is a two part inquiry. First, I must determine whether there is a basis for jurisdiction under Colorado's long-arm statute. See C.R.S. § 13-1-124. Colorado's long-arm statute subjects a defendant to personal jurisdiction for various enumerated acts including the transaction of any business within the state of Colorado. C.R.S. § 13-1-124(1) (Supp.1994). Second, I must determine whether the exercise of jurisdiction violates principles of Due Process under the United States Constitution. See Custom Vinyl Compounding Inc. v. Bushart & Associates, Inc., 810 F.Supp. 285, 287 (D.Colo.1992). Because "the Colorado legislature [in enacting the long-arm statute] intended to extend the jurisdiction of Colorado courts to the fullest extent permitted by the due process clause of the United States Constitution." Behagen v. Amateur Basketball Association of the United States of America, 744 F.2d 731, 733 (10th Cir.1984) (quoting Waterval v. District Court, 620 P.2d 5, 8 (Colo.1980), cert. denied, 452 U.S. 960, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981)); see Safari Outfitters of Denver v. Superior Court, 167 Colo. 456, 448 P.2d 783 (1968) (Colorado's long-arm statute is construed liberally so as to allow jurisdiction to the full extent permitted by due process), the analysis reduces to whether the exercise of personal jurisdiction on the basis of Defendants' business contacts is consistent with Due Process. See, e.g., Behagen, 744 F.2d at 733; Qwest Communications International, Inc. v. Thomas, 52 F.Supp.2d 1200, 1204 (D.Colo.1999).

Personal jurisdiction under the Due Process Clause may be either general or specific. General jurisdiction arises from 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). The activity cannot be "random," "fortuitous," or "attenuated." Burger King v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). Rather, the defendant must "purposefully avail itself of the privilege of conducting activities within the forum State," id. (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)), thereby invoking the benefits and protections of the forum state's laws, but also submitting to the burdens of litigation in that forum. Id. A state has general jurisdiction if a defendant has created "a `substantial connection' with the forum State," Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), such that it "should reasonably anticipate being haled into court there." Id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).

Specific jurisdiction, by contrast, arises in the absence of such general activity and is predicated upon a defendant's minimum contacts with the forum which give rise to the cause of action. Kennedy, 919 F.2d at 128 n. 2. The touchstone inquiry is whether "the defendant has `purposefully directed' its activities toward the forum jurisdiction and [whether] the underlying action is based upon activities that arise out of or relate to the defendant's contacts with the forum." In re Application to Enforce Administrative Subpoenas Duces Tecum of S.E.C. v. Knowles, 87 F.3d 413, 418 (10th Cir.1996) (quoting Burger King, 471 U.S. at 472, 105 S.Ct. 2174). "Even a single purposeful contact may be sufficient ... when the underlying proceeding is directly related to that contact." Id. at 419. See McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Nevertheless, "a defendant will not be haled into a jurisdiction solely as a result of ... the `unilateral activity of another party or third person.'" Burger King, 471 U.S. at 475, 105 S.Ct. 2174 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)).

Even if a defendant's contacts satisfy either test, the exercise of jurisdiction must not "offend traditional notions of fair play and substantial justice.'" Trierweiler v. Croxton and Trench Holding Corporation, 90 F.3d 1523, 1533 (10th Cir.1996) (quoting International Shoe, 326 U.S. at 316, 66 S.Ct. at 158). In deciding if an action so offends, factors to be considered are (1) the burden on the defendant; (2) the forum state's interest in resolving the dispute; (3) the plaintiff's interest in receiving convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. See Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); OMI Holdings, Inc. v. Royal Insurance Co. of Canada, 149 F.3d 1086 (10th Cir.1998). The strength of these factors sometimes serves to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. See Burger King, 471 U.S. at 477, 105 S.Ct. 2174; Ticketmaster-New York, Inc. v. Joseph M. Alioto, 26 F.3d 201, 210 (1st Cir.1994). Conversely, the factors may be so weak that even though minimum contacts are present, subjecting the defendant to jurisdiction in that forum would offend due process. See Burger King, 471 U.S. at 477, 105 S.Ct. 2174; Ticketmaster-New York, 26 F.3d at 210. Nevertheless, "[t]he Due Process Clause may not [] be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed." Burger King, 471 U.S. at 474, 105 S.Ct. 2174.

B.

A party moving to transfer a case bears the burden of showing that the existing forum is inconvenient. Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir.1991). Among the factors to be considered are:

the plaintiff's choice of forum; the accessibility of...