United States District Court, D. Nebraska
ORDER ON MOTIONS
CHRISTINE M. ARGUELLO, United States District Judge
On September 2, 2015, Plaintiff Amy Carnrick filed suit against Defendants Riekes Container Corporation (“Riekes Corp.”), Robert Richey, Brett Atlas, and Carl Riekes for alleged violations of Title VII of the Civil Rights Act of 1964, the Texas Labor Code, and the Nebraska Fair Employment Practice Act. (Doc. # 1.) In response to Plaintiff’s complaint, Defendants filed the following three motions, which are currently pending before the Court: (1) Defendant Robert Richey’s Motion to Dismiss for Lack of Personal Jurisdiction (Doc. # 18); (2) Defendants Carl Riekes and Brett Atlas’s Motion to Dismiss for Lack of Personal Jurisdiction (Doc. # 20); and (3) Defendant Riekes Corp.’s Motion to Transfer Venue to the United States District Court for the District of Nebraska (Doc. # 21). For the foregoing reasons, all three motions are granted.
In February 2014, Plaintiff accepted a position as Regional Sales Manager with Defendant Riekes Corp., which is headquartered in Omaha, Nebraska. (Doc. # 1 at ¶¶ 2, 47.) The position required Plaintiff to relocate from Denver, Colorado to Austin, Texas. (Doc. # 1 at ¶ 2.) Plaintiff moved to Texas in April 2014. (Doc. # 1 at ¶ 55.) Defendant Richey was Riekes Corp.’s Vice President of Sales and Plaintiff’s direct supervisor. (Doc. # 1 at ¶¶ 2, 53.) Defendant Atlas is Riekes Corp.’s Executive Vice President, and Defendant Riekes is Riekes Corp.’s President. (Doc. # 1 at ¶¶ 4, 5.)
Plaintiff alleges that Defendant Richey coerced her into having sex with him on March 6, 2014, during her first week of training in Nebraska. (Doc. # 1 at ¶ 2.) Plaintiff also alleges that Defendant Richey sexually harassed her during business trips in Illinois and Texas. (Doc. # 1 at 17-20.) Plaintiff states that she lodged a sexual harassment claim against Defendant Richey with Defendants Atlas and Riekes, and Defendants Atlas and Riekes retaliated against her by terminating her employment. (Doc. # 1 at ¶ 4.)
A. Defendant Robert Richey’s Motion to Dismiss for Lack of Personal Jurisdiction (Doc. # 18) and Defendants Carl Riekes and Brett Atlas’s Motion to Dismiss for Lack of Personal Jurisdiction (Doc. # 20)
All three individual defendants filed motions to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). To survive a motion to dismiss for lack of personal jurisdiction where there has been no evidentiary hearing, a plaintiff must make a prima facie showing that the court can exercise personal jurisdiction over the defendant. OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998). The plaintiff “has the duty to support jurisdictional allegations in a complaint by competent proof of the supporting facts if the jurisdictional allegations are challenged by an appropriate pleading.” Pytlik v. Prof’l Res., Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989). The allegations in the complaint are taken as true to the extent that they are uncontroverted, and all factual disputes are resolved in the plaintiff’s favor. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). However, only well-pled facts, as opposed to conclusory allegations, are accepted as true. Id.
A federal district court may exercise personal jurisdiction over a defendant who is “subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Fed.R.Civ.P. 4(k)(1)(A). Because Colorado’s long-arm statute “confers the maximum jurisdiction permissible consistent with the Due Process Clause [of the Fourteenth Amendment to the United States Constitution], ” a personal jurisdiction analysis under Colorado’s long-arm statue is analytically identical to a due process analysis under the Fourteenth Amendment. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008).
Under the Due Process Clause, a court may exercise personal jurisdiction over a nonresident defendant “so long as there exist ‘minimum contacts’ between the defendant and the forum State.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) (quotation omitted). A plaintiff can satisfy the minimum contacts standard by demonstrating that the court can exercise either specific personal jurisdiction or general personal jurisdiction over the defendant. OMI Holdings, 149 F.3d at 1090-91. If a defendant is subject to specific personal jurisdiction, the asserted cause(s) of action must arise from the specific contacts with the forum that gave rise to jurisdiction; whereas, if a defendant is subject to general personal jurisdiction, the asserted cause(s) of action may be unrelated to the defendant’s contacts with the forum. 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1069 (4th ed. 2015).
A nonresident defendant may be subject to specific personal jurisdiction if he “‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citations omitted). Thus, where a nonresident defendant is alleged to have committed a tortious act outside the forum state but that act has effects within the forum state, specific personal jurisdiction will be proper only if the nonresident defendant expressly aimed his or her intentional tortious conduct at the forum state and he or she knew that the brunt of the injury would be felt in the forum state. Dudnikov, 514 F.3d at 1072.
With regard to general personal jurisdiction over an individual defendant, “the paradigm forum for the exercise of general jurisdiction is the individual’s domicile.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2853 (2011). In contrast, a corporate defendant may be subject to general personal jurisdiction if it has engaged in “continuous and systematic general business contacts” with the forum. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984). Although neither the United States Supreme Court nor the Tenth Circuit has definitively answered whether the “continuous and systematic contacts” analysis can be applied to individual defendants, the Supreme Court has strongly implied that it cannot and that domicile is the primary basis for a court’s exercise of general personal jurisdiction over an individual defendant. See Burnham v. Superior Court of Cal., 495 U.S. 604, 610 n.1 (1990) (“It may be that whatever special rule exists permitting ‘continuous and systematic’ contacts . . . to support jurisdiction with respect to matters unrelated to activity in the forum applies only to corporations, which have never fitted comfortably in a jurisdictional regime based upon de facto power over the defendant’s person.”) (internal quotes and citations omitted). In situations in which the “continuous and systematic contacts” test does apply, the plaintiff must show that the defendant’s “affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Goodyear, 131 S.Ct. at 2851 (2011).
If a court finds that it can exercise either specific or general personal jurisdiction over the defendant, that court must then determine “whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’” Burger King, 471 U.S. at 476. When determining whether the exercise of jurisdiction would comport with fair play and substantial justice, a court considers the following factors: (1) the burden on the defendant; (2) the forum state's interests in resolving the dispute; (3) the plaintiff's interest in receiving convenient and effectual 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 social policies. See, e.g., OMI Holdings, 149 F.3d at 1095.
In support of his motion to dismiss, Defendant Richey-a resident and citizen of Minnesota-provides an affidavit with the following information. He has never owned property in Colorado and has never owned any interest in a Colorado company. (Doc. 18-1 at ¶ 1.) He made only four business trips to Colorado in 2013 and 2014, spending a total of only 11 days in the state. (Doc. # 18-1 at ¶¶ 2-3.) The trip in 2013 was to conduct a job interview in Denver for his employer prior to Riekes Corp. (Doc. # 18-1 at ¶ 2.a), and the three trips in 2014 were “to make sales calls” in the Denver area (Doc. # 18-1 at ¶ 2.b). Defendant Richey asserts that “Plaintiff’s lawsuit does not relate to any of those specific contacts with Colorado.” (Doc. # 18 at 1.) Defendant Richey also asserts that “all of the conduct upon which Plaintiff bases her complaint against Richey, and the other Defendants, occurred in Illinois, Nebraska, or Texas, ” and that “[t]he only contact Colorado has to this case is that the Plaintiff moved to Colorado after the events giving rise to this lawsuit occurred and she wishes to proceed in her home state.” (Doc. # 18 at 2.)
In response to Defendant Richey’s motion, Plaintiff argues that the Court can exercise both specific and general personal jurisdiction over Defendant Richey and that exercising either form of jurisdiction would be consistent with traditional notions of fair play and substantial justice. Plaintiff argues that Defendant Richey’s contact with her was enough to establish minimum contacts because she is a resident of Colorado. (Doc. # 22 at 4-7.) Plaintiff sets forth two theories. First, she argues that Defendant Richey’s tortious conduct toward her in Nebraska and Illinois was enough to establish minimum contacts with Colorado because, after the alleged incidents, she suffered emotional distress as a result of those contacts at her home in Colorado. (Doc. # ...