Rosenberg v. Deutsche Bank A.G. et al

Filing 62

ORDER Plaintiffs Objections ECF No. 60 , to the United States Magistrate Judges May 22, 2012 Recommendation ECF No. 58 , are OVERRULED and the Recommendation is ADOPTED in its entirety; Defendants Motion to Dismiss for Lack of Personal Jurisdiction ECF No. 27 is GRANTED; Plaintiffs claims are DISMISSED WITHOUT PREJUDICE; Plaintiffs Motion for Leave to Amend Second Amended Complaint ECF No. 45 , is DENIED; by Judge William J. Martinez on 8/28/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-02200-WJM-CBS
JENNIFER ROSENBERG,
Plaintiff,
v.
DEUTSCHE BANK A.G.,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
DEUTSCHE BANK SECURITIES, INC., and
Defendants.

ORDER ADOPTING THE RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the May 22, 2012 Recommendation by U.S.
Magistrate Judge Craig B. Schaffer (ECF No. 58) (the “Recommendation”) that: (1)
Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 27) be
granted; and (2) Plaintiff’s Motion for Leave to Amend Second Amended Complaint
(ECF No. 45) (“Motion to Amend”) be denied. The Recommendation is incorporated
herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
I. BACKGROUND
The facts relevant to a resolution of the Motions are detailed in the
Recommendation. Briefly, Plaintiff, proceeding pro se, claims that she was
discriminated against by her employer and faced a hostile work environment. (ECF No.
25.) Defendant Deutsche Bank, A.G. (“DB”) is an international bank with its main
headquarters in Frankfurt, Germany, and its United States headquarters in New York,

NY. (ECF No. 35 at 1.) Defendant Deutsche Bank Trust Company Americas
(“DBTCA”) is a wholly owned subsidiary of Deutsche Bank Trust Corporation (“DB
Trust”), which is a wholly owned subsidiary of Taunus Corporation, which in turn is a
wholly owned subsidiary of DB. (Id. at 2.) DBTCA is incorporated under the laws of the
State of New York. (Id.) Defendant Deutsche Bank Securities, Inc. (“DBSI”) is a wholly
owned subsidiary of Deutsche Bank U.S. Financial Markets Holding Corporation, which
is a wholly owned subsidiary of Taunus Corporation. (Id.) DBSI is incorporated under
the laws of the State of Delaware. (Id.) Both DBTCA and DBSI have their principal
places of business in New York. (Id.)
Plaintiff’s operative Complaint was filed on December 13, 2011. (ECF No. 25.)
Plaintiff brings claims against Defendants for discrimination and retaliation under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and for
intentional infliction of emotional distress. (Id.)
On January 12, 2012, Defendants filed their Motion to Dismiss and Brief in
Support requesting that the Court dismiss all claims pursuant to Fed. R. Civ. P. 12(b)(2)
for lack of personal jurisdiction. (ECF Nos. 27, 29.) On February 3, 2012, Plaintiff filed
her Response to Defendants’ Motion (ECF No. 49), and Defendants filed their Reply to
Plaintiff’s Response on February 10, 2012 (ECF No. 51).
On January 12, 2012, Plaintiff filed a Motion to Amend. (ECF No. 45.) On
January 26, 2012, Defendants filed their Response to Plaintiff’s Motion to Amend.
(ECF No. 48.) On February 14, 2012, the Court ordered that Plaintiff’s Motion to
Amend be held in abeyance until Defendants’ Motion to Dismiss had been ruled upon.

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(ECF No. 56.)
On May 22, 2012, the Magistrate Judge issued his Recommendation that: (1)
Defendants’ Motion to Dismiss be granted because the Court does not have personal
jurisdiction over Defendants; and (2) Plaintiff’s Motion to Amend be denied. (ECF No.
58.) On June 4, 2012, Plaintiff filed a timely Objection to the Recommendation (ECF
No. 60), and Defendants filed their Response to Plaintiff’s Objection on June 13, 2012
(ECF No. 61).
For the reasons stated below, Plaintiff’s objections to the Recommendation are
overruled, the Magistrate Judge’s Recommendation is adopted in its entirety,
Defendants’ Motion to Dismiss is granted, and Plaintiff’s Motion to Amend is denied.
II. LEGAL STANDARDS
When a Magistrate Judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the District Court Judge
“determine de novo any part of the magistrate judge’s [recommendation] that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). In conducting its review, “[t]he district
court judge may accept, reject, or modify the recommendation; receive further
evidence; or return the matter to the magistrate judge with instructions.” Id.
Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a motion to dismiss
may be granted if the court “lack[s] personal jurisdiction” over the defendant. The
plaintiff bears the burden of establishing personal jurisdiction over the defendant. OMI
Holdings v. Royal Ins. Co. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998). “In the
preliminary stages of litigation, Plaintiff’s burden is light.” Walker v. Wegener, 11-cv-

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3238, 2012 WL 1020673, at *3 (D. Colo. Mar. 2, 2012) (citing Wenz v. Memery Crystal,
55 F.3d 1503, 1505 (10th Cir. 1995)). “Where, as here, there has been no evidentiary
hearing, and the motion to dismiss for lack of personal jurisdiction is decided on the
basis of affidavits and other materials, Plaintiff[ ] need only make a prima facie showing
that jurisdiction exists.” Walker, 2012 WL 1020673, at *3 (internal citation omitted).
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).
“Whether a federal court has personal jurisdiction over a nonresident defendant
in a diversity action is determined by the law of the forum state.” Rambo v. Am. S. Ins.
Co., 839 F.2d 1415, 1416 (10th Cir. 1988) (quoting Yarbough v. Elmer Bunker &
Assocs., 669 F.2d 614, 616 (10th Cir. 1982) (internal quotation marks omitted)). “In
Colorado, the assertion of personal jurisdiction must both: (1) satisfy the requirements
of the long-arm statute; and (2) comport with due process.” Walker, 2012 WL 1020673,
at *3 (citing Taylor v. Phelan, 912 F.2d 429, 431 (10th Cir. 1990)). Colorado’s long-arm
statute “confers the maximum jurisdiction permissible consistent with the Due Process
Clause,” Dudnikov v. Chalk Vermillion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir.
2008) (quoting Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187, 1193 (Colo. 2005)),
and “subjects a defendant to personal jurisdiction for engaging in - either in person of
by an agent - the ‘commission of a tortious act within this state,’ or the ‘transaction of
any business within this state.’” Walker, 2012 WL 1020673, at *3 (quoting Colo. Rev.
Stat. §§ 13-1-124(1)(a)-(b) (2007)). “To comport with due process, the defendant

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foreign corporation must have minimum contacts with the forum state such that
maintenance of the lawsuit would not offend ‘traditional notions of fair play and
substantial justice.’” Beyer v. Camex Equip. Sales & Rentals, Inc., 10-cv-1580, 2011
WL 2670588, at * 3 (D. Colo. July 8, 2011) (quoting Int’l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945)).
The minimum contacts requirement protects a defendant from “being subject to
the binding judgment of a forum with which [it] has established no meaningful ‘contacts,
ties, or relations.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citation
omitted). The defendant must have “fair warning that a particular activity may subject
[it] to the jurisdiction of a foreign sovereign.” Id. “[T]he question of whether a
non-resident defendant has the requisite minimum contacts with the forum state to
establish in personam jurisdiction must be decided on the particular facts of each case.”
Benton v. Cameco Corp., 375 F.3d 1070, 1076 (10th Cir. 2004) (internal quotation
marks omitted).
The minimum contacts analysis differs depending on whether the court is
exercising specific or general jurisdiction. OMI Holdings, 149 F.3d at 1090-91. “A court
may assert specific jurisdiction if the defendant has purposefully directed [its] activities
at residents of the forum, and the litigation results from alleged injuries that arise out of
or relate to those activities.” Beyer, 2011 WL 2670558, at *3 (quoting Burger King
Corp., 471 U.S. at 472 (internal quotations marks omitted)). “General jurisdiction, on
the other hand arises when a defendant maintains continuous and systematic contacts
with the forum state even when the cause of action has no relation to those contacts.”

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Beyer, 2011 WL 2670558, at *3 (quoting Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 416 (1984) (internal quotation marks omitted)).
Finally, in considering the Magistrate Judge’s Recommendations in the instant
case, the Court is also mindful of Plaintiff’s pro se status, and accordingly, reads her
pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, such liberal construction is intended merely to overlook technical formatting
errors and other defects in Plaintiff’s use of legal terminology and proper English. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se status does not relieve
Plaintiff of the duty to comply with various rules and procedures governing litigants and
counsel or the requirements of the substantive law and, in these regards, the Court will
treat Plaintiff according to the same standard as counsel licensed to practice law before
the bar of this Court. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden v.
San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994).
III. ANALYSIS
The Magistrate Judge recommends that: (1) Defendants’ Motion to Dismiss be
granted because the Court does not have personal jurisdiction over Defendants; and
(2) Plaintiff’s Motion to Amend be denied. (ECF No. 58.) Plaintiff objects to the
Recommendation in its entirety and argues that the Court has personal jurisdiction over
Defendants, and that she should be allowed to further amend her Complaint. (ECF No.
60.) As Plaintiff has objected to the entirety of the Recommendation, the Court will
review the Recommendation de novo. Fed. R. Civ. P. 72(b)(3).
A. Specific Jurisdiction

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As described above, a federal Court may exercise personal jurisdiction over
Defendants through either specific or general jurisdiction. In order to exercise specific
jurisdiction, the court must apply a two prong analysis: (1) “whether the defendant
purposefully availed himself of the privilege of conducting business in the forum state;”
and (2) “whether the litigation ‘arises out of’ the defendant’s forum-related contacts.”
Found. for Knowledge in Dev. v. Interactive Designs, 234 P.3d 673, 678 (Colo. 2010)
(quoting Archangel Diamond Corp., 123 P.3d at 1194). “This purposeful availment
requirement ensures that a defendant will not be haled into a jurisdiction solely as a
result of random, fortuitous, or attenuated contacts, or of the unilateral activity of
another party or a third person.” Rambo, 839 F.2d at 1419. “It is essential in each case
that there be some act by which the defendant purposefully avails itself of the privilege
of conducting activities within the forum State, thus invoking the benefits and
protections of its laws.” Id.
After a detailed analysis in the Recommendation, the Magistrate Judge found
that the Court does not have specific jurisdiction over the Defendants because any
contacts Defendants may have with Colorado are unrelated to the claims in this action.
(ECF No. 58 at 8-9.) The Court agrees. As described in the Recommendation,
Plaintiff’s unilateral decision to relocate to Colorado cannot serve as the basis for
specific jurisdiction over Defendants. (Id.) Further, no evidence before the Court
shows that Defendants purposefully availed themselves of the privilege of conducting
business in Colorado. (Id.) Accordingly, this Court may not exercise specific
jurisdiction over Defendants.

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B. General Jurisdiction
Even though the Court may not exercise specific jurisdiction here, the Court must
also look to see if it can exercise general jurisdiction over Defendants. “When a
plaintiff’s cause of action does not arise directly from a defendant’s forum-related
activities, the court may nonetheless maintain personal jurisdiction over the defendant
based on the defendant’s business contacts with the forum state.” Intercon, Inc. v. Bell
Atl. Internet Solutions, 205 F.3d 1244, 1247 (10th Cir. 2000). “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 1079
(quoting OMI Holdings, 149 F.3d at 1091). The Court may maintain general jurisdiction
over Defendants’ “when their affiliations with the State are so ‘continuous and
systematic’ as to render them essentially at home in the forum State.” Goodyear Dunlop
Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). For corporate entities
this is generally: (1) the place of incorporation; or (2) the principal place of business. Id.
at 2853-54.
The Court agrees with the Magistrate Judge that there is no basis to exercise
general jurisdiction over Defendants because they lack sufficient contacts with
Colorado. (ECF No. 58 at 14-15.) As detailed in the Recommendation, Defendants’
contacts with Colorado were not “continuous and systematic” as to allow the Court to
assert general jurisdiction. (Id.) Therefore, general jurisdiction is inapplicable here, and
no basis exists for the Court to exercise personal jurisdiction over Defendants.

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Accordingly, Defendants’ Motion to Dismiss is granted, and Plaintiff’s claims are
dismissed without prejudice.
C. Motion to Amend
Finally, Plaintiff’s Motion to Amend (ECF No. 45) was held in abeyance pending
the Court’s decision on Defendants’ Motion to Dismiss (ECF No. 56). Plaintiff’s Third
Amended Complaint, filed on January 20, 2012, is against the same previously named
Defendants and does not elaborate any further on the jurisdictional questions at issue.
(ECF No. 46.) As such, the Court agrees with the Magistrate Judge that allowing
Plaintiff to amend her Complaint would not change the Court’s inability to maintain
personal jurisdiction over Defendants. (ECF No. 58 at 15.) Therefore, Plaintiff’s Motion
to Amend is denied.
Plaintiff also notes in her Objection that Defendants moved this Court, in the
alternative to their Motion to Dismiss, to transfer venue to the Southern District of New
York. (ECF No. 60 at 20-21.) Plaintiff now requests the Court transfer venue instead of
dismissing her claims. (Id.) The Court declines to do so. However, nothing in this
Order prevents Plaintiff from refiling any of her claims against any Defendant in the
Southern District of New York or other appropriate jurisdiction.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s Objections (ECF No. 60) to the Magistrate Judge’s May 22, 2012
Recommendation (ECF No. 58) are OVERRULED and the Recommendation is
ADOPTED in its entirety;

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2.

Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 27) is
GRANTED;

3.

Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE; and

4.

Plaintiff’s Motion for Leave to Amend Second Amended Complaint (ECF No. 45)
is DENIED.
Dated this 28th day of August, 2012.
BY THE COURT:

William J. Martínez
United States District Judge

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