Advanced Career Technologies, Inc. v. John Does 1-10

Filing 41

ORDER granting 31 Defendant Daniel Drasin's Motion to Dismiss for Lack of Personal Jurisdiction. Plaintiff's claims against Defendant Daniel Drasin are DISMISSED WITHOUT PREJUDICE. The Court cannot definitively conclude on this record that amendment of the Complaint would be futile, Plaintiff may, on or before 2/13/2015 amend its Complaint should it be able to allege plausible, substantiated facts that would support personal jurisdiction over Defendant Daniel Drasin consistent wit h this Order. This action remains pending as to Plaintiff's claims against Defendants John Does 1-10. The stay previously imposed by United States Magistrate Judge Kristen L. Mix (ECF No. 40 ) is LIFTED. By Judge William J. Martinez on 1/23/2015.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-0304-WJM-KLM
ADVANCED CAREER TECHNOLOGIES, INC., a Delaware corporation,
Plaintiff,
v.
JOHN DOES 1-10, and
DANIEL DRASIN,
Defendants.

ORDER GRANTING DEFENDANT DANIEL DRASIN’S MOTION TO DISMISS

This matter is before the Court on Defendant Daniel Drasin’s (“Defendant”)
Motion to Dismiss Plaintiff’s Amended Complaint for lack of personal jurisdiction
(“Motion”). (ECF No. 31.) For the reasons set forth below, the Motion is granted.
I. BACKGROUND
Plaintiff Advanced Career Technologies, Inc. is a “career guidance service firm”
with a principal place of business in Colorado. (ECF No. 26 at 2-3.) Defendant, a
Maryland resident, maintains a web blog titled “Random Convergence” (“the Blog”),
which he allegedly used to defame Plaintiff and its related companies. (Id. at 2-5.) In
response, Plaintiff brought this action for violations of the Lanham Act, trade libel, and
violations of the Colorado Consumer Protection Act. (Id. at 8-10.) Plaintiff’s Amended
Complaint seeks relief against Defendant, who is the Blog’s administrator, and ten other
unidentified defendants who allegedly used the Blog to post defamatory statements
about Plaintiff. (Id. at 1-3.) On April 23, 2014, Defendant filed the instant Motion to

Dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2).
(ECF No. 31.)
II. LEGAL STANDARD
The purpose of a motion to dismiss pursuant to Rule 12(b)(2) is to test whether
the Court has personal jurisdiction over the named parties. The plaintiff bears the
burden of establishing personal jurisdiction over a defendant. Behagen v. Amateur
Basketball Ass’n, 744 F.2d 731, 733 (10th Cir. 1984). W hen the district court does not
hold an evidentiary hearing before ruling on jurisdiction, “the plaintiff need only make a
prima facie showing” of personal jurisdiction to defeat a motion to dismiss. Id. (citing
Am. Land Program, Inc. v. Bonaventura Uitgevers Maatschappij, N.V., 710 F.2d 1449,
1454 n.2 (10th Cir. 1983)). A prima facie showing is made where the plaintiff has
demonstrated facts that, if true, would support jurisdiction over the defendant. OMI
Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998).
To defeat the plaintiff’s prima facie case, a defendant “must present a compelling
case demonstrating ‘that the presence of some other considerations would render
jurisdiction unreasonable.’” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462,
477 (1985)). The Court will accept the well-pled allegations (namely, the plausible,
nonconclusory, and nonspeculative facts) of the complaint as true to determine whether
Plaintiffs have made a prima facie showing that personal jurisdiction exists. Dudnikov
v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). Any factual
conflicts must be resolved in the plaintiff’s favor. Wentz v. Memery Crystal, 55 F.3d
1503, 1505 (10th Cir. 1995).

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III. ANALYSIS
The Tenth Circuit has established a two-part test for personal jurisdiction: “First,
we ask whether any applicable statute authorizes service of process on defendants.
Second, we examine whether the exercise of statutory jurisdiction comports with
constitutional due process demands.” Dudnikov, 415 F.3d at 1070. “In a federal
question case . . . in which the federal statute at issue does not authorize nationwide
service, personal jurisdiction is determined according to the law of the forum state.”
Impact Prods., Inc. v. Impact Prods., LLC, 341 F. Supp. 2d 1186, 1189 (D. Colo. 2004)
(citing Fed. R. Civ. P. 4(k)(1)(A); SCC Commc’ns Corp. v. Anderson, 195 F. Supp. 2d
1257, 1260 (D. Colo. 2002)). In Colorado, the state’s long arm statute “confer[s] the
maximum jurisdiction permitted consistent with the Due Process Clause.” Archangel
Diamond Corp. v. Lukoil, 123 P.3d 1187, 1193 (Colo. 2005) (ref erring to Colo. Rev.
Stat. § 13-1-124). Thus, the Court need only address the constitutional question of
whether the exercise of personal jurisdiction over Defendants comports with due
process. Dudnikov, 514 F.3d at 1070 (10th Cir. 2008) (noting that the inquiry into
whether any statute authorizes service of process “effectively collapses into the second,
constitutional, analysis” in Colorado).
To determine whether personal jurisdiction is proper under the Constitution, a
court first looks to find minimum contacts with the forum state such that a defendant
“should reasonably anticipate being haled into court there.” World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297 (1980). The focus is on protecting a defendant’s
liberty interest in not being subject to “the binding judgments of a forum with which he

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has established no meaningful contacts, ties, or relations.” Burger King, 471 U.S. at
472 (quotations and citation omitted). “[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). If minimum contacts are established, the court then determ ines whether the
exercise of personal jurisdiction would be reasonable. Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945). The standard of reasonableness is measured by whether an
exercise of jurisdiction would offend “traditional notions of fair play and substantial
justice.” Id. at 320.
The minimum contacts analysis differs depending on whether it arises from
general or specific jurisdiction. OMI Holdings, 149 F.3d at 1090-91. A court may assert
specific jurisdiction “if the defendant has ‘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, 471 U.S. at 472 (internal citations and quotations
omitted). In the tort context, a defendant has “purposefully directed” his activities at
Colorado or its residents when he has (1) taken intentional action, (2) the action w as
“expressly aimed” at Colorado, and (3) the action was taken with the knowledge that
“the brunt of th[e] injury” would be felt in Colorado. Dudnikov, 514 F.3d at 1072
(quoting Calder v. Jones, 465 U.S. 783, 789-90 (1984)); see also Impact Prods., Inc.,
341 F. Supp. 2d at 1190. In contrast, general jurisdiction arises when a defendant
maintains “continuous and systematic contacts” with the forum state even when the

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cause of action has no relation to those contacts. Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984).
These general principles of personal jurisdiction are modified in cases involving
the internet. The internet operates in “every state regardless of where the user is
physically located, potentially rendering the territorial limits of personal jurisdiction
meaningless.” Shrader v. Biddinger, 633 F.3d 1235, 1240 (10th Cir. 2011). T o avoid
such a result, Tenth Circuit case law places an emphasis on whether the website or
internet user “intentionally direct[ed] his/her/its activity or operation at the forum state
rather than just having the activity or operation accessible there.” Id. (emphasis in
original). This standard derives from the Supreme Court’s holding in Calder that the
defendant’s conduct must have been “expressly aimed” at the forum state. Calder, 465
U.S. at 789-90; see also Dudnikov, 514 F.3d at 1072. W hile other courts have held that
the “expressly aimed” factor is satisfied “when the defendant individually targets a known
forum resident,” this Circuit has “taken a somewhat more restrictive approach.” Shrader,
633 F.3d at 1244. It is not enough that the Plaintiff is a resident of the forum and
suffered harm there. Id. Simply posting defamatory statements on a website will not,
standing alone, form a basis for personal jurisdiction against the poster in any state
where the post may be read. Id. at 1241. Instead, courts consider whether the
“defendant deliberately directed its message at an audience in the forum state and
intended harm to the plaintiff occurring primarily or particularly in the forum state.” Id. In
short, “the forum state itself must be the focal point of the tort.” Id. at 1244 (emphasis in
original) (quoting Dudnikov, 514 F.3d at 1074 n. 9) (internal quotation marks omitted).

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A.

Specific Jurisdiction
For specific jurisdiction to be proper, Plaintiff must prove that Defendant took an

intentional action that was expressly aimed at Colorado with knowledge that the brunt of
the injury would be felt in Colorado. Dudnikov, 514 F.3d at 1072. Plaintiff argues that
Defendant is subject to personal jurisdiction because he knew Plaintiff’s principal place
of business is in Colorado, and that Defendant designed the Blog to target Plaintiff and
its related companies. (ECF No. 32 at 1-3.) For the purposes of this Motion, the Court
accepts these allegations as true. Dudnikov, 514 F.3d at 1070.
Plaintiff’s allegations satisfy the first and third elements of the “purposeful
direction” test. See id. at 1072. Defendant’s creation of the Blog was clearly an
intentional act, as were his posts regarding Plaintiff. See Silver v. Brown, 382 F. App’x
723, 729 (10th Cir. 2010) (unpublished). It is also plausible that Def endant knew his
actions would have the greatest impact in Colorado since he knew Plaintiff was located
in Colorado and conducted its business there. Id. at 730. However, Plaintiff has failed
to establish that Defendant expressly aimed his conduct at Colorado. The “express
aiming” test requires the Court to focus on Defendant’s intentions, and asks: “[W ]here
was the ‘focal point’ of [his] purposive efforts”? Dudnikov, 514 F.3d at 1075. The Court
cannot agree that the focal point of Defendant’s conduct was Colorado.
With so few cases from this Circuit addressing the jurisdictional implications of
web blogs, the Court finds it instructive to discuss the two primary cases in this area,
which present contrasting factual scenarios.

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In Silver, the plaintiff and the defendant entered into a business relationship that
eventually failed, after which each alleged the other owed him money. 382 F. App’x at
724-25. The defendant then created a blog about the conflict with a domain name that
explicitly referenced the plaintiff and the name of his business. Id. at 725. The blog
informed readers that it was “dedicated to providing a blog and information regarding
Companies that have dealings with” the plaintiff to help them avoid them falling prey to
the plaintiff’s “scheme.” Id. The blog linked viewers to “reputable” competitors, and
employed search-engine optimization to increase readership. Id. at 725-26. Evidence
showed that the plaintiff’s business had significant ties to the forum state where he also
lived. Id. at 729-30.
The court held that the plaintiff had satisfied Calder’s three-part test for personal
jurisdiction. First, the posting of the blog was “clearly an intentional act” designed to
damage the plaintiff’s reputation. Id. at 729. Second, the defendant had expressly
aimed his conduct at New Mexico, where the plaintiff, his business, and the majority of
his customers were located. Id. “It was about a New Mexico resident and a New
Mexico company. The blog complained of [plaintiff’s] and [his business’s] actions in the
failed business deal. Those actions occurred mainly in New Mexico. And the blog was
widely available in New Mexico over the internet and all the various ways the internet
may be accessed in this day and age.” Id. at 729-30. Third, the defendant knew the
brunt of the plaintiff’s injury would be felt in New Mexico, as the state was
“unquestionably the center of his business activities.” Id. at 730. Thus, the court found
all three elements were satisfied.

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In Shrader, the plaintiff lived and worked in Oklahoma where he produced books
for market traders, which he sold through internet-based vendors. 633 F.3d at 1237-38.
The defendant posted a defamatory email about the plaintiff and his work on a market
traders’ internet forum. Id. at 1238.
The court found it lacked personal jurisdiction over the internet forum’s
administrators and the defendant who posted the e-mail on the forum. Id. at 1241-45.
The court held that the forum did not target an Oklahoma audience, the work of
Oklahoma writers, or the plaintiff personally. Id. at 1242. It instead targeted a trading
community with no particular connection to Oklahoma. Id. at 1245. With respect to the
defamatory post itself, the court found that Oklahoma was not the focal point of the
posted email, “either in terms of its audience or its content.” Id. at 1245. The e-mail
was about the plaintiff’s work that was “marketed and sold worldwide through the
internet . . . [with] nothing about the nature of the work inherently linking it to
Oklahoma—as there might be had [the plaintiff] been located in a trading center like
New York or Chicago and relied on that tie in producing or marketing his materials.” Id.
Unlike the plaintiff in Silver, the Shrader plaintiff “produced his materials in Oklahoma
because he happened to live there; his professional reputation in the trading community
was not tied to Oklahoma.” Id.
This case provides a closer analogue to Shrader than Silver. Like the plaintiff in
Shrader, the Plaintiff’s business does not appear to have any particular connection to
Colorado other than being its principal place of business. Plaintiff describes itself as a
“nationwide” company, and has not alleged that its customers are principally Colorado

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residents. (ECF No. 26 at 3.) Conversely, the Silver plaintiff had more meaningful ties
to the forum state, New Mexico, where he “founded the Venture Capital Club of New
Mexico and funded dinner meetings for eleven years, one evening a month at which
New Mexico entrepreneurs pitched their ‘deals' to angel investors.” 382 F. App’x at
730. In that case, both the plaintiff and his work were so significantly tied to the forum
state that any defamatory messages would have targeted an audience that included “a
substantial number of forum state residents and businesses.” Shrader, 633 F.3d at
1245. Plaintiff here has not shown that its professional reputation is so closely linked to
Colorado as to have a similar effect, or why Colorado would inherently be ground zero
for Defendant’s purposeful efforts.
Defendant’s knowledge that Plaintiff was a forum state resident does not change
the analysis. The “expressly aimed” portion of Calder, at least in this Circuit, is not
satisfied when a defendant “individually targets a known forum resident.” Id. at 1244.
Rather, under our “restrictive approach”, Colorado itself must have been Defendant’s
focal point. Id. The Court accepts as true that Defendant created the Blog solely to
defame Plaintiff, and that the Blog did in fact defame Plaintiff. However, the Court’s
review of Defendant’s posts, and the Blog generally, highlights the
“geographically-neutral content . . . [and] geographically-neutral nature of the forum.”
Id. at 1245-46. The Court therefore concludes that Defendant targeted the Blog and his
messages “at a nation-wide or world-wide audience . . . with no inherent interest in or
tie to” Colorado. Id. at 1246.

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Finally, the Court declines to attribute the posts of anonymous commentators to
Defendant, as Plaintiff urges. (ECF No. 32 at 6-7.) Once again, Shrader is instructive.
The plaintiff in Shrader sued the operators of a web forum for not interfering and
removing a defamatory email posted by someone else. 633 F.3d at 1241-42. The
court held that the operators might be subject to suit in the forum state of Oklahoma
based on the posted email had the forum itself been directed at Oklahoma. Id. at 1242.
That was not the case, however, and the court noted the forum’s “non-local nature.” Id.
The Court has already noted the same regarding Defendant’s Blog in this case.
Moreover, although Defendant may have solicited posts about Plaintiff (ECF No. 32-4
at 57), nothing indicates he encouraged posts about Plaintiff’s Colorado employees or
customers specifically, leaving the “geographically-neutral” content and nature of the
forum, insofar as Defendant’s activity is concerned, unchanged. The Court concludes
that Defendant is not subject to specific personal jurisdiction.
B.

General Jurisdiction
Plaintiff alleges that Defendant “profited directly from disparaging [it] and from

promoting” a competitor of Plaintiff, possibly subjecting Defendant to general jurisdiction
based on the Blog’s commercial activity. (ECF No. 32 at 5.) The bar for general
jurisdiction based on a web site’s commercial activity is “quite high.” Shrader, 633 F.3d
at 1243. Jurisdiction is denied absent “substantial sales” and the ty pe of commercial
contacts that “approximate physical presence in the state.” Id. (internal quotation marks
omitted). A defendant’s operation of a website will only subject it to general jurisdiction
when it “has actually and deliberately used its website to conduct commercial

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transactions on a sustained basis with a substantial number of residents of the forum.”
Id. (quoting Smith v. Basin Park Hotel, Inc., 178 F. Supp. 2d 1225, 1235 (N.D. Okla.
2001) (internal quotation marks omitted)).
Defendant avers that the only profit he received from the Blog’s operation was a
check for $100.00 after registering the Blog with Google Ads. (ECF No. 31-15 at 2.)
Defendant also maintains that Google determines what advertisements appear on the
Blog. (Id.) The Court must resolve all factual disputes in the Plaintiff’s favor. Wentz,
55 F.3d at 1505. Even so, the Plaintiff has failed to plausibly allege that Defendant
made any other profits from the Blog’s operation, or conducted any other commercial
activity using the Blog. Plaintiff’s general allegations that Defendant reaped other
profits through the Blog are insufficient to support general jurisdiction based on the
Blog’s commercial activity. (ECF No. 26 at 6-7.)
Nor is there any indication that Defendant sufficiently altered the “passive” nature
of the Blog so as to support general jurisdiction. Shrader, 633 F.3d at 1241-42 (citing
Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). The
website provided a medium that permitted an exchange of information, none of which,
as the Court has discussed, was directed by Defendant at Colorado. See id. The
required “continuous and systematic contacts with the forum state” are absent here.
Helicopteros, 466 U.S. at 416.
C.

Jurisdiction Based on Conspiracy
Lastly, Plaintiff alleges that Defendant, Plaintiff’s competitors, and the

unidentified posters on the Blog entered into a conspiracy to defame Plaintiff. (ECF

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Nos. 26 at 6-7 & 32 at 11.) The Court rejects Plaintiff’s attempt “to tie the [Defendant]
to the acts of the other defendants [and third parties] by alleging, in conclusory and
speculative fashion, a civil conspiracy to interfere with [its] business.” Shrader, 633
F.3d at 1242. “These are just the sorts of allegations Dudnikov directs us not to
consider, as it pointedly limits the facts that must be accepted for purposes of the
jurisdictional analysis to those well-pled (that is, plausible, non-conclusory, and
non-speculative) facts alleged in plaintiff[’s] complaint.” Id. (citing Dudnikov, 514 F.3d
at 1070 (internal quotation marks omitted)). Personal jurisdiction based on a
conspiracy theory exists where the plaintiff offers facts supporting a prima facie case
that a conspiracy existed, rather than “bare allegations.” Id. (citing Melea, Ltd. v. Jawer
SA, 511 F.3d 1060, 1069 (10th Cir. 2007); see also Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556–57 (2007) (holding conclusory allegation of conspiracy insufficient, even when
coupled with parallel conduct by defendants). Plaintiff has not met its burden.
IV. CONCLUSION
For the foregoing reasons, it is ORDERED that:
1.

Defendant Daniel Drasin’s Motion to Dismiss for lack of personal jurisdiction
(ECF No. 31) is GRANTED;

2.

Plaintiff’s claims against Defendant Daniel Drasin are DISMISSED WITHOUT
PREJUDICE;

3.

Because the Court cannot definitively conclude on this record that amendment of
the Complaint would be futile, Plaintiff may, on or before February 13, 2015,
amend its Complaint should it be able to allege plausible, substantiated facts that

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would support personal jurisdiction over Defendant Daniel Drasin consistent with
this Order;
4.

The Clerk and parties shall update the case caption in accordance w ith this
Order;

5.

This action remains pending as to Plaintiff’s claims against Defendants John
Does 1-10; and

6.

The stay previously imposed by United States Magistrate Judge Kristen L. Mix
(ECF No. 40) is LIFTED.
Dated this 23rd day of January, 2015.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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