Denver Urban Homesteading, LLC v. Dervaes Institute et al

Filing 64

ORDER Re: Objections to Recommendation of United States Magistrate Judge. The Recommendation of United States Magistrate Judge [# 49 ], filed February 28, 2014, is APPROVED AND ADOPTED IN PART and respectfully REJECTED IN PART. Defendants' Motio n To Dismiss or, in the Alternative, Motion To Transfer Venue for Inconvenient Forum [# 13 ], filed May 28, 2013, is GRANTED insofar as it seeks dismissal. All currently pending motions are DENIED AS MOOT. All pretrial deadlines and hearings, including the Trial Preparation Conference scheduled for May 15, 2014, at 2:30 p.m., and the trial scheduled to commence on June 2, 2014, are VACATED. By Judge Robert E. Blackburn on 3/26/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00917-REB-KMT
DENVER URBAN HOMESTEADING, LLC,
Plaintiff,
v.
DERVAES INSTITUTE,
JULES DERVAES, and
MIGNON RUBIO DERVAES,
Defendants.

ORDER RE: OBJECTIONS TO RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the Recommendation of United States
Magistrate Judge [#49],1 filed February 28, 2014; (2) Defendants’ Partial Objection
to the Magistrate Judge’s Proposed Findings and Recommendations on Motion
To Dismiss [#55], filed March 14, 2014; and (3) Plaintiff’s Objections to Magistrate’s
Findings and Recommendations [#56], filed March 14, 2014. I overrule plaintiff’s
objections and approve and adopt the recommendation insofar as it recommends
dismissing the Seventh, Eighth, and Ninth Claims for Relief asserted in the Complaint.
However, I sustain defendants’ objections to the extent they acknowledge that, in light
of the dismissal of those three claims, the court lacks personal jurisdiction over the

1

“[#49]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

remaining claims in this lawsuit. I therefore grant the motion dismiss for lack of personal
jurisdiction.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which objections have been filed, and have considered carefully the
recommendation, objections, and applicable caselaw. The recommendation is detailed
and well-reasoned. I agree with the magistrate judge that plaintiff’s claims for
intentional interference with contractual/business relations and interference with
prospective business/economic advantage are barred by limitations. See §13-80102(1)(a).2 I am no more persuaded than was the magistrate judge by plaintiff’s
suggestion that the continuing violation doctrine should apply to the facts or
circumstances of this case.
Moreover, I decline plaintiff’s invitation to construe these claims to assert
fraudulent misrepresentation, rather than invoking the plainly designated legal theories
clearly advanced in the complaint. Plaintiff is not representing itself pro se,3 and I thus
am neither required nor inclined to liberally construe its filings such as might require
consideration of the additional allegations of fraud set forth in its objections.4

2

I note that plaintiff is correct that its Seventh Claim for Relief states a claim for permanent
injunction, rather than a substantive claim of interference, as suggested by the magistrate judge.
Nevertheless, this “claim” falls along with the proper dismissal of the substantive Eighth and Ninth Claims
for Relief, alleging interference with plaintiff’s Facebook page, to which it is inextricably tied.
3

Nor could it. See Harrison v. Wahatoyas, LLC, 253 F.3d 552, 556–57 (10th Cir. 2001) (“As a
general matter, a corporation or other business entity can only appear in court through an attorney and not
through a non-attorney corporate officer appearing pro se.”). See also D.C.COLO.LAttyR 5(b) (when
withdrawing from representation of a corporate client, attorney must provide notice “that such entity may
not appear without counsel admitted to the bar of this court”).
4

Plaintiff’s previously filed motion to amend the complaint does not address or include any of the
factual allegations made in its objection. Nor can its inclusion of these allegations in its objections properly
constitute a motion to further amend the complaint. See D.C.COLO.LCivR 7.1(d)(“A motion shall not be

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Accordingly, I approve and adopt the magistrate judge’s recommendation insofar as it
recommends that the Seventh, Eighth, and Ninth Claims for Relief be dismissed for lack
of personal jurisdiction.
All remaining claims in this lawsuit implicate plaintiff’s allegations that defendants
committed fraud on the Patent and Trademark Office (“PTO”). Yet this was not the
basis on which plaintiff suggested – nor on which the magistrate judge found – that
personal jurisdiction over defendants in this forum was proper. Instead, both plaintiff
and the magistrate judge relied entirely on the Tenth Circuit’s decision in Dudnikov v.
Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008), in concluding that
defendants were subject to specific jurisdiction based on their alleged interference with
plaintiff’s social networking presence.
However, plaintiff has never argued nor attempted to establish that defendants
are subject to personal jurisdiction based on their alleged dealings with the PTO.5 The
court is thus presented with the question whether to assume pendant personal
jurisdiction over defendants as to the PTO claims:
Pendent personal jurisdiction, like its better known cousin,
supplemental subject matter jurisdiction, exists when a court
possesses personal jurisdiction over a defendant for one
claim, lacks an independent basis for personal jurisdiction
over the defendant for another claim that arises out of the
same nucleus of operative fact, and then, because it
possesses personal jurisdiction over the first claim, asserts

included in a response or reply to the original motion. A motion shall be made in a separate document.”).
In any event, the deadline for amendment of pleadings in this matter is long past (see Civil Scheduling
Order ¶ 9(a) at 6 [#24], filed July 10, 2013), and plaintiff’s objections do not argue, much less establish,
that good cause exists to permit amendment at this late date.
5

In addition, plaintiff has never argued that defendants are subject to general jurisdiction in

Colorado.

3

personal jurisdiction over the second claim. In essence,
once a district court has personal jurisdiction over a
defendant for one claim, it may “piggyback” onto that claim
other claims over which it lacks independent personal
jurisdiction, provided that all the claims arise from the same
facts as the claim over which it has proper personal
jurisdiction.
United States v. Botefuhr, 309 F.3d 1263, 1272 (10th Cir. 2002) (internal citations
omitted).
The problem here is that plaintiff’s remaining claims do not arise out of this same
nucleus of operative facts as those claims that are properly dismissed on limitations.6
Plaintiff insists that its Sixth Claim for Relief, seeking a declaration of noninfringement,
is sufficiently tied to the jurisdictional allegations presented in response to the motion to
dismiss to warrant the assumption of pendant personal jurisdiction over these remaining
claims. (See Plaintiff’s Response to Defendants’ Objections to the Magistrate’s
Findings and Recommendations [#63], filed March 25, 2014.) I am not persuaded.
Not only was this argument not advanced as a possible or alternative basis for personal
jurisdiction in response to the original motion to dismiss, but the complaint itself
specifically ties this claim to the Lanham Act claims asserted previously to it, not to the
claims alleging interference with plaintiff’s business relationships via Facebook. (See
Complaint ¶ 122 at 19 [#1], filed April 10, 2013.)

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Even if they had, the dismissal of those claims makes it patently clear that there is no longer
basis for assuming personal jurisdiction over defendants in this forum. Although the court has discretion
to retain such claims, the better practice in all but the most extraordinary of cases is to dismiss the claims
over which the court lacks an independent basis for personal jurisdiction. See Botefuhr, 309 F.3d at
1273-74.

4

More importantly, however, it is defendants’ contacts with this state that are
relevant to personal jurisdiction. Plaintiff’s putatively infringing use of the mark in
Colorado does not suggest that defendants – simply by seeking vindication of their
alleged rights in the mark – purposefully availed themselves of the laws and privileges
of this forum. See SIBU, Inc. v. Bubbles, Inc., 2011 WL 6028835 at *4 (D. Utah. Dec.
5, 2011) (defendant’s action to cancel plaintiff’s marks in the PTO did not establish
nexus to forum state: “If the cancellation action could be a nexus, Bubbles would be
subjected to jurisdiction in Utah by SIBU's actions in adopting its marks. This would shift
control of jurisdiction from the defendant.”); Impact Productions, Inc. v. Impact
Productions, LLC, 341 F.Supp.2d 1186, 1190 (D. Colo. 2004) (“As a general rule, . . .
a defendant's reasonable, good faith actions to protect its alleged rights, including
transmittal of cease and desist letters and litigation efforts against a forum resident, do
not constitute ‘express aiming’ at the forum sufficient to establish the constitutionally
required minimum contacts with the forum.”). The mere fortuity that plaintiff is located in
the forum has never been sufficient to support the assumption of personal jurisdiction
over a non-resident defendant. See Floyd’s 99 Holdings, LLC v. Jude’s Barbershop,
Inc., 898 F.Supp.2d 1202, 1208-09 (D. Colo. 2012) (citing, inter alia, Allison v. Wise,
621 F.Supp.2d 1114, 1121 (D. Colo. 2007)). I therefore will reject the magistrate
judge’s recommendation insofar as it implicitly suggests that personal jurisdiction –
original or pendant – exists as to these claims.
I thus find and conclude that the arguments advanced, authorities cited, and
findings of fact, conclusions of law, and recommendation proposed by the magistrate

5

judge should be approved and adopted insofar as it is recommended that plaintiff’s
Seventh, Eighth, and Ninth Claims for Relief be dismissed as barred by limitations. On
the other hand, I respectfully reject the magistrate judge’s recommendation to deny
defendants’ motion to dismiss for lack of personal jurisdiction over them in this forum.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#49], filed
February 28, 2014, is APPROVED AND ADOPTED IN PART and respectfully
REJECTED IN PART, as follows:
a. That the recommendation is APPROVED AND ADOPTED insofar as it
recommends that the Seventh, Eighth, and Ninth Claims for Relief
asserted in the Complaint [#1], filed April 10, 2013, be dismissed; and
b. That the recommendation respectfully is REJECTED insofar as it
implicitly recommends that the court assume personal jurisdiction over the
remaining claims in this lawsuit;
2. That the objections stated in Defendants’ Partial Objection to the
Magistrate Judge’s Proposed Findings and Recommendations on Motion To
Dismiss [#55], filed March 14, 2014, are SUSTAINED;
3. That the objections stated in Plaintiff’s Objections to Magistrate’s Findings
and Recommendations [#56], filed March 14, 2014, are OVERRULED;
4. That Defendants’ Motion To Dismiss or, in the Alternative, Motion To
Transfer Venue for Inconvenient Forum [#13], filed May 28, 2013, is GRANTED
insofar as it seeks dismissal;

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5. That plaintiff’s Seventh, Eighth, and Ninth Claims for Relief are DISMISSED
WITH PREJUDICE as barred by limitations;
6. That plaintiff’s First, Second, Third, Fourth, Fifth, and Sixth Claims for Relief
are DISMISSED WITHOUT PREJUDICE
7. That judgment SHALL ENTER on behalf of defendants, Dervaes Institute,
Jules Dervaes, and Mignon Rubio Dervaes, d against plaintiff, Denver Urban
Homesteading, LLC, as follows:
a. That judgment with prejudice shall enter as to plaintiff’s Seventh,
Eighth, and Ninth Claims for Relief; and
b. That judgment without prejudice shall enter as to plaintiff’s First,
Second, Third, Fourth, Fifth, and Sixth Claims for Relief;
8. That all currently pending motions are DENIED AS MOOT;
9. That all pretrial deadlines and hearings, including the Trial Preparation
Conference scheduled for May 15, 2014, at 2:30 p.m., and the trial scheduled to
commence on June 2, 2014, are VACATED; and
10. That defendants are AWARDED their costs, to be taxed by the clerk of the
court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated March 26, 2014, at Denver, Colorado.
BY THE COURT:

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