Seng v. Americana Investments, LLC et al

Filing 106

ORDER adopting 91 Report and Recommendations, overruling 100] APPEAL OF MAGISTRATE JUDGE DECISION to District Court and granting in part and denying in part 17 Motion to Dismiss, by Judge Robert E. Blackburn on 8/20/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01745-REB-KMT
CHUN CHEE SENG,
Plaintiff,
v.
AMERICANA INVESTMENTS, LLC,
MARGARET V. ANDERSON-CLARKE,
ANDERSON-CLARKE LAW,
BRIAN D. WEST, and
WEST LAW GROUP, P.C.,
Defendants.

ORDER RE: RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the Recommendation of United States
Magistrate Judge [#91],1 filed July 28, 2014; and (2) Plaintiff’s Objection to the
Finding and Recommendation of the United States Magistrate Judge To Dismiss
Defendants Brian D. West and West Law Group P.C. [#100], filed August 6, 2014. I
overrule the objection, adopt the recommendation, and grant the apposite motion to
dismiss for lack of personal jurisdiction over the movants in this forum.
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
1

“[#91]” 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.

and well-reasoned. It is clear that there is no general personal jurisdiction over these
defendants in Colorado, and plaintiff does not argue otherwise. As for specific, personal
jurisdiction, it is true that Colorado has adopted the minority view in “show[ing] no
hesitation to exercise jurisdiction over out-of-state attorneys.” Newsome v. Gallacher,
722 F.3d 1257, 1280 (10th Cir. 2013) (citing Keefe v. Kirschenbaum & Kirschenbaum,
P.C., 40 P.3d 1267, 1272-73 (Colo. 2002)).2 Nevertheless, in applying this precept,
Colorado courts have done no more than allow a Colorado resident to sue its own outof-state attorney based on an ongoing relationship. See, e.g., Keefe, 40 P.3d at 1270;
Scheuer v. District Court, in and for City and County of Denver, 684 P.2d 249, 25152 (Colo. 1984); Waterval v. District Court in and for El Paso County, 620 P.2d 5, 8
(Colo. 1980). Plaintiff cites no authority, and the court has found none, that expands
this principle to allow a non-resident to sue a Colorado corporation’s out-of-state
attorney based on that attorney’s representation of his Colorado client. In these
circumstances, defendants’ contacts with this state are far too tenuous to satisfy the
requirements of due process.3
Plaintiff’s belated, alternative request – raised within the context of his objection –

2

The court in Newsome was interpreting Oklahoma law, and adopted the contrary, majority view
“that an out-of-state attorney working from out-of-state on an out-of-state matter does not purposefully
avail himself of the client's home forum's laws and privileges, at least not without some evidence that the
attorney reached out to the client's home forum to solicit the client's business.” Newsome, 722 F.3d at
1280-81.
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Even if such contacts were minimally sufficient to satisfy the first prong of the due process
analysis, I would find that the exercise of personal jurisdiction over defendants in this forum would offend
traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington,
Office of Unemployment Compensation and Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90
L.Ed. 95 (1945).

2

to transfer this case to the Eastern District of Virginia fails on at least three grounds.
First, matters raised for the first time in an objection are deemed waived. Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). Second, the local civil rules of this district
require that a motion be filed in a separate paper. D.C.COLO.LCivR 7.1(d). Third,
plaintiff’s bare bones invocation of the transfer statute, proffered without any effort to
show how the requirements of the statute are met in this case, see 28 U.S.C. § 1631
(permitting transfer to another federal district (1) in which suit could have been brought
originally (2) if the interests of justice require), creates no obligation on this court to
fashion appropriate arguments on plaintiff’s behalf, see Kaiser-Hill Co., LLC ex rel.
Diversified Technologies Services, Inc. v. MACTEC, Inc., 2006 WL 2348757 at *3
(D. Colo. Aug. 11, 2006).
I thus find and conclude that the arguments advanced, authorities cited, and
findings of fact, conclusions of law, and recommendation proposed by the magistrate
judge should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#91],4 filed
July 28, 2014, is APPROVED AND ADOPTED as an order of this court;
2. That the objections in Plaintiff’s Objection to the Finding and
Recommendation of the United States Magistrate Judge To Dismiss Defendants
Brian D. West and West Law Group P.C. [#100], filed August 6, 2014, are

4

“[#91]” 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.

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OVERRULED;

3. That Defendants Brian D. West and West Law Group P.C.’s Motion To
Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(6) and
Memorandum in Support [#17], filed September 3, 2013, is GRANTED IN PART and
DENIED AS MOOT IN PART as follows:
a. That the motion is GRANTED to the extent it seeks dismissal of
plaintiff’s claims against these defendants on the basis of lack of personal
jurisdiction in this forum; and
b. That in all other respects, the motion is DENIED AS MOOT;
4. That plaintiff’s claims against defendants, Brian D. West, and West Law
Group, P.C., are DISMISSED WITHOUT PREJUDICE;
5. That at the time judgment enters, judgment without prejudice SHALL
ENTER on behalf of defendants, Brian D. West, and West Law Group, P.C., and
against plaintiff, Chun Chee Seng, as to all claims for relief and causes of action
asserted against them in this action; and
6. That defendants, Brian D. West, and West Law Group, P.C., are DROPPED
as a named parties to this action, and the case caption AMENDED accordingly.
Dated August 20, 2014, at Denver, Colorado.
BY THE COURT:

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