State of Utah v. Environmental Restoration, LLC et al

Filing 227

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson, denying 41 The Motion of Defendant Harrison Western Construction Corporation to DismissPlaintiff State of Utahs First Amended Complaint and denying 48 The Second Motion of Defendant Harrison Western Construction Corporation toDismiss Plaintiff State of Utahs First Amended Complaint Associated Cases: 1:18-md-02824-WJ, 1:18-cv-00319-WJ (meq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
IN RE: GOLD KING MINE RELEASE
IN SAN JUAN COUNTY, COLORADO,
ON AUGUST 5, 2015

No. 1:18-md-02824-WJ

This Document Relates to No. 1:18-cv-00319-WJ
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Motion of Defendant Harrison Western
Construction Corporation (“Harrison Western”) to Dismiss Plaintiff State of Utah’s First
Amended Complaint, Doc. 41, filed July 25, 2018 (“First Motion”), and on the Second Motion of
Defendant Harrison Western Construction Corporation to Dismiss Plaintiff State of Utah’s First
Amended Complaint, Doc. 48, filed August 3, 2018. For the reasons stated below, the Court
DENIES the motions.
Harrison Western moves the Court to dismiss Utah’s First Amended Complaint (“UT
FAC”) for lack of personal jurisdiction and for failure to state a claim. Harrison Western argues
that it did not have the minimum contacts with Utah which would allow the Court to exercise
personal jurisdiction over Harrison Western.
“[T]he ‘minimum contacts’ standard requires, first, that the out-of-state defendant must
have ‘purposefully directed’ its activities at residents of the forum state, and second, that the
plaintiff’s injuries must ‘arise out of’ defendant’s forum-related activities.” Dudnikov v. Chalk
& Vermilion fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir. 2008). There is purposeful direction
if (i) there is an intentional action, (ii) that was expressly aimed at the forum state, (iii) with
knowledge that the brunt of the injury would be felt in the forum state. See Dudnikov v. Chalk &
Vermilion fine Arts, Inc., 514 F.3d 1063, 1072 (10th Cir. 2008).

Harrison Western submitted the declarations of two of its employees to support its
motion to dismiss. The statements in the declarations indicate: (i) Harrison Western was a
subcontractor to Defendant Environmental Restoration, LLC (“ER”); (ii) Harrison Western was
working with ER to re-open the Gold King Mine in September, 2014, and Harrison Western
concluded that further excavation was unwise because the amount of impounded water was
likely greater than Harrison Western and ER were prepared to safely handle or treat; (iii) ER
agreed to cease any further excavation that year; (iv) Harrison Western prepared a revised plan to
re-open the Gold King Mine and provided the revised plan to ER; (v) no Harrison Western
employees returned to the Gold King Mine until August 17, 2015, which was 12 days after the
release; (vi) Harrison Western did not know that others excavated at the Gold King Mine in late
July 2015 and on August 4-5, 2015; (vii) based on review of photographs, the excavation on
August 4-5, 2015, substantially deviated from Harrison Western’s revised plan; (viii) the
Harrison Western employees learned of the August 5, 2015, release by watching news reports on
television on August 5, 2015; and (iv) the Harrison Western employees, based on their
experience and expertise with underground mine re-openings and rehabilitations, believed that
Harrison Western’s revised plan would have successfully and safely removed the impounded
water within the mine had Harrison Western been allowed the opportunity to supervise and direct
its implementation. See Doc’s 41-4 and 41-6.
Utah states that the accuracy of the factual statements in the declarations cannot be
ascertained at the pleading stage and that resolving the factual issues must await discovery and
the relevant responses of EPA and the other contractors. See Doc. 154 at 7.
Where there has been no evidentiary hearing, as in this case, and the motion to
dismiss for lack of jurisdiction is decided on the basis of affidavits and other
written material, the plaintiff need only make a prima facie showing that

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jurisdiction exists. All factual disputes are resolved in favor of the plaintiffs when
determining the sufficiency of this showing.
Rusakiewicz v. Lowe, 556 F.3d 1095, 1100 (10th Cir. 2009) (quotation marks, ellipses and
citations omitted).
Although the statements in the declarations appear to support Harrison Western’s
contentions that the Court does not have jurisdiction and that Utah cannot state a claim on which
relief may be granted, there has been no evidentiary hearing. Consequently, the Court must
resolve all factual disputes in favor of Plaintiff Utah. The allegations in Utah’s First Amended
Complaint, which in many cases refer only to the “Contractor Defendants” (ER, Weston
Solutions, and Harrison Western), make a prima facie showing that jurisdiction exists and state
claims upon which relief may be granted.
After an opportunity for discovery, Special Master Hon. Alan C. Torgerson shall hold an
evidentiary hearing and file proposed findings of fact regarding the Court’s personal jurisdiction
over Harrison Western. After the Court rules on any objections to the Special Master’s proposed
findings of fact, Harrison Western may file another motion to dismiss.
IT IS ORDERED that:
(i)

The Motion of Defendant Harrison Western Construction Corporation to Dismiss
Plaintiff State of Utah’s First Amended Complaint, Doc. 41, filed July 25, 2018,
is DENIED.

(ii)

The Second Motion of Defendant Harrison Western Construction Corporation to
Dismiss Plaintiff State of Utah’s First Amended Complaint, Doc. 48, filed
August 3, 2018, is DENIED.

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________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

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