Kopriva v. Thompson et al

Filing 33

ORDER denying 29 Defendant Robert C. Acri's Motion to Dismiss for Lack of Jurisdiction. Signed by Honorable Robin J. Cauthron on 11/7/14. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
EARL KOPRIVA,
Plaintiff,
vs.
GEOFFREY J. THOMPSON; NANCY
THOMPSON; GWS FINANCIAL
SERVICES, INC.; SYNERGISTIC
HOLDINGS, LLC; ACCELERA
INNOVATIONS, INC.; and ROBERT
C. ACRI,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case Number CIV-14-854-C

MEMORANDUM OPINION AND ORDER
Plaintiff filed the present action alleging breach of contract, as well as several state
law torts. According to Plaintiff, he loaned money to Geoffrey J. Thompson and Nancy
Thompson (“Thompson Defendants”), which has not been repaid. Plaintiff alleges that he
has attempted to work out several agreements with Defendants1 but despite many promises,
no payments have been made. Plaintiff recently filed an Amended Complaint naming
Defendant Acri. According to the Amended Complaint, Defendant Acri represented
Defendants in negotiating a Forbearance Agreement and those negotiations were directed at
Plaintiff while he was present in Oklahoma. Plaintiff alleges that in negotiating the
Forbearance Agreement, Defendant Acri worked in concert with Defendant Geoffrey
1

Plaintiff alleges Defendants GWS Financial, Synergistic Holdings, and Accelera
Innovations are entities owned or controlled by the Thompsons that were involved in various
agreements to repay the debt owed. Unless otherwise noted, the Court will refer to these
entities as well as the Thompsons as Defendants.

Thompson to attempt to persuade Plaintiff to drop a complaint filed with the Illinois
Department of Securities. Plaintiff also alleges that Defendant Acri is the alter ego of
Defendant Accelera and that Plaintiff was promised shares of Accelera as repayment of the
loan.
Defendant Acri seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(2), arguing the Court
cannot exercise personal jurisdiction over him. Defendant Acri argues that he has only been
in Oklahoma one time, when he traveled through the state while on vacation. Defendant Acri
asserts only one business dealing within the state on a matter wholly unrelated to the issues
in this lawsuit. Finally, Defendant Acri argues his only other connection to the state was
through telephone calls and e-mails with Plaintiff’s counsel.
The principles governing the disposition of jurisdictional motions to dismiss under
Rule 12(b)(2) are well settled. Generally, a plaintiff bears the burden of proof to establish
that jurisdiction over the parties is proper. In the context of pre-trial motions to dismiss
decided without a hearing, a plaintiff must make only a prima facie showing as to the
propriety of personal jurisdiction.
In ruling on motions under Rule 12(b)(2), the Court considers the
averments of the complaint, and the affidavits and other evidentiary materials
submitted by the parties. The well pled factual averments of the complaint are
accepted as true, unless controverted by defendants’ evidentiary materials.
Factual disputes arising from the evidentiary materials are resolved in favor of
plaintiffs.
McClelland v. Watling Ladder Co., 729 F.Supp. 1316, 1317-18 (W.D. Okla. 1990) (internal
citations and footnote omitted).

2

The issue is whether a defendant’s contacts with the forum state are adequate so that
any exercise of jurisdiction would not “offend ‘traditional notions of fair play and substantial
justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citations omitted). Here,
Plaintiff argues Defendant Acri’s contacts are adequate based on Acri’s participation in
negotiating the Forbearance Agreement, as that document gives rise to at least some of
Plaintiff’s claims against Acri. The Tenth Circuit has stated: “[A] court may, consistent with
due process, assert specific jurisdiction over a nonresident defendant ‘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.’” OMI Holdings, Inc. v. Royal
Ins. Co. of Canada, 149 F.3d 1086, 1090-1091 (10th Cir. 1998) (quoting Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal quotations omitted)). In analyzing a
defendant’s contacts in specific personal jurisdiction queries the court must determine if the
contacts “represent an effort by the defendant to ‘purposefully avail[] itself of the privilege
of conducting activities within the forum State.’” Rambo v. American S. Ins. Co., 839 F.2d
1415, 1419 (10th Cir. 1988) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
In light of the minimal prima facie showing required at this stage, the Court finds it
may exercise personal jurisdiction over Defendant Acri. Plaintiff has alleged facts which,
if proven, would demonstrate that Defendant Acri engaged in negotiations with Plaintiff
while Plaintiff was located in Oklahoma and that the substance of those negotiations gave
rise to the present litigation.

3

Plaintiff has made a prima facie showing of personal jurisdiction as to Defendant Acri.
Accordingly, Defendant Robert C. Acri’s Motion to Dismiss for Lack of Personal
Jurisdiction (Dkt. No. 29) is DENIED.
IT IS SO ORDERED this 7th day of November, 2014.

4