Alphagen Biotech v. Langoost Enterprises

Filing 29

MEMORANDUM DECISION granting 16 Motion to Dismiss for Lack of Jurisdiction ; denying 20 Motion for Extension of Time. Signed by Judge Ted Stewart on 05/30/2013. (asp)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

ALPHAGEN BIOTECH,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS FOR LACK
OF PERSONAL JURISDICTION
AND DENYING PLAINTIFF’S
MOTION FOR ADDITIONAL TIME
FOR LIMITED DISCOVERY
REGARDING PERSONAL
JURISDICTION

vs.

LANGOOST ENTERPRISES, LLC (DBA
APPLIED NUTRACEUTICALS) and JOHN
DOES 1-10,

Case No. 2:13-CV-15 TS

Defendant.

This matter is before the Court on a Motion to Dismiss for Lack of Personal Jurisdiction
filed by Defendant Langoost Enterprises, LLC (DBA Applied Nutriceuticals).1 Also before the
Court is Plaintiff Alphagen Biotech’s Motion for Additional Time for Limited Discovery

1

The caption names Defendant’s DBA as “Applied Nutraceuticals” but Defendant
indicates that the correct spelling is “Applied Nutriceuticals.”
1

Regarding Personal Jurisdiction. For the reasons discussed below, the Court will grant
Defendant’s Motion to Dismiss and deny Plaintiff’s Motion for Additional Time for Limited
Discovery Regarding Personal Jurisdiction.
I. BACKGROUND
Plaintiff Alphagen Biotech (“Alphagen”) is a Utah limited liability company, with its
principal place of business in Salt Lake City, Utah. Defendant Langoost Enterprises, LLC (DBA
Applied Nutriceuticals) (“Applied”) is a Delaware corporation with its principal place of
business in North Carolina.
Plaintiff Alphagen markets and sells dietary supplements, specifically a product called
SeroVax. Plaintiff alleges that SeroVax has been shown to increase human growth hormone
(“HGH”) levels in men and women. Defendant Applied sells a competing product called HGH
Up. Plaintiff alleges that Defendant has made false claims in its marketing of HGH Up.
Plaintiff brings claims against Defendant for false advertising in violation of the Lanham
Act, unfair competition in violation of the Lanham Act, and unfair competition in violation of
Utah’s Truth in Advertising Act. Plaintiff also seeks declaratory and injunctive relief.
The following facts are relevant to Defendant’s Motion to Dismiss and are found in the
Declaration and Amended Declaration of Pete Vas Dias.
Defendant has never had any offices in the state of Utah, has no business operations in
Utah, and is not registered to do business in Utah. Defendant does not own, lease, or control any
property in Utah. Defendant has never owned or otherwise controlled any asset in Utah, and has
never maintained any bank accounts in Utah. Defendant has never maintained any telephone or

2

fax listings in Utah. Defendant has never paid any taxes in Utah. In addition, none of
Defendant’s officers, directors, members, managers, employees, or agents have traveled to Utah
for business on behalf of Defendant in the past five years. Defendant has not entered into a
contract with a person in or a company headquartered in Utah. Finally, Defendant has not been
sued in Utah in the last 10 years, with the exception of this action.
Independent distributors—including e-tailers, retailers, and wholesalers—sell
Defendant’s products, including HGH Up. These distributors are entirely independent and
operate separately from Defendant. Defendant does not control when, where, or how these
distributors sell their products or which customers these distributors target. None of the
distributors is an exclusive distributor to Utah. However, certain distributors, including GNC
and Vitamin Shoppe, operate stores in Utah. At least one of these Utah stores sells HGH Up.
In response to this action, Defendant has attempted to gather information concerning sales
made by these distributors to customers in Utah. Defendant’s two largest distributors—Vitamin
Shoppe and Europa—have provided sales numbers. In 2012, Vitamin Shoppe sold 11,893 units
of HGH Up. Only 38 units were sold to Utah customers. Europa purchased 5,893 from
Defendant, and sold 96 units to customers in Utah. The sales to Utah customers made up 0.3%
of Vitamin Shoppe’s total HGH Up sales and 1.6% of Europa’s total HGH Up sales.
In addition to sales through independent distributors, Defendant offers its products for
sale on its website. Defendant’s internet sales make up only 2.7% of its total sales. Utah
residents can purchase products from Defendant’s website and can have those products shipped
to Utah. In the twelve months leading up to March 2013, Defendant sold $479.41 worth of

3

product to customers in Utah, making up 0.02% of Defendant’s total sales for that time period.
In that same time period, Defendant sold four units of HGH Up to customers believed to be
located in Utah. This makes up just 1.0% of Defendant’s total internet sales of HGH Up for that
time period.
II. PERSONAL JURISDICTION STANDARD
Plaintiff carries the burden of establishing personal jurisdiction over Defendant.2 “‘To
obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must
show that jurisdiction is legitimate under the laws of the forum state and that the exercise of
jurisdiction does not offend the due process clause of the Fourteenth Amendment.’”3 “It is
frequently helpful to undertake the due process analysis first, because any set of circumstances
that satisfies due process will also satisfy the long-arm statute.”4
“When the evidence presented on the motion to dismiss consists of affidavits and other
written materials, the plaintiff need only make a prima facie showing.”5 “The allegations in the
complaint must be taken as true to the extent they are uncontroverted by the defendant’s

2

Kuenzle v. HTM Sport-Und Freizeitgeräte AG, 102 F.3d 453, 456 (10th Cir. 1996).

3

Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th Cir. 1999)
(quoting Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1074 (10th Cir. 1995)).
4

Sys. Designs, Inc. v. New Customward Co., 248 F. Supp. 2d 1093, 1097 (D. Utah 2003).

5

Bell Helicopter Textron, Inc. v. Heliqwest Int’l, Ltd., 385 F.3d 1291, 1295 (10th Cir.

2004).
4

affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in the
plaintiff’s favor . . . .”6
To satisfy the constitutional requirement of due process there must be “minimum
contacts” between the defendant and the forum state.7 The “minimum contacts” standard may be
met by a finding of either general jurisdiction or specific jurisdiction. For general jurisdiction to
exist, “‘the defendant must be conducting substantial and continuous local activity in the forum
state.’”8 A court should consider the following factors in determining whether general
jurisdiction exists: (1) whether the corporation solicits business in the state through a local office
or agents; (2) whether the corporation sends agents into the state on a regular basis to solicit
business; (3) the extent to which the corporation holds itself out as doing business in the forum
state, through advertisements, listings or bank accounts; and (4) the volume of business
conducted in the state by the corporation.9 These activities must be continuous and systematic to
justify a finding of general jurisdiction.10
When the “defendant has ‘purposely directed’ his activities at residents of the forum,”
courts in that state may exercise specific jurisdiction in cases that “arise out of or relate to those

6

7

Kennedy v. Freeman, 919 F.2d 126, 128 (10th Cir. 1990).
World-Wide Volkswagen Co. v. Woodson, 444 U.S. 286, 291 (1980).

8

Soma, 196 F.3d at 1295 (quoting Arguello v. Woodworking Mach. Co., 838 P.2d 1120,
1122 (Utah 1992)).
9

Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1533 (10th Cir. 1996).

10

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984).
5

activities.”11 In order for the Court to find specific jurisdiction, there must be “some act by
which the defendant purposefully avails itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its laws.”12
If the Court finds that Defendant had adequate minimum contacts with the forum state,
the Court must also determine that personal jurisdiction is reasonable in light of the
circumstances surrounding the case or, in other words, that exercising jurisdiction would not
offend traditional notions of “fair play and substantial justice.”13 “Courts consider the following
factors to decide whether exercise of jurisdiction is reasonable: (1) the burden on the defendant;
(2) the forum state’s interest in resolving the dispute; (3) the plaintiff’s interest in receiving
convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most
efficient resolution of controversies; and (5) the shared interest of the several states in furthering
fundamental substantive policies.”14
III. DISCUSSION
A.

MOTION TO DISMISS
Defendant argues that it has insufficient contacts with Utah to allow the Court to exercise

personal jurisdiction. As stated, jurisdiction can be established by either general jurisdiction or
specific jurisdiction. Both will be discussed below.

11

Burger King v. Rudzewicz, 471 U.S. 462, 472-73 (1985).

12

Hanson v. Denckla, 357 U.S. 235, 253 (1958) (citation omitted).

13

Burger King, 471 U.S. at 476.

14

Bell Helicopter, 385 F.3d at 1296.
6

1.

General Jurisdiction

For general jurisdiction to exist, “‘the defendant must be conducting substantial and
continuous local activity in the forum state.’”15 These activities must be continuous and
systematic to justify a finding of general jurisdiction.16
Plaintiff argues that additional discovery is required to determine whether general
jurisdiction exists. To that end, Plaintiff has filed its Motion for Additional Time for Limited
Discovery Regarding Jurisdictional Issues. Based on this, Plaintiff does not argue for general
jurisdiction and the Court need not determine whether there is general jurisdiction over
Defendant. However, based on the evidence presented, there is insufficient evidence from which
the Court could find general jurisdiction. Therefore, the Court will consider whether specific
jurisdiction exists.
2.

Specific Jurisdiction

Plaintiff argues that the exercise of specific jurisdiction is appropriate for two reasons.
First, Plaintiff relies on Defendant’s website and the sales made through that website to Utah
customers. Second, Plaintiff points to sales made by Defendant’s independent distributors.
a.

Defendant’s Website

“Establishing jurisdiction through the Internet, or more specifically through a website, has
been analyzed by some courts under a framework of three general categories lying along a sliding

15

Soma, 196 F.3d at 1295 (quoting Arguello, 838 P.2d at 1122).

16

Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 416.
7

scale.”17 On one end of the scale is where a defendant clearly does business over the Internet,
such as entering into contracts which require the knowing and repeated transmission of files over
the Internet.18 Jurisdiction is proper in those cases.19 On the other end of the scale are passive
web sites that do little more than make information available to those who are interested.20
Exercising jurisdiction in these cases is inappropriate.21 A middle category encompasses
interactive web sites where a user can exchange information with the host computer.22 In this
category, whether jurisdiction is appropriate depends on the nature and level of interactivity.23
The Tenth Circuit “has not taken a definitive position on the Zippo sliding scale test” and has
noted that courts employing this test “tend to employ it more as a heuristic adjunct to, rather than
a substitute for, traditional jurisdictional analysis.”24
Plaintiff argues that Defendant operates an interactive website from which Utah residents
can purchase their products. This, Plaintiff argues, is sufficient to establish personal jurisdiction.
In support of this argument, Plaintiff relies heavily on a case from this District: Del Sol, L.C. v.

17

Xactware, Inc. v. Symbility Solution Inc., 402 F. Supp. 2d 1359, 1363 (D. Utah 2005)
(citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1123-24 (W.D. Pa. 1997)).
18

Zippo, 952 F. Supp. 2d. at 1123-24.

19

Id.

20

Id.

21

Id.

22

Id.

23

Id.

24

Shrader v. Biddinger, 633 F.3d 1235, 1242 n.5 (10th Cir. 2011).
8

Caribongo, LLC.25 In Del Sol, the Court found personal jurisdiction where the defendant’s
website provided “for a high level of interactivity” and “seamlessly allow[ed] a user to purchase”
its products.26 The Court found that “the nature of the website itself provides jurisdiction.”27
Here, as in Del Sol, Defendant operates an interactive website from which Utah residents
can purchase Defendant’s product. However, in Del Sol, there was “a nexus between the
products for sale on [the defendant’s] website and Plaintiff’s claims of copyright and trade dress
infringement. Moreover, by infringing on a Utah company’s mark, the brunt of any confusion
will be felt in Utah.”28 The same cannot be said here. There is no nexus between Plaintiff’s
claims and Defendant’s website. Further, the brunt of the injury associated with Plaintiff’s
claims is not centralized to Utah. Plaintiff alleges that Defendant has made false claims
regarding its product. The injury from these claims is not focused on Utah. The only connection
to Utah is that Utah is Plaintiff’s home state. This is insufficient to establish personal
jurisdiction in this case.
Within this district and elsewhere, “courts have looked to find ‘something more’ that
creates actual acts directed at the forum state other than the mere existence of an interactive
website.”29 Other courts have warned that “[c]ourts should be careful in resolving questions

25

2012 WL 530093 (D. Utah Feb. 17, 2012).

26

Id. at *4.

27

Id.

28

Id. at *5.

29

Xactware, Inc., 402 F. Supp. 2d at 1364.
9

about personal jurisdiction involving online contacts to ensure that a defendant is not haled into
court simply because the defendant owns or operates a website that is accessible in the forum
state, even if that site is ‘interactive.’”30 Thus, “[b]eyond simply operating an interactive website
that is accessible from the forum state, a defendant must in some way target the forum state’s
market.”31
In this case, there is not “something more” that would allow the Court to exercise
jurisdiction over Defendant based on its website. There is no evidence that Defendant uses its
website to somehow target Utah residents and the Amended Declaration of Pete Vas Dias
specifically states that the website does not target Utah residents. For example, there are no
special deals or offers made specifically to Utah residents. Further, Defendant has sold a de
minimus amount of product to Utah residents over the past year. This bolsters the conclusion
that Defendant has not done anything to specifically direct its activities to Utah. Therefore, the
Court cannot find that Defendant has purposefully directed its activities at residents of Utah
based on the operation of its website.

30

Illinois v. Hemi Grp., LLC, 622 F.3d 754, 760 (7th Cir. 2010).

31

be2 LLC v. Ivanov, 642 F.3d 555, 558-59 (7th Cir. 2011); see also Toys “R” Us, Inc. v.
Step Two, S.A., 318 F.3d 446 (3d Cir. 2003) (“[T]there must be evidence that the defendant
‘purposefully availed’ itself of conducting activity in the forum state, by directly targeting its web
site to the state, knowingly interacting with residents of the forum state via its web site, or
through sufficient other related contacts.”).
10

b.

Independent Distributors

Plaintiff also argues that Defendant’s sales through independent distributors are sufficient
to establish personal jurisdiction. Plaintiff does so by advancing a stream of commerce
argument.
In World-Wide Volkswagen Corp. v. Woodson, the Supreme Court held that “[t]he forum
State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction
over a corporation that delivers its products into the stream of commerce with the expectation
that they will be purchased by consumers in the forum State.”32 Thus, if the sale of a product
“arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the
market for its product in other States, it is not unreasonable to subject it to suit in one of those
States if its allegedly defective merchandise has there been the source of injury to its owner or to
others.”33
In Asahi Metal Industry Co., Ltd v. Superior Court of California,34 the Court considered
“whether the mere awareness on the part of a foreign defendant that the components it
manufactured, sold, and delivered outside the United States would reach the forum State in the
stream of commerce constitutes minimum contacts between the defendant and the forum State

32

444 U.S. at 297-98.

33

Id. at 297.

34

480 U.S. 102 (1987).
11

such that the exercise of jurisdiction does not offend traditional notions of fair play and
substantial justice.”35
In an opinion for four Justices, Justice O’Connor stated that “[t]he placement of a product
into the stream of commerce, without more, is not an act of the defendant purposefully directed
toward the forum State.”36 Rather, additional conduct was required. Justice O’Connor provided
several examples, including: “designing the product for the market in the forum State, advertising
in the forum State, establishing channels for providing regular advice to customers in the forum
State, or marketing the product through a distributor who has agreed to serve as the sales agent in
the forum State.”37 However, Justice O’Connor noted that “a defendant’s awareness that the
stream of commerce may or will sweep the product into the forum State does not convert the
mere act of placing the product into the stream into an act purposefully directed toward the forum
State.”38
Justice Brennan, also writing for four Justices, authored a competing concurring opinion.
Justice Brennan stated that “the placement of a product into the stream of commerce is consistent
with the Due Process Clause.”39
As long as a participant in this process is aware that the final product is being
marketed in the forum State, the possibility of a lawsuit there cannot come as a

35

Id. at 105 (quotation marks and citations omitted).

36

Id. at 112.

37

Id.

38

Id.

39

Id. at 117.
12

surprise. Nor will the litigation present a burden for which there is no
corresponding benefit. A defendant who has placed goods in the stream of
commerce benefits economically from the retail sale of the final product in the
forum State, and indirectly benefits from the State’s laws that regulate and
facilitate commercial activity. These benefits accrue regardless of whether that
participant directly conducts business in the forum State, or engages in additional
conduct directed toward that State.40
In J. McIntyre Machinery, Ltd. v. Nicastro,41the Supreme Court recently took the
opportunity to provide greater clarity to Asahi. J. McIntyre involved a products liability suit filed
in New Jersey after the plaintiff was injured using a metal-shearing machine manufactured by J.
McIntyre Machinery, Ltd. The facts used to support a finding of personal jurisdiction were: (1)
that an independent company agreed to sell J. McIntyre’s machines in the United States; (2) J.
McIntyre officials attended annual conventions in the United States where they advertised their
machines, though no convention ever took place in New Jersey; and (3) up to four J. McIntyre
machines ended up in New Jersey.
Based upon these facts, the New Jersey Supreme Court held that a New Jersey court
could “exercise jurisdiction over a foreign manufacturer of a product so long as the manufacturer
‘knows or reasonably should know that its products are distributed through a nationwide
distribution system that might lead to those products being sold in any of the fifty states.’”42
The Supreme Court rejected this conclusion. The Court stated that “[t]he principal
inquiry in cases of this sort is whether the defendant’s activities manifest an intention to submit
40

Id.

41

131 S.Ct. 2780.

42

Id. at 2785 (quoting Nicastro v. McIntyre Mach. Am., Ltd., 987 A.2d 575, 591 (N.J.

2010)).
13

to the power of a sovereign. In other words, the defendant must purposefully avai[l] itself of the
privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws.”43 “Sometimes a defendant does so by sending its goods rather than its
agents. The defendant’s transmission of goods permits the exercise of jurisdiction only where
the defendant can be said to have targeted the forum; as a general rule, it is not enough that the
defendant might have predicted that its goods will reach the forum State.”44 Thus, “it is the
defendant’s actions, not his expectations, that empower a State’s courts to subject him to
judgment.”45
The Court stated that “[t]he question is whether a defendant has followed a course of
conduct directed at the society or economy existing within the jurisdiction of a given sovereign,
so that the sovereign has the power to subject the defendant to judgment concerning that
conduct.”46 The following example was provided:
The owner of a small Florida farm might sell crops to a large nearby distributor,
for example, who might then distribute them to grocers across the country. If
foreseeability were the controlling criterion, the farmer could be sued in Alaska or
any number of other States’ courts without ever leaving town. And the issue of
foreseeability may itself be contested so that significant expenses are incurred just
on the preliminary issue of jurisdiction. Jurisdictional rules should avoid these
costs whenever possible.47

43

Id. at 2788 (quotation marks and citations omitted).

44

Id.

45

Id. at 2789.

46

Id.

47

Id. at 2790.
14

With these principles in mind, the Court considered the facts of the case before it:
The distributor agreed to sell J. McIntyre’s machines in the United States; J.
McIntyre officials attended trade shows in several States but not in New Jersey;
and up to four machines ended up in New Jersey. The British manufacturer had
no office in New Jersey; it neither paid taxes nor owned property there; and it
neither advertised in, nor sent any employees to, the State.48
The Court found that, while these facts may reveal an intent on behalf of J. McIntyre to
serve the U.S. market, “they do not show that J. McIntyre purposefully availed itself of the New
Jersey market.”49 The Court held: “At no time did petitioner engage in any activities in New
Jersey that reveal an intent to invoke or benefit from the protection of its laws.”50 Therefore,
New Jersey was “without power to adjudge the rights and liabilities of J. McIntyre, and its
exercise of jurisdiction would violate due process.”51
The facts of this case are similar. Defendant has entered into distribution agreements
with independent distributors, including wholesalers, e-tailers and retailers. Certain of these
distributors have made sales to consumers in Utah. However, Defendant states that these
distributors are entirely separate from Defendant and that it does not control where, when, or how
these distributors sell their products, or which customers they target. Plaintiff has provided
nothing to suggest that this statement is untrue. While the distributors have made limited sales to
Utah residents, there is nothing to suggest that Defendant has purposefully availed itself of the

48

Id.

49

Id.

50

Id. at 2791.

51

Id.
15

Utah market. Further, as with its internet sales, the sales made by independent distributors to
Utah customers have been minimal.
The cases cited by Plaintiff are distinguishable in that they all involve situations where
the defendants knew the products would be sold in specific markets. There is no such evidence
here. Therefore, the Court finds that the facts before it are insufficient to establish jurisdiction
and Defendant’s Motion to Dismiss must be granted.
3.

Fair Play and Substantial Justice

Even if the Court were to find that the Defendant had adequate minimum contacts with
the forum state, the Court must also consider whether personal jurisdiction is reasonable in light
of the circumstances surrounding the case, or, in other words, that exercising jurisdiction would
not offend traditional notions of “fair play and substantial justice.”52
“Courts consider the following factors to decide whether exercise of jurisdiction is
reasonable: (1) the burden on the defendant; (2) the forum state’s interest in resolving the
dispute; (3) the plaintiff’s interest in receiving convenient and effective relief; (4) the interstate
judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the
shared interest of the several states in furthering fundamental substantive policies.”53
[T]he analyses of minimum contacts and reasonableness are complementary, such
that the reasonableness prong of the due process inquiry evokes a sliding scale:
the weaker the plaintiff’s showing on [minimum contacts], the less a defendant
need show in terms of unreasonableness to defeat jurisdiction. The reverse is

52

Burger King, 471 U.S. at 476.

53

Bell Helicopter, 385 F.3d at 1296.
16

equally true: an especially strong showing of reasonableness may serve to fortify a
borderline showing of [minimum contacts].54
In this case, the Court finds that exercising jurisdiction over Defendant would offend
traditional notions of fair play and substantial justice. First, Defendant has presented evidence
that it would be burdened if forced to litigate in Utah. Defendant is a North Carolina corporation
and the majority of its witnesses and evidence are located there. Therefore, the Court finds that
this factor weighs in Defendant’s favor. Second, the Court finds that the State of Utah has little
interest in resolving this dispute. While Utah certainly has an interest in providing a forum for its
citizens, given the limited contacts that Defendant has had with the State and its citizens, this
interest is severely limited. Third, Plaintiff has an interest in receiving convenient and effective
relief in Utah. Therefore, this factor weighs in favor of Plaintiff. Finally, for substantially the
same reasons set forth above, the Court finds that the judicial system’s interest in obtaining the
most efficient resolution of controversies does not favor jurisdiction. Therefore, even if
Defendant had sufficient minimum contacts, the Court finds that exercising jurisdiction over
Defendant would offend traditional notions of fair play and substantial justice.
B.

MOTION FOR JURISDICTIONAL DISCOVERY
Plaintiff requests additional time to conduct additional discovery concerning personal

jurisdiction in the event the Court is inclined to grant Defendant’s Motion.

54

AST Sport Sci., Inc. v. CLF Distribution Ltd., 514 F.3d 1054 (10th Cir. 2008)
(alterations in original).
17

A trial court has discretion to refuse to grant discovery on the limited basis of personal
jurisdiction.55 “[A] refusal to grant discovery constitutes an abuse of discretion if the denial
results in prejudice to a litigant.”56 “Prejudice is present where ‘pertinent facts bearing on the
question of jurisdiction are controverted . . . or where a more satisfactory showing of the facts is
necessary.’”57 However, a court may deny jurisdictional discovery where the plaintiff has failed
to meet its burden of making a threshold prima facie case of personal jurisdiction.58
For substantially the same reasons set forth above, the Court will deny Plaintiff’s Motion
for Additional Time for Limited Discovery Regarding Personal Jurisdiction. Plaintiff has failed
to make a prima facie case of personal jurisdiction and there is nothing to indicate that additional
discovery would alter this conclusion. Further, the discovery sought is overly broad, unduly
burdensome, irrelevant to the issues before the Court, and/or has already been provided by
Defendant. Therefore, the Court will deny Plaintiff’s request for jurisdictional discovery.
IV. CONCLUSION
It is therefore
ORDERED that Defendant’s Motion to Dismiss (Docket No. 16) is GRANTED. It is
further
55

See World Wide Ass’n. of Specialty Programs & Schs. v. Houlahan, 138 F. App’x
50 (10th Cir. 2005) (unpublished opinion); Health Grades v. Decatur Mem’l
Hosp., 190 F. App’x 586, 589 (10th Cir. 2006) (unpublished opinion).
56

Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1326 (10th Cir. 2002).

57

Id. (quoting Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24
(9th Cir.1977)).
58

McNeill v. Geostar, 2007 WL 1577671, at *3 (D. Utah May 29, 2007).
18

ORDERED that Plaintiff’s Motion for Additional Time for Limited Discovery Regarding
Personal Jurisdiction (Docket No. 20) is DENIED.
The Clerk of the Court is directed to close this case forthwith.
DATED May 30, 2013.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

19