Opinion
Civil Action 20-cv-02783-CMA-KMT
08-12-2021
RALPH A. MITCHELL, JR., Plaintiff, v. AMY M. MOTAZEDI, MASSOUD MOTAZEDI, JEANNE M. PENNER, and BRIAN R. PENNER, individually and as CO-TRUSTEES OF THE TRUST FOR RALPH A. MITCHELL, JR., created under the Amendment and Restatement of Ralph A. Mitchell Revocable Trust, dated December 21, 2015, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kathleen M Tafoya United States Magistrate Judge
This case comes before the court on the “Motion to Dismiss Complaint Under Fed.R.Civ.P. 12(b)(2)” [Doc. No. 12] filed by Defendants Amy M. Motazedi, Massoud Motazedi, Jeanne M. Penner and Brian R. Penner, individually and as Co-Trustees of the Trust for Ralph A. Mitchell, Jr. (collectively, the “Co-Trustees”). Plaintiff, Ralph A. Mitchell, Jr. (“Mr. Mitchell”) filed a “Response in Opposition to the Motion to Dismiss Complaint Under Fed.R.Civ.P. 12(b)(2)” [Doc. No. 17], and the Co-Trustees filed a Reply [Doc. No. 18]. Discovery has been stayed pending ruling on the Motion. [Doc. No. 11.]
STATEMENT OF CASE
The following summary is taken from the Complaint, briefing on the motion to dismiss, and affidavits of the parties.
Ralph Mitchell, Sr. (“Ralph, Sr.” or the “Settlor”), Plaintiff's father, then a resident of Collier County, Florida, created a Revocable Trust in his home county and state on May 30, 1989. (Mot., Ex. 1, Affidavit of Brian R. Penner dated November 20, 2020, “Penner Aff.” at ¶¶ 3-4.) The trust at issue here, “Ralph's Trust, ” was created as part of the Ralph A. Mitchell Revocable Trust. (Penner Aff. at ¶ 1; Compl. [Doc. No. 1] ¶¶ 18-19. See Compl., Ex. A, Amendment and Restatement of Ralph A. Mitchell Revocable Trust (“Revocable Trust”) [Doc. No. 1-1] at Art. V.) Upon Ralph Sr.'s death, the Revocable Trust divided into shares for some of Ralph, Sr.'s children. (Compl. ¶ 18 and Ex. A at § 4.5). Plaintiff's share of the Revocable Trust was held in Ralph's Trust. (Compl. ¶¶ 6, 18, 19 and Ex. A at § 4.5.) Plaintiff is entitled to distribution of all of the Trust's income, and distributions of principal for his “health and maintenance in reasonable comfort.” (Compl., Ex. A at § 5.1.)
Ralph's Trust is administered in Florida by the Co-Trustees, the children and in-law children of Ralph Sr., who are Florida and Indiana residents. The Revocable Trust document specifies the duties and powers of the Co-Trustees in Section 7.8. (Compl., Ex. A.) The Revocable Trust document provides that, “The law of the State of Florida shall govern the validity and interpretation of the provisions of this instrument.” (Id. at § 7.19.) Defendants assert the parties have previously consented to Florida's jurisdiction over the trust's administration and affairs pursuant to Fla. Stat. § 736.0202. (Mot. at 2.)
The Co-Trustees have an investment advisory relationship with Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”), a Delaware corporation that is headquartered in New York, New York. (Penner Aff. at ¶ 12). The Trust assets and investments with Merrill Lynch are not located or custodied in Colorado. (Penner Aff. at ¶ 12.) Plaintiff alleges that “[a]ll or substantially all of the Trust assets are managed by Brien Mattingly, a Merrill Lynch Financial Advisor, located in Boulder, Colorado.” (See Compl. ¶12.) “The Co-Trustees make all investment decisions from Florida.” (Penner Aff. at ¶ 13.)
Plaintiff Mitchell, while residing in Colorado, submitted certain distribution requests to the Co-Trustees in Florida, for money to be taken from the principal held in Ralph's Trust. (See Compl. ¶¶ 26, 28, 30, 31, 32, 34, 36, 38; Resp. at 2-3.) The Revocable Trust provides that the Co-Trustees may “distribute funds income or principal which becomes payable to a beneficiary . . . as the trustee deems best . . . .” (Compl., Ex. A at § 7.8(j).) The Co-Trustees maintain Ralph's Trust operating checking account, from which all expenses and distributions are made, in Florida. (Penner Aff. at ¶ 14.) Plaintiff Mitchell alleges that his distribution requests were wrongfully denied either in part or in full by the Co-Trustees acting in Florida and Indiana, and that these denials of disbursements caused him harm in Colorado.
Defendants assert this court lacks personal jurisdiction over them pursuant to the Due Process Clause, for failure to show minimum contacts with the state supporting either general or specific personal jurisdiction. Further, Defendants claim that even if sufficient evidence were shown to support a finding of specific jurisdiction at this stage of the case, to exercise such jurisdiction would offend traditional notions of fair play and justice under these facts.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(2) provides that a defendant may move to dismiss a complaint “for lack of jurisdiction over the person.” Fed.R.Civ.P. 12(b)(2). Plaintiff bears the burden of establishing personal jurisdiction over the defendant. OMI Holdings, Inc. v. Royal Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998). In the preliminary stages of litigation, Plaintiff's burden is light. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). Where, as here, there has been no evidentiary hearing and the motion to dismiss for lack of personal jurisdiction is decided on the basis of affidavits and other materials, Plaintiff need only make a prima facie showing that jurisdiction exists. Id.
Nonetheless, Plaintiff “has the duty to support jurisdictional allegations in a complaint by competent proof of the supporting facts if the jurisdictional allegations are challenged by an appropriate pleading.” Pytlik v. Professional Res., Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989). The allegations in Plaintiff's complaint “ ‘must be taken as true to the extent they are uncontroverted by the defendant's affidavits.' ” Wenz, 55 F.3d at 1505 (quoting Doe v. Nat'l Med. Servs., 974 F.2d 143, 145 (10th Cir. 1992)). If the parties present conflicting affidavits, all factual disputes must be resolved in Plaintiff's favor, and “[P]laintiff's prima facia showing is sufficient notwithstanding the contrary presentation by the moving party.” Id. (citation omitted). Only well-pleaded facts, however, as opposed to mere conclusory allegations, must be accepted as true. Id.
To determine whether a federal court has personal jurisdiction over a nonresident defendant in a diversity action such as this one, the court looks to the law of the forum state. Taylor v. Phelan, 912 F.2d 429, 431 (10th Cir. 1990). In Colorado, the assertion of personal jurisdiction must both: (1) satisfy the requirements of the long-arm statute; and (2) comport with due process. Id.; Doering ex rel. Barrett v. Copper Mountain, Inc., 259 F.3d 1202, 1209 (10th Cir. 2001); Classic Auto Sales, Inc. v. Schocket, 832 P.2d 233, 235 (Colo. 1992).
To comport with due process, a defendant must have minimum contacts with the forum state such that maintenance of the lawsuit would not offend “traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The essential requirement of the minimum contacts rule is that “the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958) (discussing personal jurisdiction over a foreign trust operating outside the forum state).
Colorado's long-arm statute subjects a defendant to personal jurisdiction for engaging in-either in person or by agent-the “commission of a tortious act within this state, ” or the “transaction of any business within this state.” Colo. Rev. Stat. §§ 13-1-124(1)(a)-(b)(2007). Colorado's long-arm statute is a codification of the “minimum contacts” principle required by due process. See Lichina v. Futura, Inc., 260 F.Supp. 252, 254 (D. Colo. 1966) (“The Colorado ‘long-arm' statute was designed to codify the ‘minimum contacts' principle.”). Accordingly, under Colorado law, a court may assert jurisdiction to the fullest extent permitted by the Due Process Clause of the Fourteenth Amendment. See OMI Holdings, Inc., 149 F.3d at 1090; Scheuer v. Dist. Ct., 684 P.2d 249 (Colo. 1984).
ANALYSIS
A. Minimum Contacts
The Due Process Clause of the Fourteenth Amendment constrains a State's authority to bind a nonresident defendant to a judgment of its courts. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). Due process limits on the State's adjudicative authority principally protect the liberty of the nonresident defendant-not the convenience of plaintiffs or third parties. Walden v. Fiore, 571 U.S. 277, 284 (2014) (citing World-Wide Volkswagen Corp., 444 U.S. at 291-292).
To establish minimum contacts with the forum state, it is “essential . . . that there be some act by which the defendant[s] purposefully avail[ ] [themselves] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. at 253.
A minimum contacts analysis looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there. See, e.g., Int'l Shoe, 326 U.S. at 319 (due process “does not contemplate that a state may make binding a judgment in personam against an individual . . . with which the state has no contacts, ties, or relations”); Hanson, 357 U.S. at 251 (“However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts' with that State that are a prerequisite to its exercise of power over him.”)
The minimum contacts standard can be met in two ways. First, a court may assert specific jurisdiction over a nonresident defendant if the defendant has “purposefully directed” its activities at residents of the forum and the litigation results from the alleged injuries that arise out of or relate to those activities. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). In the context of specific jurisdiction, it bears repeating that the relationship to the forum state must arise out of contacts that the “defendant himself ” creates with the forum State. Id. at 475.
The second way the minimum contacts standard can be met in cases where a court's jurisdiction does not directly arise from a defendant's forum-related activities, is by way of general jurisdiction over the defendant based on the defendant's general business contacts within the forum state. See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 415 (1984).
Accordingly, the Supreme Court has upheld the assertion of personal jurisdiction over defendants who have purposefully “reach[ed] out beyond” their State and into another by, for example, entering a contractual relationship that “envisioned continuing and wide-reaching contacts” in the forum State, see Burger King, 471 U.S. at 479-480, or by circulating advertising or other material designed to “deliberately exploi[t]” a market in the forum State, see Keeton v. Hustler Mag., Inc., 465 U.S. 770, 781 (1984). In all cases, the defendant's own conduct must form the necessary connection with the forum State that is the basis for its jurisdiction over him. Walden, 571 U.S. at 285-86. See also Kulko v. Superior Court of Cal., City and County of San Francisco, 436 U.S. 84, 93, (1978) (declining to “find personal jurisdiction in a State . . . merely because [the plaintiff in a child support action] was residing there”); Rush v. Savchuk, 444 U.S. 320, 332 (1980) (“Naturally, the parties' relationships with each other may be significant in evaluating their ties to the forum. The requirements of International Shoe, however, must be met as to each defendant over whom a state court exercises jurisdiction.”); Burger King, 471 U.S. at 478 (“If the question is whether an individual's contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party's home forum, we believe the answer clearly is that it cannot”) (emphasis in original).
The plaintiff resides in Colorado; the Co-Trustee Defendants do not. Due process requires that the defendants be haled into court in Colorado based on their own affiliation with Colorado, not based on the “random, fortuitous, or attenuated” contacts they may make with the state simply by interacting with the plaintiff resident. Walden, 571 U.S. at 285-86; Burger King, 471 U.S. at 475.
1. Specific Jurisdiction
District Judge Christine M. Arguello stated in Spyderco, Inc. v. Kevin, Inc., No. 16-CV-03061-CMA-NYW, 2017 WL 2929548, at *2 (D. Colo. July 7, 2017),
The Supreme Court has developed a tripartite inquiry to determine whether a defendant purposefully directed its activities at a forum state: the presence of (a) an intentional act that was (b) aimed expressly at the forum state with (c) knowledge that the brunt of the injury would be felt in the forum state. Calder v. Jones, 465 U.S. 783, 789-90 (1984). The Tenth Circuit has interpreted the “express aim” element to signify that “the forum state itself must be the ‘focal point' ” of the tort. Dudnikov[v. Chalk & Vermilion Fine Arts, Inc.], 514 F.3d [1063] at 1075 & n. 9 [(10th Cir. 2008)] (quoting Far W. Capital, Inc. v. Towne, 46 F.3d 1071, 1080 (10th Cir. 1995)); see also Impact Prods., Inc. v. Impact Prods., LLC, 341 F.Supp.2d 1186, 1191 (D. Colo. 2004).Id. The simple fact that an out-of-state defendant has committed a tort that caused economic injury to a forum resident does not necessarily establish the requisite minimum contacts with the forum state. Id. at *3; Far W. Capital, Inc., 46 F.3d at 1077-80. The United States Supreme Court has specifically held that
[t]he plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant's conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him.Walden, 571 U.S. at 285. See also AST Sports Sci., Inc. v. CLF Distribution Ltd., 514. F.3d 1054, 1058 (10th Cir. 2008) (“The purposeful availment requirement also ensures that a defendant will not be subject to the laws of a jurisdiction ‘solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or a third person.' ”) (quoting Benally v. Amon Carter Museum of W. Art, 858 F.2d 618, 625 (10th Cir. 1988) (emphasis added)).
In this case, Plaintiff has chosen to live in Colorado. Both his father's Revocable Trust and Ralph's Trust are Florida trusts. The Settlor of both trusts was a Florida resident. Both trusts have always been administered, with the consent of all parties and according to the terms of the trust documents, in Florida and subject to Florida law. All administrative activities for the Trust occurred in either Florida or Indiana, including accounting and reporting; maintenance of records; completion and filing of tax returns; payment of bills and expenses; and, particularly relevant to this matter, distribution and investment decisions. (Penner Aff. at ¶ 10.) All the complained of activities cited by Plaintiff as supporting personal jurisdiction over the Defendants occurred solely and only because Plaintiff has chosen to live in Colorado.
Plaintiff, himself, is the only link between the Co-Trustees and Colorado. The Co-Trustees have not expressly aimed any activity undertaken as Co-Trustees of Ralph's Trust at Colorado; rather they have only directed activity-in this case denial or partial denials of requests for disbursement-at Plaintiff wherever he chooses to reside. See Allison v. Wise, 621 F.Supp.2d 1114, 1121 (D. Colo. 2007) (“[c]omplaint evidences nothing more than that the economic impact of [defendant's tort] is felt by plaintiff here in Colorado. Such a circumstance is based on the mere fortuity that plaintiff happens to reside here, and is patently insufficient to permit the assumption of personal jurisdiction over [defendant] in this forum”). See also Far W. Capital, 46 F.3d at 1078 (“[w]hen a defendant intentionally takes some action with the knowledge that the result will be harm to a specific victim in another state, the picture involves more than mere foreseeability or the likelihood that fortuitous and undirect conduct will have an effect in the state.”); Burger King, 471 U.S. at 474 (holding mere foreseeability of out-of-state resident causing injury in Colorado insufficient for exercise of personal jurisdiction).
Plaintiff notes that “each of [the Co-Trustees] may” have a presence in Colorado by virtue of vacation property that may be owned by two Co-Trustees. (See Resp. at 9.) Plaintiff does not, however, provide any facts or allegations that the Co-Trustees have an ongoing or active presence in Colorado or why ownership of an unrelated asset, if true, would have any bearing on the factors associated with due process.
The Tenth Circuit has repeatedly interpreted the “express aim” element to signify that “the forum state itself must be the focal point of the tort.” Dudnikov, 514 F.3d at 1075 & n.9 (internal quotations omitted); Far W. Capital, Inc., 46 F.3d at 1080.) Since there is no evidence presented by Plaintiff that would support the allegation that the Co-Trustees independently expressly aimed tortious conduct at Colorado, this court finds that the elements required to exercise specific jurisdiction over the defendants have not been met.
Both federal and state courts in Colorado have long followed the same analysis. See Impact Prods., Inc., 341 F.Supp.2d at 1191(“[T]hat [defendant] may have infringed on [plaintiff's] mark outside of Colorado, and did so knowing that [plaintiff] was a Colorado resident and that this infringement would have effects in Colorado, is not sufficient to demonstrate ‘express aiming' at this forum.”); Nat'l Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F.Supp.2d 1250, 1255 (D. Colo. 2000) (holding that loss of profits sustained by Colorado resident as a result of tortious conduct of nonresident in another state did not constitute injury so as to subject nonresident to jurisdiction under the long-arm statute), aff'd, 16 Fed.Appx. 959, 2001 WL 912796 (10th Cir. 2001); GCI 1985-1 Ltd. v. Murray Properties P'ship, 770 F.Supp. 585, 590 (D. Colo. 1991) (dismissing claims against a nonresident defendant for lack of personal jurisdiction where the alleged loss of anticipated profits injured the plaintiff in Colorado “only as a result of the fortuitous circumstance that [the plaintiff] maintained its headquarters in Colorado”); Amax Potash Corp. v. Trans-Resources, Inc., 817 P.2d 598, 600 (Colo.App. 1991) (“when both the tortious conduct and the injury occur in another state, the fact that plaintiff resides in Colorado and experiences some economic consequences here is insufficient to confer jurisdiction on a Colorado court”) (citing McAvoy v. Dist. Court, 757 P.2d 633 (Colo. 1988)); Gognat v. Ellsworth, 224 P.3d 1039, 1053 (Colo.App. 2009) (same).
2. General Jurisdiction
General jurisdiction may exist in the absence of specific jurisdiction. “[B]ecause general jurisdiction is not related to the events giving rise to the suit, courts impose a more stringent minimum contacts test, requiring the plaintiff to demonstrate the defendant's continuous and systematic general business contacts.” OMI, 149 F.3d at 1091 (internal quotation marks omitted). Personal jurisdiction is general, allowing the assertion of any claim against the defendant where the defendant's contacts with the forum state are “so ‘continuous and systematic' as to render them essentially at home in the forum.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (quoting Int'l Shoe Co., 326 U.S. at 317).
The evidence supporting Defendants' contacts with Colorado for the purpose of general jurisdiction is slim. First, Plaintiff asserts that two of the Co-Trustees may have ownership of completely unrelated vacation property in Colorado. However, the Co-Trustees are undisputedly not domiciled in Colorado. (Compl. ¶¶ 2-5, the Co-Trustees are not domiciled in the State of Colorado but rather are “citizens” of Florida and Indiana.) In the context of general jurisdiction, “only a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there[, ]” which for an individual “the paradigm forum for the exercise of general jurisdiction is the individual's domicile; . . .” Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (quoting Goodyear Dunlop Tires Ops., S.A. 564 U.S. at 922-26.) “Outside of those paradigm all-purpose forums, a [defendant's] affiliations with the State must be so continuous and systematic as to render [it] essentially at home in the forum state.” Murphy v. Aaron's, Inc., No. 19-cv-00601-CMA-KLM, 2020 WL 2079188, *12 (D. Colo. April 30, 2020) (citations and quotations omitted) (concluding defendant's operation of several stores in Colorado is insufficient to render defendant “at home” in forum).
Plaintiff also argues in favor of general personal jurisdiction, that the Co-Trustees receive investment advice concerning the Ralph's Trust assets from an employee of Merrill Lynch who happens to reside in Boulder, Colorado. (Compl. ¶12.) Merrill Lynch itself is a Delaware corporation whose primary offices are in New York, New York. (Penner Aff. At ¶ 12.) As noted supra, the assets and investments of Ralph's Trust held with Merrill Lynch are not located or custodied in Colorado (id.). and the Co-Trustees make all investment decisions, with or without investment advice from Merrill Lynch, in Florida. (Id. at ¶ 13.) Additionally, the court notes that this case does not involve any allegations concerning investments and investment decisions made by the Co-Trustees, regardless of whether any investment/lack of investment was deemed “good” or “bad” or was made/not made with Merrill Lynch's advisal. Nor does it involve any claim about the management of the assets contained in the Ralph's Trust accounts, except to the extent the Co-Trustees did not disburse funds to Plaintiff. There are no allegations in the Complaint that any actions of the Merrill Lynch employee who merely fortuitously lives in Colorado, had anything whatsoever to do with whether distributions would be paid to Plaintiff from Ralph's Trust. Accordingly, this information must be disregarded. See Ten Mile Indus. Park v. Western Plains Serv. Corp., 810 F.2d 1518, 1524 (10th Cir. 1987)(by merely signing participation agreements regarding loans that might affect property in Wyoming, parties did not purposefully avail themselves of the privilege of conducting activities in the forum state). Mr. Mattingly's residence in Colorado is merely fortuitous. Benally, 858 F.2d at 625 (third party residence in forum state merely fortuitous).
There is no evidence of a continuous and systematic activity in Colorado on the part of the Co-Trustee defendants except as directed toward Plaintiff and disbursements from Ralph's Trust. The court therefore finds that the defendants have not manifestly availed themselves of the privilege of conducting business in the State such as would support the elements required for general jurisdiction.
B. Fair Play and Substantial Justice
This “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.” Benton v. Cameco Corp., 375 F.3d 1070, 1079 (10th Cir. 2004) (quoting OMI, 149 F.3d at 1091). In this case, the Co-Trustees' alleged contacts with Colorado outside the payment/lack of payment to Mr. Mitchell as beneficiary of a Florida trust, boil down to two items-Plaintiff's residence in Colorado and the Co-Trustees' relationship with a Merrill Lynch advisor who is not involved in any way with the decisions made by the Co-Trustees to disburse or not disburse funds to the Colorado beneficiary. This court has found the minimum contacts are insufficient to carry the jurisdictional prerequisite.
The reasonableness analysis requires the weighing of five factors: (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 social policies. ClearOne Commc'ns, Inc. v. Bowers, 643 F.3d 735, 765 (10th Cir. 2011).
Notwithstanding that two of the Co-Trustees may own vacation property in Colorado, none of them live in Colorado, none of them conduct business in Colorado, none of them administer the Trust in Colorado, and none of them have any other continuous presence in Colorado. (Penner Aff. at ¶¶ 9-10.) The Co-Trustees who are in charge of managing a Florida trust under Florida law, face a significant burden in litigating claims in Colorado, a state where they have virtually no connection. While Plaintiff argues that he would be equally burdened by litigating the case in Florida, the Plaintiff's burden, if any, is not part of the five factor reasonableness analysis. Therefore, this factor weighs in favor of declining jurisdiction in Colorado.
Questions concerning the validity and interpretation of Ralph's Trust and the merits of the Co-Trustees' actions are governed by Florida law. (Compl. ¶ 14; see Colo. Rev. Stat. § 15-5-107 (meaning and effect of the terms of a trust are governed by the law designated in the trust); Fla. Stat. § 736.0107 (same). Accordingly, Colorado, as a state, has minimal interest, if any, in adjudicating this dispute. See Benton, 375 F.3d at 1079 (state's interest in adjudicating a resident's claims involving application of foreign law does not weigh heavily in favor of either party). This factor weighs in favor of declining jurisdiction in Colorado.
Clearly, Plaintiff can receive convenient and effective relief in the Florida courts, where the trust was set up, management of the trust occurs. and the trust documents provide that forum's law controls. Plaintiff's chances of recovery will not be affected in any way by requiring him to litigate in Florida since Florida law would have to be applied in either jurisdiction. See OMI, 149 F.3d at 1097. It is undisputed by the parties that no issues regarding personal jurisdiction would be present if the case were brought in Florida. See Florida Trust Code, Fla. Stat. § 736.0202, “Jurisdiction over trustee and beneficiary.” The third factor weighs in favor of declining jurisdiction in Colorado.
The keys to the fourth factor, whether the forum state is the most efficient place to litigate the dispute, “are the location of witnesses, where the wrong underlying the lawsuit occurred, what forum's substantive law governs the case, and whether jurisdiction is necessary to prevent piecemeal litigation.” OMI, 149 F.3d at 1097. Here Plaintiff, who will no doubt be a witness, resides in Colorado, so this forum is convenient for him. But the remainder of the witnesses, the Co-Trustees, are located in Florida and Indiana. The Co-Trustees' alleged misconduct occurred in Florida, the principal place of administration of the Florida trust, and will be adjudicated under Florida law. (Compl. ¶ 14) Colo. Rev. Stat. § 15-5-107; Fla. Stat. § 736.0107. Finally, the exercise of jurisdiction in Colorado is not necessary to avoid piecemeal litigation, particularly considering the parties have otherwise previously consented to jurisdiction in Florida. where all issues among and between the parties can be resolved. Fla. Stat. § 736.0202. Accordingly, the fourth factor weighs in favor of declining jurisdiction in Colorado.
Given the issues here, the court see no relevance of the Merrill Lynch investment advisor as a witness.
As to the fifth factor, again the central issue is that this case must be decided under Florida law. This factor “focuses on whether the exercise of personal jurisdiction by [the forum] affects the substantive social policy interests of other states . . . .” AST Sports Sci., 514 F.3d at 1062. If the case remains in Colorado, it means that Colorado will interpret Florida law instead of allowing Florida to interpret its own substantive law. Florida has a sovereign interest in interpreting its own laws. Emps. Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1164 (10th Cir. 2010). This factor weighs in favor of declining jurisdiction in Colorado.
The court finds that it would offend traditional notions of fair play and substantial justice to subject the Co-Trustees to jurisdiction of this Colorado court.
Based on all the foregoing, this court finds that this Colorado District Court lacks any basis to assert personal jurisdiction over the Co-Trustee defendants.
WHEREFORE, for the foregoing reasons, this court respectfully RECOMMENDS that the defendants' “Motion to Dismiss Complaint Under Fed.R.Civ.P. 12(b)(2) [Doc. No. 12] be GRANTED.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).