Browning v. Salmon ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 22, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DONALD WAYNE BROWNING,
Plaintiff - Appellant,
v. No. 04-1234
(D.C. No. 02-F-1636 (BNB))
MARY ELIZABETH SALMON; (D. Colo.)
WAYNE SALMON,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before EBEL, McCONNELL, and TYMKOVICH Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
In order for a federal district court to retain jurisdiction over a defendant,
the court must have subject-matter jurisdiction over the cause of action and
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
personal jurisdiction over the defendant. See Gadlin v. Sybron Int’l Corp., 222
F.3d 797, 799 (10th Cir. 2000). In the instant case, plaintiff/appellant Donald
Browning is suing defendants/appellees Mary and Wayne Salmon, his aunt and
uncle who reside in Indiana, in Colorado federal district court for monetary
damages allegedly arising from tortious interference with a contract between
Mr. Browning and his grandfather. Because we find no error in the district
court’s conclusion that the Salmons did not have minimum contacts with the state
of Colorado and that imposition of personal jurisdiction over them would violate
“‘traditional notions of fair play and substantial justice,’” R. Doc. 36 at 4
(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)), we affirm.
I.
We must first address the Salmons’ argument, made in a motion to dismiss
the appeal, that we have no jurisdiction to hear this appeal because Mr. Browning
failed to file his notice of appeal within thirty days of the district court’s May 4,
2004, order dismissing the case. See Fed. R. App. P. 4(a)(1)(A). “[T]he filing of
a timely notice of appeal is mandatory and jurisdictional,” and “we must
determine, as a threshold matter, whether the notice of appeal was timely.”
Trotter v. Regents of the Univ. of N.M. , 219 F.3d 1179, 1182 (10th Cir. 2000)
(quotation marks omitted).
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When the district court dismissed Mr. Browning’s complaint, it did not file
a separate judgment with its order. See Fed R. Civ. P. 58(a) (providing that
“[e]very judgment . . . must be set forth on a separate document,” with certain
exceptions not applicable here). In light of that omission, judgment is considered
entered 150 days after entry of the district court’s May 4, 2004, order. See Fed.
R. Civ. P. 58(b)(2)(B); Fed. R. App. P. 4(a)(7). “The Supreme Court has
recognized that the separate-document rule must be mechanically applied in
determining whether an appeal is timely.” Allison v. Bank-One Denver , 289 F.3d
1223, 1232 (10th Cir. 2002) (quotation marks omitted). “[A]bsent a formal
judgment, a district court’s order remains appealable.” Id. (quotation marks
omitted). Thus, the time to appeal did not begin to run until October 1, 2004.
The notice of appeal was filed in the district court on June 7, 2004, and is,
therefore, timely.
II.
The district court’s order regarding personal jurisdiction resulted in
relevant part from the Salmons’ motion to dismiss for lack of personal
jurisdiction, which they brought under Fed. R. Civ. P. 12(b)(2).
We review de novo the district court’s dismissal for lack of personal
jurisdiction. When the court’s jurisdiction is contested, the plaintiff
has the burden of proving jurisdiction exists. When, as in this case, a
district court grants a motion to dismiss for lack of personal
jurisdiction without conducting an evidentiary hearing, the plaintiff
need only make a prima facie showing of personal jurisdiction to
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defeat the motion. We resolve all factual disputes in favor of the
plaintiff in determining whether plaintiff has made a prima facie
showing. . . .
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.
Colorado’s long arm statute is coextensive with constitutional
limitations imposed by the due process clause. Therefore, if
jurisdiction is consistent with the due process clause, Colorado’s
long arm statute authorizes jurisdiction over a nonresident defendant.
. . . .The Due Process Clause protects an individual’s liberty
interest in not being subject to the binding judgments of a forum with
which he has established no meaningful contacts, ties, or relations.
Therefore, a court may exercise personal jurisdiction over a
nonresident defendant only so long as there exist minimum contacts
between the defendant and the forum state. . . . .
The minimum contacts standard may be met in two ways.
First, 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. . . . .
....
A specific jurisdiction analysis involves a two-step inquiry.
First we must consider whether the defendant’s conduct and
connection with the forum State are such that he should reasonably
anticipate being haled into court there. Second, if the defendant’s
actions create sufficient minimum contacts, we must then consider
whether the exercise of personal jurisdiction over the defendant
offends traditional notions of fair play and substantial justice.
Benton v. Cameco Corp ., 375 F.3d 1070, 1074-75 (10th Cir. 2004) (quotation
marks, brackets, and citations omitted), cert. denied , 125 S. Ct. 1826 (2005).
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It is undisputed that Mr. Browning’s grandfather and the Salmons were
residents of Indiana at the time of the Salmons’ allegedly tortious act.
Mr. Browning claims that the Salmons interfered with his grandfather’s oral offer,
made in Indiana in October 1992, to “provide” an unidentified condominium in
Denver for Mr. Browning if Mr. Browning would “accept medical treatment and
follow [the] advice of [his] psychiatrist.” R. Doc. 1, Att. 1. Mr. Browning claims
that, around March 1993 in Indiana, his aunt and uncle allegedly falsely told his
grandfather that Mr. Browning had not fulfilled the condition of the offer, and, as
a result, his grandfather never purchased a condominium for Mr. Browning before
the grandfather died in 2001.
Mr. Browning relies on a single alleged fact–that the purported oral
contract involved a promise to provide real property in Denver–to support his
claim that the Salmons had the requisite minimum contacts such that they should
reasonably have anticipated being haled into court in Colorado. But, as the
district court correctly pointed out, “the allegation of a lost expectation of
unidentified real property located in Colorado does not establish that the
defendants had minimum contacts with the forum state necessary for this Court to
assert personal jurisdiction over them,” R. Doc. 36 at 4-5, and Mr. Browning
sought monetary damages, not specific performance of a real estate contract, thus
making even more remote a possible impact on Colorado. See OMI Holdings, Inc.
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v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1092 (10th Cir. 1998) (noting that
“[p]urposeful availment requires actions by the Defendant which create a
substantial connection with the forum state”) (quotation marks omitted); Far West
Capital, Inc. v. Towne , 46 F.3d 1071, 1079 (10th Cir. 1995) (“[T]he mere
allegation that an out-of-state defendant has tortiously interfered with contractual
rights . . . does not necessarily establish that the defendant possesses the
constitutionally required minimum contacts.”). We agree with the district court
that the Salmons did not have the requisite minimum contracts with Colorado to
support the exercise of the Colorado federal district court’s jurisdiction over
them. The district court therefore properly dismissed the suit 1
.
Mr. Browning’s motion to proceed in forma pauperis is DENIED . The
Salmons’ motion to dismiss the appeal for lack of jurisdiction is DENIED . The
Salmons’ motion for damages pursuant to Fed. R. App. P. 38 is DENIED .
1
We need not address the issue whether the district court erred in holding
that it had no subject-matter jurisdiction over the case, as it is mooted by our
ruling on personal jurisdiction. See Gadlin, 222 F.3d at 799 (noting that court
may address issue of personal jurisdiction first).
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The judgment of the district court is AFFIRMED .
Entered for the Court
Michael W. McConnell
Circuit Judge
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