Pleading and Challenging Long Arm Jurisdiction in the Colorado Courts
| Publication year | 1978 |
| Pages | 1938 |
1978, October, Pg. 1938. Pleading and Challenging Long Arm Jurisdiction in the Colorado Courts
Michael H. Berger, Denver, is associated with the firm of Bader & Dufty.
The continued growth in commerce and communications has greatly increased the frequency of interstate legal relations. This increase in interstate contacts has, in turn, led to a larger number of lawsuits between residents of different states. For this reason, it has become more important than ever for the general practitioner and business lawyer alike to have a fundamental understanding of how and when the courts of Colorado may exercise jurisdiction over the residents of another state.
This article initially discusses the formal requirements of pleading "Long Arm" jurisdiction in the Colorado courts so as to invest a Colorado court with jurisdiction over a non-resident defendant.(fn1) The remainder of the article deals with challenging an assertion of Long Arm jurisdiction and includes an analysis of current Colorado law as well as suggested tactics for maximizing the possibilities of a pre-trial adjudication of jurisdictional facts.
The question of whether a nonresident defendant's contacts with this state are sufficient to enable a Colorado court to exercise jurisdiction over him is discussed only in passing. This inquiry, by its nature, must proceed on a case-by-case basis. A great deal of guidance on this point is readily available in recent decisions of the Colorado Supreme Court.(fn2)
The statutory authority which enables a state court to exercise personal jurisdiction over a non-resident defendant is known generally as the "Long Arm" statute. Colorado's Long Arm statute(fn3) provides, as follows:
13-1-124. Jurisdiction of courts. (1) Engaging in any act enumerated in this section by any person, whether or not a resident of the state of Colorado, either in person or by an agent, submits such person, and, if a natural person his personal representative to the jurisdiction of the courts of this state concerning any cause of action arising from:
(a) The transaction of any business within this state;
(b) The commission of a tortious act within this state;
(c) The ownership, use, or possession of any real property situated in this state; or
(d) Contracting to insure any person, property, or risk residing or located within this state at the time of contracting.
The Colorado Supreme Court has con-
As a general rule, no jurisdictional allegation is required in suits brought in Colorado state district courts since those courts are courts of general jurisdiction.(fn6) There are exceptions to this rule, however, and the pleading of Long Arm jurisdiction is one of them. In Texair Flyers Inc. v. District Court,(fn7) the Colorado Supreme Court held:
Thus, the plaintiff relying upon the Long Arm statute must allege jurisdictional facts. A mere allegation that the court has jurisdiction over the defendant pursuant to the Long Arm statute is clearly insufficient to invest the court with jurisdiction and the process would be subject to a motion to dismiss or quash under C.R.C.P. 12(b)(2)[A]s we view the burden imposed upon one who seeks his remedy under the long-arm statute, he must allege in the complaint sufficient facts to support a reasonable inference that defendants engaged in conduct described in the statute which subjects them to in personam jurisdiction.(fn8)
Similarly, an allegation that the defendant transacted business in Colorado or committed a tort in Colorado is insufficient to invest Long Arm jurisdiction. The plaintiff must plead specific jurisdictional facts, and perhaps the most important of these facts is where the various alleged activities took place. For example, in Texair Flyers the plaintiff alleged, inter alia, that the defendant, a Texas corporation, was engaged in the business of renting and chartering aircraft; that the defendant was the owner of the aircraft which crashed; that the defendant rented the aircraft in Texas to the plaintiff's decedent for the purpose of a trip to Colorado; that the defendant was negligent in failing to properly maintain and repair the aircraft; that the aircraft crashed in Colorado; and that the aircraft crashed as a result of the negligence of the defendant. The Supreme Court held that the complaint alleged sufficient facts to bring the action within the ambit of the Long Arm statute. If all the references to location had been omitted, the complaint undoubtedly would have failed to properly allege Long Arm jurisdiction.
In Alliance Clothing Ltd. v. District Court(fn9) the plaintiff alleged that she fell while skiing in Colorado; that the fabric used in the ski parka and pants she was wearing were unreasonably dangerous and caused severe and permanent injuries as a result of her fall; that the defendant, a Hong Kong corporation, manufactured the ski pants; and, that the clothing was placed into the stream of commerce in Colorado. This complaint, as well, was held to allege sufficient facts for the attachment of Long Arm jurisdiction.
It should be noted that while in many cases the facts which establish a prima facie case of Long Arm jurisdiction will be identical to the facts establishing a prima facie case on the merits, this is not necessarily or always the case. For example, in Texair Flyers, an allegation of negligence by the defendant coupled with the allegation that the negligence of the defendant was the proximate cause of the crash and plaintiff's resulting damages would be sufficient to state a claim
Once the "Long Arm Complaint" is drafted it must be properly served on the defendant. The second part of the Long Arm statute(fn11) provides:
Service of process upon any person subject to the jurisdiction of the Courts of Colorado may be made by personally serving the summons upon the defendant outside this...
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