Wenz v. Memery Crystal

55 F.3d 1503, 1995 U.S. App. LEXIS 13461, 1995 WL 324627
CourtCourt of Appeals for the Tenth Circuit
DecidedMay 31, 1995
DocketNo. 94-1259
StatusPublished
Cited by300 cases

This text of 55 F.3d 1503 (Wenz v. Memery Crystal) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wenz v. Memery Crystal, 55 F.3d 1503, 1995 U.S. App. LEXIS 13461, 1995 WL 324627 (10th Cir. 1995).

Opinion

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiff, Robert L. Wenz, appeals the dismissal of his action against defendants, a London law firm and several of its partners, for lack of personal jurisdiction. We affirm.

BACKGROUND

We note at the outset that when the court’s jurisdiction is contested, the plaintiff has the burden of proving jurisdiction exists. McNutt v. General Motors, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Behagen v. Amateur Basketball Ass’n of the United States, 744 F.2d 731, 733 (10th Cir.1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171 (1985). In the preliminary stages of litigation, however, the plaintiffs burden is light. Doe v. National Medical Servs., 974 F.2d 143, 145 (10th Cir.1992). Where, as in the present case, there has been no evidentiary hearing, and the motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written material, the plaintiff need only make a prima facie showing that jurisdiction exists. Id.; FDIC v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir.1992); Behagen, 744 F.2d at 733. “The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant’s affidavits.” Id. If the parties present conflicting affidavits, all factual disputes must be resolved in the plaintiffs favor, and “the plaintiffs prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.” Id. However, only the well pled facts of plaintiffs complaint, as distinguished from mere conclusory allegations, must be accepted as true. Ten Mile Indus. Park v. Western Plains Serv. Corp., 810 F.2d 1518, 1524 (10th Cir.1987); Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976).

Moreover, because the district court’s determination involves an application of the law to the facts as set forth in the affidavits and complaint as well as a determination of the legal sufficiency of plaintiffs jurisdictional allegations in light of the facts presented, we review the district court’s decision de novo, and consider only those written submissions of the parties before the district court when it rendered the decision. Rambo v. American S. Ins. Co., 839 F.2d 1415, 1417 (10th Cir.1988); Ten Mile Indus. Park, 810 F.2d at 1524. Therefore, our task is to determine whether the plaintiffs allegations, as supported by affidavits, make a prima facie showing of personal jurisdiction. Rambo, 839 F.2d at 1417.

In light of these guidelines, we consider the following relevant facts. The defendants in this action include the London, England law firm of Memery Crystal, six of its present partners, and one of its former partners, David Connick. The plaintiff, Robert L. Wenz, maintained a residence in London, England from August 1985 to July 1991, [1506]*1506Wenz Aff. ¶ 1, during which time he became a client of Memery Crystal and engaged in some business transactions with the assistance of David Conniek. Crystal Aff. ¶ 12; Conniek AN. ¶¶ 5-6; Wenz Aff. ¶ 2. However, as of August 1991, Mr. Wenz became a resident of Colorado. Wenz Aff. ¶ 2.

The instant suit arose from the following transaction. Sometime during October 1991 David Conniek phoned from London to Mr. Wenz’s residence in Colorado informing Wenz of an investment opportunity in London. Specifically, Conniek told Wenz that certain London investors, Norris and Brooke-Taylor, were seeking funds for investment purposes. Wenz claims that Con-nick suggested that Wenz wire money to London to be placed in Wenz’s client trust account at Memery Crystal. Wenz Aff. ¶¶ 3-4. Wenz then wired to Conniek $200,000 from his bank in Colorado and $225,000 from Barclay’s Bank. Id. ¶ 5. Wenz alleges that it was “expressly or impliedly understood,” however, that Memery Crystal would not disburse funds from his account without his authorization. Compl. ¶ 12. Wenz claims that during October and November 1991 he and Conniek continued to be in telephone contact regarding the transfer of funds, and that these phone calls were initiated by both Wenz and Conniek. Wenz Aff. ¶ 7.

Additionally, on approximately November 3, 1991, Wenz travelled to London where he met with Conniek, Norris, and Brooke-Taylor, and engaged in discussions regarding the investors’ plans. See Appellant’s App. at 118; see also Wenz Aff. ¶ 13; Conniek Aff. ¶ 13. Although the precise subject matter of their negotiations is disputed, Wenz alleges that at no time during the negotiations or otherwise did he instruct Conniek or anyone at Memery Crystal to disburse or use the funds in his trust account. Wenz Aff. ¶ 8; see Appellant’s App. at 118. Despite the alleged lack of authorization, however, in approximately mid-November, Memery Crystal began withdrawing funds from Wenz’s trust account. Compl. ¶¶ 13-16, 18, 19. Wenz claims he was unaware that the funds in his trust account had been depleted until mid-1992. Wenz Aff. ¶ 12. At that time, and again in mid-1993, Wenz contacted Conniek and Memery Crystal in an effort to recover the “funds that had been converted without [his] authorization.” Id. When both of these attempts proved unsuccessful Wenz filed the present action. Id.1

According to the complaint, the sole dispute is over Memery Crystal’s disbursal of funds from Wenz’s client trust account located in London. The complaint alleges that Memery Crystal disbursed the funds without Wenz’s “knowledge, consent or authorization,” Compl. ¶¶ 12, 14, 16, 19, and that such wrongful disbursal constitutes negligence, breach of fiduciary duty, breach of contract, fraud, and theft. Id. ¶¶22, 26, 28-30, 32, 37. In response, the defendants filed a motion to dismiss for lack of personal jurisdiction claiming that they have not transacted business in Colorado, nor have they committed a tort in Colorado, and in any event the exercise of personal jurisdiction over them would violate the constitutional standard of due process. After hearing oral argument, the district court granted the motion and dismissed the case without prejudice. Appellant’s App. at 148.

DISCUSSION

Jurisdiction of the district court over a nonresident defendant in a suit based on diversity is determined by the law of the forum state. See Fed.R.Civ.P. 4(e); see also Omni Capital International v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 409, 98 L.Ed.2d 415 (1987); Rambo v. American S. Ins. Co.,

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55 F.3d 1503, 1995 U.S. App. LEXIS 13461, 1995 WL 324627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wenz-v-memery-crystal-ca10-1995.