Case 1:15-cv-02418-MEH Document 35 Filed 03/09/16 USDC Colorado Page 1 of 41
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Civil Action No. 15-cv-02418-MEH
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`VICTOR CEJKA,
`JAMES WALKER,
`STEVEN WASCHER,
`JAMIE LYTLE, and
`PAUL CROSS,
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`Plaintiffs,
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`v.
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`VECTRUS SYSTEMS COMPORATION, f/k/a Exelis Systems Corporation,
`BRANDON SPANN, and
`KEVIN DANIEL,
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`Defendants.
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`ORDER ON MOTIONS TO DISMISS
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`Michael E. Hegarty, United States Magistrate Judge.
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`Before the Court are Defendant Vectrus Systems Corporation’s Motion for Partial Dismissal
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`[filed December 15, 2015; docket #6] and Defendants Spann’s and Daniel’s Amended Motion for
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`Dismissal Pursuant to Rule[s] 12(b)(1), 12(b)(2), and 12(b)(6) [filed January 25, 2016; docket #22].
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`This matters are fully briefed, and the Court finds that oral argument (not requested by the parties)
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`would not materially assist the Court in adjudicating the motions. For the following reasons,
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`Spann’s and Daniel’s motion is granted pursuant to Fed. R. Civ. P. 12(b)(2) and Vectrus’ motion
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`is granted in part and denied in part as set forth herein.1
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`BACKGROUND
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`Plaintiffs initiated this employment action against Defendants on October 30, 2015.
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`1On December 31, 2015, the parties consented to the jurisdiction of this Court pursuant to
`28 U.S.C. § 636(c) and D.C. Colo. LCivR 40.1.
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`Essentially, they allege claims against Defendant Vectrus Systems Corp. (“Vectrus”) for common
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`law retaliatory termination (Claim I) and for violation of 10 U.S.C. § 2409, the Department of
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`Defense whistleblower statute (Claim II); a claim against all Defendants for common law outrageous
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`conduct (Claim III); and a claim against the individual Defendants, Brandon Spann (“Spann”) and
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`Kevin Daniel (“Daniel”) for intentional interference with contract and/or prospective business
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`advantage (Claim IV).
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`I.
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`Facts
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`The following are factual allegations (as opposed to legal conclusions, bare assertions, or
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`merely conclusory allegations) made by Plaintiffs in the operative Complaint and pertinent to the
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`present motion, which are taken as true for analysis under Fed. R. Civ. P. 12(b)(6) pursuant to
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`Vectrus is a federal contractor that has numerous contracts and subcontracts with various
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`departments of the federal government throughout the United States and abroad. Vectrus entered
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`into a subcontract with Fluor Corporation (“Fluor”) to provide certain services to the Department
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`of Defense at BAF, which is a U.S. military base inside a combat zone, and at other U.S. military
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`bases in Afghanistan. Vectrus’ subcontract was subsequently amended or modified (hereinafter
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`referred as the “Contract”). Fluor has the prime contract with the Department of Defense.
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`Plaintiffs were employed by Vectrus as security investigators in its Personnel Services
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`Department at BAF. Cross was the lead security investigator. Plaintiff Victor Cejka (“Cejka”) was
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`assigned by Vectrus to the Contract, specifically its Logistics Civilian Augmentation Program
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`(LOGCAP) IV Project Task Order 005 in Afghanistan (the “Program”), from August 13, 2012 to
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`December 12, 2013. Plaintiff James Walker (“Walker”) was assigned by Vectrus to the Program
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`from January 7, 2013 to July 12, 2014. Plaintiff Steven Wascher (“Wascher”) was assigned by
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`Vectrus to the Program from January 2013 to June 2014. Plaintiff Jamie Lytle (“Lytle”) was
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`assigned by Vectrus to the Program from August 13, 2012 to December 12, 2013. Plaintiff Paul
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`Cross (“Cross”) was assigned by Vectrus to the Program from June of 2010 to September 13, 2013.
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`In the summer and fall of 2013, Plaintiffs worked together in the Vectrus Personnel Services
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`Department at BAF as part of the Program. The Personnel Services security investigators at BAF,
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`including Plaintiffs, were responsible for conducting interviews and investigations required for the
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`issuance of badges and for maintaining the investigation information in the Biometric Automated
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`Toolset (“BAT”) computer database. The U.S. government maintains the BAT database in
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`conjunction with its European allies. The biometric tracking and identification information that is
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`maintained in the BAT system includes fingerprints, iris scans and facial photos. The BAT system
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`is critical to the U.S. Military’s efforts to combat insurgent forces in Afghanistan that are
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`interspersed within an indigenous population. The maintenance of accurate information in the BAT
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`system is vital to the security of BAF and the U.S. Military’s other bases in Afghanistan.
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`According to the Fluor Desktop Guidelines, the duties of investigators are as follows:
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`Investigator. Conducts initial, bi-annual, and exit or directed interviews of host and
`foreign nationals who apply for or leave employment on US military installation;
`supervises Identification Card Office; enters data into biometric HUMINT screening
`database; collects biometrics and conduct enrollments; other duties as
`assigned/required within the FPSC operational realm; accurately complete the work
`and records associated with their work assignments as specified by this DTG and
`submit them to the Personnel Services Supervisor on a regular basis for review and
`approval.
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`The security investigators also are required to report to their supervisors and the military any
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`possible criminal conduct or other threats to the safety or security of the base or personnel.
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`In the summer 2013, the Vectrus Personnel Services Department at BAF (“FPSC”) was
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`supervised by Cross in his capacity as lead investigator, who reported to Vectrus’ Senior Security
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`Supervisor, Defendant Brandon Spann (“Spann”), who in turn reported to Vectrus’ Regional
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`Security Manager, Defendant Kevin Daniel (“Daniel”), who ultimately reported to Vectrus’ Country
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`Manager Richard Diaz (“Diaz”). The military oversight person for FPSC was Sergeant First Class
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`John Salinas (“SFC Salinas”).
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`Starting in August 2013, Plaintiffs observed Spann and other Vectrus employees engaging
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`in what they perceived to be security violations and other wrongful behavior. Plaintiffs
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`contemporaneously prepared a day-by-day timeline which described in detail the activities they
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`discovered and actions they took to report the wrongdoing and to assist the U.S. Military’s
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`investigation of the alleged wrongdoing by Vectrus employees. For example, Plaintiffs discovered
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`that Spann permitted an unauthorized person who did not have security clearance, a Fluor employee
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`named James Brown (“Brown”), to participate in interviews, screenings, and interrogations of Host
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`Country Nationals and Third Country Nationals. Cross reported this information to Daniel, and
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`Cross and Wascher also reported it to military oversight, SFC Salinas.
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`Plaintiffs also discovered that an investigation report on BAT prepared by Wascher had been
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`altered to remove the information that had been provided by Daniel pertaining to a sexual
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`relationship one of his friends was having with the target of the investigation, as well as other
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`information that implicated members of Vectrus management or their friends. Wascher reported this
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`incident to the lead investigator, Cross, who reported it to Spann and Daniel, and instructed Wascher
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`to resubmit a complete report. However, Spann reprimanded Cross and ordered him and the other
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`investigators to stop any discussions of deletions or alterations on BAT.
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`Plaintiffs did some further review and learned that other investigation reports had been either
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`deleted from BAT or altered. They reported this information to Spann but no action was taken.
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`Plaintiffs also reported it to military oversight, SFC Salinas. Plaintiffs understood that tampering
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`with investigation reports was a very serious violation because it compromised the integrity of the
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`BAT system, which threatened the security at BAF and the other U.S. military bases in Afghanistan.
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`In early September 2013, Salinas initiated a military investigation and Wascher provided a
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`statement at the military’s request. Shortly thereafter, Wascher was asked to investigate
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`unauthorized identification cards in the possession of Turkish workers and the lack of the required
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`documentation in their BAT dossiers. Spann confronted Wascher and attempted to convince him
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`to drop that investigation. Spann had a close relationship with two Turkish contractors and was
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`allegedly having a sexual relationship with the daughter of the owner of one of the contractors.
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`Plaintiffs believe Spann’s efforts were intended to protect members of Vectrus management and
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`possibly the Turkish contractor, since it was their understanding that Spann had previously
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`attempted to protect the Turkish contractor by improperly directing investigators to back off of an
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`investigation into human trafficking allegations involving the use of young Turkish male sex slaves
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`by said contractor on the base and by giving the contractor advance notice of raids by the military.
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`Shortly after he confronted Wascher, Spann told Plaintiffs that he had persuaded the military
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`head of BAF, known as “Garrison Command,” to replace SFC Salinas as military oversight for
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`FPSC. Thereafter, SFC Salinas was replaced by James Fox. Spann directed Plaintiffs not to provide
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`statements or assist in the military’s investigation without approval of Vectrus’s HR department.
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`However, Plaintiffs continued to cooperate with the military’s investigation. On September 20,
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`2013, Salinas met with Plaintiffs and advised them that the military was continuing to investigate
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`the information they had provided.
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`On September 24, 2013, Spann announced that Vectrus had terminated Cross for purportedly
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`violating Vectrus’ rules of conduct by disclosing classified information and making a false statement
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`during an investigation. Plaintiffs believe that, because Cross was the lead investigator, Spann and
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`others at Vectrus hoped his termination would send a message to the other investigators and stop
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`them from any further cooperation with the military’s investigation.
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`During this time period – September to October 2013 – other Vectrus employees began
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`bringing what they perceived to be wrongful conduct to Plaintiffs’ attention, and Plaintiffs observed
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`other alleged illegal activities by Vectrus managers. For example, one employee described to
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`Plaintiffs certain activities of Spann, Daniel, Carl Lynch (“Lynch”), and another investigator, Gary
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`Blanchard (“Blanchard”), including control of drugs, alcohol and prostitutes on base, and
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`transferring or terminating uncooperative employees who would not go along with their activities.
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`The employee
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`also showed Plaintiffs text messages allegedly indicating unauthorized activity with classified
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`information.
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`Plaintiffs also observed that two security investigators, Marc Salazar (“Salazar”) and Robert
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`Redd (“Redd”), who were close friends of Spann and Daniel, were conducting alleged improper and
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`harassing/abusive interviews, improperly cherry-picking files to investigate, using only certain
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`interpreters, and creating inaccurate and incomplete investigation reports. Plaintiffs reported this
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`information to Vectrus’s HR department, which took no steps to stop these activities.
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`Plaintiffs also provided information concerning these activities to military oversight (Fox)
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`and SFC Salinas. At the military’s request, Plaintiffs gave interviews to the Criminal Investigation
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`Division (“CID”), U.S. Army Counter-Intelligence Unit (“CI”), the Air Force Office of Special
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`Investigations (“OSI”), and the Judge Advocates General’s Office (“JAG”).
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`Plaintiffs discovered alleged improprieties with respect to investigation reports prepared by
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`Salazar including inadequate reports to support issuance of badges (including that over 100 BAF
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`badges had been printed without necessary investigations or paperwork), portions of reports deleted
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`from BAT, and alerts being put on dossiers by Salazar using the name of Sergeant Justine Shahan
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`(Military Oversight Non-Commissioned Officer in Charge) without her knowledge. They reported
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`these activities to Thomas Robin (“Robin”), Security Supervisor for Vectrus, but no action was
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`taken.
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`Throughout this time period, Plaintiffs met frequently with SFC Salinas at his request to
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`update him with further information on these reported activities as it became available. On October
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`18, 2013, Plaintiffs attended a meeting at BAF Brigade Headquarters with SFC Salinas, Andrew
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`Albright (a GS15 civilian counterpart to the Commander of the Garrison), and Command Sergeant
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`Major Paul Bianco. Plaintiffs gave statements and discussed the seriousness of the reported conduct,
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`including particularly the perceived threat to the integrity of the BAT system. Albright told
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`Plaintiffs that CI was not moving on the information and, therefore, the military had decided to call
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`in the FBI and NSA to investigate. Plaintiffs were ordered to continue reporting to SFC Salinas as
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`their point of contact and to keep the matters discussed in the military’s investigation confidential.
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`Plaintiffs observed further conduct by Vectrus management employees, including observing
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`an uncleared person given access to the FPSC database room, an uncleared person (the daughter of
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`the owner of a Turkish construction company) given access to Spann and Daniels’ supervisor’s
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`administrative office, unauthorized Fluor employees sitting in on investigations, Spann accessing
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`the military oversight office during restricted hours without authorization, Spann and Fox allegedly
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`coaching a person on how to lie about an incident under investigation, and the perceived cover up
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`of a harassment investigation that involved the severe (near death) beating of the complaining
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`female. During this time period, Plaintiffs gave several interviews to CI and CID regarding the
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`various incidents as requested and continued to provide updates to SFC Salinas.
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`On October 20, 2013, Plaintiffs were told that Fox was leaking information (including their
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`initial statements given to OSI) to Spann and Daniel. Plaintiffs and the other security investigators
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`had been repeatedly threatened and admonished by Spann, Daniel, Salazar, and Redd not to
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`cooperate with SFC Salinas’s investigation and to only go through the Vectrus company chain of
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`command.
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`On October 29, 2013, Wascher was transferred to Forward Operating Base (“FOB”) Marmol.
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`Daniel and two others met Wascher at the airport gate – Daniels stated he was “there to make sure
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`Wascher got on his flight.” At the end of October 2013, Walker was transferred to FOB Shank.
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`Daniel had Robin call him when the aircraft carrying Walker took off from BAF, and again when
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`it landed at FOB Shank to confirm that Walker was gone from BAF. These FOBs are much more
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`dangerous than BAF in that they took incoming rockets on a daily basis. Plaintiffs believe Spann
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`and Daniel ordered these transfers hoping Wascher and Walker would resign rather than accept the
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`transfers; and knowing Wascher and Walker would lose their seniority and that, even if they did not
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`resign, their positions would be eliminated in the next draw-down, despite the fact that their BAF
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`seniority would have protected them but for the transfers.
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`At 2:00 a.m. on November 5, 2013, the military conducted a base-wide raid at BAF and
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`apprehended eight Vectrus employees: Daniel, Spann, Lynch, Salazar, Redd, Artan Fana, Agron
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`Fana, and Shajaida Rivera. These eight individuals were removed from the Contract and from
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`Afghanistan, and their security clearances were revoked. Plaintiffs have learned that these eight
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`Vectrus employees were released in Dubai the next day. Plaintiffs are unaware whether their
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`employment was terminated by Vectrus.
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`Multiple other Vectrus employees assigned to BAF have been terminated or resigned in
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`conjunction with the military’s investigation following the Plaintiffs’ whistleblowing activity.
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`Brown, a Fluor Country Security Officer, also was removed from the Contract and from
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`Afghanistan, and had his security clearance revoked by the military. In addition, Fox was removed
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`from his position as the FPSC military oversight and SFC Salinas was reinstated to that position.
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`On information and belief, at least 20 Vectrus employees and others were removed from the
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`Contract and BAF, and had their security clearances revoked.
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`Plaintiffs continued to relay additional information they learned to the military investigators,
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`including that Wascher received a complaint regarding a prostitution ring, the possession of
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`electronic devices, and other conduct implicating Salazar and Blanchard. In addition, two
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`supervisors were observed discussing their effort to gather laptop computers to keep them from the
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`military investigation. Plaintiffs also learned that FPSC personnel had been given advance warning
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`of the military raid and told to hide anything incriminating. Finally, an interpreter advised of an
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`investigation concerning selling documents and coaching local nationals on how to answer questions
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`in interviews.
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`Plaintiffs believe Vectrus management identified them as the whistleblowers – management
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`pressured Plaintiffs to provide the dossiers on all of the Vectrus employees that had been implicated
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`for alleged illegal activities and other information that had been provided to the military, and
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`directed Plaintiffs not to cooperate with the military investigation but, rather, to proceed only
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`through Vectrus HR or company chain of command.
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`On November 21, 2013, Plaintiffs learned that Vectrus made a complaint against Cross’
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`security clearance accusing him of a security violation without notifying the Government as
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`required, which Plaintiffs believe was designed to invalidate Cross’ security clearance and prevent
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`him from being able to find employment in another position requiring a security clearance.
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`In November and December 2013, Plaintiffs cooperated with interviews by Vectrus
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`Ombudsman (Bridget Bailey) and Employee Relations (Donald Askew); however, they had been
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`ordered by the military not to disclose the information that was the subject of the military’s ongoing
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`investigation. On November 24, 2013, Nadine Guilbeaux, the Vectrus HR representative who had
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`been conducting interviews, was terminated allegedly for having sexual relationships with Spann.
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`Plaintiffs believed that Ms. Guilbeaux had been leaking information from their interviews back to
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`Spann.
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`Diaz, who as Vectrus’ Country Manager, was the highest ranking Vectrus employee in
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`Afghanistan, spearheaded Vectrus’ internal investigation in November and December 2013 into the
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`activities the Plaintiffs had revealed. However, this internal investigation was not designed to
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`discover and take action against the wrongdoers. Instead, Plaintiffs believe that Diaz – with the
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`assistance of Bridget Bailey and Donald Askew, among others – used the investigation to orchestrate
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`a cover-up specifically intended to cause injury to the Plaintiffs still at BAF because of their
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`whistleblowing and cooperation with the military’s investigation of the wrongful conduct.
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`On November 29, 2013, Cejka and Lytle received Certificates of Achievement from the
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`military “for outstanding performance, dedication and support for the mission.” When presenting
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`the awards, the military spokesman stated that Cejka and Lytle were the top two investigators
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`country wide in terms of the high quality of their investigations and high production. The
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`Certificates state:
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`For outstanding performance and continued dedication and support of the Garrison
`mission at Bagram Airfield. Your tireless efforts and dedication at ECP 1 screening
`are instrumental in providing an elevated quality of life to the Soldiers, Sailors,
`Airmen, Marines and civilian personnel assigned to Bagram. We thank you for your
`untiring support of American troops and civilians serving in harms way.
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`Cejka and Lytle were terminated by Vectrus on December 12, 2013, less than two weeks after
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`receiving the Certificates of Achievement from the military, for allegedly violating Vectrus’ rules
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`of conduct by making a hand gesture toward another investigator on a single occasion. The
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`complaining employee was Redd, a close friend of Spann, who was removed by the military from
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`the Contract and Afghanistan during the November 5 raid.
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`On February 7, 2014, Cejka, Walker, Wascher and Lytle received a letter from Andrew
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`Albright, Garrison Command Security Manager at BAF, confirming that they were cooperating
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`individuals in a federal security investigation during the period July 2013 through January 2014
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`involving their employer at BAF. The letter describes the investigation and the importance of the
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`integrity of the BAT system and states:
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`Many of the cooperating individuals that assisted Federal Security and Intelligence
`investigators were reassigned to remote outstations, or terminated by their employer
`for minor infractions. Unfortunately, the Whistle Blower Protection Act is a slow and
`cumbersome process.
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`Following the November 5, 2013 raid, the Bagram FPSC was severely understaffed of
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`security investigators allegedly as the result of the raid and transfers of Wascher and Walker. The
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`remaining investigators at BAF were conducting two to three times the number of interviews
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`recommended in a given day (the recommended level is 10 interviews per day). Vectrus
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`management openly discussed the need to transfer additional security investigators to BAF to assist
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`with the severe overload; however, they stated on numerous occasions that they would not consider
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`transferring Wascher or Walker from the FOBs back to BAF, even though Walker and Wascher
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`were the two most experienced investigators and had expressed a willingness to return.
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`In June 2014, Vectrus informed Wascher his position was being eliminated in a
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`“draw-down.” Wascher’s seniority should have protected him from the draw-down. After the
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`draw-down, despite having open security investigator positions and being severely understaffed at
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`BAF, Vectrus offered Wascher only a lower position as a Biometric Processing Clerk at
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`substantially less pay. Wascher declined to accept the demotion.
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`On July 12, 2014, Vectrus informed Walker his position was being eliminated in a
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`“draw-down.” Walker’s seniority should have protected him from the draw-down. After the
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`draw-down, despite having open security investigator positions and being severely understaffed at
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`BAF, Vectrus offered Walker only a lower position as a Biometric Processing Clerk at substantially
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`less pay. Walker declined to accept the demotion.
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`II.
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`Procedural History
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`In response to Plaintiffs’ Complaint, Vectrus filed the present motion for partial dismissal,
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`arguing that Plaintiffs’ first and third state law claims are preempted by the Defense Base Act, 42
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`U.S.C. § 1651 et seq. (“DBA”), but, even if it not, Colorado law does not apply to Plaintiffs’
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`employment in Afganistan. Alternatively, Vectrus argues that Plaintiffs’ third claim for outrageous
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`conduct fails to state a claim for relief.
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`Plaintiffs counter that Vectrus should be barred by collateral estoppel from raising its
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`defenses, since two courts in this District have already rejected such defenses. In addition, Plaintiffs
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`contend the DBA applies only to claims for injury or death, not to claims for wrongful discharge or
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`outrageous conduct. Plaintiffs also assert that Colorado law applies to Vectrus, a Colorado
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`employer. Finally, Plaintiffs argue their first and third claims are separate and distinct and, thus, the
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`claim for outrageous conduct is actionable.
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`Vectrus replies arguing that there is no substantial relationship between Colorado and the
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`wrongs alleged by Plaintiffs and, thus, the state claims should be dismissed. It also contends the
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`DBA governs any “injury” claimed by the Plaintiffs; a forum selection clause is not a “choice of
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`law” provision and does not provide Plaintiffs access to Colorado law; and the alleged facts do not
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`support a claim for outrageous conduct.
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`In addition, Defendants Spann and Daniel filed an amended motion for dismissal arguing the
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`Court lacks personal jurisdiction over them;2 the DBA bars the Plaintiffs’ claims; Colorado common
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`2Although Defendants also bring their motions pursuant to Fed. R. Civ. P. 12(b)(1) for lack
`of subject matter jurisdiction, the Court does not perceive a basis for application of Rule 12(b)(1).
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`law has no application to Plaintiffs’ claims; and, Plaintiffs’ claims of outrageous conduct and
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`intentional interference fail to state claims for relief. Plaintiffs counter with the same arguments as
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`those raised against Vectrus, and, in addition, assert specific (as opposed to general) personal
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`jurisdiction over Spann and Daniel. Spann and Daniel reply arguing Plaintiffs fail to demonstrate
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`they “purposefully directed their activities” at Colorado sufficient to establish personal jurisdiction.
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`I.
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`Dismissal under Fed. R. Civ. P. 12(b)(2)
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`LEGAL STANDARDS
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`“Where a district court considers a pre-trial motion to dismiss for lack of personal
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`jurisdiction without conducting an evidentiary hearing, the plaintiff need only make a prima facie
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`showing of personal jurisdiction to defeat the motion.” AST Sports Science, Inc. v. CLF Distrib.
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`Ltd., 514 F.3d 1054, 1056-57 (10th Cir. 2008) (citing Wenz v. Memery Crystal, 55 F.3d 1503, 1505
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`(10th Cir. 1995)). “The plaintiff may make this prima facie showing by demonstrating, via affidavit
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`or other written materials, facts that if true would support jurisdiction over the defendant.” Id. at
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`1057 (quoting OMI Holdings, Inc. v. Royal Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998)).
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`The allegations in the complaint must be taken as true to the extent they are
`uncontroverted by the defendant’s affidavits. If the parties present conflicting
`affidavits, all factual disputes must be resolved in the plaintiff’s favor, and the
`plaintiff’s prima facie showing is sufficient notwithstanding the contrary presentation
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`To the extent the Defendants argue the Court lacks subject matter jurisdiction due to the DBA’s
`alleged preemption of Plaintiffs’ claims:
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`the applicability of the DBA’s exclusivity provision ... presents an issue of
`preemption, not jurisdiction. Federal preemption is an affirmative defense that a
`defendant must plead and prove. Unless the complaint itself establishes the
`applicability of a federal-preemption defense – in which case the issue may properly
`be the subject of a Rule 12(b)(6) motion – a defendant should ordinarily raise
`preemption in a Rule 12(c) motion for judgment on the pleadings or a Rule 56
`motion for summary judgment.
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`Fisher v. Halliburton, 667 F.3d 602, 609 (5th Cir. 2012). Accordingly, the Court will analyze the
`Defendants’ preemption arguments pursuant to Fed. R. Civ. P. 12(b)(6).
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`by the moving party. However, only the well pled facts of plaintiff’s complaint, as
`distinguished from mere conclusory allegations, must be accepted as true.
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`Wenz, 55 F.3d at 1505 (citations and internal quotation marks omitted). “[T]o defeat a plaintiff’s
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`prima facie showing of jurisdiction, a defendant must present a compelling case demonstrating that
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`the presence of some other considerations would render jurisdiction unreasonable.” OMI Holdings,
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`Inc., 149 F.3d at 1091 (citation and internal quotations omitted).
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`“Jurisdiction to resolve cases on the merits requires ... authority over the parties (personal
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`jurisdiction), so that the court’s decision will bind them.” Gadlin v. Sybron Int’l Corp., 222 F.3d
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`797, 799 (10th Cir. 2000) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999)).
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`In a federal question case, the federal court must determine “(1) ‘whether the applicable statute
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`potentially confers jurisdiction’ by authorizing service of process on the defendant and (2) whether
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`the exercise of jurisdiction comports with due process.’” Peay v. Bellsouth Med. Assistance Plan,
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`205 F.3d 1206, 1209 (10th Cir. 2000) (citation omitted). However, as there is no federal statute
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`authorizing nationwide personal jurisdiction at issue here, Fed. R. Civ. P. 4(k)(1)(A) refers to the
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`Colorado long-arm statute. In Colorado, only one inquiry is necessary, as the Colorado long-arm
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`statute, Colo. Rev. Stat. § 13-1-124(1), “confer[s] the maximum jurisdiction permitted by the due
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`process clauses of the United States and Colorado constitutions,” and its requirements are
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`necessarily addressed under a due process analysis. Archangel Diamond Corp. v. Lukoil, 123 P.3d
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`1187, 1193 (Colo. 2005) (en banc).
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`II.
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`Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6)
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`“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
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`as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell
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`Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to
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`dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference
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`Case 1:15-cv-02418-MEH Document 35 Filed 03/09/16 USDC Colorado Page 15 of 41
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`that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis.
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`First, a court must identify “the allegations in the complaint that are not entitled to the assumption
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`of truth,” that is, those allegations which are legal conclusions, bare assertions, or merely
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`conclusory. Id. at 678-80. Second, the Court must consider the factual allegations “to determine
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`if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible
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`claim for relief, such claim survives the motion to dismiss. Id. at 680.
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`Plausibility refers “to the scope of the allegations in a complaint: if they are so general that
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`they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged
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`their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines, 671 F.3d
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`1188, 1191 (10th Cir. 2012) (quoting Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)). “The
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`nature and specificity of the allegations required to state a plausible claim will vary based on
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`context.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while
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`the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a
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`complaint, the elements of each alleged cause of action may help to determine whether the plaintiff
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`has set forth a plausible claim. Khalik, 671 F.3d at 1191.
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`However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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`conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more
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`than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action,”
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`so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”
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`Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining
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`whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires
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`the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
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`“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
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`misconduct,” the c