Case 1:18-cv-00744-WJ-KK Document 311 Filed 04/29/21 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
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`No. 1:18-md-02824-WJ
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`IN RE: GOLD KING MINE RELEASE
`IN SAN JUAN COUNTY, COLORADO,
`ON AUGUST 5, 2015
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`This Document Relates to: No. 1:16-cv-00465-WJ-LF
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`No. 1:16-cv-00931-WJ-LF
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`No. 1:18-cv-00319-WJ
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`No. 1:18-cv-00744-WJ-KK
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`MEMORANDUM OPINION AND ORDER
`GRANTING KINROSS GOLD U.S.A. AND KINROSS GOLD CORPORATION’S
`MOTION FOR SUMMARY JUDGMENT ON THE CLAIMS OF NEW MEXICO, THE
`NAVAJO NATION, UTAH AND THE ALLEN PLAINTIFFS: PERSONAL
`JURISDICTION
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`THIS MATTER comes before the Court on Kinross Gold U.S.A. Inc. ("KGUSA") and
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`Kinross Gold Corporation’s ("KGC") (collectively "the Kinross Defendants") Motion for
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`Summary Judgment on the Claims of New Mexico, the Navajo Nation, Utah and the Allen
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`Plaintiffs: Personal Jurisdiction, Doc. 866, filed October 13, 2020 (“Motion”).
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`The Kinross Defendants assert that they are not subject to personal jurisdiction in either
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`the State of New Mexico or the State of Utah and move for summary judgment on all claims
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`asserted in this action by New Mexico, the Navajo Nation, Utah, and the Allen Plaintiffs. The
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`Allen Plaintiffs1 contend that the Kinross Defendants' contacts with New Mexico, through the
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`actions of the Kinross Defendants' purported agent Sunnyside Gold Corporation ("Sunnyside"),
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`give rise to specific jurisdiction.2
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`1 The Kinross Defendants have withdrawn their Motion as to New Mexico, the Navajo Nation and
`Utah because they have reached an agreement with those Plaintiffs. See Doc. 1005, filed January
`8, 2021 (withdrawing Motion as to New Mexico and the Navajo Nation); Doc. 1139, filed March
`15, 2021 (withdrawing Motion as to Utah).
`2 The Court has ruled that the Allen Plaintiffs' claims against Sunnyside, which are based on
`Sunnyside's design, planning and construction of the bulkheads, are barred by Colorado's statute
`of repose. See Doc. 1156, filed March 31, 2021. The Court notes that:
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`Personal Jurisdiction
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`An out-of-state defendant's contacts with the forum state may give rise to either general
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`jurisdiction or specific jurisdiction:
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`"General personal jurisdiction means that a court may exercise jurisdiction over an
`out-of-state party for all purposes. A court may assert general jurisdiction over
`foreign ... corporations to hear any and all claims against them when their
`affiliations with the State are so continuous and systematic as to render them
`essentially at home in the forum State;” or
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`"Specific jurisdiction means that a court may exercise jurisdiction over an out-of-
`state party only if the cause of action relates to the party's contacts with the forum
`state."
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`(i)
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`(ii)
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`Old Republic Insurance Co. v. Continental Motors, Inc., 877 F.3d 895, 903-04 (10th Cir. 2017)
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`(citations and quotation marks omitted). The Allen Plaintiffs do not contend that the Kinross
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`Defendants' contacts satisfy the general jurisdiction standard, so only specific jurisdiction is at
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`issue.
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`Specific Jurisdiction
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`A principal is entitled to all of the defenses arising out of a transaction between an
`agent and a third person but not to defenses which are personal to the agent.
`Circumstances in which it would be improper to permit a third person to proceed
`solely against a principal based on its vicarious liability for the conduct of an agent
`include the following: ... (3) when the agent is immune from suit, either by statute
`or by the common law;
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`3 Am. Jur. 2d Agency § 315, Actions and Remedies of Third Person, Against principal (2021)
`(citing New Jersey Life Ins. Co. v. Getz, 622 F.2d 198 (6th Cir. 1980)). The Court declines to
`address at this time whether the Allen Plaintiffs' claims against the Kinross Defendants are barred
`by Colorado's statute of repose because the Parties have not briefed the issue. On April 22, 2021,
`the Kinross Defendants filed a motion for summary judgment asserting that the Allen Plaintiffs'
`claims against the Kinross Defendants are also barred by Colorado's statute of repose. See Doc.
`1172. The Court will address the issue after the Kinross Defendants' recent motion is fully briefed.
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`2
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`Specific jurisdiction calls for a two-step inquiry: "(a) whether the plaintiff has shown that
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`the defendant has minimum contacts with the forum state; and, if so, (b) whether the defendant has
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`presented a compelling case that the presence of some other considerations would render
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`jurisdiction unreasonable.” Old Republic, 877 F.3d at 904.
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`Minimum Contacts
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`The minimum contacts test for specific jurisdiction has two distinct requirements: "(i) that
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`the defendant must have purposefully directed its activities at residents of the forum state,” and
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`(ii) that “the plaintiff's injuries must arise out of [the] defendant's forum-related activities.” Old
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`Republic, 877 F.3d at 904.
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`Purposeful Direction
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`"The purposeful direction requirement “ensures that a defendant will not be haled into a
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`jurisdiction solely as a result of random, fortuitous, or attenuated contacts, ... or of the unilateral
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`activity of another party or a third person. Mere foreseeability of causing injury in another state is
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`insufficient to establish purposeful direction." Old Republic, 877 F.3d at 904-05 (citation omitted).
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`Purposeful direction may be established where there is: “(a) an intentional action ... , that was (b)
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`expressly aimed at the forum state ..., with (c) knowledge that the brunt of the injury would be felt
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`in the forum state.” Old Republic, 877 F.3d at 907.
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`“Arising out of” Requirement
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`Step two of the minimum contacts test requires the Court to determine whether the
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`plaintiff's injuries “arise out of” the defendant's forum-related activities.
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`The import of the ‘arising out of’ analysis is whether the plaintiff can establish that
`the claimed injury resulted from the defendant's forum-related activities. This
`requirement has been subject to different interpretations. Some courts have
`interpreted the phrase ‘arise out of’ as endorsing a theory of ‘but-for’ causation,
`while other courts have required proximate cause to support the exercise of personal
`jurisdiction. But-for causation means any event in the causal chain leading to the
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`3
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`plaintiff's injury is sufficiently related to the claim to support the exercise of specific
`jurisdiction. Considerably more restrictive is proximate causation, which turns on
`whether any of the defendant's contacts with the forum are relevant to the merits of
`the plaintiff's claim. This court on several occasions has declined to choose
`between but-for and proximate causation, finding that neither test was outcome
`determinative given the facts at hand.
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`Compañía de Inversiones Mercantiles, S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V., 970
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`F.3d 1268, 1284-85 (10th Cir. 2020) (citations and quotation marks omitted).
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`Fair play and substantial justice (reasonableness)
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`The second part of the specific jurisdiction inquiry asks "whether the defendant has
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`presented a compelling case that the presence of some other considerations would render
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`jurisdiction unreasonable.” Old Republic, 877 F.3d at 904.
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`Even when a defendant has purposefully established minimum contacts with a
`forum state, minimum requirements inherent in the concept of fair play and
`substantial justice may defeat the reasonableness of jurisdiction. We consider (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 substantive social policies. A defendant must present a compelling
`case that factors like these render jurisdiction unreasonable. The reasonableness
`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. Still, instances where the exercise of personal jurisdiction offends fair
`play and substantial justice are rare.
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`Compañía de Inversiones Mercantiles, S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V., 970
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`F.3d 1268, 1289 (10th Cir. 2020) (citations and quotation marks omitted).
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`Discussion
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`The Kinross Defendants base their Motion on the following facts which are not disputed
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`by the Allen Plaintiffs:3
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`3 The Allen Plaintiffs have not properly disputed any of the facts asserted by the Kinross
`Defendants. A response to a motion for summary judgment:
`4
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`(i)
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`"KGUSA is a wholly owned subsidiary of Bema Gold (U.S.) Inc, a Nevada
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`Corporation, which in turn is a wholly owned subsidiary of KGC." Motion at 4, ¶ 8.
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`(ii)
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`"All of [Sunnyside's] shares are owned by Echo Bay, Inc., which ... is a wholly
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`owned subsidiary of KGUSA." Motion at 4, ¶ 7.
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`(iii)
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`"KGUSA did not own any direct or indirect interest in Echo Bay, Inc. or
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`[Sunnyside], before [January 31, 2003]." Motion at 4, ¶ 9.
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`(iv)
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`"[Sunnyside] closed the Sunnyside Mine on August 1, 1991 ... [and installed the
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`third bulkhead4] in the American Tunnel in December of 2002." Motion at 5, ¶ 14.
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`(v)
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`"On January 14, 2003, the State of Colorado issued notice that Permit No. CO-
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`0027529, which permitted water discharged from the American Tunnel, had been
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`transferred from [Sunnyside] to Gold King Mines Corporation." Motion at 5, ¶ 15.
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`(vi)
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`"On February 26, 2003, Colorado's Department of Public Health and Environment
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`determined that [Sunnyside] had fulfilled and met its obligations under the
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`Colorado state court's Consent Decree. On July 3, 2002, the Consent Decree was
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`terminated." Motion at 5, ¶ 16.5
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`must contain a concise statement of the material facts cited by the movant as to
`which the non-movant contends a genuine issue does exist. Each fact in dispute
`must be numbered, must refer with particularity to those portions of the record
`upon which the non-movant relies, and must state the number of the movant's
`fact that is disputed. All material facts set forth in the Memorandum [in support of
`the motion for summary judgment] will be deemed undisputed unless specifically
`controverted.
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`D.N.M.LR-Civ. 56.1(b) (emphasis added). The Allen Plaintiffs do not refer with particularity to
`portions of the record for any of the facts they dispute.
`4 A "bulkhead" is a hydraulic seal designed to block the discharge of water through a mine tunnel.
`See Response at 7, ¶ 2.
`5 The Allen Plaintiffs dispute this fact stating:
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`5
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`In their Response, the Allen Plaintiffs incorporate by reference their response to
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`Sunnyside's motion for summary judgment for lack of personal jurisdiction. See Response at 1,
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`Doc. 943, filed November 30, 2020. The Allen Plaintiffs contend that in their response to
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`Sunnyside's motion for summary judgment for lack of personal jurisdiction, they "have identified
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`genuine issues of material fact as to whether [Sunnyside's] conduct was expressly directed towards
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`New Mexico."6 Response at 26. The Allen Plaintiffs argue that because Sunnyside was an agent
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`of the Kinross Defendants, as a result of the Kinross Defendants taking control of Sunnyside's
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`operations, the Kinross Defendants are also subject to personal jurisdiction. See Response at 2.
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`The Allen Plaintiffs assert the following additional material facts regarding Sunnyside's
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`and the Kinross Defendants' actions after January 31, 2003, which is when the Kinross Defendants
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`acquired an interest in Sunnyside:
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`(i)
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`The Kinross Defendants "first became aware of a potential blowout in 2007 when
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`the new owner of the Gold King and Mogul mines repeatedly urged [Sunnyside] to
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`Disputed to the extent that there is a contested material fact as to whether
`[Sunnyside] and the [Kinross Defendants] complied with all the terms of the
`Consent Decree or and/or whether [Sunnyside] and the [Kinross Defendants made
`complete and accurate representations to the State of Colorado regarding the
`Consent Decree, such as the fact that neighboring mines informed [Sunnyside]
`multiple times that impounded water from the Sunnyside Mine was infiltrating
`other mine networks, including the Gold King Mine Level 7 adit [a horizontal
`passage into the mine] where the blowout occurred. It is further disputed that the
`entry and approval of the Consent Decree is relevant [to] personal jurisdiction over
`the [Kinross Defendants].
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`Response at 5-6, ¶ 16. The Allen Plaintiffs do not refer with particularity to those portions of the
`record upon which they rely as required by D.N.M.LR-Civ. 56.1(b). They do not dispute that the
`Consent Decree was terminated.
`6 The Court did not address the merits of the Allen Plaintiff's response to Sunnyside's motion for
`summary judgment because the Court denied Sunnyside's motion as moot after ruling that the
`Allen Plaintiffs' claims against Sunnyside were barred by Colorado's statute of repose. See Doc.
`1169, filed April 19, 2021.
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`re-open the bulkheads to prevent further flooding of the Gold King Mine and avoid
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`a potential blowout." Response at 10, ¶ 24.
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`(ii)
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`Gregory Etter, Senior Vice-President and later President of KGUSA, "was aware
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`of the concerns that impounded water from the Sunnyside Mine was infiltrating
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`other mines and that a blowout was a concern." Response at 10, ¶ 28.
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`(iii)
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`Lauren Roberts, Director, President, and Regional Vice President of KGUSA and
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`Director and President of Sunnyside, attended some meetings, "including the
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`meeting where the new owner warned of a blowout." Response at 11, ¶¶ 29-30.
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`(iv)
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`Sunnyside "knew that a blowout would cause substantial damage to downstream
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`communities, including New Mexico and the Navajo Nation."
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`Response at 11, ¶ 31.
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`(v)
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`The Kinross Defendants "would have been aware of the Lake Emma incident as
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`part of their due diligence investigation before acquiring [Sunnyside] and the
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`Sunnyside Mine." The Lake Emma incident involved lake water "flowing through
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`the Sunnyside Mine and the other workings that were connected to the Sunnyside
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`Mine, including the American Tunnel; and then out through the American Tunnel
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`and other portals into Cement Creek; and then down into the Animas River and
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`beyond." Response at 11, ¶¶ 32-33.
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`(vi)
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`The Kinross Defendants "filed and paid 'maintenance fees and intention to hold
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`mining claims' for the Sunnyside Mine from 2012 to 2016." Response at 12, ¶ 37.
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`(vii) Sunnyside "carried out only 'minor reclamation' activities from 2003 until around
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`2011." Response at 12, ¶ 40.
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`(viii) "In 2011, [Sunnyside] offered to contribute $6.5 million to improve water quality
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`in the Animas River and potentially avoid superfund status because [Sunnyside]
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`knew that it could be potentially liable if the superfund listing was approved."
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`Response at 13, ¶ 42.
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`(ix) KGUSA "contribute[d] ... $7,500 for the project to address acid mine drainage."
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`Response at 13, ¶ 47.
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`(x)
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`From 2011 to August 2015, prior to the Gold King Mine release, employees of the
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`Kinross Defendants "prepared a health and safety plan ... for sampling activities to
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`measure the effects of ore extracted from the Sunnyside Mine," "engaged" two
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`contractors for the sampling activities, informed EPA that Sunnyside was "donating
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`$10 million" to clean up the Animas River, responded to EPA's information
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`requests on behalf of Sunnyside, and authorized EPA to access Sunnyside lands to
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`conduct sampling activities. Response at 14-15, ¶¶ 48-58.
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`The Allen Plaintiffs also submitted several additional facts related to the Kinross Defendants'
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`"assumption of control and direction over" Sunnyside. Response at 7-19, ¶¶ 7-23. Whether
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`Sunnyside was an agent of the Kinross Defendants is immaterial because, as discussed below,
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`Sunnyside's actions after January 31, 2003, when Kinross acquired an interest in Sunnyside, are
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`insufficient to establish specific jurisdiction.
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`The Kinross Defendants have set forth undisputed facts showing that they did not own any
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`direct or indirect interest in Sunnyside before January 31, 2003. The Allen Plaintiffs' additional
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`facts regarding Sunnyside and the Kinross Defendants after January 31, 2002, assert that
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`Sunnyside and/or the Kinross Defendants: (i) knew about the potential for a blowout; (ii) knew
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`that a blowout would cause damage to downstream communities, including New Mexico; (iii) filed
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`and paid maintenance fees with intention to hold mining claims for the Sunnyside Mine; (iv)
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`donated money to clean up the Animas River and address acid mine drainage; and (v) were
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`involved with sampling activities regarding the ore at Sunnyside Mine.
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`The Kinross Defendants, and Sunnyside, do not have the minimum contacts with New
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`Mexico to establish specific jurisdiction because the additional facts asserted by the Allen
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`Plaintiffs do not meet the "purposeful direction" and "arising out of" requirements necessary for
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`specific jurisdiction. The additional facts do not establish that the activities of paying maintenance
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`fees, donating money to clean up the Animas River and being involved with sampling activities at
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`the Sunnyside Mine, were aimed at New Mexico with the knowledge that those activities would
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`cause harm in New Mexico. Nor do they establish that the Allen Plaintiffs' injuries arose from
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`Sunnyside/the Kinross Defendants paying fees, donating money and conducting sampling
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`activities.
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`In their Response to the Kinross Defendant's Motion, the Allen Plaintiffs state that
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`Sunnyside's "failure to mitigate the risk of a blowout by refusing to re-open the bulkheads was an
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`intentional action giving rise to specific jurisdiction in New Mexico." Response at 23 (referring
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`to additional facts Nos. 24-36). In their response to Sunnyside's motion for summary judgment
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`based on lack of personal jurisdiction, the Allen Plaintiffs stated "The above [additional material
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`facts] supports Plaintiffs' allegations that [Sunnyside's] decision to install the bulkheads—and their
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`subsequent refusal to remove them—is the root cause of the hazardous conditions that culminated
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`in the August 5 blowout at the Gold King Mine." Doc. 942 at 9, ¶ 27, filed November 30, 2020.
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`The Allen Plaintiffs have not referred to any portions of the record to support their contention that
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`Sunnyside, had a duty, "refused," or would have been allowed, to remove the bulkheads which
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`they installed pursuant to a Consent Decree with the State of Colorado. Nor do they cite any legal
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`authority that the Kinross Defendants may be liable for actions, such as installing the bulkheads,
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`taken by Sunnyside before Sunnyside purportedly became an agent of the Kinross Defendants.
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`Supplemental Briefing regarding Personal Jurisdiction
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`On December 17, 2020, after the Allen Plaintiffs filed their responses to Sunnyside's and
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`the Kinross Defendants' motions for summary judgment on the basis of lack of personal
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`jurisdiction, Sunnyside filed motions for partial summary judgment on the Allen Plaintiffs'
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`nuisance claims and on statute of repose grounds. See Doc's 962 and 963. The Allen Plaintiffs
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`contended that "by filing the Motions for Partial Summary Judgment, [Sunnyside] has waived
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`[Sunnyside's and the Kinross Defendants'] argument that personal jurisdiction is lacking over
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`them" and moved for leave to file supplemental briefing to address the issue. Doc. 1051 at 2, filed
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`January 22, 2021. The Court granted the Allen Plaintiffs' motion for supplemental briefing. See
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`1106, filed February 17, 2021.
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`The Allen Plaintiffs argue that "by filing the motions for partial summary judgment before
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`the personal jurisdiction issue is determined, [Sunnyside and the Kinross Defendants] have
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`consented to personal jurisdiction in New Mexico." Doc. 1127 at 2, filed March 3, 2021 (also
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`stating that Sunnyside and the Kinross Defendants "have consented to jurisdiction by agreeing to
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`consolidation in New Mexico, by filing crossclaims, by engaging in discovery, and by agreeing to
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`mediate the dispute in New Mexico"). The Allen Plaintiffs state:
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`In Hardie-Tynes, the Tenth Circuit Court of Appeals upheld the district court's
`denial of the defendant's motion to dismiss based on lack of personal jurisdiction
`where the defendant, while timely raising the defense in its answer, proceeded to
`file a cross-claim, engaged in settlement negotiations, and entered into a
`stipulation to dismiss all claims except for its cross-claim before requesting a
`ruling on the personal jurisdiction issue. The Tenth Circuit noted that the
`defendant, rather than requesting a ruling on its defense, "actively participated in
`the litigation and sought affirmative relief from the court," and stated that under
`these circumstances '[w]e have no difficulty in determining that [defendant's]
`actions 'amounted to a legal submission to the jurisdiction of the court.'"
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`Doc. 1127 at 3-4 (quoting Hunger U.S. Special Hydraulics Cylinders Corp. v. Hardie-Tynes Mfg.
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`Co., 2000 WL 147392 *3 (10th Cir. 2000).
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`Sunnyside and the Kinross Defendants did not waive personal jurisdiction. The Tenth
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`Circuit stated: "In the absence of a motion to dismiss, a party's continued participation in litigation
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`is inconsistent with an assertion of lack of personal jurisdiction." Hardie-Tynes Mfg. Co., 2000
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`WL 147392 *2 (emphasis added). Sunnyside and the Kinross Defendants filed motions to dismiss
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`based on lack of personal jurisdiction early in this litigation. See Doc. 42 at 3, filed July 25, 2018
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`(seeking dismissal of New Mexico, the Navajo Nation, and Utah's claims); Doc. 115, filed
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`November 1, 2018) (seeking dismissal of the claims in the Allen Plaintiffs' Complaint). The Court
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`denied Sunnyside and the Kinross Defendants' motions to dismiss based on lack of personal
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`jurisdiction to allow for jurisdictional discovery stating:
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`Although the Mining Defendants have disputed the jurisdictional allegations in the
`Complaints, there has been no evidentiary hearing. Consequently, the Court must,
`at this time, resolve all factual disputes in favor of Plaintiff Utah.
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`Where there has been no evidentiary hearing, as in this case, 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. All factual disputes are
`resolved in favor of the plaintiffs when determining the sufficiency
`of this showing.
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`Rusakiewicz v. Lowe, 556 F.3d 1095, 1100 (10th Cir. 2009) (quotation marks,
`ellipses and citations omitted).
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`Doc. 168 at 3, filed March 26, 2019; see Doc. 172 at 2, filed April 1, 2019 (denying Sunnyside
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`and the Kinross Defendants' motion to dismiss based on lack of personal jurisdiction because the
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`Allen Plaintiffs had alleged sufficient facts to make a prima facie showing of personal jurisdiction).
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`The Special Master subsequently set a February 28, 2020, deadline for jurisdictional discovery and
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`a March 16, 2020, deadline for filing motions regarding personal jurisdiction. See Doc. 303 at 1,
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`filed September 11, 2019. The Special Master also set a deadline of September 18, 2020, for filing
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`motions relating to liability and subject matter jurisdiction and an April 15, 2021, deadline for
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`filing motions for summary judgment on any remaining issues. See Doc. 303 at 1-2. Sunnyside's
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`filing of motions for partial summary judgment did not waive personal jurisdiction:
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`Voluntarily using “certain [district] court procedures” may “serve as ‘constructive
`consent to the personal jurisdiction of the [district] court,’” though not all will. Id.
`at 519 (quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,
`456 U.S. 694, 704, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). “Only those
`submissions, appearances and filings that give ‘[the plaintiff] a reasonable
`expectation that [the defendant] will defend the suit on the merits or must cause the
`court to go to some effort that would be wasted if personal jurisdiction is later found
`lacking,’ result in waiver of a personal jurisdiction defense.” Id. (quoting Mobile
`Anesthesiologists Chicago, LLC v. Anesthesia Assoc. of Houston Metroplex, P.A.,
`623 F.3d 440, 443 (7th Cir. 2010)).
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`Blessing v. Chandrasekhar, 988 F.3d 889, 894-95 (6th Cir. 2021). Sunnyside did not "voluntarily"
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`file its motions for partial summary judgment; Sunnyside complied with the Court's Order. With
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`numerous Parties, each with their own claims and/or defenses, failure to comply with the Court's
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`Order would be contrary to the Court's, and counsel's, obligation to secure the just, speedy, and
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`inexpensive determination of this multidistrict litigation. See Fed. R. Civ. P. 1 advisory
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`committee's note to 2015 amendment.
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`IT IS ORDERED that Kinross Gold U.S.A. Inc. and Kinross Gold Corporation’s Motion
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`for Summary Judgment on the Claims of New Mexico, the Navajo Nation, Utah and the Allen
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`Plaintiffs: Personal Jurisdiction, Doc. 866, filed October 13, 2020, is GRANTED.
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`________________________________________
`WILLIAM P. JOHNSON
`CHIEF UNITED STATES DISTRICT JUDGE
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