`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
`
`
`Multidistrict Litigation Action No. 01:18—md—2824-WJ
`
`IN RE GOLD KING MINE RELEASE IN SAN
`JUAN COUNTY, COLORADO, ON AUGUST 5,
`2015.
`
`(This MOTION relates to all cases.)
`__________________________________________________________________
`
`
`MOTION OF DEFENDANT HARRISON WESTERN CONSTRUCTION
`CORPORATION TO DISMISS STATE OF UTAH AND
`ENVIRONMENTAL RESTORATION, LLC’S CLAIMS
`__________________________________________________________________
`
`
`Defendant Harrison Western Construction Corporation (“Harrison Western”)
`
`
`
`moves now to dismiss the claims of plaintiff State of Utah (“Utah”) and cross-
`
`claimant/third party plaintiff Environmental Restoration, LLC (“ER”) pursuant to
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`Federal Rule of Civil Procedure 12(b)(2) (Fed.R.Civ.P. 12(b)(2)). In support thereof,
`
`Harrison Western states as follows:
`
`The underlying actions stem from the Gold King Mine spill near Silverton,
`
`Colorado, on August 5, 2015. (EXHIBIT A - State of Utah First Amended Complaint
`
`at ¶¶ 1, 60-62). The spill involved approximately 3,000,000 gallons of contaminated
`
`water and toxic waste, which traveled into nearby Cement Creek, into the Animas
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`River, into the San Juan River and, finally, into Lake Powell. (Id. at ¶ 61). Following
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`the spill and in response to certain “environmental, economic and other damage” (id.
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`
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 2 of 21
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`at ¶ 62), Utah brought various statutory and common law tort claims against Harrison
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`Western and others (id. at ¶¶ 64-129) demanding declaratory, monetary and injunctive
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`relief.1 (Id. at PRAYER FOR RELIEF).
`
`ER is a defendant in each of the lawsuits that comprise the MDL, except the
`
`action commences by Utah.2 ER has asserted claims against Harrison Western in each
`
`case of the MDL for contribution on all claims asserted against ER in the MDL. (ER
`
`Crossclaim Against Harrison Western [MDL DOC. 218-1 at 31-34]; ER Third-Party
`
`Complaint Against Harrison Western [MDL DOC. 214-1 at 43-46]; ER Third-Party
`
`Complaint Against Harrison Western [MDL DOC. 213-1 at 48-52]; ER Third-Party
`
`Complaint Against Harrison Western [MDL DOC. 210-1 at 23-24]; ER Third-Party
`
`Complaint Against Harrison Western [MDL DOC. 209-1 at 92-93]).
`
`
`
`
`1Utah has sued Harrison Western Corporation, and Utah served its initial
`
`complaint upon Harrison Western Corporation. (EXHIBIT E – State of Utah Proof
`of Service). Harrison Western Corporation, however, did not perform any work or
`services in connection with the Gold King Mine; Harrison Western Construction
`Corporation did (although it did not perform work on or around the date of the
`subject incident). (EXHIBIT B – Declaration of Christopher A. Hassel at ¶ 7).
`Moreover, and while separate legal entities, both Harrison Western Corporation and
`Harrison Western Construction Corporation maintain the same principal place of
`business in Lakewood, Colorado. (Id. at ¶ 8). Accordingly, Harrison Western
`Construction Corporation has notice of the underlying complaint. (Id. at ¶ 8).
`2Utah and ER recently settled. At present, then, ER is no longer a defendant
`in that action, but remains a cross-claimant by virtue of its cross-claim against HW.
`2
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 3 of 21
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`RELIEF SOUGHT AND GROUNDS THEREFOR
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`Harrison Western broadly contends it has no liability to Utah or ER because
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`there is no factual or legal basis for any of the claims directed against it. At this time,
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`however, Harrison Western contends that New Mexico and Utah courts lack personal
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`jurisdiction because Harrison Western is a Colorado corporation with a principal place
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`of business in Colorado and because the claimed damages did not result from any
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`intentional conduct by Harrison Western expressly aimed at the State of New Mexico
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`or the State of Utah.
`
`BACKGROUND
`
`A. Harrison Western Is A Colorado Corporation With A
`Principal Place Of Business In Colorado.
`
`
`Harrison Western is an experienced and expert mining services subcontractor.
`
`
`
`(EXHIBIT A at ¶ 12). Harrison Western is a Colorado corporation. (Id. at ¶ 12).
`
`Harrison Western’s principal place of business is in Lakewood, Colorado. (Id. at ¶
`
`12). It has had no other principal place of business. (EXHIBIT B at ¶ 6). Harrison
`
`Western’s headquarters are also in the State of Colorado. (Id. at ¶ 6). It has never
`
`had headquarters outside the State of Colorado. (Id. at ¶ 6).
`
`
`
`All Harrison Western’s executive and administrative functions occur within
`
`the State of Colorado; none have occurred in any other state. (Id. at ¶ 6). All
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`3
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 4 of 21
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`Harrison Western’s corporate officers live and reside in the State of Colorado; none
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`live or reside elsewhere. (Id. at ¶¶ 1-4).
`
`B. Harrison Western’s Revenue And Work In The Forum
`States.
`
`
`From 2009 through 2019, Harrison Western has generated revenue on projects
`
`
`
`in the State of New Mexico and the State of Utah. However, that revenue has been
`
`limited and has not been more than 10% of Harrison Western’s total revenue over
`
`that time period.
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`
`
`From 2009 through 2019, Harrison Western worked on the following projects
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`in New Mexico:
`
`ICP Ochoa Polyhalite Shaft and Slope Study (work
`began in March 2011 and concluded in September
`2011);
`Intrepid Potash East Shaft (work began June 5, 2013
`and concluded September 12, 2013);
`Intrepid Potash - West Mine Main (work began
`November 9, 2015 and concluded October 16,
`2016);
`Intrepid East Mine (work began September 15,
`2015 and concluded December 4, 2016);
`Intrepid Potash - East Production Shaft Guide
`Change Out (work began in May 2018 and
`concluded in June 2018); and,
`ASL Vault (work began in November 2017 and
`concluded March 2018). (EXHIBIT C – Harrison
`Western’s Third Supplemental Responses
`to
`Environmental Restoration, LLC’s
`Special
`Interrogatories, Set One at 3-4).
`
`●
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`●
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`●
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`●
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`●
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`●
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`4
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 5 of 21
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`From 2009 through 2019, Harrison Western worked on the following projects
`
`in Utah:
`
`●
`
`●
`
`●
`
`Winter Quarters Canyon Ventilation Slope, Skyline
`Mine (work began in May 2011 and concluded in
`February 2013);
`Blackjack Gazex Installation (work began August
`22, 2016 and principal work concluded in January
`2017/warranty work began in October 2019, and
`concluded on October 10, 2019); and,
`Park City Mine Tunnel Reconstruction (work began
`July 1, 2019 and concluded December 31, 2019).
`(Id. at 5-6).
`
`
`From 2009 through the end of 2019, Harrison Western earned revenue on the
`
`
`
`above projects in the State of New Mexico amounting to $2,209,682 and on the
`
`above projects in the State of Utah amounting to $ 9,182,612.35. (Id. at 15).
`
`Comparatively, over the same time period, Harrison Western earned revenue on
`
`projects in the State of Colorado amounting to $74,634,265, revenue on projects in
`
`the State of Kansas amounting to $14,581,773, and revenue on projects in the State
`
`of West Virginia amounting to $11,179,137. (Id. at 14-15).
`
`C. Harrison Western’s Role And Involvement With The Gold
`King Mine.
`
`All the work performed by Harrison Western in connection with the Gold
`
`
`
`
`King Mine was undertaken in Colorado or was intended to be undertaken in
`
`Colorado at the mine. (EXHIBIT B at ¶ 9).
`
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`5
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 6 of 21
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`
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`More specifically, Harrison Western was retained by ER in August 2014 to
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`assist in the reopening of the Gold King Mine. (EXHIBIT D – Declaration of Robert
`
`Heeter at ¶ 7). Toward that end, Harrison Western mobilized at the mine the following
`
`month (Id. at ¶¶ 9-10), at which time it observed others excavating near the mine’s
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`adit. (Id. at ¶ 10). Harrison Western noticed seepage in the face of the excavation in
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`a quantity that it believed could not be safely handled under the existing circumstances.
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`(Id. at ¶¶ 11-13). Harrison Western recommended that the excavation cease, and it did.
`
`(Id. at ¶ 14).
`
`
`
`With the mine reopening “suspended” (EXHIBIT A at ¶ 41), Harrison Western
`
`returned to suburban Denver, Colorado and prepared a revised construction plan to
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`reopen the Gold King Mine. (EXHIBIT D at ¶ 17). Harrison Western planned to
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`return to the Gold King Mine during the week of August 17, 2015. (Id. at ¶ 19).
`
`
`
`Others, including the United States Environmental Protection Agency (“EPA”)
`
`and ER, returned to the mine much earlier. (EXHIBIT A at ¶¶ 44-45, 55). According
`
`to Utah, these parties -- “EPA’s On Site Team” -- “created a plan to conduct excavation
`
`activities” at the Gold King Mine on August 4, 2015. (Id. at ¶ 44). However, that plan
`
`-- and the actual excavation of the mine’s adit -- substantially deviated from Harrison
`
`Western’s revised construction plan. (EXHIBIT D at ¶¶ 24-27). Moreover, that plan
`
`-- and the actual excavation of the mine’s adit -- were undertaken in the absence of,
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`
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`6
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 7 of 21
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`and without any input from, Harrison Western, “the subcontractor with the experience
`
`and expertise necessary to safely excavate the Gold King Mine adit.” (EXHIBIT A at
`
`¶¶ 44, 55, 85).
`
`
`
`Ultimately, “EPA’s On Site Team” -- not Harrison Western -- “triggered an
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`uncontrolled blowout at the Gold King Mine, located about five miles north of
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`Silverton, Colorado (the ‘Blowout’).” (Id. at ¶¶ 1, 44, 55).
`
`
`
`
`
`D. Utah Sues Harrison Western.
`
`On July 31, 2017, Utah sued Harrison Western in connection with the Gold King
`
`Mine spill and amended its Complaint on January 4, 2018 (EXHIBIT A). Utah did so,
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`advancing the following claims:
`
`•
`•
`•
`•
`•
`•
`
`cost recovery and other relief under CERCLA;
`declaratory judgment under CERCLA;
`negligence/gross negligence;
`public nuisance;
`violation of Utah’s Water Quality Act; and,
`violation of Utah’s Solid and Hazardous Waste
`Act.(Id. at ¶¶ 64-114).
`
`E.
`
`ER Sues Harrison Western.
`
`On July 1, 2019, ER asserted cross-claims against Harrison Western in the Utah
`
`
`
`
`
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`action and third-party claims against Harrison Western in the other four cases
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`comprising the MDL. ER advanced the following claims:
`
`• contribution – CERCLA § 113; and,
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`
`
`7
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 8 of 21
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`• declaratory judgment under 42 U.S.C. § 9613(G)(2), 28
`U.S.C. § 2201, Colorado law. (See, e.g., MDL DOC.
`218-1 at 31-34).
`
`
`ARGUMENT
`
`I.
`
`NEW MEXICO AND UTAH COURTS LACK PERSONAL
`JURISDICTION OVER HARRISON WESTERN.
`
`A.
`
`Standard Of Review.
`
`Under Fed. R. Civ. P. 12(b)(2), a district court must grant a motion to dismiss
`
`if it lacks personal jurisdiction over a defendant. “[W]hen the court’s jurisdiction is
`
`contested; the plaintiff has the burden of proving jurisdiction exists.” Wenz v.
`
`Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). Where jurisdiction is
`
`determined on the base of affidavits, a district court must accept as true all well-
`
`pleaded, non-conclusory facts alleged in the plaintiff’s complaint, and resolve all
`
`factual disputes in the plaintiff’s favor. Shrader v. Biddinger, 633 F.3d 1235, 1239
`
`(10th Cir. 2011). However, the allegations in a complaint are only taken as true to
`
`the extent that they are uncontroverted by the defendant’s affidavits. Kennedy v.
`
`Freeman, 919 F.2d 126, 128 (10th Cir. 1990). When, however, “personal
`
`jurisdiction is assessed in an evidentiary hearing … the plaintiff generally must
`
`establish, by a preponderance of the evidence, that personal jurisdiction exists.”
`
`Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 n.4 (10th
`
`Cir. 2008).
`
`
`
`8
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`
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 9 of 21
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`B.
`
`Personal Jurisdiction Generally.
`
`
`
`Where a federal statute provides for nationwide service of process, it becomes
`
`the statutory basis for personal jurisdiction. Peay v. BellSouth Med. Assistance
`
`Plan, 205 F.3d 1206, 1210 (10th Cir. 2000). CERCLA does not authorize
`
`nationwide service of process. See, e.g., U.S. v. Conrail, 674 F.Supp. 138, 142 n.1
`
`(D.Del. 1987) (noting nationwide service of process exception only for claims
`
`brought by United States); Steego Corp. v. Ravenal, 830 F. Supp. 42, 50 D. Mass.
`
`1993) (“CERCLA’s provision for nationwide service is only made applicable to suits
`
`brought on behalf of the United States, and not on behalf of private litigants, as is
`
`the case here…. Accordingly, this court rejects plaintiffs’ argument that the court
`
`has personal jurisdiction over all the defendants based on CERCLA’s provision for
`
`nationwide service of process.”).
`
`
`
`This means, then, that a court must look at whether the forum state authorizes
`
`service of process upon a non-resident defendant. Fed.R.Civ.P. 4(k)(1)(A). Here,
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`Utah does authorize such service of process (Utah Code Ann. § 78B-3-206), and
`
`Utah’s corresponding long-arm statute provides for the exercise of specific
`
`jurisdiction over a non-resident defendant under certain circumstances. Utah Code
`
`Ann. § 78B-3-205. Such jurisdiction, however, is expressly limited “to the fullest
`
`extent permitted by the due process clause of the Fourteenth Amendment to the
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`
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`9
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 10 of 21
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`United States Construction.” Utah Code Ann. § 78B-3-201(3). Accordingly,
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`where, as here, a non-resident defendant challenges the exercise of specific
`
`jurisdiction, a Utah court “need only address the constitutional issue of whether the
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`exercise of personal jurisdiction over the defendants comports with due process.”
`
`Blueberry Hill LLC v. Shalom International Corp., Case No. 2:17-cv-00385-DS,
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`2017 U.S. Dist. LEXIS 189321, *4 (D. Utah Nov. 15, 2017).
`
`
`
`Similarly, per New Mexico’s long-arm statute, jurisdiction is authorized to the
`
`extent it is consistent with the Due Process Clause. Trujillo v. Williams, 465 F.3d
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`1210, 1217 (10th Cir. 2006).
`
`
`
`The Due Process Clause of the Fourteenth Amendment constrains the
`
`authority a state court may exercise over a non-resident defendant. See Walden v.
`
`Fiore, 134 S.Ct. 1115, 1121 (2013). That authority is a function of the relationship
`
`and connection between the state and the non-resident defendant. See Goodyear
`
`Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2850-51 (2011). Over
`
`time, courts addressing a state court’s authority over a non-resident defendant have
`
`differentiated between general jurisdiction and specific jurisdiction. See Daimler
`
`AG v. Bauman, 134 S.Ct. 746, 754 (2014). A state court must have general or
`
`specific jurisdiction over a non-resident defendant before its exercise of authority
`
`over that defendant is considered constitutional. Goodyear Dunlop Tires
`
`
`
`10
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`
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 11 of 21
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`Operations, S.A., 131 S.Ct. at 2853-54. More specifically, “[t]he Supreme Court
`
`has held that, to exercise [general or specific] jurisdiction in harmony with due
`
`process, defendants must have ‘minimum contacts’ with the forum state, such that
`
`having to defend a lawsuit there would not ‘offend traditional notions of fair play
`
`and substantial justice.’” Dudnikov , 514 F.3d at 1070; Blueberry Hill LLC, 2017
`
`U.S. Dist. LEXIS 189321 at *5.
`
`
`
`Neither general nor specific jurisdiction is present here.
`
`C. General Jurisdiction Is Not Present In The Forum States.
`
`Only a limited set of affiliations with a forum will render a defendant
`
`amenable to all-purpose jurisdiction there. Daimler AG, 571 U.S. at 137. “For an
`
`individual, the paradigm forum for the exercise of general jurisdiction is the
`
`individual’s domicile; for a corporation, it is an equivalent place, one in which the
`
`corporation is fairly regarded as at home.” Id. “With respect to a corporation, the
`
`place of incorporation and principal place of business are ‘paradig[m] . . . bases for
`
`general jurisdiction.’” Id. Outside those paradigm bases, “only a limited set of
`
`affiliations with a forum” will subject a corporate defendant to general jurisdiction
`
`– which the U.S. Supreme Court calls the “exceptional case.” Id. at 137-39 n.19.
`
`In Daimler AG, the Supreme Court defined the extent “continuous and
`
`systematic” contacts could subject a defendant to all-purpose general jurisdiction:
`
`
`
`11
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 12 of 21
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`The paradigm all-purpose forums for general jurisdiction
`are a corporation’s place of incorporation and principal
`place of business. [Citation.] Plaintiffs’ reasoning,
`however, would reach well beyond these exemplar bases
`to approve the exercise of general jurisdiction in every
`State in which a corporation ‘engages in a substantial,
`continuous, and
`systematic course of business.’
`[Citation.] The words “continuous and systematic,”
`plaintiffs and the Court of Appeals overlooked, were used
`in International Shoe to describe situations in which the
`exercise of specific jurisdiction would be appropriate.
`[Citation.] With respect to all-purpose jurisdiction,
`International Shoe spoke instead of “instances in which
`the continuous corporate operations within a state [are] so
`substantial and of such a nature as to justify suit . . . on
`causes of action arising from dealings entirely distinct
`from those activities.” [Citation.] Accordingly, the proper
`inquiry, this Court has explained, is whether a foreign
`corporation's “affiliations with the State are so ‘continuous
`and systematic’ as to render [it] essentially at home in the
`forum State.” (Emphasis added). 571 U.S. at 119
`(internal citations omitted).
`
`ER and Utah have not alleged facts sufficient to establish the general
`
`
`
`
`jurisdiction of the courts of New Mexico or Utah over Harrison Western. (EXHIBIT
`
`A at ¶ 12) (alleging Harrison Western is a Colorado corporation with a principal
`
`place of business in Colorado); (see, e.g., MDL DOC. 218-1 at 25 (alleging Harrison
`
`Western is a Colorado corporation with its principal office located in Lakewood,
`
`Colorado and that “Harrison Western has repeatedly worked on and made itself
`
`available to work on mining reclamation, construction and other projects in New
`
`Mexico as a primary and/or sub-contractor for federal and state government
`12
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 13 of 21
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`agencies, general contractors for federal and state government agencies and/or other
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`parties.”)).
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`
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`Both Utah and ER allege Harrison Western is a Colorado corporation with its
`
`principal office located in Colorado. Thus, the paradigm forum for general
`
`jurisdiction over Harrison Western is Colorado, not Utah or New Mexico.
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`Furthermore, neither Utah nor ER alleges Harrison Western’s affiliations with Utah
`
`or New Mexico “are so ‘continuous and systematic’ as to render [it] essentially at
`
`home in [Utah and New Mexico].”
`
`Additionally, only a fraction of Harrison Western’s work over the last 10 years
`
`was performed in Utah or New Mexico. Out of nearly $150 million in total revenue
`
`during that time period, just over $9 million in revenue was earned on projects in the
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`State of Utah, and just over $2 million in revenue was earned on projects in the State
`
`of New Mexico, which equated to 6.3% and 1.5% of total revenue, respectively.
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`Conversely, approximately 52% of Harrison Western’s total revenue was earned on
`
`projects in the State of Colorado. Harrison Western could hardly be considered
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`“essentially at home” in states in which it is not incorporated and has no office and
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`earns 6.3% and 1.5% of its total revenue.
`
`
`
`ER has argued in jurisdictional discovery that the Court should consider
`
`factors identified by the Tenth Circuit Court of Appeals in Trierweiler v. Croxton &
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`
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`13
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 14 of 21
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`Trench Holding Corp., 90 F.3d 1523 (10th Cir. 1996). Harrison Western disputes
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`the applicability of the Trierweiler factors because that case was decided several
`
`years before the more recent and seminal United States Supreme Court cases on
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`general jurisdiction - Goodyear Dunlop Tires Operations, S.A. and Daimler AG.
`
`However, even if the Trierweiler factors are considered, they support a finding of
`
`no general jurisdiction over Harrison Western. The Trierweiler court considered
`
`four factors in analyzing a defendant’s contact with the forum state:
`
`●
`
`●
`
`whether the corporation solicits business in the state
`through a local office or agents;
`whether the corporation sends agents into the state
`on a regular basis to solicit business;
`the extent to which the corporation holds itself out
`as doing business in the forum state, through
`advertisements, listings or bank accounts; and,
`the volume of business conducted in the state by the
`corporation. 90 F.3d at 1533.
`
`As to the first factor, Harrison Western does not solicit business in the State
`
`●
`
`•
`
`of New Mexico or the State of Utah through local offices or agents. (EXHIBIT F –
`
`Declaration of Chris Hassel at ¶ 27). As to the second factor, HW does not regularly
`
`send agents into the State of New Mexico or the State of Utah to solicit business.
`
`(Id. at ¶ 28). As to the third factor, HW does not hold itself out as doing business
`
`in the State of New Mexico or the State of Utah through advertising or listings, and
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`it has no bank accounts in the State of New Mexico or State of Utah. (Id. at ¶ 29).
`
`
`
`14
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`
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 15 of 21
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`HW’s website identifies projects it has worked; however, the majority of projects
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`identified are in the State of Colorado. (Id. at ¶ 29). Finally, as to the fourth factor,
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`as established above, out of nearly $150 million in total revenue during that time
`
`period, just over $9 million in revenue was earned on projects in the State of Utah,
`
`and just over $2 million in revenue was earned on projects in the State of New
`
`Mexico which, again, equated to only 6.3% and 1.5% of total revenue, respectively.
`
`(EXHIBIT C at 14-15).
`
`
`
`Harrison Western’s affiliations with the States of New Mexico and Utah are
`
`not so continuous and systematic as to render Harrison Western essentially at home
`
`in those states. Thus, generally jurisdiction is not present over Harrison Western in
`
`either New Mexico or Utah.
`
`
`
`D.
`
`Specific Jurisdiction Is Not Present In The Forum States.
`
`Where, as here, general jurisdiction is not present, a court may still exercise
`
`specific jurisdiction over a non-resident defendant when the “controversy is related
`
`to or ‘arises out of’ [that] defendant’s contacts with the forum.” Helicopteros
`
`Nacionales de Colombia, S.A. v. Hall, 104 S.Ct. 1868, 1872 (1984). In other words,
`
`“the defendant’s suit-related conduct must create a substantial connection with the
`
`forum state.” Walden, 134 S.Ct. at 1121. The defendant must have “‘purposefully
`
`directed’ its activities at the state’s residents,” and “the cause of action [must] arise[]
`
`
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`15
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 16 of 21
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`out of those activities.” Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1066 (10th Cir.
`
`2007)(quoting Burger King Corp. v. Rudzewicz, 105 S.Ct. 2174, 2182 (1985)). As
`
`the Tenth Circuit has recently held, “purposeful direction exists when there is ‘an
`
`intentional action … expressly aimed at the forum state … with [the] knowledge that
`
`the brunt of the injury would be felt in the forum state.’” Anzures v. Flagship
`
`Restaurant Group, 819 F.3d 1277, 1280 (10th Cir. 2016)(quoting Dudnikov v.
`
`Chalk & Vermilion Fine Arts, 514 F.3d 1063, 1072 (10th Cir. 2008)). Likewise,
`
`the connection between the defendant and the forum state must be “based on
`
`intentional conduct by the defendant” and “must arise out of contacts that the
`
`‘defendant himself’ creates with the forum State.” Walden, 134 S.Ct. at 1122-23
`
`(quoting Burger King Corp., 105 S.Ct. at 2184); see Calder v. Jones, 104 S.Ct.
`
`1482, 1487 (1984); Dudnikov, 514 F.3d at 1072.
`
`Here, Utah has alleged no intentional conduct by Harrison Western “expressly
`
`aimed at” the State of Utah; rather, all of the alleged conduct of Harrison Western
`
`concerns actions or inactions taking place in and aimed at the State of Colorado
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`(EXHIBIT A at ¶¶ 12, 36, 39, 49-52, 56).3 Similarly, ER makes no allegations of
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`3 Harrison Western vehemently disputes that it engaged in any tortious activity
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`at all, since it was not involved in the August 4, 2015 plan to conduct excavation
`activities or the August 5, 2015 activities themselves, which resulted in the blowout.
`(See EXHIBIT A at ¶¶ 44, 55). However, for purposes of this motion, Harrison
`Western bases its arguments on the facts as alleged in Utah’s first amended
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 17 of 21
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`conduct directed at the State of New Mexico or State of Utah. (See, e.g., MDL DOC.
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`218-1 at 26-30). In fact, all conduct alleged by ER concerns actions or inactions
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`taking place in and aimed at the State of Colorado. (Id.).
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`Harrison Western did not purposefully direct any activity at the State of New
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`Mexico or the State of Utah in connection with the Gold King Mine. All HW’s
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`limited involvement with the Gold King Mine was undertaken in and directed at the
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`State of Colorado. (EXHIBIT F at ¶ 30). In fact, the purpose of the project at the
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`Gold King Mine was to safely reopen the mine, including directing any impounded
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`water to a water treatment facility in the State of Colorado in the vicinity of the Gold
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`King Mine. (Id.).
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`Utah has alleged no knowledge on the part of Harrison Western that the
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`actions it actually undertook in connection with the Gold King Mine (EXHIBIT A
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`at ¶¶ 12, 36, 39-41) would result in harm to the State of Utah almost a year later,
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`when “EPA’s On Site Team” -- in Harrison Western’s absence and without
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`Harrison Western’s knowledge -- “created a plan to conduct excavation activities”
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`and excavated at the mine adit (id. at ¶ 44), causing the spill. Similarly, ER has also
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`alleged no knowledge on the part of Harrison Western that the actions it actually
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`complaint, although it is Harrison Western’s position that such allegations are
`groundless.
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 18 of 21
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`undertook in connection with the Gold King Mine would result in harm to the State
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`of New Mexico or State of Utah. (See generally, e.g., MDL DOC. 218-1).
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`The spill, of course, ultimately brought contaminated wastewater from the
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`Gold King Mine into the San Juan River and eventually into Lake Powell.
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`(EXHIBIT A at ¶¶ 1, 62). However, where damage or injury is felt is not a sufficient
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`connection with the forum state to serve as the basis for specific jurisdiction.
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`Walden, 134 S.Ct. at 1125 (“The proper question is not where the plaintiff
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`experienced a particular injury or effect but whether the defendant’s conduct
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`connects him to the forum in a meaningful way.”) (Emphasis supplied). In other
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`words, “a plaintiff’s injuries must ‘“arise out of’ [the] defendant’s forum-related
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`activities.’” (Emphasis added). Anzures, 819 F.3d at 1280 (quoting Dudnikov,
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`514 F.3d at 1071).
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`Because Utah and ER have alleged no intentional conduct by Harrison
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`Western “expressly aimed at” the State of Utah or State of New Mexico or
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`knowledge that that “the brunt of the injury would be felt in the forum states,” (see
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`Dudnikov, 514 F.3d at 1072), there is no specific personal jurisdiction over Harrison
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`Western in New Mexico or Utah. Harrison Western therefore respectfully requests
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`the Court dismiss all claims against it under Fed. R. Civ. P. 12(b)(2).
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 19 of 21
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`CONCLUSION
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`For the aforementioned reasons, defendant Harrison Western Construction
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`Corporation moves now to dismiss the State of Utah’s and Environmental
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`Restoration’s claims against it pursuant to Fed. R. Civ. P. 12(b)(2).
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`DATED THIS 13TH DAY OF OCTOBER 2020.
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`Respectfully Submitted,
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`HALL & EVANS, LLC
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`By:[s/ Brian Molzahn]__________________
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`Brian Molzahn (pro hac vice)
`HALL & EVANS, LLC
`1001 Seventeenth Street Suite 300
`Denver, Colorado 80202
`(303) 628-3300
`(303) 628-3368 [facsimile]
`molzahnb@hallevans.com
`DEFENDANT
`COUNSEL
`FOR
`WESTERN
`HARRISON
`CONSTRUCTION CORPORATION
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 20 of 21
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`WORD-COUNT LIMIT CERTIFICATION
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`Pursuant to DUCivR 7-1(a)(3)(A), I hereby certify that the
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`foregoing MOTION OF DEFENDANT HARRISON WESTERN
`CONSTRUCTION CORPORATION TO DISMISS STATE OF
`UTAH AND ENVIRONMENTAL RESTORATION, LLC’S
`CLAIMS does not exceed the word-count limit for motions filed
`pursuant to Fed. R. Civ. P. 12(b).
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`[s/ Brian Molzahn]_______________
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`Brian Molzahn (pro hac vice)
`HALL & EVANS, LLC
`1001 Seventeenth Street Suite 300
`Denver, Colorado 80203
`(303) 628-3300
`(303) 628-3368 [facsimile]
`molzahnb@hallevans.com
`COUNSEL FOR DEFENDANT
`HARRISON
`WESTERN
`CONSTRUCTION
`CORPORATION
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`Case 1:18-md-02824-WJ Document 865 Filed 10/13/20 Page 21 of 21
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`CERTIFICATE OF SERVICE
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`I, Cristina Ramirez, hereby certify that on this 13th day of
`October 2020, a true and correct copy of the foregoing MOTION OF
`DEFENDANT HARRISON WESTERN CONSTRUCTION
`CORPORATION TO DISMISS STATE OF UTAH AND
`ENVIRONMENTAL RESTORATION, LLC’S CLAIMS was,
`unless otherwise noted, served on the following via CM/ECF system:
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`COUNSEL OF RECORD
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`[s/ Cristina Ramirez ]_______________
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`Legal Secretary to
`Brian Molzahn (pro hac vice)
`HALL & EVANS, LLC
`1001 Seventeenth Street Suite 300
`Denver, Colorado 80203
`(303) 628-3300
`(303) 628-3368 [facsimile]
`molzahnb@hallevans.com
`COUNSEL FOR DEFENDANT
`HARRISON
`WESTERN
`CONSTRUCTION
`CORPORATION
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