Case 1:18-cv-00319-WJ Document 504 Filed 11/16/20 Page 1 of 22
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
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`IN RE: GOLD KING MINE RELEASE
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`IN SAN JUAN COUNTY, COLORADO
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`ON AUGUST 5, 2015
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`This Document Relates to:
`No. 16-cv-465-WJ/LF
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`No. 16-cv-931-WJ/LF
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`No. 18-cv-319-WJ
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`__________________________________________)
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`No. 1:18-md-02824-WJ
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`UNITED STATES OF AMERICA’S OPPOSITION TO
`KINROSS GOLD CORPORATION’S MOTION FOR SUMMARY JUDGMENT ON
`THE UNITED STATES’ CROSSCLAIMS: PERSONAL JURISDICTION
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`Pursuant to Federal Rule of Civil Procedure 4(k)(2), this Court has personal jurisdiction
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`over Kinross Gold Corporation (KGC), the Canadian successor-by-amalgamation (merger) to
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`Echo Bay Mines Ltd. Rule 4(k)(2) authorizes a court to exercise personal jurisdiction over a
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`defendant if (1) the claim arises under federal law, (2) the defendant is not subject to jurisdiction
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`in any individual state’s courts of general jurisdiction, and (3) the exercise of jurisdiction
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`comports with due process. See Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com. de Equip.
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`Medico, 563 F.3d 1285, 1293-94 (Fed. Cir. 2009). These three elements are satisfied here.
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`The United States’ crossclaims “arise under federal law,” specifically Comprehensive
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`Environmental Response, Compensation, and Liability Act (CERCLA) Sections 107 and 113, 42
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`U.S.C. §§ 9607 and 9613. In response to interrogatories propounded by the United States, KGC
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`admits that it is not currently subject to jurisdiction in any state. Finally, this Court’s exercise of
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`jurisdiction over KGC is consistent with the Constitution. Echo Bay Mines’ nationwide contacts
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`during the pertinent time-period are attributable to KGC and support assertions of both general
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`Case 1:18-cv-00319-WJ Document 504 Filed 11/16/20 Page 2 of 22
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`jurisdiction and specific jurisdiction. Additionally, KGC’s current, extensive, commercial
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`contacts within the United States belie any complaint that litigating in this forum is
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`unconstitutionally unfair and unreasonable. Defendant KGC’s motion should be denied.
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`ARGUMENT
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`A. Federal Rule of Civil Procedure 4(k)(2) Provides a Basis for Establishing
`Personal Jurisdiction over Foreign Defendants
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`The text of Federal Rule of Civil Procedure 4(k)(2) states as follows:
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`Federal Claim Outside State-Court Jurisdiction. For a claim that
`arises under federal law, serving a summons or filing a waiver of
`service establishes personal jurisdiction over a defendant if:
`(A) the defendant is not subject to jurisdiction in any state’s courts
`of general jurisdiction; and (B) exercising jurisdiction is consistent
`with the United States Constitution and laws.
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`Fed. R. Civ. P. 4(k)(2). The 10th Circuit has held that “Rule 4(k)(2) . . . provides for federal
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`long-arm jurisdiction if the plaintiff can show that the exercise of jurisdiction comports with due
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`process.” GCIU-Employer Ret. Fund v. Coleridge Fine Arts, 700 F. App’x 865, 867-68 (10th
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`Cir. 2017).
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`1. The United States’ Crossclaims Arise under Federal Law (CERCLA)
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`On July 1, 2019, the United States filed crossclaims against Defendants KGC and
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`Sunnyside Gold Corporation (SGC), seeking recovery of response costs incurred by the United
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`States in connection with decades of releases of hazardous substances at the Bonita Peak Mining
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`District National Priorities List Site (the “Site”), pursuant to CERCLA Section 107(a), 42 U.S.C.
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`§ 9607(a). Dkt. 195 at 46. Under CERCLA Sections 113(g)(2) and 113(f)(1), the United States
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`further seeks (i) a declaration that KGC and SGC are jointly and severally liable for all future
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`response costs to be incurred by the United States in connection with the Site and (ii) equitable
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`2
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`apportionment or allocation among itself, KGC, and SGC of any award granted against the
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`United States from claims asserted by other parties. Id.
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`The United States’ crossclaims contain fulsome allegations supporting its claim that
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`KGC, as successor by amalgamation (merger) to Echo Bay Mines, is liable under CERCLA
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`Section 107(a)(2) as an “operator” at the Site at the time of disposal of hazardous substances
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`there.1 See United States v. Bestfoods, 524 U.S. 51, 66-67, 118 S. Ct. 1876 (1998) (“[O]perator
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`must manage, direct, or conduct operations . . . having to do with the leakage or disposal of
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`hazardous waste, or decisions about compliance with environmental regulations.”). The United
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`States alleges that Echo Bay Mines took numerous actions relating to the generation,
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`management, and release of hazardous substances, specifically acid mine drainage, at the Site
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`between 1985 and 2003. See United States v. United Nuclear Corp., 814 F. Supp. 1552, 1558
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`(D.N.M. 1992) (CERCLA liability for seepage of liquid from mine tailings pond).
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`Specifically, the United States’ crossclaims allege that Echo Bay Mines negotiated the
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`1985 acquisition of the Sunnyside Mine from Standard Metals (Dkt. 195 at 55-56 (¶ 49)) and
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`then directed and financed the rehabilitation of the mine (id. at 56 (¶ 54)). The United States also
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`alleges that Echo Bay Mines, along with SGC, later decided to close the Sunnyside Mine (id. at
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`58 (¶ 60)) and as part of mine closure, conducted studies and drafted memoranda identifying
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`environmental issues, and subsequently funded and implemented actions to address
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`contamination at operations at the Lake Emma basin, the Mayflower Mill tailings
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`impoundments, the Terry Tunnel, and the American Tunnel (id. at 58-59 (¶¶ 60-62)).
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`1 The United States also alleges that, under theories of alter ego and veil piercing, KGC is responsible for
`SGC’s liability as an owner and operator of the Site. Because the United States’ “direct operator” claim
`against Echo Bay Mines (now amalgamated into KGC) is sufficient to support personal jurisdiction, we
`do not address the SGC-related theories herein.
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`3
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`The crossclaims likewise assert that Echo Bay Mines interacted with environmental
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`regulators to address releases and potential releases of hazardous substances at the Site, e.g. Echo
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`Bay Mines, along with SGC, submitted a plan to the Colorado Division of Minerals and Geology
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`to create the Sunnyside Mine Pool (id. at 59 (¶ 63)) and was aware in 1999 that the Sunnyside
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`Mine Pool was not stable and was accelerating the formation of acid mine drainage (id. at 60
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`(¶ 67)). Finally, in addition to the specific actions identified above, the United States generally
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`asserted that Echo Bay Mines managed and directed SGC’s operations at the Site, including
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`operations involving the treatment and disposal of hazardous substances at the Sunnyside Mine,
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`American Tunnel, Terry Tunnel, and Mayflower Mill and tailings impoundments from 1985 to
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`2003 (id. at 68 (¶ 109)).
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`The United States, of course, is not required to prove liability at the jurisdictional stage. It
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`needs simply to allege sufficient facts to state a claim and, as discussed below, show that some of
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`those facts illustrate Echo Bay Mines’ contacts with the subject forum – the United States for
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`purposes of Rule 4(k)(2). Discovery to date, however, has provided substantial evidentiary
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`support for the United States’ assertion of CERCLA operator liability against KGC, including
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`evidence of Echo Bay Mines’ involvement in environmental matters at the Site (i) while mining
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`and milling was ongoing, (ii) as part of the decision to halt active mining there, and (iii) in
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`closing the mine and addressing environmental concerns.
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`Echo Bay Mines was directly involved in environmental decision-making impacting the
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`Site while ore was being extracted from the Sunnyside Mine and processed at the Mayflower
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`Mill. It managed and directed operations at the Site on its own or in partnership with various
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`joint ventures.2 For example, a series of memoranda from 1989 through 1992 detail the
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`2 These joint ventures included the Sunnyside-Gerber Venture, the Alta Bay Venture, and the San Juan
`County Mining Venture. See Declaration of Jessica Warren, Exs. 1-3 (Attach. A hereto).
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`participation of Echo Bay Mines personnel in roughly quarterly “operations reviews” of the San
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`Juan County Mining Venture, and addressed environmental and budgeting issues relating to
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`operation of the Sunnyside Mine. See Warren Decl., Exs. 4-16. Echo Bay Mines officers and
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`employees attended and participated in these meetings and discussed issues including
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`construction and maintenance of tailings ponds, mine waste control and cleanup activities
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`(“reclamation”), environmental permitting, chemical cleanup, and U.S. EPA’s investigation of
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`potential contamination of the Animas River drainage.
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`Throughout 1990 and 1991, Echo Bay Mines investigated and assessed environmental
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`issues at the Sunnyside Mine in conjunction with the company’s decision to halt active mining
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`there. Personnel visited Sunnyside Mine in May, October, and November 1990 to assess
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`environmental issues and potential reclamation costs. See Warren Decl, Exs. 17-19. Then, from
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`January 10-12, 1991, a contingent from Echo Bay Mines’ Canadian operations, led by Lupin
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`mine geologist H.R. Bullis, visited the Sunnyside Mine to evaluate issues relating to closure and
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`reclamation. This inspection resulted in a series of memoranda among Echo Bay Mines
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`personnel in the United States and Canada assessing issues relating to potential mine closure. See
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`Warren Decl., Exs. 20-24.
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`Finally, Echo Bay Mines continued to be directly involved in various environmental
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`issues at the Site following its decision to close the Sunnyside Mine. For example, on October 1,
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`1993, the Colorado Department of Public Heath (CDPH) sent a letter to Echo Bay Mines and
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`SGC regarding the plugging of the American Tunnel. See Warren Decl., Ex. 25. Echo Bay Mines
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`undertook this project and, as it neared completion, on July 23, 1996, Echo Bay Mines’ President
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`and CEO, Richard Kraus, sent an invitation to the Director of CDPH to come celebrate the
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`“special event” of closing the drainage valve at the American Tunnel bulkhead. See Warren
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`Decl., Ex. 26.
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`The allegations in the United States’ crossclaims – and the evidence mustered to date
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`supporting them – bear a strong similarity to those recently held to be sufficient to establish
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`CERCLA operator liability against a mining operation’s corporate parent in United States v.
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`Sterling Centrecorp Inc., No. 18-15585, 2020 WL 5885920, *5 (9th Cir. Oct. 5. 2020). The
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`United States’ crossclaims effectively state a claim that KGC, as successor to Echo Bay Mines,
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`is liable as an operator at the Site under CERCLA Section 107 -- a federal statute. The first
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`element of Rule 4(k)(2) is satisfied.
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`2. KGC is Not Subject to Any State Court’s Jurisdiction
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`Rule 4(k)(2) personal jurisdiction is limited to matters where the “defendant is not subject
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`to jurisdiction in any state’s courts of general jurisdiction.” Fed. R. Civ. P. 4(k)(2). Courts have
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`generally held that the defendant bears the burden of establishing this element and have required
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`the defendant to identify whether there is another judicial district where it would be subject to
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`personal jurisdiction for the action. See GCIU-Employer Ret. Fund, 700 F. App’x at 868 quoting
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`Holland Am. Line Inc. v. Wärtsilä N. Am., Inc., 485 F.3d 450, 461 (9th Cir. 2007) (“defendant
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`who wants to preclude use of Rule 4(k)(2) has only to name some other state in which the suit
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`could proceed”); see also Downrange Headquarters, LLC v. 2494924 Ontario, Inc., No. 2:18-cv-
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`924, 2019 WL 6255087, *4 (D. Utah 2019).
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`In response to an interrogatory on this specific question, KGC stated that it does not
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`contend that it is subject to personal jurisdiction in any state’s court of general jurisdiction.
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`Warren Decl., Ex. 27 (Kinross Gold Corporation’s Amended and Supplemental Responses and
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`Objections to the United States’ Second Set of Interrogatories to Kinross Gold Corporation,
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`Response to Interrog. No. 21 (June 29, 2020)). The second element of Rule 4(k)(2) is satisfied.
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`3. KGC’s Nationwide Contacts are Sufficient to Establish General
`Jurisdiction and/or Specific Jurisdiction
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`Under Rule 4(k)(2), where a claim is brought under a federal statute and defendant has
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`declined to identify a state where it is subject to jurisdiction, then the “only question at issue is
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`whether the exercise of federal jurisdiction satisfies Fifth Amendment due process standards.”
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`GCIU-Employer Ret. Fund, 700 F. App’x at 868. In applying the federal long-arm jurisdiction
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`provided by the Rule, a court looks to whether the defendant has sufficient “minimum contacts
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`with the United States” to satisfy constitutional due process concerns, rather than contacts with
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`the specific forum state as under a state long-arm statute.3 Id., see also Downrange
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`Headquarters, 2019 WL 6255087 at *4. How defendant’s contacts with the forum are assessed
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`depends on whether there is an assertion of general jurisdiction (defendant at home in forum) or
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`specific jurisdiction (actions giving rise to claim occurred in forum). Here, however, Echo Bay
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`Mines’ contacts with the United States during the relevant time-period satisfy both general
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`jurisdiction and specific jurisdiction.
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`a. Echo Bay Mines’ Contacts Accrue to Kinross Gold Corp. as Its
`Successor by Amalgamation (Merger)
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`Personal jurisdiction over KGC is predicated on jurisdictional acts by Echo Bay Mines
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`between 1985 and 2003, a period prior to KGC’s amalgamation with Echo Bay Mines. This is
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`appropriate because a “corporation’s contacts with a forum may be imputed to its successor if
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`3 Although the United States advised KGC in February 2020 that Rule 4(k)(2) provided a controlling basis
`for this Court to assert personal jurisdiction over KGC, KGC chose not to address application of
`Rule 4(k)(2) in its motion. See Dkt. 186 at 6-9. None of the cases cited therein relate to application of the
`minimum contacts test on a nationwide basis, as appropriate when assessing application of Rule 4(k)(2).
`See, e.g., Dudnikov v. Chalk & Vermilion Fine Arts, 514 F.3d 1063, 1070 (10th Cir. 2008) (after
`confirming action was not brought under a statute providing for nationwide service of process, court
`looked to state long-arm statute).
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`forum law would hold the successor liable for the actions of its predecessor.” Williams v.
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`Bowman Livestock Equipment Co., 927 F.2d 1128, 1132 (10th Cir. 1991). KGC is liable for
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`Echo Bay Mines’ actions as its successor by amalgamation, the equivalent of a merger under
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`Canadian law. As such, Echo Bay Mines’ historic contacts with the United States are as relevant
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`to a determination of personal jurisdiction over KGC as KGC’s own contacts.
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`An amalgamation is a Canadian “statutory procedure which causes two corporations to
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`lose their separate identities and continue as one corporation.” Declaration of John MacNeil
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`(Attach. B hereto) at Para. 8. Under Canadian law, amalgamating corporations “cease to exist
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`separately, and the resulting entity possesses all the property, rights, privileges and franchises
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`and is subject to all liabilities, including civil, criminal and quasi-criminal, and all contracts,
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`disabilities and debts of each of the amalgamating corporations.” Id. at Para. 14. See also
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`Warren. Decl., Ex. 28 (K. Grandy Depo., 7/6/20) at 89-90 (in Canadian law, amalgamation and
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`merger are interchangeable terms). American sources have likewise concluded that the legal
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`effect of an amalgamation is the same as a merger under American law. See Canadian
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`Amalgamation Qualifies as U.S. Merger, 5 JITAX 47, 1994 WL 12225, *1 (Canadian
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`amalgamation has the essential characteristics of a U.S. merger).
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`Imputation of jurisdictional contacts from an entity to its successor is particularly
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`appropriate in the amalgamation or merger context “[b]ecause a successor by merger is deemed
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`by operation of law to be both the surviving corporation and the absorbed corporation, subject to
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`all the liabilities of the absorbed corporation[.]” U.S. Bank Nat’l Ass’n v. Bank of Am. N.A., 916
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`F.3d 143, 156 (2d Cir. 2019). In U.S. Bank National Association, the Second Circuit assessed
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`jurisdiction where Bank of America was the successor by merger to LaSalle Bank, and stated
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`that “Bank of America, as the surviving entity, would be subject to jurisdiction in Indiana in a
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`suit based on breach of LaSalle’s contract if LaSalle’s Indiana-directed actions in relation to the
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`contract would have made LaSalle subject to Indiana jurisdiction.” Id.
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`All obligations and liabilities held by Echo Bay Mines prior to the amalgamation may be
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`attributed to KGC following the amalgamation. See MacNeil Decl. at Paras. 15-16. Thus, if Echo
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`Bay Mines’ contacts with the United States would have made it subject to this Court’s
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`jurisdiction, then KGC is likewise subject to personal jurisdiction as the surviving entity of the
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`amalgamation.
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`b. Echo Bay Mines’ Nationwide Contacts Satisfy General Jurisdiction
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`General jurisdiction exists where, even if defendant’s contacts with the forum are not
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`relevant to the claims at issue, due process is satisfied because the defendant’s “affiliations with
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`the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum
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`State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S. Ct. 2846
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`(2011). Under Rule 4(k)(2), the due process analysis “contemplates a defendant’s contacts with
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`the entire United States, as opposed to the state in which the district court sits.” Synthes (U.S.A.),
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`563 F.3d at 1295. Additionally, general jurisdiction over a defendant may be determined as of
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`the time when the events giving rise to the claim occurred. See Pecoraro v. Sky Ranch for Boys,
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`Inc., 340 F.3d 558, 562 (8th Cir. 2003) (“Minimum contacts must exist either at the time the
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`cause of action arose, the time the suit is filed, or within a reasonable period of time immediately
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`prior to the filing of the lawsuit.”); Wilson v. Qorvis Commc’ns, No. CIV-07-0792-HE, 2007 WL
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`4171567, *3 (W.D. Okla. 2007) (“the relevant [jurisdictional] time period for purposes of this
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`case is when the plaintiff’s claims arose”).
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`The United States alleges that Echo Bay Mines was a CERCLA “operator” at the Site
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`from 1985 through 2003. Personal jurisdiction, therefore, may be appropriately predicated on
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`Case 1:18-cv-00319-WJ Document 504 Filed 11/16/20 Page 10 of 22
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`general jurisdiction arising from Echo Bay Mines’ contacts with the United States during that
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`time. And, as shown below, Echo Bay Mines was “at home” in the United States for a significant
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`portion of that period.
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`While a company’s principal place of business is not the exclusive means of identifying
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`where general jurisdiction may be asserted, along with place of incorporation it represents the
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`paradigm of where a corporation “is fairly regarded as at home.” Daimler AG v. Bauman, 571
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`U.S. 117, 137-38, 134 S. Ct. 746 (2014), quoting Goodyear, 564 U.S. at 924. At times
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`throughout the 1990s, Echo Bay Mines identified Colorado as the location of its “principal
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`executive offices” in its filings with the Securities and Exchange Commission (SEC), listed its
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`Colorado offices as its sole address in its Annual Reports, located the majority and later all of its
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`officers in the United States, and exclusively operated American mines after shuttering its only
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`Canadian mine – leaving the American mines as its sole source of operational income. For much
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`of the relevant time period, the United States was Echo Bay Mines’ home.
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`While incorporated and initially headquartered in Alberta, Canada, Echo Bay Mines
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`relocated a significant portion of its management operations to a Denver, Colorado office in
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`approximately 1986-1987. See Warren Decl., Ex. 29 (Dep. of J. Azlant) at 34 (“[T]he
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`headquarters essentially moved down, with … even more employees, especially on the financial
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`side, … to Denver.”). By 1990, corporate responsibilities were roughly split between the United
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`States and Canada, with Echo Bay Mines’ 1990 Form 10-K identifying the company as having
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`11 executive officers -- six located in the United States (including Robert Calman, Chairman of
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`the Board, and Richard Kraus, Executive Vice President/CFO) and five in Canada (including
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`John Zigarlick, President/CEO).4 See Warren Decl, Ex. 30. (Echo Bay Mines 1990 Form 10-K).
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`4 The officers working out of the Denver office were: Richard Kraus, Executive Vice President and Chief
`Financial Officer; Peter Clarke, Senior Vice President Operations; Alan Broughton, Vice President; Peter
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`The next year, corporate management changes altered the balance and the United States
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`clearly became the “home” of Echo Bay Mines. That year, US-based Richard Kraus was
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`promoted to President and Canada-based John Zigarlick entered semi-retirement as Vice
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`Chairman. A January 1991 Echo Bay Mines Management Report memorialized the upcoming
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`shift from Canada to the United States, stating: “EBML [Echo Bay Mines Ltd.] Edmonton office
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`downsizing; planning for transfer of systems and functions to Denver.” Warren Decl., Ex. 31 at
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`SGCDOC060719; see also Warren Decl., Ex. 32 (Jenner Depo.) at 37-38 (after 1991 almost the
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`entirety of Echo Bay Mines staff located in Denver).
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`As to the reason for the office move to Denver, Mr. Kraus testified that:
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`“The reason was most of our mines were in the United States. …
`Denver is a mining town, an oil and gas town … all the advisors
`that you need, Denver is well stocked with consultants, whereas
`Edmonton is not. So it was a [] practical move to put us [] closer to
`the operations and our consultants.”
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`Warren Decl., Ex. 33 (Kraus Depo.) at 80-81. Echo Bay Mines’ 1991 Form 10-K only references
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`the Denver office and no longer mentions Edmonton. Warren Decl., Ex. 34 (Echo Bay Mines
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`1991 Form 10-K). The 1991 10-K now lists eight of the 11 “executive officers” as being located
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`in the United States. See id. The increasing importance of the Denver office was further
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`illustrated by the Echo Bay Mines Board of Directors holding its Executive Committee meetings
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`there in July 1991, and February and October 1992. See Warren Decl., Exs. 35-37.
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`In 1995, Echo Bay Mines moved from its downtown Denver offices into corporate
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`offices located in suburban Englewood, Colorado and explicitly identified that location as its
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`“principal executive offices” in its Form 10-Ks for the years 1996 through 1998. See Warren
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`Cheesbrough, Vice President and Principal Accounting Officer; and Steven Conte, Vice President.
`Additionally, Echo Bay Mines’ Chairman of the Board of Directors, Robert Calman, resided in Palm
`Beach, Florida.
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`Decl., Exs. 38-40. No reference to Edmonton exists in those filings. Echo Bay Mines’ 1997 and
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`1998 Annual Reports, likewise only list Englewood as the company’s address, with no reference
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`made in the annual reports to any Canadian office. See Warren Decl., Exs. 41-42. Robert Leclerc
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`had been Echo Bay Mines’ Secretary and was the last major officer located in Canada, as he was
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`also a partner in an Edmonton law firm. See Warren Decl., Ex. 29 (Dep. of J. Azlant at 119-120).
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`But when Mr. Leclerc took over the top corporate position from Richard Kraus in 1997, he too
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`moved to Colorado. Id.
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`Echo Bay Mines’ principal mining operations likewise shifted in importance from
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`Canada to the United States over time, until by 1998 it no longer had any active Canadian mines.
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`At that point, Echo Bay Mines only had three producing mines, two in central Nevada (Round
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`Mountain and McCoy/Cove) and a third in Washington (Kettle River). Echo Bay Mines
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`suspended mining at its only Canadian mine, Lupin, due to high costs of production. In 1998 and
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`1999, the entirety of Echo Bay Mine’s mining production occurred within the United States –
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`over 1 million ounces of gold and 17.8 million ounces of silver produced during that period came
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`from American mines, not one ounce came from Canada. See Warren Decl., Ex. 42, 43 (Echo
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`Bay Mines Annual Reports 1998, 1999).
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`Echo Bay Mines’ history is analogous to that of the defendant in Perkins v. Benguet
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`Consol. Mining Co., 342 U.S. 437 (1952), which Justice Ginsburg cited as “the textbook case of
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`general jurisdiction appropriately exercised over a foreign corporation that has not consented to
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`suit[.]” Daimler, 571 U.S. at 129. In Perkins, the defendant mining company was incorporated in
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`the Philippines and worked gold and silver mines there until its operations were disrupted by the
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`Japanese occupation during the Second World War. Perkins, 342 U.S. at 448. Benguet’s
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`president moved to Ohio, where he maintained an office and oversaw the company’s activities.
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`Id. When an Ohio resident subsequently sued Benguet on a claim “that neither arose in Ohio nor
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`related to the corporation’s activities in that State,” the Supreme Court found that Ohio courts
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`could exercise general jurisdiction because “Ohio was the corporation’s principal, if temporary,
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`place of business.” Daimler, 571 U.S. at 129-130 (internal citations and quotations omitted).
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`Throughout the 1990s, the United States was Echo Bay Mines’ principal, if temporary,
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`place of business. Echo Bay Mines moved its offices to the United States and referred to its
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`Colorado headquarters as its “principal executive offices” in SEC filings. Echo Bay Mines’
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`officers were located in the United States. Echo Bay Mines owned and/or operated significant
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`mining operations in the United States and for a period of time had no active mines in Canada.
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`Moreover, unlike Benguet, Echo Bay Mines did so simply as a “practical” corporate business
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`decision, not because it was compelled to do so by a foreign invasion. Echo Bay Mines’ constant
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`and pervasive contacts within the United States throughout the late 1980s and 1990s are
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`attributable to KGC and establish general jurisdiction over KGC.
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`c. Echo Bay Mines’ Nationwide Contacts Establish Specific Jurisdiction
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`KGC is also subject to the personal jurisdiction of this Court because specific jurisdiction
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`over KGC is likewise applicable here. “Consistent with the minimum contacts standard, a federal
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`court may exercise specific jurisdiction over a foreign defendant if the defendant purposefully
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`directed its activities at the forum and the plaintiff’s injuries arose from the defendant’s forum-
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`related activities.” GCIU-Employer Ret. Fund, 700 F. App’x at 868. Specific jurisdiction
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`requires a lower level of contacts with the forum than general jurisdiction, so long as the contacts
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`give rise to the claim. The United States has alleged that Echo Bay Mines engaged in actions
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`within the United States that are attributable to KGC and support the United States’ claim that
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`Case 1:18-cv-00319-WJ Document 504 Filed 11/16/20 Page 14 of 22
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`KGC is liable under CERCLA Section 107(a)(2), as an operator at the Site at a time of disposal
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`of hazardous substances there.
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`Again, when the jurisdictional minimum contacts analysis is conducted in conjunction
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`with Rule 4(k)(2), the “forum” is the United States as a whole rather than an individual state. See
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`Synthes (U.S.A.), 563 F.3d at 1295; Pandaw America, Inc. v. Pandaw Cruises India Pvt, Ltd.,
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`842 F. Supp. 2d 1303, 1311 (D. Colo. 2012); see also GCIU-Employer Ret. Fund v. Coleridge
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`Fine Arts, No. 14-2303-EFM-KGG, 2019 WL 2924843, at *4 (D. Kan. July 8, 2019), aff’d,
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`No. 19-3161, 2020 WL 1672776 (10th Cir. Apr. 6, 2020) (“[T]he appropriate question is whether
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`Defendants purposefully directed their activities toward the United States, and whether
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`Plaintiffs’ alleged injuries relate to these forum-related activities.”).
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`Thus, in order for Echo Bay Mines – and by extension KGC – to be subject to the
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`specific jurisdiction of this court under Rule 4(k)(2), Echo Bay Mines’ contacts with the nation
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`as a whole must be (1) either related to the cause of action or have given rise to it; (2) involve
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`some act by which Echo Bay Mines purposefully availed itself of the privilege of conducting
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`activities within the forum; and (3) must be such that it should reasonably have anticipated being
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`haled into court here. Panama v. BCCI Holdings (Luxembourg) S.A. 119 F.3d 935, 942 (11th Cir.
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`1997).
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`In the preceding section, we described why Echo Bay Mines’ constant and pervasive
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`contacts with the United States satisfied the general jurisdiction standard. Consistent with such
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`extensive contacts – including maintaining its corporate headquarters in the United States for
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`almost a decade and conducting the vast majority of its commercial operations here – numerous
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`contacts related to the cause of action likewise occurred within the United States and clearly
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`satisfy the requirements that Echo Bay Mines purposely availed itself of the privilege of
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`Case 1:18-cv-00319-WJ Document 504 Filed 11/16/20 Page 15 of 22
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`conducting activities in the United States and should have reasonably anticipated being haled
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`into court here. Echo Bay Mines had far more than merely “random, fortuitous, or attenuated
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`contacts” with the United States. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105
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`S. Ct. 2174 (1985).
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`Virtually all of the acts taken by Echo Bay Mines that give rise to the United States’
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`CERCLA claims took place within the United States. See supra at 4-6. The Site is located in the
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`United States and the United States alleges that Echo Bay Mines operated the Sunnyside Mine
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`and related operations within the Site at a time when hazardous substances were disposed there.
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`Echo Bay Mines’ officers and employees made decisions regarding conducting and curtailing
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`active mining at the Sunnyside Mine and associated environmental issues from their Denver and
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`Englewood offices. The quarterly “operations reviews” described above took place at Durango,
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`Silverton, and Denver, Colorado. The releases of acid mine drainage took place within the
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`United States, as did the efforts to address them. Echo Bay Mines’ activities within the United
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`States are attributable to KGC. They gave rise to the United States’ claims against KGC and
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`establish specific jurisdiction over KGC.
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`***
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`Although one is sufficient, the United States has shown that Echo Bay Mines’ contacts
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`with the United States establish personal jurisdiction over its successor by amalgamation, KGC,
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`under theories of both specific jurisdiction and general jurisdiction. Echo Bay Mines’ contacts
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`with the United States were both constant and pervasive, and included contacts related to the
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`United States’ CERCLA claims. The third element of Rule 4(k)(2) is satisfied.
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`Case 1:18-cv-00319-WJ Document 504 Filed 11/16/20 Page 16 of 22
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`B. Imposition of Personal Jurisdiction over KGC is Fair and Reasonable
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`Where personal jurisdiction is sought to be established through nationwide service of
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`process or evaluation of nationwide contacts, the final step for evaluating its applicability is to
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`determine “whether exercising jurisdiction would offend traditional notions of fair play and
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`substantial