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Anzures v. Flagship Restaurant Group

United States Court of Appeals, Tenth Circuit

April 22, 2016

JOE ANZURES, Plaintiff - Appellant,
v.
FLAGSHIP RESTAURANT GROUP, a Nebraska company; NICK HOGAN, Defendants - Appellees

          Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:14-CV-01277-REB-CBS).

         Submitted on the briefs:[*]

         Patrick D. Vellone, Jordan D. Factor, Allen & Vellone, P.C., Denver, Colorado, for Plaintiff-Appellant.

         Michael J. Roche, Lathrop & Gage, LLP, Denver, Colorado; Scott D. Jochim, Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, L.L.C., Omaha, Nebraska, for Defendants-Appellees.

         Before KELLY, PORFILIO, and BALDOCK, Circuit Judges.

          OPINION

         KELLY, Circuit Judge.

         Joe Anzures appeals from the district court's dismissal of his case for lack of personal jurisdiction over defendants. We have appellate jurisdiction under 28 U.S.C. § 1291, and we affirm.

         BACKGROUND

         Anzures is a Colorado resident, and defendants Nick Hogan and Flagship Restaurant Group are Nebraska residents. Anzures and non-party Jared Mitilier (a California resident) contacted defendant Hogan in Omaha, Nebraska, about starting a business venture (all three had been high-school classmates in Nebraska). The proposed business was to broker the sale of pre-paid financial products akin to pre-loaded debit cards. Hogan agreed, and Industria Payment Solutions, LLC was formed as a Nevada LLC with both its registered office and registered agent in Nevada.

         Industria had three members: Anzures, Mitilier, and Flagship, in which Hogan held a 31.4% ownership interest.[1] Industria's operating agreement listed Industria's principal place of business as being at Flagship's Omaha, Nebraska address, and the agreement was to be governed by Nevada law. Flagship agreed to contribute $500,000 to Industria in exchange for a 50% ownership interest in Industria and was, according to Hogan, a passive investor. Neither Anzures nor Mitilier contributed any money, but each took a 25% ownership interest in Industria. Anzures, who had past experience in payment-solutions products, was put in charge of day-to-day operations and named presiding manager; Hogan and Mitilier were also managers. Mitilier's role was to provide his experience marketing the financial products to gaming institutions.

         Anzures was Industria's only employee. He set to work attempting to broker a deal with Western Union in Colorado. But a few months after Industria's formation, Hogan allegedly attempted to squeeze Anzures out so Flagship could increase its ownership interest. To that purported end, Hogan allegedly made a series of false accusations to Mitilier that Anzures was secretly assisting one of Industria's competitors, and he tried to persuade Mitilier to vote in favor of removing Anzures from Industria and instituting litigation against Anzures. Hogan also allegedly threatened that Flagship would not provide funding to Industria unless Anzures agreed to take significantly less compensation.

         Anzures agreed to take less compensation, but when Flagship did not follow through on its promise to make a contribution to Industria (it appears that Flagship never made any capital contribution to Industria), Anzures filed suit in Colorado state court. Defendants--Hogan and Flagship--removed the case to federal court based on diversity jurisdiction. In an amended complaint, Anzures asserted a breach of fiduciary duty claim against Flagship and Hogan, and three other claims against Flagship--fraud, negligent misrepresentation, and breach of contract. Defendants then moved to dismiss the amended complaint due to lack of personal jurisdiction. After allowing limited discovery (including the deposition of Hogan) on the jurisdictional issue, a magistrate judge recommended granting the motion to dismiss. Over Anzures's objections, the district court agreed. This appeal followed.

         DISCUSSION

          We review de novo a district court's dismissal for lack of personal jurisdiction over the defendants. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). Because the district court decided the jurisdictional issue based only on the documentary evidence, Anzures must only make a prima facie showing of ...


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