Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Honorable Marcia S. Krieger 03-CV-2669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and DOES 1 through 100, inclusive Defendants. MARELICH MECHANICAL CO., INC., dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant and Counterclaimant, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation; and ROES 20 through 50, inclusive, Counter-Defendants. MARELICH MECHANICAL CO., INC., dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff, v. FRICK COMPANY, a Pennsylvania corporation, n/k/a YORK INTERNATIONAL CORPORATION, a Delaware corporation; and ROES 50 through 80, inclusive, Third Party Defendants,
REQUEST FOR RULING ON YORK INTERNATIONAL CORPORATION'S MOTION TO DISMISS PURSUANT TO F.R.C.P. RULE 12(b)(2) and (b)(3)

COMES NOW York International Corporation ("York"), by its attorneys Holland & Knight LLP and respectfully requests the Court issue a ruling on its July 27, 2005 Motion to Dismiss the Amended Third Party Complaint of University Marelich Mechanical Co., Inc. ("UMM").'

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A courtesy copy of York's Motion to Dismiss is attached hereto as Exhibit A.
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Pursuant to D.C.COLO.Civ.L.R. 7.1A, on October 21, 2005, counsel for York conferred in person with counsel for University Marelich Mechanical ("UMM") who did not object to the relief requested herein. On October 18, 2005, Magistrate Judge Coan issued a Minute Order regarding the case's scheduling. Prior to that, on October 6, 2005, York had filed a request for ruling on its motion to dismiss or alternatively relief from scheduling orders pending the Court's ruling on the motion to dismiss. It appears our request for ruling was interpreted only as discovery-related since Magistrate Judge Coan's Order incorporated it into the other parties' outstanding discovery disputes, of which York was unaware. We wish to be clear. York was brought into this case in July. York has not even responded to the Third Party Complaint. York immediately filed a motion to dismiss because this Court lacks jurisdiction over York due to the contract between UMM and York. That motion has been pending before the Court since July 27, 2005. York is a late-added third-party defendant on an indemnity cross-complaint over which we believe this Court has no jurisdiction. We do not wish to become embroiled in ongoing discovery disputes between the parties to this action; we feel we do not belong in this case and respectfully request ruling from this Court on York's pending motion to dismiss. The scheduling order entered this week by Magistrate Judge Coan appears directed to the parties that have been involved for two years in this case. It would be unfair to apply this scheduling order, which appears to have been revised many times, to York.2 York should not be involved in this lawsuit. The contract between York and UMM has a forum selection clause clearly requiring all litigation to be filed in California. UMM has not sustained any damage since there has been no resolution/trial of the underlying case. Were the Court to rule in York's favor,
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A copy of the Court's Minute Order, dated October 18, 2005, is attached hereto as Exhibit B.
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then all deadlines mentioned in the Magistrate Judge's scheduling order would not apply to York but to the parties that have been litigating this case for the last two years. Alternatively, were this Court to rule adversely to York, York would ask this court to sever and stay the third-party complaint until the underlying lawsuit is resolved, since York is only a recently-added party on a cross-complaint only for indemnity and contribution.3 Under either scenario of the Court's ruling, York would not be participating in the underlying action nor in the deadlines issued in the action by Magistrate Judge Coan. York has not attended the many, many depositions that have been taken in this case nor received the prior discovery exchanged between the parties, or been involved in any of the other case activity occurring over the last 2 years. York has not answered the complaint. York is in the "first inning" of this case while the other parties are in the "ninth inning." It would be extremely prejudicial to York as a last minute added party to force it to participate in the underlying case when: 1) York has a contract with UMM saying the case should be resolved in California; and 2) this in an indemnity cross-complaint, where the cause of action does not accrue until the crosscomplainant has been damaged, that is, until UMM sustains a verdict against it in the underlying action.

The Court has authority to sever third party claims for indemnity under both F.R.C.P. Rules 14 and 21, to promote judicial efficiency and avoid prejudice to the parties, among other grounds. See, In Re: CFS-Related Securities Fraud Litigation (N.D. Okla. 2003) 213 F.R.D. 435, 438-439.
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In sum, for the reasons stated above, York respectfully requests the Court issue a ruling on its Motion to Dismiss.

Dated: October 21, 2005

Respectfully submitted,

/s/ N. Kathleen Strickland N. Kathleen Strickland (CO Bar No. 027027) HOLLAND & KNIGHT LLP 50 California Street, 28th Floor San Francisco, CA 94111 Telephone: (415)743-6900 Facsimile: (415)743-6910 Attorneys for YORK INTERNATIONAL CORPORATION

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CERTIFICATE OF SERVICE I hereby certify that on October 21, 2005,1 electronically filed the foregoing REQUEST FOR RULING ON YORK INTERNATIONAL CORPORATION'S MOTION TO DISMISS PURSUANT TO F.R.C.P. RULE 12(b)(2) and (b)(3) with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Richard C. Kaufman at [email protected] Peter J. Ippolito at [email protected] Michael G. Bohn at [email protected] Bret Matthew Heidemann at [email protected] Francis J. Hughes at [email protected] Patrick Q. Hustead at [email protected] Patrick T. Markham at [email protected] John D. Mereness [email protected] Daniel J. Nevis at [email protected] And I hereby certify that I have mailed or served the document or paper to the following nonCM/ECF participants in the manner indicated by the non-participant's name: Federal Insurance Company Post Office Box 1615 Warren, NJ 07061-1615 (Via United States Mail)

is/ N. Kathleen Strickland HOLLAND & KNIGHT LLP 50 California Street, 28th Floor San Francisco, California 94111 Tel: (415) 743-6900 Fax:(415)743-6910 Attorneys for YORK INTERNATIONAL CORPORATION e-mail: [email protected]

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Exhibit A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger 03-CV-2669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and DOES 1 through 100, inclusive Defendants. MARELICH MECHANICAL CO., INC., dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant and Counterclaimant, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation; and ROES 20 through 50, inclusive, Counter-Defendants. MARELICH MECHANICAL CO., INC., dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff, v. FRICK COMPANY, a Pennsylvania corporation, n/k/a YORK INTERNATIONAL CORPORATION, a Delaware corporation; and ROES 50 through 80, inclusive, Third Party Defendants, YORK INTERNATIONAL CORPORATION'S MOTION TO DISMISS PURSUANT TO F.R.C.P. RULE 12(b)(2) and (b)(3) COMES NOW York International Corporation ("York"), by its attorneys Holland & Knight LLP and Montgomery Kolodny, LLP, and moves to dismiss Marelich Mechanical Co., Inc.'s ("Marelich") Amended Third Party Complaint pursuant to F.R.C.P. 12(b)(2) and (b)(3) for lack of personal jurisdiction over York and due to an enforceable forum selection clause requiring Marelich to bring said action in California. Pursuant to D.C.Colo.L.R. 7.1(A), on July 26, 2005 undersigned counsel conferred with Third Party Plaintiff and its attorney, who oppose the relief requested.

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I.

INTRODUCTION

On or about July 8, 2005, Marelich filed with the District Court an Amended Third Party Complaint Against Third Party Defendant Frick Company n/k/a York International Corporation ("Third Party Complaint"). The claims made against York are based entirely upon a purchase order between Marelich and York, executed December 13, 2001 ("Purchase Order").1 York moves to dismiss because the District Court lacks personal jurisdiction over York, and because the Purchase Order contains a valid and enforceable forum selection clause requiring Marelich to sue in California. A court may not exercise personal jurisdiction over a non-resident corporation if doing so would violate the Due Process Clause of the United States Constitution. Because York is a foreign corporation with only minimal contacts in Colorado, none of which relate to the claims in the Third Party Complaint, it would violate due process for this Court to exercise personal jurisdiction over York. The Third Party Complaint should therefore be dismissed. Even if this Court finds that it has personal jurisdiction over York, the Third Party Complaint must be dismissed because of the forum selection clause in the Purchase Order. Colorado and California law2 favor the enforcement of forum selection clauses. Marelich has the burden of establishing that enforcement of the forum selection clause would be unreasonable. Because the parties' agreement to litigate their disputes regarding the Purchase Order is entirely reasonable, Marelich's complaint should have been filed in California. York requests that this Court dismiss the Third Party Complaint because the court lacks personal jurisdiction over York, and because the parties are contractually bound to resolve any disputes in California.

A copy of the Purchase Order, and all subsequent modifications thereto, is attached to the Declaration of Samuel Howard, Jr. ("Howard Decl.") as Exhibit A.
2

1

The Purchase Order also calls for application of California law to any disputes regarding that contract. (See, Howard Decl., Ex. A, Attachment A, at H 18.)
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II.

STATEMENT OF FACTS

Marelich is a California corporation, with an office in Anaheim, California. (Howard Dec!., T| 3; Ex. A.) York is a Delaware corporation with its principal place of business in Pennsylvania. (Howard Decl.,H 2.) On or about May 31, 2001, Marelich contracted with Big D Construction Corp.("Big D"), pursuant to which Marelich agreed to provide equipment, labor and materials associated with the mechanical systems of a construction project for Leprino Foods, located at 351 N. Belle Haven Drive, Lemoore, California (the "Project"). (Howard Decl., Ex. A, 1f 3.) On December 13, 2001, Marelich executed the Purchase Order with York, requiring York to supply certain airhandling machinery and equipment to be installed at the Project.3 (Howard Decl., Ex. A, ^| 3.) The Purchase Order is a form document prepared by Marelich, on its own letterhead, and labeled "Furnish Materials and/or Equipment as Described Below and in Accordance with all Purchase Order Conditions and Attachment "A" hereto." (Howard Decl., Ex. A.) Attachment A to the Purchase Order was also prepared by Marelich, and is on its own letterhead. (Howard Decl., Ex. A, Attachment A.) Significantly, Paragraph 18 of Attachment A is a choice of law and forum selection clause specifying California law and ordering that litigation of any disputes under the contract be in a California forum. (Howard Decl., Ex. A, Attachment A, f 18.) Paragraph 18 states: California law will apply to all disputes arising out of this Agreement. This Agreement shall be deemed to be made and entered into in the State of California which shall be the sole jurisdiction for any disputes arising hereunder. (Howard Decl., Ex. A, Attachment A at U 18.) When a dispute erupted between Big D and Leprino Foods, Big D filed a lawsuit in California which was thereafter removed to the Eastern District of California in Sacramento. That lawsuit named Leprino, and all Contractors and all Subcontractors involved in the Project, including Marelich and York. Leprino's dismissal from that action is pending before the Ninth Circuit Court
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York never entered into any contractual agreements with Big-D or Leprino Foods relating to the Project. (Howard Decl., U 4.)

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of Appeals. Leprino filed the instant action in Colorado based on a forum selection clause it had in its contract with Big D. Marelich has voluntarily agreed to "consent to Colorado jurisdiction." (Howard Decl., H 7.) However, with the filing of the Third Party Complaint, it now seeks to drag York into the Colorado litigation in clear violation of the forum selection clause in the Purchase Order that Marelich itself drafted. By naming York as a defendant in this action, Marelich has also sought to extend, beyond permissible bounds, the jurisdiction of this District Court. York is a Delaware corporation headquartered in Pennsylvania. (Howard Decl., D 2.) York's only connection to Colorado is that it is registered to do business in Colorado, has an agent in Colorado for service of process (as required by statute), and maintains two small offices with approximately thirty employees. Those persons provide sales and service for York products, but generate less than one-half of one percent of York's overall revenue. Otherwise, York has no other contacts with Colorado. (Howard Decl., ^[ 2.) Since this action concerns a contract between two non-Colorado corporations for a California project, York does not have sufficient contacts with Colorado for this Court to exercise either specific or general personal jurisdiction over it. III. A. ARGUMENT

A MOTIONS TO DISMISS IS THE PROPER VEHICLE TO CHALLENGE JURISDICTION AND VENUE. Federal Rule of Civil Procedure 12, provides that a party may, in a motion responding to a

complaint, assert defenses for "lack of jurisdiction over the person" and "improper venue." Fed. R. Civ. Proc. 12(b)(2)-(3). More importantly, Rule 12 states that "[a] defense of lack of jurisdiction over the person [and] improper venue ... is waived (A) if omitted from a motion" to dismiss made under Rule 12. Fed. R. Civ. Proc. 12(h)(l). Accordingly, York has included both its jurisdictional challenge and its challenge based on the parties' forum selection clause in this motion.

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B.

MARELICH'S THIRD PARTY COMPLAINT MUST BE DISMISSED BECAUSE THIS DISTRICT COURT DOES NOT HAVE JURISDICTION OVER YORK In order to analyze a jurisdictional challenge, the Court must first look to Colorado's long

arm statute, Colo. Rev. Stat. § 13-1-124(1). See SGI Air Holdings IILLC v. Novartis Int'l, AC, 192 F.Supp.2d 1195, 1197(D. Colo. 2002). The Colorado Long Arm Statute, § 13-1-124(1), 5 C.R.S. (2001) sets forth the jurisdiction of Colorado Courts: Engaging in any act enumerated in this section by any person, whether or not a resident of the state of Colorado, either in person or by an agent, submits such person and, if a natural person, such person's personal representative to the jurisdiction of the courts of this state concerning any cause of action arising from: (a) The transaction of any business within this state. ... Id. Colorado Courts have interpreted this law as extending the jurisdictional reach of the Colorado Courts to "the full extent of the Due Process Clause of the Fourteenth Amendment." SGI Air Holdings, 192 F.Supp.2d at 1197. Accordingly, a court's jurisdictional analysis "collapses into a single inquiry as to whether the exercise of personal jurisdiction . . . comports with due process." Id. In this inquiry, Marelich has the burden of making aprimafacie showing that this Court has personal jurisdiction over York. "Where a defendant challenges a court's in personam jurisdiction, the plaintiff bears the burden of establishing [prima facie] personal jurisdiction over the defendant." SGI Air Holdings II LLC v. Novartis Int I AG. 239 F.Supp.2d 1161, 1164 (D. Colo. 2003), quoting Nat'I Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F.Supp.2d 1250, 1253 (D. Colo. 2000). Due process requires that, in order to exercise jurisdiction over a defendant, the defendant must have "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945), quoting Milliken v. Meyer. 311 U.S. 457, 463 (1940). When the cause(s) of action arise out of the defendant's contacts with the forum state, the nature and extent of the defendant's contacts with the forum state need not be as extensive as when the causes of

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action do not arise out of those contacts. Thus, the distinction between general jurisdiction and specific jurisdiction. See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-16, n.8-9(1984). 1. Specific Jurisdiction Does Not Exist because this Dispute is Unrelated to Colorado.

As stated above, a court exercises "specific jurisdiction" over an out-of state defendant when the causes of action in the complaint "arise out of or relate to" the defendant's contacts with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). Even if the defendant has "minimum contacts" with the forum state, the exercise of jurisdiction must nevertheless comport with "traditional notions of fair play and substantial justice." SGI Air Holdings, 192 F.Supp.2d at 1203. This Court may not exercise specific jurisdiction over York because the litigation between Marelich and York does not result "from alleged injuries that 'arise out of or relate to' activities that are significant and purposefully directed by the defendant at residents of the forum." Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40 P.3d 1267, 1271 (Colo. 2002). This contract and this project are in California. Marelich's alleged injuries arise out of activities occurring in California, allegedly directed by York, a corporation based in Pennsylvania, to Marelich, a corporation based in California. In its Third Party Complaint, Marelich admits that its causes of action have no relation to Colorado: 4. [Marelich] is, and at all times mentioned was, a California corporation. .. 9. This action arises out of the construction of a private work of improvement located at 351 N. Belle Haven Drive, Lemoore, California. . . . (the "Project"). 10. ... Big-D [Construction Corp. - California] entered into a subcontract. . . with [Marelich] whereby [Marelich] agreed to provide certain equipment, labor and materials associated with the mechanical systems at the Project. 12. Third Party Defendant [York] supplied [Marelich] with certain air-handling machinery and equipment that was installed at the Project.

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Moreover, the Purchase Order itself indicates that Marelich's order came from its office in Anaheim, and that York was to perform by shipping air-handling machinery and equipment to Marelich at Lemoore, California. (Exhibit A.) In keeping with the "California focus" of the Purchase Agreement, the contract requires application of California law in a California forum for any disputes arising thereunder. (Ex. A, Attachment A, ^18.) Notably absent from the Third Party Complaint is any allegation that York took any action under the Purchase Order that is in any way associated with Colorado. Since the Purchase Order between Marelich and York does not concern Colorado and does not "arise out of or relate to" any York contacts with, or activities in, Colorado, the District Court may not exercise specific jurisdiction over York regarding Marelich's claims. "[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Burger King, 471 U.S. at 475. Marelich may argue that its Third Party Complaint somehow relates to Colorado because the owner of the California construction project, Leprino, is located in Colorado. However, York never entered into a contract with Leprino. Moreover, even if York had entered into a contract with Leprino, that contract would not create sufficient grounds for the exercise of specific jurisdiction. See SGI Air Holdings, 192 at 1202 ("the law is clear that a party does not submit itself to personal jurisdiction in a distant forum simply by entering into a contract with a party that resides in that forum"). Instead, something more is required, such as "activity by the defendant in the forum state," or that the contract was "negotiated in-state pursuant to substantial and significant contacts" was "executed by the defendant in-state," or was "solicited by the out-of-state defendant." New Frontier Media, Inc. v. Freeman, 85 P.3d 611, 614 (Colo. App. 2003) (finding no specific jurisdiction).

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Marelich may argue that specific jurisdiction is proper because the harm for which Frick allegedly must indemnify Marelich, was "felt" by Leprino at its headquarters in Colorado. Colorado Courts have rejected such a basis for exercise of specific jurisdiction. In Archangel Diamond Corp. v. Arkhangelskgeoldobycha, 94 P.3d 1208 (Colo. App. 2004)4 the Court held that alleged tortious acts, executed outside of Colorado but intended to cause injury to a party located in Colorado, were alone insufficient to subject the defendant to specific jurisdiction in Colorado. Colorado was simply not "the focal point both of the story and of the harm suffered." Id. at 1219. Likewise here, the focal point of the story and the harm suffered is Lemoore, California, where the project is located. In sum, because Marelich's Third Party Complaint against York does not "arise out of or relate to" any contacts between York and Colorado, it would be improper for the Court to exercise specific personal jurisdiction over York. 2. York's Contacts with Colorado are Not "Continuous and Systematic" so as to Warrant Exercise of General Jurisdiction.

Because the Purchase Order between Marelich and York is unrelated to Colorado, in order to exercise personal jurisdiction over York this Court must find that Colorado has general jurisdiction over York. To subject a non-resident to the general jurisdiction of a forum state, the defendant's contacts with the forum state must be "continuous and systematic," and of a general business nature. See Helicopteros Nacionales, 466 U.S. at 415-16. In Perkins v. Benguet Consolidated Mining, Co., 342 U.S. 437, 448 (1952), the Supreme Court found due process would not be violated by Ohio courts assumption of general jurisdiction over a Philippine corporation which had relocated its president / general manager's office to Ohio during World War II. While in Ohio, the corporation's president performed the following activities: (1) maintained the corporation's files in Ohio; (2) carried on correspondence relating to the
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Review of this case has been granted on an unrelated issue in Archangel Diamond Corp. v. Lukoil, 2005 WL 39165 (Colo. Jan 10,2005).
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companies' business and employees; (3) drew and distributed salary checks on behalf of the company; (4) employed two secretaries in Ohio; (5) used Ohio banks for company funds and as transfer agents for company stock; (6) held several directors' meetings; (7) supervised the rehabilitation of the companies' properties in the Philippines. The Court found the defendant's president had "carried on in Ohio a continuous and systematic supervision of the necessarily limited wartime activities of the company." Perkins, 342 U.S. at 447. Because of these contacts, the Court held that "it would not violate federal due process for Ohio either to take or decline jurisdiction of the corporation in this proceeding." Id at 448. In Helicopteros Nacionales, the Court found that Helicol, a Columbian corporation sued in Texas for a helicopter crash in Peru, did not have sufficiently continuous and systematic business contacts with Texas to subject it to the general jurisdiction of that State's courts. 466 U.S. at 416. Helicol had contracted with a joint venture located in Texas to provide helicopter transportation in Pem;its other contacts with Texas consisted of the following: (1) Helicol's CEO negotiated the contract while present in Texas; (2) from 1970-1977 it purchased helicopters (about 80% of its fleet), parts and accessories from a company located in Texas; (3) from 1970-1977 it sent its pilots to Texas for training and to ferry aircraft to South America; (4) from 1970-1977 it sent management and maintenance personnel to Texas for technical consultations; and (5) $5 million in payments received under the contract at issue were drawn from a bank located in Houston, Texas. Helicopteros Nacionales, 466 U.S. at 411. The Supreme Court found these facts inadequate to permit Texas to exercise general jurisdiction over Helicol. Helicopleros Nacionales, 466 U.S. at 418-19. Here, York's contacts with Colorado are not sufficiently "continuous and systematic" as envisioned by the Supreme Court in Perkins and Helicopteros Nacionales. York is a supplier of heating, air-conditioning, ventilation and refrigeration systems headquartered in Pennsylvania. There is no connection between the Leprino project and Colorado. York has no manufacturing

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operations or design facilities in Colorado, and maintains no corporate records there. York employs a small staff of sales people and service technicians. Those persons generate less than one-half of one percent of York's overall revenue. (Howard Decl., ^ 2.) York has an agent for service of process in the State.5 However, the fact that York has registered to do business in Colorado and has appointed an agent for service of process is not determinative of a general jurisdiction question. Instead, the Supreme Court has held that it is merely one factor to consider: The corporate activities of a foreign coiporation which, under state statute, make it necessary for it to secure a license and to designate a statutory agent upon whom process may be served provide a helpful but not a conclusive test, Perkins, 342 U.S. at 445 (emphasis added). In a case almost identical to this one, Ratliffv, Cooper Laboratories, Inc., 444 F.2d 745 (4th Cir. 1971), the Fourth Circuit found that a foreign corporation that had appointed an agent for service of process was not subject to the general jurisdiction of the forum state, stating emphatically that "the application to do business and the appointment of an agent for service to fulfill a state requirement is of no special weight in the present context." Ratliff, 444 F.2d at 748. In Ralliff, the foreign defendant had filed an application and been given authority to do business in the forum state, appointed an agent for service of process pursuant to a statutory requirement, and maintained five employees in the forum state who promoted the defendant's products. Ratliff, 444 F.2d at 746. While these facts showed that the defendant had contacts with the forum state, because the plaintiffs injury was unrelated to those contacts, the issue before the court was whether those contacts were sufficiently "continuous and systematic" to support the exercise of general jurisdiction. If "plaintiff s injury does not arise out of something done in the forum state, then other contacts between the corporation and the state must be fairly extensive before the burden of defending a suit there may be imposed upon it without offending 'traditional notions of fair play and substantial justice.'" Ratliff, 444 F.2d at 748, quoting F. James, Civil Procedure 640 (1965).
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Colorado law requires such an appointment, under Col. Rev. Stat. 7-90-701: "[EJvery foreign entity authorized to transact business or conduct activities in this state shall continuously maintain in this state a registered agent."

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Citing a case from the First Circuit Court of Appeals, the RatliffCourt concluded that the defendants' contacts were not sufficient for the forum state to exercise general jurisdiction: If the plaintiff has some attachment to the forum, or if the defendant has adopted the state as one of its major places of business, we would have no question of the right of the state to subject the defendant to suit for unconnected causes of action. . . . When, however, defendant's only activities consist of advertising and employing salesmen to solicit orders, we think that fairness will not permit a state to assume jurisdiction. Ralliff, 444 F.2d at 748, quoting Seymour v. Parke, Davis & Co., 423 F.2d 584, 587 (l s l Cir. 1970). Similarly, inSiemer v. The Learjet Acquisition Corp., 966 F.2d 179 (5lh Cir. 1992), the Fifth Circuit held that service of process on a foreign corporation's agent for service of process did not provide Texas with general jurisdiction over that corporation. The Court reached this decision after reviewing the foreign corporation's contacts with Texas and finding them insufficient to support general jurisdiction. Those contacts included: (1) defendant made slightly over one-percent of its sales to buyers with Texas; (2)it had an agent for process in Texas; (3) it advertised in national journals distributed in Texas; and (4) it mailed information to prospective customers in Texas. Siemer, 966 F.2d at 181. The Court held that the defendants' contacts were not of such weight as to constitute "continuous and systematic general business contacts," and that the presence of an agent for service of process in Texas did not constitute a "general business presence in Texas," nor "act as consent to be hauled into Texas courts on any dispute. . . ." Id. at 183.6 Our due process analysis has evolved substantially since the seminal case of International Shoe, but under any analysis, it would be violative of due process to require Learjet to defend this suit in Texas. The district court was eminently correct in so holding. Siemer, 966 F.2d at 184.

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See also, Samuelson v. Honeywell, 863 F.Supp. 1503 (E.D. Okl. 1994) (holding that due process prohibited Oklahoma from exercising general jurisdiction over a foreign corporation that was authorized to do business in Oklahoma, appointed an agent for service of process in Oklahoma, and entered into three contracts over a two year period with residents of Oklahoma)

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Here, as in Ratliffand Siemer, the contacts that York has with Colorado are simply not sufficient for Colorado to exercise general jurisdiction over York, as such jurisdiction would offend "traditional notions of fair play and substantial justice." Accordingly, Marelich's Third Party Complaint should be dismissed. C. DISMISSAL IS REQUIRED BECAUSE OF A VALID FORUM SELECTION CLAUSE IN THE PURCHASE ORDER THAT IS THE SUBJECT OF THE THIRD PARTY COMPLAINT. This Court must dismiss Marelich's Third Party complaint against York because the entire dispute between Marelich and York is subject to a forum selection clause found in Marelich's Purchase Order. 1. Dismissal of a Third Party Complaint is Appropriate When a Party Seeks Enforcement of a Forum Selection Clause.

"A motion to dismiss based on forum selection clause frequently is analyzed as a motion to dismiss for improper venue under Fed. R. Civ. P. 12(b)(3)." Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 956 (10 th Cir. 1992). Rule 12 states, in pertinent part: (b). .. [T]he following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue ... Accordingly where, as here, a party has filed a claim for relief in a forum contrary to that specified in a forum selection clause, the Court may properly dismiss the action under Rule 12(b). 2. Marelich's Purchase Order Specifies a California Forum.

Paragraph 18 of Attachment A to Marelich's Purchase Order specifies that California law applies to the contract, and that litigation of any disputes under the contract be in a California forum. (Howard Decl., Ex. A, Attachment A, ^ 18.) It is noteworthy that the Purchase Order is a Marelich form, as is Attachment A, which contains the choice of law and forum selection clause that is specifically incorporated by reference in Marelich's form Purchase Order. (Howard Decl., Ex. A.)
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It was Marelich, rather than York, that insisted upon application of California law in a California forum. The Purchase Order clause specifically provides the following: California law will apply to all disputes arising out of this Agreement. This Agreement shall be deemed to be made and entered into in the State of California which shall be the sole jurisdiction for any disputes arising hereunder. (Declaration of Howard, Ex. A, Attachment A, K 18 (emphasis added).) 3. The Forum Selection Clause in the Purchase Order is a Mandatory Clause

Forum selection clauses are often classified as either mandatory or permissive. Mandatory clauses "contain[] clear language showing that jurisdiction is appropriate only in the designated forum." Excell, Inc. v. Sterling Boiler & Mechanical, Inc., 106 F.3d 318, 321 (10th Cir. 1997), quoting Thompson v. Founders Group Intern., 886 P.2d 904, 910 (Kan. App. 2d 1994), emphasis added While not required, the traditional hallmark of a mandatory forum selection clause is use of words such as "exclusive," "sole" or "only." K&VScientific Co., Inc. v. Bayerische Motoren Werke Aktiengesellschaft,3\4 F.3d 494, 500 (10 lh Cir. 2002). Here, the parties specifically incorporated the work "sole" into the clause: "This Agreement shall be deemed to be made and entered into in the State of California which shall be the sole jurisdiction for any disputes arising hereunder." (Howard Decl., Ex. A.) Clearly, Marelich cannot dispute that by designating California as the "sole jurisdiction" for any disputes arising under the Purchase Order, the parties created a mandatory forum selection clause. 4. A Mandatory Forum Selection Clause Must be Enforced Unless the NonMoving Party Establishes that the Clause is Unreasonable.

Over the last three decades, both the United States Supreme Court and Colorado courts have strongly approved of the enforceability of forum selection clauses. In The Bremen v. Zapata OffShore Co., 407 U.S. 1 (1972), the Supreme Court held, in enforcing a forum selection clause in an international contract, that "the elimination of all . . . uncertainties by agreeing in advance on a forum acceptable to all parties is an indispensable element in international trade, commerce and
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contracting." The Bremen, 407 U.S. at 13-14. For that reason, the Supreme Court held that forum selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the circumstances." Id. at 10. More importantly, the Supreme Court held that the burden of proving enforcement of a forum selection clause would be unreasonable is on the party seeking to avoid its effect. Id. at 16. The Colorado Court of Appeals 7 has issued similar rulings in cases involving interstate commerce. In ABC Mobile Systems, Inc. v. Harvey, 701 P.2d 137 (Colo. App. 1985), the Court held, in enforcing a forum selection clause calling for litigation in California, that a forum selection clause "will be given effect unless it is unfair or unreasonable." ABC Mobile Systems, 701 P.2d at 139. The Court of Appeal also agreed that the non-moving party bears "the burden of proving that a forum selection clause is unfair or unreasonable." Id at 139. 5. Enforcement of the Forum Selection Clause Would Fulfill the Parties' Reasonable Expectations at the Time of Contracting.

An examination of the Third Party Complaint and Purchase Order shows that enforcement of the forum selection clause would not be unreasonable. There is no evidence that trial in California would be "so gravely difficult and inconvenient that [Marelich] will for all practical purposes be deprived of [its] day in court." The Bremen, 407 U.S. at 18. Marelich is a California corporation, Marelich does business in California, and the project that is the subject of the Third Party Complaint is located in California. (See Exhibit A.) Simply stated, all the witnesses, documents and physical evidence regarding the project are located in California. The Purchase Order itself indicates that Marelich has an office in Anaheim, California, and that York was to perform

Regardless of whether California or Colorado law is applied, the standard for enforcing a forum selection clause is the same. In Smith, Valentino & Smith, Inc. v. Superior Court, 17 Cal.3d 491, 494 (1976), the California Supreme Court held that "[n]o satisfying reason of public policy has been suggested why enforcement should be denied a forum selection clause appearing in a contract entered into freely and voluntarily by parties who have negotiated at arm's length." Smith, 17 Cal.3d at 496. In California, as with Colorado, in order to avoid enforcement of a forum selection clause, a party must prove that enforcement would be "unreasonable." Id.

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under the Purchase Order by shipping air-handling machinery and equipment to Marelich at Lemoore, California. (Exhibit A.) Quite simply, the overwhelming evidence shows that California is the only forum selected by the parties, and also is the most convenient forum in which the parties and witnesses should resolve any disputes. Marelich cannot demonstrate that the forum selection clause resulted from alleged overreaching on the part of York, unequal bargaining power, a lack of notice, or that enforcement would somehow violate public policy. See Riley, 969 F.2d at 958; Excell, 106 F.3d at 321. York could not have "overreached," because this is Marelich's form contract. Marelich cannot claim the clause resulted from unequal bargaining power or that it had no notice of the clause. Marelich cannot show that any Colorado public policy would be violated by requiring this dispute be litigated in the very state for which Marelich contracted - California. Thus, this Court should enforce the parties' Purchase Order, and dismiss this Third Party Complaint filed in Colorado by Marelich against York. IV. CONCLUSION

For all of the foregoing reasons, York respectfully requests this Court grant its motion to dismiss Marelich's Third Party Complaint, so that Marelich will be required to pursue its claims under the Purchase Order in the contractually agreed upon California forum.

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Dated: July 27, 2005 1st N. Kathleen Strickland N. Kathleen Strickland (CO Bar No, 027027) HOLLAND & KNIGHT LLP 50 California Street, 28th Floor San Francisco, CA 94111 Telephone: (415)743-6900 Facsimile: (415)743-6910

Respectfully submitted, /s/ C. Michael Montgomery C. Michael Montgomery Paul R. Flick MONTGOMERY KOLODNY, AMATUZIO & DUSBABEK, L.L.P. 475 Seventeenth St., 16th Floor Denver, CO 80202 Telephone: (303) 592-6600 Facsimile: (303) 592-6666 Attorneys for YORK INTERNATIONAL CORPORATION

Attorneys for YORK INTERNATIONAL CORPORATION

CERTIFICATE OF SERVICE I hereby certify that on July 27, 2005,1 electronically filed the foregoing Motion to Dismiss Pursuant to F.R.C.P. 12 (b)(2) and (b)(3) with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Richard C. Kaufman at [email protected] Michael G. Bonn at [email protected] Bret Matthew Heidemann at bheidemann(gjcampbellbohn.com Francis J. Hughes at [email protected] Patrick Q. Hustead at [email protected] Patrick T, Markham at [email protected] John D. Mereness [email protected] Daniel J. Nevis at [email protected] And I hereby certify that I have mailed or served the document or paper to the following nonCM/ECF participants in the manner indicated by the non-participant's name: Federal Insurance Company Post Office Box 1615 Warren, NJ 07061-1615 (Via United States Mail) [Original signature on file]

# 3062752_v3

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Exhibit B

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-02669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff(s),
v.

BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation, BIG-D CONSTRUCTION CORP., a Utah corporation, and Does 1-100 inclusive, Defendant(s).

MINUTE ORDER ORDER ENTERED BY MAGISTRATE JUDGE PATRICIA A. COAN IT IS HEREBY ORDERED that the Motion for Relief from Scheduling Order Pending the Court's Ruling on York's Motion to Dismiss and for an Extension of Time to Designate Non-Parties at Fault [filed October 6, 2005], Doc. No. 128, is granted in part and denied in part as follows: The cutoff for completion of fact depositions is December 15, 2005. The cutoff for completion of expert depositions is January 6, 2006. The deadline for exchange of expert reports and all Rule 26(a)(2) information is December 23, 2005. The dispositive motions deadline is January 6, 2006. IT IS ORDERED that these deadlines will not be extended any further. IT IS ORDERED that the Stipulated Motion for Enlargement of Time for Defendant Big-D Construction Corp...and Requests for Admissions, Set No. 1 [filed October 13, 2005], Doc. No. 133, is GRANTED as follows: Defendant Big D Construction has until October 14,2005, to file an answer or other response to the discovery requests.

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IT IS ORDERED that Counsel are referred to the Electronic Filing Procedures, V.L., for the submission of proposed orders. IT IS ORDERED that responses to Plaintiff's Second Motion to Compel... .and Big-D Construction Corp. [filed October 14,2005], Doc. No. 135-1, are due on or before October 26, 2005. IT IS ORDERED that responses to Third Party Defendant's University Marelich's Rule 37 Motion...and to Provide Witness Designations Under Rule 30(b)(6) [filed October 14, 2005], Doc. No. 136-1, are due on or before October 26, 2005. IT IS ORDERED that a hearing on the above motions shall be held on November 1,2005 at 9:00 a.m., in Courtroom A501. Counsel are to meet and confer from 8:00 a.m. to 9:00 a.m. in the magistrate judge's conference room prior to the hearing in an effort to resolve discovery issues. IT IS FURTHER ORDERED that the Final Pretrial Conference set for December 21, 2005 is vacated and reset to February 6, 2006 at 9:00 a.m. in Courtroom A501. The proposed Final Pretrial Order is due on or before February 1, 2006. In compliance with D.C.Colo. LCivR 83.2B all parties, counsel and witnesses shall have valid, current, photo identification when entering the courthouse. Dated: October 18, 2005