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The Backboard and the Basket for Personal Jurisdiction

Posted by Thomas P. Howard | May 03, 2021 | 0 Comments

By: James Juo.

Acts aimed elsewhere that have their primary effect in Colorado can support finding specific personal jurisdiction in Colorado.

In Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008) (Gorsuch, J.), a Connecticut company claiming copyright infringement had sent a notice-of-claimed-infringement to eBay in California so as to invoke an eBay procedure to shut down a Colorado couple's online auction of merchandise located in Colorado. Id. at 1068–69. The Connecticut company was then sued by the Colorado couple in Colorado. Id. at 1069. The Tenth Circuit held that personal jurisdiction over the Connecticut company was proper because the Connecticut defendant had sent its notice to eBay in California with the ultimate purpose of cancelling the plaintiffs' auction in Colorado. Id. at 1075–77 (applying the Calder “express aiming” test); see also Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1080 (10th Cir. 1995) (holding that the forum state itself must be the “focal point of the tort” under Calder); accord Trimble Inc. v. PerDiemCo LLC, 997 F.3d 1147 (Fed. Cir. 2021) (holding that communications with defendant's counsel in Colorado were, for personal jurisdiction purposes, directed to the company headquartered in California).

Judge Gorsuch analogized the Calder “expressly aiming” analysis for establishing personal jurisdiction in this case to “a bank shot in basketball” in that “a basketball player's express aim in shooting off of the backboard is not simply to hit the backboard, but to make a basket.” Dudnikov, 514 F.3d. at 1075. “A player who shoots the ball off of the backboard intends to hit the backboard, but he does so in the service of his further intention of putting the ball into the basket.” Id.; see also Domain Vault LLC v. Bush, No. 14-CV-2621-WJM-CBS, 2015 WL 1598099, at *5 (D. Colo. Apr. 8, 2015) (noting the intent of a shooter is to get the basketball into the basket, rather than “the cart where the basketballs are stored when the game is over”). In Dudnikov, the metaphorical backboard was California and the basket was Colorado.

The litigation attorneys at Thomas P. Howard, LLC can evaluate whether there is personal jurisdiction for your lawsuit.

About the Author

Thomas P. Howard

Thomas Howard is an experienced trial lawyer that handles intellectual property litigation nationwide, including copyright, trademark, trade secret and patent litigation, as well as complex civil litigation, including breach of contract, interference with contract, breach of fiduciary duty, conspiracy, fraud and fraudulent transfer of assets.


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