# Active Athletics, LLC v. Active Gymnastics Center LLC

> District Court, N.D. Texas · December 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10770434

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** December 20, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10770434

## How later opinions describe it (automated extraction)

- explaining that plaintiff must allege “something more” than mere foreseeable economic injury in Colorado to demonstrate sufficient minimum contacts with the forum state
- holding the mere foreseeability of a non-forum resident causing injury in the forum state insufficient for the exercise of personal jurisdiction
- holding that the mere foreseeability of a non-forum resident causing injury in the forum state is insufficient for the exercise of personal jurisdiction

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 24-cv-00366-STV

ACTIVE ATHLETICS, LLC,

Plaintiff,

v.

ACTIVE GYMNASTICS CENTER, LLC,

Defendant.
______________________________________________________________________

ORDER
______________________________________________________________________

Entered by Magistrate Judge Scott T. Varholak
This matter is before the Court on Defendant Active Gymnastics Center, LLC’s
Motion to Dismiss (the “Motion”). [#18] The parties have consented to proceed before
the undersigned United States Magistrate Judge for all proceedings, including entry of a
final judgment. [##16-17] This Court has carefully considered the Motion, related
briefing, the entire case file, and the applicable case law, and has determined that oral
argument would not materially assist the disposition of the Motion. For the following
reasons, the Court concludes that it lacks personal jurisdiction over the Defendant.
Nonetheless, the Court DENIES the Motion to the extent it seeks to dismiss the case
and, instead, exercising its discretion, TRANSFERS the matter to the United States
District Court for the Northern District of Texas.
I. FACTUAL BACKGROUND1
Plaintiff Active Athletics, LLC is a Colorado limited liability company operating a
gymnastics facility in Littleton, Colorado. [#1 at ¶ 3] Plaintiff offers a variety of services,
including gymnastics instruction, competitive training, and regional/national competition

opportunities, under the trademarks ACTIVE ATHLETICS (USPTO Registration No.
4295050) and ACTIVE GYMNASTICS (pending USPTO Application No. 98294863).
[Id. at ¶¶ 1, 8] Plaintiff uses the ACTIVE GYMNASTICS Mark for the same goods and
services as the ACTIVE ATHLETICS Mark. [Id. at ¶ 12] Plaintiff alleges that these
trademarks have become distinctive in the gymnastics industry through extensive use
and promotion since 2012, with the ACTIVE ATHLETICS Mark achieving incontestable
status in 2018. [Id. at ¶¶ 11-13] Plaintiff asserts one or both Marks are famous as
defined in 15 U.S.C. Section 1125(c)(2). [Id. at ¶ 13]
Defendant Active Gymnastics Center, LLC (“AGC”) is a Texas limited liability
company. [Id. at ¶ 4] Plaintiff asserts that Defendant uses the unregistered mark

"ACTIVE GYMNASTICS CENTER" on its website and other marketing materials to
“identify its gymnastic facility and recreational and competitive tumbling and gymnastics
classes for all ages.” [Id. at ¶¶ 15-16] Plaintiff alleges that Defendant’s conduct has
caused confusion among consumers and diluted Plaintiff’s trademarks, resulting in harm
to Plaintiff's reputation and business in Colorado. [Id. at ¶¶ 18, 21, 27] Despite
Plaintiff’s cessation demand, Defendant continues advertising, marketing, and selling

1 The facts are drawn from the allegations in Plaintiff’s Complaint (the “Complaint”) [#1],
which the Court accepts as true to the extent they are uncontroverted by Defendant’s
affidavits. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995).
services through an infringing website while using the infringing Mark in the same
industry and channels of trade as Plaintiff. [Id. at ¶ 19]
Plaintiff filed its Complaint against Defendant on February 6, 2024, asserting: 1)
federal trademark infringement under 15 U.S.C. §§ 1114, 1125 [id. at ¶¶ 22-39]; and 2)

false designation of origin, false advertising, and unfair competition under Section 43(a)
of the Lanham Act, 15 U.S.C. Section 1125(a) [id. at ¶¶ 40-51]. The Complaint seeks
damages, injunctive relief, and attorney’s fees. [Id. at 10-11] On March 28, 2024,
Defendant filed the instant Motion which seeks to dismiss the Complaint for lack of
personal jurisdiction. [#18] Plaintiff has responded to the Motion [#24] and Defendant
has replied [#25].
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(2) permits a party to move to dismiss
alleged claims against them for lack of personal jurisdiction. “Where the court’s
jurisdiction is contested, the plaintiff has the burden of proving jurisdiction exists.” AST

Sports Sci., Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1056 (10th Cir. 2008). “Where
a district court considers a pre-trial motion to dismiss for lack of personal jurisdiction
without conducting an evidentiary hearing, the plaintiff need only make a prima facie
showing of personal jurisdiction to defeat the motion.” Id. at 1056-57. “The plaintiff may
make this prima facie showing by demonstrating, via affidavit or other written materials,
facts that if true would support jurisdiction over the defendant.” OMI Holdings, Inc. v.
Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998). The Court also
accepts the well-pleaded facts in the complaint “as true to the extent they are
uncontroverted by the defendant’s affidavits.” Wenz v. Memery Crystal, 55 F.3d 1503,
1505 (10th Cir. 1995). “If the parties present conflicting affidavits, all factual disputes
must be resolved in the plaintiff’s favor, and the plaintiff’s prima facie showing is
sufficient notwithstanding the contrary presentation by the moving party.” Id. (quotation
omitted). “In order to defeat a plaintiff’s prima facie showing of jurisdiction, a defendant

must present a compelling case demonstrating that the presence of some other
considerations would render jurisdiction unreasonable.” OMI Holdings, Inc., 149 F.3d at
1091 (quotation omitted).
III. ANALYSIS
In its Motion, Defendant raises three arguments to support its assertion that the
Court lacks personal jurisdiction over it: (1) the Court lacks general personal jurisdiction
over the Defendant because its place of incorporation and principal place of business is
in the state of Texas; (2) the Court lacks specific personal jurisdiction over the
Defendant because it lacks minimum contacts with the state of Colorado; and (3) the
exercise of specific personal jurisdiction over Defendant offends traditional notions of

fair place and substantial justice. [#18 at 3-10] The Court concludes that it lacks either
general or specific personal jurisdiction over Defendant, and thus does not address
Defendant’s final argument. Nonetheless, the Court concludes that the interests of
justice support transfer as opposed to dismissal.
A. Personal Jurisdiction
In determining whether a federal court has personal jurisdiction over a
nonresident defendant in a federal question case, the court must determine first,
“whether the applicable statute potentially confers jurisdiction by authorizing service of
process on the defendant,” and second, “whether the exercise of jurisdiction comports
with due process.” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006) (quotations
omitted). Here, the federal statutes at question, 15 U.S.C. §§ 1114 and 1125, do not
authorize nationwide service of process. Thus, under Federal Rule of Civil Procedure
4(k)(1)(A), the laws of the forum state, Colorado, dictate personal jurisdiction. Dudnikov

v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (Federal Rule
of Civil Procedure 4(k)(1)(A) “commands the district court . . . to apply the law of the
state in which the district court sits.”).
“A plaintiff seeking to invoke a Colorado court’s jurisdiction over a non-resident
defendant must comply with the requirements of [Colorado’s] long-arm statute and
constitutional due process.” Touchtone Grp., LLC v. Rink, 913 F. Supp. 2d 1063, 1074-
75 (D. Colo. 2012) (quoting Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187, 1193
(Colo. 2005)). Because “Colorado's long-arm statute . . . confers the maximum
jurisdiction permissible consistent with the Due Process Clause . . . the first, statutory,
inquiry effectively collapses into the second, constitutional, analysis.” Dudnikov, 514

F.3d at 1070.
“Due process requires both that the defendant ‘purposefully established minimum
contacts within the forum State’ and that the ‘assertion of personal jurisdiction would
comport with fair play and substantial justice.’” Old Republic Ins. Co. v. Cont'l Motors,
Inc., 877 F.3d 895, 903 (10th Cir. 2017) (quoting Burger King Corp. v. Rudzewicz, 471
U.S. 462, 476 (1985)). “Depending on their relationship to the plaintiff’s cause of action,
an out-of-state defendant’s contacts with the forum state may give rise to either general
(all-purpose) jurisdiction or specific (case-linked) jurisdiction.” Id. “If a defendant is
subject to specific personal jurisdiction, the asserted cause(s) of action must arise from
the specific contacts with the forum that gave rise to jurisdiction; whereas, if a defendant
is subject to general personal jurisdiction, the asserted cause(s) of action may be
unrelated to the defendant’s contacts with the forum.” Carnrick v. Riekes Container
Corp., No. 15-cv-01899-CMA-KMT, 2016 WL 740998, at *2 (D. Colo. Feb. 24, 2016).

In its Response to Defendant’s Motion, Plaintiff identifies five arguments to
support personal jurisdiction over Defendant in Colorado: (1) Defendant committed an
intentional tort on a Colorado citizen; (2) Defendant agreed to and adopted a business
model focusing, in part, on Colorado; (3) Defendant is subject to a contract requiring
performance in Colorado; (4) Defendant hosts an interactive website available to
Colorado residents; and (5) Defendant is subject to personal jurisdiction because its
predecessor corporation was subject to jurisdiction. [#242 at 13-22] The Court first
addresses whether it has general jurisdiction over Defendant, then analyzes specific
jurisdiction.

1. General Jurisdiction
A court obtains general personal jurisdiction “when a defendant is essentially at
home in the State.” Ford Motor Co. v. Mont. Eighth Judicial Dist. Court, 592 U.S. 351,
358 (2021) (quotations omitted). “With respect to a corporation the place of
incorporation and principal place of business are paradig[m] . . . bases for general
jurisdiction.” Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (quotation omitted). A
corporation can also be subject to general jurisdiction if it has “continuous and
systematic general business contacts with the forum State,” which emulate “physical

2 For consistency and clarity, the Court refers to the page number printed on each page
of the .pdf document uploaded to the Electronic Court Filing system
presence in the state.” Monge v. RG Petro-Mach. (Grp.) Co., 701 F.3d 598, 614 (10th
Cir. 2012) (quotations omitted).
Here, Plaintiff concedes in its Complaint that neither Defendant’s place of
incorporation nor principal place of business lies in Colorado. [#1 at ¶ 4] Defendant

attests that it has not conducted business in Colorado; it does not derive income from
business in Colorado; it does not contract for goods or services in Colorado; it does not
own or lease any real property in Colorado; it does not employ anyone in Colorado; it
does not hold a bank account in Colorado; and it does not pay tax to Colorado and,
thus, it is not subject to personal jurisdiction by this Court. [#18-1 at ¶¶ 4-10] And the
Complaint largely leaves absent facts sufficient to allege Defendant holds continuous
and systemic business contacts in Colorado sufficient to render it “at home” in this
forum. [See generally #1]
Indeed, the only argument that Plaintiff asserts in favor of general jurisdiction is
its assertion that “[a] web site will subject a defendant to general personal jurisdiction

when the defendant has actually and deliberately used its website to conduct
commercial transactions on a sustained basis with a substantial number of residents of
the forum.” [#24 at 19 (quoting Shrader v. Biddinger, 633 F.3d 1235, 1243 (10th Cir.
2011))] Plaintiff alleges that Defendant’s website manifests this Court’s personal
jurisdiction over Defendant because it can be accessed by residents in Colorado. [Id. at
19-20] But an interactive website alone does not establish personal jurisdiction unless it
facilitates substantial commercial interaction with forum residents. See Job Store, Inc.
v. Job Store of Loveland, OH., LLC, No. 15-cv-02228-PAB-KLM, 2016 WL 9735786, at
*5 (D. Colo. Sept. 7, 2016) (“[M]erely posting information on the internet does not, in
itself, subject the poster to personal jurisdiction wherever that information may be
assessed.” (citing Shrader, 633 F.3d at 1244)). And “[a] website, even if interactive, is
insufficient to create personal jurisdiction where that website has gone unused by
residents of the forum state.” Boopy Co. v. Luvee Products Corp., No. 04-MK-320

(OES), 2004 WL 2608265, at *5 (D. Colo. May 25, 2004).
Here, Plaintiff alleges Defendant “marketed, advertised, and sold . . . goods and
services throughout the United States using the Infringing Mark, through the Infringing
Website and using other marketing methods.” [#1 at ¶ 25 (emphasis added)] But
Plaintiff neither alleges nor offers evidence that Colorado residents have specifically
interacted with Defendant’s website. And in its Reply, Defendant offers evidence that
“[n]o Colorado resident has ever set up an account on [Defendant’s] website or made
an inquiry through that website about training at [Defendant’s] facility.” [#25-1 at ¶ 5]
Because Plaintiff has failed to show that Defendant’s website was actually accessed by
Colorado residents, the Court cannot find personal jurisdiction.

Moreover, even if, arguendo, Plaintiff provided proof that Colorado residents
accessed Defendant’s website, it would still not establish personal jurisdiction in this
case. The Tenth Circuit has emphasized that the “maintenance of a website alone does
not in and of itself subject the owner or operator to personal jurisdiction, even for actions
relating to the site, simply because it can be accessed by residents of the forum state.”
Old Republic, 877 F.3d at 908 (quotation omitted).3 Instead, courts must consider
“indications that a defendant deliberately directed its message at an audience in the

3 Old Republic was addressing whether the operation of a website could create specific
jurisdiction. 877 F.3d at 904-09. But if the maintenance of a website accessible to
forum state and intended harm to the plaintiff occurring primarily or particularly in the
forum state.” Id. (quotation omitted).
Plaintiff neither alleges nor provides evidence that Defendant deliberately
directed its message to Colorado residents and intended harm to Plaintiff in Colorado.

Plaintiff merely alleges that Defendant’s website is “interactive and necessarily directed
to residents in Colorado,” and “[USA Gymnastics (‘USAG’)] Athletes, including those in
Colorado can search, register and pay for AGC camps, classes and competitions on its
websites,” and because of the USAG regional affiliation, Defendant “should expect that
Colorado residents will intentionally use and conduct transactions on its website.” [#24
at 19-20] Courts in this district have rejected similar arguments where the defendant’s
conduct, even if harmful to a forum resident, lacked express targeting of the forum. See
SEBO Am., LLC v. Azar, No. 20-cv-03015-NYW, 2021 WL 720170, at *5 (D. Colo.
2021) (finding the court lacked personal jurisdiction over a seller of products allegedly
infringing on a Colorado company’s trademark because nothing in the record reflected

that the seller sold any products to Colorado residents); Onyx Enterprises Int'l Corp. v.
Sloan Int'l Holdings Corp., No. 19-cv-2992-DDD-KLM, 2020 WL 1958414, at *4-6 (D.
Colo. Mar. 26, 2020) (holding that the operation of a website and use of that website to
make products available throughout the United States does not demonstrate any type of
contact with Colorado specifically), report and recommendation adopted, 2020 WL
1955398 (D. Colo. Apr. 23, 2020).

residents of a forum state is insufficient to create specific jurisdiction in that forum state,
it certainly does not create general jurisdiction in that forum state.
Thus, the Court finds that Plaintiff has failed to establish that Defendant has
sufficient contacts with Colorado such that Colorado has general jurisdiction over
Defendant.
2. Specific Jurisdiction

“Specific jurisdiction calls for a two-step inquiry: (a) whether the plaintiff has
shown that the defendant has minimum contacts with the forum state; and, if so, (b)
whether the defendant has presented a ‘compelling case that the presence of some
other considerations would render jurisdiction unreasonable.’” Old Republic Ins. Co.,
877 F.3d at 904 (quoting Burger King, 471 U.S. at 476-77). “[T]he ‘minimum contacts’
test for specific jurisdiction encompasses two distinct requirements: first, that the out-of-
state defendant must have ‘purposefully directed’ its activities at residents of the forum
state, and second, that the plaintiff's injuries must ‘arise out of’ defendant's forum-
related activities.” Shrader, 633 F.3d at 1239 (quotation omitted). The Court addresses
each of Plaintiff’s arguments in favor of specific jurisdiction in turn.

a. Intentional Tort Allegations
Plaintiff first argues that Defendant committed an intentional tort—trademark
infringement—that caused harm in Colorado. [#24 at 17] Plaintiff alleges that
Defendant’s use of the “Active Gymnastics Center” Mark harms Plaintiff’s reputation and
dilutes its trademarks in Colorado, where Plaintiff is based. [Id. at 5, 17] Plaintiff
concludes that since the trademark infringement was purposefully directed at Active
Athletics in Colorado, Defendant has minimum contacts within the State, and thus is
subject to this Court by specific personal jurisdiction. [Id. at 17]
In determining personal jurisdiction for tort-based actions, courts apply a
“purposeful direction” test. Niemi v. Lasshofer, 770 F.3d 1331, 1348 (10th Cir. 2014)
Under that test, the court may exercise personal jurisdiction over a non-resident
defendant where there is evidence of: “(a) an intentional action . . . that was (b)

expressly aimed at the forum state . . . with (c) knowledge that the brunt of the injury
would be felt in the forum state.” Id.; see also Ullom v. Doctors Collection Serv., Inc.,
No. 17-cv-0740-WJM-STV, 2018 WL 619755, at *3 (D. Colo. Jan. 30, 2018) (“A plaintiff
must establish not only that defendants foresaw (or knew) that the effects of their
conduct would be felt in the forum state, but also that defendants undertook intentional
actions that were expressly aimed at that forum state.” (quotation omitted)). The focus
of this analysis is on “the relationship among the defendant, the forum, and the
litigation,” not the relationship between Plaintiff and Defendant. Calder v. Jones, 465
U.S. 783, 788 (1984) (quotation and emphasis omitted). As the Supreme Court has
explained:

[M]ere injury to a forum resident is not a sufficient connection to the forum.
Regardless of where a plaintiff lives or works, an injury is jurisdictionally
relevant only insofar as it shows that the defendant has formed a contact
with the forum State. The proper question is not where the plaintiff
experienced a particular injury or effect but whether the defendant's
conduct connects him to the forum in a meaningful way.

Walden v. Fiore, 571 U.S. 277, 290 (2014) Thus, in order for Plaintiff to successfully
show that Defendant’s alleged trademark infringement creates personal jurisdiction,
Plaintiff must show that Defendant purposefully directed its conduct toward Colorado.
To show that Defendant purposefully directed its infringing actions toward
Plaintiff and the state of Colorado, Plaintiff states that it sent Defendant a cease-and-
desist letter describing the damage its use of “Active Gymnastics Center” was causing
Plaintiff’s business and Defendant nonetheless continued its use. [#24 at 17] These
assertions, however, are insufficient to create personal jurisdiction. Courts in this
district have found that knowledge of purported harm and subsequent continued
infringement are “not enough to satisfy the purposeful direction component in the

absence of any indication that [defendant] sold [] products to Colorado consumers.”
SEBO Am., LLC, 2021 WL 720170, at *4; see also Floyd's 99 Holdings, LLC v. Jude's
Barbershop, Inc., 898 F. Supp. 2d 1202, 1208–09 (D. Colo. 2012) (“[T]he out-of-state
commission of trademark infringement alone—even with knowledge that the
infringement would cause economic injury in Colorado—falls well short of contact
‘expressly aimed’ at the state.”); Impact Products., Inc. v. Impact Products., LLC, 341 F.
Supp. 2d 1186, 1191 (D. Colo. 2004) (“That [the defendant] may have infringed on [the
plaintiff’s] mark outside of Colorado, and did so knowing that [the plaintiff] was a
Colorado resident and that this infringement would have effects in Colorado, is not
sufficient to demonstrate ‘express aiming’ at this forum under the Calder test.”).

Without proof of intentional action purposefully directed toward Colorado and
evidence that Colorado residents engaged with Defendant’s business, the Court cannot
find specific personal jurisdiction over the trademark infringement claim simply because
the disputed mark was used on the internet. “Plaintiff’s argument asks the Court to
adopt a per se rule finding nationwide personal jurisdiction in any case involving the use
of a disputed mark on the internet. ‘The creation of such de facto universal jurisdiction
runs counter to the approach the [Supreme Court] has followed since International
Shoe.’” Job Store, Inc., 2016 WL 9735786, at *5 (quoting Advanced Tactical Ordnance
Systems, LLC v. Real Action Paintball, Inc., 751 F.3d 796, 801-02 (7th Cir. 2014)).
b. Business Model focused on Colorado
Plaintiff next argues that because Defendant’s gymnastics business “would
necessarily have to focus on the states within the USAG Region 3, [including]
Colorado,” minimum contacts exist, which subject Defendant to personal jurisdiction.

[#24 at 18] Plaintiff claims that Defendant currently has athletes that compete at
regional and out-of-state events. [Id. at 12] Thus, according to Plaintiff, it is likely that
Defendant will, in the future, “send high level athletes to compete in Colorado
competitions.” [Id. at 18] Plaintiff thus concludes that these probable future contacts
create specific personal jurisdiction. [Id.]
Plaintiff’s argument relies on hypothetical future interactions by Defendant with
Colorado, which is insufficient to establish jurisdiction. “Plaintiff must allege something
more than mere foreseeable economic injury in the forum state to demonstrate that
Defendant[ ] had sufficient minimum contacts, and that something more must be that
Defendant[ ] undertook intentional actions that were expressly aimed at Colorado.”

Floyd’s, 898 F. Supp. 2d at 1209 (quotation omitted); see also Burger King, 471 U.S. at
474 (holding the mere foreseeability of a non-forum resident causing injury in the forum
state insufficient for the exercise of personal jurisdiction). And as already established,
the Court finds that Plaintiff has failed to show that Defendant purposefully directed its
actions toward Colorado. Thus, the hypothetical possibility that one of Defendant’s
athletes may participate in Colorado is insufficient to create personal jurisdiction over
Defendant.
c. USAG Contract
Next, Plaintiff argues that Defendant’s agreement with USAG creates a contact
with Colorado because it: (1) requires Defendant to include events hosted at its facility
on USAG’s website, which is accessible to Colorado residents; (2) requires Defendant

to allow Colorado athletes to participate in events held at Defendant’s facility; and (3)
requires Defendant to send qualifying athletes to Colorado competitions. [#24 at 18-19]
The Court disagrees that the USAG contract creates the minimal contacts with Colorado
required to establish personal jurisdiction over Defendant.
The Tenth Circuit has rejected the notion that a contract between an out-of-state
party and a resident of the forum state constitutes sufficient minimum contacts for
purposes of personal jurisdiction. Benton v. Cameco Corp., 375 F.3d 1070, 1077 (10th
Cir. 2004) (citing Burger King, 471 U.S. at 473). And here, Defendant’s connection to
Colorado through the USAG contract is even further removed. Plaintiff does not assert
that it has a contract with Defendant. Rather, Plaintiff and Defendant each have

separate contractual relationships with USAG. [#24-1 at 7-10] And the Terms and
Conditions of those contractual relationships include a forum-selection clause setting
Indiana (USAG’s home state) as the jurisdiction in which disputes will be handled. [Id.
at 10]
Plaintiff nonetheless argues that the USAG agreement creates personal
jurisdiction because the agreement requires Defendant to include events hosted at its
facility on USAG’s website, which is accessible to Colorado residents. [#24 at 19] But
as discussed earlier, posting on a website that is accessible by residents of the forum
state does not subject a party to personal jurisdiction. See Job Store, Inc., 2016 WL
9735786, at *5 (citing Shrader, 633 F.3d at 1244). As a result, the mere fact that the
USAG agreement requires Defendant to include on its website events hosted at its
facility does not create personal jurisdiction over Defendant.
Plaintiff also argues that the USAG agreement requires Defendant to allow

Colorado athletes to compete at events held at Defendant's facility and requires
Defendant to allow its own athletes to compete at events held in Colorado. [#24 at 19]
But, again, Defendant has submitted evidence that no Colorado resident has ever
trained at Defendant’s facility, no Colorado resident has submitted an inquiry about
training at Defendant’s facility, and that Defendant has no plans of hosting a USAG
event. [##24-3 at 5 (18:22-19:1); 25-1 at ¶¶ 4-5] And Plaintiff has not offered any
allegations or evidence that one of Defendant’s athletes has competed in Colorado, or
any argument that such minimal contacts would be sufficient to create personal
jurisdiction over Defendant. Thus, Plaintiff’s speculation about hypothetical future
interactions by Defendant with Colorado is insufficient to establish jurisdiction. Floyd’s,

898 F. Supp. 2d at 1209 (explaining that plaintiff must allege “something more” than
mere foreseeable economic injury in Colorado to demonstrate sufficient minimum
contacts with the forum state); Burger King, 471 U.S. at 474 (holding that the mere
foreseeability of a non-forum resident causing injury in the forum state is insufficient for
the exercise of personal jurisdiction). Accordingly, Defendant’s USAG agreement does
not create personal jurisdiction over Defendant in Colorado.
d. Successor Liability
Finally, Plaintiff argues that Defendant is subject to jurisdiction based on the
minimum contacts of its predecessor, Silhouette Group, LLC, (“Silhouette Group”),
which Plaintiff alleges conducted business in Colorado before being acquired by
Defendant. [#24 at 20-22] “Typically, a buyer of a corporation's assets will be liable as
its successor if: (1) it expressly or impliedly assumed the predecessor's tort liability, (2)
there was a consolidation or merger of seller and purchaser, (3) the purchasing

corporation was a mere continuation of the selling corporation, or (4) the transaction is
entered into fraudulently to escape such obligations.” United States v. Pioneer Nat.
Res. Co., 309 F. Supp. 3d 923, 930-31 (D. Colo. 2018) (quotation omitted). And a
“corporation that succeeds to the business of a partnership or single proprietorship may
. . . be subject to long-arm jurisdiction for actions arising from the activity of the
predecessor if the corporation assumed liability for the predecessor's obligations.” Inter-
Americas Ins. Corp. v. Xycor Sys., Inc., 757 F. Supp. 1213, 1217 (D. Kan. 1991)
(quotation omitted). But Plaintiff has not provided any evidence that Silhouette Group—
as opposed to Defendant—infringed Plaintiff’s trademarks, thereby subjecting
Defendant to liability for Silhouette Group’s actions. Nor has Plaintiff provided any

evidence that Silhouette Group was subject to personal jurisdiction in Colorado. See In
re Celotex Corp., 124 F.3d 619, 628 (4th Cir. 1997) (“Under [the successor corporation
liability] theory, a non-resident defendant corporation not otherwise subject to personal
jurisdiction in the forum state becomes so by virtue of its succeeding to a corporation
that was subject to personal jurisdiction in the forum state.” (emphasis added)). Thus,
Plaintiff’s successor liability theory of personal jurisdiction fails.
B. Dismissal or Transfer for Lack of Personal Jurisdiction
As detailed above, Plaintiff has failed to establish jurisdiction over Defendant in
Colorado. In its Response, Plaintiff argues, to the extent the Court finds that it lacks
personal jurisdiction over Defendant, the Court should transfer Plaintiff’s claims against
Defendant to the United States District Court for the Northern District of Texas. [#24 at
22] The Court agrees.
Pursuant to 28 U.S.C. § 1631, when a court determines that it lacks personal

jurisdiction, it “shall, if it is in the interest of justice, transfer such action . . . to any other
such court . . . in which the action or appeal could have been brought.” Although
Section 1631 “contain[s] the word ‘shall,’ [the Tenth Circuit] ha[s] interpreted the phrase
‘if it is in the interest of justice’ to grant the district court discretion in making a decision
to transfer an action or instead to dismiss the action without prejudice.” Trujillo, 465
F.3d at 1222-23. “Factors considered in deciding whether a transfer is in the interest of
justice include [1] whether the claims would be time barred if filed anew in the proper
forum, [2] whether the claims alleged are likely to have merit, and [3] whether the claims
were filed in good faith or if, on the other hand, it was clear at the time of filing that the
court lacked the requisite jurisdiction.” In re Cline, 531 F.3d 1249, 1251 (10th Cir.

2008). “[W]here the court determines that it lacks jurisdiction and the interests of justice
require transfer rather than dismissal, ‘[t]he correct course . . . [is] to transfer the action
pursuant to [§ 1631].’” Trujillo, 465 F.3d at 1223 (quoting Ross v. Colo. Outward Bound
Sch., Inc., 822 F.2d 1524, 1527 (10th Cir. 1987)). Weighing these factors, the Court
concludes that the matter should be transferred to the Northern District of Texas.
First, the “Lanham Act . . . contains no statute of limitations, and expressly
provides for defensive use of . . . laches.” Yeager v. Fort Knox Security Products, 602
F. App’x 423, 431 (10th Cir. 2015) (alterations in original). Courts thus apply analogous
state statute of limitation provisions and “invoke[] presumptions in favor of (or against)
laches defenses to claims brought outside (or inside) the analogous limitations period.”
Id. Because Plaintiff does not address the statute of limitations here, and because the
other factors weigh in favor of transfer even if Plaintiff’s claims would not be time-
barred, the Court need not determine the relevant statute of limitations period, or decide

the proper weight to give to a laches defense.
Second, with respect to whether the claims are likely to have merit, “a court is
authorized to consider the consequences of a transfer by taking ‘a peek at the merits’ to
avoid raising false hopes and wasting judicial resources that would result from
transferring a case which is clearly doomed.” Haugh v. Booker, 210 F.3d 1147, 1150
(10th Cir. 2000) (quoting Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999)). Plaintiff
asserts claims of trademark infringement, false designation of origin, false advertising,
and unfair competition under the Lanham Act, 15 U.S.C. §§ 1114, 1125. [#1 at ¶¶ 22-
51] To establish these claims, a plaintiff must prove that: (1) the mark is protectable; (2)
the defendant used the mark in connection with commercial use; and (3) the

defendant’s use of the mark is likely to cause confusion or mistake. 1-800 Contacts,
Inc. v. Lens.com, Inc., 722 F.3d 1229, 1238 (10th Cir. 2013). Plaintiff has made
credible allegations with respect to each of these elements. [#1 at ¶ 1 (alleging Plaintiff
owns the registered trademark “ACTIVE ATHLETICS” and has pending ownership of
the trademark “ACTIVE GYMNASTICS”); id. at ¶¶ 15-21 (alleging that Defendant is
using Plaintiff’s trademark without consent); id. at ¶ 18 (alleging that Defendant’s use of
the trademark is likely to cause confusion as to the affiliation, connection, or association
of Defendant with Plaintiff; or as to the origin, sponsorship, or approval by Plaintiff of
Defendant’s goods, services, or activities.)] Thus, the fact that Plaintiff’s claims alleged
are likely to have merit supports transfer.
Finally, as to the third factor, the Court concludes that Plaintiff’s claims were filed
in good faith. And, while the Court concludes that it lacks jurisdiction over Defendant,

this conclusion was not so clear at the time of the filing of the Complaint as to warrant
dismissal as opposed to transfer.
Accordingly, the Court finds that the interests of justice in this case require
transfer to the appropriate court rather than dismissal.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it lacks personal jurisdiction
over Defendant. Nonetheless, the Court DENIES Defendant’s Motion to Dismiss [#18]
to the extent it seeks to dismiss the case and, instead, DIRECTS the Clerk of Court,
pursuant to 28 U.S.C. § 1631, to transfer this case to the United States District Court for
the Northern District of Texas.

DATED: December 20, 2024 BY THE COURT:

s/Scott T. Varholak
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10770434. Public record. Not legal advice.