Barth v. Cliffside Beach, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-01883-NRN
GERALD BARTH,
Plaintiff,
v.
CLIFFSIDE BEACH, INC. d/b/a CLIFFSIDE BEACH CLUB AND HOTEL,
Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR
LACK OF PERSONAL JURISDICTION PURSUANT TO FEDERAL RULE OF CIVIL
PROCEDURE 12(b)(2) (ECF No. 12)
N. REID NEUREITER
United States Magistrate Judge
This case comes to the Court upon the consent of the parties to magistrate judge
jurisdiction, ECF No. 15, and an Order of Reference entered by Chief Judge Philip A.
Brimmer on September 10, 2025, ECF No. 17. Now before the Court is Defendant
Cliffside Beach, Inc. d/b/a Cliffside Beach and Hotel’s (“Cliffside”) Motion to Dismiss
Complaint for Lack of Personal Jurisdiction Pursuant to Federal Rule of Civil Procedure
12(b)(2) (“Motion to Dismiss”). ECF No. 12. Plaintiff Geral Barth, proceeding pro se,
filed a response, ECF No. 18, and Cliffside filed a reply, ECF No. 20.
The Court has taken judicial notice of the docket and considered the applicable
Federal Rules of Civil Procedure and case law. Now, being fully informed and for the
reasons discussed below, the Motion to Dismiss is GRANTED.
Case No. 1:25-cv-01883-NRN Document 23 filed 11/14/25 USDC Colorado pg 1
of 11

2
I. BACKGROUND
This lawsuit arises out of dispute regarding a Club Membership Agreement (the
“Agreement”) between Plaintiff, a Colorado resident, and Cliffside, the operator of a for-
profit beach club in Massachusetts. See generally ECF No. 1. Plaintiff brings claims for
breach of contract, unjust enrichment, fraud, and violations of Massachusetts state law.
Plaintiff alleges that this Court has subject matter jurisdiction over this case pursuant to
28 U.S.C. § 1332 (diversity of citizenship). Id. at 2.
The facts as alleged in the Complaint are relatively straightforward. The parties
entered into the Agreement in 2008. Id. at 3, ¶ 1. The Agreement stipulated that Plaintiff
would be entitled to reimbursement of the $160,000 initiation fee upon notice to Cliffside
of Plaintiff’s intent to resign and the admission of a new member to replace them or
upon the sale of stock in the Club or its real estate. Id. ¶ 2. When Plaintiff resigned his
membership in November 2015, he was informed that it could be several years before
Cliffside would have enough new members to be able to reimburse Plaintiff’s initiation
fee. Id. ¶¶ 3–4. However, Plaintiff claims that he was informed by Cliffside that he would
not be charged with the annual membership fee while he was on the waitlist for
reimbursement if he did not use any of the club’s facilities. Id. ¶ 6.
Unbeknownst to Plaintiff, Cliffside continued to charge him for annual
membership fees, as well as a 1.4% compounding monthly finance charge on the
unpaid balance. Id. ¶ 5. Plaintiff was unaware of the charges until August 2022, when
he inquired about the status of initiation fee reimbursement and learned that he had
incurred over $100,000 in charges, which Cliffside said would be applied against any
Case No. 1:25-cv-01883-NRN Document 23 filed 11/14/25 USDC Colorado pg 2
of 11

3
reimbursement. Id. at 4, ¶ 10. Plaintiff’s 2024 demand for reimbursement was rejected.
Id. ¶ 11.
II. The Parties’ Positions
a. Cliffside’s Motion to Dismiss
Cliffside has moved to dismiss for lack of personal jurisdiction. According to
Cliffside, this case has nothing to do with Colorado beyond the fact that Plaintiff lives
here. In support of its personal jurisdiction argument, Cliffside submitted a declaration
from Robert Currie, Cliffside’s President. ECF No. 12-1. Mr. Currie states as follows.
• Cliffside operates a private beach club in Nantucket, Massachusetts, and derives
all of its revenues from the operation of the property. Id. ¶¶ 2, 4.
• Cliffside is incorporated and maintains its principal place of business in
Massachusetts. Id. ¶¶ 10–11.
• Cliffside is not registered to conduct business in Colorado, does not have an
agent for service of process in Colorado, and does not conduct business in
Colorado. Id. ¶¶ 12–14.
• Cliffside does not maintain, rent, or own any property in Colorado, does not
maintain bank accounts in Colorado, does not have any contracts with any
Colorado entities, and does not pay Colorado taxes. Id. ¶¶ 15–18.
• Cliffside does not manufacture or sell any goods or services in Colorado, has
never sent any of its staff or agents to solicit business in Colorado, and does not
purposefully direct any marketing activities to Colorado residents. Id. ¶¶ 19–20.
Given these facts, Cliffside contends that it is clear this Court has neither general
nor specific jurisdiction over Cliffside.
Case No. 1:25-cv-01883-NRN Document 23 filed 11/14/25 USDC Colorado pg 3
of 11

4
b. Plaintiff’s Response
Plaintiff submitted his own statement of facts, ECF No. 18 at 2, and declaration,
ECF No. 18-1. He confirms that he is a Colorado resident who first visited Cliffside in
2007 while on vacation in Nantucket. ECF No. 18-1 ¶¶ 1–2. The parties disagree on
where the Agreement was signed; Cliffside says Plaintiff signed it and delivered the
check for the initiation fee in Nantucket, ECF No. 12-1 ¶¶ 7–8, Plaintiff claims he mailed
it to Nantucket from Colorado, ECF No. 18 at 2, ¶¶ 6–7. Otherwise, the basic facts are
not disputed, except Plaintiff points out that many of Cliffside’s members reside outside
of Massachusetts, and Cliffside markets to and communicates with out-of-state
members and prospective members. ECF No. 18 at 2, ¶¶ 4, 8–10.
Plaintiff argues that Cliffside is subject to specific personal jurisdiction since
Cliffside purposefully executed the Agreement with the knowledge that Plaintiff was a
Colorado resident, and the claims arise directly from this contractual relationship.
Plaintiff further claims that Cliffside knew or should have known that by wrongfully
withholding the reimbursement funds, and thereby breaching the Agreement, Plaintiff
would suffer injuries in Colorado.
III. LEGAL STANDARDS
a. Dismissal for Lack of Personal Jurisdiction
Rule 12(b)(2) authorizes a responding party to seek dismissal based on the lack
of personal jurisdiction, which can rely on evidence outside of the complaint. Fed. R.
Civ. P. 12(b)(2); XMission, L.C. v. Fluent Ltd. Liab. Co., 955 F.3d 833, 839 (10th Cir.
2020) (noting a motion to dismiss for lack of jurisdiction is “decided on the basis of
affidavits and other written material”). When the court’s jurisdiction is contested, the
Case No. 1:25-cv-01883-NRN Document 23 filed 11/14/25 USDC Colorado pg 4
of 11

5
“plaintiff has the burden of establishing personal jurisdiction.” XMission, L.C., 955 F.3d
at 839. A plaintiff can defeat a motion to dismiss only by “presenting evidence,” in the
form of “uncontested allegations in its complaint or other materials, or an affidavit or
declaration,” that, if true, would support a finding of personal jurisdiction. Id.
For personal jurisdiction over a defendant to be proper, the plaintiff must
establish that “jurisdiction is legitimate under the laws of the forum state and that the
exercise of jurisdiction does not offend the due process clause of the Fourteenth
Amendment.” Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir. 2004). Because
“Colorado’s long arm statute is coextensive with constitutional limitations imposed by
the due process clause,” the Court need only decide whether the exercise of personal
jurisdiction would be consistent with the requirements of federal due process. Id.
A court constitutionally may exercise personal jurisdiction in one of two ways,
through either general jurisdiction or specific jurisdiction. Hargrave v. Concord Moon,
L.P., 278 F. App’x 853, 855 (10th Cir. 2008) (“Jurisdiction over corporations may be
either general or specific.”).
General jurisdiction is established only “if [a defendant’s] contacts with the State
are so continuous and systematic that [it] is essentially at home” in the forum. XMission,
L.C., 955 F.3d at 840 (internal quotation marks omitted). Mere “continuous activity of
some sort within a state . . . is not enough to support the demand that the corporation
be amenable to suits unrelated to that activity.” Goodyear Dunlop Tires Operations, S.A.
v. Brown, 564 U.S. 915, 927 (2011). Rather, only a “limited set of affiliations with a
forum will render a defendant amenable to all-purpose jurisdiction.” Daimler AG v.
Bauman, 571 U.S. 117, 137 (2014). For a corporation, “the place of incorporation and
Case No. 1:25-cv-01883-NRN Document 23 filed 11/14/25 USDC Colorado pg 5
of 11

6
principal place of business are paradig[m] . . . bases for general jurisdiction.” Id.
(alteration in original) (internal quotation marks omitted).
The specific jurisdiction question is a two-step inquiry. Benton, 375 F.3d at 1075.
First a court must determine if the defendant has “purposefully directed [its] activities at
residents of the forum,” and also that “the litigation results from alleged injuries that
arise out of or relate to those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462,
472 (1985) (internal quotation marks omitted). Second, if the defendant’s actions do
create sufficient minimum contacts, then a court must “consider whether the exercise of
personal jurisdiction over the defendant offends traditional notions of fair play and
substantial justice.” Benton, 375 F.3d at 1075 (internal quotation marks omitted).
b. Pro Se Plaintiff
Plaintiff proceeds pro se. The Court, therefore, “review[s] his pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted). However, a pro se litigant’s “conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff
can prove facts that have not been alleged, or that a defendant has violated laws in
ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New
Mexico, 113 F.3d 1170, 1173– 74 (10th Cir. 1997) (court may not “supply additional
factual allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927
F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for
Case No. 1:25-cv-01883-NRN Document 23 filed 11/14/25 USDC Colorado pg 6
of 11

7
the plaintiff in the absence of any discussion of those issues”). A plaintiff’s pro se status
does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d
952, 957 (10th Cir. 2002).
IV. ANALYSIS
The Court has neither general nor specific jurisdiction over Cliffside.
a. General Jurisdiction
Cliffside is a Massachusetts corporation with a principal place of business in
Nantucket, Massachusetts. There are no facts alleged which could establish that
Cliffside has such a continuous and systematic presence in Colorado such as to render
it “at home” here. Accordingly, there is no reasonable argument that there is general
personal jurisdiction over Cliffside in Colorado.
b. Specific Jurisdiction
As noted above, to establish minimum contacts for purposes of specific personal
jurisdiction, the Court asks whether Cliffside purposefully directed its activities at
residents of Colorado and whether Plaintiff's injury arose from those purposefully
directed activities. Newsome v. Gallacher, 722 F.3d 1257, 1264 (10th Cir. 2013). If the
answer to these questions is yes, the Court must determine whether exercising
jurisdiction would offend traditional notions of fair play and substantial justice. Id.
Plaintiff has not met his burden regarding any of these elements.
To establish the first element of the specific personal jurisdiction inquiry, courts
ask if the defendant “purposefully availed” itself of the benefits and protections of the
forum state. See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1071
(10th Cir. 2008) (“The first element can appear in different guises. In the tort context, we
Case No. 1:25-cv-01883-NRN Document 23 filed 11/14/25 USDC Colorado pg 7
of 11

8
often ask whether the nonresident defendant ‘purposefully directed’ its activities at the
forum state; in contract cases, meanwhile, we sometimes ask whether the defendant
‘purposefully availed’ itself of the privilege of conducting activities or consummating a
transaction in the forum state.”). “In all events, the shared aim of ‘purposeful direction’
doctrine has been said by the Supreme Court to ensure that an out-of-state defendant is
not bound to appear to account for merely ‘random, fortuitous, or attenuated contacts’
with the forum state.” Id. (quoting Burger King, 471 U.S. at 475). The focus of this
“inquiry is the defendant’s relationship to the forum state.” Bristol-Myers Squibb Co. v.
Super Ct. Cal., S.F. Cnty, et al., 582 U.S. 255, 262 (2017) (citations omitted).
Second, the “minimum contacts” analysis “looks to the defendant’s contacts with
the forum state itself, not the defendant’s contacts with persons who reside there.”
Walden v. Fiore, 571 U.S. 277, 285 (2014). Thus, jurisdiction may be properly exercised
over “defendants who have purposefully ‘reach[ed] out beyond’ their State and into
another by, for example, entering a contractual relationship that ‘envisioned continuing
and wide-reaching contacts’ in the forum State.” Id. (quoting Burger King, 471 U.S. at
479–480). “But the plaintiff cannot be the only link between the defendant and the
forum.” Id.
Plaintiff’s primary argument is that the Cliffside is subject to personal jurisdiction
in Colorado because it “voluntarily entered into a contract with Plaintiff, who is a
Colorado resident.” ECF No. 18 at 4. However, “[a] contract between an out-of-state
party and a resident of the forum state cannot, standing alone, establish sufficient
minimum contacts with the forum.” Benton, 375 F.3d at 1077 (citing Burger King, 471
U.S. at 473). “In a contract case, relevant factors for assessing minimum contacts
Case No. 1:25-cv-01883-NRN Document 23 filed 11/14/25 USDC Colorado pg 8
of 11

9
include ‘prior negotiations and contemplated future consequences, along with the terms
of the contract and the parties' actual course of dealing.’” Id. (quoting Burger King, 471
U.S. at 479). “It is well-established that phone calls and letters are not necessarily
sufficient in themselves to establish minimum contacts.” Far W. Cap., Inc. v. Towne, 46
F.3d 1071, 1077 (10th Cir. 1995).
Here, Plaintiff does not allege any facts showing that Cliffside had minimum
contacts with Colorado. Cliffside is a private beach club that is located and only
operates in Nantucket, Massachusetts. It does not provide any services or sell any
items in Colorado. It does not solicit business in Colorado. As discussed below, it did
not solicit Plaintiff’s business in Colorado. The Agreement was performed in
Massachusetts, where the beach club is located, not in Colorado. Cliffside’s allegedly
wrongful acts occurred in Massachusetts. As Cliffside notes, the only mention of
Colorado in the Complaint is in reference to Plaintiff’s citizenship. ECF No. 1 at 2. The
mere fact that Cliffside entered into a contract with a Colorado resident does not
constitute the minimum contacts necessary to constitutionally exercise jurisdiction. See
Kelso v. Lyford Cay Members Club Ltd., 162 F. App'x 361, 364 (5th Cir. 2006) (finding
that a private club in the Bahamas that actively solicited the plaintiff’s membership did
not direct its activities to Texas in such a manner that the cause of action arose from the
club’s activities in the forum state). In other words, Cliffside’s only link to Colorado is
Plaintiff, and this type of fortuitous and attenuated connection is plainly insufficient to
support the exercise of personal jurisdiction.
Plaintiff further notes that Cliffside “marketed its services to out-of-state residents
through a nationwide online platform, including Colorado.” ECF No. 18 at 2. This is not
Case No. 1:25-cv-01883-NRN Document 23 filed 11/14/25 USDC Colorado pg 9
of 11

10
sufficient to establish minimum contacts. The Tenth Circuit has recognized that “merely
posting information on the internet does not, in itself, subject the poster to personal
jurisdiction wherever that information may be accessed.” Shrader v. Biddinger, 633 F.3d
1235, 1244 (10th Cir. 2011). Instead, “courts look to indications that a defendant
deliberately directed its message at an audience in the forum state and intended harm
to the plaintiff occurring primarily or particularly in the forum state.” Id. at 1241. The
Complaint does not allege that Cliffside’s website contained Colorado-specific
information or that it directed advertisements to Colorado residents in particular such
that the forum state was intentionally targeted by the club. Baldwin v. Athens Gate
Belize, LLC, No. 18-cv-00586-PAB-NYW, 2019 WL 4674332, at *4 (D. Colo. Sept. 24,
2019); see also Boppy Co. v. Luvee Prods. Corp., No. 04-MK-320, 2004 WL 2608265,
at *4 (D. Colo. May 25, 2004) (“[T]he Court notes that many cases recognize that the
‘purposeful’ element is not satisfied by an interactive website that is generally available
to persons nationwide (much less worldwide) but which does not specifically target
residents of the forum state to a degree greater than any other users.”).
Moreover, Plaintiff does not even allege that he learned about Cliffside via the
website or through other marketing efforts. Rather, he explicitly states that he “first
became aware of Defendant and Defendant’s Beach Club in the Summer of 2007 when
Plaintiff’s wife was receiving Physical Therapy at Defendant’s club from Defendant’s
Personal Trainer on staff.” ECF No. 18 at 4. Thus, it is undisputed the Plaintiff initiated
contact with Cliffside in person; there was no business conducted between the parties
through the club’s website. Under these facts, the Court cannot conclude that Cliffside
Case No. 1:25-cv-01883-NRN Document 23 filed 11/14/25 USDC Colorado pg 10
of 11

11
engaged in an intentional act deliberately aimed at the forum state so as to render them
subject to Colorado's personal jurisdiction. Dismissal under Rule 12(b)(2) is appropriate.
Finally, it would be unreasonable for a Colorado federal court to exercise
jurisdiction over this case. Plaintiff’s claims are grounded in Massachusetts common law
and/or state statute. Such matters are better decided by Massachusetts courts.
V. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendant Cliffside
Beach, Inc. d/b/a Cliffside Beach and Hotel’s Motion to Dismiss Complaint for Lack of
Personal Jurisdiction Pursuant to Federal Rule of Civil Procedure 12(b)(2), ECF No. 12,
is GRANTED. Plaintiff’s Complaint, ECF No. 1, is DISMISSED WITHOUT PREJUDICE
for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).
Date: November 14, 2025
____________________
N. Reid Neureiter
United States Magistrate Judge
Case No. 1:25-cv-01883-NRN Document 23 filed 11/14/25 USDC Colorado pg 11
of 11