Motion to Dismiss for Lack of Personal Jurisdiction

							                    IN THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLORADO


Civil Action No.    02-WM-0117


THE CONTINUING EPISCOPAL CHURCH; and THE HOLY EASTERN ORTHODOX
CATHOLIC AND APOSTOLIC CHURCH IN NORTH AMERICA, INC.

      Plaintiff

      v.

MONTGOMERY GRIFFITH aka MONTGOMERY GRIFFITH-MAIR; DIRECLYNX,
INC.; ANTHONY P. BEGONJA; and SHAVER COMMUNICATIONS, INC.,

      Defendants.



              DEFENDANT TONY BEGONJ A'S MOTION TO DISMISS
                  FOR LACK OF PERSONAL J URISDICTION
                   AND TO QUASH SERVICE OF PROCESS
                     (INCORPORATING AUTHORITIES)



      Defendant Tony Begonja (hereinafter “Defendant”), through his undersigned

attorneys, Faegre & Benson LLP, respectfully moves the Court to enter an Order pursuant to

Fed. R. Civ. P. 12(b)(2) dismissing Plaintiffs’ claims against him in the Amended Complaint

filed with the Court February 8, 2002 for lack of personal jurisdiction, and quashing the

service of process upon him. Defendant Begonja does not have the minimum contacts

necessary to support this Court’s exercise of in personam jurisdiction under Colorado’s




                                            1
“Long-Arm Statute,” Colo. Rev. Stat. § 13-1-124 (1998), and the Due Process Clause of the

Fifth Amendment.

       In support of this Motion to Dismiss, Defendant states as follows:

                                 STATEMENT OF FACTS

       Father Tony Begonja, a defendant in this action, is a resident of Sachse, Texas, a

suburb of Dallas, who was served at his place of work in Richardson, Texas. See Declaration

of Tony Begonja, ¶¶ 2-3. Father Begonja has never lived or worked in Colorado. See

Begonja Decl. ¶¶ 5-6. He has never owned property in Colorado. See Begonja Decl. ¶ 7.

Moreover, Father Begonja has never transacted business in Colorado except that thirteen

years ago (in 1989), while passing through the state on a driving trip, his car broke down and

he purchased a new car at a Colorado dealership. See Begonja Decl. ¶ 10-11.

       This case is exclusively concerned with a web site Father Begonja publishes, Ind-

Movement.org: Your Complete Guide to the World of Autocephalous (“ Independent-

Movement” ) Churches in the Apostolic Succession, which is available at the Internet address

<http://www.ind-movement.org>. Although the Amended Complaint is inartfully drafted,

and lacks the particularity necessary for such claims, it appears that Plaintiffs have sued

Defendant Begonja for a) copyright infringement by linking without permission and b)

trademark infringement. See Amended Complaint ¶ 9.1




       1
         The complaint also names Defendant Begonja’s former Internet Service Provider
(ISP), Shaver Communications, Inc., as well as another individual (sued as Montgomery
Griffith aka Montgomery Griffity-Mair) and that individual’s ISP, Direclynx, Inc.


                                               2
        Defendant Begonja operates his web site from his home in suburban Dallas, Texas.

See Begonja Decl. ¶ 14. The site has never been operated from, or hosted by an ISP located

in Colorado. See Begonja Decl. ¶ 15. The site is currently hosted by Computer Tyme, an

Internet hosting provider in Dan Francisco, California. See id. However, the site has

previously been hosted by a number of other ISPs, all of which have ultimately cancelled

Father Begonja’s accounts as a result of legal harassment by the plaintiffs. See id.; see

also Affidavit of Colin James, III, previously filed, ¶ 3 (“On at least two occasions different

internet service providers terminated service for Tony Begonja’s web site as a direct result of

complaints.”). These previous ISPs were Defendant Shaver Communications, Inc. (aka

Hostcentric, Inc., aka Web2010.com) of Houston, TX, with servers in Orlando, FL, Web

Serve Pro of Nashua, N.H., and Interland, Inc., of Atlanta Georgia. See Begonja Decl. ¶ 15.

       Since August 1999, Defendant Begonja has operated the Ind-movement.org site. See

Begonja Decl. ¶¶ 12-13. The site offers voluminous information about the “autocephalous”

movement of apostolic succession churches, by which term is meant independent

congregations and churches derived from Catholicism, Anglicanism, or Orthodox

Christianity whose priests or presbyters claim the ancestry of their consecration as priests is

an unbroken lineage back to the original biblical apostles. See Begonja Decl. ¶ 17. The site

includes pages listing and offering hypertext links to hundreds of denominations, dioceses,

religious orders, seminaries or colleges, associations of clergy or churches, as well as

discussion lists and articles in print concerning the ‘independent movement.’ See Begonja

Decl. ¶ 18. In addition, the site includes a directory of hundreds of people involved in some



                                               3
way in the independent movement2 (as ‘bishops,’ presbyters/priests, deacons, etceteras). Id.

The site includes various forms of e-mail links, some plain text links which, when clicked,

will open a new blank message with Defendant Begonja’s address in the “To:” field, in order

that site visitors may e-mail him. Id. ¶ 34. Other e-mail links and e-mail forms allow users to

suggest a person for inclusion in the directory, or suggest a URL for a link elsewhere on the

site. Id. ¶ 35. The site also includes a simple “Guestbook,” where users can post comments

about the site. Id. ¶ 36. The web site does not offer any product or service for sale, let alone

allow the consummation of a purchase on-line. Id. ¶ 20-21.

       Defendant Begonja had no contact with the plaintiffs prior to September and October

of 1999. Id. ¶ 23. At that time, Collin James, one of the three Directors, and the “Presiding

Bishop” of Plaintiff Continuing Episcopal Church (hereinafter CEC), see James Affidavit. ¶

1, and Victor Prentice, the President and Metropolitan of Plaintiff of Plaintiff The Holy

Eastern Orthodox Catholic and Apostolic Church in North America (hereinafter

THEOCACNA), see Prentice Affidavit ¶ 1, e-mailed Defendant Begonja, requesting that

Father Begonja change information about THEOCACNA in the directory listing on

Defendant’s site, and include a hypertext link to THEOCACNA’s web site. Id. ¶ 23-25.



       2
         The terms “independent movement” or “autocephalous movement” are used for the
sake of convenience only. As the site notes, “This is a "movement" only in the sense that it
continues to evolve, grow and take root, and that these churches all take seriously their
shared heritage of the tactile, historic apostolic succession. It is not a "movement" in any
organizational sense – the vast majority of these churches have no ties to each other.”
Introduction to the World of Autocephalous Churches in the Apostolic Succession ,
<http://www.ind-movement.org/intro.html>.



                                                4
Defendant Begonja provided the requested link and entry in the directory. Id. Plaintiffs’

communications to Begonja grew increasingly hostile, to the point where Defendant Begonja

ceased responding to communications. Id. ¶ 26-27. Nonetheless, Plaintiffs continue to harass

Defendant Begonja with numerous e-mails and harassing ‘hang-up’ phone calls. Id. ¶ 28.3

       Since the filing of the complaint in this action, the named ISP, Shaver

Communications, Inc., has terminated Plaintiff’s account. Id. ¶ 15. Within hours, Mr. James

had begun harassing Father Begonja’s new ISP. Id. ¶ 16.4


       3
          Plaintiffs’ harassment of Father Begonja has included the offering for sale, on
CEC’s web site the-episcopal-church.org, ($19.95 for a set of five) “The Begonja
Collection,” a “collection of five white paper plates with 9MM holes for Tony and some 45-
caliber holes for [Begonja’s wife] Fran, pseudo randomly placed to commemorate the
namesakes’ pseudo random lard cells, affectionately known as the two beached whales, due
to their severe eating disorders based on untreated sexual abuse issues. The five plates
symbolize the five faces of their aberrant sexuality which servers as their higher power.
Please specify the version desired, from Arkansas or Colorado. Note: these plates consist of
medium tight groups from about 15-yards.” Begonja Decl. ¶ 28 Exhibit L, <http://www.the-
episcopal-church.org/novelty-items-for-sale.htm>.
       4
         Unfortunately, Mr. James also began harassing the head of the Computer Tyme as
well, including posting the following text on the CEC’s web site at <http://the-episcopal-
church.org/begonja,tony.htm> (Begonja Decl. ¶ 16, Exhibit C):

              Infringing Begonja site is now hosted by atheist Marc Perkel who specializes in
     taking pictures of babies at http://www.ctyme.com/mavica/baby.htm
              Begonja's infringing website is now hosted by the Jewish atheist of Siberian
     background, Marc Perkel, pronounced per-Kill. He claims to be a comical character
     but is a very sick man. Perkel is notorious for: numerous, trivial, failed pro se
     lawsuits; failed political campaigns based on a pro-prostitution platform; publication
     of his personal problems; and bragging about over 1,300 web page references to
     himself. Links to public domain photos of him, for which he states on December 09,
     2001 4:13:18 PM GMT that "[p]ermission is granted to all to link to any of my web
     pages", are aging hippie and shrew face with guiena pig teeth. [Note: none of Perkel's
     web pages bears a valid copyright notice.]
(Emphasis in original.)


                                              5
                                       DISCUSSION

       I.     Standar d of Review

       To determine whether a federal court has jurisdiction in a diversity action over a non-

resident defendant, the Court must look to the law of the forum state. See Taylor v. Phelan,

912 F.2d 429, 431 (10th Cir. 1990). A plaintiff has the burden of pleading a prima facie

showing of personal jurisdiction. See FDIC v. Oaklawn Apartments, 959 F.2d 170, 174

(10th Cir. 1992); Behagen v. Amateur Basketball Ass’n, 744 F.2d 731, 733 (10th Cir. 1984).

When a defendant contests a plaintiff’s assertion of personal jurisdiction in an answer or a

motion to dismiss, the burden of proving jurisdiction falls on the plaintiff. See Wenz v.

Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); cf. Behagen, 744 F.2d at 733 (“The

allegations in the complaint must be taken as true to the extent they are uncontroverted by the

defendant’s affidavits). When a defendant presents credible evidence through affidavits or

other materials suggesting the lack of personal jurisdiction, the plaintiff must come forward

with sufficient evidence to create a genuine dispute of material fact on the issue. See Doe v.

National Med. Servs., 974 F.2d 143, 145 (10th Cir. 1992). Only if the plaintiff meets his

obligation of contesting the credible evidence presented by a defendant does the Court

resolve the factual disputes in favor of the plaintiff. See Wenz, 55 F.3d at 1505; Behagen,

744 F.2d at 733. In this regard, the Court must accept as true only the complaint’s well pled

facts, and not mere conclusory allegations. See Wenz, 55 F.3d at 1505.




                                              6
       II.     Tr aditional Standar d for J ur isdiction

       The Court’s subject matter jurisdiction in this case is predicated on federal questions

under the Copyright Act and the Lanham Act. See Complaint ¶ 9. Because neither of these

statutes include an explicit provision for the exercise of personal jurisdiction, Rule 4(k) of

the Federal Rules of Civil Procedure controls the power of the Court to exercise in personam

jurisdiction, providing that this Court may exercise personal jurisdiction to the extent that the

courts of the State of Colorado would themselves be permitted to obtain jurisdiction. See

Fed. R. Civ. P. 4(k); see also Cable/Home Communication Corp. v. Network Prods., Inc.,

902 F.2d 829, 855 (11th Cir. 1990); Max Daetwyler Corp. v. R. Meyer , 762 F.2d 290, 295 (3rd

Cir. 1985).

       “In enacting the long arm statute, the Colorado legislature intended to extend the

jurisdiction of Colorado courts to the fullest extent permitted by the due process clause5 of

the United States Constitution.” Behagen, 744 F.2d at 733 (quoting Waterval v. District

Court, 620 P.2d 5, 8 (Colo. 1980)); see also Colo. Rev. Stat. § 13-1-124(1); Safari Outfitters,

Inc. v. Superior Court, 167 Colo. 456, 459 448 P.2d 783, 784 (Colo. 1968); Mr. Steak, Inc. v.

District Court, 574 P.2d 95, 96 (Colo. 1978). As a result, the Court’s jurisdictional analysis

in this case collapses into a single inquiry of whether the exercise of personal jurisdiction




       5
          Unlike a case brought in state court, or founded on diversity jurisdiction, the action
of this federal court in this federal question case is technically governed by the due process
of the Firth Amendment, not the Fourteenth Amendment, although the point is academic
because the clauses have been interpreted synonymously in this regard. OpenLCR.com, Inc.
v. Rates Tech., Inc., 112 F. Supp.2d 1223, 1227 (D. Colo. 2000).


                                                7
over Father Begonja comports with the requirements of due process. See OpenLCR.com,

Inc., 112 F. Supp. 2d at 1227.

       In order for the Court to exercise personal jurisdiction over a defendant, the defendant

must have “certain minimum contacts with [the forum] 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). Where those contacts with the forum are

unrelated to the controversy, such ‘general jurisdiction’ over the defendant is constitutional

only where the defendant has maintained “continuous and systematic” contacts with the

forum. Helicopteros Nacionales de Colombia, S.A., 466 U.S. 408, 415-16 (1984).6

       Where a defendant’s contacts with the forum are more sporadic, the Court may still

exercise ‘specific’ jurisdiction over the defendant if the defendant has purposefully availed

itself of the privilege of conducting activity there, “such that he should reasonably anticipate

being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297

(1980). Such purposeful availment will not be found where the contacts are random,

fortuitous, or attenuated, but only if they are “purposefully directed” at the forum state and

the injuries claimed arise out of or relate to those contacts. See Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 475 (1985); Doe, 974 F.2d at 145. If such fortuitous contacts were


       6
          Plaintiffs have alleged no facts in support of the assertion of jurisdiction, so it is
difficult to determine whether they concede that general jurisdiction is not appropriate in this
case. However, the dearth of contacts detailed above are a far cry from the continuous and
systematic contacts necessary for general jurisdiction. Defendant will assume, therefore, that
only specific jurisdiction is claimed.



                                               8
sufficient, “[e]very seller of chattels would in effect appoint the chattel his agent for service

of process. His amenability to suit would travel with the chattel.” World-Wide Volkswagen,

444 U.S. at 566. Moreover, as the Supreme Court has held, “The unilateral activity of those

who claim some relationship with a nonresident defendant cannot satisfy the requirement of

contact with the forum State.” Hanson v. Denckla , 357 U.S. 235, 253 (1958); Doe, 974 F.2d

at 145.

          III.   Standar d for J ur isdiction for Pur ely Inter net Contacts

          In the context of disputes arising out of the Internet, courts have accepted these

traditional and long-established principles of jurisdiction as applicable to communications

conducted over the Internet, but applying these doctrines has sometimes proved “somewhat

like trying to board a moving bus.” Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir.

1997). Nevertheless, several federal appellate courts, including the Tenth Circuit, have

adopted the framework for applying jurisdictional principles to the Internet that was first

stated by the Court in Zippo Manufacturing Co. v. Zippo Dot Com, Inc. See 952 F. Supp.

1119, 1124 (W.D. Pa. 1997); see also Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d

1292, 1296 (10th Cir. 1999) (adopting Zippo ‘sliding scale’ analysis and finding no personal

jurisdiction); Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir. 1999) (same); Cybersell,

Inc. v. Cybersell, Inc., 130 F.3d 414, 419 (9th Cir. 1997) (same). The Zippo framework

examines the degree of substantive interactivity that the Internet site allows between the site

or its owner, and citizens of the forum, because “the likelihood that personal jurisdiction can




                                                  9
be constitutionally exercised is directly proportionate to the nature and quality of commercial

activity that an entity conducts over the Internet.” Zippo, 952 F. Supp. at 1124.

       Under the Zippo framework, web sites can be divided into three categories. First,

where the defendant “clearly does business over the Internet,” and “enters into contracts with

residents of a foreign jurisdiction that involve the knowing and repeated transmission of

computer files” then the forum may exercise jurisdiction. Id. quoted in Soma Med., 196 F.3d

at 1296. On the other end of the spectrum, jurisdiction would not be constitutional in the case

of a “passive Web site that does little more than make information available to those

interested” in seeking it out. Id. quoted in Soma Med., 196 F.3d at 1296; see also Bensusan,

937 F. Supp. at 27-28 (holding jurisdiction not permissible over Missouri operator of a

passive web site under New York long arm statute, because alleged trademark infringement

was not committed in the New York despite trademark owner’s domicile there); Lofton v.

Turbine Design, Inc., 100 F. Supp.2d 404, 410-11 (N.D.Miss. 2000) (holding jurisdiction

unconstitutional where site offered contact information, including an e-mail address but no

ability to facilitate or consummate sales; despite plaintiff’s residence in forum and fact that

suit was for defamation, forum was not locale of the harm suffered). That the defendant “has

simply posted information on an Internet Web site which is accessible to users in foreign

jurisdictions” is not enough to provide minimum contacts with the forum. Soma Med., 196

F.3d at 1296 (quoting Zippo, 952 F. Supp. at 1124).

       In the middle continuum between these situations are “‘interactive Web sites where a

user can exchange information with the host computer.’ Whether the exercise of jurisdiction



                                               10
is appropriate depends upon ‘the level of interactivity and commercial nature of the exchange

of information that occurs on the Web site.’” Soma Med., 196 F.3d at 1296 (quoting Zippo,

952 F. Supp. at 1124). Thus, in Cybersell, the Ninth Circuit considered the site of a Florida

company advertising its web design consulting services (“Professional Services for the

World Wide Web”), and inviting companies not yet on the web, but interested in establishing

a web presence to “Email us to find out how!” 130 F.3d at 415-16. The court found this level

of interactivity insufficient to provide jurisdiction, and “decline[d] to go further solely on the

footing that [the Arizona plaintiff trademark owner] has alleged trademark infringement

. . . . Otherwise, every complaint arising out of alleged trademark infringement on the

Internet would automatically result in personal jurisdiction wherever the plaintiff’s principal

place of business is located. That would not comport with traditional notions of what

qualifies as purposeful activity invoking the benefits and protections of the forum state.” Id.

at 420.

          If the Zippo framework has been criticized, it is for being too permissive in allowing

jurisdiction in some instances where sites may be interactive, but have no connection to the

forum. See GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343 (D.C. Cir. 2000).

GTE New Media concerned the web directory sites of five Regional Bell Operating

Companies and GTE New Media’s antitrust claim against them for colluding to dominate

and divide the Internet directory market, and certain defendants’ motions to dismiss. Id. at

1345. Although the District Court had found the defendants’ extremely interactive,

commercial sites subjected them to jurisdiction in the District of Columbia, and that GTE



                                                 11
had sufficiently alleged tortious injury to its business interests there, the D.C. Circuit

reversed. Id. at 1346. The D.C. Circuit held that it would “neither assume nor infer . . .

substantial effects of the sort alleged by GTE,” id. at 1349, and that the sites did not

constitute a “persistent course of conduct” in the forum. Id. Moreover, the theory that

minimum contacts are present merely “because the defendants have acted to maximize usage

of their websites in the District . . . . simply cannot hold water.” Id. at 1350. “Indeed, under

this view, personal jurisdiction in Internet-related cases would almost always be found in any

forum in the country. We do not believe that the advent of advanced technology, say, as with

the Internet, should vitiate long-held and inviolate principles of federal court jurisdiction.”

Id.

       IV.     Application to Defendant Begonja

       Whatever negligible contacts Defendant Begonja may have had with Colorado apart

from the web site Ind-Movement.org, Plaintiffs’ trademark and copyright claims do not

“arise out of or relate to” those contacts. Thus, those contacts are irrelevant to this

jurisdictional inquiry. See Burger King, 471 U.S. at 475; Doe, 974 F.2d at 145. As a result,

whether this Court may exercise jurisdiction over Defendant Begonja turns entirely on the

content of the Ind-Movement.org site.

       The site, although extensive, is almost completely passive. Even though the site offers

extensive information about “independent movement” churches and individuals around the

nation, this fact would no more subject Defendant Begonja to jurisdiction in Colorado than a

particular entry in the Encyclopaedia Britannica on the Great Sand Dunes would subject that



                                                12
company to jurisdiction in the state if it otherwise had no contacts with Colorado.7 Any

contacts with Colorado are thus random and attenuated, and certainly not “purposefully

directed” at Colorado. See Burger King, 471 U.S. at 475; Doe, 974 F.2d at 145.

       To the extent the site encourages any communication with viewers, all the methods

are essentially e-mail links: forms that submit information for inclusion in Defendant’s

directory via e-mail; a guest book for submitting comments by e-mail to be posted on the

site; and several links that will simply open a new message addressed to Defendant. Courts

have repeatedly ruled this minimal level of interactivity insufficient to confer jurisdiction.

See Cybersell, 130 F.3d at 415, 420; Mink v. AAAA Dev. LLC, 190 F.3d at 337 & n.1

(holding no jurisdiction despite presence of e-mail address and speculating that “[T]he mere

existence of an e-mail link,8 without more, would not change this Court’s conclusion that

there is no personal jurisdiction.”). Indeed, even outside the Internet context, the law is clear

that mere exchnage of mail with the forum state is insufficient to support a finding of

personal jurisdiction. See National Business Brokers, Ltd. v. Jim Williamson Prods., Inc.,

115 F. Supp. 2d 1250, 1252-53 (D. Colo. 2000) (finding no personal jurisdiction despite



       7
         Indeed, of the hundreds of directory listings on the site, the site includes only three
clergy members, one deceased clergy member, and two denominations believed to be located
in Colorado, other than the information about plaintiffs CEC and THEOCANA and their
principals. See Begonja Decl. ¶ 16.
       8
         The only differences between an e-mail address written in text on a web site, and an
e-mail hypertext link, are that the hypertext link appears underlined and clicking on it will
usually automatically open a new mail message addressed to the subject e-mail address,
saving the user only the step of copying an pasting the address into a new message window.



                                               13
evidence showing that there were approximately 128 separate facsimile and telephone

contacts between the Louisiana defendants and the Colorado plaintiffs).

       Defendant’s Internet site clearly does not offer any commercial services, or non-

commercial services for that matter, over the Internet. Indeed, Defendant’s ministry is

largely confined to the Dallas/Fort Worth metropolitan area. Quite clearly, the activity that

Defendant conducts over the Internet, and any interactive characteristics of his site, are

completely non-commercial in nature. See Soma Med., 196 F.3d at 1296; Zippo, 952 F. Supp.

at 1124.

       Defendant has never phoned, mailed, or met Plaintiffs, or their officers James and

Prentice. While Plaintiffs have sent Defendant Begonja numerous e-mails and threats,

Begonja has sent only two e-mails to Mr. James in Colorado, both of them brief replies in

direct response to communications from Plaintiffs.9 Overall, the communications between

the parties have been unilateral in nature—with the Plaintiffs contacting Defendant Begonja,

not the other way around, and Defendant rarely even responding to these communications.

The unilateral character of Plaintiffs’ communications to Defendant Begonja cannot be used

to satisfy the requirement of contact with the forum state. .” Hanson, 357 U.S. at 253; Doe,

974 F.2d at 145.

       To hold Defendant Begonja subject to personal jurisdiction in Colorado would offend

traditional notions of due process. Because he has no physical contacts, but merely operates a



       9
          The one e-mail that Defendant Begonja has sent Prentice is irrelevant to the
jurisdictional analysis because Prentice was in Arkansas at the time.


                                               14
directory site aimed indiscriminately at the nation as a whole, the holding of GTE New

Media , where unlike Ind-Movement.org the sites at issue were commercial and extremely

interactive, suggests that jurisdiction would be unconstitutional. 199 F.3d at 1346. Even

under the Zippo analysis, Ind-Movement.org is a “passive Web site that does little more than

make information available to those who are interested in it.” Soma Med., 196 F.3d at 1297.

Just as the Supreme Court rejected a theory of jurisdiction that would have “[e]very seller of

chattels . . . in effect appoint the chattel his agent for service of process,” holding that

jurisdiction exists in this case would have every publisher of an essentially passive web site

with little interactivity and no commercial purpose appoint the packets of data that viewers

around the world request from his site his agents for service. World-Wide Volkswagen, 444

U.S. at 566.



                                         CONCLUSION

       The exercise of personal jurisdiction in this case over Defendant Begonja does not

comport with the Fifth Amendment mandate of Due Process or traditional notions of fair

play and substantial justice. As a result, this Court should grant the motion by this individual

defendant under Fed. R. Civ. P. 12(b)(2) to quash the service of process upon him and

dismiss Plaintiffs’ complaint against them for lack of personal jurisdiction.



       DATED this ___ day of February, 2002.




                                                 15
By___________________________
 Natalie Hanlon-Leh
 Christopher P. Beall
 Adam White Scoville
FAEGRE & BENSON LLP
2500 Republic Plaza
370 Seventeenth Street
Denver, Colorado 80202


Attorneys for Defendant
ANTHONY P. BEGONJA




  16
                              CERTIFICATE OF SERVICE


       The undersigned certifies that on this ____ day of February, 2002, a true and correct
copy of the foregoing DEFENDANT TONY BEGONJ A's MOTION TO DISMISS FOR
LACK OF PERSONAL J URISDICTION, was mailed by regular first class United States
mail, postage prepaid, addressed as follows:


G.F. Gallinger
7420 Milner Drive
Colorado Springs, CO 80920




DNVR1:60191391.01




                                            17