Opinion
Civil Action No. 09-cv-01577-CMA-KMT.
May 11, 2010
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
This matter comes before the Court on Defendant Munns's "Motion to Dismiss Due to Lack of Personal Jurisdiction" (Doc. # 35) and Defendant Byrd's "Motion to Dismiss Due to Lack of Personal Jurisdiction, or in the Alternative, to Quash Service Based Upon insufficiency of Service of Process" (Doc. # 37).
In its response to these motions, Plaintiff concedes that the District of Colorado is not a proper venue — presumably because the Court lacks personal jurisdiction over Defendants — and writes that: "in the interests of justice, this matter should be transferred to the United States District Court for the Eastern District of Virginia pursuant to 28 U.S.C. § 1406(a)." In the alternative, Plaintiff prays that the case be dismissed without prejudice so that Plaintiff can pursue it in Virginia.
( See Doc. # 40 at 3-4, 6-7; Doc. # 41 at 3-4, at 6-7.)
Plaintiff requests this relief not in its own motion but, rather, in response to Defendants' motions. This is in contravention of Local Rule 7.1(C), which states that "[a] motion shall not be included in a response or reply to the original motion. A motion shall be made in a separate paper." D.C.COLO.LCivR 7.1(C).
Given Plaintiff's concessions, the Court finds that it does not have personal jurisdiction over Defendants and thus GRANTS Defendants' motions to dismiss. (Doc. ## 35, 37). This case is DISMISSED WITHOUT PREJUDICE.
Although Defendant AC Technology, Inc., did not file a motion to dismiss, Plaintiff's concessions regarding jurisdiction and venue extended to all three Defendants. Accordingly, the Court's finding extends to all three Defendants, including AC Technology.