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Advisors Excel, LLC v. American Retirement Systems, LLC

United States District Court, Tenth Circuit

October 23, 2013

ADVISORS EXCEL, L.L.C., Plaintiff,


RICHARD D. ROGERS, District Judge.

This matter is presently before the court upon defendant American Retirement Systems, LLC's (ARS) motion to dismiss plaintiff Advisors Excel, LLC's amended complaint for lack of personal jurisdiction. ARS filed this motion on May 21, 2012. In its response, Advisors Excel argued, inter alia, that the court should delay its ruling until it could conduct some discovery on the personal jurisdiction issues. The court allowed Advisors Excel to conduct some discovery. Since that time, the parties have filed supplemental briefs. The court is now prepared to rule on the pending motion.


In this action, Advisors Excel, a Kansas corporation, asserts state law claims of defamation, libel, injurious falsehood, deceptive trade practices, unfair competition, and tortious interference; and a federal claim of unfair competition under the Lanham Act, 15 U.S.C. ยง 1125. In its amended complaint, Advisors Excel alleges that the parties are competing marketing organizations serving independent insurance agents and financial advisers in the life insurance and annuity markets. Advisors Excel contends that ARS "launched and implemented a scheme to intentionally misrepresent the characteristics, integrity, and ethics of Advisors Excel." This "scheme" was accomplished by sending out a defamatory "Product Alert" to one or more of the parties' current or prospective customers, including William Hull who does business in Overland Park, Kansas. Advisors Excel further alleges that ARS "intentionally directed tortious acts towards Kansas with knowledge that the injury suffered would be felt in Kansas."


The standard that governs a motion to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2) is well established. The plaintiff bears the burden of establishing personal jurisdiction over the defendant. Edison Trust Number One v. Pattillo , 2010 WL 5093831 at *1 (D.Kan. Dec. 8, 2010). The extent of the burden depends on the stage at which the court considers the jurisdictional issue. Id . When personal jurisdiction "is decided at a preliminary stage by reference to only the complaint and affidavits, the plaintiff need only make a prima facie showing of personal jurisdiction." Id.

"The plaintiff may carry this burden by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant.'" Id . (quoting TH Agric. & Nutrition, L.L.C. v. Ace European Grp. Ltd. , 488 F.3d 1282, 1286 (10th Cir. 2007)). In determining if it has personal jurisdiction over a defendant, the court may consider affidavits and other documentary evidence submitted by the parties. TH Agric. & Nutrition , 488 F.3d at 1286. To the extent allegations in the complaint are uncontroverted, the court must accept those allegations. Wenz v. Memery Crystal , 55 F.3d 1503, 1505 (10th Cir. 1995). If the jurisdictional allegations are challenged, however, the plaintiff has a duty to support its jurisdictional allegations by competent proof of supporting facts. Payless Shoesource, Inc. v. Shops at Hancock, LLC, 2012 WL 1344977 at * 1 (D.Kan. Apr. 18, 2012)(citing Pytlik v. Prof'l Res., Ltd. , 887 F.2d 1371, 1376 (10th Cir. 1989)). Factual disputes are resolved in plaintiff's favor. Id.


The facts before the court are generally undisputed. The court allowed Advisors Excel to conduct some discovery on ARS' motion but Advisors Excel has not provided much to controvert any of the facts understood by the court at the time it issued its original memorandum and order.

ARS, an Iowa corporation, has its principal of business in Des Moines, Iowa. ARS has no other office locations. ARS does not lease or own property in Kansas. It has never incurred or paid any tax liability to the state of Kansas. ARS is not licensed or authorized to transact business in Kansas.

ARS is an insurance marketing organization. Its business focus is the recruitment of independent insurance agents to contract with certain insurance carriers with whom ARS has a contractual relationship with the goal that such agents will facilitate their clients' purchase of the carriers' life insurance and annuity products. These purchases generate the payment of commissions by the carriers to ARS and the independent agent.

Two independent insurance agents, one located in Maryland and the other located in California, contacted ARS Vice-President Russ Wagner in Iowa by e-mail and sought information about a specific product being marketed by Advisors Excel. In response, Wagner issued a "Product Alert E-Mail." ARS had never authorized such a transmission in the past, and did not authorize this one. The Product Alert E-Mail was sent to 177 addresses in 31 states from the addresses on Wagner's bulk independent agent-advisor e-mail address list. All of these agent-advisors were located outside of Kansas except for one, William Hull. Wagner did not know that Hull's e-mail address was still on his bulk agent e-mail address list when he transmitted the Product Alert, and he did not know that he was sending it to anyone in Kansas. Wagner did not have any producing agents in Kansas assigned to him at that time. Hull was no longer an active producing agent at the time that Wagner sent the e-mails. Wagner's last contact with Hull for any reason was on December 16, 2010, over one year before the transmission of the Product Alert e-mail.


The court previously set forth the applicable law on personal jurisdiction in its prior order. The court will simply summarize ...

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