Niemi v. Lasshofer
770 F.3d 1331
| 10th Cir. | 2014Background
- Plaintiffs (Niemi, Naegele, Parnevik) developed the Fairmont Breckenridge project in Colorado and sought $200–220M for Phase II financing; defendants (Lasshofer, Innovatis entities, Burgess, others) promised funding but never disbursed proceeds. Burgess later pled guilty to wire fraud and implicated Innovatis/IAM.
- Plaintiffs paid a $180,000 commitment fee and $2M upfront collateral; project collapsed after promised loan funds were not delivered. Plaintiffs allege a fraudulent financing scheme and sued under Colorado’s COCCA and common-law fraud (among other claims).
- District court entered a preliminary injunction, later vacated by this court in Niemi I for lack of statutory standing; on remand the district court found contempt, entered default judgments and awarded $61,692,492 (trebled to $185,077,476 under COCCA) against Lasshofer and affiliated entities.
- On this appeal the Tenth Circuit reviewed ripeness, fugitive-disentitlement and bond/stay requests, standing (assignment of corporate claims), personal jurisdiction over individual and corporate defendants, enforceability of a forum-selection clause, and damages/causation.
- The Tenth Circuit affirmed most of the district court’s rulings (standing based on pre-suit assignment; personal jurisdiction over Lasshofer, Innovatis GmbH, and IAM; venue refusal based on fraudulent inducement of forum clause; damages), reversed for lack of personal jurisdiction over Innovatis Immobilien GmbH, and ordered vacatur of the contempt/sanctions tied to the earlier preliminary injunction.
Issues
| Issue | Plaintiffs' Argument | Defendants' Argument | Held |
|---|---|---|---|
| Standing / statutory right to sue (COCCA) | Plaintiffs: had pre-suit assignment of corporate claims (oral Aug 2010, later written) so may sue; thus statutory standing exists | Lasshofer: plaintiffs were not parties to Loan Agreement and only had derivative corporate losses; assignment untimely or barred by non-assignment clause | Held: plaintiffs proved pre-suit assignment; non-assignment clause void because contract procured/used by fraud; statutory standing satisfied |
| Personal jurisdiction | Plaintiffs: defendants intentionally directed fraudulent scheme at Colorado (project, plaintiffs, effects located in CO) | Defendants: insufficient contacts; actions occurred abroad; challenge as to each corporate defendant (esp. Innovatis Immobilien GmbH) | Held: specific jurisdiction proper as to Lasshofer, Innovatis GmbH, and IAM (purposeful direction test); reversed as to Innovatis Immobilien GmbH (did not exist during the conduct) |
| Venue / forum-selection clause | Plaintiffs: clause was fraudulently induced (Burgess/Lasshofer lied about lending business); enforcement would be unjust/unreasonable | Defendants: forum-selection clause requires New York forum; should dismiss or transfer | Held: forum-selection clause unenforceable as to plaintiffs because clause was fraudulently induced; venue in Colorado upheld |
| Damages / causation | Plaintiffs: proved benefit-of-the-bargain damages and actual losses (~$61.7M) supported by Exhibit and Niemi testimony; trebling under COCCA appropriate | Defendants: damages speculative, causal nexus lacking, improper reliance on Niemi report/expert testimony | Held: damages award affirmed (district court credited Niemi’s non-expert testimony re: amounts paid); expert-report admission harmless; causation and amount not clearly erroneous |
| Fugitive-disentitlement / bond or stay | Plaintiffs: defendants’ refusal to comply with orders and alleged evasion require dismissal of appeal or bond | Defendants: appellate rules permit appeal by notice; no extension of fugitive doctrine to civil nonfugitives; bond not mandatory | Held: refused to extend fugitive-disentitlement to bar appeal; bond/stay not required; motion to dismiss appeal denied |
Key Cases Cited
- Niemi v. Lasshofer, 728 F.3d 1252 (10th Cir. 2013) (prior panel vacating preliminary injunction for lack of statutory standing)
- Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) (clarifying statutory standing and scope of "zone of interests")
- M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) (forum-selection clauses enforceable unless unreasonable, unjust, or procured by fraud)
- Atlantic Marine Constr. Co. v. United States Dist. Court, 134 S. Ct. 568 (2013) (forum-selection clause enforcement and proper procedural mechanism)
- Calder v. Jones, 465 U.S. 783 (1984) (personal jurisdiction via intentionally directed tortious conduct at forum residents)
- Bixler v. Foster, 596 F.3d 751 (10th Cir. 2010) (shareholders lack RICO standing when losses only derivative)
- Okla. Turnpike Auth. v. Bruner, 259 F.3d 1236 (10th Cir. 2001) (Rule 54(b) finality and separability rules)
- Venable v. Haislip, 721 F.2d 297 (10th Cir. 1983) (requirement of a hearing on damages before default judgment unless sum is liquidated)