Greenway Nutrients, Inc. v. Blackburn (33 F. Supp. 3d 1224, 2014)

OPINION AND ORDER ADOPTING RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART MOTION FOR LEAVE TO AMEND COMPLAINT

Marcia S. Krieger, Chief United States District Judge

THIS MATTER comes before the Court on the Recommendation (# 99) by the Magistrate Judge that three Motions to Dismiss (# 27, 68, 97), collectively filed by Defendants Steve Blackburn, Stacy Blackburn, David Selakovic, Fulfillment Solutions Services, LLC, Vegalab, LLC, Grower Trust, LLC, Dave Thompson, Josh Gill, Supreme Growers, LLC, and Hoops Enterprise, LLC, be granted. Also before the Court is the Plaintiffs Motion for Leave to File First Amended Complaint (# 101).

I. Background

■ The Complaint (#2) contains extensive factual allegations, many of which are rife with the resentment and hostility that frequently attends a business divorce. The Court only briefly summarizes those allegations here.

The Plaintiff Greenway Nutrients, Inc., is a Colorado corporation that sells plant nutrients and organic pesticides. At some unknown point in time, the Plaintiff identified two high effective agricultural products developed by Defendant Ecowin, LLC, a South Korean entity. The Plaintiff then imported and sold the products under the “Greenway Nutrients” trademark as “No Powdery Mildew” and “No Spider Mites.”

Thereafter, the Plaintiff entered into business relationships with Defendant Steve Blackburn and Defendant Fulfillment Solutions Services, whereby Fulfillment agreed to process and fill orders for the Plaintiffs products. In conjunction with this arrangement, the Plaintiff and Defendants entered into a nondisclosure agreement. The Plaintiff disclosed confidential information to Blackburn, Fulfillment, and others, about the details of its business, including who its overseas supplier was. The Complaint alleges that the Defendants breached the nondisclosure agreement and schemed to obtain the Plaintiffs trade secrets.

At some point, the Plaintiff was financially incapable of purchasing product from Ecowin. Defendant Steven Blackburn suggested that his “partner,” Defendant David Selakovic" could purchase product for the Plaintiff using his credit card, subject to reimbursement. Selakovic did so.

In March 2012, the Plaintiff and Defendant Ecowin entered into an “exclusive” contract for the distribution of “No Powdery Mildew.” However, in November 2012, Ecowin told the Plaintiff that it had obtained other partners in the United States, and that it did not wish to deal with Plaintiff. The Plaintiff alleges that Steve Blackburn and Selakovic contacted Ecowin and interfered with the Plaintiffs relationship with Ecowin.

When the Plaintiff was “cut off’ from purchasing from Ecowin, Steve Blackburn held “all of [the Plaintiffs] supplies as hostage at Fulfillment Solutions.” The Complaint alleges that the Defendants have since been selling the Plaintiffs “No Powdery Mildew” and “No Spider Mites” products through shell corporations. It further alleges that Steve Blackburn and Selakovic reverse engineered the Plaintiffs “No Spider Mites” product and is selling the counterfeit product.

In April 2013, when the Plaintiff initiated this action, it asserted the following claims: (1) federal civil violations of Racketeer Influenced and Corrupt Organizations Act (RICO) arising under 18 U.S.C. §§ 1962(c) and (d); (2) breach of contract against Defendants Selakovic, Blackburn, Fulfillment, New Epic, and Ecowin; (3) civil conspiracy against all Defendants; (4) common law fraud against all Defendants; (5) unjust enrichment against all Defendants; (6) trademark infringement, 15 U.S.C. § 1114, against all Defendants; (7) false designation of origin arising under 15 U.S.C. § 1125(a), against all Defendants; (8) common law unfair competition against all Defendants; (9) violations of the Colorado Consumer Protection Act (CCPA), C.R.S. § 6-1-101 et seq., against all Defendants; and (10) violations of the Colorado Unfair Practices Act (CUPA), C.R.S. § 6-2-101 et seq., against all Defendants.

Several Defendants, including Steve Blackburn, Stacy Blackburn, David Sela-kovic, Fulfillment Solutions Services, LLC, Vegalab, LLC, Grower Trust, LLC, Dave Thompson, Supreme Growers, LLC, and Hoops Enterprise, LLC, moved to dismiss (# 27, 68, 97) the claims against them pursuant to Fed.R.Civ.P. 8, 12(b)(1), and 12(b)(6). The Defendants argue that the Complaint as a whole represents a “shotgun” pleading in violation of Fed.R.Civ.P. 8; that the Court lacks personal jurisdiction over the out-of-state Defendants; and that as to each count asserted, the Plaintiff fails to state a claim upon which relief can be granted. The motions were referred to the Magistrate Judge.

The Magistrate Judge addressed each of the Defendants’ arguments in a detailed Recommendation. With respect to personal jurisdiction, the Recommendation found that the Complaint fails to state a civil RICO claim and therefore the Plaintiff cannot establish jurisdiction over the out-of-state Defendants based on that claim. The Recommendation further found that the Complaint fails to allege facts sufficient to establish personal jurisdiction over Defendants Stacy Blackburn, Grower Trust, Dave Thompson, Hoops Enterprise, Vegalab, or David Selakovic. As to Defendants Steven Blackburn, Fulfillment Solutions Services, and Supreme Growers, the Recommendation found that the Complaint states sufficient facts to extend personal jurisdiction over these Defendants with its reference to a non-disclosure agreement they entered into with the Plaintiff and/or their presence in Colorado.

With regard to the remainder of the claims, the Recommendation found that (1) the Complaint fails to adequately state a claim of civil conspiracy or fraud; (2) the breach of contract claim is improperly pled under Rules 8(a)(2) and 10(b), and should therefore be dismissed; and (3) as to claims for trademark infringement, false designation under 15 U.S.C. § 1125, unfair competition, and violations of the CCPA and CUPA, the Complaint’s style of “shotgun” pleading makes it impossible to tell which facts connect to which claims, and therefore these claims are improperly pled under Rule 8 and should be dismissed. The Recommendation found that the only claim sufficiently pled is a claim for unjust enrichment against Defendant Blackburn and Fulfillment Solutions Services, but recommended that the Court decline to exercise supplemental jurisdiction over this claim.

The Plaintiff filed a timely Objection (# 99) to the Recommendation. However, Plaintiff makes no specific objection or argument as to any particular finding or conclusion in the Recommendation. Instead, it states that the “sole basis” of the objection is that the Court should grant it leave to amend the Complaint to cure the defects outlined in the Recommendation. The Plaintiff subsequently filed its Motion for Leave to File a First Amended Complaint (# 101). The Plaintiff requests that the Recommendation be “set aside” until the Court rules on its motion to amend.

There being no timely, specific objections by any party, the Court reviews the Recommendation only for clear error. Fed.R.Civ.P. 72, Advisory Committee Note. Having reviewed the Recommendation and seeing no clear error, the Court ADOPTS the Recommendation that the Motions to Dismiss found at Docket # s 27, 68, and 97 be GRANTED.

Thus, the only issue remaining before the Court is whether or not the Plaintiffs motion for leave to amend the Complaint should be granted. The Plaintiffs proposed Amended Complaint, filed as attachment # 1 to the Motion to Amend, asserts claims only against Defendants Steven Blackburn, David Selakovic, Fulfillment Solutions Services, LLC, New Epic Media, LLC, and Supreme Growers, LLC. The claims asserted are: (1) breach of contract, (2)unjust enrichment, (3) trademark infringement under 15 U.S.C. § 1114, and (4) false designation of origin under 15 U.S.C. § 1125(a). With the exception of New Epic Media, the Defendants named in the proposed Amended Complaint filed a Response (# 105) to the motion, opposing the Plaintiffs request to amend.

II. Analysis

Because the Plaintiff filed its motion after the deadline for amending the pleadings, the Court employs a two-step analysis to determine whether leave to amend is warranted. First, the Court examines whether “good cause” has been shown for modifying the Scheduling Order under Rule 16(b), then the Court must evaluate whether the Plaintiff has satisfied the standard for amendment of pleadings under Rule 15(a).

To demonstrate “good cause” for modifying a scheduling order under Rule 16(b), the movant must show that the scheduling deadlines cannot be met despite a party’s diligent efforts. This requires examination of whether the movant could, have amended its pleadings prior to the deadline. The movant must provide an adequate explanation for any delay in meeting the deadline. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n. 4 (10th Cir.2006).

If the Court determines that the showing under Rule 16(b) has been made, then the Court proceeds to examine whether leave should be granted under Rule 15(a). Under Rule 15(a), the Court should grant leave to amend “freely ... when justice so requires.” The grant or denial of an opportunity to amend is within the discretion of the Court, but “[rjefusing to leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.1993).

The Plaintiff argues that it had good cause not to amend its pleading earlier due to the Defendants’ pending motions to dismiss. The Plaintiff states that it chose to oppose the motions, believing that the Defendants would not prevail. It admits that it started preparing its motion to amend “immediately” upon receiving the Magistrate Judge’s Recommendation. The Plaintiff argues that the Defendants would not be prejudiced by the proposed amendment because it does not add any new claims and it merely limits or clarifies the contents of the original complaint. Thus, there will be no need for additional written discovery and fewer depositions will' be required. The Plaintiff further states that it believes the proposed amendment corrects or addresses the defects outlined in the Recommendation.

In response, the Defendants argue that no good cause for the delay has been shown. They note that the parties agreed to a September 30, 2013 deadline to amend the pleadings, and that the first Motion to Dismiss (# 27) for lack of jurisdiction and failure to state a claim was filed on May 21, 2013. Thus, the Plaintiff was on notice of deficiencies in the pleading for over four months prior to the deadline. The Defendants argue that despite such notice, the Plaintiff made the tactical decision to do nothing. They further argue that they will suffer undue prejudice because the Plaintiff allegedly has submitted a forged contract in order to establish its new theory of personal jurisdiction over Defendant Sela-kovic, and thus, the Defendants will have to spend considerable time and money to prove that the contract is a forgery. Finally, the Defendants argue that amendment would be futile because the proposed Amended Complaint fails to allege personal jurisdiction, over Defendants Selakovic, and because the claims for the breach of contract, trademark infringement, and false designation of origin remain improperly pled under Rules 8(a) and Rule 10(b).

The Court finds that the Plaintiffs explanation for delaying its amendment for nine month is feeble, at best. However, there has been no showing by the Defendants of actual prejudice or substantial disruption. Indeed, the Court observes the parties to be deeply emotionally invested in the controversy, and that such emotion is fueling unnecessary and unproductive contentiousness. ,

Because there has not been a showing of undue delay or prejudice, the Court turns to whether the proposed amendments are futile in light of the findings in the Recommendation. A proposed amendment is futile if the complaint, as amended, would be subject to dismissal for any reason. Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1240-41 (10th Cir.2001). Having considered the proposed amendments in light of the Recommendation, the Court grants the motion, in part.

1. Personal Jurisdiction over Defendant Selakovic

The Recommendation found that the Complaint failed to allege that Defendant Selakovic had minimum contacts with Colorado. The proposed Amended Complaint alleges that Selakovic is a Serbian national and that “his actions in Colorado, in part, gave rise to these claims, and he has waived his right to contest personal jurisdiction before this Court by way of private • agreement.” It further ' alleges that Selakovic executed a non-disclosure agreement with Greenway on June 22, 2012. The contract is attached to the proposed Amended Complaint at Exhibit 3.

A defendant is not necessarily subject to personal jurisdiction in a forum state simply because he enters into a contract with a party that resides in that forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). However, parties who “reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities.” Id. at 473, 105 S.Ct. 2174. To determine whether a nonresident defendant has purposefully established minimum contacts with the forum state by contracting with another party, the Court must examine prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual court of dealing. Id. at 479, 105 S.Ct. 2174. In other words, the contract relied upon to establish minimum contacts must have a “substantial connection” with the forum state. TH Agriculture & Nutrition, LLC v. Ace European Group Ltd., 488 F.3d 1282, 1288 (10th Cir.2007). Without substantial connection, there may be no personal jurisdiction even in cases where the defendant enters the forum state to discuss some details of the contract. See SGI Air Holdings II LLC v. Novartis Int'l, 192 F.Supp.2d 1195, 1202 (D.Colo.2002).

Here, the- contract purportedly entered into by the Plaintiff and Defendant Selakovic is a non-disclosure agreement. The agreement contemplates that the Plaintiff will disclose confidential information to Selakovic, and obligates Selakovic to safeguard the information in accordance with the terms of the agreement. There are no terms, however, which would require Selakovic to take any affirmative action in the State of Colorado, other than to potentially return copies of the information to the Plaintiff. The agreement contains a choice of law provision, stating that it shall be governed by the law of the State of Colorado. However, the choice of law provision does not provide for the location of dispute resolution, nor does it purport to bind the parties to the jurisdiction of a particular court. Thus, the execution of the contract alone is insufficient to confer personal jurisdiction over Defendant Sela-kovic.

Nevertheless, the Court finds that the remaining factual allegations in the proposed Amended Complaint are sufficient to allege that Defendant Selakovic has sufficient minimum contacts with Colorado. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980). The inquiry requires a determination of whether Selako-vic “purposefully directed” his activities at residents of Colorado and whether the action “arises out of or relates to” Selakovic’s own activities within Colorado and creates a “substantial connection” with Colorado. Burger King Corp., 471 U.S. at 471-72, 105 S.Ct. 2174.

In addition to entering into the nondisclosure agreement, the proposed Amended Complaint alleges that Selakovic used his credit card to purchase “product,” presumably from the Korean supplier for the Plaintiff. The purchase of product for the Plaintiffs benefit is an activity directed at a resident of Colorado. Taken as true, the existence of the nondisclosure agreement created a relationship between the Plaintiff and the Defendants, and in furtherance of the relationship, Mr. Selakovic bought product for the Plaintiff. These allegations suggest the existence of personal jurisdiction over Mr. Selekovik, sufficient to allow the filing of the Amended Complaint.

2. Breach of Contract Claim

The Recommendation found that the breach of contract claim pled in the original complaint was improperly pled under Rule 8. Specifically, the Recommendation noted that the Plaintiff had attached three contracts to the Complaint, without differentiation, and then generally alleged that the Defendants, collectively, “breached their obligations to Greenway” in various ways.

The proposed Amended Complaint continues to assert its breach of contract claim as a single claim and refers to three separate contracts, but the contracts and the allegations of breach are referred to in separate paragraphs. Although pleading separate claims of breach of contract in a single count is not encouraged, the Court finds that the proposed amendments are sufficient to satisfy the pleading requirements of Rule 8 and therefore are not futile.

However, the Court notes that the breach of contract claim asserted at paragraphs 35-87 references a “Non Disclosure and Non Circumvent Agreement” purportedly executed by the Plaintiff and Defendants Blackburn and New Epic Media on April 21, 2011, and attached as Exhibit 1. The attachment does not contain such agreement. Instead, Exhibit 1 is a nondisclosure agreement executed by the Plaintiff and Fulfillment Solutions Services on June 21, 2011. None of the attached exhibits contain a contract entered into by the Plaintiff and New Epic Media. Thus, when re-filing the Amendment Complaint, as directed below, the Plaintiff shall be sure to attach the correct contracts and label them appropriately. Further, with regard to each breach of contract claim, the Amended Complaint must specifically reference the appropriate contract by referring to the proper exhibit number for that contract.

S. Trademark Infringement and False Designation of Origin

The Recommendation found that the Complaint’s style of “shotgun” pleading makes it impossible to tell which facts connect to which claims, and therefore these claims are improperly pled under Rule 8 and should be dismissed. Although the proposed amendments do not offer the degree of clarity one would expect from licensed attorneys, the Court finds that the claims for trademark infringement and false designation of origin are sufficient to satisfy -the pleading requirements set forth in Rules 8 and 10. Thus, the proposed amendments with regard to these claims are not futile.

III. Conclusion

For the forgoing reasons, the Court ADOPTS the Recommendation (# 99) that the Motions to Dismiss (# 27, 68, 97) filed by Defendants Steven Blackburn, Stacy Blackburn, David Selakovic, Fulfillment Solutions Services, LLC, Yegalab, LLC, Grower Trust, LLC, David Thompson, Supreme Growers, LLC, and Hoops Enterprises, LLC, be GRANTED.

The Plaintiffs First Motion for Leave to file First Amended Complaint (# 101) is GRANTED IN PART AND DENIED IN PART. The Plaintiff is granted leave to amend. However, the Court does not accept the proposed Amended Complaint filed at Docket # 101. Within 14 days, the Plaintiff is directed to re-file its Amended Complaint, clarifying its breach of contract claim as directed by the Court in its analysis. Failure to comply with this Order will result in dismissal of the Complaint in its entirety.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Kathleen M. Tafoya, United States Magistrate Judge

This case comes before the court on Defendants Steve Blackburn, Stacy Blackburn, David Selakovic, Fulfillment Solutions Services, LLC, Vegalab, LLC, Grower Trust, LLC, and Dave Thompson’s Motion to Dismiss filed May 21, 2013. [Doc. No. 27.] Also pending is Supreme Growers, LLC’s “Motion to Dismiss Adopting Prior Motion (D.E.27)” filed July 17, 2013. [Doc. No. 68] “Plaintiffs Opposition to Motion to Dismiss” [Doc. No. 39] was filed on June 11, 2013. No reply was filed. On February 6, 2014, the.“Motion to Dismiss on Behalf of Defendant Hoops Enterprises, LLC” [Doc. No. 97] was filed adopting the arguments set forth in Doc. No. 27. Upon review, the court does not require further briefing on this motion separately from that already reviewed.

Defendants allege that the Complaint should be dismissed because: (1) taken as a whole, the pleading represents a prohibited “shotgun” pleading in violation of Fed. R.Civ.P. 8; (2) the court lacks personal jurisdiction over the out-of-state defendants; and (3) as to each of the counts asserted, Plaintiff has failed to state a claim upon which relief can be granted. LEGAL STANDARDS

A. Personal Jurisdiction

The plaintiff has the burden of proving that personal jurisdiction over each defendant exists, although at preliminary stages of the litigation that burden is light. AST Sports Science, Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1056 (10th Cir.2008). If the court considers a pre-trial motion to dismiss for lack of personal jurisdiction without conducting an evidentiary hearing, the plaintiff need only make a prima facie showing of personal jurisdiction to defeat the motion. Id. at 1056-57, In making this determination, all factual disputes should be construed in favor of the plaintiff. Id. at 1057. The Court must take as true “all well-pled (that is, plausible, non-conclusory, and non-speculative) facts” alleged in the complaint in the light most favorable to the Plaintiff. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1069-70 (10th Cir.2008). For this court to exercise personal jurisdiction over a defendant, there must be both a showing that (i) jurisdiction is proper under the laws of Colorado, and (ii) the exercise of jurisdiction does not offend the Due Process clause of the Fourteenth Amendment. See Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir.2004).

Colorado’s long arm statute is coextensive with the constitutional limitations imposed by the Due Process clause; therefore, the inquiry collapses into the single determination of whether jurisdiction is consistent with the Due Process clause. See id. The Due Process clause requires a non-resident defendant to have “minimum contacts” with the forum state. See OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980)). The “minimum contacts” standard may be met by showing either general or specific jurisdiction over the defendant. Id.

A court may exercise general jurisdiction over a defendant for any claim, whether arising from activities in the state or not, if the defendant has sufficiently strong business contacts with the forum state. Because general jurisdiction is not tied to the events forming the basis for the litigation, however, a court imposes a stringent minimum contacts test, requiring the defendant to have “continuous and systematic general business contacts” with the forum state. Trujillo v. Williams, 465 F.3d 1210, 1218 n. 7 (10th Cir.2006) (internal citation omitted). General personal jurisdiction over a party permits the forum to resolve any dispute involving that party, not just the dispute at issue. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Newsome v. Gallacher, 722 F.3d 1257, 1264 (10th Cir.2013).

Alternatively, a court may exercise specific jurisdiction over a defendant if the defendant’s actions in or directed at the forum give rise to the litigation. The specific personal jurisdiction test is two-pronged, with interplay between the two prongs. OMI Holdings, Inc., 149 F.3d at 1091. Under the first prong, a court decides whether the defendant has sufficient minimum contacts with the forum state such that he should “reasonably anticipate being haled into court there.” Worldr-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 580, This inquiry requires a determination of whether the defendant “purposefully directed” its activities at residents of the forum and whether the action “arises out of or relates to” the defendant’s own activities within the state and creates a “substantial connection” with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

The second prong of the specific jurisdiction analysis is whether the exercise of personal jurisdiction over the defendant offends “traditional notions of fair play and substantial justice.” Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). This inquiry requires a determination of whether personal jurisdiction over a defendant with minimum contacts is reasonable in light of the circumstances surrounding the case. In assessing reasonableness, a court considers: (1) the burden on the defendant, (2) the forum state’s interest in resolving the dispute, (3) the plaintiffs interest in receiving convenient and effective relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. See TH Agriculture & Nutrition, LLC v. Ace European Group Ltd., 488 F.3d 1282, 1292 (10th Cir.2007). The test evokes a sliding scale: the weaker the plaintiffs showing on minimum contacts, the less a defendant need show in terms of unreasonableness to defeat jurisdiction. OMI Holdings, Inc., 149 F.3d at 1092.

When communications on the internet form a significant part of the asserted basis for jurisdiction, special issues can arise. The Tenth Circuit recently addressed questions relating to “whether, when, and how such peculiarly non-territorial activities as web site hosting, internet posting, and mass emailing can constitute or give rise to contacts that properly support jurisdiction over the host, poster, or sender.” Shrader v. Biddinger, 633 F.3d 1235, 1240 (10th Cir.2011). Noting that a • person can place information on the internet and thereby communicate with persons in virtually every jurisdiction, the Tenth Circuit emphasizes the importance, for the purposes of personal jurisdiction, that the person' intentionally direct the activity or operation at the forum state, “rather than just having the activity or operation accessible there.” Id. at 1240. The Tenth Circuit cited with approval ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 714 (4th Cir.2002), which developed the following test for specific jurisdiction arising out of internet activity: the person (1) directs electronic activity into the forum state, (2) with the manifested intention of engaging in business or other interactions within the state, (3) that activity creates, in a person within the state, a potential cause of action cognizable in the state’s courts. Id.

Shrader explains that “[t]he maintenance of a web site does not in and of itself subject the owner or operator to personal jurisdiction, even for actions relating to the site, simply because it can be accessed by residents of the forum state.” Id. In considering what more is needed to create personal jurisdiction, “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. With respect to general jurisdiction, Shrader emphasizes that before internet contacts may give rise to personal jurisdiction, the “commercial contacts ... must be of a sort that approximate physical presence in the state.” Id. Although “operating a web site selling products to residents of a state can subject the seller to general jurisdiction in that state, depending on the nature and degree of commercial activity with the forum state,” the bar is “quite high” and the plaintiff must demonstrate “substantial sales.” Id. In short, “[a] web site will subject a defendant to general personal jurisdiction only when the defendant has actually and deliberately used its web site to conduct commercial transactions on a sustained basis with a substantial number of residents of the forum.” Id.

B. Pleading Requirements I Fed. R.

Civ. P. 8

The twin purposes of a complaint are to give the opposing parties fair notice of the basis for the claims against them so that they may respond and to allow the court to conclude that the allegations, if proven, show that Plaintiff is entitled to relief. See Monument Builders of Greater Kansas City, Inc. v. American Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th Cir.1989). The requirements of Fed.R.Civ.P. 8 are designed to meet these purposes. See TV Communications Network, Inc. v. ESPN, Inc., 767 F.Supp. 1062, 1069 (D.Colo.1991). Specifically, Rule 8(a) provides that a complaint “must contain (1) a short and plain statement of the grounds for the court’s jurisdiction ...; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought....” The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that “[e]ach allegation must be simple, concise, and direct.” Taken together, Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading rules. Prolix, vague, or unintelligible pleadings violate the requirements of Rule 8.

Recently, Colorado federal courts have strongly criticized the use of “shotgun pleading,” by which a party pleads several counts or causes of action, each of which incorporates by reference the entirety of its predecessors. International Academy of Business and Financial Management, Ltd. v. Mentz, Case No. 12-cv-00463-CMA-BNB, 2013 WL 212640, *7 (D.Colo. Jan. 18, 2013)(unpublished). See also, Jones v. Lehmkuhl, 11-cv-02384-WYD-CBS, 2013 WL 6728951, *23-24 (D.Colo. Dec. 20, 2013)(Senior Judge Wiley Y. Daniel described a Shotgun pleading as a “grab-bag of legal theories.”) As was noted by District Judge Christine M. Arguel-lo,

Shotgun pleading is an attractive option for the pleader, who can simply recite an extended narrative at the beginning of the pleading, and proceed to state numerous claims by simply reciting the formulaic elements of the claim and referring holistically to the preceding narrative as support. But doing so places an inordinate burden on the party responding to that pleading, and on the Court interpreting it, requiring them to parse the narrative repeatedly and attempt to independently extract the particular factual averments that are relevant to each individual claim. Essentially, the shotgun pleader foists off one of the pleading lawyer’s critical tasks — sifting a mountain of facts down to a handful of those that are relevant to a given claim — onto the reader.

Jacobs v. Credit Suisse First Boston, Case No. 11-cv-00042-CMA-KLM, 2011 WL 4537007, *6 (D.Colo. Sept. 30, 2011)(unpub-lished) (finding “shotgun pleading” to be a “defect” contributing to an award of sanctions). Courts- roundly decry shotgun pleading as a subject of “great dismay,” “intolerable,” and “in a very real sense ... [an] obstruction of justice.” Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295-96 n. 9, 10 (11th Cir.2002).

Plaintiff is, of course, entitled to plead claims in the alternative, regardless of consistency, even though it ultimately will not necessarily be able to recover on all of those claims and pleading in the alternative does not necessarily render the complaint “shotgun.” Fed.R.Civ.P. 8(d)(3) (“A party may state as many separate claims or defenses as it has, regardless of consistency.”); Murray v. Crawford, Case No. 08-cv-02045-KMT-KLM, 2009 WL 1837445, at *4 (D. Colo. June 26, 2009) (complaint properly pleaded, in the alternative, claims for breach of contract and promissory estoppel). So long as one of those alternative claims is sufficient, the pleading is sufficient. See Fed.R.Civ.P. 8(d)(2).

C. Failure to State a Claim/Fed. R. Civ. P. 12(b)(6).

Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6) (2007). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003) (citations and quotation marks omitted).

“A court reviewing the sufficiency of a complaint presumes all of plaintiffs factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir.1991) (emphasis added). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth,” that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 1949-51. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 1950.

Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc. v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir.1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1940. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does the complaint suffice if it tenders’ ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. at 1949 (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Iqbal, 129 5.Ct. at 1949.

FACTUAL ALLEGATIONS

The following factual allegations, stripped of legal conclusions, bare assertions and conclusory statements, are taken from the Complaint:

Plaintiff Greenway Nutrients, Inc. (“Greenway”), a supplier of plant nutrients and organic pesticides to the botanical industry, is incorporated in the state of Colorado. (Compl. [Doc. No. 2] at ¶¶ 5, 26.) Greenway is the owner of U.S. Trademark Reg. No. 4007591 for the name “Greenway Nutrients.” (Id.) Greenway, at an unspecified point in time, discovered a product compounded and produced by Defendant Ecowin, a South Korean entity, which purports to “eliminate powdery mildew.” (Id. at ¶ 27.) On or about March 1, 2012, Greenway alleges it entered into an “exclusive” agreement with Ecowin to distribute its compounded substance. (Id. at ¶ 41.) Greenway began buying the product, which Greenway called “No Powdery Mildew” from Ecowin and marketing it under the “Greenway Nutrients” name. (Id. at ¶ 27.) During the same unspecified time period, Greenway also discovered and began marketing a product Greenway called “No Spider Mites.” (Id. at ¶28 On an unspecified date, Greenway was introduced to Steven and Stacy Blackburn and was informed that Fulfillment Solutions Services, LLC (hereinafter “Fulfill-' ment”) was a company, owned by Steven Blackburn. (Id. at IT 29.) On or around April 21, 2011, approximately one year pri- or to Greenway’s alleged contractual agreement with Ecowin, Greenway executed a non-disclosure agreement with New Epic Media LLC (hereinafter “New Epic”) through its purported owner Steve Black-bum. (Id. at ¶ 29.) The contract states that certain confidential information will be disclosed by Greenway to New Epic. The agreement limits the use and dissemination of the “confidential information” belonging to Greenway; however, the contract does not specify for what purpose the confidential material is being disclosed. (Compl., Ex. 1 at ¶ 7, providing that New Epic will use the material “solely for the purpose described above.”)

During the same time period, Greenway and Steve Blackburn began to discuss a business arrangement whereby Fulfillment would provide bottling and shipping for Greenway’s products. (Id. at ¶ 29.) To that end, Greenway and Fulfillment entered into an agreement on June 21, 2011. (Id. at ¶ 31, Ex. 2). Fulfillment represented to Greenway that it had sufficient expertise in filling bottles, labeling, shipping, customer service, and sales and stated it had a platform for ordering and billing. (Id. at ¶ 32.) Blackburn also told Green-way there was the possibility of a further business relationship involving Blackburn’s business partner, Defendant David Selako-vic. (Id. at ¶ 30.)

Greenway, however, lacked the financial capability to purchase its nutrient products in quantity for Fulfillment to process. (Id. at ¶ 33.) Steve Blackburn therefore arranged for Selakovic to pay for the purchase of unspecified quantities of “No Powdery Mildew” and “No Spider Mites” utilizing his own credit card, with the understanding that Selakovic would be reimbursed. (Id. at ¶¶ 33-34.) Selakovic did make payment for an unspecified amount of raw product materials. (Id.) The product purchased by Selakovic was to be processed by Fulfillment under the Greenway Nutrients mark. (Id. at ¶ 34.) As part of the process to obtain Selakovic’s agreement to fund the product purchases, Greenway provided -information to Steve Blackburn, Fulfillment, New Epic, and Defendants Josh Gill and Chris Kohlhagen, both employees of New Epic (id. at ¶ 36), including Greenway’s financial information and alleged trade secrets, including the “identity of its manufacturers and suppliers, its supply chain, retailers, wholesalers, and industry contacts along with Green-way’s internal notes and pricing” and information about Greenway’s web presence (id. at ¶¶ 35-37).

At some time prior to November 2012, Greenway and Steve Blackburn had a dispute about an unspecified “accounting” between “the parties.” (Id. at ¶ 39.) Said “accounting” was purportedly being handled through another of Steve Blackburn’s companies, Defendant Bea’s Hive. (Id.) Blackburn suggested the dispute could be resolved by allowing David Selakovic to invest in Greenway. (Id. at ¶ 40.) Blackburn thereafter visited the business premises of Greenway for two days. (Id.) Although the timing is unclear, Greenway alleges that “Blackburn was holding all of Greenway’s supplies [] at Fulfillment Solutions based on a[ ] accounting dispute ....” (Id. at ¶ 46.)

In November of 2012, Greenway submitted its “usual” order to Defendant Park and Ecowin for “No Powdery Mildew.” (Id. at 43.) Ecowin informed Greenway that Park was no longer employed by Ecowin and that Ecowin was associating with “other partners” in the United States. Thereafter, Ecowin refused to fill Green-way’s order for “No Powdery Mildew.” (Id. at ¶ 43.)

At an unspecified time thereafter, Greenway alleges that Blackburn, Selako-vic, Park, Ecowin and Fullfillment began selling a product similar to “No Spider Mites,” renamed “Spider Mite Killer” under the Greenway Nutrients’ label which plaintiff believes had been reverse engineered from Greenway’s original “No Spider Mites.” (Id. at ¶ 47.)

Plaintiff alleges Defendant Selakovic formed Vegalab, LLC in January 2013 and is its registered agent. (Id. at ¶ 52.) In February 2013, Greenway arranged to have an intermediary make a clandestine contact with Ecowin. The individual responding at Ecowin stated that Vegalab was its new distributor for the powdery mildew elimination product. (Id. at ¶ 52.) Greenway again made a clandestine contact with Vegalab, arranging for the contact to purchase a product called “Mildew Control” from Vegalab. Vegalab required payment for that purchase to be made via wire transfer to Fulfillment. (Id.)

In March 2013, Greenway directly contacted Defendant Park at Ecowin who informed Greenway that Vegalab was the representative partner of Ecowin at that time and advised Greenway that Ecowin was selling the same powdery mildew product to Vegalab which it had previously sold to Greenway. (Id. at ¶ 53.)

Greenway alleges that one or all of the Defendants, again at unspecified points in time, began selling the stock of Green-way which was in the possession of Steve Blackburn and Fulfillment through companies Supreme Growers, Grower Trust and Vegalab. (Id. at ¶ 48.) In support of this allegation, Greenway states that in and after November 2012, the following took place:

a. In November 2012, an unspecified person at Greenway’s customer, Sunlight Supply, told an unspecified person at Greenway that Steve Blackburn offered to sell Greenway-labeled “No Spider Mites” and No Powdery Mildew” to them at greatly reduced prices, telling Sunlight Supply that Blackburn had funded the development of the Greenway product line. (Id. at ¶ 49.)

b. In November 2012, an unspecified person at Greenway’s customer, Watch It Grow, told an unspecified person at Green-way that Supreme Growers was selling Greenway’s “No Spider Mites” and “No Powdery Mildew” for “amazing” prices and stated that all of Supreme Growers’ “Greenway liquidation” was, at that time, located in West Palm Beach, Florida, the location of Steve Blackburn and his various companies. (Id. at ¶ 50.)

c. Greenway alleges it “became aware” at some unspecified time and by unspecified means, that Grower Trust was selling “No Spider Mites” and No Powdery Mildew” under the “rebranded names” of “Spider Mite Killer and “Powdery Mildew Killer” and was offering the products for sale on the internet. (Id. at ¶ 51.)

d. At an unspecified time, Gringo Dia-blo Hydro was selling Greenway-labeled “No Spider Mites” and “No Powdery Mildew” on the internet which it claims to have obtained through “Vega Labs.” (Id. at ¶ 54.)

e. At an unspecified time, Hoops d/b/a/ Lookout Deals was selling Greenway labeled “No Spider Mites” and No Powdery Mildew” on the internet in old size bottles. (Id. at 55.)

■ANALYSIS A. Jurisdiction

1. RICO — Count I

If Congress statutorily authorizes nationwide service of process under a given statute, then proper service establishes personal jurisdiction over a defendant thereunder, provided that the court’s exercise of jurisdiction comports with the Fifth Amendment’s Due Process guarantee. See Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th Cir.2000).-

Count I of the Complaint alleges a violation of “Civil RICO — Wire and Mail Fraud” against all Defendants. (Compl. at ¶ 56.) RICO includes two provisions that arguably could create nationwide jurisdictional reach. Title 18 U.S.C. §§ 1962, 1964. First, subsection (b) of Section 1965, Venue and process, provides that “in any district court of the United States in which it is shown that the ends of justice require that other parties residing in any other district be brought before the court, the court may cause such parties to be summoned, and process for that purpose may be served in any judicial district of the United States.” Further, subsection (d) provides that “all other process in any action or proceeding under this chapter may be served on any person in any judicial district in which such person resides, is found, has an agent, or transacts his affairs.”

In Cory v. Aztec Steel Bldg., Inc., 468 F.3d 1226, 1229-31 (10th Cir.2006), the Tenth Circuit joined the Second, Seventh, and Ninth Circuits in holding that, pursuant to subsection (b), when a civil RICO action is brought in a district court where personal jurisdiction can be established over at least one defendant, summonses can be effected nationwide on other defendants if required by the ends of justice. Thus, to determine whether jurisdiction is appropriate under RICO, the Court engages in a three step analysis: (1) whether personal jurisdiction can be established over one. defendant; (2) whether the ends of justice require nationwide service; and (3) whether the exercise of jurisdiction comports with Due Process. As- to the second step, the Tenth Circuit has not provided a bright line rule for the “ends of justice” analysis, rather noting that it is a “flexible concept uniquely tailored to the facts of each case.” Id. at 1232.

Because Plaintiff has asserted a RICO claim against all of the defendants, if the RICO claim meets the three requirements delineated above, all defendants would be subject to the jurisdiction of this Court based on RICO. However, the defendants bringing this motion have moved to dismiss the RICO claim for failure to state a claim. If they succeed on their Motion to Dismiss regarding the RICO claim generally, ie., not only specifically as to them, then RICO would not provide a basis for personal jurisdiction. Accordingly, the Court first determines whether Plaintiff has sufficiently stated a RICO claim. If it has, then the court may address whether nationwide jurisdiction is proper.

The RICO statute provides a private right of action for those injured by violations of section 1962. 18 U.S.C. § 1964(c). To assert such a civil RICO claim, a plaintiff must demonstrate four elements: (i) conduct (ii) of an enterprise (iii) through a pattern (iv) of racketeering activity. See Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir.2002).

Although the term “racketeering activity” appears last in the elements list for a civil RICO claim, there is no RICO claim without there first being racketeering activity. Racketeering activity “is defined ... as any ‘act which is indictable’ under federal law.” Tal v. Hogan, 453 F.3d 1244, 1261 (10th Cir.2006) (quoting 18 U.S.C. § 1961(1)(B)). Plaintiff alleges that the racketeering activity in this case is mail fraud, a violation of Title 18 U.S.C. § 1341, and wire fraud, a violation of Title 18 U.S.C. § 1343. Both mail fraud and wire fraud are punishable under federal law by more than one year in prison and therefore either could satisfy the requirement of racketeering activity. See 18 U.S.C. § 1961(1)(A).

Plaintiff has loosely and in a very disjointed fashion attempted to describe a fraud scheme wherein Steve Blackburn, by and through his companies, Fulfillment and New Epic, and with his partner, David Selakovic, entered into a business arrangement with Greenway under false pretenses for the real purpose of acquiring Green-way’s trade secrets, including the identity of Greenway’s supplier of the substance marketed as “No Powdery Mildew” in order to steal that supplier away from Greenway. David Y.S. Park, Loo Kyung-Bon and Ecowin, the supplier of the powdery mildew preventative product, are alleged to be in the conspiracy to defraud Greenway with Blackburn and Selakovie by virtue of their agreement to allow Blackburn and Selakovie to become new suppliers of the product in the United States. Entities who may have “reengi-neered” Plaintiff’s “No Spider Mites” product that was apparently provided to Fulfillment pursuant to the processing contract are alleged to be part of the scheme. How the remaining defendants are connected to the alleged racketeering activity is not clear.

The mail fraud statute provides, in pertinent part,

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 1341 (emphasis added). As is evident, there must be an allegation of use of the mail delivery system in order to sustain a claim of mail fraud. The wire fraud section is similar

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.

Title 18 U.S.C. § 1343 (emphasis added). In addition to the requirement of alleging the use of the mails or the wires, the use of the mail and wires must be for the purpose of furthering the fraudulent scheme.

Plaintiffs have not successfully alleged a scheme to commit fraud with respect to the products which were being sold by Blackburn and Selakovic subsequent to November 2012. The factual allegations in the complaint are that Mr. Selakovic paid for the raw materials — presumably, although not specifically so stated, from Ecowin with his own money in order to help launch the agreement for processing between Fulfillment and Green-way (Compl. ¶ 34) and that the products were shipped to Fulfillment for processing and therefore were, at that moment, rightfully in Fulfillment’s possession pursuant to the contract between Greenway and Fulfillment. There is no allegation that Selakovic was repaid for his funding of the product purchase. It can be inferred from the facts alleged that Fulfillment did process and package the raw materials as contracted. (See Compl. ¶¶ 50, 54 and 55.) The facts alleged in the Complaint confess to a. dispute between Blackburn and Greenway which occurred after that purchase which apparently went unresolved. Thereafter Selakovic and Steve Blackburn started selling off the processed product inventory, which inferentially stood as collateral for the Selakovic loan for purchase, at “liquidation” prices to third parties, most of whom had no alleged connection to Blackburn or Selakovic or any of their companies. Id. While selling of the product may have been wrongful and may support other claims in the casé, a scheme involving fraud simply does not arise from the facts alleged in the Complaint.

Moreover, the Complaint does not allege even one act of use of the mail, for any purpose, much less to further a fraudulent scheme. Therefore there are no predicate acts of mail fraud alleged and therefore no pattern of racketeering activity concerning mail fraud.

The only possible allegations of use of wire transmissions comes in paragraphs 34 and 51-55 of the Complaint. Three of the paragraphs allege that entities unrelated to the alleged scheme are selling Green-way Nutrients’ liquidated products on the internet. These uses of wire transmissions are not in furtherance of any scheme to steal Greenway’s trade secret information. Paragraph 52 of the Complaint alleges that an undercover emissary from Greenway was instructed to wire transfer funds to Fulfillment for a product the emissary purchased from Vegalab, a company allegedly owned by Selakovic. There is no allegation that any wire transfer actually was made or product thereafter delivered. In paragraph 53 of the Complaint, it is alleged that Vegalab was selling a product obtained directly from Ecowin (not part of the “liquidated Greenway inventory”) over the internet. Paragraph 34 of the Complaint alleges that Selakovic paid for the Ecowin products with a “credit card” which could imply use of the wires; however the allegation is inadequately developed to support a claim of wire fraud and is not pleaded sufficiently pursuant to Fed. R.Civ.P. 9. Without allegations of use of the mails or wire, there can be no claim of mail or wire fraud.

Finally, a plaintiff must prove that a defendant engaged in at least two felony predicate acts to satisfy the “pattern” element of a RICO claim. (See id. at 1267.); Sky Harbor Air Service, Inc. v. Reams, 491 Fed.Appx. 875, 887-888, 2012 WL 2948180, *10 (10th Cir.2012). The leading Supreme Court case addressing the enigmatic term “pattern of racketeering activity” is H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 250, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989) (Scalia, J., concurring). In H.J. Inc., the Supreme Court was called on to explain how multiple predicate acts interact with each other, and with the activities of a RICO enterprise, so as to constitute a pattern of illegal activity. After observing that Congress “had a fairly flexible concept of a pattern in mind,” the Court found the “term pattern itself requires the showing of a relationship between the predicates” and of “the threat of continuing activity,” so that it is “continuity plus relationship which combines to produce a pattern.” Id. at 239, 109 S.Ct. 2893. Conduct only forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events. Id. at 240, 109 S.Ct. 2893. Additionally, while at least two acts are necessary to form a pattern, two acts may not be sufficient in and of themselves to support a RICO claim. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); Smith v. Figa and Burns, 69 Fed.Appx. 922, 925-926, 2003 WL 21465495, *3 (10th Cir.2003) Because there is only one tangential and inferential use the wires by Selakovic’s alleged use of a credit card in furtherance of the alleged scheme to defraud, the Plaintiff has failed to allege a pattern of racketeering.

Plaintiff has failed to state a claim for civil RICO requiring that this court recommend the dismissal of Count I of the Complaint. For the same reasons, Plaintiffs Count III, Conspiracy, also fails since the allegation involves “conspiracy to commit Federal racketeering activating (sic) arising under 18 U.S.C. § 1962(d).” The court also recommends the dismissal of Count III.

With the demise of the RICO claims, Plaintiff must therefore establish independent personal jurisdiction over each Defendant in order to proceed.

2. Due Process and Long Arm Jurisdiction

a. Steve Blackburn and Fulfíllment

Plaintiff alleges that he entered into contracts with Defendants Steve Blackburn and Fulfillment, both of which are attached to the Complaint. (Compl., Ex. 1 and 2.) A defendant is not necessarily subject to personal jurisdiction in a forum state simply because he enters into a contract with a party that resides in that forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)) (an individual’s contract with an out-of-state party cannot automatically establish sufficient minimum contacts in that party’s home forum); SGI Air. Holdings II LLC. v. Novartis Int’l, AG, 192 F.Supp.2d 1195, 1202 (D.Colo. 2002) (same). However, a contract may establish sufficient minimum contacts with the forum state where it has a “substantial connection” with that forum state. TH Agriculture & Nutrition, 488 F.3d at 1288. Without substantial connection, there may be no personal jurisdiction even in cases where the defendant enters that forum state to discuss some of the details of the contract. See SGI Air Holdings II, 192 F.Supp.2d at 1202.

Although Plaintiff claims that Greenway is a Colorado company, there is no factual allegation describing the Plaintiffs principal place of business. However, two contracts, which are attached to the Complaint, Exs. 1 and 2, note that Green-way is a Colorado corporation having a principal place of business at 405 S. Platte River Dr., Denver, Colorado. (Compl., Ex. 2 at 1.) The Complaint alleges that various Florida residents, under the guise of entering into a business relationship with Greenway, came to Greenway’s offices and looked at all Greenway’s records, internet servers, products, and other accoutrements of the business in an effort to steal Greenway’s trade secrets. Although the Complaint does not specify exactly where those offices are, it is fair to consider that “the offices of Greenway” refer to 405 S. Platte River Dr., Denver, Colorado.

Further, the Fulfillment contract, (id., Ex. 2) contains the following provision:

22. Governing Law and Attorney Fees. This Agreement shall be deemed to have been negotiated and executed in the State of Colorado, who shall have exclusive jurisdiction over this matter with venue in Denver, Colorado. The laws of the State of Colorado shall govern this Agreement and all matters arising out of or otherwise relating to this Agreement. The parties hereby submit to the personal jurisdiction of the state and federal courts of the State of Colorado.”

(Id. at 3). This agreement was signed by Steve Blackburn on behalf of Fulfillment Solutions Services, LLC. and Gustavo Es-camilla on behalf of Greenway Nutrients, Inc. (Id.) Likewise, the non-disclosure agreement, attached to the Complaint at Ex. 1, contains the following language, “This agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Colorado applicable to agreements made and to be performed entirely therein without giving effect to the conflicts of law’s (sic) provisions thereof. (Id. at ¶ 17.) This agreement is signed by Steve Blackburn as owner of New Epic Media and Gustavo Escamilla as CEO of Greenway.

Therefore this court finds that Steve Blackburn and Fulfillment Solutions have waived their right to contest specific personal jurisdiction in Colorado. Ins. Corp. of In, Ltd. v. Compagnie des Bauxites de Guiñee, 456 U.S. 694, 703-04, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (party may waive personal jurisdiction by agreeing, via contract, to. submit to the jurisdiction of a given court). Further the court finds that the Plaintiff has established the requisite minimum contacts with this state to allow specific jurisdiction, that both these defendants could reasonably anticipate being haled into court in Colorado if there was a dispute involving the subject of the two contracts and that, after considering all the factors, jurisdiction in Colorado over Steve Blackburn and Fulfillment is reasonable in light of all the circumstances