UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SHUN BIRCH, Plaintiff - Appellant,

v. SPRINT/NEXTEL CORP., Defendant - Appellee. No. 16-1305 (D.C. No. 1:15-CV -01901-REB-KLM) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , HOLMES , and MORITZ , Circuit Judges.

________________ _________________ Proceeding pro se, 1 Sterling Correctional Facility prisoner Shun Birch appeals the district court’s dismissal of his civil action, in which he alleged that Sprint/Nextel Corp. (Sprint) 2 violated his constitutional rights and the Stored Communications Act

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument wouldn’t mate rially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment isn’t binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe Birch’s pro se f ilings, but it’s not our role to act as his advocate. James v. Wadas , 724 F.3d 1312, 1315 (10th Cir. 2013). 2 Birch sued Sprint/Nextel Corp., whic h, according to the defendant, doesn’t exist. For convenience, we wi ll refer to the defendant as Sprint. And in construing all reasonable inferences in Bi rch’s favor, we assume, as Birch conceded and the magistrate judge and the dist rict court assumed, that Bi rch meant to name Sprint Communications, Inc. f/k/a Spri nt Nextel Corporation. FILED United States Court of Appeals Tenth Circuit 

### January 6, 2017
Elisabeth A. Shumaker Clerk of Court2 (SCA), 18 U.S.C. §§ 2701-2712. The dist rict court found it lacked personal jurisdiction but then additionally conclude d that Birch’s claims are barred by the statute of limitations and dismissed the complaint wi th prejudice. We affirm the district court’s ruling to the extent it found that it lacked personal jurisdiction. But we remand for the district court to modify the dismissal to be without prejudice. Birch was convicted of firs t-degree murder and conspi racy in 2011. In 2015, Birch sued Sprint in federal court, generall y alleging that Sprint violated the SCA and his constitutional rights by fai ling to preserve and produce cell-site data that would have exonerated Birch in his criminal tr ial. Specifically, Bi rch alleged that a detective investigating the murder sent a preservation letter a nd search warrant to Sprint in November 2007 for Birch’s phone records, including the cell-site data. Birch also alleged that Thomas Koch, a representative of Sprint, testified at Birch’s trial that Sprint didn’t provide Birch’s cell- site data to the dete ctive because Sprint had by then purged the data pursuant to its data retention policy. Sprint sought dismissal asser ting, as relevant to this a ppeal, that (1) the district court lacked personal jurisdiction over Sp rint and (2) Birch’s claims were timebarred. In response, Birch argued the dist rict court had personal jurisdiction over Sprint and suggested his clai ms weren’t time-barred becau se they were subject to equitable tolling. In a report and recommendation to the dist rict court, a magist rate judge agreed with Sprint that the distri ct court lacked personal juri sdiction over it, and therefore recommended dismissal of Birch’s claims without prejudice. The magistrate judge3 primarily reasoned that Birch di dn’t dispute that the Sprint entity he conceded that he intended to sue—Sprint Communications, Inc.—is merely a holding company with no physical or business presence in Colora do and is organized a nd has its principal place of business in Kansas. The magistrate j udge stated, “[W]hile it is plausible that the [c]ourt could have ju risdiction over an unknown subsidiary or affiliate of Sprint Communications based on the allegations in the Complaint”—namel y, that a Sprint representative testified at Bi rch’s criminal trial and that Sprint failed to comply with a government subpoena to produce his phone records and related cell-site data—that issue wasn’t before the court given Birch’ s insistence that he intended to sue the holding company. R. 60. 3 In light of this recommenda tion to dismiss for lack of personal jurisdiction, the magi strate judge didn’t reach Sp rint’s alternative argument that Birch’s claims were time-barred or Birch’s equitable tolling argument. Birch timely objected to th e recommendation, reasserti ng that Sprint is subject to specific personal jurisdicti on in Colorado because Birch su ffered injury there when a Sprint representative testified at his crim inal trial and Sprint failed to produce his cell phone records and related ce ll-site data at trial. But the district court disagreed and adopted the magistrate judge’s recommendation to di smiss Birch’s claims for lack of personal jurisdiction. The court reas oned that Birch “faile d to show that the witness who testified at this trial was in any way associated with” the entity Birch

3 The magistrate judge declined to expr ess an opinion as to whether the court would have jurisdiction over the entity w hose representative actually testified at Birch’s criminal trial; rath er she “simply conclude[d] that there is no basis for asserting personal jurisdiction over” th e entity Birch sued here. R. 60.4 actually sued, “as opposed to some other Sprint entity or subsidiary.” R. 93. Additionally, after noting that Birc h’s objection offere d new documentary evidence—i.e., portions of the transcript from his criminal trial relating to Sprint’s response to the subpoena for his records—the district court concl uded that even if it considered that evidence Birch failed to establish personal jurisdiction. But the district court declined to a dopt the magistrate judge’s recommendation to dismiss the claims without prejudice , finding Sprint’s alte rnative statute-oflimitations argument persuasive. The cour t rejected Birch’s equitable tolling argument, concluding that “even if personal jurisdiction did exist, plaintiff’s putative claims under the [SCA] are ba rred by limitations.” R. 95. Accordingly, the district court dismissed Birch’s clai ms against Sprint with prejudice. Birch bears the burden of esta blishing personal jurisdiction. See Dudnikov v. Chalk & Vermilion Fine Arts, Inc. , 514 F.3d 1063, 1069 (10th Cir. 2008). When, as here, the district court determ ines that it lacks personal ju risdiction on the basis of the complaint and affidavits, our review of th e dismissal is de novo, taking as true all well-pled facts alleged in the complaint. At this stage, Birch need only make a prima facie showing of personal jurisdiction. See id. at 1070. In challenging the district court’s ruling, Birch first suggests that the court has personal jurisdiction because Sprint and Bi rch had a legal contract and Birch was a Sprint customer for years. 4 But Birch didn’t make this argument below. And he

4 Birch also makes several inapplicable arguments related to subject matter, not personal, jurisdiction, which we do not address.5 doesn’t suggest that we shoul d consider this new legal theory under the plain error standard, let alone attempt to satisfy that standard. Accordingly, we decline to address this argument. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1130–31 (10th Cir. 2011) (expla ining that “failure to argue fo r plain error and its application on appeal . . . surely marks the end of th e road” for argument not presented below). Second, Birch reasserts his argument that Sprint has sufficient contacts with Colorado because Birch suffered injury there when Sprint failed to comply with the subpoena to produce his cell phone records a nd related cell-site da ta at his criminal trial. But as the district c ourt reasoned, Birch failed to demonstrate that the holding company he sued—Sprint Communications, In c.—is responsible fo r Sprint’s alleged failure to comply with the subpoena or for sending a Sprint represen tative to testify at Birch’s criminal trial. Cons equently, we affirm the dist rict court’s conclusion that Birch failed to meet his prima facie showing of personal jurisdiction. But our agreement with the district cour t ends there. Once the district court determined it lacked jurisdicti on over this action, it lacked authority to decide issues on the merits. See Brereton v. Bountiful City Corp. , 434 F.3d 1213, 1218 (10th Cir. 2006) (“[D]ismissals for lack of jurisdiction should be without prejudice because the court, having determined that it l acks jurisdiction over the action, is incapable of reaching a disposition on the merits of the underlyi ng claims.”); see also Bauchman v. W. High Sch. , 132 F.3d 542, 549– 50 (10th Cir. 1997) (reasoni ng that district court abused its discretion in di smissing state law claims w ith prejudice after finding it lacked federal subject matter jurisdiction). Thus, while we affirm the district court’s6 finding that it lacked personal jurisdiction over the defendant, we reverse its decision to dismiss with prejudice based on its c onclusion that Birch’ s claims were timebarred. Instead, the court should have dism issed Birch’s claims without prejudice. See Hollander v. Sandoz Pharm. Corp. , 289 F.3d 1193, 1216 (10th Cir. 2002) (noting that district court should have dismissed plaintiffs’ claims agai nst defendant holding company without prejudice afte r court found it lacked pers onal jurisdiction over that company). Accordingly, we affirm the district court’s ruling to the extent it found that it lacked personal jurisdiction, but we rema nd to the district court to modify the dismissal to be without prejudice. Appellant’s motion to proceed without prepayment of fees is granted, and he is reminded of his obliga tion to make partial payments until the fees are paid in full.

Entered for the Court
Nancy L. Moritz Circuit Judge