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, this panel has determined 

unanimously that oral argument wouldn’t materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment isn’t binding 

precedent, except under the doctrines 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 filings, 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., which, according to the defendant, doesn’t 

exist. For convenience, we will refer to the defendant as Sprint. And in construing all 

reasonable inferences in Birch’s favor, we assume, as Birch conceded and the 

magistrate judge and the district court assumed, that Birch meant to name Sprint 

Communications, Inc. f/k/a Sprint Nextel Corporation. 

FILED 

United States Court of Appeals

Tenth Circuit 

January 6, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

(SCA), 18 U.S.C. §§ 2701-2712. The district court found it lacked personal 

jurisdiction but then additionally concluded that Birch’s claims are barred by the 

statute of limitations and dismissed the complaint with 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 first-degree murder and conspiracy in 2011. In 2015, 

Birch sued Sprint in federal court, generally alleging that Sprint violated the SCA and 

his constitutional rights by failing to preserve and produce cell-site data that would 

have exonerated Birch in his criminal trial. Specifically, Birch alleged that a 

detective investigating the murder sent a preservation letter and 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 detective because Sprint 

had by then purged the data pursuant to its data retention policy. 

Sprint sought dismissal asserting, as relevant to this appeal, that (1) the district 

court lacked personal jurisdiction over Sprint and (2) Birch’s claims were timebarred. In response, Birch argued the district court had personal jurisdiction over 

Sprint and suggested his claims weren’t time-barred because they were subject to 

equitable tolling. 

In a report and recommendation to the district court, a magistrate judge agreed 

with Sprint that the district court lacked personal jurisdiction over it, and therefore 

recommended dismissal of Birch’s claims without prejudice. The magistrate judge 
3 

primarily reasoned that Birch didn’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 Colorado and is organized and has its principal 

place of business in Kansas. The magistrate judge stated, “[W]hile it is plausible that 

the [c]ourt could have jurisdiction over an unknown subsidiary or affiliate of Sprint 

Communications based on the allegations in the Complaint”—namely, that a Sprint 

representative testified at Birch’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 recommendation to dismiss for lack of 

personal jurisdiction, the magistrate judge didn’t reach Sprint’s alternative argument 

that Birch’s claims were time-barred or Birch’s equitable tolling argument. 

Birch timely objected to the recommendation, reasserting that Sprint is subject 

to specific personal jurisdiction in Colorado because Birch suffered injury there when 

a Sprint representative testified at his criminal trial and Sprint failed to produce his 

cell phone records and related cell-site data at trial. But the district court disagreed 

and adopted the magistrate judge’s recommendation to dismiss Birch’s claims for 

lack of personal jurisdiction. The court reasoned that Birch “failed 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 express an opinion as to whether the court 

would have jurisdiction over the entity whose representative actually testified at 

Birch’s criminal trial; rather she “simply conclude[d] that there is no basis for 

asserting personal jurisdiction over” the entity Birch sued here. R. 60. 
4 

actually sued, “as opposed to some other Sprint entity or subsidiary.” R. 93. 

Additionally, after noting that Birch’s objection offered 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 concluded that even if it 

considered that evidence Birch failed to establish personal jurisdiction. 

But the district court declined to adopt the magistrate judge’s recommendation 

to dismiss the claims without prejudice, finding Sprint’s alternative statute-oflimitations argument persuasive. The court rejected Birch’s equitable tolling 

argument, concluding that “even if personal jurisdiction did exist, plaintiff’s putative 

claims under the [SCA] are barred by limitations.” R. 95. Accordingly, the district 

court dismissed Birch’s claims against Sprint with prejudice. 

 Birch bears the burden of establishing personal jurisdiction. See Dudnikov v. 

Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1069 (10th Cir. 2008). When, as 

here, the district court determines that it lacks personal jurisdiction on the basis of the 

complaint and affidavits, our review of the 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 Birch 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 should 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) (explaining that “failure to argue for plain error and its application 

on appeal . . . surely marks the end of the 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 and related cell-site data at his criminal 

trial. But as the district court reasoned, Birch failed to demonstrate that the holding 

company he sued—Sprint Communications, Inc.—is responsible for Sprint’s alleged 

failure to comply with the subpoena or for sending a Sprint representative to testify at 

Birch’s criminal trial. Consequently, we affirm the district court’s conclusion that 

Birch failed to meet his prima facie showing of personal jurisdiction. 

But our agreement with the district court ends there. Once the district court 

determined it lacked jurisdiction 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 lacks jurisdiction over the action, is incapable of 

reaching a disposition on the merits of the underlying claims.”); see also Bauchman 

v. W. High Sch., 132 F.3d 542, 549–50 (10th Cir. 1997) (reasoning that district court 

abused its discretion in dismissing state law claims with prejudice after finding it 

lacked federal subject matter jurisdiction). Thus, while we affirm the district court’s 
6 

finding that it lacked personal jurisdiction over the defendant, we reverse its decision 

to dismiss with prejudice based on its conclusion that Birch’s claims were timebarred. Instead, the court should have dismissed 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 against defendant holding 

company without prejudice after court found it lacked personal jurisdiction over that 

company). 

Accordingly, we affirm the district court’s ruling to the extent it found that it 

lacked personal jurisdiction, but we remand 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 obligation to make partial 

payments until the fees are paid in full. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge