* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

July 22, 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DONALD WAYNE BROWNING,

Plaintiff - Appellant,

 v. 

MARY ELIZABETH SALMON;

WAYNE SALMON,

Defendants - Appellees.

No. 04-1234

(D.C. No. 02-F-1636 (BNB))

(D. Colo.)

ORDER AND JUDGMENT *

Before EBEL, McCONNELL, and TYMKOVICH Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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.

In order for a federal district court to retain jurisdiction over a defendant,

the court must have subject-matter jurisdiction over the cause of action and
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personal jurisdiction over the defendant. See Gadlin v. Sybron Int’l Corp., 222

F.3d 797, 799 (10th Cir. 2000). In the instant case, plaintiff/appellant Donald

Browning is suing defendants/appellees Mary and Wayne Salmon, his aunt and

uncle who reside in Indiana, in Colorado federal district court for monetary

damages allegedly arising from tortious interference with a contract between

Mr. Browning and his grandfather. Because we find no error in the district

court’s conclusion that the Salmons did not have minimum contacts with the state

of Colorado and that imposition of personal jurisdiction over them would violate

“‘traditional notions of fair play and substantial justice,’” R. Doc. 36 at 4

(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)), we affirm.

I.

We must first address the Salmons’ argument, made in a motion to dismiss

the appeal, that we have no jurisdiction to hear this appeal because Mr. Browning

failed to file his notice of appeal within thirty days of the district court’s May 4,

2004, order dismissing the case. See Fed. R. App. P. 4(a)(1)(A). “[T]he filing of

a timely notice of appeal is mandatory and jurisdictional,” and “we must

determine, as a threshold matter, whether the notice of appeal was timely.” 

Trotter v. Regents of the Univ. of N.M. , 219 F.3d 1179, 1182 (10th Cir. 2000)

(quotation marks omitted). 
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When the district court dismissed Mr. Browning’s complaint, it did not file

a separate judgment with its order. See Fed R. Civ. P. 58(a) (providing that

“[e]very judgment . . . must be set forth on a separate document,” with certain

exceptions not applicable here). In light of that omission, judgment is considered

entered 150 days after entry of the district court’s May 4, 2004, order. See Fed.

R. Civ. P. 58(b)(2)(B); Fed. R. App. P. 4(a)(7). “The Supreme Court has

recognized that the separate-document rule must be mechanically applied in

determining whether an appeal is timely.” Allison v. Bank-One Denver , 289 F.3d

1223, 1232 (10th Cir. 2002) (quotation marks omitted). “[A]bsent a formal

judgment, a district court’s order remains appealable.” Id. (quotation marks

omitted). Thus, the time to appeal did not begin to run until October 1, 2004. 

The notice of appeal was filed in the district court on June 7, 2004, and is,

therefore, timely.

II.

The district court’s order regarding personal jurisdiction resulted in

relevant part from the Salmons’ motion to dismiss for lack of personal

jurisdiction, which they brought under Fed. R. Civ. P. 12(b)(2). 

We review de novo the district court’s dismissal for lack of personal

jurisdiction. When the court’s jurisdiction is contested, the plaintiff

has the burden of proving jurisdiction exists. When, as in this case, a

district court grants a 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
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defeat the motion. We resolve all factual disputes in favor of the

plaintiff in determining whether plaintiff has made a prima facie

showing. . . .

To obtain personal jurisdiction over a nonresident defendant in

a diversity action, a plaintiff must show that jurisdiction is legitimate

under the laws of the forum state and that the exercise of jurisdiction

does not offend the due process clause of the Fourteenth Amendment. 

Colorado’s long arm statute is coextensive with constitutional

limitations imposed by the due process clause. Therefore, if

jurisdiction is consistent with the due process clause, Colorado’s

long arm statute authorizes jurisdiction over a nonresident defendant.

. . . .The Due Process Clause protects an individual’s liberty

interest in not being subject to the binding judgments of a forum with

which he has established no meaningful contacts, ties, or relations.

Therefore, a court may exercise personal jurisdiction over a

nonresident defendant only so long as there exist minimum contacts

between the defendant and the forum state. . . . .

The minimum contacts standard may be met in two ways. 

First, a court may, consistent with due process, assert specific

jurisdiction over a nonresident defendant if the defendant has

purposefully directed his activities at residents of the forum, and the

litigation results from alleged injuries that arise out of or relate to

those activities. . . . .

. . . .

A specific jurisdiction analysis involves a two-step inquiry. 

First we must consider whether the defendant’s conduct and

connection with the forum State are such that he should reasonably

anticipate being haled into court there. Second, if the defendant’s

actions create sufficient minimum contacts, we must then consider

whether the exercise of personal jurisdiction over the defendant

offends traditional notions of fair play and substantial justice. 

Benton v. Cameco Corp ., 375 F.3d 1070, 1074-75 (10th Cir. 2004) (quotation

marks, brackets, and citations omitted), cert. denied , 125 S. Ct. 1826 (2005). 
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It is undisputed that Mr. Browning’s grandfather and the Salmons were

residents of Indiana at the time of the Salmons’ allegedly tortious act. 

Mr. Browning claims that the Salmons interfered with his grandfather’s oral offer,

made in Indiana in October 1992, to “provide” an unidentified condominium in

Denver for Mr. Browning if Mr. Browning would “accept medical treatment and

follow [the] advice of [his] psychiatrist.” R. Doc. 1, Att. 1. Mr. Browning claims

that, around March 1993 in Indiana, his aunt and uncle allegedly falsely told his

grandfather that Mr. Browning had not fulfilled the condition of the offer, and, as

a result, his grandfather never purchased a condominium for Mr. Browning before

the grandfather died in 2001. 

Mr. Browning relies on a single alleged fact–that the purported oral

contract involved a promise to provide real property in Denver–to support his

claim that the Salmons had the requisite minimum contacts such that they should

reasonably have anticipated being haled into court in Colorado. But, as the

district court correctly pointed out, “the allegation of a lost expectation of

unidentified real property located in Colorado does not establish that the

defendants had minimum contacts with the forum state necessary for this Court to

assert personal jurisdiction over them,” R. Doc. 36 at 4-5, and Mr. Browning

sought monetary damages, not specific performance of a real estate contract, thus

making even more remote a possible impact on Colorado. See OMI Holdings, Inc.
1 We need not address the issue whether the district court erred in holding

that it had no subject-matter jurisdiction over the case, as it is mooted by our

ruling on personal jurisdiction. See Gadlin, 222 F.3d at 799 (noting that court

may address issue of personal jurisdiction first). 

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v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1092 (10th Cir. 1998) (noting that

“[p]urposeful availment requires actions by the Defendant which create a

substantial connection with the forum state”) (quotation marks omitted); Far West

Capital, Inc. v. Towne , 46 F.3d 1071, 1079 (10th Cir. 1995) (“[T]he mere

allegation that an out-of-state defendant has tortiously interfered with contractual

rights . . . does not necessarily establish that the defendant possesses the

constitutionally required minimum contacts.”). We agree with the district court

that the Salmons did not have the requisite minimum contracts with Colorado to

support the exercise of the Colorado federal district court’s jurisdiction over

them. The district court therefore properly dismissed the suit 1

. 

Mr. Browning’s motion to proceed in forma pauperis is DENIED . The

Salmons’ motion to dismiss the appeal for lack of jurisdiction is DENIED . The

Salmons’ motion for damages pursuant to Fed. R. App. P. 38 is DENIED .
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The judgment of the district court is AFFIRMED .

Entered for the Court

Michael W. McConnell

Circuit Judge