* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. In order for a federal district court to retain jur isdiction over a defendant, the court must have subject-matter jurisdiction over the cause o f action and-2-

personal jurisdiction over the defendant. See Gadlin v. Sybron Int’l Corp., 222 F.3d 797, 799 (10th Cir. 2000). In the instant cas e, plaintiff/appellant Donald Browning is suing defendants/appellees Mary and Wayne Salmon, his aunt and uncle who reside in Indiana, in Colorado federal di strict court for monetary damages allegedly arising from tortious interferenc e 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 mi nimum contacts with the state of Colorado and that imposition of personal jurisdi ction 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 i n a motion to dismiss the appeal, that we have no jurisdiction to hear th is appeal because Mr. Browning failed to file his notice of appeal within thirty d ays 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 jurisdic tional,” and “we must determine, as a threshold matter, whether the notic e of appeal was timely.” Trotter v. Regents of the Univ. of N.M. , 219 F.3d 1179, 1182 (10th Cir. 2000) (quotation marks omitted).-3-

When the district court dismissed Mr. Browning’s co mplaint, 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 omitte d). “[A]bsent a formal judgment, a district court’s order remains appealable.” Id. (quotation marks omitted). Thus, the time to appeal did not begin t o 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 juris diction resulted in relevant part from the Salmons’ motion to dismiss f or lack of personal jurisdiction, which they brought under Fed. R. Civ. P. 12(b)(2). We review de novo the district court’s dismissal fo r lack of personal jurisdiction. When the court’s jurisdiction is cont ested, the plaintiff has the burden of proving jurisdiction exists. Whe n, as in this case, a district court grants a motion to dismiss for lack of personal jurisdiction without conducting an evidentiary hear ing, the plaintiff need only make a prima facie showing of personal ju risdiction to-4-

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 juri sdiction is legitimate under the laws of the forum state and that the exer cise of jurisdiction does not offend the due process clause of the Fourt eenth Amendment. Colorado’s long arm statute is coextensive with con stitutional limitations imposed by the due process clause. The refore, if jurisdiction is consistent with the due process clause, Colorado’s long arm statute authorizes jurisdiction over a non resident defendant. . . . .The Due Process Clause protects an individua l’s liberty interest in not being subject to the binding judgme nts of a forum with which he has established no meaningful contacts, ti es, or relations. Therefore, a court may exercise personal jurisdicti on over a nonresident defendant only so long as there exist m inimum contacts between the defendant and the forum state. . . . . The minimum contacts standard may be met in two way s. First, a court may, consistent with due process, assert specific jurisdiction over a nonresident defendant if the de fendant has purposefully directed his activities at residents o f 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-ste p inquiry. First we must consider whether the defendant’s conduct and connection with the forum State are such that he sh ould reasonably anticipate being haled into court there. Second, i f the defendant’s actions create sufficient minimum contacts, we mustthen 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) (quotati on marks, brackets, and citations omitted), cert. denied , 125 S. Ct. 1826 (2005).-5-

It is undisputed that Mr. Browning’s grandfather an d the Salmons were residents of Indiana at the time of the Salmons’ al legedly tortious act. Mr. Browning claims that the Salmons interfered with his grandfather’s oral offer, made in Indiana in October 1992, to “provide” an un identified condominium in Denver for Mr. Browning if Mr. Browning would “acce pt 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 un cle 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 condomi nium 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 co ntacts such that they should reasonably have anticipated being haled into court in Colorado. But, as the district court correctly pointed out, “the allegati on of a lost expectation of unidentified real property located in Colorado does not establish that the defendants had minimum contacts with the forum stat e necessary for this Court to assert personal jurisdiction over them,” R. Doc. 3 6 at 4-5, and Mr. Browning sought monetary damages, not specific performance o f 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). -6- v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1092 (10th Cir. 1998) (noting that “[p]urposeful availment requires actions by the Def endant 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 torti ously interfered with contractual rights . . . does not necessarily establish that th e defendant possesses the constitutionally required minimum contacts.”). We agree with the district court that the Salmons did not have the requisite minimumcontracts with Colorado to support the exercise of the Colorado federal distri ct 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

.-7-

The judgment of the district court is AFFIRMED

.

Entered for the Court

Michael W. McConnell Circuit Judge