Fleming v. Brown et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 25-cv-00742-NYW
EDWARD FLEMING,
Plaintiff,
v.
DAVID BROWN, a/k/a DAVID BROWN LEVY a/k/a DAVID RAYMOND BROWN,
SCREENFUND LLC, and
THE SCREEN COMPANY, INC.
Defendants.
ORDER
This matter is before the Court on Plaintiff’s Motion for Temporary Restraining
Order and Preliminary Injunction (the “Motion” or “Motion for Temporary Restraining
Order”). 	[Doc. 4]. 	Plaintiff Edward Fleming (“Plaintiff” or “Mr. Fleming”) alleges that he
entered into a business venture with Defendant David Brown (“Defendant Brown” or “Mr.
Brown”) under the name of Film Holdings Capital LLC (“FHC”). [Doc. 1 at ¶ 18]. Plaintiff
alleges that, over the course of the several months, he made over $11 million in capital
investments to FHC. 	[Id. at ¶ 25]. 	According to Mr. Fleming, Mr. Brown caused the
unauthorized wiring of those funds to bank accounts held by other entities, such as
Defendants ScreenFund LLC (“ScreenFund”) and The Screen Company, Inc. (“The
Screen Company”) to “hide” Mr. Fleming’s money. 	[Id. at ¶¶ 32, 34–35, 46]. Mr. Brown
then repeatedly failed to follow through on promises to wire Plaintiff funds that Plaintiff
was owed. [Id. at ¶¶ 44–58].
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Plaintiff now asks this Court for an order (1) enjoining Defendants from “disbursing,
transferring, or otherwise disseminating the principal or proceeds of any loans, deals, or
other transactions involving [FHC] or Edward Fleming’s capital contributions to FHC”;
(2) enjoining Defendants from “disbursing, transferring, or otherwise disseminating funds
held by entities owned or controlled by Defendants or located in financial institution
accounts owned or controlled by Defendants, until Plaintiff is able to obtain a full
accounting of FHC and the $11,324,540.00 contributed to FHC by Plaintiff”; and
(3) ordering Defendants to provide Plaintiff “all bank statements between March 1, 2024
and the present for accounts that received Fleming’s capital contributions to FHC,
distributed Fleming’s capital contributions to FHC, and/or received loan proceeds, return
of principal, or any other monies related to Fleming’s capital contributions to FHC” no later
than March 11, 2025. [Doc. 4 at 1–2].
Plaintiff’s certificate of conferral states:
Pursuant to D.C.COLO.LCivR 7.1, undersigned counsel attempted to
confer with Mr. Eric Struble, who we understand to be counsel for Defendant
David Brown on March 6, 2025 in an effort to resolve this dispute. Plaintiff
left a voice message for Mr. Struble, but as of the time of the filing of this
Motion, Plaintiff is uncertain whether Defendants oppose the relief sought
herein. 	Pursuant to D.C.COLO.LCivR 65.1, copies of the pleadings and
documents filed in this action to date and to be presented to the Court at
the hearing have been provided to Mr. Straub via e-mail and have been sent
via Federal Express.
[Doc. 4 at 2]. 	Because it is unclear to the Court whether Mr. Struble represents any of
the Defendants, because Plaintiff’s counsel apparently never heard back from Mr.
Struble, and because the docket reflects no entry of appearance by Mr. Struble or counsel
for the two corporate Defendants, the Court construes Plaintiff’s Motion as seeking ex
parte relief. 	See Ball Dynamics Int’l, LLC v. Jamz Fitness, Inc., No. 08-cv-00465-MSK,
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2008 WL 793583, at *1 (D. Colo. Mar. 21, 2008) (construing motion as seeking ex parte
relief because “the Court [could not] presume that the entity Defendant ha[d] received
notice of the instant motion simply because the motion was sent to a[n] . . . 	email
address”). 	For the reasons set forth below, the Motion is respectfully DENIED to the
extent it seeks an ex parte temporary restraining order.
I. 	Subject Matter Jurisdiction
A district court has an independent obligation to satisfy itself of its own jurisdiction.
See City of Albuquerque v. Soto Enters., Inc., 864 F.3d 1089, 1093 (10th Cir. 2017).
Accordingly, a court “may sua sponte raise the question of whether there is subject matter
jurisdiction ‘at any stage in the litigation.’” 1mage Software, Inc. v. Reynolds & Reynolds
Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (quoting Arbaugh v. Y & H Corp., 546 U.S.
500, 506 (2006)). 	A court should not proceed in a case unless it has first assured itself
that jurisdiction exists. See Cunningham v. BHP Petroleum Great Britain PLC, 427 F.3d
1238, 1245 (10th Cir. 2005). “The party invoking federal jurisdiction bears the burden of
establishing such jurisdiction as a threshold matter.” 	Radil v. Sanborn W. Camps,
Inc., 384 F.3d 1220, 1224 (10th Cir. 2004).
Mr. Fleming asserts that this Court has subject matter jurisdiction under 28 U.S.C.
§ 1332. See [Doc. 1 at ¶ 9]. Section 1332 states that “district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between citizens of different States.”
28 U.S.C. § 1332(a). Mr. Fleming alleges that he “is a citizen of the United States who
currently resides in the state of Colorado” and that Mr. Brown “is a citizen of the United
States who currently resides in the state of South Carolina.” [Doc. 1 at ¶¶ 5–6]. However,
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“[f]or 	purposes 	of 	federal 	diversity 	jurisdiction, 	an 	individual’s 	state 	citizenship 	is
equivalent to domicile.” 	Smith v. Cummings, 445 F.3d 1254, 1259 (10th Cir. 2006).
Residency is not synonymous with domicile, see Miss. Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 48 (1989) (“‘Domicile’ is not necessarily synonymous with
‘residence,’ and one can reside in one place but be domiciled in another.”), and only the
latter is determinative of a party’s citizenship, see Whitelock v. Leatherman, 460 F.2d
507, 514 (10th Cir. 1972) (“[A]llegations of mere ‘residence’ may not be equated with
‘citizenship’ for the purposes of establishing diversity.”). 	“To establish domicile in a
particular state, a person must be physically present in the state and intend to remain
there.” 	Smith, 445 F.3d at 1260. 	Courts in this District thus routinely conclude that
allegations of a party’s state of residence are insufficient to establish that party’s state of
citizenship. See Weiszmann v. Kirkland & Ellis, 732 F. Supp. 1540, 1547 (D. Colo. 1990);
Kelley v. Smith, No. 24-cv-02621-PAB-STV, 2024 WL 4290826, at *2 (D. Colo. Sept. 25,
2024).
The deficient allegations as to Mr. Brown’s citizenship render the allegations about
ScreenFund’s citizenship deficient, too. 	“[A]n LLC, as an unincorporated association,
takes the citizenship of all its members.” 	Siloam Springs Hotel, L.L.C. v. Century Sur.
Co., 781 F.3d 1233, 1234 (10th Cir. 2015). Plaintiff alleges that, “[b]ased on information
and belief, Defendant Brown is the sole member of ScreenFund LLC.” 	[Doc. 1 at ¶ 3].
This allegation is insufficient for at least two reasons. First, it is not enough for Plaintiff to
allege that Mr. Brown is the sole member of ScreenFund “upon information and belief.”
Instead, 	Plaintiff 	must 	affirmatively 	identify 	all 	the 	members 	of 	ScreenFund 	and
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affirmatively plead those members’ citizenship(s), to establish the company’s citizenship
for the purposes of diversity jurisdiction. See, e.g., Villanuevo v. Lowe’s Home Ctrs., No.
16-cv-02613-PAB-KLM, 2016 WL 7320393, at *2 (D. Colo. Dec. 16, 2016); Restore Life
USA, Inc. v. LifeNews.com, No. 18-cv-02472-MEH, 2018 WL 11189665, at *1 (D. Colo.
Oct. 1, 2018); Shanks v. Cath. Health Initiatives Colo., No. 20-cv-03713-STV, 2021 WL
307507, at *2 (D. Colo. Jan. 29, 2021). Second, even if Mr. Brown is the sole member of
ScreenFund, because Plaintiff has not adequately alleged Mr. Brown’s citizenship, he has
not sufficiently alleged ScreenFund’s citizenship, either. See Overhead Sols., Inc. v. A1
Garage Door Serv., L.L.C., No. 19-cv-01741-PAB, 2019 WL 11314993, at *1 (D. Colo.
July 30, 2019) (allegations of LLC member’s residency were insufficient to establish the
LLC’s citizenship).
Plaintiff’s present allegations are insufficient for the Court to determine whether it
has subject matter jurisdiction over this case. 	And absent the Court’s satisfaction that
complete diversity of citizenship exists under 28 U.S.C. § 1332, the Court cannot proceed.
Cunningham, 427 F.3d at 1245. Accordingly, the Court cannot presently enter the relief
requested by Plaintiff.
II. 	Personal Jurisdiction
Second, the Court has doubts about whether it has personal jurisdiction over any
of the Defendants. “A court does not have the power to order injunctive relief against a
person without in personam jurisdiction.” 	AMBI Distrib. Corp. v. Doe, No. 21-cv-01961-
WJM-NYW, 2021 WL 3269234, at *2 (D. Colo. July 28, 2021); see also Viral DRM, LLC
v. Unknown Counter Notificants, 688 F. Supp. 3d 1271, 1274–75 (N.D. Ga. 2023)
(denying motion for temporary restraining order where the plaintiff “ha[d] not established
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that the Court may exercise personal jurisdiction over the nonresident Defendants”);
Advanced Tactical Ordnance Sys. v. Real Action Paintball, Inc., 751 F.3d 796, 800 (7th
Cir. 2014) (“In order for the district court’s preliminary injunction to be valid, that court had
to have personal jurisdiction over the defendant.”). 	“[I]f a requesting party has not
established personal jurisdiction, he also cannot make the requisite showing of a
substantial likelihood of success before the court.” 	Viral DRM, LLC, 688 F. Supp. 3d at
1275.
With respect to personal jurisdiction, Plaintiff states:
This Court has personal jurisdiction over Defendants Brown, ScreenFund,
and The Screen Company, and each of them, because at all relevant times
they were doing business in and directing their efforts towards Plaintiff and
Red Junior, LLC and obtaining their funds and cooperation in this District.
This Court has personal jurisdiction over Defendants for the additional
reason that each of them purposefully directed action at this forum to obtain
benefits from their scheme perpetrated against Plaintiff in this District.
[Doc. 1 at ¶ 10].
A court may exercise general personal jurisdiction (or “all-purpose” jurisdiction) or
specific personal jurisdiction (or “conduct-linked” jurisdiction) over a defendant. 	Bristol-
Myers Squibb Co. v. Superior Ct. of Cal., 582 U.S. 255, 262 (2017); Daimler AG v.
Bauman, 571 U.S. 117, 122 (2014). 	Specific jurisdiction is available where the lawsuit
arises out of or relates to the defendant’s contacts with the forum state. 	Bristol-Myers
Squibb, 582 U.S. at 262. 	On the other hand, general jurisdiction “permits a court to
adjudicate any cause of action against” the defendant, “wherever arising, and whoever
the plaintiff.” Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d Cir. 2016). A court
may exercise general jurisdiction over a defendant if the defendant’s affiliations with the
forum state are “so continuous and systematic” that it is “essentially at home” in the state.
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Goodyear Dunlop Tires Operations v. Brown, 564 U.S. 915, 919 (2011). 	“For an
individual, the paradigm forum for the exercise of general jurisdiction is the individual’s
domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly
regarded as at home.” Id. at 924.
Because Plaintiff generally alleges that Defendants are out-of-state Parties, see
[Doc. 1 at ¶¶ 6–8], and there are no specific allegations to suggest that Defendants are
“essentially at home” in Colorado, the Court assumes that Plaintiff believes the Court has
specific personal jurisdiction over Defendants. 	The “minimum contacts” test for specific
jurisdiction has two requirements: First, the defendant must have “purposefully directed
its activities at residents of the forum state,” and second, “the plaintiff’s injuries must arise
out of the defendant’s forum-related activities.” 	Old Republic Ins. Co. v. Cont’l Motors,
Inc., 877 F.3d 895, 904 (10th Cir. 2017) (quoting Shrader v. Biddinger, 633 F.3d 1235,
1239 (10th Cir. 2011) (cleaned up)). However, “mere injury to a forum resident is not a
sufficient connection to the forum.” 	Walden v. Fiore, 571 U.S. 277, 290 (2014). 	“The
proper question is not where the plaintiff experienced a particular injury or effect but
whether the defendant’s conduct connects him to the forum in a meaningful way.” Id.
As a preliminary matter, “conclusory allegations are insufficient to establish
jurisdiction.” Dental Dynamics, LLC v. Jolly Dental Grp., 946 F.3d 1223, 1231 (10th Cir.
2020). 	Plaintiff’s allegations that Defendants as a whole were “directing their efforts
towards Plaintiff” and “obtaining their funds and cooperation in this District” are insufficient
to convince the Court that it could enter any order enjoining the out-of-state Defendants.
Indeed, there are no allegations in Plaintiff’s Complaint setting out, with specificity, any of
the Defendants’ connection to or contacts with Colorado. See generally [Doc. 1]. At best,
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Plaintiff alleges that Mr. Brown contracted with Plaintiff, a Colorado resident. [Doc. 1 at
¶ 18; Doc. 4-1 at ¶ 9]; see also [Doc. 4-4 (the FHC Operating Agreement)]. 	However,
“[a]lthough contractual obligations may create sufficient ties to establish jurisdiction, an
out-of-state resident’s contract with a resident of the forum state is insufficient, standing
alone, to create personal jurisdiction.” Dental Dynamics, 946 F.3d at 1230 (citing Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985) (emphasis added)). This is because
“the plaintiff cannot be the only link between the defendant and the forum.” Walden, 571
U.S. at 285. “Due process requires that a defendant be haled into court in a forum State
based on his own affiliation with the State, not based on the ‘random, fortuitous, or
attenuated’ contacts he makes by interacting with other persons affiliated with the State.”
Id. at 286 (quoting Burger King, 471 U.S. at 475).
Because the Court cannot determine at this juncture whether it has personal
jurisdiction over Defendants, the Court cannot enter the requested injunctive relief.
III. 	Rule 65
Finally, Rule 65 sets forth certain requirements for issuing temporary restraining
orders without notice to the adverse party. An ex parte temporary restraining order may
be issued only if “specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before the
adverse party can be heard in opposition” and “the movant’s attorney certifies in writing
any efforts made to give notice and the reasons why it should not be required.” Fed. R.
Civ. P. 65(b)(1)(A)–(B). 	“The stringent restrictions . . . on the availability of ex parte
temporary restraining orders reflect the fact that our entire jurisprudence runs counter to
the notion of court action taken before reasonable notice and an opportunity to be heard
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has been granted both sides of a dispute.” 	Granny Goose Foods, Inc. v. Bhd. of
Teamsters, 415 U.S. 423, 439 (1974).
Although Plaintiff’s attorney has explained his efforts to confer with whom he
believes to be Mr. Brown’s attorney, see [Doc. 4 at 2], this conferral statement does not
mention whether Plaintiff believes Eric Struble also represents ScreenFund or The
Screen Company, see [id.]. Moreover, Plaintiff’s attorney does not explain why notice to
Defendants should not be required before the Court enters temporary injunctive relief, as
required by Rule 65. 	See [id.]. 	This alone is a basis to deny the portion of the Motion
seeking a temporary restraining order. See Vollmer v. Univ. of N. Colo., No. 23-cv-02164-
PAB-SKC, 2023 WL 5671495, at *1 (D. Colo. Sept. 1, 2023); Dunlap v. Nielsen, No. 16-
cv-02400-JAR-TJJ, 2016 WL 11200091, at *1 (D. Kan. June 10, 2016).
As for Rule 65’s other requirement, Plaintiff has submitted an affidavit in which he
attests that “[i]f Defendant Brown is not ordered, by the Court, to hold on to (and deposit
with the Court registry) any funds that are received by him (in any of his companies’
accounts) – [Plaintiff] will likely never be able to recover these funds from him” and “[t]hese
funds will vanish to other accounts and [Plaintiff] will be unable to recoup them.” [Doc. 4-
1 at ¶ 62]. But Plaintiff does not directly address the requirement to explain why he will
be immediately and irreparably harmed “before the adverse party can be heard in
opposition.” 	Fed. R. Civ. P. 65(b)(1)(A) (emphasis added). 	Given that Mr. Fleming
asserts in his Motion that certain loans funded by FHC are due to be repaid today (March
7, 2025) and tomorrow (March 8, 2025), see [Doc. 4 at 9], the Court could assume that
Plaintiff’s position is that, if the Court does not order immediate ex parte relief, the funds
paid to FHC today and tomorrow will be taken by Mr. Brown and Mr. Fleming will be
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permanently deprived of the funds. 	But given the “stringent restrictions . . . on the
availability of ex parte temporary restraining orders,” Granny Goose Foods, 415 U.S. at
439, and because the Court cannot act as a party’s advocate, Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991), the Court cannot make that assumption. Moreover, Plaintiff
does not explain why he will be irreparably harmed without a Court order directing
Defendants to provide bank statements to Plaintiff by Tuesday, March 11, 2025. 	See
[Doc. 4-1]. 	Nor has Plaintiff explained why his request for bank records could not be
satisfied through expedited discovery, if warranted. 	These procedural deficiencies
provide an additional basis for the Court to deny ex parte relief.
For all of these reasons, the Motion for Temporary Restraining Order is DENIED
to the extent it seeks ex parte relief. It is ORDERED that a telephonic Status Conference
is SET for March 13, 2025 at 10:00 AM before Judge Nina Y. Wang, for purposes of
discussing the appropriate next steps in this case. 	Participants shall use the following
dial-in information: 571-353-2301; Access Code: 783456374.
CONCLUSION
For the reasons explained above, IT IS ORDERED that:
(1) 	Plaintiff’s 	Motion 	for 	Temporary 	Restraining 	Order 	and 	Preliminary
Injunction [Doc. 4] is DENIED to the extent it seeks an ex parte temporary
restraining order; and
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(2) 	A telephonic Status Conference is SET for March 13, 2025 at 10:00 AM
before Judge Nina Y. Wang. 	Participants shall use the following dial-in
information: 571-353-2301; Access Code: 783456374.
DATED: March 7, 2025 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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