Pro Axess, Inc. v. Orlux Distribution, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit

November 8, 2005
PUBLISH

UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

PRO AXESS, INC.,

Plaintiff - Appellant / Cross -
Appellee,
v.

ORLUX DISTRIBUTION, INC.,
Nos. 03-4179, 03-4189
Defendant / Cross - Appellant,

and

SPOROPTIC POUILLOUX, INC.,

Defendant - Appellee / Cross -
Appellant.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:97-CV-230-TS)

J. Mark Gibb, Durham Jones & Pinegar, P.C., Salt Lake City, Utah (Stephen
Marshall, Durham Jones & Pinegar, P.C., Salt Lake City, Utah, with him on the
briefs), for Plaintiff-Appellant/Cross-Appellee.

Gifford W. Price, Mackey Price Thompson & Ostler, Salt Lake City, Utah
(Gregory N. Jones, Mackey Price Thompson & Ostler, Salt Lake City, Utah, with
him on the briefs), for Defendant/Cross-Appellant and Defendant-Appellee/Cross-
Appellant.
Before EBEL, Circuit Judge, HENRY, Circuit Judge, and WHITE, District
Judge. *

EBEL, Circuit Judge.

This case arises from a contract dispute between Defendant Sporoptic

Pouilloux, S.A. (“Sporoptic”), 1 a French company, and Plaintiff Pro Axess, Inc.

(“Pro Axess”), a Utah corporation. The parties raise cross-appeals from a

judgment and an associated order entered following a jury trial. Sporoptic, which

was held liable for breach of contract, contests the district court’s exercise of

personal jurisdiction over it. Pro Axess, the prevailing party below, appeals the

district court’s denial of its post-trial motion for prejudgment interest. We

AFFIRM the district court’s judgment because we conclude that the court’s

exercise of personal jurisdiction over Sporoptic was proper. We also AFFIRM

the district court’s denial of Pro Axess’s motion for prejudgment interest.

*
Honorable Ronald A. White, District Court Judge, United States District
Court for the Eastern District of Oklahoma, sitting by designation.
1
Sporoptic refers to itself as both “Sporoptic Pouilloux, Inc.” and
“Sporoptic Pouilloux, S.A.” We refer to the company as “Sporoptic” to avoid
confusion.

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 BACKGROUND

Sporoptic distributes sunglasses. In the mid-1990s, Sporoptic decided to

launch a line of low-cost sunglasses in the United States. To minimize the cost of

manufacturing these sunglasses, Sporoptic sought to manufacture the frames for

the sunglasses in Asia.

Acting both directly and through its wholly-owned subsidiary, Orlux

Distribution, Inc. (“Orlux”)—a California corporation with responsibility for

distributing Sporoptic’s sunglasses in the United States—Sporoptic contacted Pro

Axess to make the arrangements necessary for such manufacturing. Sporoptic

lacked experience dealing with Asian manufacturers, while Pro Axess regularly

arranged for the manufacture of sunglasses frames in Asia on behalf of

distributors like Sporoptic. In fact, Pro Axess had previously arranged to supply

Asian-manufactured sunglasses frames to Sporoptic.

As part of this project, in 1995 Sporoptic contracted with Pro Axess to

arrange for the manufacture and delivery of 28,000 sunglasses frames. Sporoptic

later cancelled this order. The parties disagreed about whether the order was

cancelled in a timely fashion or whether the cancellation was a breach of contract.

In January 1997, Pro Axess filed suit against Sporoptic and Orlux in Utah

state court, alleging alternative claims based on breach of contract, promissory

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estoppel, and misuse of an open credit account. In March 1997, Sporoptic and

Orlux removed the case to federal court.

In its answer, Sporoptic disputed the district court’s ability to exercise

personal jurisdiction over it. The court noted this dispute in its pretrial order but

did not rule on the issue. Following a three-day trial in March 2002, a jury found

that Sporoptic had breached its contract with Pro Axess and awarded damages of

$156,264 to Pro Axess. The jury found that Orlux did not have a contract with

Pro Axess and thus had no liability in this case.

After trial, the parties litigated the issue of whether the district court could

exercise personal jurisdiction over Sporoptic. The court held that it could, and

thereafter entered judgment— erroneously—in favor of Pro Axess against both

Sporoptic and Orlux.

The parties filed motions to amend the judgment. In June 2003, the district

court denied Pro Axess’s motion for prejudgment interest, granted Pro Axess’s

motion for postjudgment interest, and granted Sporoptic and Orlux’s motion to

amend the judgment to reflect that it lay only against Sporoptic. The court

entered its judgment on July 31, 2003.

On July 18, 2003—before the district court entered judgment—Pro Axess

filed a notice of appeal. Sporoptic cross-appealed on August 1, 2003.

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 DISCUSSION

We exercise jurisdiction over these appeals pursuant to 28 U.S.C. § 1291. 2

I. Personal Jurisdiction

We review de novo the district court’s decision to exercise personal

jurisdiction over Sporoptic. See Fed. Deposit Ins. Corp. v. Oaklawn Apartments,

959 F.2d 170, 173 (10th Cir. 1992). Pro Axess has the burden of proving that the

court’s exercise of jurisdiction was proper, though it must do so only by a

preponderance of the evidence. See Karnes v. Boeing Co., 335 F.3d 1189, 1194

(10th Cir. 2003); Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292,

1295 (10th Cir. 1999) (examining the issue of personal jurisdiction over non-

resident defendants in federal court in Utah).

2
Although Pro Axess filed its notice of appeal before the district court
entered the final judgment in this case, Pro Axess’s appeal is timely under Fed. R.
App. P. 4(a)(4)(A)(iv), 4(a)(4)(B)(i), and 4(a)(1)(A). Sporoptic’s cross-appeal is
timely under Fed. R. App. P. 4(a)(3).
Sporoptic’s notice of appeal also names Orlux as an appellant. However,
Sporoptic’s first brief on appeal does not appear to raise an argument on behalf of
Orlux, as that brief merely challenges the district court’s exercise of personal
jurisdiction over Sporoptic and argues that Pro Axess is not entitled to
prejudgment interest on the judgment, which did not lie against Orlux. To the
extent that Sporoptic’s first brief does not raise an argument on behalf of Orlux,
any arguments that Orlux might have asserted in this appeal are waived. See
State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994). To
the extent that the arguments in Sporoptic’s first brief are raised on behalf of
Orlux, Orlux lacks standing to assert such arguments because it has not suffered
an injury in fact. See Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir.
2005). Thus, we must treat Sporoptic and Orlux’s cross-appeal as though
Sporoptic were the only party named in the notice of appeal.

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 “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.” Far West Capital, Inc. v. Towne, 46 F.3d

1071, 1074 (10th Cir. 1995). Because we agree with the parties that “general”

personal jurisdiction is not applicable in this case, we turn directly to the issue of

“specific” personal jurisdiction. “[T]he evaluation of specific jurisdiction in Utah

mandates a three-part inquiry: (1) the defendant’s acts or contacts must implicate

Utah under the Utah long-arm statute; (2) a ‘nexus’ must exist between the

plaintiff’s claims and the defendant’s acts or contacts; and (3) application of the

Utah long-arm statute must satisfy the requirements of federal due process.”

Soma Med. Int’l, 196 F.3d at 1297 (alteration in original) (quotations omitted);

see also Far West Capital, 46 F.3d at 1074. We address the requirements of

federal due process before turning to the other two parts of the inquiry, and we

hold that all the requirements are satisfied in this case.

A. Federal Due Process

“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.” Burger King Corp. v. Rudzewicz, 471

U.S. 462, 471-72 (1985) (quotations omitted). Thus, a “court may exercise

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personal jurisdiction over a nonresident defendant only so long as there exist

minimum contacts between the defendant and the forum State.” World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) (quotations omitted).

“The minimum contacts necessary for specific personal jurisdiction are

established 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.” Soma Med. Int’l, 196 F.3d at 1298 (quotations omitted).

Thus, an analysis of whether a court’s exercise of specific personal

jurisdiction comports with the Due Process Clause is a two-step inquiry. See

Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir. 2004), cert. denied, 125

S. Ct. 1826 (2005). First we consider whether “the defendant’s conduct and

connection with the forum State are such that he should reasonably anticipate

being haled into court there.” World-Wide Volkswagen, 444 U.S. at 297.

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.” OMI Holdings,

Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998)

(quotations omitted).

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 1. Minimum Contacts

In determining whether a defendant has established sufficient minimum

contacts with the forum state, we examine whether the defendant “purposefully

avail[ed] itself of the privilege of conducting activities within the forum State.”

Hanson v. Denckla, 357 U.S. 235, 253 (1958). A defendant’s contacts are

sufficient if “the defendant purposefully directed its activities at residents of the

forum, and . . . the plaintiff’s claim arises out of or results from actions by the

defendant himself that create a substantial connection with the forum state.” OMI,

149 F.3d at 1091 (quotations, citations, and emphasis omitted).

a. Purposeful Availment

The fact that Sporoptic made a contract with Pro Axess, which is located in

Utah, is not enough on its own to allow a Utah court to exercise jurisdiction over

Sporoptic. See Burger King, 471 U.S. at 478 (“If the question is whether an

individual’s contract with an out-of-state party alone can automatically establish

sufficient minimum contacts in the other party’s home forum . . . the answer

clearly is that it cannot.”) (emphasis in original). However, “with respect to

interstate contractual obligations, . . . parties who reach out beyond one state and

create continuing relationships and obligations with citizens of another state are

subject to regulation and sanctions in the other State for the consequences of their

activities.” Id. at 473 (quotations omitted).

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 In this case, Sporoptic solicited Pro Axess’s assistance in procuring

sunglasses frames. While not conclusive, this solicitation is itself “some evidence

suggesting purposeful availment.” Far West Capital, 46 F.3d at 1076. Sporoptic

specifically sought out Pro Axess because Pro Axess had long-standing business

relationships with many manufacturers in Asia. 3 While the manufacturing and

shipping of the product were not to take place in Utah, services necessary for the

contract were to be performed in Utah. See Benton, 375 F.3d at 1077. Such

services included choosing a manufacturer for the sunglasses frames, arranging

for rough handmade models to be made into machined prototypes, arranging the

details for the manufacture of the frames at a plant in China, arranging for the

inspection of the frames in Hong Kong, invoicing and coordinating the

manufacturing process, and arranging for the shipping of the frames from Hong

Kong to France. Although the agreement between the parties was a single

contract, fulfilling the contract required a continuing relationship based on the

provision of services. By procuring such services from Pro Axess, which operates

its business in Utah, Sporoptic “purposefully avail[ed] itself of the privilege of

conducting activities within the forum State.” Hanson, 357 U.S. at 253.

3
Sporoptic argues that because the relationship between Sporoptic and Pro
Axess evolved based on personal contacts between employees at Orlux and Pro
Axess, there is no evidence that Sporoptic solicited Pro Axess. It is nonetheless
clear that Sporoptic specifically solicited the contract at issue in this case.

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 In addition, Sporoptic and Orlux exchanged various direct communications

with Pro Axess. Although “phone calls and letters are not necessarily sufficient

in themselves to establish minimum contacts,” Far West Capital, 46 F.3d at 1077,

such materials provide additional evidence that Sporoptic pursued a continuing

business relationship with a Utah corporation. Sporoptic rightly points out that its

direct communications with Pro Axess in Utah were minimal. However, it is not

just Sporoptic’s direct communications with Pro Axess that are relevant, but also

Orlux’s communications with Pro Axess. Companies conducting business

through their subsidiaries can qualify as transacting business in a state, provided

the parent exercises sufficient control over the subsidiary. See Curtis Publ’g Co.

v. Cassel, 302 F.2d 132, 137 (10th Cir. 1962) (“[A] wholly owned subsidiary may

be an agent and when its activities as an agent are of such a character as to

amount to doing business of the parent, the parent is subjected to the in personam

jurisdiction of the state in which the activities occurred.”); Phone Directories Co.

v. Contel Corp., 786 F. Supp. 930, 943 (D. Utah 1992) (noting that a parent

company’s exertion of “significant influence” on a subsidiary suffices for a court

to exercise personal jurisdiction over parent). 4

4
Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n.13 (1984) (noting
that in an action where both a parent and a subsidiary are co-defendants, “[e]ach
defendant’s contacts with the forum state must be assessed individually”), is not
to the contrary. Keeton merely concludes that a court may not automatically
(continued...)

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 Sporoptic exercised considerable control over Orlux, which acted as its

agent. For example, Sporoptic’s president chose the president of Orlux.

Specifically relevant to the instant case, Sporoptic’s president approved the

concept of selling a line of low-cost sunglasses in the United States, then used

Orlux to implement the project. Orlux faxed Pro Axess a preliminary purchase

order for sunglasses frames, and Sporoptic followed up with a formal purchase

order confirming the details. Sporoptic relied on Orlux to cancel the order.

Given this relationship, we examine not only Sporoptic’s direct communications

with Pro Axess, but also Orlux’s communications with Pro Axess.

Sporoptic and Orlux exchanged numerous faxes, letters, and phone calls

with Pro Axess in Utah about the order itself and the potential for modifications

to the order. While the “quantum of contacts” between the parties is not

determinative of personal jurisdiction, Far West Capital, 46 F.3d at 1077, the

purposeful availment reflected in the content of these communications supports a

Utah court’s exercise of jurisdiction over Sporoptic. 5

4
(...continued)
exercise jurisdiction over a parent corporation if the court may exercise
jurisdiction over a subsidiary. See id.
5
Consistent with our established practice, we evaluate not just the quantity
of Sporoptic’s contacts with Utah, but also the quality of those contacts. See
OMI, 149 F.3d at 1092. The contacts that occurred while Pro Axess and
Sporoptic were building a business relationship, maintaining that relationship, and
attempting to salvage that relationship are more indicative of purposeful
(continued...)

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 b. Arising Out Of

It is clear that there is a nexus between Sporoptic’s contacts with Utah and

Pro Axess’s injuries, such that Pro Axess’s injuries “arise out of or relate to

[Sporoptic’s] activities.” Burger King, 471 U.S. at 472 (quotations omitted); see

also OMI, 149 F.3d at 1095. Pro Axess’s breach of contract claims arose from

Sporoptic’s solicitation of Pro Axess, development of a business agreement with

Pro Axess, and subsequent communications with Pro Axess. Those same

interactions also constitute Sporoptic’s contacts with Utah. Thus, Pro Axess’s

claims arise out of Sporoptic’s contacts with Utah.

Sporoptic argues that Pro Axess’s presence in Utah is a coincidence that is

inadequate to allow a Utah court to exercise specific personal jurisdiction over

Sporoptic. However, this is not a case where “[t]he quality and nature” of

Sporoptic’s contact with Utah was “so random, fortuitous, or attenuated that it

cannot fairly be said that [Sporoptic] should reasonably anticipate being haled

into court” in Utah. Burger King, 471 U.S. at 486 (quotations and footnote

5
(...continued)
availment than are the contacts that occurred as the parties traded recriminations
in advance of this lawsuit. Thus, we give less weight to the latter type of contacts
in this case—most notably Sporoptic’s fax to Pro Axess in response to Pro
Axess’s threat of litigation if payment were not received. Affording less weight
to this latter type of contacts ensures that parties will not avoid attempting to
resolve their disputes informally, for fear that the flow of communications as part
of such efforts will subject them to jurisdiction in a foreign forum where they
could not otherwise be haled into court.

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omitted). After all, this is not a case in which the defendant’s only contacts with

the forum resulted from the “unilateral activity of another party or a third person.”

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984).

Thus, Sporoptic’s reliance on Soma Med. Int’l and Lakeside Bridge & Steel Co.

v. Mountain State Constr. Co., 597 F.2d 596 (7th Cir. 1979), is misplaced. See

Soma Med. Int’l, 196 F.3d at 1299 (involving a plaintiff going outside its home

state to initiate contact with the defendant); Lakeside Bridge & Steel Co., 597

F.2d at 598, 603 (same). Rather, Sporoptic voluntarily sought out and conducted

business with Pro Axess, with whom Sporoptic had contracted before and whom

Sporoptic therefore knew to be located in Utah. 6

Although this is a somewhat close case, we believe that Sporoptic

“purposefully directed [its] activities at residents of the forum, and the litigation

result[ed] from alleged injuries that ar[o]se out of or relate to those activities.”

Burger King, 471 U.S. at 472 (quotations and citation omitted). As a result,

Sporoptic’s “conduct and connection with the forum State [were] such that [it]

should reasonably anticipate being haled into court there.” World-Wide

6
Sporoptic’s effort to pin down the place of contract formation is
unpersuasive. After all, it is the full scope of a defendant’s behavior, not simply
the place of contract formation, that determines whether a court may exercise
specific personal jurisdiction over a non-resident defendant in a breach of
contract action. See Burger King, 471 U.S. at 478-79.

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Volkswagen, 444 U.S. at 297. Thus, we hold that Sporoptic had sufficient

minimum contacts with Utah to support a Utah court’s exercise of personal

jurisdiction over Sporoptic.

2. Traditional Notions of Fair Play and Substantial Justice

In analyzing whether a court’s exercise of personal jurisdiction offends

“traditional notions of fair play and substantial justice,” Asahi Metal Indus. Co. v.

Superior Court, 480 U.S. 102, 113 (1987), we determine “whether a district

court’s exercise of personal jurisdiction over a defendant with minimum contacts

is reasonable in light of the circumstances surrounding the case.” OMI, 149 F.3d

at 1091 (quotations omitted). We do so by considering:

(1) the burden on the defendant, (2) the forum state’s interest in
resolving the dispute, (3) the plaintiff’s interest in receiving
convenient and effective relief, (4) the interstate judicial system’s
interest in obtaining the most efficient resolution of controversies,
and (5) the shared interest of the several states in furthering
fundamental social policies.

Id. at 1095. The analyses of minimum contacts and reasonableness are

complementary, such that

the reasonableness prong of the due process inquiry evokes a sliding
scale: the weaker the plaintiff’s showing on [minimum contacts], the
less a defendant need show in terms of unreasonableness to defeat
jurisdiction. The reverse is equally true: an especially strong
showing of reasonableness may serve to fortify a borderline showing
of [minimum contacts].

Id. at 1092 (alterations in original) (quotations omitted).

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 In this case, we have determined that Sporoptic “purposefully . . . directed

[its] activities” at Utah. Burger King, 471 U.S. at 477. In such a case, “where a

defendant . . . seeks to defeat jurisdiction, [it] must present a compelling case that

the presence of some other considerations would render jurisdiction

unreasonable.” Id. Sporoptic cannot meet this exacting standard.

a. Burden on Defendant of Litigating in the Forum

“[T]he burden on the defendant of litigating the case in a foreign forum is

of primary concern in determining the reasonableness of personal jurisdiction. . . .

When the defendant is from another country, this concern is heightened and great

care and reserve should be exercised before personal jurisdiction is exercised over

the defendant.” OMI, 149 F.3d at 1096 (quotations omitted). However, “modern

transportation and communication have made it much less burdensome for a party

sued to defend himself in a State where he engages in economic activity.” Burger

King, 471 U.S. at 474 (quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223

(1957)).

In this case, Sporoptic’s headquarters in France is a substantial distance

from Utah, but Sporoptic’s president has demonstrated his ability to journey to the

United States for the company’s business dealings by meeting with Pro Axess in

New York. Moreover, Sporoptic owns a subsidiary in California. Thus,

Sporoptic’s employees and its agents travel to and operate in the United States to

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conduct economic activity, minimizing concerns about the burden that litigating

in Utah might place on them. Moreover, any fears that Sporoptic might not be

able to obtain a fair trial because of language issues are misplaced, for the record

reveals that Sporoptic’s employees and agents regularly and adequately conduct

business in English. Accordingly, forcing Sporoptic to litigate this dispute in

Utah is not “gravely difficult and inconvenient.” Burger King, 471 U.S. at 478.

b. Forum State’s Interest in Adjudicating the Dispute

“States have an important interest in providing a forum in which their

residents can seek redress for injuries caused by out-of-state actors.” OMI, 149

F.3d at 1096. “The state’s interest is also implicated where resolution of the

dispute requires a general application of the forum state's laws.” Id. In this case,

this factor favors Utah’s exercise of jurisdiction over Sporoptic. Pro Axess is a

Utah corporation with its principal place of business in Utah, and the state has an

interest in providing it with a forum for its suit against Sporoptic. 7

c. Plaintiff’s Interest in Convenient and Effective
Relief

This factor

hinges on whether the Plaintiff may receive convenient and effective
relief in another forum. This factor may weigh heavily in cases where

Utah’s interest in providing a forum for its citizens distinguishes this case
7

from OMI and Asahi, where none of the parties were residents of the forum state.
See Asahi, 480 U.S. at 114 (plurality opinion); OMI, 149 F.3d at 1096.

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 a Plaintiff’s chances of recovery will be greatly diminished by
forcing him to litigate in another forum because of that forum’s laws
or because the burden may be so overwhelming as to practically
foreclose pursuit of the lawsuit.

Id. at 1097. Because common law governs this suit, litigating the case in France, a

civil law country, would be difficult. Moreover, Pro Axess’s management would

face the hardship of traveling to France and conducting litigation in a language

with which it is not readily apparent that they are familiar. We find that Pro

Axess would not be able to receive convenient and effective relief by bringing

suit in France, thus this factor weighs in favor of Utah’s exercise of jurisdiction.

d. Interstate Judicial System’s Interest in Obtaining
Efficient Resolution

This factor asks “whether the forum state is the most efficient place to

litigate the dispute.” Id. “Key [sic] to this inquiry are the location of witnesses,

where the wrong underlying the lawsuit occurred, what forum’s substantive law

governs the case, and whether jurisdiction is necessary to prevent piecemeal

litigation.” Id. (citations omitted). Based on the nature of Pro Axess’s claims

against Sporoptic, and the fact that Sporoptic operated through Orlux, many of the

witnesses in the dispute are based in the United States. Likewise, common law,

not civil law, governed the dispute. Therefore, we find that litigating the dispute

in Utah would be more efficient than doing so in France.

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 e. States’ Interest in Furthering Fundamental
Substantive Social Policies

The fifth factor of the reasonableness inquiry “focuses on whether the

exercise of personal jurisdiction by [the forum] affects the substantive social

policy interests of other states or foreign nations.” Id. “[G]reat care and reserve

should be exercised when extending our notions of personal jurisdiction into the

international field.” Id. at 1097-98. Therefore, we must look closely at the extent

to which an exercise of personal jurisdiction by Utah over Sporoptic interferes

with France’s sovereignty. Relevant facts include “whether one of the parties is a

citizen of the foreign nation, whether the foreign nation’s law governs the

dispute, and whether the foreign nation’s citizen chose to conduct business with a

forum resident.” Id. at 1098 (citations omitted). Sporoptic is a French company.

However, this dispute is not governed by French law, and Sporoptic chose to

conduct business with Pro Axess, a resident of Utah. Therefore, we find that an

exercise of personal jurisdiction would not affect France’s policy interests.

In sum, these five factors do not weigh in Sporoptic’s favor. Sporoptic

certainly cannot establish a “compelling case” that the exercise of jurisdiction by

a Utah court would be unreasonable. Burger King, 471 U.S. at 477. Thus, we

hold that Utah’s exercise of personal jurisdiction over Sporoptic would not offend

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traditional notions of fair play and substantial justice. 8 Therefore, the district

court’s exercise of personal jurisdiction over Sporoptic satisfies both prongs of

the federal due process analysis.

B. Nexus

As noted in Soma Med. Int’l, Utah law on specific personal jurisdiction

mandates that a nexus exist between Pro Axess’s claims and Sporoptic’s contacts

with Utah. 196 F.3d at 1297. This is analogous to part of the minimum contacts

due process analysis above. See OMI, 149 F.3d at 1095. Because we found that

Sporoptic’s contacts with Utah fulfilled the requirements of the minimum contacts

due process analysis, we also conclude that the required nexus exists under state

law.

C. Utah Long-Arm Statute

The Utah Supreme Court has stated that “any set of circumstances that

satisfies due process will also satisfy the long-arm statute.” SII MegaDiamond,

Inc. v. Am. Superabrasives Corp., 969 P.2d 430, 433 (Utah 1998). This is

because the Utah legislature has declared that the long-arm statute must be

8
Because this suit is not governed by French law, many of the witnesses in
this case are located in the United States, and proceedings in the alternative forum
in France would not be conducted in English, this case is distinguishable from
Benton, 375 F.3d at 1079-80 (ruling that a Colorado court could not exercise
personal jurisdiction over Canadian defendant where the suit was governed by
Canadian law, many witnesses were located in Canada, and proceedings in
Canada would be conducted in English-speaking province).

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interpreted broadly “so as to assert jurisdiction over nonresident defendants to the

fullest extent permitted by the due process clause of the Fourteenth Amendment

to the United States Constitution.” Utah Code Ann. § 78-27-22. Thus, because

the court’s exercise of jurisdiction over Sporoptic in this case satisfies due

process, that exercise also satisfies the Utah long-arm statute.

Accordingly, we conclude that both the federal and state inquiries for

whether assertion of specific personal jurisdiction is proper are satisfied on the

facts of this case, and therefore that the district court did not err in exercising

jurisdiction over Sporoptic. 9

II. Prejudgment Interest

We examine the district court’s decision not to award prejudgment interest

to Pro Axess for an abuse of discretion, reviewing de novo the legal analysis on

which that decision is based. See Atlantic Richfield Co. v. Farm Credit Bank of

Wichita, 226 F.3d 1138, 1156 (10th Cir. 2000). We apply Utah law in conducting

this analysis. See Webco Indus., Inc. v. Thermatool Corp., 278 F.3d 1120, 1134

(10th Cir. 2002) (“Prejudgment interest in a diversity action is . . . a substantive

matter governed by state law.”). We hold that the district court did not err in

9
Contrary to Sporoptic’s assertions, the fact that Pro Axess threatened to
bring litigation in France is irrelevant to whether personal jurisdiction exists in
Utah. Jurisdiction involves a court’s ability to preside over a lawsuit—not a
party’s public posturing early on in a dispute.

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denying Pro Axess’s post-trial motion for prejudgment interest because Pro

Axess’s damages were not calculable with the mathematical certainty necessary to

support such an award and were not established as of a particular date.

A. Calculability of Damages

Under Utah law, “[a] prejudgment interest award is proper when the

damage is complete . . . [and] the loss can be measured by facts and figures.”

Lefavi v. Bertoch, 994 P.2d 817, 823 (Utah Ct. App. 2000) (quotations omitted).

“[A] court may only award prejudgment interest if damages are calculable within

a mathematical certainty.” Id.

In this case, Pro Axess itself was not able to calculate its damages

consistently during the period before trial, making clear that such damages were

not “calculable within a mathematical certainty.” In its January 1997 complaint,

Pro Axess claimed damages of $342,000 plus prejudgment interest. 10 In its Rule

26(a) disclosures two years later, Pro Axess stated that its damages had not been

determined. In a July 1999 response to an interrogatory, Pro Axess claimed

10
This figure seems to have included $60,300 for parts already purchased
plus other unspecified damages.

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damages of $239,950 plus prejudgment interest. 11 In an October 2000 affidavit

and in the May 2001 Pretrial Order, Pro Axess claimed damages of $309,603. 12

The evolution of the amount of Pro Axess’s damages claim during trial also

underscores the fact that those damages were not “calculable within a

mathematical certainty.” Pro Axess decreased its claim for unrealized gross

profits from $119,700 to $98,700 because it had overstated the lost revenue on

which those profits were based by $60,000. Pro Axess also decreased its claim

for the cost of parts already purchased from $60,390 to $57,564 because it had

mistakenly included the cost of parts from another order. Thus, at trial Pro

Axess’s total claim for damages decreased by $13,826, plus the associated

difference in interest.

Further, Pro Axess’s damages for unrealized gross profits simply were not

“calculable within a mathematical certainty” based on the evidence that Pro Axess

submitted to the district court. Pro Axess submitted virtually no evidence in

support of its claim of a 35% gross profit margin. Especially given Utah courts’

11
This figure included $60,390 for parts already purchased, $17,950 in
interest on those parts (at 10% for 36 months), $119,700 in unrealized gross
profits (at a 35% profit margin), $35,910 in interest on unrealized profits (at 10%
for 36 months), $5,000 in travel expenses, and $500-$1,000 for out of pocket
expenses.
12
This figure included $60,390 for parts already purchased, $40,076 in
interest on those parts (at 10% for 62 months, 10 days), $119,700 in unrealized
gross profits (at a 35% profit margin), $79,437 in interest on unrealized profits (at
10% for 62 months, 10 days), and $10,000 in travel expenses and other costs.

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reluctance to award prejudgment interest for unrealized profits, see Canyon

Country Store v. Bracey, 781 P.2d 414, 422 (Utah 1989) (“While the basis of the

‘formula’ used to determine Canyon Country’s lost profits may have been

sufficient for the jury to render a verdict in favor of Canyon Country, it is too

speculative to allow for the addition of prejudgment interest.”), Pro Axess’s

evidence of its gross profit margin is clearly inadequate to support the award of

prejudgment interest.

Similarly, Pro Axess failed to provide any written support for its claimed

travel costs and other expenses. One of Pro Axess’s employees noted that in

calculating these expenses “we didn’t get down to specifics” but instead “looked

at the trips that we had taken, some of the other out-of-pocket costs, and came up

with a round figure.” Such an effort clearly does not establish damages

“calculable within a mathematical certainty.”

Pro Axess argues that the variance over time in the amount of damages that

it sought came as a result of a mistake in calculation, and that such a mistake

should not defeat its claim for prejudgment interest. In support of this contention,

Pro Axess relies on Lefavi’s finding that a defendant’s failure to keep proper

records should not bar an award of prejudgment interest. See Lefavi, 994 P.2d at

823. However, in this case it is the inability of Plaintiff—not Defendants—to

keep proper records that impedes Plaintiff’s attempt to establish damages

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“calculable within a mathematical certainty.” It is well-established under Utah

law that a plaintiff’s inability to calculate its damages accurately may bar the

award of prejudgment interest. See Anesthesiologists Assoc., 852 P.2d at 1042

n.11 (“Although arriving at this figure should only have been a matter of adding

up the number of late-night visits made by nurse anesthetists over the contract

period, it would be unfair to charge prejudgment interest against the [defendant]

when [the plaintiff], due to inadequate records or otherwise, apparently could not

arrive at a mathematically precise figure at the time it filed its Amended

Complaint.”). Thus, Pro Axess’s reliance on Lefavi is misplaced.

Finally, the fact that a jury has already awarded damages in this case does

not mean that damages were “calculable within a mathematical certainty.”

Because it is “axiomatic that all claims can be reduced eventually to monetary

value,” “[c]ommon sense” precludes the conclusion that merely because damages

have been calculated by a jury, they are “calculable within a mathematical

certainty.” Canyon Country Store, 781 P.2d at 422.

Thus, Pro Axess is not entitled to prejudgment interest because its damages

were not “calculable within a mathematical certainty.”

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 B. Date from which Interest Would Run

For a prejudgment interest award to be proper under Utah law, not only

must damages be “calculable within a mathematical certainty,” but also “the

amount of loss [must be] fixed as of a particular time.” Lefavi, 994 P.2d at 823;

see also Cornia v. Wilcox, 898 P.2d 1379, 1387 (Utah 1995) (“Where the damage

is complete and the amount of the loss is [measurably] fixed as of a particular

time . . . interest should be allowed from that time . . . .”) (emphasis added,

quotations omitted).

In this case, because Pro Axess never established the date on which it

suffered damages—the date from which prejudgment interest should run—an

award of prejudgment interest is not proper. In the above-mentioned October

2000 affidavit and May 2001 Pretrial Order, Pro Axess asserted that prejudgment

interest should be calculated from July 31, 1995, which was the initial shipping

date for the sunglasses frames. At trial, Pro Axess asserted that the July 31

shipping date had been canceled by mutual agreement and that as late as spring

1996 there was still no agreement as to the shipping date. Thus, Pro Axess’s

position at trial implies that it did not sustain damages on July 31, 1995. Because

there was no special verdict form requesting that the jury set a date for the

beginning of the running of prejudgment interest, the jury did not make a finding

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as to that issue. 13 Pro Axess’s post-trial motion for prejudgment interest asserted

that June 1, 1995 was the date from which prejudgment interest should run.

Therefore, it is unclear whether interest should be calculated from June 1, 1995,

as Pro Axess now maintains; July 31, 1995, as Pro Axess earlier maintained; or

some other date entirely, as is implied by Pro Axess’s earlier assertion that the

order had been delayed from July 31, 1995 by mutual agreement of the parties.

This uncertainty renders the award of prejudgment interest improper under Utah

law.

For all these reasons, the district court did not err in declining to award

prejudgment interest to Pro Axess.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment and

the district court’s denial of Pro Axess’s request for prejudgment interest.

Pro Axess did not object to the lack of jury instructions or a special
13

verdict form on this issue.

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