                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      November 29, 2012

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
GREG SHRADER,

             Plaintiff-Appellant,

v.                                                          No. 12-1109
                                               (D.C. No. 1:10-CV-01881-REB-MJW)
EARIK BEANN; WAVE 59                                         (D. Colo.)
TECHNOLOGIES INT’L INC., owners
and officers; WILLIAM BRADSTREET
STEWART; INSTITUTE OF
COSMOLOGICAL ECONOMICS;
SACRED SCIENCE INSTITUTE;
DR. ALAN BIDDINGER,

             Defendants-Appellees.


                             ORDER AND JUDGMENT*


Before KELLY, O’BRIEN, and MATHESON, Circuit Judges.


      Plaintiff-Appellant Greg Shrader appeals from the district court’s order

dismissing his claims of defamation, false-light invasion of privacy, intentional

infliction of emotional distress, and civil conspiracy for lack of personal jurisdiction

*
      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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and failure to state a claim, and awarding attorney fees. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

                                  BACKGROUND

      This is not the first time we have encountered Mr. Shrader’s claims against

these same defendants. Defendants can be organized into three groups: (1) the

Stewart Defendants (William Bradstreet Stewart and his companies Sacred Science

Institute and Institute of Cosmological Economics, Inc.); (2) the Beann Defendants

(Earik Beann and his company Wave 59 Technologies International (Wave59)); and

(3) Dr. Alan Biddinger. Mr. Shrader first filed his complaint in the United States

District Court for the Eastern District of Oklahoma, which dismissed it for lack of

personal jurisdiction. We affirmed that judgment on appeal. See Shrader v.

Biddinger, 633 F.3d 1235 (10th Cir. 2011) (Shrader I).

      We summarized the background of this case in Shrader I:

      Mr. Shrader lives and works in Oklahoma, where he produces books and
      courses for market traders. Mr. Stewart partnered with him for a time,
      editing, publishing, and selling Mr. Shrader’s materials through his
      internet-based companies. The two ceased doing business together after
      Mr. Stewart voiced concerns over the usefulness and originality of Mr.
      Shrader’s most recent work. All of Mr. Shrader’s tort claims derive
      from an email drafted by Mr. Stewart briefly explaining why the two
      parted ways. Mr. Shrader alleges that the email was defamatory and
      was intended to ruin his professional reputation. Mr. Stewart sent the
      email to a list of his customers. Mr. Biddinger then expanded its
      audience by posting it to a traders’ forum on the Wave59 web site in
      response to an inquiry about Mr. Shrader’s materials. Finally, the email
      remained accessible on the forum for some time as a result of the Beann
      defendants’ failure to promptly remove it.



                                         -2-
Id. at 1237-38. Mr. Shrader has since moved and is currently a resident of Missouri.

The Stewart Defendants are residents of California and Nevada; the Beann

Defendants are residents of Colorado; Dr. Biddinger is a resident of Michigan.

      While Shrader I was pending, Mr. Shrader filed the instant, identical

complaint in the United States District Court for the District of Colorado. Dr.

Biddinger filed a motion to dismiss, which was denied without prejudice because of

the pending appeal. The other parties filed a motion to stay, which was also denied,

but the district court gave them leave to file a motion for administrative closure.

Before the district court ruled on that motion, this court entered judgment in Shrader

I. At that point, the magistrate judge recommended, and the district court agreed, to

dismiss the claims against Dr. Biddinger for lack of personal jurisdiction. The Beann

Defendants filed a motion to dismiss claiming that the complaint was barred by the

Communications Decency Act, 47 U.S.C. § 230 (CDA). The Stewart Defendants

filed a motion to dismiss for lack of personal jurisdiction. The magistrate judge

recommended dismissal of all of Mr. Shrader’s claims.

      After conducting a de novo review, the district court adopted the magistrate

judge’s recommendations to dismiss the claims against the Beann Defendants

pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim1 and to dismiss the

claims against the Stewart Defendants pursuant to Fed. R. Civ. P. 12(b)(2) without


1
    The district court dismissed Mr. Shrader’s conspiracy claims against the Beann
Defendants without prejudice but dismissed the remaining claims with prejudice.


                                          -3-
prejudice for lack of personal jurisdiction. The district court also entered judgment

for Dr. Biddinger in accordance with the earlier ruling dismissing him from the case,

without prejudice, for lack of personal jurisdiction. The district court awarded

Defendants attorney fees pursuant to Colo. Rev. Stat. § 13-17-201, provided that they

file a timely motion setting forth their time spent and reasonable hourly fees. The

district court denied Mr. Shrader’s motion for reconsideration and entered a Rule 58

final judgment on March 26, 2012. Mr. Shrader appeals.

                                       DISCUSSION

I.    Personal Jurisdiction

      “When, as here, personal jurisdiction is found wanting on the basis of the

complaint and affidavits, our review of the district court’s dismissal is de novo.”

Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir.

2008). We resolve any factual disputes in the plaintiff’s favor. Id.

      We agree with the district court’s order dismissing Dr. Biddinger and the

Stewart Defendants for lack of personal jurisdiction. As we stated in Shrader I, “to

exercise jurisdiction in harmony with due process, defendants must have minimum

contacts with the forum state, such that having to defend a lawsuit there would not

offend traditional notions of fair play and substantial justice.” Shrader, 633 F.3d at

1239 (internal quotation marks and brackets omitted).

      Dr. Biddinger is a resident of Michigan, and the content and audience of the

email he posted was not targeted at the state of Colorado. Further, Mr. Stewart, a


                                          -4-
California resident, sent an email to Dr. Biddinger concerning Mr. Shrader’s work,

which is marketed and sold worldwide, with no particular emphasis on Colorado. As

we stated in Shrader I, “it bears emphasizing that general jurisdiction over a web site

that has no intrinsic connection with a forum state requires commercial activity

carried on with forum residents in such a sustained manner that it is tantamount to

actual physical presence within the state.” Id. at 1246. Mr. Shrader has failed to

make such a showing. Our personal jurisdiction analysis in Shrader I also applies to

this case, and we will not repeat ourselves here. See id. at 1239 - 48.

II.      Fed. R. Civ. P. 12(b)(6) – Failure to State a Claim

         We review a Rule 12(b)(6) dismissal de novo, accepting as true all well-

pleaded factual allegations in the complaint and viewing them in the light most

favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.

2009).

         As a preliminary matter, we agree with the district court that the Beann

Defendants did not waive their defenses by failing to include them in their motion for

stay of proceedings, which sought a stay of this case while Shrader I was on appeal.

When that motion was denied, Defendants brought a motion seeking administrative

closure. Neither motion was brought under Rule 12, and therefore Rules 12(g)(2)

and 12(h)(1) are inapplicable. See Fed. R. Civ. P. 12.

         The district court held that the CDA bars Mr. Shrader’s claims against the

Beann Defendants. “[Section] 230 creates a federal immunity to any state law cause


                                           -5-
of action that would hold computer service providers liable for information

originating with a third party.” Ben Ezra, Weinstein & Co. v. Am. Online Inc.,

206 F.3d 980, 984-85 (10th Cir. 2000). “The prototypical service qualifying for this

statutory immunity is an online messaging board (or bulletin board) on which

Internet subscribers post comments and respond to comments posted by others.”

FTC v. Accusearch Inc., 570 F.3d 1187, 1195 (10th Cir. 2009). This case deals with

just such an online messaging board. We agree with the magistrate judge’s well-

reasoned recommendation that the CDA bars Mr. Shrader’s claims against the Beann

Defendants, and have nothing to add.

      We also agree with the district court that Colorado law applies to

Mr. Shrader’s defamation, false light, and intentional infliction of emotional distress

claims. Under Colorado law, there is no cause of action for false light invasion of

privacy, see Denver Publ’g Co. v. Bueno, 54 P.3d 893, 894 (Colo. 2002), and the

district court properly dismissed that claim. Further, the Internet postings did not

contain actionable statements of fact and did not constitute extreme and outrageous

behavior. See Sky Fun 1 v. Schuttloffel, 27 P.3d 361, 368 (Colo. 2001) (opinionative

statements are not factual or actionable); Smith v. Colo. Interstate Gas Co., 794 F.

Supp. 1035, 1042 (D. Colo. 1992) (to support claim of intentional infliction of

emotional distress, conduct must be “so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency” (internal quotation marks




                                          -6-
omitted)). Finally, we agree with the district court that Mr. Shrader has failed to state

a plausible claim of conspiracy or a meeting of the minds among Defendants.

III.   Attorney Fees

       We review “a district court’s award of attorney fees . . . subject to an abuse of

discretion standard, but any legal conclusions that provide a basis for the award are

reviewable de novo.” Tulsa Litho Co. v. Tile & Decorative Surfaces Magazine

Publ’g, Inc., 69 F.3d 1041, 1043 (10th Cir. 1995). Under Colorado law, a Colorado

court must award a defendant in a tort action who prevails on a Rule 12(b) motion

reasonable attorney fees in defending that action. Jones v. Denver Post Corp.,

203 F.3d 748, 757 (10th Cir. 2000); see also Colo. Rev. Stat. § 13-17-201. The

statute also applies to a dismissal under Fed. R. Civ. P. 12(b) of a tort claim brought

under Colorado law. See Brammer-Hoelter v. Twin Peaks Charter Acad.,

81 F. Supp. 2d 1090, 1102 (D. Colo. 2000). The district court dismissed Defendants

pursuant to Rule 12(b), and its application of Colo. Rev. Stat. § 13-17-201 was

proper.

       We also hold that the district court did not abuse its discretion in the amount of

attorney fees awarded. The district court carefully reviewed Defendants’ affidavits

and time records in support of their fee requests pursuant to the relevant factors set

forth in Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), overruled on other grounds

by Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 725




                                          -7-
(1987). The district court meticulously determined the number of hours spent and the

reasonable hourly rate of compensation. The fee awards were therefore reasonable.

                                     CONCLUSION

      We AFFIRM the judgment of the district court as well as its award of attorney

fees. We DENY Mr. Shrader’s motion to proceed in forma pauperis and direct him

to pay the court fees due immediately.

                                               Entered for the Court


                                               Paul J. Kelly, Jr.
                                               Circuit Judge




                                         -8-
