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

                             FOR THE TENTH CIRCUIT                          January 6, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 GAS SENSING TECHNOLOGY CORP.,
 a Wyoming company,

       Plaintiff - Appellant,

 v.                                                         No. 18-8089
                                                   (D.C. No. 2:18-CV-00095-NDF)
 SIMON ASHTON; KINABALU                                       (D. Wyo.)
 AUSTRALIA PTY LTD, as Trustee for
 KINABALU AUSTRALIA TRUST;
 PROX PTY LTD; GRAEME
 LINKLATER; LINKLATER FAMILY
 TRUST; QUENTIN MORGAN; JOHN
 DUGALD MACTAGGART; BRISBANE
 ANGELS GROUP LTD.; JONTRA
 HOLDINGS PTY LTD.; ASSOCIATED
 CONSTRUCTION EQUIPMENT PTY
 LTD; EWAN MELDRUM; and JOHN
 DOES 1-20,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, EBEL, and O’BRIEN, Circuit Judges.
                   _________________________________

      Plaintiff-Appellant Gas Sensing Technology Corp. (GSTC) is an

energy-focused technical services company based in Wyoming and having done



      *
         This order and judgment is not binding precedent, except under the doctrines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.
business in Australia through its Australian subsidiary, WellDog Pty Ltd (WellDog).

This appeal involves the second federal court action involving GSTC’s claims against

the above-named Australian defendants who provided financing to or were employed

by GSTC or WellDog. Both suits alleged that the defendants improperly attempted

to take over ownership and control of WellDog and to misappropriate GSTC’s

intellectual property, trade secrets, and business opportunities. The district court

dismissed the first action, concluding that several defendants were not subject to

personal jurisdiction in Wyoming, that the claims against other defendants were more

properly heard in Australia, and that some claims failed to state a claim because

GSTC relied on group pleading, making it impossible to determine the specific

allegations against each defendant. Gas Sensing Tech. Corp. v. Ashton, No. 16-CV-

272-F, 2017 WL 2955353, at *6, *9, *11–14, *17 (D. Wyo. June 12, 2017) (Ashton

I). No appeal was taken from the decision, but about a year later, GSTC initiated

what eventually became the second federal action by refiling its claims in Wyoming

state court. After defendants removed the case to federal court, the district court

denied GSTC’s motion to remand and granted the defendants’ motion to dismiss the

amended complaint on issue preclusion, forum non conveniens, and jurisdictional

grounds. Gas Sensing Tech. Corp. v. Ashton, 353 F. Supp. 3d 1192, 1202–03, 1205,

1207, 1210–11 (D. Wyo. 2018) (Ashton II). Because GSTC did not appeal Ashton I,

we review only the district court’s order in Ashton II, and we affirm.1


      1
          Our jurisdiction derives from 28 U.S.C. § 1291.

                                           2
                                  BACKGROUND

      The complex factual and procedural background of this case is summarized in

detail in Ashton I and II, and we need not repeat it here. Instead, we provide only

enough background to identify the parties and provide necessary context for our

consideration of GSTC’s claims on appeal.

      GSTC formed WellDog in an effort to expand its energy services throughout

Australia. To finance that effort and expand WellDog, GSTC sought private venture

equity and debt from experts in the energy industry, including ProX Pty Ltd (ProX),

an Australian entity controlled by Australian Simon Ashton. Between 2011 and

2014, ProX made loans to WellDog secured by promissory notes (the ProX Notes).

Two other Ashton-controlled entities, Kinabalu Australia Pty Ltd, as Trustee for the

Kinabalu Australia Trust (collectively Kinabalu), invested significant private venture

equity in WellDog by purchasing shares of GSTC stock. In addition, two entities

controlled by John Dugald Mactaggart—Jontra Holdings Pty Ltd (Jontra) and

Associated Construction Equipment Pty Ltd (ACE)—lent money to WellDog. After

those loans were transferred to and assumed by GSTC, GSTC issued promissory

notes (Finance Notes) to Jontra and ACE. The Linklater Family Property Trust

(Linklater Trust), Graeme Michael Linklater (Linklater), and non-party Meldrum

Family Trust (Meldrum Trust) also provided private venture equity and debt to GSTC

in exchange for GSTC Finance Notes, as did non-party Brisbane Angels Nominees

Pty Ltd (BAN), an entity controlled by Mactaggart and related to defendant Brisbane

Angels Group Ltd (BAG).

                                           3
      As a result of Kinabalu’s equity investment in GSTC, Ashton was appointed as

GSTC’s director, and at his request Quentin Morgan was hired as its Chief

Technology Officer. GSTC alleged that the Ashton and Mactaggart-controlled

defendants conspired to take control of GSTC. It maintained that Ashton and

Morgan improperly used their executive level positions to facilitate the takeover

effort. GSTC also alleged that Linklater, who was an employee of GSTC and

WellDog’s Chief Financial Officer, used confidential financial and company

information he acquired while working there to direct and assist the takeover effort.

GSTC claimed Mactaggart, who briefly served as a director of WellDog, and another

WellDog employee, Ewan Meldrum, also participated in the takeover plan.

      In 2016, GSTC and WellDog encountered financial problems with creditors

and suppliers. WellDog defaulted on the ProX Notes and GSTC defaulted on all the

Finance Notes. Later that year, GSTC, WellDog, and GSTC’s majority shareholder,

The Blue Sky Group (Blue Sky) filed a tort action in Western Australia against

Ashton, ProX, Kinabalu and others (the Australia Action) alleging that the defendants

were improperly attempting to wrest control of WellDog from GSTC. One week

later, GSTC and Blue Sky filed the complaint and later an amended complaint in

Ashton I. The Ashton I defendants included Ashton, ProX, Kinabalu, Linklater, the

Linklater Trust, Jontra, ACE, BAG, Morgan, Mactaggart, and Meldrum. The claims

asserted in the Australia Action and Ashton I were similar and based on the same

factual allegations.



                                           4
      The Ashton I defendants moved to dismiss GSTC’s complaint on multiple

grounds. While those motions were pending, WellDog’s financial problems in

Australia continued to mount and in mid-2017 its creditors resolved to wind up the

company and liquidators were appointed as to WellDog in Australia. In addition,

Jontra, ACE, and BAN filed suit against GSTC in Wyoming state court seeking to

recover payment on the defaulted Finance Notes they held (the Jontra Collection

Action). And the Linklater Trust, the Meldrum Trust, and several other creditors

filed an action against GSTC in Wyoming state court in early 2018 to collect on their

respective Finance Notes, which by that time had matured and gone into default (the

Linklater Collection Action, and together with the Jontra Collection Action, the

Wyoming Collection Actions).

      In June 2017, the district court dismissed the Ashton I complaint in its entirety.

It dismissed the claims against ProX, Mactaggart, and Meldrum for lack of personal

jurisdiction, concluding that they lacked sufficient minimum contacts with the forum

state (Wyoming). Ashton I, 2017 WL 2955353, at *6, *9–11. In so concluding, the

court rejected GSTC’s jurisdictional arguments based on corporate alter ego,

surrogacy, and conspiracy theories, and denied its motion for jurisdictional

discovery. Id. It dismissed the claims against Linklater, the Linklater Trust,

Kinabalu, BAG, Jontra, and ACE, because GSTC’s use of group pleading did not

provide them with adequate notice of the specific claims against each of them and

therefore did not meet the notice requirements of Fed. R. Civ. P. 8 or plead a

plausible claim for relief under Fed. R. Civ. P. 12(b)(6). Ashton I, 2017 WL

                                           5
2955353, at *12–14. Finally, the court dismissed the claims against Ashton,

Kinabalu, and Morgan under the forum non conveniens doctrine, holding that both

private and public interests favored requiring GSTC to litigate its claims in Australia

because (1) the Australia Action, which GSTC filed, provided an adequate alternative

forum for resolving the parties’ disputes, id. at *15; (2) the ProX Notes, which the

court concluded were “central” to GSTC’s claims, contained Australian choice-of-

law provisions and “the majority of this case [was] subject to Australian law” id.; and

(3) the majority of the relevant evidence was located in Australia because the

defendants all resided there and most of the events the claims were based on

happened there, id. at *16–17. We repeat, GSTC did not appeal that order.

      Instead, about a year after the court dismissed Ashton I, GSTC filed what

became Ashton II in Wyoming state court. The state court complaint was virtually

identical to the Ashton I complaint. Specifically, it (1) named the same defendants,

including ProX, Mactaggart and Meldrum, despite the court’s conclusion in Ashton I

that they were not subject to personal jurisdiction in Wyoming; (2) reasserted the

same claims the court had dismissed on forum non conveniens grounds; and (3) used

group pleading, which the court had concluded was insufficient to satisfy the Rule 8

and 12(b)(6) notice and pleading requirements. Ashton, Kinabalu, and ProX, with

the other defendants’ consent, removed the case to federal court, where it was

assigned to the same judge who had presided over Ashton I.

      GSTC then filed an amended complaint removing ProX as a named defendant

but continuing to refer to it and issues relating to the ProX Notes in setting forth the

                                            6
basis for its claims against the remaining defendants. It also filed a motion to remand

Ashton II to Wyoming state court, arguing that the Finance Notes between it and

Jontra, ACE, and BAG2 contained a forum selection clause waiving their right to

removal and, in the alternative, that the court should decline to exercise jurisdiction

over this case because it raised purely state law claims that overlapped with those at

issue in the Wyoming Collections Actions. The defendants opposed the motion to

remand and moved to dismiss the complaint on issue preclusion, forum non

conveniens, personal jurisdiction, lack of service, and group pleading grounds.

      Meanwhile, the court in the Australia Action dismissed Blue Sky from the case

and ordered GSTC to produce documents it claimed supported its case. The parties

(including GSTC) later consented to the discontinuation of WellDog’s claim against

the Australian defendants because it had been forced into receivership. And, while

the motions to dismiss Ashton II were pending, GSTC voluntarily discontinued the

Australia Action against all defendants except ProX.

      Soon thereafter, the district court in Ashton II denied GSTC’s motion to

remand and granted defendants’ motions to dismiss. 353 F. Supp. 3d at 1211. With

respect to the remand motion, the court determined that the language in the Finance

Notes was a permissive forum selection clause, not a waiver of the right to remove,

and that jurisdictional abstention was not warranted because the Ashton II complaint

raised more claims and involved more defendants (including foreign defendants) than


      2
       As noted above and discussed more fully below, BAN, not BAG, held
Finance Notes.
                                            7
did the state law claims against the limited group of defendants in the Wyoming

Collections Actions. Id. at 1201–02. It also decided issue preclusion barred GSTC

from relitigating matters that had been decided in Ashton I, including the personal

jurisdiction, forum non conveniens, and jurisdictional discovery rulings described

above. Id. at 1205, 1210. In short, it explained: if GSTC disagreed with those prior

rulings it should have appealed from them “rather than refiling the same claims” in a

new lawsuit. Id. at 1205. In so concluding, the court rejected GSTC’s arguments

that its claims were not barred because it both presented new evidence to support

them and narrowed its claims by dismissing ProX, which GSTC conceded was not

subject to the court’s jurisdiction. Id. at 1207–08. It also concluded the same public

and private factors justifying dismissal of Ashton I based on forum non conveniens

were still present in Ashton II. Id. at 1209–10. And it dismissed GSTC’s remaining

claims on personal jurisdiction grounds, because BAG did not have the requisite

minimum contacts with Wyoming, id. at 1207, and that the claims against Jontra,

ACE, and Meldrum failed for lack of service of process, id. at 1202–03.

                                    DISCUSSION

      On appeal, GSTC challenges most of the district court’s rulings in Ashton II,3

and in so doing, also challenges some of the rulings in Ashton I. We will not

consider GSTC’s arguments regarding Ashton I and reject its attacks on Ashton II.



      3
        Because GSTC does not adequately raise and pursue challenges to the district
court’s dismissal of the claims against Morgan and Meldrum, we do not review those
rulings. Bronson v. Swenson, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he omission
                                           8
   I.      Denial of Motion to Remand

        GSTC claims its motion to remand should have been granted. Specifically, it

relies on a provision it characterizes as a mandatory forum selection clause in the

Finance Notes held by Jontra, ACE, and BAG (really non-party BAN) waived their

right to removal and, because removal requires unanimity among defendants,4

invalidated the other defendants’ consent to removal. We disagree.5

        The meaning and enforceability of a contractual forum selection clause are

questions of law that we review de novo. K & V Sci. Co. v. Bayerische Motoren

Werke Aktiengesellschaft, 314 F.3d 494, 497 (10th Cir. 2002); see also Excell, Inc. v.

Sterling Boiler & Mech., Inc., 106 F.3d 318, 320 (10th Cir. 1997) (applying a de

novo standard in reviewing a district court’s ruling on a motion to remand based on a

contractual forum selection clause).

        The contracts at issue here—the Finance Notes held by Jontra, ACE, and

BAG—are governed by Wyoming law, which requires us to construe the Finance



of an issue in an opening brief generally forfeits appellate consideration of that
issue.”).
       4
         See 28 U.S.C. §§ 1441(a), 1446(a); Akin v. Ashland Chem. Co., 156 F.3d
1030, 1034 (10th Cir. 1998).
       5
         GSTC also argued in its motion to remand that the district court should
decline to exercise jurisdiction under the Colorado River doctrine, which allows a
federal court to dismiss or stay a federal action in deference to a pending duplicative
state court proceeding. D.A. Osguthorpe Family P’ship v. ASC Utah, Inc., 705 F.3d
1223, 1233 (10th Cir. 2013) (referring to Colo. River Water Conservation Dist. v.
United States, 424 U.S. 800 (1976)). The district court rejected GSTC’s argument,
concluding that the removed federal action and the state court collection actions were
not duplicative. Ashton II, 353 F. Supp. 3d at 1202. Because GSTC did not
challenge that ruling on appeal, we do not address it.
                                           9
Notes using general principles of contract interpretation, including that our goal in

interpreting the contracts is to ascertain and give effect to the parties’ intent and that

we give the words used their plain and ordinary meaning. Sutherland v. Meridian

Granite Co., 273 P.3d 1092, 1095 (Wyo. 2012).

       The Wyoming Supreme Court has enforced mandatory forum selection

clauses. Durdahl v. Nat’l Safety Assocs., Inc., 988 P.2d 525, 527–29 (Wyo. 1999)

(Wyoming district court properly declined to exercise jurisdiction where forum

selection clause provided that the parties “agree[d] that any and all claims involving

this agreement shall be brought solely in the courts of Shelby County[,] Tennessee”

(internal quotation marks omitted) (second alteration in original)). But it has also

recognized that a provision consenting to jurisdiction is not the same as a mandatory

forum selection clause. See Venard v. Jackson Hole Paragliding, LLC, 292 P.3d 165,

169–70, 173 (Wyo. 2013) (whether third-party beneficiaries could enforce

contractual forum selection clause depended on whether they were bound by contract

based on their relationship to signatory, not on their consent in separate contract to

jurisdiction in forum state); see also Crites v. Alston, 837 P.2d 1061, 1067–69 (Wyo.

1992) (jurisdiction retention provision in divorce decree did not constitute forum

selection clause).

       Wyoming law drawing a distinction between forum selection clauses and

jurisdictional concessions is consistent with our decisions explaining the difference

between mandatory and permissive forum selection clauses: “[m]andatory forum

selection clauses contain clear language showing that jurisdiction is appropriate only

                                            10
in the designated forum,” whereas “permissive forum selection clauses authorize

jurisdiction in a designated forum, but do not prohibit litigation elsewhere.” Excell,

106 F.3d at 321 (internal quotation marks and brackets omitted). An agreement to

submit to jurisdiction in a particular state’s court or that venue is proper there is thus

a permissive, not a mandatory, forum selection clause. Id.; see also Am. Soda, LLP v.

U.S. Filter Wastewater Grp., Inc., 428 F.3d 921, 927 (10th Cir. 2005) (a forum

selection clause specifying only jurisdiction will not be enforced as a mandatory

forum selection unless it includes “some additional language indicating the parties’

intent to make venue exclusive”).

       Where a contract’s forum selection clause permits but does not require state

court venue, it does not waive the parties’ right to remove to federal court. K & V,

314 F.3d at 500–01 (district court removed case because it erroneously construed a

forum selection clause referring to jurisdiction in non-exclusive terms to be

mandatory). To constitute a waiver of the right to remove, the agreement must not

only identify a specific venue but also include language requiring the parties to

resolve disputes in a specific court. See Am. Soda, 428 F.3d at 927 (clause

consenting to state court jurisdiction and selecting the state courts as the “exclusive

forum” waived right to remove to federal court (internal quotation marks omitted)).

That is so because waiver of the statutory right to removal “must be clear and

unequivocal,” City of Albuquerque v. Soto Enters., Inc., 864 F.3d 1089, 1098

(10th Cir. 2017), cert. denied, 138 S. Ct. 983 (2018); Milk ‘N’ More, Inc. v. Beavert,

963 F.2d 1342, 1346 (10th Cir. 1992).

                                            11
         The Finance Notes provided: “[i]f there is a lawsuit, [the parties] agree to

submit to the jurisdiction of the courts of Albany County, the State of Wyoming,

United States.” Aplt. App., Vol. 4 at 422, 425, 428, 431, 434 (exemplar Finance

Notes attached to Br. in Supp. of Pl.’s Mot. to Remand). The chosen language, like

the language at issue in K & V, “refers only to jurisdiction and does so in

non-exclusive terms,” 314 F.3d at 500, and the Finance Notes contain no additional

language evincing an intent to litigate only in Wyoming state court. Accordingly,

these defendants’ agreement to submit to jurisdiction in Wyoming did not constitute

a mandatory forum selection clause that clearly and unequivocally waived their right

to remove to federal court, and the district court properly denied GSTC’s motion to

remand. See id.

   II.      Dismissal of Claims Against Mactaggart

         GSTC next argues the district court erred in dismissing its claims against

Mactaggart on issue preclusion and lack of personal jurisdiction grounds.

Specifically, it claims that issue preclusion does not apply here because GSTC

alleged new facts in the Ashton II complaint supporting the court’s exercise of

jurisdiction over Mactaggart. We are not persuaded.

         “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.” Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc.,

618 F.3d 1153, 1159 (10th Cir. 2010). With that standard in mind, a review of

                                             12
additional background information (contained in the record) puts GSTC’s argument

in context and justifies the district court’s reasoning.

       In dismissing GSTC’s claims against Mactaggart for lack of personal

jurisdiction, the court in Ashton I rejected GSTC’s arguments that (1) he consented to

Wyoming’s jurisdiction because the companies he controlled (Jontra, ACE, and

BAG) consented to Wyoming’s jurisdiction in the Finance Notes; and (2) he was the

alter-ego of those companies and therefore had sufficient minimum contacts with

Wyoming to justify the court’s exercise of jurisdiction over him individually.

2017 WL 2955353, at *10–11 (citing Ten Mile Indus. Park v. W. Plains Serv. Corp.,

810 F.2d 1518, 1526–27 (10th Cir. 1987)). The Ashton I court held GSTC was not

entitled to jurisdictional discovery because it failed to explain why such discovery

was necessary and how the lack of discovery would affect the outcome of the case.

Id. at *11; see also Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino &

Resort, 629 F.3d 1173, 1189 & n.11 (10th Cir. 2010) (the party seeking jurisdictional

discovery has the burden of demonstrating entitlement to and prejudice from the

denial of discovery).

       The allegations in the Ashton II complaint supporting jurisdiction over

Mactaggart were virtually identical to the jurisdictional allegations in the Ashton I

complaint and the allegations against him were essentially the same. But the

Ashton II complaint made new factual allegations about the Mactaggart-controlled

defendants’ filing of the Jontra Collection Action in Wyoming state court and about



                                            13
Mactaggart’s involvement as their director/owner in the alleged conspiracy to take

control of GSTC and misappropriate its technology.

       Mactaggart moved to dismiss the claims against him, arguing that he was not

subject to jurisdiction in Wyoming and that GSTC’s failure to appeal the Ashton I

court’s jurisdictional determination barred it from relitigating that issue. Relying on

its new factual allegations, GSTC maintained that issue preclusion did not apply

because the factual and legal issues regarding jurisdiction over Mactaggart had

changed. The district court disagreed, noting that it had already considered

Mactaggart’s role in the companies he controlled and that none of the new factual

allegations or supporting documents changed its prior analysis of his contacts with

Wyoming, either individually or through his entities:

           The [new allegations] may show that Mactaggart was engaged
           in a scheme related to the Australian entity, WellDog.
           However, the allegations in this case are that GSTC actively
           sought out Australian investors, to help start an Australian
           company. There are no allegations that Mactaggart targeted
           GSTC as a Wyoming resident in the first instance. While GSTC
           claims Mactaggart chose to conduct business with GSTC in the
           forum (Wyoming), there is no evidence that Mactaggart
           conducted any activities directed to Wyoming related to the
           takeover of WellDog. Rather, Mactaggart’s activities all
           occurred in Australia, involving Australian entities.

Ashton II, 353 F. Supp. 3d at 1205 & n.4. The court decided the new allegations

“fail[ed] to establish a new legal situation or altered rights in relation to [Ashton I].”

Id. at 1205.

       We review its order de novo. See Campbell v. City of Spencer, 777 F.3d 1073,

1077 (10th Cir. 2014) (reviewing application of issue preclusion de novo); Dudnikov

                                            14
v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008)

(reviewing dismissal of complaint for lack of personal jurisdiction de novo).

      The doctrine of issue preclusion “prevents a party that has lost the battle over

an issue in one lawsuit from relitigating the same issue in another lawsuit.” In re

Corey, 583 F.3d 1249, 1251 (10th Cir. 2009). As the Supreme Court put it, “once a

court has decided an issue of fact or law necessary to its judgment, that decision may

preclude relitigation of the issue in a suit on a different cause of action involving a

party to the first case.” Allen v. McCurry, 449 U.S. 90, 94 (1980). Issue preclusion

applies when:

           (1) the issue previously decided is identical with the one
           presented in the action in question, (2) the prior action has been
           fully adjudicated on the merits, (3) the party against whom the
           doctrine is invoked was a party, or in privity with a party, to the
           prior action, and (4) the party against whom the doctrine is
           raised had a full and fair opportunity to litigate the issue in the
           prior action.

Dodge v. Cotter Corp., 203 F.3d 1190, 1198 (10th Cir. 2000).

      A dismissal for lack of jurisdiction “preclude[s] relitigation of the issues

determined in ruling on the jurisdiction question.” Matosantos Commercial Corp. v.

Applebee’s Int’l, Inc., 245 F.3d 1203, 1209 (10th Cir. 2001) (internal quotation marks

omitted). We have recognized that, under the curable-defect doctrine, a jurisdictional

dismissal does not bar another suit if the jurisdictional defect has been cured or loses

its controlling force. Park Lake Res. Ltd. Liab. Co. v U.S. Dep’t of Agric., 378 F.3d

1132, 1137 (10th Cir. 2004); see also Montana v. United States, 440 U.S. 147, 159

(1979) (“[C]hanges in facts essential to a judgment will render [issue preclusion]

                                           15
inapplicable in a subsequent action raising the same issues.”). “But the change in

circumstances that cures the jurisdictional defect must occur subsequent to the prior

litigation.” Park Lake, 378 F.3d at 1137. The rule requiring presentation of material

post-litigation facts in order to overcome prior jurisdictional determinations is

consistent with the principles underlying issue preclusion, because it avoids the

expense, vexation and inefficiency of “‘allow[ing] a plaintiff to begin the same suit

over and over again in the same court, each time alleging additional facts that the

plaintiff was aware of from the beginning of the suit, until it finally satisfies

the jurisdictional requirements.’” Id. at 1138 (quoting Magnus Elecs., Inc. v.

La Republica Argentina, 830 F.2d 1396, 1401 (7th Cir. 1987) (curable-defect

exception does not allow party to rely on facts that were previously available to avoid

preclusive effect of prior jurisdictional determination)).

       Contesting the first element of issue preclusion—that the issue previously

decided is identical with the one presented in the subsequent action—and invoking

the curable-defect exception, GSTC claims it alleged sufficient new facts about the

alleged conspiracy between Mactaggart, the companies he controlled, and the other

defendants to overcome issue preclusion.6 But the new allegations it relies on to

bolster its conspiracy/alter-ego theories in support of jurisdiction over Mactaggart do



       6
        We do not consider GSTC complaints about the Ashton I court’s rejection of
its conspiracy and alter-ego theories in support of jurisdiction over Mactaggart
because our review here is limited to the question whether the Ashton II court erred
in concluding that issue preclusion barred relitigation of those claims. If it disagreed
with the Ashton I court’s rulings, it should have appealed.
                                            16
not involve post-litigation events that could overcome issue preclusion. Instead, as

the district court found, and GSTC does not dispute, the facts it now relies upon

pre-dated the dismissal of the complaint in Ashton I. As we explain below, its

arguments about lack of access to that information during the Ashton I litigation fail.

Presenting previously available facts in a new complaint does not constitute a

“change in circumstances” that can avoid the preclusive effect of a jurisdictional

determination in an earlier action. Park Lake, 378 F.3d at 1137. Consequently, the

jurisdictional issue before us is substantively the same as that raised and decided in

Ashton I, and it cannot be relitigated. See id. at 1137–38.

       The out-of-circuit case GSTC relies upon to support its “sufficient new facts”

argument does not help its cause. In that case, the Eighth Circuit concluded that a

state appellate court’s determination of a personal jurisdiction issue decided in the

plaintiff’s first suit did not bar relitigation of the issue in his second suit because the

defendant raised the issue in the first suit in a mid-trial motion for directed verdict,

the trial court did not make any jurisdictional fact findings in denying the motion,

and the appellate court’s ruling “shed[] little if any light on the different legal issue

whether [that state] had personal jurisdiction over [the defendant] when the second

suit was commenced” some four years later. Pohlmann v. Bil-Jax, Inc., 176 F.3d

1110, 1113 (8th Cir. 1999). Here, in contrast, Mactaggart and the other defendants

moved to dismiss shortly after the Ashton I complaint was filed, the parties had

ample opportunities to develop their factual and legal arguments, and the court made

detailed factual findings supporting its jurisdictional determinations. Thus, unlike

                                             17
the court in Pohlman, the court in Ashton II fully understood the factual and legal

landscape when it concluded that the jurisdictional issue was substantively the same

despite GSTC’s new factual allegations. Moreover, Pohlman’s holding was based on

law consistent with ours—that issue preclusion does not bar relitigation of a

jurisdictional issue when “subsequent events create a new legal situation or alter the

legal rights or relations of the litigants”—and recognized that the lack of factual

development in the first case made it impossible for the court in the second case to

determine whether subsequent events may have changed the jurisdictional analysis.

Id. (emphasis added, ellipsis and internal quotation marks omitted). That is simply

not the case here, both because the Ashton I court thoroughly analyzed the issue and

because this case does not involve material events that occurred after Ashton I was

decided. The “new” facts about Mactaggart’s pre-Ashton I activities that GSTC

claims were directed at Wyoming may be new to GSTC, but they do not involve

post-litigation events.7

       In a related claim contesting the fourth element of issue preclusion—that the

party who suffered the adverse ruling in the first case had a full and fair opportunity

to litigate the issue—GSTC complains that the denial of jurisdictional discovery in

Ashton I deprived it of the ability to present jurisdictional evidence against



       7
        In ruling on defendants’ motion for sanctions against GSTC, the district court
indicated that it was “troubled” by the fact that the substance of GSTC’s original
complaint in Ashton II “was nearly identical” to the Ashton I complaint and that
“[m]any of the newly added allegations were likely available at the time GSTC filed
Ashton I.” Ashton II, 353 F. Supp. 3d at 1210.
                                           18
Mactaggart (including the additional facts it alleged in the Ashton II complaint) in

that litigation. But we agree with the district court’s conclusion that if GSTC

disagreed with the Ashton I court’s adverse discovery ruling, its remedy was to

appeal that ruling, not to challenge it in the guise of a defense to issue-preclusion in a

subsequent lawsuit. Accordingly, we decline to address whether the Ashton I court

abused its discretion in denying GSTC’s request for jurisdictional discovery.

   III.     Dismissal of Claims Against Jontra and ACE

      Ashton I and II dismissed the claims against Jontra and ACE for different

reasons: Ashton I dismissed them for failure to state a claim based on GSTC’s

improper use of group pleading, 2017 WL 2955353, at *12; and Ashton II dismissed

them for lack of personal jurisdiction because GSTC failed to properly serve those

defendants, who are both Australian residents, 353 F. Supp. 3d at 1203. Although

GSTC’s appellate briefs repeatedly suggest the district court erroneously concluded it

lacked jurisdiction over Jontra and ACE, it cannot challenge the Ashton I court’s

ruling in this appeal, and it does not dispute the correctness of the Ashton II court’s

lack-of-proper-service determination. We thus do not address either of those rulings

here and reject GSTC’s undeveloped and conclusory jurisdictional arguments as to

Jontra and ACE.

   IV.      Dismissal of Claims Against BAG

          We also reject GSTC’s contention that BAG had sufficient contacts with

Wyoming to trigger the Court’s jurisdiction.



                                           19
      The plaintiff generally has the burden of establishing personal jurisdiction over

the defendants, but when, as here, a court rules on a motion to dismiss based on the

parties’ pleadings and attached affidavits without holding an evidentiary hearing, the

plaintiff can meet its burden with only a prima facie showing. OMI Holdings, Inc. v.

Royal Ins. Co. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998). We review a district

court’s dismissal of a complaint for lack of personal jurisdiction de novo. Dudnikov,

514 F.3d at 1070. In determining whether the plaintiff met its burden, we accept all

well-pled factual allegations as true and view them in the light most favorable to the

plaintiff. See AST Sports Sci., Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1057

(10th Cir. 2008).

      As pertinent here, in order for a Wyoming court to exercise personal

jurisdiction over a nonresident, the defendant must, at a minimum, have sufficient

contacts with the state that it “should reasonably anticipate being haled into court

there.” Bartile Roofs, 618 F.3d at 1159–60 (internal quotation marks omitted).

The minimum contacts test “encompasses two distinct requirements: first, that the

out-of-state defendant must have purposefully directed its activities at residents of

the forum state, and second, that the plaintiff’s injuries must arise out of defendant’s

forum-related activities.” Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir.

2011) (internal quotation marks omitted).

      The purposeful availment inquiry requires us to examine both the “quantity

and quality” of the defendant’s contacts with Wyoming to determine whether they

“create a substantial connection” with Wyoming. Bartile Roofs, 618 F.3d at 1160

                                            20
(internal quotation marks omitted). Merely entering into a contract with a company

located in the forum state “is not enough on its own” to subject a defendant company

to jurisdiction in that state. Pro Axess, Inc. v. Orlux Distribution, Inc., 428 F.3d

1270, 1277 (10th Cir. 2005). But “creat[ing] continuing relationships and obligations

with citizens of [the forum] state [will] subject” a company to jurisdiction there.

Id. (internal quotation marks omitted). And “conducting business through [a]

subsidiar[y] can qualify as transacting business in a state, provided the parent

[company] exercises sufficient control over the subsidiary.” Id. at 1278 (citing

Curtis Publ’g Co. v. Cassel, 302 F.2d 132, 137 (10th Cir. 1962) (recognizing that

when a wholly owned subsidiary’s activities as an agent of its parent company “are

of such a character as to amount to doing business of the parent,” the parent is subject

to jurisdiction in the state where the activities occurred)).

       Here, GSTC claims BAG—an Australian company that never lent money to or

held stock in GSTC or WellDog and never did business in Wyoming—is subject to

jurisdiction in Wyoming through its wholly-owned subsidiary and alter-ego, BAN,

which submitted to Wyoming jurisdiction in the GSTC Finance Notes it held and was

one of the plaintiffs in the Jontra Collection Action in Wyoming state court. In

support of its alter-ego theory, GSTC alleges: (1) Mactaggart controlled both

companies (he was the sole director of BAN and one of several directors of BAG);

(2) BAN and BAG had the same address as Jontra and ACE, two other

Mactaggart-controlled entities; and (3) the BAN/BAG corporate structure was

unclear and GSTC was confused about which of them held the Finance Notes.

                                            21
      But the district court concluded that these factual allegations were insufficient

to establish that BAN was acting as BAG’s alter ego. Ashton II, 353 F. Supp. 3d at

1206–07. We agree that Mactaggart’s involvement in both entities, their common

mailing address, and GSTC’s claimed confusion about their corporate structure—and

thus the identity of GSTC’s lender8—do not establish a “unity of interests and

ownership” between BAN and BAG. Ten Mile Indus. Park, 810 F.2d at 1527.9 Nor

do these facts undermine BAN’s status as a valid corporate entity separate from BAG

such that a Wyoming court could reasonably conclude that a foreign corporation with

no connection to Wyoming and no involvement in the events giving rise to the

litigation nonetheless “purposefully availed [itself] of the privilege” of doing

business in Wyoming and should “anticipate being haled into court” there, id. at

1526; see also Ashton I, 2017 WL 2955353, at *11 (concluding that similar evidence




      8
          We note that the district court questioned the sincerity of GSTC’s claimed
confusion about the distinction between BAN and BAG, noting that it had “serious
concerns” about GSTC’s “conduct in this case,” including the fact that despite being
“aware of the distinction between the two entities through the proceedings on the
Financing Notes, GSTC failed to take steps to dismiss its claims against BAG, or
replace it as a Defendant with BAN,” and referred instead to “Brisbane Angels
(BA).” Ashton II, 353 F. Supp. 3d at 1211 (internal quotation marks omitted).
        9
          Under Wyoming law (1) a corporation will not be considered the alter ego of
the person who controls it unless “there is such a unity of interest and ownership
that” adhering to “the fiction of the separate existence of the corporation would . . .
sanction a fraud or promote injustice”; and (2) jurisdiction over a corporation’s
officers and directors “may not be predicated on jurisdiction over the corporation
itself” and “must be based on their individual contacts with the forum state” unless
“the corporation is not a viable one and the individuals are . . . using the corporate
form as a shield.” Ten Mile Indus. Park, 810 F.2d at 1526–27 (internal quotation
marks omitted).
                                           22
was insufficient to support GSTC’s alter-ego theories about Mactaggart and the

Mactaggart-controlled defendants).10

   V.        Dismissal of Claims Against Ashton Defendants

        GSTC’s final claim is that issue preclusion does not bar relitigation of the

claims against Ashton and the Ashton-controlled defendants following Ashton I’s

dismissal of those claims on forum non conveniens grounds. More specifically, it

maintains that the forum non conveniens issue should not be res judicata because

GSTC narrowed the facts, claims, and parties involved so that the claims asserted in

Ashton II involve only the defendants’ conduct directed at GSTC (as opposed to its

Australian subsidiary) and Australian law no longer applies. We disagree, because

the differences between the Ashton I and Ashton II complaints do not change the

fundamental forum non conveniens question common to both cases.

        “A plaintiff may not relitigate a forum non conveniens issue unless he can

show some objective facts that materially alter the considerations underlying the

previous resolution.” Villar v. Crowley Mar. Corp., 990 F.2d 1489, 1498 (5th Cir.

1993) (internal quotation marks omitted), abrogated on other grounds by Marathon

Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998) (en banc), rev’d, 526 U.S. 574

(1999); see also 18A Charles A. Wright, Arthur R. Miller, & Edward H. Cooper,



        10
         We decline to address GSTC’s argument that instead of dismissing the
claims against BAG, the district court should have substituted BAN or required that it
be joined as a party. GSTC did not seek substitution or joinder below and we will
not consider “secondary, back-up theories . . . mounted for the first time” on appeal,
Tele-Commc’ns, Inc. v. Comm’r, 104 F.3d 1229, 1233 (10th Cir. 1997).
                                            23
Federal Practice and Procedure Juris. § 4436 (3d ed., Aug. 2019 update) (forum non

conveniens issue cannot be relitigated if “the issue actually remains the same”).

Thus, the plaintiff must do more than ask for a rebalancing of forum non conveniens

considerations. Pastewka v. Texaco Inc., 565 F.3d 851, 854 (3rd Cir. 1977).

      Here, GSTC maintains that the forum non conveniens issue in the two cases is

materially different because the Ashton II complaint (1) “eliminated” the claims

regarding defendants’ alleged effort to take control of its Australian subsidiary

WellDog, Aplt. Br. at 5, which was “forced into receivership and sold” after Ashton I

was decided, id. at 24; (2) “narrowed” the claims to focus on defendants’ “ongoing

conspiracy . . . to destroy” “GSTC’s business in the United States,” id. at 5, 24; and

(3) took Australian law out of the analysis by “omitting” the claims involving the

ProX Notes, which are governed by Australian law, and against ProX, which is not

subject to jurisdiction in Wyoming,11 id. at 5, 25.

      But these changes are superficial and do not materially change the forum non

conveniens question. As the district court found after comparing the factual

allegations, claims, and relief sought in both cases, despite GSTC’s modifications to

the amended complaint, Ashton II “is substantially the same as Ashton I, with the

same claims based on the same facts, against most of the same Defendants.”




      11
         Although GSTC deleted ProX as a party and from the caption of the
amended complaint, the district court included ProX in the dismissal order, Ashton II,
353 F. Supp. 3d at 1211, and the clerk of the court included it in the judgment
dismissing the case.
                                           24
353 F. Supp. 3d at 1208.12 The court explained that, despite the focus on defendants’

actions directed at GSTC instead of WellDog, the claims in Ashton II, like those in

Ashton I, “arise from GSTC’s claims that Ashton and others engaged in self-dealing

and collusive efforts to improperly take ownership and control of WellDog, to divert

its assets, and cause injury to GSTC,” id. at 1208.

      With respect to the elimination of ProX as a party, the district court observed

that GSTC’s conspiracy theory in both cases

           rests on the idea that Ashton planned to take control of WellDog
           and Mactaggart, Jontra, ACE and BAG to take control of GSTC.
           To achieve the conspiracy, GSTC alleged Defendants, including
           Ashton and his alter ego ProX planned to foreclose on their
           venture debt to attain control of WellDog. The basis of these
           allegations and claims still rely on ProX’s ability to foreclose on
           the venture debt, an issue that is governed by Australian law.

Id. at 1209 (citations and footnotes omitted). Thus, “GSTC did not actually take out

ProX or the allegations related to ProX. It just made ProX an ‘alter ego’ of Ashton.”

Id. at 1211. Indeed, “GSTC could not completely remove ProX” from the complaint

(and thus the forum non conveniens analysis) because ProX’s decision to call in the

ProX Notes is at the heart of GSTC’s allegations, which means that resolution of

GSTC’s claims still turns on whether, under Australian law, ProX improperly

enforced the ProX Notes. Id. at 1211 n.8. Thus, the district court noted, it is “very




      12
         In the district court, GSTC also claimed the filing of the Wyoming
Collection Actions changed the forum non conveniens analysis in Ashton II. But the
court rejected that argument, and because GSTC did not pursue it on appeal, we do
not address it.
                                           25
likely that ProX would be an indispensable party to” Ashton II if it survived the

motion to dismiss. Id.

      Based on our de novo review of the relevant pleadings, we agree with the

district court’s conclusions that the forum non conveniens issue presented in Ashton

II was substantially the same as the one presented in Ashton I, id. at 1208, and that

GSTC failed to show “‘objective facts that materially alter the considerations

underlying the previous resolution,’” id. at 1209 (internal quotation marks omitted).

Accordingly, we conclude the district court properly dismissed the claims against

Ashton and the Ashton-controlled entities on issue preclusion grounds.

      In so concluding, we reject GSTC’s argument that the district court failed to

give proper deference to GSTC’s choice of forum. We recognize that “there is

ordinarily a strong presumption in favor of” hearing the case in the plaintiff’s chosen

forum, but that presumption can be overcome “when the private and public interest

factors clearly point towards trial in” a different forum. Piper Aircraft Co. v. Reyno,

454 U.S. 235, 255 (1981). Thus, the plaintiff’s choice of forum is just one factor in

the forum non conveniens analysis, and the court concluded in Ashton I that GSTC’s

preference for Wyoming as the forum was outweighed by the private and public

interests favoring resolution of its claims in Australia. 2017 WL 2955353, at *14–17.

GSTC did not appeal that determination, and we will not review it here.

Accordingly, we decline to consider GSTC’s related argument that “applying the

forum non conveniens test to the Ashton II complaint warrants denial of” the motion

to dismiss. Aplt. Br. at 26 (capitalization omitted and italics added). This argument

                                          26
merely seeks a rebalancing of the forum non conveniens factors, an issue we have

concluded GSTC is barred from relitigating. See Pastewka, 565 F.3d at 854.

                                    CONCLUSION

      The district court’s order is affirmed. We deny GSTC’s Motion to Take

Judicial Notice of 2019 jury verdicts and other documents related to the Wyoming

Collection Actions, because they do not bear directly on our disposition of this appeal

from a 2018 dismissal order that was based largely on the preclusive effect of an

unappealed 2017 judgment. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5

(10th Cir. 2007) (court has discretion to judicially notice publicly-filed records in

certain other courts “concerning matters that bear directly upon the disposition of the

case at hand”).


                                            Entered for the Court


                                            Terrence L. O’Brien
                                            Circuit Judge




                                           27
