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Denver Urban Homesteading, LLC v. Dervaes Institute

United States District Court, D. Colorado

February 28, 2014



KATHLEEN M. TAFOYA, Magistrate Judge.

This matter comes before the court on "Defendants' Motion to Dismiss Or, In the Alternative, Motion to Transfer for Inconvenient Forum" (Doc. No. 13 [Mot.], filed May 28, 2013). Plaintiff filed its response on June 4, 2013 (Doc. No. 14 [Resp.]), and Defendants filed their reply on June 25, 2013 (Doc. No. 20 [Reply]). The motion is ripe for recommendation and ruling.


The following allegations are taken from Plaintiff's Complaint. (Doc. No. 1 [Compl.].) This case involves a dispute regarding the federally registered trademark owned by Defendant, a California company called the Dervaes Institute (the "Institute") for the mark "Urban Homesteading, " USPTO Registration No. 3, 633, 366. ( Id., ¶¶ 16, 20, 23.) Plaintiff, a for-profit company that operates Denver's first and only year-round, indoor farmers' market, represents itself in the internet on a website and previously on a Facebook fan page called Denver Urban Homesteading. ( Id., ¶¶ 10, 13.)

On February 12, 2010, Plaintiff sent an email to one of Defendants' companies requesting permission to republish an article on one of its websites. ( Id., ¶ 25.) On March 7, 2010, a representative of the Institute declined permission for Plaintiff to use the article. ( Id., ¶ 26.) Nearly a year later, on February 14, 2011, Plaintiff's Facebook fan page became inaccessible to Plaintiff and to the public. ( Id., ¶ 32.) On February 15, 2011, Plaintiff came to believe that one or more of the defendants was responsible for the disappearance of its Facebook page. ( Id., ¶ 34.) On February 15, 2011, Plaintiff sent communications to Defendants demanding that they authorize Facebook to re-enable Plaintiff's fan page. ( Id., ¶ 35.) Defendant Mignon Rubio Dervaes responded by email that she caused the Facebook page to be disabled on behalf of Defendant Jules Dervaes. ( Id., ¶ 36.) On February 16, 2011, Facebook advised Plaintiff it "received a claim of alleged rights infringement regarding the removed content." ( Id., ¶ 38.) Plaintiff made several more demands to Defendants to authorize Facebook to re-enable its page and explained that it was being damaged by the loss of the page. ( Id., ¶¶ 40-42.) Several days after February 14, 2011, Plaintiff received a cease and desist letter from the Institute. ( Id., ¶ 38.) Plaintiff believes the defendants chose to request that Facebook disable Plaintiff's page without any notice because Defendants wanted to cause harm to Plaintiff. ( Id., ¶¶ 43-45.)

On April 11, 2011, Plaintiff filed a cancellation proceeding in the Trademark Trial and Appeal Board ("TTAB") of the U.S. Patent and Trademark Office for the mark "urban homesteading." ( Id., ¶ 59.) The TTAB action is still proceeding. ( Id., ¶¶ 63, 65.) Plaintiff filed this action to obtain injunctive relief in the form of an order requiring Defendants to cause Plaintiff's Facebook page to be restored and to obtain damages. ( Id., ¶ 72.)


A. Personal Jurisdiction

Federal Rule of Civil Procedure 12(b)(2) provides that a defendant may move to dismiss a complaint for "lack of jurisdiction over the person." Fed.R.Civ.P. 12(b)(2). Plaintiff bears the burden of establishing personal jurisdiction over Defendants. OMI Holdings, Inc. v. Royal Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998). In the preliminary stages of litigation, Plaintiff's burden is light. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). Where, as here, there has been no evidentiary hearing, and the motion to dismiss for lack of personal jurisdiction is decided on the basis of affidavits and other materials, Plaintiff need only make a prima facie showing that jurisdiction exists. Id.

Plaintiff "has the duty to support jurisdictional allegations in a complaint by competent proof of the supporting facts if the jurisdictional allegations are challenged by an appropriate pleading." Pytlik v. Prof'l Res., Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989). The allegations in Plaintiff's complaint "must be taken as true to the extent they are uncontroverted by [Defendants'] affidavits.'" Wenz, 55 F.3d at 1505 (quoting Doe v. Nat'l Med. Servs., 974 F.2d 143, 145 (10th Cir. 1992)). If the parties present conflicting affidavits, all factual disputes must be resolved in Plaintiff's favor, and "plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party." Id. (citation omitted). Only well-pleaded facts, as opposed to mere conclusory allegations, must be accepted as true. Id.

To determine whether a federal court has personal jurisdiction over a nonresident defendant in a diversity action, the court looks to the law of the forum state. Taylor v. Phelan, 912 F.2d 429, 431 (10th Cir. 1990). In Colorado, the assertion of personal jurisdiction must both: (1) satisfy the requirements of the long-arm statute; and (2) comport with due process. Id .; Doering v. Copper Mountain, Inc., 259 F.3d 1202, 1209 (10th Cir. 2001); Classic Auto Sales, Inc. v. Schocket, 832 P.2d 233, 235 (Colo. 1992). Colorado's long-arm statute subjects a defendant to personal jurisdiction for engaging in - either in person or by an agent - the "commission of a tortious act within this state, " or the "transaction of any business within this state." Colo. Rev. Stat. §§ 13-1-124(1)(a)-(b) (2007). To comport with due process, a defendant must have minimum contacts with the forum state such that maintenance of the lawsuit would not offend "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Colorado's long-arm statute is a codification of the "minimum contacts" principle required by due process. See Lichina v. Futura, Inc., 260 F.Supp. 252, 255 (D. Colo. 1966). Accordingly, under Colorado law, a court may assert jurisdiction to the fullest extent permitted by the Due Process Clause of the Fourteenth Amendment. See OMI Holdings, Inc., 149 F.3d at 1090; Scheur v. Dist. Ct., 684 P.2d 249 (Colo. 1984).

B. Failure to State a Claim

Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6) (2007). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

"A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth, " that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 1949-51. Second, the Court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 1950.

Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1940. Moreover, "[a] pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. at 1949 (citation omitted). "Where a complaint pleads facts ...

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