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O'Banion v. Studio J Corp.

United States District Court, D. Colorado

September 15, 2014

MICHAEL O'BANION, Plaintiff,
v.
STUDIO J CORPORATION, a/k/a Jonas Bros. Taxidermy Studio t/n, Defendant.

ORDER

BOYD N. BOLAND, Magistrate Judge.

This matter arises on the defendant's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted Pursuant to Fed.R.Civ.P. 12(b)(6) [Doc. #10, filed 03/27/2014] (the "Motion"). The Motion is DENIED.

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the plaintiff's well-pleaded allegations as true and must construe all reasonable inferences in favor of the plaintiff. City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493 (1986); Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976). The complaint must contain specific allegations sufficient to establish that it plausibly supports a claim for relief. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 n.2 (10th Cir. 2007). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984).

The plaintiff filed his Complaint on February 6, 2014. The Complaint contains the following allegations:

1. The court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(1). Complaint, ¶ 3.

2. The defendant provides taxidermy services to the public. It specializes in caring for and displaying animals harvested from around the world, and it assists hunters with importing their wildlife trophies from around the world. Id. at ¶¶ 6-7.

3. The plaintiff is a life-long hunter and has harvested wildlife all over the world. Id. at ¶ 8. The plaintiff has been a client of the defendant since before 1997 because the defendant is known for properly caring for and beautifully displaying hunters' trophies. Id. at ¶¶ 9-10.

4. The plaintiff has entrusted the defendant to properly care for, preserve, and create displays of approximately 32 of the plaintiff's wildlife trophies. The defendant has successfully completed taxidermy for many trophies to the plaintiff's satisfaction. Id. at ¶¶ 11-13.

5. One of the plaintiff's life-long dreams was to harvest a large, free-roaming male African lion. The plaintiff made three separate trips to Zimbabwe in search of such a lion. Each trip was complicated and expensive, and the hunts were physically and mentally taxing. During each trip, the plaintiff spent up to 21 days hunting for a lion over a baited site. The bait included large animals like kudu, impala, hippopotamus, and elephant. The bait had to be paid for or personally hunted by the plaintiff, and it had to be replaced once every three days for the duration of each lion hunt. Id. at ¶¶ 14-19.

6. In 2006, on his third trip to Zimbabwe, and after hunting for many weeks, the plaintiff succeeded in taking a large male lion. The lion was regarded as the largest lion taken in Zimbabwe in 2006. The plaintiff spent well over $100, 000 to harvest the lion which included costs for airfare, hotel, food, air taxi, tips, visas, gun permits, license fees, bait fees, trophy fees, guide fees, and shipping fees. Id. at ¶ 20-22.

7. The plaintiff hired a company out of Zimbabwe to preserve, pack, and ship to the defendant the lion and other animals incidental to the three hunts. The plaintiff had also taken a hunting trip to Tanzania and hired a company to preserve, pack, and ship to the defendant trophies from this hunt. Id. at ¶¶ 23-24.

8. The defendant confirmed that it received the trophies, sent the trophies (including the lion) to the tannery, and received the trophies back from the tannery. Id. at ¶¶ 26-27. The defendant possessed and continues to possess the plaintiff's trophies after receiving them back from the tannery, as well as all of the accompanying importation documentation for the trophies. Id. at ¶¶ 28-29.

9. Between 2006 and 2013, the defendant completed taxidermy work on a number of the plaintiff's animals from hunts around the world, including trophies from the Tanzania and Zimbabwe hunts. The plaintiff would contact the defendant when he was ready for the defendant to begin working on a trophy, and he would describe the work he wanted the defendant to complete. At that point, the plaintiff and the defendant would discuss the cost of the work. The plaintiff paid each bill in full. Id. at ¶¶ 30-32.

10. Except for the time the trophies were at the tannery, the defendant maintained possession of them until it completed the taxidermy. The plaintiff often waited months or years before requesting that the defendant complete taxidermy work on his trophies, which is common practice for the defendant and other taxidermy studios. The defendant understood this relationship and ...


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