United States District Court, D. Colorado
TBM Land Conservancy, Inc., a Colorado corporation,
Plaintiff: Hugh Walter McNulty, Hugh W. McNulty, P.C.,
Nextel West Corp., a Delaware corporation, Nextel Finance
Company, a Delaware corporation, Nextel Communications, Inc.,
a Delaware corporation, Sprint Communications, Inc., a Kansas
corporation, Defendants: John T. Osgood, Armstrong Teasdale,
LLP-Denver, Denver, CO.
A. BRIMMER, United States District Judge.
matter is before the Court on the Motion to Dismiss
Plaintiff's First, Third, Fourth and Fifth Claims for
Relief [Docket No. 10] filed by defendants Nextel West Corp.,
Nextel Finance Company, Nextel Communications, Inc., and
Sprint Communications, Inc. (" Sprint" )
(collectively, " Nextel" ). The Court has
jurisdiction pursuant to 28 U.S.C. § 1332.
complaint sets forth the following allegations, which, for
the purpose of ruling on the instant motion to dismiss, the
Court takes as true. See Alvarado v. KOB-TV,
LLC, 493 F.3d 1210, 1215 (10th Cir. 2007) (" We
must accept all the well-pleaded allegations of the complaint
as true and must construe them in the light most favorable to
the plaintiff." ).
TBM Land Conservancy, Inc. (" TBM" ) brings claims
related to Nextel's termination of a "
Communications Site Lease Agreement" (the " Site
Lease" ). TBM and one of Nextel's predecessor
entities executed the Site Lease in March 1997. Docket No. 3
at 1-2, ¶ ¶ 1, 2, 7-8. The Site Lease granted
Nextel the right to use land in Clear Creek
County, Colorado owned by TBM (the " Site" ) for
" construction, operation and maintenance" of
facilities " appropriate to the 'provision of
communications services.'" Id. ¶ 3.
The Site Lease had an initial five-year term but gave Nextel
the option to renew the Site Lease for four additional
five-year terms. Id. ¶ 4. Nextel exercised the
first, second, and third renewal options, the third of which
ran from March 14, 2012 through March 13, 2017. Id.
11.1 of the Site Lease provides, in pertinent part, that
Nextel may terminate the Site Lease without further liability
" after the initial five (5) year term, if [Nextel]
determines that the Premises are
not appropriate for its operations for technological reasons,
including, without limitation, signal interference."
Docket No. 3 at 2, ¶ 6. In July 2013, Nextel contacted
TBM's vice president John Maslanik and informed him that
Nextel intended to terminate the Site Lease " because it
has identified that the site is no longer appropriate for its
operations and will be decommissioned due to technological
reasons, including outdated technology, and/or for economic
reasons." Id. at 3, ¶ 11. On August 8,
2013, TBM responded that Nextel had not provided
documentation of a justification for asserting a right to
terminate the Site Lease, and that other carriers located
adjacent to the site had experienced no technological
barriers to updating and operating their communications
services. Id. ¶ ¶ 13-14. On August 27,
2013, Nextel responded that " today's customers
demand data-centric multimedia communications, including
simultaneous operation of multiple applications, all of which
requires [sic] the 3G and 4G speeds of the newer CDMA, EVDO,
WiMax, LTE and Network Vision technologies," and that
Nextel had " determined that the features and
functionality offered by these new technologies being
deployed at other locations by Sprint render th[e Site]
technologically obsolete." Id. at 3-4, ¶
¶ 16-17. On February 7, 2014, Nextel sent a letter to
TBM indicating that it had " vacated and surrendered
possession of the Site to [TBM] in the condition required in
the Agreement" and that " Nextel has no further
rights or obligations under the Lease and no further right or
interest with respect to the Site." Id. at 5,
¶ 33. TBM filed this action in the District Court for
the County of Jefferson, Colorado on December 21,
2014, alleging claims for breach of
contract, injunctive relief, breach of the implied covenant
of good faith and fair dealing, tortious interference with
contractual relations, and for attorneys' fees due under
the Site Lease. Nextel moves pursuant to Fed.R.Civ.P.
12(b)(6) to dismiss each of these claims, other than the
claim for injunctive relief, on the ground that Nextel's
actions do not constitute a breach of the Site Lease.
STANDARD OF REVIEW
Court's function on a Rule 12(b)(6) motion for failure to
state a claim upon which relief can be granted is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is sufficient to plausibly state a claim. Fed.R.Civ.P.
12(b)(6); Dubbs v. Head Start, Inc., 336 F.3d 1194,
1201 (10th Cir. 2003) (citations omitted). In doing so, a
district court may take into account " documents
referred to in the complaint if the documents are central to
the plaintiff's claim and the parties do not dispute the
documents' authenticity." Alvarado, 493
F.3d at 1215 (citation and quotation marks omitted).
" plausibility" standard requires that relief must
plausibly follow from the facts alleged, not that the facts
themselves are plausible. Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008). However, " where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not shown-that the pleader is entitled to
relief." Ashcroft v. Iqbal, 556 U.S. 662, 679,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation
marks and alteration marks omitted).