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TBM Land Conservancy, Inc. v. Nextel West Corp.

United States District Court, D. Colorado

September 10, 2015

TBM LAND CONSERVANCY, INC., a Colorado corporation, Plaintiff,
NEXTEL WEST CORP., a Delaware corporation; NEXTEL FINANCE COMPANY, a Delaware corporation; NEXTEL COMMUNICATIONS, INC., a Delaware corporation; and SPRINT COMMUNICATIONS, INC., a Kansas corporation, Defendants

          For TBM Land Conservancy, Inc., a Colorado corporation, Plaintiff: Hugh Walter McNulty, Hugh W. McNulty, P.C., Denver, CO.

         For 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.

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         PHILIP A. BRIMMER, United States District Judge.

         This 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.

         I. BACKGROUND

         The 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." ).

         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[1] 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. ¶ 5.

         Section 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

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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,[2] 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.


         The 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).

         The " 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).

         III. ANALYSIS

         A. ...

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