United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge.
the Court is Defendants' Motion to Dismiss
Plaintiff's Amended Complaint for Failure to State a
Claim Pursuant to F.R.C.P. 12(b)(6) [filed December 29,
2016; ECF No. 30]. The Motion is fully briefed, and the
Court finds that oral argument, which the parties did not
request, will not assist in the adjudication of the
Motion. The Court holds that Plaintiff's
first, second, and fourth causes of action sufficiently
allege a claim for relief. However, Plaintiff's third
cause of action fails to state a claim. Accordingly,
Defendants' Motion is granted in part and denied in part.
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiff in its Amended Complaint,
which are taken as true for analysis under Fed.R.Civ.P.
12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
is a wholesale distributor of heating equipment. Am. Compl.
¶ 6, ECF No. 24. Defendant Montigo Del Ray Corporation
(“Montigo”) is a designer and manufacturer of
custom gas fireplaces, gas inserts, stoves, and related
products. Id. at ¶ 7. Defendant BTU Marketing,
LLC (“BTU”) is Montigo's representative.
Id. at ¶ 17. Plaintiff was the exclusive
distributor of Montigo's products for Colorado, New
Mexico, Wyoming, Utah, and Idaho. Id. at ¶ 8.
Plaintiff developed comprehensive customer lists, which
included past, current, and potential purchasers of
Montigo's products. Id. at ¶¶ 10-11.
To maintain the secrecy of its customer list, Plaintiff
stored it in a secure location and prohibited employees from
disseminating the information other than as required during
the normal course of business. Id. at ¶ 14.
When Plaintiff's customers ordered fireplaces, Plaintiff
would disclose the customers' information to Montigo for
shipping purposes. Id. at ¶ 15. Montigo
represented to Plaintiff that it would not disseminate the
disclosed information to third parties. Id. at
the course of the parties' business relationship,
Plaintiff began to notice a significant decrease in its
annual sales of Montigo products. Id. at ¶ 19.
As a result, Plaintiff contacted many of its customers, who
informed Plaintiff that Defendants had been calling
Plaintiff's customers to market and sell Montigo products
directly. Id. at ¶ 21. Additionally, Plaintiff
learned through a BTU employee that Montigo provided
Plaintiff's customer list to BTU and instructed BTU to
appropriate Plaintiff's current and prospective
customers. Id. at ¶ 18. As a result of
Defendants' scheme to appropriate Plaintiff's
customer information, Plaintiff has lost approximately $1,
000, 000 in annual sales. Id. at ¶ 24.
on these factual allegations, Plaintiff initiated this
lawsuit in Colorado state court on August 25, 2016.
See Compl., ECF No. 2. Defendants removed the case
to this Court on November 9, 2016. Notice of Removal, ECF No.
1. Thereafter, Plaintiff filed an Amended Complaint. ECF No.
24. Plaintiff alleges four causes of action: (1)
Misappropriation of Trade Secrets, (2) Civil Conspiracy, (3)
Interference with Existing Contractual Relationships, and (4)
Interference with Prospective Contractual Relationships.
Id. at ¶¶ 26-50.
responded to Plaintiff's Amended Complaint by filing the
present Motion. Defs.' Mot. to Dismiss, ECF No. 30.
First, Defendants argue Plaintiff fails to state a
misappropriation claim, because Plaintiff fails to allege
wrongful means by which Defendants misappropriated its
customer list. Id. at 4-5. According to Defendants,
the only restriction Plaintiff placed on Montigo's use of
the customer list was that Montigo could not disclose the
information to a third party. Id. at 4. Because BTU
is Montigo's representative, Defendants contend Montigo
did not violate this restriction. Id. Next,
Defendants assert the Court should dismiss Plaintiff's
civil conspiracy claim, because Plaintiff does not allege a
wrongful act to which the Defendants conspired. Id.
at 6-7. Third, Defendants argue that Plaintiff's claim
for interference with existing contractual relations fails,
because Plaintiff does not allege Defendants committed a
wrongful action that caused Plaintiff's customers to
breach an existing contract. Id. at 7-8. Lastly,
Defendants contend Plaintiff does not state a claim for
tortious interference with prospective business advantage,
because Plaintiff fails to allege Defendants committed any
underlying tortious conduct. Id. at 8.
responded to Defendants' Motion on January 19, 2017.
Pl.'s Resp. to Defs.' Mot. to Dismiss, ECF No. 31.
Plaintiff argues it alleges a misappropriation claim, because
Montigo disclosed Plaintiff's customer information under
circumstances where it had a duty to keep the information
secret or limit the information's use. Id. at
4-5. As to Plaintiff's claims for civil conspiracy and
interference with prospective business relations, Plaintiff
argues that Defendants committed the wrongful acts of
misappropriating Plaintiff's customer lists and making
statements to customers regarding Plaintiff's inability
to pay bills. Id. at 5-6, 8-9. Plaintiff also argues
it has alleged an interference with existing contractual
relations claim, because Defendants contacted Plaintiff's
existing customers “in an effort to interfere with
[Plaintiff's] ongoing business relations.”
Id. at 8. Defendants filed a Reply on January 27,
2017. ECF No. 32.
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, 678 (2009) (quoting
Bell Atl. 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.
Twombly requires a two prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 679-80.
Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma,519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins,656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a ...