United States District Court, D. Colorado
Brooke Jackson, United States District Judge
matter is before the Court on three pending motions that are
fully briefed and ripe for review: (1) defendants' motion
for bond, ECF No. 38; (2) defendants' motion for partial
summary judgment and determination of question of law, ECF
No. 40; and (3) a motion for summary judgment filed by
defendant Karine Kopelman, ECF No. 41. For the reasons below,
the Court GRANTS all three motions.
summer of 2014 defendant Steve Kopelman, a producer of
haunted house attractions in Arizona and Illinois, hired
plaintiff LaFondFX, Inc. (“LFX”), a Colorado
company run by Louis LaFond, to build haunted houses for his
business to use during the upcoming Halloween season.
See Compl., ECF No. 2 at 3 (¶9). The parties
agree that an unsigned August 29, 2014 Work Agreement
governed their rights and obligations under this
deal. See ECF No. 46 at ¶2; ECF
No. 56 at ¶3.
summarized, that Agreement required plaintiff to build three
“haunts” in exchange for $156, 177.00 to be paid
by defendants to LFX in installments. ECF No. 56-1 at 3 (August
29, 2014 Work Agreement). LFX would also receive compensation
to offset its labor costs and the cost to ship the completed
haunts to defendants. Id. Furthermore, by the terms
of the Agreement, Mr. LaFond himself was also specifically
and individually promised $40, 000.00 to be paid by
defendants in four equal weekly payments. Id. at 4.
Agreement likewise set out the parties' rights and
obligations should the other party breach the contract or
terminate it early. For instance, if plaintiff prematurely
terminated the Agreement, it forfeited any remaining fees
described above that defendants owed to it at that time.
Id. at 2. It would also be required to pay back any
money defendants had thus far furnished. Id. If
defendants terminated early, plaintiff was promised that it
would receive back the haunts within ten days. Id.
The contract also specified that if defendant was late with
any payments that it “owed LFX[, ]” it would be
charged an annual interest rate of 36% on those delinquent
payments. Id. at 4. Finally, the parties agreed that
Colorado law would govern how the contract was to be
construed, interpreted, and applied. Id.
subsequently completed construction on these three
“haunts” and shipped them to Mr. Kopelman in
August of 2014. See ECF No. 2 at 4-5
(¶¶17-19). In this action, plaintiff asserts that
while defendants have paid some of the money they owe per the
parties' Agreement, defendants have thus far failed to
pay plaintiff the full amount under the parties'
contract. See ECF No. 2 at 4 (¶16). Plaintiff
also alleges, among other things, that defendants terminated
that agreement early. See Id. at 8-9
(¶¶44, 52, 56).
September 4, 2015 plaintiff filed suit against defendants in
Arizona state court to recover these allegedly unpaid
amounts. See generally Id. In its complaint,
plaintiff asserted four claims for relief: (1) a claim for
breach of the parties' contract; (2) a claim for specific
performance; (3) a claim for declaratory judgment that
defendants breached and/or terminated the Agreement; and (4)
a claim for unjust enrichment. Id. at 8-10
(¶¶42-64). It also sought a temporary restraining
order (“TRO”) to prohibit defendants from moving
the haunts outside the state of Arizona during the pendency
of this lawsuit. Id. at 48-60 (plaintiff's
motion for a TRO).
hearing on the TRO, the Arizona state court issued that order
on August 18, 2015. See id at 95-97 (TRO
order). It subsequently prohibited defendants from
moving the haunts, but required at the same time that
plaintiff post a $10, 000.00 bond to insure against
defendants' potential lost profits as a result of the
TRO. See Id. The Court nevertheless explained in its
order that “if [defendants] post[ed] a bond in the
amount of $40, 000.00 . . . to remain in place until the
matter is resolved or an order issued releasing such bond,
then this restraining order shall be deemed satisfied and the
property may be removed from the State of Arizona.”
Id. at 96. Although plaintiff never posted its $10,
000.00 bond, defendants subsequently posted a $40, 000.00
bond and removed the haunts from Arizona. See id. at
103 (bond receipt).
subsequently removed the case to the District of Arizona,
which then transferred it to this Court given the
parties' choice of law provision within their Agreement.
See ECF No. 1 at 1. On June 1, 2016 defendants
answered plaintiff's complaint. ECF No. 15. As part of
that answer, defendants asserted a counterclaim against LFX
for breach of the Agreement for allegedly constructing haunts
that were, among other things, unsafe and of poor
quality.See Id. at 8. Mr. Kopelman
subsequently amended that counterclaim on September 2, 2016.
ECF No. 47.
days later on September 6, 2016 defendants filed a motion for
bond to compel plaintiff to pay the $10, 000.00 bond it
allegedly never posted under the Arizona state court TRO. ECF
No. 38. That same day, defendants filed a motion for partial
summary judgment and determination of question of law,
asserting that plaintiff's claim for unjust enrichment
fails as a matter of law and seeking a ruling by this Court
that the interest rate provision within the parties'
Agreement does not apply to the contract provision promising
$40, 000.00 to Mr. LaFond individually. ECF No. 40. The next
day, Mrs. Karine Kopelman, Mr. Kopelman's wife, filed a
motion for summary judgment. ECF No. 41. Although the parties
have subsequently filed numerous additional motions, see,
e.g., ECF Nos. 74-75, 86, these three motions are the only
motions that are ripe for review at this time.
STANDARD OF REVIEW
Court may grant summary judgment if “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The moving party has the burden to show that there is
an absence of evidence to support the nonmoving party's
case. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). The nonmoving party must “designate specific
facts showing that there is a genuine issue for trial.”
Id. at 324. A fact is material “if under the
substantive law it is essential to the proper disposition of
the claim.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 670 (10th Cir. 1998). A material fact is
genuine if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court ...