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Wilson v. Advisorlaw LLC

United States District Court, D. Colorado

February 14, 2018

MARK WILSON, and WILSON LAW LTD., Plaintiffs,
v.
ADVISORLAW LLC, DOCHTOR DANIEL KENNEDY, and STACY SANTMYER, Defendants.

          OPINION AND ORDER GRANTING IN PART MOTION TO DISMISS

          Marcia S. Krieger Chief United States District Judge

         THIS MATTER comes before the Court on the Defendants' Motion to Dismiss (# 18), the Plaintiffs' responses (## 21, 22), and the Defendants' reply (# 24). For the reasons that follow, the Motion is granted, in part.

         I. JURISDICTION

         The Court has jurisdiction to hear this case under 28 U.S.C. § 1331.

         II. BACKGROUND [1]

         According to the Amended Complaint, Plaintiff Mark Wilson and Defendant Dochtor Kennedy had a business relationship through their corporate entities, Wilson Law Ltd. and AdvisorLaw LLC. AdvisorLaw elected to terminate this business relationship in October 2016.

         Thereafter, Mr. Kennedy emailed Mr. Wilson expressing disappointment that Mr. Wilson was “competing with my business.” # 11 at 6. In another email, Mr. Kennedy asserted that Mr. Wilson was using AdvisorLaw without authorization and to its detriment. That same day, posing as “Patrick Erickson, ” Mr. Kennedy posted the following review of Wilson Law on the website ripoffreport.com (Review):

Mark H. Wilson sounds very trustworthy and experienced. He lied to me with no reservations. He made claims of his experience, affiliations, credentials, and acumen [sic] which were complete fabrications. He conned me into hiring his sham of a company (operating out of his home in Denver, CO) to save my career.
I desperately needed an experienced lawyer to navigate FINRA and the IRS issues which resulted from a recent divorce. Mark portrayed himself as an expert with vast experience. Only after paying him upwards of $15, 000 did I begin to have concern over the lack of progress. After paying additional money to a professional investigator, I learned that Mark had flat out lied to me about all of it.
When I confronted Mark, he refused to admit that he had taken advantage of me. Even when hard evidence of his lies sent by email and recorded conversations proven to be lies were provided, he told me candidly “good luck getting any money back.” He said, “I am very good at hiding from judgments and collections.” That may have been the ONLY true thing he said.

Ex. 3 to Am. Compl., # 11-3 at 2 (emphases in original). After authoring the Review, Mr. Kennedy told his employees at AdvisorLaw that he had done so. He offered employee Jason Bacher $2, 000 to tell others that he had written the Review, and then told Mr. Wilson that Mr. Bacher had written the Review. Stacy Santmyer, another employee, encouraged Mr. Kennedy to blame the Review on Mr. Bacher.

         On these and other allegations, the Amended Complaint (# 11) makes the following claims: (1) false advertising under the Lanham Act, (2) four claims of racketeering activity under the Colorado Organized Crime Control Act (COCCA), (3) deceptive trade practices under the Colorado Consumer Protection Act (CCPA), (4) defamation, and (5) civil conspiracy. In addition to compensatory relief, the Plaintiffs request injunctive relief in the following forms: an order enjoining the Defendants from publishing defamatory statements about the Plaintiffs, an order requiring the Defendants to have the Review deleted from the Internet or removed from Internet search engines, an order enjoining third parties from republishing the Review, and an order requiring AdvisorLaw to report Mr. Kennedy's and Mr. Santmyer's criminal violations to law enforcement. The Defendants have moved to dismiss the Lanham Act, COCCA, and CCPA claims (# 18).

         III. LEGAL STANDARD

         In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-pleaded allegations in the complaint as true and view those allegations in the light most favorable to the nonmoving party. Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1149 (10th Cir. 2001) (quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). The Court must limit its consideration to the four corners of the complaint, any exhibits attached thereto, and any external documents that are incorporated by reference. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). However, a court may consider documents referred to in the complaint if ...


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