United States District Court, D. Colorado
OPINION AND ORDER GRANTING IN PART MOTION TO
S. Krieger Chief United States District Judge
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.
Court has jurisdiction to hear this case under 28 U.S.C.
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
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.
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).
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 ...