United States District Court, D. Colorado
OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY
JUDGMENT, MOTION TO DISMISS, AND MOTION FOR
S. Krieger Chief Judge
MATTER comes before the Court on the Plaintiffs'
Motion for Sanctions (# 58), the
Defendants' response (# 59), and the
Plaintiffs' reply (# 67); the
Defendants' Motion to Dismiss (# 61),
the Plaintiffs' response (# 69), and the
Defendants' reply (# 72); the
Plaintiffs' Motion for Summary Judgment (#
62), the Defendants' response (#
70), and the Plaintiffs' reply (#
74); the Defendants' Motion for Summary Judgment
(# 63), the Plaintiffs' response
(# 71), and the Defendants' reply
(# 73). For the reasons that follow, the
Defendants' Motion for Summary Judgment is granted on one
claim and the rest are dismissed.
Court has jurisdiction to hear this case under 28 U.S.C.
action arises out of a business dispute. The undisputed
facts can be summarized briefly and are
supplemented as necessary in the Court's analysis.
According to the Amended Complaint, Plaintiff Mark Wilson and
Defendant Dochtor Kennedy did business through corporate
entities, Wilson Law Ltd. and AdvisorLaw LLC, respectively,
which entities did business with each other. AdvisorLaw
elected to terminate this business relationship in October
the separation was not amicable. In an email on November 2,
2016, Mr. Kennedy accused Mr. Wilson of “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, a
“Patrick Erickson” posted a negative 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).
evidence indicates that the Review was posted at 8:23 PM from
Mr. Kennedy's home. Mr. Kennedy was at his home that
night, but Jason Bacher was also there for a period of time.
The evidence of record does not conclusively indicate when
Mr. Bacher left the house. The parties thus advance competing
theories as to how the Review was posted: the Plaintiffs say
Mr. Kennedy posted the Review, and the Defendants maintain
that Mr. Bacher posted it.
Amended Complaint (# 11), the Plaintiff
asserts the following claims: (1) false advertising under the
Lanham Act, (2) deceptive trade practices under the Colorado
Consumer Protection Act (CCPA), (4) defamation, and (5) civil
conspiracy. In their Answer (# 17), the
Defendants assert four counterclaims: (1) civil conspiracy,
(2) three claims under the Colorado Organized Crime Control
Act, and (3) aiding and abetting a breach of fiduciary duty.
Both parties have moved for summary judgment (##
62, 63), the Defendants on three of
the Plaintiffs' claims and the Plaintiffs on an element
of its defamation claim.