Wilson v. Advisorlaw, LLC

          OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT, MOTION TO DISMISS, AND MOTION FOR SANCTIONS

          Marcia S. Krieger Chief Judge

         THIS 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.

         I. JURISDICTION

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

         II. FACTUAL BACKGROUND

         This action arises out of a business dispute. The undisputed facts^[1] 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 2016.

         Apparently, 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).

         Forensic 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.

         In the 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.

         III. ...