United States District Court, D. Colorado
& RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM AND FOR NONJOINDER (DKT. #19);
DEFENDANTS' MOTION TO DISMISS FOR FORUM NON CONVENIENS
(DKT. #16); DEFENDANTS' MOTION CHALLENGING REQUEST FOR
RETRACTION UNDER THE TEXAS DEFAMATION MITIGATION ACT (DKT.
#21); AND PLAINTIFFS' OPPOSED MOTION FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT (DKT. #32)
Reid Neureiter United State Magistrate Judge
matter is before the Court on the following:
Defendants' Motion to Dismiss for Failure to State a
Claim and for Nonjoinder (Dkt. #19);
Defendants' Motion to Dismiss for Forum Non Conveniens
Defendants' Motion Challenging Request for Retraction
Under the Texas Defamation Mitigation Act (Dkt. #21); and
Plaintiffs' Opposed Motion for Leave to File Second
Amended Complaint (Dkt. #32).
Motions were referred by Judge Christine M. Arguello pursuant
to two Memoranda dated August 28, 2018 (Dkt. #34 and #36).
Court has reviewed the parties' filings, taken judicial
notice of the Court's entire file in this case, and
considered the applicable Federal Rules of Civil Procedure,
statutes, and case law. The Court also heard extensive oral
argument at a hearing held on September 28, 2018. Being fully
informed, and for the reasons addressed more fully herein,
the Court RECOMMENDS that Defendants' Motion to Dismiss
for Failure to State a Claim and for Nonjoinder (Dkt. # 19)
be GRANTED in part. The Court FINDS and CONCLUDES that
Plaintiffs' defamation claim fails to state a claim on
which relief may be granted and therefore should be dismissed
pursuant to Fed. R. Civ, P. 12(b)(6). The Motion is DENIED in
part, to the extent it seeks dismissal for nonjoinder. The
Court further RECOMMENDS that Defendants' remaining
motions be DENIED as moot.
Court also notes, however, that Defendants' Motion
Challenging Request for Retraction Under the Texas Defamation
Mitigation Act ("TDMA") (Dkt. #21), seeking
dismissal of Plaintiffs' claim for failing to comply with
certain TDMA requirements (indicating this motion essentially
seeks dismissal for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6)), fails to comply with CMA Civ.
Practice Standard 7.1 D(b), which requires "[a]ll
requests for relief under any part of Fed.R.Civ.P. 12 [to] be
brought under a single motion." As a result, Docket #21
is a noncompliant motion under CMA Civ. Practice Standard
7.1A(e)(1), that could have been "denied in whole or
part without prejudice, or their determination delayed
relative to compliant motions." CMA Civ. Practice
in light of the Court's recommendation that
Plaintiff's sole claim be dismissed for failure to state
a claim, and the concession by Plaintiffs' counsel at the
September 28, 2018 hearing that Plaintiffs' proposed
Second Amended Complaint does not address or rectify the
issues raised in Defendants' Motion to Dismiss (Dkt.
#19), the Court further RECOMMENDS that Plaintiffs'
Opposed Motion for Leave to File Second Amended Complaint
(Dkt. #32) be DENIED as futile.
The Family Dispute-and Texas Lawsuit-Between First
case arises out of a heated family dispute between two first
cousins (Dkt #10 ¶4). Plaintiff Sarah Nguyen, her first
cousin Teresa Vu, and their respective spouses (Plaintiff
Alex Nguyen and Quoc Le) co-owned a car wash in Houston,
Texas, Teresa and Quoc alleged Sarah and Alex owed
them approximately $100, 000.00 from the car wash business.
On May 25, 2017, Teresa and Quoc's FLP sued Sarah and
Alex's FLP and also Alex in Texas state court when Sarah
and Alex refused to pay them (the Texas Lawsuit")
alleging (among other claims) breach of contract, and seeking
to recover lost profits/unpaid distributions, among other
damages. (See, e.g., Fifth Amended Petition filed in the
Texas Lawsuit, Dkt. #16-4.) Thus, Plaintiffs in this case
were, for all intents and purposes, the defendants in the
court in the Texas Lawsuit granted partial summary judgment
in favor of Le-Vu FLP (Quocand Teresa's FLP)on December
12, 2017, finding the defendants in that case (essentially
the Plaintiffs here) did in fact owe money to first cousin
Teresa and Quoc's FLP, and ordered defendants to pay
approximately $123, 000.00 in unpaid distribution damages,
value destruction damages, costs, and attorney fees (Dkt,
#16-2). The parties to the Texas Lawsuit thereafter reached a
settlement in February 2018, pursuant to which the Texas
defendants (again, essentially the Plaintiffs here) paid
$147, 000.00 to "purchas[e] all of Le-Vu FLP's
interest in the company" (the "Texas
Settlement") (Dkt. #10 ¶ 13).
The First Cousins' Parents become Embroiled in the
Texas Lawsuit was contentious and, not surprisingly,
Teresa's parents, Defendants Mai and Hung Vu, took her
and Quoc's side (Dkt. #10 ¶ 4). To that end, Mai and
Hung Vu, who live in Colorado, had a number of conversations
with Mai's brother Peter Hoang and his wife Martha
(Sarah's parents) regarding the Texas Lawsuit During
these conversations-which allegedly escalated into heated
arguments-Mai and Hung Vu stated their niece Sarah and her
husband Alex owed and should pay the Vu's daughter and
son-in-law Teresa and Quoc the approximately $100, 000 that
Teresa and Quoc sought to recover in the Texas Lawsuit (e.g.,
Dkt. #10¶¶4, 8-11). So the business dispute between
the cousins escalated into a family dispute between the
cousins' respective parents.
intra-family conversations, arguments, and associated
accusations of misconduct, form the basis of the defamation
lawsuit presently before this Court. As Plaintiffs
acknowledge: "It is within this context [the
cousins' carwash dispute, and filing of the Texas
Lawsuit] that the events regarding the defamation allegations
made the subject of this lawsuit arose" (/a*. ¶ 7).
Specifically, Plaintiffs here, Sarah and Alex, allege that
Sarah's aunt and uncle (Defendants Mai and Hung Vu) made
defamatory statements about them to Sarah's parents, the
Hoangs, on approximately five separate occasions. To wit:
or about August 20, 2016, Mai and Hung called Peter "and
accused Alex and Sarah of stealing $100, 000 from Quoc and
Teresa. An argument ensued, but this was the first of many
times Mai and Hung accused Alex of theft" (id.
(3) on or about February 25, 2017, and again on or about
March 12, 2017, Mai said to Peter and Martha "Are you
going to get Alex and Sarah to give Quoc and [Teresa] Phuong
back the $100, 000 they robbed of them?" (id.
or about May 22, 2017, Mai said to Peter while visiting
Houston "Hey, you still
haven't got Alex and Sarah to give the money
they stole back yet" (id. ¶10); and
or about June 20, 2017, Mai and Hung told Peter and Martha,
"your children are thieves. They robbed our kids."
This statement was made in the course of an argument where
"[p]lastic water bottles were  thrown"
these statements were made to Mai's brother Peter and his
wife Martha (Plaintiff Sarah's parents), possibly in the
presence of a few other immediate family members,
none were made to or in the presence of any non-family third
also allege that, on or about August 8, 2017, Peter's
brother, Dung Hoang, "called Peter from Canada, after
returning from a trip to Denver, to warn him and have him
tell Alex Nguyen they should be careful and watch out as she
[sic] heard Mai & Hung making threats" (id.
¶12). Dung allegedly said to Peter "you need to
watch yourself. I heard Mai talking about their family going
to take care of you, your family, and Alex and Sarah
(threaten to take care of the thieves)" (id.).
At the September 28, 2018 hearing, Plaintiffs' counsel
confirmed the latter parenthetical statement was
counsel's characterization of the conversation, not the
words actually spoken.
the alleged defamatory statements were made prior to or
within a few months after the filing of the Texas Lawsuit on
May 25, 2017 (id. ¶¶8-11). After the Texas
Court granted summary judgment in favor of the Texas
plaintiffs on their claim for breach of contract, ordering
the Plaintiffs here to pay in excess of $100, 000.00 in
damages (for unpaid distributions, value destruction, and
also attorney fees), and three months after the parties to
the Texas lawsuit entered the Texas Settlement, Plaintiffs
filed this lawsuit on May 11, 2018 (Dkt. #1). The suit
asserts one claim for defamation against Defendants Mai and
Hung Vu based on the statements they made to Plaintiffs'
Defendants' Motion to Dismiss for Failure to ...