United States District Court, D. Colorado
DALKITA, INC., d/b/a Dalkita Construction, Plaintiff/Counterclaim Defendant,
DEVIN MILLS CONSULTING, LLC, and DEVIN MILLS, Defendants/Counterclaim Plaintiffs,
COLLEEN MOORE, Counterclaim Defendant.
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Dalkita's Motion to
Dismiss Claims 1 and 4 [Docket No. 20] and Colleen
Moore's Motion to Dismiss Claims 1 and 4 [Docket No. 38].
The Court has jurisdiction pursuant to 28 U.S.C. §§
1331 and 1367.
case involves a dispute over the ownership of a podcast.
Docket No. 10 at 14-17, ¶¶ 146-59. In March 2017,
Devin Mills developed the idea for the Distilling Craft
Podcast (“the podcast”). Id. at 12-13,
¶¶ 135, 140. He hired a graphic designer to design
the logo for the Distilling Craft trademark and purchased the
DistillingCraft.com domain name. Id. at 13, ¶
140. During this period, Mills was employed part-time as a
distillery engineer for Dalkita Construction, Inc.
(“Dalkita”). Id. at 12, ¶ 138. His
employment did not include the creation of podcasts or other
intellectual property for Dalkita. Id. at 12-13,
April 1, 2017, Mills informed Colleen Moore
(“Moore”), the principal of Dalkita, and her
husband, Scott Moore, of the podcast. Id. at 12-13,
¶¶ 131, 141. Moore suggested that “Dalkita
sponsor the Podcast in exchange for advertising space on
Mills' show.” Id. at 13, ¶ 142.
Specifically, “Moore . . . falsely represented to Mills
that Dalkita would pay some of the expenses to create the
Podcast as a sponsor in exchange for advertising space and
increased exposure from the Podcast, and that was the only
consideration that Dalkita requested or that Mills agreed to
provide.” Id. at 17, ¶ 163; see also
Id. at 13, ¶ 143. In reality, Moore and Dalkita
“wanted to try to unlawfully steal intellectual
property rights in the Podcast from Mills and claim it as
their own for use by Dalkita.” Id. at 18,
¶ 164. Moore “made the false representations to
induce Mills to allow them access to his intellectual
property including, but not limited to, his Podcast ideas and
content, and to locate the Podcast and content on
Dalkita's w ebsite and computers.” Id.,
¶ 165. As a result of Moore's representations, Moore
and Dalkita “gained access and control over at least
twenty . . . Podcast episodes as well as Mills' concept
and intellectual property.” Id., ¶ 169.
filed this lawsuit on June 6, 2018 asserting the following
claims against Mills and Distilling Craft LLC
(“Distilling Craft”): (1) trademark infringement
and false designation of origin under § 43(a) of the
Lanham Act, 15 U.S.C. § 1125(a); (2) cybersquatting
under § 43(d) of the Lanham Act, 15 U.S.C. §
1125(d); (3) deceptive trade practices under the Colorado
Consumer Protection Act, Colo. Rev. Stat. § 6-1-101
et seq.; (4) trademark infringement under Colorado
common law; (5) unfair competition under Colorado law; (6)
intentional interference with contractual relations under
Colorado law; and (7) misappropriation of trade secrets under
the Colorado Uniform Trade Secrets Act, Colo. Rev. Stat.
§ 7-74-102 et seq. Docket No. 1. In their
answer to the complaint, filed on August 6, 2018, Mills and
Distilling Craft (“counterclaimants”) asserted
four counterclaims against Dalkita and Moore: (1) fraud; (2)
trademark infringement; (2) misappropriation of trade values
and unfair competition; and (4) injunctive relief. Docket No.
10 at 11-21. Dalkita and Moore filed separate motions
to dismiss counterclaims one and four for failure to state a
claim under Fed.R.Civ.P. 12(b)(6). Docket Nos. 20,
Counterclaimants filed responses to both motions, Docket Nos.
29, 39, to which neither Dalkita nor Moore replied.
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a complaint must allege
enough factual matter that, taken as true, makes the
plaintiff's “claim to relief . . . plausible on its
face.” Khalik v. United Air Lines, 671 F.3d
1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
- but it has not shown - that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (internal quotation marks and alteration marks
omitted); see also Khalik, 671 F.3d at 1190
(“A plaintiff must nudge [his] claims across the line
from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)).
If a complaint's allegations are “so general that
they encompass a wide swath of conduct, much of it innocent,
” then plaintiff has not stated a plausible claim.
Khalik, 671 F.3d at 1191 (quotations omitted). Thus,
even though modern rules of pleading are somewhat forgiving,
“a complaint still must contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008) (alteration marks omitted).
allege that Moore committed fraud by “falsely
represent[ing] to Mills that Dalkita would pay some of the
expenses to create the Podcast as a sponsor in exchange for
advertising space and increased exposure from the Podcast,
and that was the only consideration that Dalkita requested or
that Mills agree to provide.” Docket No. 10 at 17,
establish fraud under Colorado law,  a plaintiff must plead facts
showing that (1) the defendant made a false representation of
a material fact; (2) the defendant knew the representation
was false; (3) the plaintiff was ignorant of the falsity of
the representation; (4) the representation was made with the
intent that it be acted upon; and (5) the plaintiff's
reliance on the false representation caused the
plaintiff's harm. Coors v. Sec. Life of Denver Ins.
Co., 112 P.3d 59, 66 (Colo. 2005). Dalkita and Moore
argue that counterclaimants' allegations are insufficient
to establish causation, or the fifth element of their fraud
claim, because any harm to counterclaimants was caused, not
by the parties' sponsorship agreement, but by Devin
Mills' voluntary decision to give Dalkita access to his
podcast. Docket No. 20 at 2-3; Docket No. 38 at 3-4.
appears to read counterclaimants' allegations as
establishing that the parties' only agreement was that
Dalkita would “pay some of the expenses to create the
Podcast” in exchange for “advertising space and
increased exposure.” Docket No. 20 at 3-4 (quoting
Docket No. 10 at 17, ¶ 163). Because Dalkita followed
through on that agreement, Dalkita argues that Mills'
decision to host the podcast on Dalkita's servers was
made independently from “any allegedly false statements
Dalkita made.” Docket No. 20 at 3; see also
Docket No. 29 at 2-3 (construing Dalkita's argument as:
“[Dalkita] upheld the terms of its agreement to sponsor
Defendants' Podcast by paying for expenses, so how can
Defendants be damaged?”).
Court agrees that Dalkita's argument “ignores the
crux” of counterclaimants' allegations. Docket No.
29 at 3. Counterclaimants allege that Moore “falsely
represented to Mills that all Dalkita wanted was to sponsor
the Podcast” as a way to induce Mills to give Dalkita
access and control over the podcast. Docket No. 10 at 17-18,
¶¶ 162, 164-65. The relevant falsity for purposes
of the fraud claim was thus Moore's statement that
Dalkita was only seeking a sponsorship deal when, in reality,
she and Dalkita intended to “unlawfully steal
intellectual property rights in the Podcast . . . and claim
it as their own.” Docket No. 10 at 18, ¶ 164;
see also Docket No. 29 at 3 (stating that the
“crux” of counterclaimants' allegations is
that “Plaintiff fraudulently induced Defendants to
enter into a sponsorship arrangement when its real motivation
was to gain access and control over the Podcast”).
Because counterclaimants further allege ...