United States District Court, D. Colorado
A. Brimmer, Chief United States District Judge.
matter comes before the Court on Aspen Contracting,
Inc.'s Motion to Dismiss First Amended Complaint [Docket
No. 35], Patrick Nussbeck's Motion to Dismiss First
Amended Complaint [Docket No. 36], Aspen Contracting,
Inc.'s Motion for Summary Judgment [Docket No. 89],
Patrick Nussbeck's Motion for Summary Judgment [Docket
No. 92], plaintiff Aspen Roofing, Inc.'s Motion for
Preliminary Injunctive Relief with Incorporated Memorandum of
Law [Docket No. 94], Plaintiff's Motion to Strike ECF
Nos. 98-3, 98-4, 98-5, and 98-6 [Docket No. 117], and Aspen
Contracting, Inc.'s and Patrick Nussbeck's Motion for
Leave to File Sur-reply Brief In Opposition to Aspen
Roofing's Motion to Strike [Docket No. 127]. The Court
has jurisdiction pursuant to 28 U.S.C. §§ 1331,
1338, and 1367.
is a corporation that provides roofing services in El Paso
County, Colorado. Docket No. 89 at 1, ¶ 2. Plaintiff was
incorporated in Colorado in 1997. Docket No. 103 at 5, ¶
30. Defendant Aspen Contracting, Inc. (“Aspen
Contracting”) is a corporation that provides roofing,
siding, gutters, and related services in El Paso County.
Docket No. 89 at 1, ¶ 1. Defendant Patrick Nussbeck is
Aspen Contracting's president. Docket No. 102 at 3,
¶ 9. In Colorado Springs, where plaintiff is based,
there are at least four roofing companies that use the terms
“Aspen” and “roofing” in their
business names. Docket No. 89 at 3, ¶ 10.
February 17, 2017, plaintiff filed this lawsuit. Docket No.
1. Plaintiff alleges that it has used the trademark
“Aspen Roofing” in Colorado “[b]eginning as
early as 1993.” Docket No. 31 at 3, ¶ 12.
Plaintiff claims that defendants are “storm
chasers” who “follow storms around the country,
provide shoddy repairs, and then disappear from the local
area.” Id. at 4, ¶ 15. Plaintiff further
claims that defendants and their employees and agents have
“falsely . . . portrayed themselves to the consuming
public as employees or agents of [p]laintiff.”
Id. at 5, ¶ 20. As a result, plaintiff alleges
that its “name and goodwill” have been tarnished.
Id. at 8, ¶ 36. In the operative complaint,
plaintiff brings six claims for relief: (1) unfair
competition under the Lanham Act, 15 U.S.C. § 1125(a);
(2) deceptive trade practices under Colo. Rev. Stat.
§§ 6-1-101 et seq.; (3) trademark
infringement under Colorado common law; (4) unfair
competition under Colorado common law; (5) intentional
interference with actual and prospective business relations;
and (6) unjust enrichment. Id. at 9-13, ¶¶
41-76. On October 19, 2017, defendants filed motions to
dismiss. Docket Nos. 35, 36. On October 12, 2018, defendants
filed motions for summary judgment, Docket Nos. 89, 92, and
plaintiff filed a motion for a preliminary injunction. Docket
motion under Fed.R.Civ.P. 12(b)(1) is a request for the Court
to dismiss a claim for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). A plaintiff bears the burden of
establishing that the Court has jurisdiction. Basso v.
Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974). When the Court lacks subject matter jurisdiction over
a claim for relief, dismissal is proper under Rule 12(b)(1).
See Jackson v. City and Cty. of Denver, No.
11-cv-02293-PAB-KLM, 2012 WL 4355556 at *1 (D. Colo. Sept.
12(b)(1) challenges are generally presented in one of two
forms: “[t]he moving party may (1) facially attack the
complaint's allegations as to the existence of subject
matter jurisdiction, or (2) go beyond allegations contained
in the complaint by presenting evidence to challenge the
factual basis upon which subject matter jurisdiction
rests.” Merrill Lynch Bus. Fin. Servs., Inc. v.
Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting
Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir.
2003)). The court may review materials outside the pleadings
without converting the Rule 12(b)(1) motion to dismiss into a
motion for summary judgment. Davis ex rel. Davis v.
U.S., 343 F.3d 1282, 1296 (10th Cir. 2003).
Summary judgment is warranted under Federal Rule of Civil
Procedure 56 when the “movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-50 (1986). A disputed fact is “material”
if under the relevant substantive law it is essential to
proper disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only
disputes over material facts can create a genuine issue for
trial and preclude summary judgment. Faustin v. City
& Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir.
2005). An issue is “genuine” if the evidence is
such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
“the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden at the summary
judgment stage by identifying a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Bausman v. Interstate Brands Corp.,
252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation
marks omitted) (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 671 (10th Cir. 1998)). “Once
the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v.
City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The nonmoving party may not rest solely on the
allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue
for trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986) (internal quotation marks omitted). “To
avoid summary judgment, the nonmovant must establish, at a
minimum, an inference of the presence of each element
essential to the case.” Bausman, 252 F.3d at
1115. When reviewing a motion for summary judgment, a court
must view the evidence in the light most favorable to the
non-moving party. Id.
Lanham Act Claim
Court begins its analysis with plaintiff's First Claim,
which alleges that defendants are infringing its
“common law trademark, ” Aspen Roofing, under the
Lanham Act. Docket No. 94 at 5.
service mark, similar to a trademark, is defined by the
Lanham Act as “any word, name, symbol, or device, or
any combination thereof” that is used “to
identify and distinguish the services of one person,
including a unique service, from the services of others and
to indicate the source of the services, even if that source
is unknown.” 15 U.S.C. § 1127. Under § 43(a)
of the Lanham Act, the owner of any valid mark, registered or
not, may sue [a]ny person who, on or in connection with any
goods or services, or any container for goods, uses in
commerce any word, term, name, symbol, or device, or any
combination thereof, or any false designation of origin,
false or misleading description of fact, or false or
misleading representation of fact, which . . . is likely to
cause confusion, or to cause mistake, or to deceive as to the
affiliation, connection, or association of such person with
another person, or as to the origin, sponsorship, or approval
of his or her goods, services, or commercial activities by
another person. . . .
U.S.C. § 1125(a). The elements of an infringement claim
under § 43(a) are that (1) plaintiff has a protectable
interest in the mark; (2) defendant has used an identical or
similar mark in commerce; and (3) defendant's use is
likely to confuse consumers. 1-800 Contacts, Inc. v.
Lens.com, Inc., 722 F.3d 1229, 1238 (10th Cir. 2013)
(internal citations and quotations omitted).
Motions to Dismiss
their motions to dismiss, defendants argue that plaintiff,
under either Article III of the United States Constitution or
the Lanham Act, does not have standing. Docket No. 35 at 2-7;
Docket No. 36 at 2-10. Because defendants' standing
argument implicates the Court's subject matter
jurisdiction, the Court considers these arguments first.
See Cunningham v. BHP Petroleum Great Britain PLC,427 F.3d 1238, 1245 (10th Cir. 2005) (noting ...