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Aspen Roofing, Inc. v. Aspen Contracting, Inc.

United States District Court, D. Colorado

March 21, 2019

ASPEN ROOFING, INC., a Colorado corporation, Plaintiff,
ASPEN CONTRACTING, INC., a Kansas corporation, and PATRICK NUSSBECK, an individual, Defendants.


          Philip A. Brimmer, Chief United States District Judge.

         This 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.

         I. BACKGROUND [1]

         Plaintiff 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.[2]

         On 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 No. 94.


         A. Fed.R.Civ.P. 12(b)(1)

         A 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. 24, 2012).

         Rule 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).

         B. Fed.R.Civ.P. 56

          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).

         Where “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.

         III. ANALYSIS

         A. Lanham Act Claim

         The 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.[3]

         A 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. . . .

         15 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., Inc., 722 F.3d 1229, 1238 (10th Cir. 2013) (internal citations and quotations omitted).

         1. Motions to Dismiss

         In 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 ...

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