United States District Court, D. Colorado
BROOKE JACKSON, UNITED STATES DISTRICT JUDGE
Computershare Property Solutions LLC moves for leave to
assert counterclaims against plaintiff ClearCapital.com, Inc
and a third-party claim against Duane Andrews. ECF No. 65
(proposed counterclaim at ECF No. 65-1). ClearCapital.com,
Inc. opposes the request. ECF No. 73. The motion became ripe
upon the filing of Computershare Property Solutions LLC's
reply. ECF No. 76. On review of the motion and briefs, the
Court GRANTS in part and DENIES in part Computershare
Property Solutions LLC's motion.
ClearCapital.com, Inc. (“Clear Capital”) is a
California corporation with its principal place of business
in Truckee, California. Clear Capital specializes in real
estate asset valuation and collateral risk assessment.
See generally Complaint, ECF No. 1 at
¶¶1-16. Defendant Computershare, Inc. is the parent
company of defendant Computershare Property Solutions, LLC
(“Property Solutions”). Id. at ¶17.
Property Solutions is a Delaware corporation headquartered in
Highlands Ranch, Colorado. Id. It too provides
property valuation products and services. Id. at
business dispute between Clear Capital and Property Solutions
began in May 2016 when defendant James Smith unexpectedly
resigned from his position as Clear Capital's senior vice
president for sales and assumed the role of president for
competitor Property Solutions. Id. at ¶26. Nearly
two years later, Clear Capital filed a lengthy complaint on
April 6, 2018, alleging the following nine counts against
defendants: (1) misappropriation of trade secrets under the
Defend Trade Secrets Act against all defendants; (2)
misappropriation of trade secrets under Colorado law against
all defendants; (3) misappropriation of business value
against all defendants; (4) intentional interference with
prospective economic or business advantage against all
defendants; (5) breach of contract against Mr. Smith; (6)
breach of implied covenant of good faith and fair dealing
against Mr. Smith; (7) civil conspiracy against all
defendants; (8) violation of Computer Fraud and Abuse Act
against Mr. Smith; and (9) conversion against Mr. Smith. ECF
No. 1 at 23-33.
Solutions alleges that, since Clear Capital filed suit, Clear
Capital and its CEO, Mr. Andrews, have engaged in a
“wide-spread smear campaign against Property
Solutions.” ECF No. 65-1 at ¶13. Specifically, the
counterclaim alleges that Clear Capital and Mr. Andrews used
Mr. Smith's deposition and Clear Capital's
“false, defamatory, and/or unsubstantiated
allegations” in its complaint to contact dozens of
businesses in the marketplace-including numerous current and
prospective clients of Property Solutions-to disparage
Property Solutions. Id. at ¶¶13, 15, 17.
Because of these communications, the counterclaim alleges
that at least two companies subsequently cancelled their
business or prospective relationships with Property
Solutions. Id. at ¶¶18, 31.
Solutions wishes to assert two counterclaims. The first is a
claim of tortious interference with business relations
against Clear Capital and Mr. Andrews. Id. at
¶¶25-34. The alleged spreading of false and
defamatory information about Property Solutions form the
basis of this claim. See Id. at ¶28. The second
claim for relief is an abuse of process claim against Clear
Capital. Id. at ¶¶35-42. To support the
second claim, Property Solutions alleges that Clear
Capital's real motive for initiating the lawsuit in April
2018 was to seek an unlawful and unfair business advantage
over its competitor by parading Clear Capital's
allegations as facts throughout the marketplace. Id.
STANDARDS OF REVIEW
Fed. R. Civ. P. 15 - Amended and Supplemental
15(a)(2) instructs that leave to amend should be freely
granted when justice so requires. This Court freely permits
parties to amend their pleadings absent “a showing of
undue delay, undue prejudice to the opposing party, bad faith
or dilatory motive, failure to cure deficiencies by
amendments previously allowed, or futility of
amendment.” Frank v. U.S. West, Inc., 3 F.3d
1357, 1365 (10th Cir. 1993). Here, Clear Capital's chief
argument is that the counterclaim would be futile. ECF No. 73
at 4. The futility question is “functionally equivalent
to the question whether a complaint may be dismissed for
failure to state a claim.” Gohier v. Enright,
186 F.3d 1216, 1218 (10th Cir. 1999).
properly state a claim, the complaint must contain
“enough facts to state a claim to relief that is
plausible on its face.” Ridge at Red Hawk, L.L.C.
v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A plausible claim is a claim that
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While
the Court must accept the well-pleaded allegations of the
complaint as true and construe them in the light most
favorable to the plaintiff, Robbins v. Wilkie, 300
F.3d 1208, 1210 (10th Cir. 2002), conclusory allegations are
not entitled to be presumed true. Iqbal, 556 U.S. at
681. However, so long as the plaintiff offers sufficient
factual allegations such that the right to relief is raised
above the speculative level, he has met the threshold
pleading standard. See, e.g., Twombly, 550
U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286
(10th Cir. 2008).
Fed. R. Civ. P. 16 - Pretrial Conferences; Scheduling;
16(a)(4) provides that a scheduling order may be amended
“only for good cause and with the judge's
consent.” Although the scheduling order defines the
boundaries of litigation and assists parties in preparing for
trial, the Tenth Circuit has encouraged district judges to
remain flexible in allowing amended pleadings. See
Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 604
(10th Cir. 1997).
case, the scheduling order set a deadline for joinder of
parties and amendment of pleadings of July 16, 2018. ECF No.
32 at 14. I have since modified the scheduling order twice.
On February 4, 2019 I granted the parties' joint motion
to extend the discovery cut-off from February 4 to February
22. ECF Nos. 64, 66. More recently, I granted the
parties' joint motion to extend the deadlines for
designating experts and ...