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United States District Court, D. Colorado

April 11, 2019

CLEARCAPITAL.COM, INC., California Corporation, Plaintiff,
COMPUTERSHARE, INC., a Delaware Corporation, COMPUTERSHARE PROPERTY SOLUTIONS LLC, a Delaware LLC d/b/a Property Solutions, Part of the Computershare Group, and JAMES SMITH, an individual and resident of Colorado, Defendants.


          R. Brooke Jackson, United States District Judge

         Defendant Computershare Property Solutions LLC moves for leave to assert counterclaims against plaintiff, Inc and a third-party claim against Duane Andrews. ECF No. 65 (proposed counterclaim at ECF No. 65-1)., 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.

         I. BACKGROUND

         Plaintiff, 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 ¶23.

         The 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.[1] 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.

         Property 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.

         Property 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. at ¶¶36-39.


         A. Fed. R. Civ. P. 15 - Amended and Supplemental Pleadings.

         Rule 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).

         To 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).

         B. Fed. R. Civ. P. 16 - Pretrial Conferences; Scheduling; Management.

         Rule 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).

         In this 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 ...

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