United States District Court, D. Colorado
D. DOMENICO, UNITED STATES DISTRICT JUDGE
manufacturer and distributor of metal and vinyl products,
including replacement windows and doors-brought this case
against three of its former sales representatives and the
competitor that hired them, seeking damages and injunctive
relief for alleged breach of contract, misappropriation of
trade secrets, defamation, and related harms. Defendants
filed four counterclaims (Doc. 41), three of which Plaintiff
moves to dismiss for failure to state claims under Federal
Rule of Civil Procedure 12(b)(6). (Motion, Doc. 44.) For the
reasons that follow, the Court GRANTS the
Amerimax and Defendant Anlin are window vendors
that sell to dealers. (Countercl. ¶ 1, Doc. 41.) This
case centers on certain customer lists and confidential
information that Amerimax alleges it owns but that its former
employees misappropriated as they departed Amerimax to work
for Anlin. (See generally Am. Compl., Doc. 38.) The
facts as described below are drawn from the allegations in
the counterclaim, which the Court must treat as true when
considering a motion to dismiss. Wilson v. Montano,
715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v.
Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
publishes a price book for its products, which is widely
available and routinely received by dealers. (Countercl.
¶ 3.) However, Amerimax typically charges dealers less
than the price published in the book-at a discount that
varies per dealer based on a “Base Factor” and
“Options Factor”-pursuant to an industry standard
practice. (Id.) Dealers are not required to keep
their individualized pricing confidential and regularly
disclose such information in negotiations with competitors of
Amerimax. (Id. ¶ 4.) Amerimax maintains a
spreadsheet of the Base Factors for all its customers, which
it calls the “Master Pricing List.” (Id.
October 2003, Amerimax hired Defendant Marie Clark, who
worked as a sales representative for the company with
territory in Colorado, Wyoming, and Nebraska. (Id.
¶ 21.) In July 2006, Amerimax hired Defendant John
Applegate, who worked as a sales representative with
territory in Colorado, New Mexico, and Texas. (Id.
¶ 6.) Neither had any supervisory responsibilities.
(Id. ¶¶ 8, 23.) In May 2016, Amerimax sent
Applegate and Clark an e-mail with the subject
“Restrictive Covenant Agreement, ” stating that
“effective immediately . . . [e]mployees who are
eligible for any bonus or incentive must sign the agreement
on an annual basis. Employees who fail to do so will not be
paid any bonus or incentive payment.” Amerimax sent a
follow-up e-mail a few days later stating that “[i]n
order for Q1 SIP bonuses to be processed and paid - these
[agreements] need to be turned in today.” (Id.
¶¶ 11, 26 (“Agreements”).) Both
Applegate and Clark were eligible for bonuses and signed the
documents, but currently insist that none of the information
to which they had access during their time with the company
was ever identified as confidential or secret. (Id.
¶¶ 13, 27.)
ineffective servicing of customers, compensation and benefits
issues, unrealistic sales targets, and (in the case of Clark)
offensive offhand remarks, Clark and Applegate eventually
provided two weeks' notice and resigned effective May and
June 2018, respectively. (Id. ¶¶ 16, 18,
27, 30.) Shortly after their departures, both went to work
for Anlin. (Id. ¶¶ 17, 31.) On June 25,
2018, Anlin mailed an announcement to many window
contractors, including Amerimax customers, advertising
Clark's new affiliation with Anlin. (Id. ¶
32.) On July 2, 2018, Anlin did the same regarding Applegate.
(Id. ¶18.) Both employees maintain that they
did not take the Master Pricing List, memorize it, or use the
information contained therein with respect their employment
with Anlin. (Id. ¶¶ 17, 31.) Neither
directly solicited any Amerimax customers or made any
disparaging comments concerning their former employer.
(Id. ¶¶ 19-20, 33-34.)
September 2009, Amerimax hired Defendant Patricia Moline as a
customer service representative to handle incoming orders and
inquiries. (Id. ¶ 35.) She does not recall ever
being presented with or signing a “Restrictive Covenant
Agreement.” (Id. ¶ 38.) Citing stagnant
compensation and decreasing benefits, she left Amerimax in
June 2018. (Id. ¶¶ 39, 42.) Like Applegate
and Clark, she maintains that none of the information to
which she was privy at Amerimax was described as secret or
confidential, she did not take or use the Master Pricing
List, and she has never made any disparaging remarks about
her former employer. (Id. ¶¶ 39, 43.)
brought this action for damages and injunctive relief against
Defendants, alleging breaches of non-compete and
non-solicitation covenants and related obligations, as well
as violations of the Colorado Uniform Trade Secrets Act.
Defendants asserted four counterclaims against Amerimax.
Count One pursues a declaration under Colo. Rev. Stat. §
8-2-113(1)-(2) that none of the Agreements are enforceable
against Applegate, Clark, or Moline. Count Two seeks damages
pursuant to the same statute to compensate Applegate and
Clark for the alleged threats and intimidation Amerimax
employed in causing them to sign the Agreements. Count Three
asserts unlawful restraint of trade in violation of Colo.
Rev. Stat. § 6-4-104. Count Four claims that
Amerimax's filing and prosecution of this case is an
abuse of process. The instant Motion seeks dismissal of the
latter three of these claims.
legal sufficiency of a pleading is a question of law.
Dubbs v. Head Start, Inc., 1194, 1201 (10th Cir.
2003). As noted above, at this stage all allegations of
material fact in support of the counterclaims must be
accepted as true. Wilson v. Montano, 715 F.3d at 850
n.1. Still, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Plausibility means
that the pleader set forth facts which allow “the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
“[L]abels and conclusions, and a formulaic recitation
of a cause of action's elements will not do.”
Twombly, 550 U.S. at 545.
Count Two: Claim for Damages Under Colo. Rev. Stat. §
second claim is for damages they allege were caused by
Amerimax's use of “threats and/or intimidation to
cause Applegate and Clark to sign” the Agreements.
(Countercl. ¶ 54, Doc. 41.) This, they argue, violates
Colorado law and entitles them to sue for damages. The
statute in question, dubbed “Unlawful to intimidate
worker--agreement not to compete, ” declares it
“unlawful to use force, threats, or other means of
intimidation to prevent any person from engaging in any
lawful occupation at any place he sees fit.” Colo Rev.
Stat. § 8-2- 113(1). It goes on to declare that except
for certain contracts, including those for the protection of
trade secrets or regarding management personnel and executive
staff, “any covenant not to compete . . . shall be
void.” Id. § 8-2-113(2). Applegate and
Clark allege that they were damaged by Amerimax's
“use[ of] threats and/or intimidation . . . .
Specifically, Amerimax threatened Applegate and Clark in
emails that unless they signed [a] Restrictive Covenant
Agreement, they would not receive bonuses to which they were
already entitled.” (Countercl. ¶¶ 54-55.)
Amerimax responds that even if one assumes its behavior
violated the statute, the state legislature did not intend
this provision to create a private right of action for
diversity case like this one, federal courts seek to
ascertain and apply state law and must defer to the decisions
of the controlling state's highest court. Kokins v.
Teleflex, Inc., 621 F.3d 1290, 1295 (10th Cir. 2010).
Unfortunately, no party has pointed to any Colorado decision
with direct guidance on the question whether a party may seek
damages for a statutorily improper threat under Section 113.
And the statute itself provides no express authorization for
a such a claim. So, the Court must divine whether such
authorization should be inferred. In matters of statutory
interpretation, Colorado's Supreme Court has declared
that a court's “fundamental task must be to discern
and effectuate the legislature's intent. When, as here, a
claimant alleges that a statute, ordinance, or regulation
implicitly creates a private right of action, the critical
question is whether the legislature intended such a
result.” City of Arvada ex rel. Arvada Police
Dep't v. Denver Health & Hosp. Auth., 403 P.3d
609, 614 (Colo. 2017). This Court is not convinced of the
practicality of that intent-based approach to ...