United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTION TO DISMISS AMENDED
COUNTERCLAIM (ECF NO. 22)
L. KANE SENIOR U.S. DISTRICT JUDGE.
case involves the stormy failure of an adulterous
relationship. Plaintiff Jessica Kaufmann alleges that, after
she terminated her relationship with Defendant Joe Irvin, Mr.
Irvin threatened her and badmouthed her in their industry.
She brings claims for defamation, outrageous conduct, and
intentional infliction of emotional distress. Defendant Irvin
alleges that he, not Ms. Kaufmann, terminated their
relationship because he chose to remain with his wife and
that Ms. Kaufmann brought this suit in retaliation. He brings
a counterclaim for abuse of process.
Kaufmann moves to dismiss Mr. Irvin's abuse of process
counterclaim pursuant to Federal Rule of Civil Procedure
12(b)(6), arguing that Mr. Irvin has failed to adequately
plead that she has used this legal proceeding in an improper
manner. See Motion to Dismiss Amended Counterclaim,
ECF No. 22. I agree, and accordingly dismiss Mr. Irvin's
motion under Rule 12(b)(6), I must decide whether the factual
allegations in Defendant Irvin's counterclaim, if true,
allow the court to draw a reasonable inference that Plaintiff
Kaufmann is liable for the misconduct alleged. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). As such, I consider
the facts as alleged by Mr. Irvin in his counterclaim, which
differ substantially from Ms. Kaufmann's account of their
Kaufmann and Mr. Irvin first met in 2013 while they were both
working in the oil and gas industry in North Dakota. In
October 2015, they began a romantic relationship despite the
fact that Mr. Irvin was married. Mr. Irvin claims Ms.
Kaufmann instigated the relationship by approaching him at
their hotel, pushing her way into his room, and confessing
that she had been in love with him for years and wanted to
have a child with him. A few months later, Ms. Kaufmann
resigned from the environmental engineering firm where she
had been employed and began working at Mr. Irvin's oil
and gas consulting business, Petra Environmental Systems,
Irvin ended their romantic relationship in February 2017,
deciding instead to remain with his wife. Ms. Kaufmann
reacted by texting and emailing him unprofessional,
offensive, and vulgar comments, including the following:
“I wish you were dead”; “A crash
whatever”; “I would love to get up uninvited to
your funeral pile and unload in front of everyone you ever
cared about what a complete lying POS you truly are”;
“I hate you”; “I hate you so much and
unless you're in a pine box I could not even think about
ever looking at you or having a conversation with you”;
“Did you manage to get it up to try and make up with
her?”; “You and [your wife] are soulless
uneducated southern f*cks”; “I know you have no
morals and could not be a man and tell the truth no matters
who's life depends on it”; and “You're an
ass and an idiot . . . Wow are you as stupid as your
wife.” Am. Counterclaim at 9, ECF No. 20. Upon
receiving these messages, Mr. Irvin blocked Ms. Kaufmann from
calling or texting him and requested that she only contact
him through email, with all communications to be kept
professional and include another Petra employee.
Kaufmann also emailed Mr. Irvin's wife offensive and
vulgar comments, telling his wife intimate details of their
relationship and claiming that he did not love his wife
“enough” to have a child with her. Id.
Ms. Kaufmann threatened to sue Mr. Irvin numerous times for
their failed romantic relationship and continued to escalate
her communications and threats. For example, during a phone
call with Mr. Irvin on April 27, 2017, Ms. Kaufmann stated
“I'm taking you down” by legal action.
Id. at 10.
September 2017, Ms. Kaufman was terminated from Petra via
correspondence from Petra's attorney, which noted the
following incidents that precipitated her termination:
• Her threats to Mr. Irvin and Petra; foul and abusive
language toward Mr. Irvin, Petra, and management; and
derogatory comments made to Mr. Irvin, Petra, and third
parties including Petra's CPA and Petra's customers;
• Her interference or attempted interference with
Petra's banking, domain name, and IS Networld account;
• Her insubordination, inability to work with others,
attempts to turn other employees against Mr. Irvin and Petra,
and refusal to complete work assignments.
Kaufmann continued to send harassing emails to Mr. Irvin and
his wife after she was terminated, even after Petra's
attorney told her to stop. She likewise persisted with her
threats that she was going to bring a lawsuit against Mr.
Irvin. And, on August 16, 2018, Ms. Kaufmann filed this