Kalhorn v. Pham

          ORDER

          KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on “Plaintiff's Motion to Dismiss Defendant's Counterclaims” (Doc. No. 25 [Mot], filed September 14, 2018). Defendant filed his response on October 4, 2018 (Doc. No. 32 [Resp.]), and Plaintiff filed his reply on October 16, 2018 (Doc. No. 33 [Reply]).

         STATEMENT OF THE CASE

         Plaintiff (hereinafter referred to as “Kalhorn”) filed his First Amended Complaint on July 19, 2018, asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. No. 16 [Am. Compl.].) Kalhorn states he is a dentist in Colorado Springs, and Defendant (hereinafter referred to as “Pham”) is a real estate developer and citizen of Idaho. (Id., ¶¶ 2, 6-7.)

         A. Background Information

         Kalhorn states that in December 2015, he was approached by an acquaintance who introduced him to Anthony Zogheib and Csaba Meiszburger (the “Middlemen”). (Id., ¶ 8.) The Middlemen were silent owners of Caballos de Oro Estates LLC (“Caballos”), which owned a five-acre piece of undeveloped property in Clark County, Nevada (the “Property”). (Id., ¶ 9.a- b.) Kalhorn alleges Pham was the Middlemen's front-man and was the manager of Caballos. (Id., ¶ 9.a.) Kalhorn alleges the Middlemen told him they had various debts that needed to be paid, that they needed a creditworthy investor to pay off their debts, and they would pay him back, plus a ten percent fee, within sixty days. (Id., ¶ 9.c.) Kalhorn alleges the Middlemen agreed that if they could not pay after sixty days, Kalhorn would own the land. (Id.) Kalhorn agreed to the arrangement, and the Middlemen used the Nevada Secretary of State website to remove Pham as the manager of Caballos and replace his name with Kalhorn's name. (Id., ¶ 10.)

         Kalhorn alleges the Middlemen convinced him that he had become the sole manager and member of Caballos. (Id., ¶ 11.) Kalhorn also obtained an opinion letter from a local attorney, Rory Vohwinkle, stating that he was the rightful managing member of Caballos. (Id.) Kalhorn then obtained two loans for $1.2 million and $550, 000, using the Property as security. (Id., ¶ 12.) Kalhorn personally guaranteed each loan. (Id.)

         Kalhorn alleges the Middlemen never repaid Kalhorn, and so he began taking steps to develop the Property himself. (Id., ¶ 13.) In mid-2016, Kalhorn conveyed the Property to Prometheus and Atlas Real Estate Development, LLC, a new company he had formed to hold the Property. (Id., ¶ 14.) At the end of 2016, Pham sent a letter to Kalhorn claiming to be the rightful owner of the Property and the rightful manager of Caballos. (Id., ¶ 15.) In March 2017, Caballos filed an action in Nevada state court to clear title to the Property. (See Reply, Ex. 1.) Kalhorn alleges Pham was involved in the Middlemen's scheme to defraud him by convincing Kalhorn to pay off various debts and personally guarantee separate loans and then claiming Kalhorn has no interest in Caballos or the Property, leaving him solely responsible for the loans. (Am. Compl., ¶ 17.)

         B. Kalhorn's Claims in this Case

         Kalhorn alleges Pham is now engaged in a campaign to defame him. (Id., ¶ 18.) Specifically, Kalhorn alleges Pham was the source for an inaccurate story reported in the Las Vegas Review-Journal, published Sunday, May 20, 2018, which characterizes Kalhorn as a “fraudster” and portrays Pham as the victim of fraud committed by Kalhorn. (Id., ¶ 19.) Kalhorn also alleges on May 28, 2018, in the building where Kalhorn's dental office is located, Pham handed out copies of the Review-Journal article along with copies of a flyer calling Kalhorn a “Corporate Land Thief” and directing recipients to a website titled StopJamesKalhorn.com. (Id., 20-21.) As of June 29, 2018, the front page of the website was topped with a photo of Kalhorn captioned “JAMES KALHORN'S MUGSHOT” and text reading, “WANTED: STEALING BY DECEIT AND CROSSING STATE LINE TO COMMIT GRAND LARCENY.” (Id., ¶ 21.) As of July 2, 2018, the website had been edited to read, “Dentist in Colorado Springs wanted: STEALING BY DECEIT AND GRAND LARCENY.” (Id., ¶ 22.) The updated webpage is supplemented with a photo of Pham holding the flyer in front of Kalhorn's dental practice. (Id., ¶ 23.) A previous version of the website was headlined: “Accomplices of James Kalhorn” followed by a photo of an FBI “Wanted” poster. (Id., ¶ 24.) Kalhorn alleges the website, among other things, (1) accuses “the entire City Council of Las Vegas, including the Mayor” of “unwittingly . . . assist[ing]” “a total swindler;” (2) accuses Kalhorn of being a “land thief” and “corporate identity thief” and of committing “corporate identity fraud;” and (3) asserts that Kalhorn engineered a sophisticated scheme to steal Pham's property. (Id., ¶ 26.)

         Kalhorn alleges that Yvonne Serna, a woman who works across the street from Kalhorn's office, encountered Pham handing out these flyers stapled to copies of the newspaper article and told Ms. Serna that Kalhorn stole the property across the street from Pham by forging documents and filing them with the Nevada Secretary of State and that Kalhorn was a thief and a liar. (Id., ¶ 27.) Kalhorn also alleges David Zallar received a copy of the flyer and reviewed the website content and, as a result, Mr. Zallar has decided not to invest $250, 000 in Alma Tequila Company (“Alma Tequila”), a company in which Kalhorn is an equity shareholder. (Id., ¶ 28.) Kalhorn also alleges Matthais Bober was made aware of Pham's website and viewed the content and, as a result, Mr. Bober has decided not to invest $350, 000-400, 000 in Alma Tequila. (Id., ¶ 29.)

         Kalhorn asserts common law claims for Defamation-Libel Per Se related to the flyer and the website, Defamation-Slander Per Se related to the statements to Kalhorn's business neighbor, and Tortious Interference with Prospective Business Advantage related to his dental patients and potential investors. (Id., ¶¶ 31-57.)

         C. Counterclaims in this Case

          Pham filed his Counterclaims on August 30, 2018. (Doc. No. 20 at 12-17.) Pham asserts that Kalhorn “fraudulently and without authorization from Mr. Pham or Caballos, signed into the Nevada Secretary of State website and [twice] amended the list of Caballos managing members, ” removing Pham and adding himself as sole managing member of Caballos. (Id., ¶¶ 13, 14.) Pham alleges Kalhorn secured two promissory notes and used the Property as security on the loans. (Id., ¶ 15-16.) Pham alleges Kalhorn made no payments on either loan and, on July 27, 2016, “sold” the Property to Prometheus & Atlas Real Estate Development LLC (“Prometheus”), a company owned solely by Kalhorn, without any payment to Caballos. (Id., ¶¶ 17-20.)

         Pham alleges Kalhorn, acting on behalf of Prometheus, then submitted plans to the City of Las Vegas to modify the zoning of the Property from low-density residential to medium-density residential. (Id., ¶ 21.) The City of Las Vegas approved the zoning modification (id., ¶ 22), and then Kalhorn listed the property for sale (id., ¶ 23). However, one of the secured creditors recorded a Breach and Election to sell the property due to Kalhorn's alleged failure to make any ...