United States District Court, D. Colorado
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., ΒΆ 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
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