United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER ON MOTIONS TO
DISMISS
Marcia
S. Krieger, Senior United States District Judge
THIS
MATTER comes before the Court on the
Defendants’ Motions to Dismiss (## 38–
42), the Plaintiff’s combined Responses
(## 56–57), and the Defendants’
Replies (## 60–64). For the reasons
that follow, the Motions are granted.
I.
JURISDICTION
The
Court has subject-matter jurisdiction to hear this case under
28 U.S.C. § 1331. The parties dispute whether the Court
can exercise personal jurisdiction over certain Defendants.
II.
BACKGROUND[1]
In
brief summary, this case is a dispute between two publishers
of magazines marketing the services and products of home-
improvement contractors in Denver. The Plaintiff, often
referred to as GoDabo, is a Colorado limited liability
company that began publishing its magazine in January 2018.
Before that date, only one magazine was published in Denver -
“TheHomeMag” - published by Antsel Marketing LLC,
the Colorado franchisee of the TheHomeMag system. The
franchisor of the system was a Florida limited liability
company, THM Management LLC. In this action, GoDabo alleges
that Antsel Marketing, THM Management, and the other
Defendants[2] engaged in a campaign to drive GoDabo out
of the market. For purposes of consideration of the pending
motions, the Court will refer to the Plaintiff as GoDabo,
Antsel Marketing LLC as the Colorado Franchisee, and THM
Management LLC as the National Franchisor.
The
Amended Complaint (# 21) alleges that, as
part of a campaign to drive GoDabo out of the market, the
Defendants made false statements were made about it and its
operation. One source was a July 5, 2018, email sent by the
Individual Defendants to GoDabo’s and the Colorado
Franchisee’s customers. It stated:
It has been brought to our attention that GoDabo has not yet
mailed the issue that was supposed to be in homes June 25th.
He [Greg Harline of GoDabo] claims it was to be mailed July
2nd, but to our knowledge that has not happened either. He is
claiming a delay at the printers but we believe the problem
is that he has not paid the Post Office, and they will not
mail unless they have been paid in full in advance. As a
valued client, I wanted you to be sure you are not being
ripped off by this guy, and would highly recommend you NOT
pay for the June 25th issue until you have been provided a
verified PROOF OF MAILING statement from the United States
Postal Service.
(# 21 ¶ 23.) GoDabo contends that these
statements were false because GoDabo had paid postage nine
days earlier, and that as a result, numerous contractors
subsequently ended their advertising relationship with
GoDabo.
Another
source was an email dated August 31 sent by Krystal Toner,
the office manager for the Colorado Franchisee that stated:
[w]e do NOT saturate zipcodes. We handpick every single home
that receives TheHomeMag & HomeImproved. . . .
It would save us a ton of money to flood ZIP codes with
thousands of magazines like 95% of our competitors, however,
we would not be doing the best job for you if we did this, .
. .
[h]ere’s an easy tip for you to check if a magazine or
flyer is being bulk mailed to everyone, including renters,
business parks, and other homes that cannot afford your
product or services... if the Home Owner’s name does
not appear on the address portion of the Magazine, instead it
says ‘Current Homeowner, ’ or ‘Resident,
’ this is being saturation mailed.
(# 21 ¶¶ 35-36.) In addition, the
Amended Complaint alleges that the Colorado
Franchisee’s media kit contained false statements about
the franchisee’s own product. (# 21 ¶
37.)
Based
on these allegedly false statements and other alleged acts,
the Amended Complaint (# 21) asserts eleven
claims for relief enumerated as follows:[3]
Claims
Based on Federal Law
(1) monopolization of the Denver Market in violation of the
Sherman Act (15 U.S.C. § 2) against THM Front Range
(Claim 1);
(2) attempted monopolization of the Denver Market in
violation of the Sherman Act (15 U.S.C. § 2) against THM
Front Range (Claim 2);
(3) conspiracy to monopolize the Denver Market in violation
of the Sherman Act (15 U.S.C. § 2) against THM Front
Range, THM Holding, THM Franchisor, and the Individual
Defendants (Claim 3);
(4) allocation of the National Market in violation of the
Sherman Act (15 U.S.C. § 1) against THM Front Range, THM
Holding, THM Franchisor, THM Ventura, and The Home Improver
(Claim 4);
(5) monopolization of the National Market in violation of the
Sherman Act (15 U.S.C. § 2) against THM Front Range, THM
Holding, THM Management, THM Ventura, and The Home Improver
(Claim 5);
(6) attempted monopolization of the National Market in
violation of the Sherman Act (15 U.S.C. § 2) against THM
Front Range, THM Holding, THM Ventura, and The Home Improver
(Claim 6);
(7) conspiracy to monopolize the National Market in violation
of the Sherman Act (15 U.S.C. § 2) against THM Front
Range, THM Holding, THM Ventura, and The Home Improver (Claim
7);
(8) false advertising in violation of the Lanham Act (15
U.S.C. § 1125(a)) against THM Holding, THM Management,
THM Ventura, and the Individual Defendants (Claim 8);
Claims Based on State Law
(9) use of deceptive trade practices in violation of the
Colorado Consumer Protection Act against THM Front Range and
the Individual Defendants (Claim 9);
(10) intentional interference with contractual relationship
(or prospective relationship) against THM Front Range and the
Individual Defendants (Claim 10); and
(11) defamation against THM Front Range and the Individual
Defendants (Claim 11). multiple grounds.
The
Defendants have moved to dismiss all claims (##
38–42) on Home Mag Holding, Ventura, and The
Home Improver challenge the Court’s personal
jurisdiction over them. In addition, the Defendants challenge
the adequacy of the allegations to support an
“antitrust injury” necessary for antitrust
standing. Although this doctrine shares a name and
overlapping concepts with Article III standing, it is not
jurisdictional, and such challenges will be reviewed under
Rule 12(b)(6). See Hartig Drug Co. v. Senju Pharm.
Co., 836 F.3d 261, 270–72 (3d Cir. 2016).
III.
PERSONAL JURISDICTION
When
the Court’s jurisdiction over a defendant is challenged
pursuant to Rule 12(b)(2), the plaintiff bears the burden of
establishing that personal jurisdiction exists. Soma
Medical Int’l v. Standard Chartered Bank, 196 F.3d
1292, 1295 (10th Cir. 1999); OMI Holdings Inc.
v. Royal Ins. of Canada, 149 F.3d 1086, 1091 (10th Cir.
1998). A court may elect to resolve the jurisdictional
question immediately, by conducting an evidentiary hearing on
the issue, or may defer resolution of the jurisdictional
question until trial, requiring the plaintiff to make only a
prima facie showing of jurisdiction at the pretrial
phase. Wenz v. Memery Crystal, 55 F.3d 1503, 1505
(10th Cir. 1995). A court may receive affidavits and other
evidentiary material to assist in resolving the issue, but it
must resolve any disputed facts in the light most favorable
to the plaintiff. Id.
The
Court’s jurisdiction over certain defendants works
differently depending on the claim alleged. Because the
claims under the Sherman Act are subject to a more liberal
standard than the other claims alleged, the Court begins
there.
In
cases where subject-matter jurisdiction is based on a federal
question, the personal-jurisdiction inquiry is grounded in
the Due Process Clause of the Fifth Amendment, not the
Fourteenth Amendment. See Peay v. BellSouth Med.
Assistance Plan, 205 F.3d 1206, 1211 (10th Cir. 2000).
Though the Supreme Court has never announced a standard for
personal jurisdiction under the Fifth Amendment, the two
Amendments are virtually identical and both protect
individuals from the same forms of government infringement.
Id. (citing Mathews v. Eldridge, 424 U.S.
319, 331–32 (1976) (collecting Fourteenth Amendment
cases to define the Fifth Amendment’s conception of
procedural due process)). Nevertheless, the Tenth Circuit
does not apply the ...