Quinn v. Ccs Holding Business Trust

          ORDER

          SCOTT T. VARHOLAK UNITED STATES MAGISTRATE JUDGE.

         This civil action is before the Court on the Motion to Dismiss [#7] (“the Motion”), filed by Defendants CCS Holding Business Trust, Steven Sands, David Sands, and Donna Ramsdell (collectively “Defendants”). The parties have consented to proceed before the undersigned United States Magistrate Judge for all proceedings, including entry of a final judgment. [##15, 16] This Court has carefully considered the Motion and related briefing, the entire case file and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND^[1]

         According to the Complaint, Plaintiff has acquired a trademark in the name Robert H. Quinn III, including all variations of the spelling, placement of the appellations, and initialized versions. [#2 at ¶ 9] In November 2017, Plaintiff received a debt collection notice from Defendants. [Id. at ¶ 11] In the notice, Defendants asserted that Plaintiff had accrued a debt with Progressive Insurance Company, and the debt had been assigned to Defendants. [Id.] Within seven days of receiving the notice, Plaintiff contested the validity of the debt and mailed Defendants a letter requesting proof of the validity of the debt and a copy of the assignment. [Id.] Defendants did not respond to the initial request for debt validation, nor any subsequent request for validation by Plaintiff. [Id. at ¶ 12]

         In April 2018, Plaintiff became “aware that Defendant(s) continue[d] to use Plaintiff's identity and trade[]mark to collect on the unvalidated debt by conveying use of the trade[]mark to a third party credit reporting agency.” [Id. at ¶ 12] On or about April 24, 2018, Plaintiff mailed Defendants another inquiry into the nature of the delinquent debt. [Id. at ¶ 13] Plaintiff informed Defendants that unauthorized use of his trademarked name was prohibited. [Id.]

         Plaintiff also mailed Defendants a “Pronouncement of Rights” and a “Purchase and Sales Agreement.” [Id.] The Purchase and Sales Agreement states “should Defendants continue to use Plaintiff's products, any such use shall constitute Defendants' assent to be bound by the terms and conditions of use.” [Id. at ¶ 15] Defendants did not respond and did not contest either the Pronouncement of Rights or the Purchase and Sales Agreement. [Id. at ¶ 14]

         In September 2018, Plaintiff mailed Defendants a “Notice to Cease and Desist.” [Id. at ¶ 16] This letter extended an opportunity for Defendants to validate the debt that Defendants claim is delinquent. [Id. at ¶ 17] Defendants neither validated the debt nor provided proof that they were authorized to use Plaintiff's trademarked name. [Id.]

         Plaintiff subsequently mailed Defendants a “notice” and an “invoice” for $7, 650, 000 for the benefit and use of Plaintiff's trademarked name. [Id. at ¶ 19] Defendants continued to use Plaintiff's name but did not pay the invoice. [Id.] As a result, on January 21, 2019, Plaintiff mailed a notice of delinquency to Defendants. [Id. at ¶ 22]

         On May 17, 2019, Plaintiff, proceeding pro se, initiated this action against Defendants. [#2] The Complaint brings two causes of action. [Id.] The first claim alleges that Defendants breached the Purchase and Sales Agreement. [Id. at ¶¶ 23-31] The second claim alleges that Defendants committed the tort of invasion of privacy by appropriating his name or likeness.^[2] [Id. at ¶¶ 32-33] On June 25, 2019, Defendants moved to dismiss the Complaint. [#7] Plaintiff has responded [#23], and Defendants have replied [#24].

         II. STANDARD OF REVIEW

         Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         “To 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 Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The court's ultimate duty is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

         III. ...