United States District Court, D. Colorado
ROBERT H. QUINN, Plaintiff,
v.
CCS HOLDING BUSINESS TRUST, STEVEN SANDS, DAVID SANDS, and DONNA RAMSDELL, Defendants.
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.
...