Taylor Moving, LLC v. Voigt et al

Filing 114

ORDER denying 102 Motion for Summary Judgment. By Judge Wiley Y. Daniel on 11-1540.(mjgsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 11-cv-01540-WYD-BNB
TAYLOR MOVING, LLC, a Colorado limited liability company,
Plaintiff,
v.
MICHAEL VOIGT, an individual;
OPM ENTERPRISES, INC., d/b/a Pride Worldwide Moving & Storage, d/b/a Boulder
Valley Transfer, a Colorado corporation;
TAYLOR MOVING, INC., a Colorado corporation;
TAYLOR MOVING AND STORAGE, INC., a Colorado corporation; and,
BOULDER VALLEY TRANSFER, INC., a Colorado corporation,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
THIS MATTER is before the Court on the Defendants’ Motion For Summary
Judgment [ECF No. 102]. For the reasons stated below, the motion is DENIED.
BACKGROUND
On March 27, 2012, Taylor Moving, LLC (“Taylor Moving”) filed a Verified
Amended Complaint [ECF No. 41] against defendants, Michael Voigt, OPM Enterprises,
Inc., Taylor Moving, Inc., and Taylor Moving and Storage, Inc. (“the Defendants”),
requesting a preliminary injunction and alleging the following claims: (1) a violation of
the Racketeer Influenced and Corrupt Organization Act (“RICO”), 18 U.S.C. § 1961, et
seq.; (2) libel; (3) trade libel; (4) unfair competition; and, (5) intentional interference with
prospective contractual relations.

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Plaintiff, Taylor Moving, is a “full service moving and storage company that
performs both local and national moves” with its principal place of business in Boulder,
Colorado. ECF No. 41, p. 3, ¶ 12. Glen and Leah Taylor created the company in
September of 1998. Defendant, Michael Voigt, owns several moving companies: (1)
The Right Move; (2) OPM Enterprises, Inc. d/b/a Pride Worldwide Moving d/b/a Boulder
Valley Transfer; (3) Taylor Moving, Inc.; and, (4) Taylor Moving and Storage, Inc.
This suit arises out of Voigt’s alleged scheme to enter the moving and storage
business in Boulder, Colorado, and take over the market. Between 2007 and 2008,
Voigt approached numerous persons engaged in the moving and storage business in
Boulder and either acquired their business or attempted to acquire their business. The
persons Voigt approached are: (1) William Joyce, owner of Joyce Van Lines, Inc. and
several other moving companies; (2) Chris Klatt, previous owner of Boulder Valley
Transfer; (3) Mr. Taylor, co-owner of Taylor Moving; and, (4) David Maloney, owner of
the Moving Connection, Inc. Voigt purchased The Right Move from Joyce and
purchased Boulder Valley Transfer from Klatt. Neither Mr. Taylor nor Maloney was
interested in selling their company to Voigt.
Taylor Moving alleges that when Mr. Taylor informed Voigt that he would not sell
Taylor Moving, Voigt resorted to threats to coerce a sale or merger. Voigt allegedly
stated that he was experienced in entering markets and buying out as many competitors
as possible. Taylor Moving alleges Voigt approached Mr. Taylor a second time
regarding a potential sale or merger. Mr. Taylor declined again. After Mr. Taylor
declined the second time, Voigt allegedly responded that if Mr. Taylor would not sell
Taylor Moving, Voigt would: (1) conduct a moving business under the Taylor Moving

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name; (2) provide poor service to customers; and, (3) mislead customers into believing
the real Taylor Moving provided sub-standard service, all in an effort to damage Taylor
Moving’s reputation. Voigt created and incorporated Taylor Moving and Storage, Inc.,
on October 15, 2008, and created and incorporated Taylor Moving, Inc. on October 22,
2008. Voigt subsequently created and placed an advertisement for Taylor Moving, Inc.
in the 2011-2012 Verizon Superpages phone book for Boulder on the page immediately
following Taylor Moving’s advertisement. The similarity between the two
advertisements prompted the Boulder Daily Camera to publish an article about the
advertisements entitled “Boulder’s Taylor Moving companies battle over business
identity.” Taylor Moving alleges that such behavior is not limited to Voigt’s interactions
with Mr. Taylor, and is indicative of Voigt’s dealings with all the other business owners
he approached in Boulder.
Taylor Moving filed its original Complaint [ECF No. 1] on June 13, 2011, and filed
its Verified Amended Complaint [ECF No. 41] on March 27, 2012. Taylor Moving
alleges that the Defendants have: (1) “diverted business from Taylor Moving and
damaged Taylor Moving’s name and reputation by intentionally providing poor services
under the Taylor Moving name;” (2) “diminished Taylor Moving’s intellectual property by
replicating Taylor Moving’s signature green moving trucks and copying Taylor Moving’s
name and advertisements;” and, (3) “published false and misleading statements []
regarding Taylor Moving’s business and reputation.” ECF No. 41, p. 19, ¶¶ 143-45. On
March 25, 2013, the Defendants filed a Motion For Summary Judgment [ECF No. 102]
arguing that they are entitled to summary judgment on Taylor Moving’s RICO claim
because Taylor Moving cannot establish a pattern of racketeering activity.

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On Wednesday, June 5, 2013, I held a Motions Hearing regarding the
Defendants’ Motion For Summary Judgment [ECF No. 102]. The parties presented
arguments and I took the motion under advisement.
ANALYSIS
A. Legal Standard for a Motion for Summary Judgment
Summary judgment is proper when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220
F.3d 1184, 1190 (10th Cir. 2000). “When applying this standard, [the court must] ‘view
the evidence and draw all reasonable inferences therefrom in the light most favorable to
the party opposing summary judgment.’” Atl. Richfield Co. v. Farm Credit Bank of
Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (citation omitted). “A fact is ‘material’ if,
under the governing law, it could have an effect on the outcome of the lawsuit.”
Horizon/CMS Healthcare, 220 F.3d at 1190. “A dispute over a material fact is ‘genuine’
if a rational jury could find in favor of the nonmoving party on the evidence presented.”
Id.
“The burden of showing that no genuine issue of material fact exists is borne by
the moving party.” Horizon/CMS Healthcare, 220 F.3d at 1190. “‘Only disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.’” Atl. Richfield Co., 226 F.3d at 1148
(quotation omitted). All doubts must be resolved in favor of the existence of triable
issues of fact. Boren v. Sw. Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).

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B. Taylor Moving’s RICO Claim
The Defendants argue that they are entitled to summary judgment on Taylor
Moving’s RICO claim because Taylor Moving cannot establish a pattern of racketeering
activity.
The RICO statute states, in pertinent part:
(a) It shall be unlawful for any person who has received any
income derived, directly or indirectly, from a pattern of
racketeering activity or through collection of an unlawful
debt in which such person has participated as a principal
within the meaning of section 2, title 18, United States Code
[18 USCS § 2], to use or invest, directly or indirectly, any
part of such income, or the proceeds of such income, in
acquisition of any interest in, or the establishment or
operation of, any enterprise which is engaged in, or the
activities of which affect, interstate or foreign commerce . . .
(b) It shall be unlawful for any person through a pattern of
racketeering activity or through collection of an unlawful
debt to acquire or maintain, directly or indirectly, any interest
in or control of any enterprise which is engaged in, or the
activities of which affect, interstate or foreign commerce.

(c) It shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the activities
of which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering
activity or collection of unlawful debt . . .
18 U.S.C. § 1962(a) – (c) (emphasis added). Taylor Moving alleges that the
Defendants violated all of the above stated RICO provisions. Each provision requires a
showing that the defendant engaged in a “pattern of racketeering activity.” A “‘pattern of
racketeering activity’ requires at least two acts of racketeering activity, one of which
occurred after the effective date of this chapter and the last of which occurred within ten
years (excluding any period of imprisonment) after the commission of a prior act of
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racketeering activity . . . ” 18 U.S.C. § 1961(5). “A pattern is not formed by ‘sporadic
activity’ . . . ” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989) (quoting
S. Rep. No. 91-617, p. 158 (1969)). “To establish a RICO pattern it must also be shown
that the predicates themselves amount to, or that they otherwise constitute a threat of,
continuing racketeering activity . . . ” Id. at 240. “RICO’s legislative history reveals
Congress’ intent that to prove a pattern of racketeering activity a plaintiff or prosecutor
must show that the racketeering predicates are related, and that they amount to or pose
a threat of continued criminal activity.” Id. at 239.
Taylor Moving states that extortion is the alleged racketeering activity it relies on
to establish a pattern of racketeering activity. 18 U.S.C. § 1961(1) states the offenses
that constitute racketeering activity and separates those offenses into two sections.
§ 1961(1)(A) states that racketeering activity includes:
[A]ny act or threat involving murder, kidnapping, gambling,
arson, robbery, bribery, extortion, dealing in obscene
matter, or dealing in a controlled substance or listed
chemical (as defined in section 102 of the Controlled
Substances Act [21 USCS § 802]), which is chargeable
under State law and punishable by imprisonment for
more than one year . . .
18 U.S.C. § 1961(1)(A) (emphasis added). Thus, extortion under Colorado state law
qualifies as an offense that may be used to show a pattern of racketeering activity.
§ 1961(1)(B) states that racketeering activity also includes “any act which is indictable
under any of the following provisions of title 18, United States Code . . . ” Extortion
under 18 U.S.C. § 1951 is one such offense that constitutes racketeering activity.
Therefore, extortion under 18 U.S.C. § 1951 may also be used to establish a pattern of
racketeering activity.

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During the June 5, 2013, Motions Hearing, Taylor Moving stated that it bases its
RICO claim on extortion under 18 U.S.C. § 1951. Thus, I will proceed by analyzing
whether Taylor Moving has established a pattern of racketeering activity via extortion
under 18 U.S.C. § 1951.
1. Extortion Under 18 U.S.C. § 1951
Pursuant to 18 U.S.C. § 1951(a):
Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires
so to do, or commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do
anything in violation of this section shall be fined under this
title or imprisoned not more than twenty years, or both.
Extortion is defined as “the obtaining of property from another, with his consent, induced
by wrongful use of actual or threatened force, violence, fear, or under color of official
right.” 18 U.S.C. § 1951(b)(2). At the June 5, 2013, Motions Hearing, Taylor Moving
stated that at the very least, the Defendants engaged in three separate acts of
attempted extortion.1 The three alleged acts of attempted extortion that Taylor Moving
relies on are Voigt’s business dealings with: (1) Chris Klatt, previous owner of Boulder
Valley Transfer; (2) Mr. Taylor, co-owner of Taylor Moving, LLC and David Maloney,
owner of The Moving Connection, Inc.; and, (3) Christian W. Roker, owner of Pride
Moving and Storage of Colorado, Inc. d/b/a Hill Moving. In order to establish a pattern
of racketeering activity, there must be at least two instances of the predicate act upon
which the RICO claim is based i.e., attempted extortion. Upon review of the parties’

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Attempted extortion constitutes racketeering activity under this statute because the statute criminalizes
both attempted extortion and conspiracy to commit extortion. See 18 U.S.C. § 1951(a) (emphasis added)
(“Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or attempts or conspires so to do . . . ”).

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filings and their arguments in open court, I find that genuine issues of material fact exist
as to whether the Defendants’ business dealings with Klatt, Taylor and Maloney, and
Roker constitute two or more acts of attempted extortion. Therefore, the Defendants
are not entitled to summary judgment on Taylor Moving’s RICO claim, and the
Defendants’ Motion For Summary Judgment [ECF No. 102] is DENIED.
CONCLUSION
After careful consideration of the matter before this Court, it is
ORDERED that the Defendants’ Motion For Summary Judgment [ECF No. 102]
is DENIED.
Dated: July 9, 2013.

BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge

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