Hoskins v. Gonnell et al

Filing 61

ORDER denying #12 Defendant Jean Gonnells Motion to Dismiss; denying #15 Defendant Rafael Craveiros Motion to Dismiss, by Judge Wiley Y. Daniel on 3/21/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02719-WYD-CBS
CONLEY HOSKINS,
Plaintiff,
v.
JEAN GONNELL and
RAFAEL CRAVEIRO,
Defendants.

ORDER

I.

INTRODUCTION AND BACKGROUND
This matter is before the Court on both Defendant Jean Gonnell’s Motion to

Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 12) and Defendant Rafael
Craveiro’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 15). The
motions are denied as set forth below.
This is a case arising out of an alleged unlawful interception of Plaintiff’s
telephone communication in violation of 18 U.S.C. §§ 2511 and 2520. By way of
background, Plaintiff and Defendant Craveiro are 50% co-owners of All Care Wellness
Centers, LLC (“ACW”), a Lakewood, Colorado medical marijuana dispensary. (Compl.
¶ 7). On May 30, 2013, Plaintiff, ACW and other individuals were indicted by a
Colorado state grand jury of multiple violations of state law including tax, securities, and
controlled substance offenses. The criminal case against Plaintiff is ongoing. (Compl. ¶
8).

In an unrelated civil matter, Defendant Craveiro is pursuing a civil arbitration
demand, alleging that Plaintiff’s indictment results in a forfeiture of Plaintiff’s ownership
interest in ACW under the terms of the operating agreement. Defendant Gonnell is an
attorney representing Defendant Craveiro in the civil arbitration matter. (Compl. ¶¶ 911).
On July 16, 2013, Plaintiff and his attorney, Ron Wilcox, took part in a telephone
conference with both Defendants. Also participating in the call was Kristi Smith, an
attorney who represented ACW. Plaintiff and Wilcox anticipated that the telephone call
would be a confidential communication. (Compl. ¶13). On August 27, 2013, the
prosecutor in Plaintiff’s criminal case produced a recording of the July 16, 2013
conference call as part of the prosecution’s discovery. At this time, Plaintiff discovered
that the Defendants had recorded the conference call. (Compl. ¶15). Based on
information contained on the recording, the prosecutor filed a motion to revoke Plaintiff’s
bond. (Compl. ¶19).
On October 3, 2013, Plaintiff filed this suit against the Defendants asserting one
cause of action for the unlawful interception and disclosure of the July 16, 2013
telephone conference in violation of the Federal Wire Tapping Act, 18 U.S.C. § 2511.
18 U.S.C. § 2511(1)(a) makes it unlawful for any person to “intentionally intercept[ ],
endeavor[ ] to intercept, or procure[] any other person to intercept or endeavor to
intercept, any wire, oral, or electronic communication.” However, the statute contains a
limited exception, which provides:

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It shall not be unlawful under this chapter for a person not
acting under color of law to intercept a wire, oral, or
electronic communication where such person is a party to
the communication or where one of the parties to the
communication has given prior consent to such interception
unless such communication is intercepted for the purpose of
committing any criminal or tortious act in violation of the
Constitution or laws of the United States or of any State.
18 U.S.C. § 2511(2)(d) (emphasis added). Plaintiff alleges that the Defendants
recorded the telephone call for the ulterior purpose of committing tortious acts of abuse
of process, breach of fiduciary duties, and invasion of privacy. Defendants moved to
dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).
II.

ANALYSIS
A party may move to dismiss a complaint under Rule 12(b)(6) where the plaintiff

has failed “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
The Court’s inquiry is “whether the complaint contains ‘enough facts to state a claim to
relief that is plausible on its face.’” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544)).
“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, ___ U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). When analyzing a 12(b)(6) motion, “all well-pleaded factual
allegations ... are accepted as true and viewed in the light most favorable to the
nonmoving party.” Sutton v. Utah State School for Deaf and Blind, 173 F. 3d 1226,
1236 (10th Cir. 1999). “A 12(b)(6) motion should not be granted unless it appears

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beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which
would entitle it to relief.” Id.
The Tenth Circuit has interpreted “plausibility,” the term used by the Supreme
Court in Twombly, to “refer to the scope of the allegations in a complaint” rather than to
mean “likely to be true.” Robbins v. Okla. ex rel. Okla. Dep't of Human Servs., 519 F.3d
1242, 1247 (10th Cir. 2008). Thus, “if [allegations] 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.” Id. (internal quotations omitted).
“The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not
just speculatively) has a claim for relief.” Id. “This requirement of plausibility serves not
only to weed out claims that do not (in the absence of additional allegations) have a
reasonable prospect of success, but also to inform the defendants of the actual grounds
of the claim against them.” Id. at 1248. Additionally, the Tenth Circuit has instructed
that “the degree of specificity necessary to establish plausibility and fair notice, and
therefore the need to include sufficient factual allegations, depends on context” and that
whether a defendant receives fair notice “depends on the type of case.” Id.
Viewing Plaintiff’s complaint in the light most favorable to him, I find that it
contains sufficient factual allegations to state a claim for relief that is plausible on its
face. Defendants rely on matters outside the pleadings including the affidavit of
Defendant Gonnell, which contains her version of events leading up to this lawsuit.1

1

Defendant Craveiro’s motion to dismiss incorporates by reference the statements,
attachments, and arguments set forth in Defendant Gonnell’s motion to dismiss.

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“When parties submit materials outside of the pleadings in support of or in opposition to
a Rule 12(b)(6) motion, a court has broad discretion whether to accept and consider
them.” Dobson v. Anderson, 319 Fed. Appx. 698, 702 (10th Cir. 2008). I find that
Defendants’ assertions that are outside of Plaintiff’s complaint and raise material issues
of fact will not be considered at this stage in the litigation.2 In other words, it is
unquestionably inappropriate to consider Defendant Gonnell’s affidavit in connection
with the Rule 12(b)(6) motions since the sufficiency of the complaint is the only issue
before the Court. Id. (holding that a court’s function in analyzing a Rule 12(b)(6) motion
“is not to weigh potential evidence that the parties might present at trial, but to assess
whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief
may be granted.”) (citing Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006)).
III.

CONCLUSION
Based on the foregoing, Defendant Jean Gonnell’s Motion to Dismiss (ECF No.

12) and Defendant Rafael Craveiro’s Motion to Dismiss (ECF No. 15) are DENIED.

2

While neither party requests that I convert the motions to dismiss to motions for
summary judgment, I note that there is no requirement that a court automatically convert a
motion to dismiss to a motion for summary judgment simply because one or both parties file
documents in connection with a motion to dismiss. As discussed above, the matters outside the
pleadings presented by the parties were excluded from my Rule 12(b)(6) analysis. Furthermore,
because discovery is ongoing in this case and Rule 12(d) requires that “[a]ll parties must be
given a reasonable opportunity to present all the material that is pertinent to the motion,” I
conclude that converting the pending motions to dismiss into motions for summary judgment
would be inappropriate.

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Dated: March 21, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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