Oaster v. Robertson

Filing 41

ORDER; 18 Motion to Dismiss Pursuant to 12(b)(1), 12(b)(2), and 12(b)(6) and if Necessary, Request for Evidentiary Hearing is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that parties shall show cause in writing as to why this action should not be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) on or before April 15, 2016, by Magistrate Judge Kristen L. Mix on 3/28/16.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00871-KLM
BRADLEY D. OASTER,
Plaintiff,
v.
STANLEY ROBERTSON,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court1 on Defendant’s Motion to Dismiss Pursuant to
12(b)(1), 12(b)(2), and 12(b)(6) and if Necessary, Request for Evidentiary Hearing [#18]2
(the “Motion”). Plaintiff filed a Response [#22] in opposition to the motion and Defendant
filed a Reply [#23]. On October 9, 2015, the Court entered a Minute Order [#30] informing
the parties that it was converting Defendant’s Motion [#18] filed pursuant to Rule 12(b)(6)3
to a motion for summary judgment pursuant to Rule 56. See Minute Order [#30]. As a

1

The parties consented to proceed before the undersigned for all proceedings pursuant to
28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. See generally Consent Form [#20].
2

“[#18]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s electronic case filing and management system
(CM/ECF). This convention is used throughout the Order.
3

Rule 12(d) provides that “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside
the pleadings are presented to and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56.” Thus, although Plaintiff filed the Motion pursuant to Rules
12(b)(1), 12(b)(2), and 12(b)(6), only the Rule 12(b)(6) portion of the Motion has been converted
to a Rule 56 motion for summary judgment. See Minute Order [#30].

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result of the conversion of the Motion, the Court allowed the parties the opportunity to file
supplemental briefs. Id. The parties both filed supplemental briefs, which the Court has
reviewed. See Am. Suppl. Brief in Support (“Suppl. Brief in Support”) [#35]; Response Brief
to Defendant’s Suppl. Brief in Support (“Suppl. Response”) [#37]. The Court has also
reviewed the Motion, the Response, the Reply, the entire case file, and the applicable law,
and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#18]
is GRANTED IN PART and DENIED IN PART.
I. Background
A.

Factual Background
In 2000, Plaintiff Bradley Oaster and Defendant Stanley Robinson entered into a

business relationship which centered on the design and development of various church
facilities throughout the United States. Am. Compl. [#14] ¶ 2. Plaintiff alleges that he and
Defendant, an architect, entered into a personal services contract in 2000 whereby
Defendant would be paid for animation services and that, starting in 2006, this contract was
expanded to include supplemental drafting services involving the addition of supplemental
detail to existing schematic designs. Id. According to Plaintiff, the two agreed that the work
product produced by Defendant would remain the property of Plaintiff, and also that the
original schematic designs to which Defendant added detail were created and owned by
either Plaintiff or Plaintiff’s business partner.4 Id. ¶¶ 5, 11. Plaintiff alleges that he has
registered copyrights on the designs. Id. ¶ 8. The Complaint also states that the parties
worked on twenty-five church development projects together over their ten-year business
4

Plaintiff’s business partner, Pat Morgan, has assigned his rights in this matter to Plaintiff.
See generally Assignment of Claim [#14-1].

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relationship. Id. ¶ 10. While the parties worked together, Plaintiff alleges that the Defendant
had access to all planning, development, and design information related to each project.
Id. ¶ 12.
At the outset, Defendant disagrees on the exact characterization of the parties’
relationship. Specifically, Defendant maintains that although he entered into the contract
with Plaintiff in his individual capacity, from 2003 onwards the only work he performed was
in his official capacity as an owner of two companies he had created in Texas: Gone Virtual
Studios, Inc. (“GVS”) and Halo Architects, Inc. (“Halo”). Brief in Support of Motion to
Dismiss [#19] (“Brief in Support”) at 2. Thus, Defendant claims that his business relationship
with Plaintiff can be divided into two discrete periods: (1) the period of time from 2000 to
2003 where Defendant and Plaintiff had a business relationship as two individuals working
together; and (2) the period of time from 2003 to 2010, where Defendant worked with
Plaintiff in his capacity as an officer of either GVS or Halo. Id.
Regardless, both parties agree that the relationship ended in either late 2009 or 2010.
Id.; Am. Compl. [#14] ¶ 2. On January 5, 2010, Defendant’s lawyer – writing on behalf of
Defendant and Defendant’s companies, Halo and GVS – sent Plaintiff a letter demanding
that Plaintiff stop using schematic designs prepared by Halo, GVS, or Defendant. Appendix
in Support of Motion to Dismiss [#19-1] at 7. Plaintiff then sent Defendant a letter in which
he outlined several things that he believed Defendant was doing wrong. Appendix in
Support of Summary Judgment [#33] at 21. In the letter, Plaintiff informed Defendant that
Plaintiff was planning to bring these allegations of wrongdoing to the proper authorities. Id.
One of the allegations reads “[Defendant] ha[s] attempted to hijack Harvestime’s project by
intentionally and willfully going around Harvestime and working directly with Harvestime’s
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client.” Id. The letter goes on to state “[Defendant is] guilty of torsos [sic] interference with
a contractual relationship[.]” Id.
In 2013, Plaintiff alleges that he discovered that Defendant told one of Plaintiff’s
clients that Defendant owned Plaintiff’s copyrighted designs. Am. Compl. [#14] ¶ 14.
Plaintiff claims that Defendant told the client that he was the owner of the designs in an
attempt to persuade the client to terminate its relationship with Plaintiff. Id. Additionally,
Plaintiff alleges that he learned that Defendant had disparaged him while talking to the
client, telling the client that Plaintiff often used “bait and switch” sales techniques. Id.
According to Plaintiff, based on this knowledge, in November 2014 Plaintiff began
investigating and found that Defendant was misrepresenting to the public that Defendant
was the owner of the copyrighted designs, and Defendant had the right to use them and sell
them. Id. ¶ 15.
During Plaintiff’s investigation, Plaintiff also alleges he learned that Defendant sold
Plaintiff’s protected designs on a website, www.worshipplaces.com, but that Defendant
refused to stop selling the designs and did not compensate Plaintiff in any way for use of the
designs. Id. ¶¶ 17-19. Plaintiff alleges that this website is Defendant’s website. Id. Again,
however, Defendant disagrees with this characterization, and claims that the website is not
owned and operated by him, but is owned and operated by GVS. Brief in Support [#19] at
12. Additionally, Plaintiff claims that Defendant exploited Plaintiff’s confidential lists of
potential clients and encouraged these clients to work with Defendant instead of Plaintiff.
Am. Compl. [#14] ¶ 20.
B.

Procedural History
On March 2, 2015, Plaintiff filed a complaint in state court alleging numerous claims
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against Defendant. State Court Compl. [#1-3]. Defendant filed a Notice of Removal on April
24, 2015 pursuant to 28 U.S.C. § 1441(b). Id. On May 1, 2015, Defendant filed a motion
to dismiss, and Plaintiff then responded by filing an Amended Complaint on May 19, 2015.
Motion to Dismiss [#6]; Am. Compl. [#14]. Plaintiff’s Amended Complaint brings eleven5
claims against Defendant: (1) breach of contract; (2) fraud; (3) conversion; (4) civil theft; (5)
slander; (6) breach of fiduciary duty; (7) interference with contract; (8) violation of the
Colorado Consumer Protection Act, C.R.S. § 6-1-101, et seq.; (9) replevin; (10) unjust
enrichment; and (11) copyright infringement. Id. ¶¶ 24-83. The Court then denied the
motion to dismiss as moot. Minute Order [#16].
Subsequently, Defendant filed the present Motion to Dismiss on June 8, 2015.
Motion [#18]. In support of his Motion to Dismiss, Defendant provides an appendix
containing an affidavit executed by himself, the aforementioned 2010 letter from his counsel
to Plaintiff formally severing the business relationship, and the certificates of formation of
GVS and Halo. Appendix in Support of Motion to Dismiss [#19-1]. Additionally, Plaintiff
cites to his own affidavit in response to Defendant’s Motion to Dismiss. See Response
[#22]; Affidavit of Bradley D. Oaster [#15-1].
In the original briefing provided with the Motion, Defendant requested that the Court
“dismiss this entire cause of action pursuant to Rule 12(b)(1), or in the alternative, Rule 56

5

Plaintiff lists thirteen claims in his complaint, but Plaintiff’s sixth claim, bad faith breach
of contract, is not recognized as a separate cause of action in Colorado. Ohio Spine Network, Inc.
v. Lanx, Inc., No. 10-cv-02402-CMA-MJW, 2012 WL 1596915, at *1 (D. Colo. May 7, 2012) (stating
that except in the case of a breach of an insurance contract, Colorado law does not recognize a
claim for bad faith breach of contract); see also Energex Enters., Inc. v. Anthony Doors, Inc., 250
F.Supp.2d 1278, 1284 (D. Colo. 2003); William H. White Co. v. B & A Mfg. Co., 794 P.2d 1099,
1101 (Colo. App. 1990). Further, Plaintiff’s eleventh claim, injunction, is a remedy, not a cause of
action.

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because all of the claims are barred by the applicable statute of limitations.” Brief in Support
[#19] at 11. However, because the evidence put forth by Defendant pertains to whether
Plaintiff has sufficiently alleged a claim (as discussed below), on October 9, 2015, the Court
converted the Motion to a Rule 56 Motion for Summary Judgment pursuant to Rule 12(d).6
Minute Order [#30]. The parties submitted supplemental briefing to the Court pursuant to
the Court’s Order. See Suppl. Brief in Support [#35]; Suppl. Response [#37]. Defendant
also submitted a supplemental appendix of evidence in support of the Motion; similarly,
Plaintiff has provided a supplemental affidavit. See Appendices in Support of Motion for
Summary Judgment [#33, #34]; Suppl. Affidavit of Bradley D. Oaster [#37-2] (“Suppl. Oaster
Affidavit”).
On January 11, 2016, the Court granted in part Defendant’s motion to strike portions
of the supplemental affidavit provided by Plaintiff. Order [#40]. Specifically, the Court struck
portions of paragraph 9, all of paragraph 10 except for the first and last sentences, the last
two sentences of paragraph 11, and a portion of paragraph 14 on the basis that these
statements were inadmissable hearsay. Id. Thus, in analyzing the parties’ respective
arguments, the Court does not consider the portions of Plaintiff’s affidavit stricken by the
Court.
II. Discussion
Defendant’s Motion makes three arguments: (1) lack of personal jurisdiction; (2) lack

6

The Court has not converted the Rule 12(b)(2) portion of the Motion to a Rule 56 motion
for summary judgment. See Minute Order [#30]; Fed. R. Civ. P. 12(d). Thus, the jurisdictional
issues presented by Defendant are considered pursuant to a motion to dismiss pursuant to Rule
12(b)(2) standard. Although a portion of Defendant’s motion requested dismissal under Rule
12(b)(1), the Court has construed Defendant’s argument as pertaining to the merits of Plaintiff’s
claims.

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of subject matter jurisdiction; and (3) failure to state a claim pursuant to Rule 12(b)(6). Brief
in Support [#19] at 1. In the alternative, Defendant requests that the Court transfer this
matter to the United States District Court for the Northern District of Texas pursuant to 28
U.S.C. § 1404. Id. at 2.
As a preliminary matter, the Court notes that Defendant’s second argument – lack
of subject matter jurisdiction – is premised on the contention that the Court lacks jurisdiction
because the statutes of limitations have run on Plaintiff’s claims. Brief in Support [#19] at
11. However, “[i]f the allegations . . . show that relief is barred by the applicable statute of
limitations, the complaint is subject to dismissal for failure to state a claim[.]” Jones v. Bock,
549 U.S. 199, 215 (2007).

Thus, because the statute of limitations issues are not

jurisdictional, this argument must be analyzed pursuant to Rule 56 rather than Rule
12(b)(1).7
Accordingly, the Court will address Defendant’s arguments as follows: (A) dismissal
for lack of personal jurisdiction pursuant to Rule 12(b)(2); (B) entry of summary judgment
in Defendant’s favor pursuant to Rule 56; and (C) the Court should transfer this action
pursuant to 28 U.S.C. § 1404. The Court’s analysis of Defendant’s Rule 56 arguments will
consist of two subparts: (1) Defendant’s argument that, as a threshold matter, Plaintiff’s
claims are barred by the applicable statutes of limitations and (2) Defendant’s argument

7

Defendant makes no other argument concerning whether the Court lacks subject matter
jurisdiction. Brief in Support [#19]. Moreover, the Court notes that subject matter jurisdiction is
appropriate here pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), as Plaintiff alleges
a federal copyright claim against Defendant. Am. Compl. [#14] ¶¶ 72-83. However, although
Defendant originally removed this action pursuant to 28 U.S.C. § 1441(b) (removal by a defendant
based on diversity jurisdiction), neither Plaintiff’s original complaint nor the Amended Complaint
allege any amount in controversy. See Am. Compl. [#14]. Here, removal on the basis of diversity
of citizenship is likely improper. 28 U.S.C. § 1332.

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that, substantively, no genuine dispute of any material fact exists and judgment should be
entered in favor of Defendant.
A.

Motion to Dismiss for Lack of Personal Jurisdiction
The Court analyzes Defendant’s argument that the Court lacks personal jurisdiction

pursuant to Rule 12(b)(2). A plaintiff bears the burden of establishing personal jurisdiction
over a defendant. Behagen v. Amateur Basketball Ass’n of the United States, 744 F.2d 731,
733 (10th Cir. 1984). Before trial, a plaintiff need only make a prima facie showing of
jurisdiction.

Id.

The Court accepts the well-pled allegations (namely the plausible,

nonconclusory, and nonspeculative facts) of the operative pleading as true to determine
whether the plaintiff has made a prima facie showing that the defendants are subject to the
Court's personal jurisdiction. Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063,
1070 (10th Cir. 2008). The Court “may also consider affidavits and other written materials
submitted by the parties.” Impact Prods., Inc. v. Impact Prods., LLC, 341 F. Supp. 2d 1186,
1189 (D. Colo. 2004). However, any factual disputes are resolved in the plaintiff’s favor.
Benton v. Cameco Corp., 375 F.3d 1070, 1074-75 (10th Cir. 2004).
The exercise of personal jurisdiction over a non-resident defendant must satisfy the
requirements of the forum state’s long-arm statute as well as constitutional due process
requirements. Doe v. Nat’l Med. Servs., 974 F.2d 143, 145 (10th Cir. 1992). Colorado’s
long-arm statute “is to be interpreted as extending jurisdiction of our state courts to the
fullest extent permitted by the due process clause of the United States Constitution.” Mr.
Steak, Inc. v. Dist. Court In & For Second Judicial Dist., 194 Colo. 519, 521 (1978).
Therefore, if jurisdiction is consistent with the due process clause, Colorado’s long-arm
statute authorizes jurisdiction over a nonresident defendant. Under the due process clause
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of the Fourteenth Amendment, personal jurisdiction may not be asserted over a party unless
that party has sufficient “minimum contacts” with the state, so that the imposition of
jurisdiction would not violate “traditional notions of fair play and substantial justice.”
Helicopteros Nacionales De Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984) (quoting
International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
Here, Defendant contends that Plaintiff does not allege facts to demonstrate the
Court’s general or specific jurisdiction over him. Brief in Support [#19] at 7. Defendant
further argues that his contacts with Plaintiff (and thus Colorado) were not on a personal
level, but through Defendant’s business, and thus, Defendant himself has no contacts with
Colorado. Id. at 8. In response, Plaintiff directs the Courts’s attention to a number of ways
in which Defendant has contacts with Colorado, including the fact that Defendant used to
have a professional license from Colorado, and previously resided in Colorado. Response
[#22] at 5-7.
1.

General jurisdiction.

Under principles of general jurisdiction, a nonresident defendant may be subject to
a state’s jurisdiction even where the alleged injury is unrelated to the defendant’s contacts
with the forum state. If a defendant’s contacts with a state are strong enough, the state may
assert jurisdiction over a defendant on any matter, whether or not it arises out of the
defendant’s contacts with the state. See Perkins v. Benguet Consol. Mining Co., 342 U.S.
437, 446 (1952). General jurisdiction is appropriate only when a defendant has “continuous
and systematic” general business contacts with the forum state, Helicopteros, 466 U.S. at
415, so that the defendant could reasonably anticipate being haled into court in that forum.
See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985).
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Plaintiff does not allege sufficient facts to demonstrate that the Court has general
jurisdiction over Defendant. General jurisdiction is appropriate only when a defendant has
“continuous and systematic” general business contacts with the forum state. Helicopteros,
466 U.S. at 415. Plaintiff’s only allegation to this effect is the conclusory statement “at all
material times, [Defendant] did and continues to do business in Colorado.” Am. Compl.
[#14] at 1. Plaintiff also includes facts about Defendant that demonstrate that Colorado may
have previously had general jurisdiction over Defendant (e.g., Defendant previously lived
in Colorado and had a professional license issued by Colorado). Id. However, it is
undisputed that Defendant has lived outside of Colorado since 2002. Reply [#18] at 8.
Plaintiff offers no support to show that an individual’s prior connections continue into
perpetuity, and to so find would be illogical. Plaintiff has not demonstrated that the Court
has general jurisdiction over Defendant.
2.

Specific jurisdiction.

When pervasive contacts to assert a finding of general personal jurisdiction are
lacking, specific jurisdiction may nevertheless be asserted if a defendant has “purposefully
directed” his activities toward the forum state, and if the lawsuit is based upon injuries that
“arise out of” or “relate to” the defendant’s contacts with the state. Burger King, 471 U.S.
at 472. “Because a state’s sovereignty is territorial in nature, a defendant’s contacts with
the forum state must be sufficient such that, notwithstanding [his] lack of physical presence
in the state, the state’s exercise of sovereignty over [him] can be described as fair and just.”
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). To
implement this principle, courts typically make three inquiries: (1) whether the defendant
purposefully directed his activities at residents of the forum state; (2) whether the plaintiff’s
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injury arose from those purposefully directed activities; and (3) whether exercising
jurisdiction would offend traditional notions of fair play and substantial justice. Id.
a.

Contract claims.

Plaintiff must allege sufficient facts to demonstrate that Defendant purposefully
directed his activities at residents of the forum state. Dudnikov, 514 F.3d at 1070.
Plaintiff’s allegations demonstrate this to be the case. It is undisputed that Defendant
entered into a contract with Plaintiff, and worked for him over a ten-year period. Plaintiff is
a Colorado resident, and Plaintiff worked from an office located in Colorado while Defendant
performed his work for and submitted it to Plaintiff. Am. Compl. [#14] ¶ 1, 4. This is not to
say that every time a party enters into a contract with a nonresident that the party has
sufficient connections with the other party’s home forum. “If the question is whether an
individual’s contract with an out-of-state party alone can automatically establish sufficient
minimum contacts in the other party’s home forum, we believe the answer clearly is that it
cannot.” Burger King, 471 U.S. at 478 (emphasis in original). Prior negotiations and
contemplated future consequences, along with the terms of the contract8 and the parties’
actual course of dealing, must be evaluated in determining whether the defendant
purposefully established minimum contacts with the forum. Id. at 479.
The facts of this case mirror AST Sports Sci., Inc. v. CLF Distribution Ltd., 514 F.3d
1054 (10th Cir. 2008). In Sports Sci., the plaintiff (a Colorado company) and defendant (a
British company) entered into an contract allowing defendant to sell plaintiff’s products in

8

The Court notes that the terms of the contract itself cannot be examined because neither
party provided the Court with the contract or any language from the contract.

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England. Id. at 1056. The parties did business together via telephone and e-mail for six
years, until the defendant stopped paying the plaintiff. Id. The plaintiff brought contract and
tort claims against the defendant. Id. The district court held that it did not have specific
personal jurisdiction over defendant, and dismissed the claims. Id.
The 10th Circuit reversed, finding that specific personal jurisdiction did exist based
on the contract and business relationship between the two parties. Id. at 1060. The court
noted that the contract evidenced prior negotiations and future consequences of a
continuing business relationship. Id. at 1058. In making this determination, the court also
relied on the phone calls, letters, facsimiles, and e-mails which “provided additional evidence
that the [foreign defendant] pursued a continuing business relationship with [the plaintiff].”
Id. at 1059 (quoting Pro Axess v. Orlux Distrib., Inc., 428 F.3d 1270, 1278 (10th Cir. 2005)).
In summary, the court stated: “Quite simply, defendants reached out to become AST’s
European distributor, the relationship was allegedly memorialized in [a] contract, and the
relationship lasted for a . . . period of seven years. It should not be a surprise to defendants
that this continuing relationship and the resulting obligations to plaintiff subjects them to
regulation and sanctions in Colorado for the consequences of their alleged activities.”
Sports Sci., 514 F.3d at 1059-60.
Based on Plaintiff’s allegations, the scope and length of the agreement along with the
parties’ course of dealing suggest that Defendant intended to engage in a significant amount
of business with Plaintiff and Plaintiff’s Colorado-based business. Plaintiff and Defendant
did not agree to work on one project together and go their separate ways. The contract they
entered into facilitated a business relationship that lasted ten years. Am. Compl. [#14] ¶ 2.
Over the course of those ten years, Plaintiff paid Defendant $1,287,607. Id. ¶ 3. Halfway
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through their business relationship, Defendant increased the role he played in Plaintiff’s
business operations. Id. ¶ 2. These contacts between Defendant and Plaintiff in Colorado
are not the type of “random,” “fortuitous,” or “attenuated” contacts that are insufficient to give
a court jurisdiction over a defendant. Keeton v. Hustler Magazine, Inc., 465 U.S. 770 ,774
(1984). Just as in Sports Science, Defendant should not be surprised that, as a result of the
continuing business relationship with Plaintiff, Colorado courts have personal jurisdiction
over him with regard to claims brought based on those contacts.
Having made this determination, the Court must examine whether Plaintiff sufficiently
alleges that his injuries arose from these activities. Dudnikov, 514 F.3d at 1070. Plaintiff
alleges that Defendant breached the contract that the parties entered into, and that the
breach caused Plaintiff damages. See generally Am. Compl. [#14]. Plaintiff’s other claims
relate to the business relationship between the parties as well. If not for the business
relationship, Defendant would never have had access to the intellectual property at issue,
and Defendant would never have had access to Plaintiff’s client lists.
Because the Court has determined that the contract and business relationship
between the parties constituted purposeful availment on the part of Defendant, any
damages that relate to the business relationship between the parties stem from Defendant’s
actions directed at Colorado. Without commenting on the legitimacy of Plaintiff’s claims, the
Court, based on the findings above, finds that Plaintiff’s allegations establish that his injuries
arose from Defendant’s contacts with Colorado.
The only dispute Defendant raises with respect to personal jurisdiction is that
Defendant, individually, did not do business with Plaintiff after 2003. Brief in Support [#19]
at 8. Thus, Defendant argues, because all of the contractual disputes concern a period of
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time (i.e., after 2003) when Defendant was doing business with Plaintiff in his capacity as
an officer of GVS or Halo, there is no specific jurisdiction with respect to Defendant
individually. Suppl. Brief in Support [#35] at 7. However, the evidence cited to by Defendant
does not support this assertion. Specifically, Defendant cites to an affidavit executed by
Defendant. Id. However, this affidavit merely asserts the following: “Neither myself, nor
GVS or Halo Architects, have had any business relationship or any relationship . . . with
[Plaintiff] since 2010.” Appendix in Support of Summary Judgment [#33] at 4 (emphasis
added).9
Nonetheless, even were the Court to accept Defendant’s assertion that Defendant
only acted as an officer of one of his corporations, the outcome would still be the same.
Although Defendant does not address the issue in his briefing, his argument implicates the
fiduciary shield doctrine. Under the fiduciary shield doctrine, “a nonresident corporate agent
generally is not individually subject to a court's jurisdiction based on acts undertaken on
behalf of the corporation.” Newsome v. Gallacher, 722 F.3d 1257, 1275 (10th Cir. 2013)
(quotation marks and citation omitted). However, “under Newsome, the threshold question
is whether Colorado recognizes the fiduciary shield doctrine.” Carskadon v. Diva Int'l, Inc.,
No. 12-cv-01886-RM-KMT, 2014 WL 7403237, at *5 (D. Colo. Feb. 26, 2014) report and
recommendation adopted, No. 12-cv-01886-RM-KMT, 2014 WL 7403233 (D. Colo. Dec. 29,
2014). The Court has been unable to find any instances of a Colorado court adopting or
applying the fiduciary shield doctrine. In the absence of such law, the consideration of all

9

As noted above, the Court may consider evidence outside the pleadings on a request for
dismissal pursuant to Rule 12(b)(2). See Impact Prods., 341 F. Supp. at 1189; see also Dazey
Corp. v. Wolfman, 948 F. Supp. 969, 972 (D. Kan. 1996) (stating that the “parties may submit
affidavits and other documentary evidence for the court's consideration” on a Rule 12(b)(2) motion).

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of Defendant’s contacts with Colorado is required. See id. (declining to apply the fiduciary
shield doctrine and considering all of the defendant’s contacts with Colorado). Accord
Carnrick v. Riekes Container Corp., No. 15-cv-01899-CMA-KMT, 2016 WL 740998, at *6
n.1 (D. Colo. Feb. 24, 2016); Powers v. Emcon Associates, Inc., No. 14-cv-03006-KMT,
2016 WL 1111708, at *5 (D. Colo. Mar. 22, 2016).
Therefore, because the Court has found that Plaintiff has sufficiently alleged that
Defendant purposefully availed himself of Colorado’s laws by entering into a contract with
Plaintiff and working with Plaintiff for ten years, and that Plaintiff’s injuries arose from this
business relationship, Plaintiff has pled a prima facie case for personal jurisdiction.
As Defendant purposefully availed himself of Colorado’s laws, and Plaintiff’s alleged
injuries arise out of Defendant’s contacts with Colorado, the Court can exercise jurisdiction
over Defendant in this case unless exercising jurisdiction would offend traditional notions
of fair play and substantial justice. Dudnikov, 514 F.3d at 1070. With minimum contacts
established, it is incumbent on Defendant to “present a compelling case that the presence
of some other considerations would render jurisdiction unreasonable.”

Id. at 1080.

Defendant makes no argument here10 that the Court’s exercise of jurisdiction would be
“unreasonable” or offensive to the notions of fair play and substantial justice. Accordingly,
the Court finds that it has personal jurisdiction over Defendant with respect to the contract
claims.

10

Defendant makes a related but separate argument that the matter should be transferred
to the Northern District of Texas pursuant to 28 U.S.C. § 1404 based on the principles of justice and
convenience. Brief in Support [#19] at 14. Defendant’s argument is addressed below.

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b.

Tort claims.

Plaintiff asserts that Defendant committed a variety of torts. See generally Am.
Compl. [#14]. Under the Colorado long arm statute, a person is subject to the jurisdiction
of the courts of Colorado, “concerning any cause of action arising from the commission of
a tortious act within [the] state.” Sports Sci., 514 F.3d at 1060. To satisfy the long arm
statute, there must be a showing that the tortious action occurred within the state and that
the exercise of jurisdiction over the defendant comports with due process. Id. The Court
must first determine whether the Amended Complaint alleges the commission of a tortious
act within the state. Id. Tortious act “implies the total act embodying both cause and effect.”
Id. (citing Classic Auto Sales, Inc. v. Schocket, 832 P.2d 233, 235 (Colo. 1992)). Next, the
Court must “undertake a particularized inquiry as to the extent to which the defendant has
purposefully availed [him]self of the benefits of the forum’s laws.” Archangel Diamond Corp.
v. Lukoil, 123 P.3d 1187, 1199-1200 (Colo. 2005).
In Sports Sci., the district court dismissed the plaintiff’s tort claims because the
alleged tortious conduct took place in England. The district court held that because the
tortious conduct did not take place in Colorado, the court did not have jurisdiction over the
tort claims. 514 F.3d at 1060. The Tenth Circuit reversed, holding that the district court did
have jurisdiction even though the tortious conduct took place outside of Colorado. Id. at
1060-61. As the Tenth Circuit explained, “[t]he threshold jurisdictional requirement is
established when it is demonstrated . . . ‘that tortious conduct in another state ultimately
caused injury in Colorado and that requiring a defense to the tort action in this state would
be consistent with the due process of law.’” Id. (quoting Fleet Leasing, Inc. v. District Court,
649 P.2d 1074, 1078 (Colo. 1982)).
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The Amended Complaint could provide more detail as to where each alleged tort took
place, but it does sufficiently allege that Defendant’s tortious conduct, whether it took place
in Colorado or elsewhere, caused injury in Colorado. Am. Compl. [#14] ¶ 21. Thus, the
Court concludes that it has jurisdiction to hear the tort claims, provided that exercising
jurisdiction over Defendant comports with due process. As determined above, due process
is not threatened.
B.

Summary Judgment Pursuant to Rule 56
The purpose of a motion for summary judgment pursuant to Fed. R. Civ. P. 56 is to

assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Pursuant to Fed. R. Civ. P. 56(c), summary judgment should enter if “the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
An issue is genuine if the evidence is such that a reasonable jury could resolve the issue
in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 277 U.S. 242, 248 (1986).
A fact is material if it might affect the outcome of the case under the governing substantive
law. Id.
The burden is on the movant to show the absence of a genuine issue of material fact.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477
U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the
“movant may make its prima facie demonstration [of the absence of a genuine issue of
material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on
an essential element of the nonmovant’s claim.” Id. at 671. If the movant carries the initial
burden of making a prima facie showing of a lack of evidence, the burden shifts to the
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nonmovant to put forth sufficient evidence for each essential element of his claim such that
a reasonable jury could find in his favor. See Anderson, 277 U.S. at 248; Simms v. Okla.
ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.
1999). The nonmovant must go beyond the allegations and denials of his pleadings and
provide admissible evidence, which the Court views in the light most favorable to him.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A.,
60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324).

Conclusory

statements based merely on conjecture, speculation, or subjective belief are not competent
summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.
2004). The nonmoving party’s evidence must be more than “mere reargument of [his] case
or a denial of an opponent’s allegation” or it will be disregarded. See 10B Charles Alan
Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed.1998).
Defendant bears the initial burden of identifying the basis for his motion and the
supporting evidence he believes demonstrates a lack of genuine issue as to any material
fact. Celotex, 477 U.S. at 323. Because Defendant does not bear the ultimate burden of
persuasion at trial, he “may satisfy this burden by identifying ‘a lack of evidence for [Plaintiff]
on an essential element of [his] claim.’” Adamson v. Multi Cmty. Diversified Servs., Inc., 514
F.3d 1136, 1145 (10th Cir. 2008) (quoting Alder v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998)).
When the Defendant carries the initial burden of making a prima facie showing of a
lack of evidence, the burden shifts to Plaintiff to put forth sufficient evidence for each
essential element of his claim such that a reasonable jury could find in his favor. See
Anderson, 277 U.S. at 248; Simms v. Okla. ex rel. Dep't of Mental Health & Substance
-18-

Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).

Plaintiff must go beyond the

allegations and denials of his pleadings and provide admissible evidence, which the Court
views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing
Celotex, 477 U.S. at 324)).

Conclusory statements based merely on conjecture,

speculation, or subjective belief are not competent summary judgment evidence. Bones v.
Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party’s evidence
must be more than “mere reargument of [his] case or a denial of an opponent’s allegation”
or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and
Procedure § 2738 at 356 (3d ed.1998).
Here, Defendant makes two arguments for summary judgment: (1) Plaintiff’s claims
are barred by the applicable statute of limitations, and (2) Plaintiff has failed to put forth
sufficient evidence to substantiate any claims that the Court finds are not barred, or such
claims are plainly refuted by the evidence adduced by Defendant and fail as a matter of law.
Suppl. Brief in Support [#35] at 7-9.
1.

Statutes of limitations.

With the exception of Plaintiff’s federal claim for copyright infringement, the Court
applies Colorado law to determine the applicable statutes of limitations and whether a
particular statute of limitations bars a claim. See Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78 (1938) (“Except in matters governed by the Federal Constitution or by acts of Congress,
the law to be applied in any case is the law of the state. . . . [a]nd whether the law of the
state shall be declared by its Legislature in a statute or by its highest court in a decision is
not a matter of federal concern.”)
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Plaintiff’s claims have the following statutory periods:
1. Breach of contract - three years. Col. Rev. Stat. Ann. § 13-80-101;
2. Fraud - three years. Col. Rev. Stat. Ann. § 13-80-101;
3. Conversion - two years. Col. Rev. Stat. Ann. § 13-80-102;
4. Civil theft - two years. Col. Rev. Stat. Ann. § 13-80-102;
5. Slander - one year. Col. Rev. Stat. Ann. § 13-80-103;
6. Breach of fiduciary duty - three years. Col. Rev. Stat. Ann. § 13-80-101;
7. Interference with contract - two years. Col. Rev. Stat. Ann. § 13-80-102;
8. Consumer Protection Act violation - three years. Col. Rev. Stat. Ann. § 6-1-115;
9. Replevin - three years. Col. Rev. Stat. Ann. § 13-80-101;
10. Unjust enrichment - three years. Col. Rev. Stat. Ann. § 13-80-101;
11. Copyright infringement - three years. 17 U.S.C. § 507
“Whether a [Colorado] statute of limitations bars a particular claim is a question of
fact,” but the issue may be decided as a matter of law “if undisputed facts demonstrate that
the plaintiff had the requisite information as of a particular date.” Burns v. Mac, No. 13-cv2109-WJM-KLM, 2014 WL 1242032, at *11 (D. Colo. Mar. 26, 2014) (citing Trigg v. State
Farm Mut. Auto. Ins. Co., 129 P.3d 1099, 1101 (Colo. App. 2005)). A cause of action is
considered to accrue on the date both the injury and its cause are known or should have
been known by the exercise of reasonable diligence. Col. Rev. Stat. Ann. § 13-80-108(1).
In both his original complaint and the Amended Complaint, Plaintiff alleges two dates
when he became aware of Defendant’s alleged actions: March 6, 2013 and sometime in
November 2014. Am. Compl. [#14] ¶¶ 14-15. On March 6, 2013, Plaintiff alleges that he

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discovered during a deposition of a third party that Defendant had been “knowingly or
negligently: . . . misrepresenting his role as a subcontractor . . . ; using his
misrepresentations to attempt to persuade the client to terminate the relationship with
[Plaintiff]; . . . [and ]slandering [Plaintiff] by misrepresenting the integrity of the design and
development approaches employed by [Plaintiff][.]” Id. ¶ 14. In November 2014, Plaintiff
alleges that he “further discovered [Defendant] was then misrepresenting to the public that
he is the owner of the protected designs and has the right to use and sell them to the
public.” Id. ¶ 15.
Here, Plaintiff originally filed this action in state court on March 2, 2015. State Court
Compl. [#1-3]. Thus, with the exception of the slander claim,11 because Plaintiff alleges that
his claims arise out of knowledge acquired on either March 6, 2013 or in November 2014,
none of the claims are perforce barred by the statutes of limitations unless Defendant shows
that the “undisputed facts demonstrate that the plaintiff had the requisite information as of
a particular date.” Burns, 2014 WL 1242032, at *11.
Defendant argues that this is the case, citing to a letter his lawyer sent to Plaintiff on
January 5, 2010 (the “Letter”) and Plaintiff’s responses to the Letter. See Appendix in
Support of Summary Judgment [#33] at 10-41.

Defendant argues that these

“communications reflect that [Plaintiff] was fully aware of a [sic] potential claims that he
apparently believed he might have against [Defendant][.]” Suppl. Brief in Support [#35] at

11

Plaintiff has conceded that the slander claim is barred by the one year statute of
limitations. Response [#22] at 12 (“Plaintiff would agree the statute of limitations on the one slander
incident discovered at deposition March 6, 2013. . . has run[.]”). Accordingly, Defendant’s motion
is granted as to the slander claim. See also Fed. R. Civ. P. 41(a)(2) (“[A]n action may be dismissed
at the plaintiff’s request . . . by court order[.]”).

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4.
In the Letter, Defendant’s counsel informed Plaintiff of Defendant’s belief that Plaintiff
had infringed the intellectual property rights of GVS, Halo, and Defendant. Appendix in
Support of Summary Judgment [#33] at 17-20. For example, Defendant’s counsel stated
that “all initial schematic designs prepared by Halo constitute the copyright work of Halo. .
. . If we learn that any architect or any other person or entity uses my client’s schematics or
any variation or deviation thereof, without permission, be aware that we will pursue all
available legal action.” Id. at 18. Counsel also stated that “[t]his letter as [sic] a formal
demand for written assurance that you . . . permanently cease and desist from further
importation, advertising, marketing, distribution, and sale of any schematics or derivatives
of Halo, GVS, or [Defendant][.]” Id. Defendant also noted that, in one email sent prior to the
Letter, Defendant told Plaintiff to “stop using copied creative execution and producing
derivatives of [GVS] productions for your own marketing purposes. . . . I will protect the
copyright of both [GVS] and Halo[.]” Id. at 16.
Defendant contends that correspondence from Plaintiff in response to the Letter also
indicates that Plaintiff had knowledge of his claims premised on breach of contract,
misrepresentation, or interference with contractual relations in 2010. Suppl. Brief in Support
[#35] at 4-5. For example, Plaintiff wrote to Defendant on January 18, 2010 as follows:
“Your last paragraph of this section troubles me greatly as you seem to infer that you would
condone your client undertaking [sic] an activity which would subject him and his firm to .
. . litigation . . . [for] tortuous [sic] interference of a contractual relationship.” Appendix in
Support of Summary Judgment [#35] at 29. This statement is in response to a paragraph
in the Letter, wherein Defendant’s counsel states: “if any of these churches contact my
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clients regarding an explanation for the severance of the business relationship, my clients
intend to set them straight with the truth. Further, my clients will direct them to speak with
the churches who have a personal experience with your questionable business tactics,
which include Harvest Family Church and Calgary Baptist.” Id. at 19.
Plaintiff does not dispute the content of the Letter, but claims that the issues raised
in this correspondence went unresolved. Suppl. Response [#37] at 3. Specifically, Plaintiff
argues that the ownership of the copyrights remained disputed. Id. Plaintiff also contends
that the Letter “does not prove [Plaintiff] knew of any tortious interference with his
contractual relations or of any attempts to steal his clients by unlawful inducement at that
time or that he knew of claims of ownership by [Defendant] to [Plaintiff’s] seminal
architectural design work which pre-existed his relationship with [Defendant].” Id. at 5.
Plaintiff also argues that even if the correspondence “provides evidence of many potential
claims available to [Plaintiff] at that time,” “there are no facts presented by [Defendant] to
refute [Plaintiff’s] testimony that he did not discover the presently claimed transgressions (as
distinguished from disputed prior transgressions) until 2014.” Suppl. Response [#37] at 5.
As a preliminary matter, the Court addresses Plaintiff’s argument that the statutes of
limitations do not bar Plaintiff’s claims because the ownership of copyrights remained
disputed after the 2010 correspondence between the two parties. It is, of course, absolutely
clear that the ownership of the copyrights is still disputed, as is evident by the existence of
this civil action. However, the resolution of the issues surrounding ownership is irrelevant
for a statute of limitations analysis; the relevant question here is whether the “undisputed
facts demonstrate that the plaintiff had the requisite information as of a particular date.”
Burns, 2014 WL 1242032, at *1.
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Here, the Court finds that there is no genuine dispute of material fact that when
Plaintiff received the Letter, he knew or should have known the basis for his claims
concerning Defendant’s use of the copyrighted works at issue. Id. Thus, because Plaintiff
had this knowledge in 2010, the statutory period began to run at that time for Plaintiff’s
claims concerning the copyrighted works. The Court addresses each claim with respect to
the statute of limitations below.
a.

Breach of contract.

Plaintiff claims that Defendant breached the contract between the parties by “failing
to provide the services for the exclusive benefit of [Plaintiff], by converting the intellectual
property of [Plaintiff] to his own use, refusing to return work product for which he has been
paid[.].” Am. Compl. [#14] ¶ 25. Plaintiff also alleges that Defendant breached his contract
by “interfering with the relations between [Plaintiff]” and his clients. Am. Compl. [#14] ¶ 25.
Based on the Letter, it is clear that Plaintiff was aware that Defendant believed that
the work product in question was his own or owned by one of his companies. Appendix in
Support of Motion to Dismiss [#19-1] at 5. Indeed, Plaintiff himself concedes that the parties
disputed the ownership of intellectual property in 2010. Suppl. Reponse [#37] at 3.
Plaintiff’s Complaint was filed on April 24, 2015, more than three years after Plaintiff had
knowledge of the alleged breach with respect to copyrighted materials. Am. Compl. [#14].
Therefore, the breach of contract claim relating to Defendant’s use of Plaintiff’s intellectual
property is barred by the three-year statute of limitations for breach of contract claims. See
Col. Rev. Stat. Ann. § 13-80-101. Accordingly, Defendant’s motion is granted with respect
to the portion of Plaintiff’s claim alleging breach of contract based on the intellectual
property.
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With respect to Plaintiff’s allegation that Defendant, “interfer[ed] with the relations
between [Plaintiff]” and Plaintiff’s clients,12 Defendant has put forth some evidence that
Plaintiff may have known of his cause of action in 2010.

Am. Compl. [#14] ¶ 25.

Specifically, Plaintiff’s accusation that Defendant’s counsel condoned tortious interference
with contractual relations gives some weight to Defendant’s argument here. See Appendix
in Support of Summary Judgment [#35] at 29. However, Plaintiff alleges in the Amended
Complaint that he discovered specific instances of Defendant’s actions during a deposition
in March 2013. Am. Compl. [#14] ¶ 14. He also argues that each instance is a separate
tortious act. Suppl. Response [#37] at 5. Moreover, the written contract purportedly
breached is not before the Court. Therefore, a dispute of fact exists with respect to when
Plaintiff discovered the alleged interference by Defendant with Plaintiff’s clients and hence
when the statutory period began running with respect to this portion of Plaintiff’s claim.
Accordingly, entry of summary judgment on this portion of the breach of a contract claim is
not appropriate.
b.

Fraud.

Plaintiff claims that Defendant engaged in fraud by “intentionally misrepresent[ing]
his promised performance for the sole use and benefit of [Plaintiff].” Am. Compl. [#14] ¶ 28.
He specifies that Defendant’s “promises” relate to the “ownership of the original design work,
the detailed additions being for the use and benefit of [Plaintiff] and specific clients of

12

The Court notes that this latter allegation appears to be directed towards Defendant’s
alleged interference with contractual relationships, a separate tort claim. See id. ¶¶ 50-51.
Whether these alleged facts may be used to support both the breach of contract claim and the
interference with contractual relations claim – in addition to the numerous other claims in which this
allegation appears – has not been argued or raised by the parties on this Motion, and thus the
Court does not address it here.

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[Plaintiff] and the obligation to return paid work product to [Plaintiff][.]” Id. ¶ 27. He also
alleges that Defendant was “concealing that he was soliciting business from customers[.]”
Id. ¶ 28.
The Letter states that it is a “formal demand” that Plaintiff “cease and desist from
further importation, advertising, marketing, distribution, and sale of any schematics or
derivatives of Halo, GVS, or Stan” and also requests that Plaintiff “destroy [his] inventory of
all infringing material.” Appendix in Support of Summary Judgment [#33] at 18. This
statement clearly puts Plaintiff on notice that designs Defendant or his companies created
while employed with Plaintiff were not being used for the sole use and benefit of Plaintiff.
Therefore, the Letter gave Plaintiff knowledge of this alleged misrepresentation as of
January 2010, more than three years prior to the filing of this claim. As a result, this portion
of the claim is barred by the statute of limitations. See Col. Rev. Stat. Ann. § 13-80-101.
Accordingly, Defendant’s motion is granted as to this portion of the fraud claim.
Plaintiff also claims that Defendant engaged in fraud by concealing that he was
soliciting business from customers, and exploiting private customer lists for Defendant’s own
benefit. Am. Compl. [#14] ¶ 28. Nothing in the Letter puts Plaintiff on notice that Defendant
was engaging in this type of behavior. Appendix in Support of Summary Judgment [#33]
at 17-19. Further, none of the other correspondence contains any language indicating that
Plaintiff was aware or should have been aware of this claim. See Id. at 10-41.
Thus, Defendant has not put forth sufficient evidence to demonstrate that these
claims are barred by the statute of limitations, as Plaintiff alleges that he only became aware
of these acts in 2013 at the earliest. Am. Compl. [#14] ¶ 14. There is a genuine issue of
material fact regarding when Plaintiff discovered that Defendant was soliciting business from
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Plaintiff’s customers and exploiting Plaintiff’s customer lists, hence entry of summary
judgment on the basis of the statute of limitations is not appropriate.
c.

Conversion.

Plaintiff claims that Defendant engaged in conversion by “wrongfully convert[ing] the
intellectual property of [Plaintiff] to his own use without authorization.” Am. Compl. [#14] ¶
32. As noted above, the Letter puts Plaintiff on notice that Defendant and his companies
claimed ownership over “animations and renderings” and “schematic designs,” and also
requested that Plaintiff “cease and desist” the usage of this intellectual property. Appendix
in Support of Summary Judgment [#33] at 17-19. Based on the Letter, there is no genuine
issue of material fact that Plaintiff had notice that Defendant claimed ownership of the
intellectual property more than two years prior to the filing of this claim. See Col. Rev. Stat.
Ann. § 13-80-102. Accordingly, Defendant’s motion is granted as to the conversion claim.
d.

Civil theft.

Plaintiff claims that Defendant “knowingly obtained control over the intellectual
property” at issue, and that Defendant “intend[ed] to deprive [Plaintiff] permanently of the
benefit of the intellectual property.” Am. Compl. [#14] ¶ 35. The “requisite information” for
this claim, therefore, is identical to that of Plaintiff’s conversion claim. Burns, 2014 WL
1242032, at *1. Thus, because the Letter put Plaintiff on notice that Defendant claimed the
intellectual property at issue, Plaintiff knew or should have known of the cause of his injury
more than two years prior to the filing of this claim. Col. Rev. Stat. Ann. § 13-80-108(1).
Accordingly, Defendant’s motion is granted as to the civil theft claim. See Col. Rev. Stat.
Ann. § 13-80-102.

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e.

Breach of fiduciary duty.

Plaintiff claims that the entrustment of intellectual property and creative work product
to Defendant created a fiduciary duty in Defendant to honor Plaintiff’s ownership of the
intellectual property. Am. Compl. [#14] ¶ 48. Plaintiff alleges that this duty was breached
when Defendant “convert[ed] said property to his own use and interfer[ed] with the business
relationships of [Plaintiff].” Id. ¶ 49. The Court grants the request for summary judgment
on the first portion of this claim – i.e., that Defendant breached his fiduciary duty by
“converting [intellectual] property to his own use” – as no genuine dispute of material fact
exists as to Plaintiff’s knowledge in 2010 of Defendant’s and his companies’ claims to the
copyrighted materials. Thus, this claim is barred by the three-year statute of limitations.
See Col. Rev. Stat. Ann. § 13-80-101.
With respect to Plaintiff’s claim that Defendant breached his fiduciary duty to Plaintiff
by “interfering with the business relationships of [Plaintiff],” Am. Compl. [#14] ¶ 49,
Defendant argues that Plaintiff’s “communications reflect that he was fully aware of a [sic]
potential claims that he apparently believed he might have against [Defendant][.]” Suppl.
Brief in Support [#35] at 4. Plaintiff responds that although the correspondence “provides
evidence of many potential claims available to [Plaintiff] at that time,” “there are no facts
presented by [Defendant] to refute [Plaintiff’s] testimony that he did not discover the
presently claimed transgressions (as distinguished from disputed prior transgressions) until
2014.” Suppl. Response [#37] at 5.
The Court agrees with Plaintiff. Although the response sent by Plaintiff vaguely
references that “[Defendant], Halo Architects, and [GVS] are guilty of torsos [sic]
interference,” it is unclear here to which contracts Plaintiff refers in the letter. Appendix in
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Support of Summary Judgment [#33] at 23. Plaintiff claims that they are separate contracts,
and the Amended Complaint alleges that the parties worked together on twenty-five different
projects. See Suppl. Oaster Affidavit [#37-2] ¶ 12-13; Am. Compl. [#14] ¶ 10. Thus, the
Court finds that a dispute of fact exists regarding when the claim accrued as to the second
part of the claim for breach of fiduciary duty premised on interference with Plaintiff’s
business relationships, and summary judgment is therefore not appropriate on statute of
limitations grounds with respect to that portion of the claim. See Col. Rev. Stat. Ann. § 1380-101.
f.

Interference with contract.

Plaintiff claims that Defendant interfered with Plaintiff’s contractual relationships. He
alleges that he discovered at least one instance of Defendant’s interference on March 6,
2013. Am. Compl. [#14] ¶ 14. An interference with a contract claim is subject to a two-year
statute of limitations. See Col. Rev. Stat. Ann. § 13-80-102. Here, Plaintiff filed his
complaint in state court on March 3, 2015 – less than two years after he claims he learned
of the interference with contractual relations. State Court Compl. [#1-3]. Further, as noted
above, the correspondence between the parties reviewed by the Court shows, at best, that
Plaintiff may have had some knowledge of a cause of action with respect to some contracts.
Appendix in Support of Summary Judgment [#33] at 10-41. However, Defendant, as the
moving party, has the burden to show an absence of a genuine issue of material fact. Adler,
144 F.3d at 670-71. Thus, because Defendant has not put forth evidence that demonstrates
that Plaintiff undisputably had knowledge of his cause of action prior to March 6, 2013, the
Court finds that the statute of limitations does not bar this claim.

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g.

Colorado Consumer Protection Act violation.

Plaintiff claims that Defendant violated the Colorado Consumer Protection Act
(“CCPA”) by selling Plaintiff’s protected designs on a website. Am. Compl. [#14] ¶ 54.
Plaintiff allegedly learned of this activity during his investigation in Defendant in November
2014. Am. Compl. [#14] ¶ 15. CCPA violations are subject to a three-year statute of
limitations. See Col. Rev. Stat. Ann. § 6-1-115. Hence, Plaintiff’s CCPA claim is not barred
by the statute of limitations on its face.
Further, although the Court has found that Plaintiff knew of Defendant’s or
Defendant’s companies’ claims to ownership of copyrights which Plaintiff claims to own
here, the allegation that Defendant specifically violated the CCPA by virtue of his sale of the
copyrights on a website is distinct from Plaintiff’s other claims based merely on Defendant’s
use or representation of ownership of the copyrights (which was clearly at issue in the 2010
Letter). Defendant has not put forth any evidence demonstrating that Plaintiff knew or
should have known that Defendant was selling the copyrighted materials on the internet.
See Appendix in Support of Summary Judgment [#33] at 10-41. Accordingly, in the absence
of such undisputed evidence, the statute of limitations does not bar this claim.
h.

Replevin.

Plaintiff claims that he “is entitled to repossession of the business and intellectual
property” from Defendant. Am. Compl. [#14] ¶ 62. Because the Court has already
determined that Plaintiff knew of the basis for such a claim based on the Letter, this claim
is barred by the three-year statute of limitations. See Col. Rev. Stat. Ann. § 13-80-101.
Accordingly, Defendant’s motion is granted as to the replevin claim.

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i.

Unjust enrichment.

Plaintiff claims that Defendant’s “deceit and bad faith allowed him to benefit and
receive gain from customers, web sales and other commercial uses of [Plaintiff’s] intellectual
property.” Am. Compl. [#14] ¶ 70. Because of this, Plaintiff alleges that he is entitled to
restitution. Id. Plaintiff allegedly learned of this activity during his investigation of Defendant
in November 2014. Am. Compl. [#14] at 3. “Equitable claims – such as those made here
for unjust enrichment . . . are technically subject to an equitable laches rather than a legal
statute of limitations analysis.” Sterenbuch v. Gross, 266 P.3d 428, 436 (Colo. App. 2011)
(quoting Interbank Invs., L.L.C. v. Vail Valley Consol. Water Dist., 12 P.3d 1224, 1230 (Colo.
App. 2000)). However, absent extraordinary circumstances, a court will usually grant or
withhold relief by analogy to the statute of limitations relating to actions at law of like
character. Sterenbuch, 266 P.3d at 436. Unjust enrichment is a form of relief in quasicontact or contract implied in law. Id. at 437. Thus, the time within which to assert such a
claim is assessed under the three-year statute of limitations for contract actions. Id. Plaintiff
alleges that he was not aware that Defendant was profiting from the intellectual property in
question until the investigation in 2014. Am. Compl. [#14] ¶ 15. Further, Defendant has not
put forth any evidence demonstrating that Plaintiff had knowledge of Defendant’s alleged
profit from these materials prior to November 2014. Thus, because the action was brought
within three years of the discovery of the alleged unjust enrichment, this claim is not barred
by the statute of limitations.
j.

Copyright infringement.

Plaintiff alleges that Defendant “has used, and continues to use the Copyrighted
materials in his own architectural business for profit and has sold the protected Copyrighted
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materials on the internet without consent or license from [Plaintiff].” Am. Compl. [#14] ¶ 78.
Plaintiff alleges that he has exclusive right to use and reproduce the copyrighted materials
and to distribute the copyrighted materials to the public. Id. ¶ 79.
A claim for copyright infringement must be brought “within three years after the claim
accrued.” 17 U.S.C. § 507(b). Under the majority view, a claim “for copyright infringement
accrues when one has knowledge of a violation or is chargeable with such knowledge.”
Diversey v. Schmidly, 738 F.3d 1196, 1200 (10th Cir. 2013) (quoting Roley v. New World
Pictures, Ltd., 19 F.3d 479, 481 (9th Cir. 1994)). “Each act of infringement is a distinct
harm.” Diversey, 738 F.3d at 1202 (quoting Bridgeport Music, Inc. v. Rhyme Syndicate
Music, 376 F.3d 615, 621 (6th Cir. 2004)).
Here, Defendant argues that the statute of limitations bars Plaintiff’s copyright
infringement claim based on the Letter. Suppl. Brief in Support [#35] at 3. However, while
the Letter states that Defendant was the owner of animations and schematic designs, the
Letter makes no mention of selling the materials, nor is there any indication from Plaintiff’s
correspondence sent in response to Defendant that he knew of the website used by
Defendant or Defendant’s companies to sell Plaintiff’s alleged copyrighted materials.
Plaintiff alleges that he did not discover Defendant was doing so until after Plaintiff
investigated Defendant in November 2014. Am. Compl. [#14] ¶ 15. Thus, because Plaintiff
did not learn of Defendant’s use of Plaintiff’s materials until 2014, Plaintiff’s claim of
infringement accrued in 2014. Diversey, 738 F.3d at 1202. By extension, because Plaintiff
filed his Amended Complaint on May 19, 2015 – less than three years after he became
aware of the alleged infringement – this claim is not barred by the statute of limitations. 17
U.S.C. § 507(b).
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k.

Remaining claims.

In conclusion, the following claims remain in their entirety: the interference with
contractual relations claim; the CCPA claim; the unjust enrichment claim; and the copyright
infringement claim. The following claims survive only to the extent that they are premised
on the allegation of interference with contractual relations: breach of contract; fraud; and
breach of fiduciary duty.
2.

Substantive arguments.

For purposes of addressing Defendant’s arguments that he is entitled to summary
judgment as a matter of law on certain of Plaintiff’s claims, the Court divides those claims
into two categories.
First, Plaintiff’s claims for violation of the CCPA, unjust enrichment, and copyright
infringement are premised on Defendant’s alleged sale of copyrighted materials through the
internet. See Am. Compl. [#14] ¶¶ 54-56, 70, 78. This reading is clear based on the
allegations in Plaintiff’s Amended Complaint. Specifically, as an essential element of a
CCPA claim, a plaintiff must show that “the defendant engaged in an unfair or deceptive
trade practice[.]”13 Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d
142, 146 (Colo. 2003). Here, the “unfair and deceptive trade practice” alleged by Plaintiff
is that Defendant, “[i]n utilizing the internet to resell the pirated plans” has committed “fraud
upon the public[.]” Am. Compl. ¶¶ 54-56. To prove unjust enrichment, a plaintiff must

13

The other elements of a CCPA claim are: “(2) that the challenged practice occurred in
the course of the defendant’s business; (3) that it significantly impacts the public as actual or
potential consumers of the defendant’s goods, services, or property; (4) that the plaintiff suffered
the injury in fact to a legally protected interest; and (5) that the challenged practice caused the
plaintiff’s injury.” Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 146
(Colo. 2003).

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demonstrate that (1) at [his or her] expense, (2) the defendant received a benefit (3) under
circumstances that would make it unjust for the defendant to retain the benefit without
paying. Donchez v. Coors Brewing Co., 392 F.3d 1211, 1221 (10th Cir. 2004). Here,
Plaintiff alleges that “[Defendant’s] deceit and bad faith allowed him to benefit and receive
gain from customers, web sales and other commercial uses of [Plaintiff’s] intellectual
property.” Am. Compl. [#14] ¶ 70. Lastly, with respect to a claim under the Copyright Act,
Section 106 of the Copyright Act grants to copyright owners the exclusive right: (i) to
reproduce their work; (ii) prepare derivative works; (iii) distribute copies of the work; (iv)
perform the work publicly; and (v) display the work publicly. 17 U.S.C. § 106. Here, Plaintiff
alleges that Defendant violated Section 106, stating that he “has used, and continues to use
the Copyrighted materials in his own architectural business for profit and has sold the
protected materials on the internet without consent or license[.]” Am. Compl. [#14] ¶ 78.
Lastly, the second category of Plaintiff’s claims are those based on allegations of
misrepresentation and interference with contractual relations, i.e. the breach of contract
claim, the fraud claim, the breach of fiduciary duty claim, and the interference with
contractual relations claim. Id. ¶¶ 25, 28, 49, 51.
a.

Claims premised on copyright infringement.

Defendant contends that Plaintiff’s claims based on copyright infringement fail as a
matter of law. Defendant argues that “[Plaintiff] has sued Robertson, individually, for claims
clearly linked to [GVS] or Halo Architects[.]” Suppl. Brief in Support [#35] at 7. In essence,
Defendant argues that Plaintiff’s Amended Complaint asserts claims against Defendant
individually for actions all taken by Defendant’s corporations – GVS and Halo – or by
Defendant acting in his capacity as an officer of those companies. Plaintiff responds that
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“[t]he correspondence exchange between the parties demonstrates[] a generic grouping of
parties as ‘my clients’ . . . , leaving distinctions of respective party or liability unresolved
without further testimony[.]” Suppl. Response [#37] at 3.
As noted above, Plaintiff bases his CCPA, unjust enrichment, and copyright
infringement claims on the allegation that Defendant used copyrighted materials in his own
businesses and also sold these materials on the internet. Am. Compl. [#14] ¶¶ 54-56, 70,
78. In support of this, Plaintiff has attached to the Amended Complaint a schematic design
and a “List of Known Copyright Infringements” which lists the following alleged
infringements: (1) “Stanley Robertson’s website www.worshipplaces.com,” (2) Harvest
Family Church, and (3) Triumph Church. Am. Compl. Ex. B [#14-2].
The Court finds that Defendant has sufficiently adduced evidence to show that he is
not the proper party named by Plaintiff’s Amended Complaint, and that he has not
performed any of the alleged infringing acts complained of by Plaintiff. Here, Plaintiff alleges
that Defendant Stanley Robertson infringed Plaintiff’s copyrighted works by distributing them
on a website, www.worshipplaces.com, and (vaguely) that there were infringements relating
to “Harvest Family Church” and “Triumph Church.” Am. Compl. [#14] ¶ 72; Am. Compl. Ex.
B [#14-2]. However, the evidence produced by Defendant shows that GVS – not Defendant
– owns and operates the website allegedly engaged in the unlawful distribution of
copyrighted materials. Appendix in Support of Motion for Summary Judgment [#33] at 2,
3. Defendant has attached articles of incorporation for both GVS and Halo that were filed
with the Secretary of State in Texas. Id. at 5-9. These documents are signed and
notarized. Id. Defendant also produced contracts showing that the work performed for
Harvest Family Church, Triumph Church, and Christ Church was performed by GVS or Halo
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– not Defendant individually. Appendix in Support of Motion for Summary Judgment
(Second) [#34] at 45-62. Thus, the Court finds that Defendant has put forth evidence
showing that Defendant’s companies – not Defendant – have engaged in the actions that
form the basis of Plaintiff’s copyright and CCPA claims, i.e. unlawful use and distribution.
See United States v. Van Diviner, 822 F.2d 960, 963 (10th Cir. 1987) (“Ordinarily, a
corporation is regarded as a separate entity distinct from the individuals comprising it.”
(citing Moline Properties v. Commissioner, 319 U.S. 436, 439 (1943)); see also Skidmore,
Owings & Merrill v. Canada Life Assur. Co., 907 F.2d 1026, 1027 (10th Cir. 1990)
(“Disregarding the corporate form is a drastic remedy.

This court recently stated,

‘[C]orporate veils exist for a reason and should be pierced only reluctantly and cautiously.
The law permits the incorporation of businesses for the very purpose of isolating liabilities
among separate entities.’” (quoting Cascade Energy & Metals Corp. v. Banks, 896 F.2d
1557, 1576 (10th Cir.1990)). Thus, the Court finds that Defendant has satisfied his burden
to show an absence of a genuine dispute of material fact regarding the identity of the
allegedly infringing entities, and thus the burden shifts to Plaintiff to establish that a dispute
of fact exists. Anderson, 277 U.S. at 248.
Plaintiff argues that “[o]wnership of copyrights remain[s] disputed” and states that
“[Defendant] clearly says [] he retained ownership of ‘any intellectual property that GVS or
Halo Architects produced or that I designed[.]’”14 Suppl. Response [#37] at 4. However,
even assuming that the copyrights are owned by Plaintiff for the purposes of this motion,
14

Plaintiff misquotes Defendant in a misleading way. Defendant actually states in his
affidavit the following: “At all relevant times, GVS and Halo Architects, or myself as the Architect
of Record, retained ownership of any intellectual property that GVS or Halo Architects produced
or that I designed.” Appendix in Support of Motion for Summary Judgment [#33] at 4 (emphasis
added).

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Plaintiff must nevertheless support his contention that Defendant – and not Defendant’s
companies – engaged in the allegedly infringing acts giving rise to the CCPA, unjust
enrichment, and copyright claims. Anderson, 277 U.S. at 248. Plaintiff’s only argument
here is that correspondence with Defendant and Defendant’s counsel is vague about
whether Defendant or Defendant’s companies claimed ownership of the copyrighted
materials. Suppl. Response [#37] at 4. But claiming ownership of a copyright one does not
own is not, by itself and absent any other conduct, a violation of the Copyright Act. 17
U.S.C. § 106. Further, even if claiming ownership could constitute a cause of action for
violation of the CCPA or unjust enrichment, these claims would then be barred by the
statute of limitations, as the Letter sent by Defendant’s counsel in 2010 notified Plaintiff that
Defendant claimed ownership over the copyrighted materials. See Col. Rev. Stat. Ann. §
6-1-115; Col. Rev. Stat. Ann. § 13-80-101.
Finally, it is also clear that Plaintiff’s unjust enrichment claim in particular is
preempted by the copyright act. Section 301(a) of the Copyright Act provides that state law
claims are preempted if “(1) the work is within the scope of the ‘subject matter of copyright’
as specified in 17 U.S.C. §§ 102 and 103; and (2) the rights granted under state law are
equivalent to any exclusive rights within the scope of the federal copyright as set out in 17
U.S.C. § 106.” Gates Rubber Co., v. Brando Chem. Indus., Ltd., 9 F.3d 823, 847 (10th Cir.
1993); see 17 U.S.C. § 301(a). “When a right defined by state law may be abridged by an
act which, in and of itself, would infringe one of the exclusive rights [under Section 106], the
state law in question must be deemed preempted.” R.W. Beck, Inc. v. E3 Consulting, LLC,
577 F.3d 1133, 1147 (10th Cir. 2009) (quoting Ehat v. Tanner, 780 F.2d 876, 878 (10th
Cir.1985). Based on Plaintiff’s allegations, it is impossible for Plaintiff to prove the copyright
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claim but not the unjust enrichment claim. If Plaintiff successfully demonstrates that
Defendant infringed on his copyright, he has demonstrated that there was unjust
enrichment. Because the claims both include copyrighted materials, and because the unjust
enrichment claim is the equivalent to a Copyright Act violation, the unjust enrichment claim
is preempted by the Copyright Act. See 17 U.S.C. § 301(a); see also R.W. Beck, 577 F.3d
at 1147 (finding that an unjust enrichment claim is preempted by the Copyright Act).
Thus, because Defendant has satisfied his burden to show that he did not perform
any of the allegedly infringing actions in his individual capacity,15 and Plaintiff has not offered
any evidence or argument which creates a genuine issue of material fact, the Court grants
the request for summary judgment with respect to Plaintiff’s CCPA claim, unjust enrichment
claim, and copyright claim.16
b.

Claims premised on interference with contractual relations.17

Defendant argues that these claims fail as a matter of law. Specifically, Defendant

15

Plaintiff also alleges that Defendant infringed on copyrighted materials owned by Plaintiff
and Patrick Morgan, who has “assigned all his rights to pursue and collect upon claims against
[Defendant].” Assignment [#14-1]. Because the Court finds that Defendant has shown that his
companies – and not him individually – performed the actions forming the basis of Plaintiff’s claims,
the Court does not reach this argument.
16

The Court also notes that the parties dispute whether Plaintiff can bring copyright
infringement claims with respect to copyrights purportedly assigned from Morgan to Plaintiff.
Because the Court finds that none of the allegedly infringing actions are appropriately brought
against Defendant here, the Court does not reach this issue.
17

With respect to these claims, Defendant appears to only argue that Plaintiff has failed to
state a claim upon which relief can be granted pursuant to Rule 12(b)(6), as he does not make any
additional arguments in the supplemental briefing supplied to the Court pertaining to summary
judgment, nor does Defendant cite to any evidence in support of his arguments. See generally
Brief in Support [#19]; Suppl. Brief in Support [#35]. Nonetheless, the Court analyzes these
arguments pursuant to Rule 56 because the Court converted the Motion to one for summary
judgment. See Minute Order [#36].

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argues that Plaintiff has not sufficiently alleged a breach of contract claim because “these
allegations do not amount to any breach of contract. [Plaintiff] provides no specific contract
and does not identify which portion of the agreement was breached.” Brief in Support [#19]
at 10. Defendant argues that Plaintiff’s interference with contractual relations claim fails
because “[Plaintiff] does not even identify the contract or contracts that [Defendant] has
allegedly interfered with[.]” Id. at 11.
The Court does not agree with Defendant’s assertion that Plaintiff must provide a
copy of any contracts to sufficiently allege a claim for breach of contract or interference with
contractual relations. Although a movant may “meet the burden of production required to
support summary judgment,” by “point[ing] to those portions of the record that demonstrate
an absence of a genuine issue of material fact given the relevant substantive law,” the fact
that Plaintiff has not provided the specific contracts here does not show an absence of a
genuine dispute of material fact. United States v. Simons, 129 F.3d 1386, 1388 (10th Cir.
1997) (quoting Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.
1992). Here, it is undisputed that a contract existed between the Plaintiff and Defendant (in
his individual capacity) at some point during the parties’ business relationships. Am. Compl.
[#14] ¶ 2; Suppl. Brief in Support [#35] at 2. It is undisputed that the parties worked together
on a myriad of projects with numerous clients. Id. Thus, the Court finds that a genuine
dispute of material fact remains as to these two claims.
However, the Court reaches the opposite conclusion with respect to Plaintiff’s
fiduciary duty and fraud claims. First, Defendant argues that Plaintiff has not alleged that
a fiduciary duty even exists here, and that the existence of a contract alone does not per se
support the allegation that a fiduciary duty existed. Brief in Support [#19] at 10-11. Under
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Colorado law, a plaintiff must show, as a prerequisite for a breach of fiduciary duty claim,
that the defendant was “acting as a fiduciary of the plaintiff[.]” Lindeman v. The Corp. of the
President of the Church of Jesus Christ of Latter Day Saints, 43 F. Supp. 3d 1197, 1212 (D.
Colo. 2014). Although a fiduciary relationship typically involves a special relationship, such
as an attorney-client relationship, a fiduciary duty can be created “when one party has a high
degree of control over the property or subject matter of another, or when the benefiting [sic]
party places a high level of trust and confidence in the fiduciary to look out for the
beneficiary's best interest.”) MDM Grp. Associates, Inc. v. CX Reinsurance Co., 165 P.3d
882, 889 (Colo. App. 2007) (quoting Bailey v. Allstate Ins. Co., 844 P.2d 1336 (Colo. App.
1992)).
Here, Plaintiff’s alleges that Defendant owed a fiduciary duty by virtue of “entrustment
of intellectual property and creative work product[.]” Am. Compl. [#14] ¶ 48. Plaintiff does
not allege that a confidential relationship existed, or that Defendant’s control over Plaintiff’s
property was of such a degree that Plaintiff reposed a “high level of trust and confidence”
in Defendant. MDM Grp. Associates, 165 P.3d at 889. Rather, Plaintiff’s allegation appears
to be nothing more than an assertion that Defendant breached his contract with Plaintiff;
however, the existence of a contract alone does not create a fiduciary duty. Cf. Hess Oil
Virgin Islands Corp. v. UOP, Inc., 861 F.2d 1197, 1201 (10th Cir. 1988) (“[N]o tort duty can
be imposed on a party where that party’s same duties and rights are specifically defined by
contract.”) (citing Isler v. Texas Oil & Gas Corp., 749 F.2d 22 (10th Cir. 1984)).
Similarly, the Court finds that Plaintiff’s fraud claim fails as a matter of law.
Defendant argues that Plaintiff has not sufficiently pled a claim for fraud under Rule 9(b).
Brief in Support [#19] at 10. The Court agrees. Rule 9(b) states "[i]n all averments of fraud
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or mistake, the circumstances constituting the fraud or mistake shall be stated with
particularity." Fed. R. Civ. P. 9(b). “At a minimum, Rule 9(b) requires that a plaintiff set forth
the ‘who, what, when, where and how’ of the alleged fraud.” U.S. ex rel. Schwartz v.
Coastal Healthcare Grp., Inc., 2000 WL 1595976, at *3 (10th Cir. 2000). The Tenth Circuit
has held that the complaint must “set[ ] forth the factual basis for the plaintiff’s belief.” Koch
v. Koch Indus., Inc., 203 F.3d 1202, 1237 (10th Cir. 2000). Here, the Amended Complaint
contains nothing more than conclusory allegations that Defendant “intentionally
misrepresented his promised performance” in order to “induce the contract[.]” Am. Compl.
[#14] ¶ 28. No specifics are set forth at all. Accordingly, the Court dismisses the breach
of fiduciary duty and fraud claims.18
C.

Transfer of Venue19
Under 28 U.S.C. § 1404(a), a district court may transfer an action “[f]or the

convenience of parties and witnesses, [and] in the interest of justice, . . . to any other district
or division where it might have been brought.” In considering a motion to transfer under §
1404(a), the courts in the Tenth Circuit weigh the following factors:
the plaintiff's choice of forum; the accessibility of witnesses and other sources
of proof, including the availability of compulsory process to insure attendance

18

All of Plaintiff’s claims, save the fraud claim, are dismissed with prejudice because they
fail as a matter of law. See Gee v. Pacheco, 627 F.3d 1178, 1181 (10th Cir. 2010) (affirming
dismissal with prejudice of claims as barred by the statute of limitations); Helmick v. Utah Valley
State Coll., 394 F. App’x 465, 467 (10th Cir. 2010) (dismissal based on the merits is with prejudice).
Plaintiff’s fraud claim, however, is dismissed without prejudice pursuant to Rule 9(b). See
Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (stating that prejudice should not
attach to a dismissal when a plaintiff has made allegations “which, upon further investigation and
development, could raise substantial issues”).
19

The Court notes that Defendant’s request to transfer the case is not made in a separate
motion, in contradiction of D.C.COLO.LCivrR 7.1(d). Nevertheless, for purposes of thoroughness,
the Court examines the request.

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of witnesses; the cost of making the necessary proof; questions as to the
enforceability of a judgment if one is obtained; relative advantages and
obstacles to a fair trial; difficulties that may arise from congested dockets; the
possibility of the existence of questions arising in the area of conflict of laws;
the advantage of having a local court determine questions of local law; and[
] all other considerations of a practical nature that make a trial easy,
expeditious and economical.
Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1167 (10th Cir. 2010)
(quoting Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir.
1991)). Further, the “party moving to transfer a case pursuant to § 1404(a) bears the
burden of establishing that the existing forum is inconvenient.” Scheidt v. Klein, 956 F.2d
963, 965 (10th Cir. 1992) (internal quotation marks omitted). “Merely shifting the
inconvenience from one side to the other, however, obviously is not a permissible
justification for a change of venue.” Id. at 966.
None of the factors set forth above weighs in favor of Defendant. Defendant, in
requesting that the Court transfer the case to the Northen District of Texas-Lubbock
Division, argues that the court should transfer the case for the convenience of the parties.
Defendant resides in Texas. Am. Compl. [#14] ¶ 1. The Court acknowledges that it would
likely be more convenient for Defendant to proceed in this matter in a Texas court, but the
Court does not find this consideration to be availing. Scheidt, 956 F.2d at 966. Defendant
does not meet his burden here, as he does not even address the factors set forth by the
Tenth Circuit. See Country Chrysler, 928 F.2d at 1516.
Further, a more practical reason exists to deny this portion of the Motion. This action
was removed by Defendant and subject matter jurisdiction was based on diversity
jurisdiction. Notice of Removal [#1]. However, no amount in controversy is alleged by
Plaintiff other than a $500,000 amount mentioned in the slander claim, which has been
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dismissed. Am. Compl. [#14] ¶ 43. Nonetheless, although the original complaint did not
assert any claims for copyright infringement, the Amended Complaint added such a claim,
making subject matter jurisdiction readily apparent based on federal question jurisdiction.
See id. ¶¶ 72-83; State Court Compl. [#1-3]. This claim too has been dismissed by the
Court, and the only claims remaining are Plaintiff’s breach of contract, breach of fiduciary
duty, and interference with contractual relations claims – all state law claims, and all without
any mention of an amount in controversy.
Thus, because Defendant has not shown that transfer is proper pursuant to 28 U.S.C.
§ 1404, and because it is not even clear that the Court has subject matter jurisdiction under
28 U.S.C. § 1332, the Court denies the request to transfer.

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III. Conclusion
For the foregoing reasons, the Motion [#18] is GRANTED IN PART and DENIED IN
PART.
IT IS HEREBY ORDERED that Plaintiff’s conversion, civil theft, slander, bad faith
breach of contract, breach of fiduciary duty, CCPA, replevin, injunction, unjust enrichment,
and copyright infringement claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s fraud claim is DISMISSED WITHOUT
PREJUDICE.20
IT IS FURTHER ORDERED that the Motion [#18] is DENIED with respect to the
breach of contract and interference with contractual relations claims.
IT IS FURTHER ORDERED that the request to transfer pursuant to 28 U.S.C. § 1404
is DENIED.
IT IS FURTHER ORDERED that parties shall show cause in writing as to why this
action should not be dismissed for lack of subject matter jurisdiction pursuant to Rule
12(b)(1) on or before April 15, 2016.

Dated: March 28, 2016

20

See Reynoldson, 907 F.2d at 127 (stating that prejudice should not attach to a dismissal
when a plaintiff has made allegations “which, upon further investigation and development, could
raise substantial issues”).

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