Garth O. Green Enterprises et al v. Standard Plumbing Supply

Filing 287

MEMORANDUM DECISION AND ORDER granting in part and denying in part 61 Motion to Dismiss - the second, third, sixth, seventh, eighth, and ninth causes of action are dismissed with prejudice as to the Greens; finding as moot 66 Mo tion to Dismiss Party; granting in part and denying in part 187 Motion for Leave to File; granting 217 Motion to Dismiss for Failure to State a Claim as to Wendy Green; granting 225 Motion to Dismiss for Failure to State a Claim as to GW Green. The Standard Parties are not granted leave to amend the Answer and Counterclaims. Signed by Judge David Nuffer on 3/29/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

GARTH O. GREEN ENTERPRISES, INC., a
Utah corporation; GARTH O. GREEN, an
individual; and MICHAEL GREEN, an
individual,
Plaintiffs and Counterclaim
Defendants,
v.
RANDALL HARWARD, an individual;
RICHARD HARWARD, an individual;
HARWARD IRRIGATION SYSTEMS,
INC., a Utah corporation; GRASS VALLEY
HOLDINGS, L.P.; DOES 1-10; and ROE
CORPORATIONS 1-X;

MEMORANDUM DECISION AND
ORDER
GRANTING IN PART AND DENYING IN
PART [61] MOTION TO DISMISS;
GRANTING IN PART AND DENYING IN
PART [187] MOTION TO
SUPPLEMENT;
FINDING AS MOOT [66] MOTION TO
DISMISS;
GRANTING [225] MOTION TO
DISMISS; AND
GRANTING [217] MOTION TO DISMISS

Defendants,
RICHARD N. REESE, an individual;
STANDARD PLUMBING SUPPLY
COMPANY, INC., a Utah corporation,
Defendants and Counterclaimants.

Case No. 2:15-cv-00556-DN-EJF
Judge David Nuffer
Magistrate Judge Evelyn J. Furse

RICHARD REESE, an individual and
STANDARD PLUMBING SUPPLY
COMPANY, INC., a Utah corporation,
Cross-Claim Plaintiffs,
v.
HARWARD IRRIGATION SYSTEMS, INC.
AND GRASS VALLEY HOLDINGS, L.P.,
Cross-Claim Defendants.
RICHARD REESE, an individual and
STANDARD PLUMBING SUPPLY
COMPANY, INC., a Utah corporation,
Third-Party Plaintiffs,
v.
GW GREEN FAMILY LIMITED
PARTNERSHIP, a Utah limited partnership
and WENDY GREEN, an individual,
Third-Party Defendants.
Richard Reese and Standard Plumbing Supply Company (collectively “Standard Parties”)
have asserted ten counterclaims against Garth O. Green Enterprises, Inc.; Garth O. Green; and
Michael Green (collectively “Greens”). 1 Two third-party claims are asserted against GW Green

1

Defendant Richard N. Reese and Standard Plumbing Supply Company, Inc.’s Answer to Amended Complaint,
Counterclaims, Crossclaims, and Third Party Claims (“Answer and Counterclaims”) at 19-34, docket no. 40-3, filed
Mar. 7, 2016 (filed in state court Feb. 19, 2015).

2

Family Limited Partnership (“GW Green”) and Wendy Green. 2 Two cross-claims are asserted
against Harward Irrigation. 3
The Greens move to dismiss all ten causes of action against them (“61 Motion”). 4 The
Standard Parties oppose the 61 Motion (“61 Opposition”). 5 The Greens filed a reply in support of
the 61 Motion (“61 Reply”). 6
Additionally, the Greens very recently moved to supplement their 61 Motion (“187
Motion to Supplement”). 7 The Standard Parties oppose the 187 Motion to Supplement (“187
Opposition”). 8 The Greens filed a reply in support of the 187 Motion to Supplement (“187
Reply”). 9

2

Id. at 30-32 (sixth and seventh causes of action).

3

Id. at 34-35 (eleventh and twelfth causes of action).

4

Motion to Dismiss Counterclaims, docket no. 61, filed Apr. 29, 2016 (filed in state court Mar. 16, 2015);
Memorandum in Support of Motion to Dismiss Counterclaims (“61 Motion”), docket no. 61-1, filed Apr. 29, 2016
(filed in state court Mar. 16, 2015).
5

Opposition to Motion to Dismiss Counterclaims (“61 Opposition”), docket no. 61-2, filed Apr. 29, 2016 (filed in
state court Mar. 30, 2015).
6

Reply in Support of Motion to Dismiss Counterclaims (“61 Reply”), docket no. 61-3, filed Apr. 29, 2016 (filed in
state court Apr. 20, 2015).
7

Garth O. Green Enterprises, Inc., Garth O. Green and Michael Green’s Motion for Leave to File Supplemental
Memorandum in Support of Their Motion to Dismiss the Claims Filed Against Them by Standard Plumbing Supply
Co., Inc. and Richard Reese (“187 Motion to Supplement”), docket no. 187, filed Feb. 2, 2017.

8

The Standard Parties’ Memorandum in Opposition to Garth O. Green Enterprises, Inc. et al.’s Motion for Leave to
File Supplemental Memorandum in Support of Their Motion to Dismiss (“187 Opposition”), docket no. 210, filed
Feb. 16, 2017.
9

Garth O. Green Enterprises, Inc., Garth O. Green and Michael Green’s Reply Memorandum in Support of Their
Motion for Leave to File Supplemental Memorandum in Support of Their Motion to Dismiss the Claims Filed
Against Them by Standard Plumbing Supply Co., Inc. and Richard Reese (“187 Reply”), docket no. 226, filed Mar.
2, 2017.

3

In two separate motions, GW Green moves to dismiss the third-party claims asserted
against it (“66 Motion”) 10 (“225 Motion”). 11 The Standard Parties oppose each of those
motions. 12 GW Green filed replies in support of the motions (“66 Reply”) (“225 Reply”). 13
Wendy Green moves to dismiss the third-party claims asserted against her (“217
Motion”). 14 The Standard Parties oppose the 217 Motion. 15 Wendy Green filed a reply in support
of the 217 Motion (“217 Reply”). 16
For the reasons set forth below, the 61 Motion is GRANTED IN PART AND DENIED
IN PART, the 187 Motion to Supplement is GRANTED IN PART AND DENIED IN PART, the
66 Motion is MOOT, the 225 Motion is GRANTED, and the 217 Motion is GRANTED.
MOTION TO DISMISS STANDARD
Dismissal of a claim under Rule 12(b)(6) is warranted when the pleading, standing alone,
is legally insufficient to state a claim for which relief may be granted. 17 When considering a
motion to dismiss for failure to state a claim, the thrust of all well-pleaded facts in the pleading is

10

Motion to Dismiss and Memorandum in Support of Motion to Dismiss (“66 Motion”), docket no. 66 and docket
no. 66-1, filed Apr. 29, 2016 (filed in state court Jul. 7, 2015).
11

GW Green Family Limited Partnership’s Motion to Dismiss Third-Party Claims and Supporting Memorandum
(“225 Motion”), docket no. 225, filed Mar. 2, 2017.
12

Standard Plumbing Supply Company, Inc. and Richard N. Reese’s Opposition to GW Green Family Limited
Partnership’s Motion to Dismiss (“66 Opposition”), docket no. 94, filed Jul. 22, 2016; Standard Plumbing Supply
Company, Inc. and Richard N. Reese’s Combined Memorandum in Opposition to GW Green Family Limited
Partnership’s Motion to Dismiss Third-Party Claims and Memorandum in Opposition to Third-Party Defendant
Wendy Green’s Motion to Dismiss (“217 225 Opposition”), docket no. 273, filed Mar. 24, 2017.
13

Reply of GW Green Family Limited Partnership in Support of Its Motion to Dismiss (“66 Reply”), docket no.
109, filed Aug. 8, 2016; Reply Memorandum in Support of GW Green Family Limited Partnership’s Motion to
Dismiss Third Party Claims (“225 Reply”), docket no. 285, filed Mar. 29, 2017.
14

Third-Party Defendant Wendy Green’s Motion to Dismiss & Supporting Memorandum (“217 Motion”), docket
no. 217, filed Feb. 23, 2017.
15

217 225 Opposition.

16

Reply to Third-Party Defendant Wendy Green’s Motion to Dismiss & Supporting Memorandum (“217 Reply”),
docket no. 286, filed Mr. 29, 2017.
17

See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

4

presumed, but a court need not consider conclusory allegations. 18 Legal conclusions and
opinions are not accepted, even if couched as facts. 19
Satisfying the basic pleading requirements of the federal rules “demands more than an
unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” 20
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” 21 “[N]aked assertions devoid of further factual enhancement,” 22 do
not state a claim sufficiently to survive a motion to dismiss.
FACTUAL ALLEGATIONS 23
The Standard Parties allege:
On January 7, 2013, Randall Harward invited Standard Plumbing to visit the Springville
Sprinkler World location to discuss the possibility of Standard Plumbing submitting an offer to
purchase the Sprinkler World assets. 24
The next day, on January 8, 2013, the Standard Parties travelled to Springville to visit
with the Harwards. 25 When they met with the Harwards on January 8, they were told that

18

See Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009).

19

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Brown v. Zavaras, 63 F.3d 967, 972 (10th
Cir. 1995).
20

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 555).

21

Iqbal, 556 U.S. at 678.

22

Id.

23

The allegations provided in this section derive from the Standard Parties’ Answer and Counterclaims. For
purposes of this memorandum decision and order, the allegations in the Answer and Counterclaims are assumed to
be true. Unless otherwise specified, all citations to paragraph numbers refer to the “General Allegations” section
beginning on page 20.

24

Answer and Counterclaims ¶ 20.

25

Id. ¶ 21.

5

Harward Irrigation was in financial trouble and needed to sell its Sprinkler World assets. 26 The
Harwards told the Standard Parties that the Greens had presented a purchase offer, but that the
paperwork provided to Harward Irrigation differed greatly from what Harward Irrigation and the
Greens had previously discussed. 27 Accordingly, the Harwards believed that the closing date on
any deal between the Harwards and the Greens had passed and the offer had lapsed. 28
The Harwards then invited Standard Plumbing to submit an offer to purchase Sprinkler
World. 29 The Standard Parties responded that they would first need to meet with their
management group. 30 The next day, on January 9, 2013, Standard Plumbing’s management
group met and decided to submit an offer to purchase the Harward Irrigation assets after
reviewing several factors. 31
The Standard Parties specifically inquired whether Harward Irrigation had a contract with
Southwest, and they were “assured by Randall Harward that there was no contract between
Harward Irrigation and Southwest.” 32 After they were “further assured” that “Standard Plumbing
was free to make an offer to purchase Sprinkler World[,]”33 the Standard Parties presented their
offer. 34 Randall Harward stated he liked the offer and contacted his brothers Richard and Calvin
Harward so they could come hear the offer. 35 When Richard and Calvin Harward arrived, they

26

Id. ¶ 22.

27

Id. ¶¶ 23, 24.

28

Id.

29

Id. ¶ 25.

30

Id. ¶ 26

31

Id. ¶¶ 27-39

32

Id. ¶¶ 40-41, 44.

33

Id. ¶¶ 45,

34

Id. ¶ 46

35

Id. ¶¶ 46, 47.

6

stated that they were sure any deal with Southwest was off because Southwest’s president,
Michael Green, had “stormed out” of a meeting earlier that day and sent a text to Harward
Irrigation stating “Good luck. Deals [sic] over.” 36 The Standard Parties again presented the offer
to Randall, Richard, and Calvin Harward. 37
The offer the Standard Parties presented was accepted by Harward Irrigation on January
9, 2013, and a contract was signed. 38 At no time prior to January 10, 2013 did the Standard
Parties see any offer made by the Greens to Harward Irrigation. 39 The Standard Parties have
owned and operated Sprinkler World since January 2013. 40 They have made several changes to
Sprinkler World. 41
Lis pendens notices were filed by Southwest on all five Sprinkler World locations, which
has had a negative effect on the Standard Parties. 42 Garth Green told Richard Reese that he
“wanted him to hurt a little” and that he (Garth Green) would not release the lis pendens that had
been filed. 43
The Standard Parties assert the following causes of action against the following parties: 44

36

Id. ¶¶ 49-51.

37

Id. ¶ 52.

38

Id. ¶ 53.

39

Id. ¶ 54.

40

Id. ¶ 57.

41

Id. ¶¶ 58-72.

42

Id. ¶¶ 66, 67.

43

Id. ¶ 79.

44
Id. ¶¶ 91-157. The Standard Parties also asserted two causes of action against Harward Irrigation, but those claims
were settled and are no longer part of this litigation.

7

Cause of action
1. Intentional Interference with Economic
Relations
2. Defamation

Against
The Greens

3. Deceptive Trade Practices

The Greens

4. Declaratory Relief Regarding Validity and
Enforceability of the Purchase Agreement
5. Declaratory Relief Regarding Invalidity of
Lis Pendens
6. Civil Conspiracy

The Greens

The Greens

The Greens

8. Declaratory Judgment of Quiet Title

The Greens, GW
Green, Wendy Green
The Greens, GW
Green, Wendy Green
The Greens

9. Wrongful Lien

The Greens

10. Abuse of Process

The Greens

7. Unjust Enrichment

61 MOTION DISCUSSION
The Greens move to dismiss all ten causes of action asserted against them.
Intentional Interference with Economic Relations
To establish a claim for intentional interference with economic relations, “[a] plaintiff
must [allege] (1) that the defendant intentionally interfered with the plaintiff’s existing or
potential economic relations; (2) . . . by improper means; (3) causing injury to the plaintiff.” 45 A
recent Utah Supreme Court case eliminated an “improper purpose” alternative in the second
element. 46
The Greens argue that “Standard fails to state how Plaintiffs interfered with its January 9,
2013 agreement with Harward Irrigation.” 47 The Greens also argue that the Standard Parties have

45

St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 200 (Utah 1991).

46

Eldridge v. Johndrow, 345 P.3d 553, 2015 UT 21, ¶ 13.

47

61 Motion at 1.

8

failed to allege “improper means.” 48 The Greens argue that the only allegations that could
possibly be construed as “improper means” are “‘frivolous litigation’ and an unspecified
‘misrepresentation about Standard.’” 49 The Greens further argue that “Standard fails to state
harm.” 50 The Standard Parties disagree, and assert that they have properly pled their intentional
interference claim. 51 According to the Standard Parties, the allegations are sufficient to support
the intentional interference claim. 52 The Standard Parties are correct.
As explained above, “a formulaic recitation of the elements of a cause of action will not
do.” 53 The Standard Parties cannot simply state that the Greens “intentionally interfered” with
the Standard Parties’ economic relations “by improper means” which caused “injury” to the
Standard Parties. But the Standard Parties have not made formulaic recitations with respect to
this cause of action. Rather, the Standard Parties have specifically alleged that the factual basis
for the intentional interference claim is the January 9, 2013 Standard-Harward agreement. 54 The
Greens incorrectly assert that the Standard Parties failed to state how the interference occurred.
The factual basis for how the alleged interference occurred may be alleged with the second
element when addressing “improper means.” For the first element, the Standard Parties
adequately alleged that there was intentional interference with the January 9, 2013 agreement.

48

Id.

49

Id.

50

Id.

51

61 Opposition at 3.

52

Id.

53

Iqbal, 556 U.S. at 678 (quoting Twombly , 550 U.S. at 555).

54

Answer and Counterclaims ¶ 92.

9

The Standard Parties have also adequately alleged the key second element—“improper
means”—by specifically enumerating “frivolous litigation” as grounds for improper means. 55
“Improper means include ‘violence, threats or other intimidation, deceit or misrepresentation,
bribery, unfounded litigation, defamation, or disparaging falsehood.’” 56 While the Standard
Parties do not provide any further factual allegations in the Answer and Counterclaim
specifically regarding the litigation brought by the Greens, judicial notice may be taken of the
claims brought by the Greens in this lawsuit. 57 An order has determined that the Greens brought
at least one claim frivolously. 58 Thus, in contrast to the Greens’ claim for intentional interference
which was dismissed because it was based merely on the Standard Parties’ lawful competitive
conduct, the Standard Parties’ claim is based on independently actionable conduct—frivolous
litigation. It is unclear what “misrepresentation” or “other improper means” the Standard Parties
refer to, 59 but because there is at least one category of independently actionable conduct on
which to base the “improper means” allegation, the second element is adequately pled.
The Standard Parties have also adequately alleged injury. They state that there has been
“significant financial, reputational, and other injury to Standard Plumbing,” 60 and further
describe that they have had difficulty finding sub-lessees at some locations because of the
Greens’ actions. 61 This adequately describes the alleged harm. It is also a reasonable factual
inference that as a result of the alleged frivolous litigation, the Standard Parties were required to

55

Id. ¶ 94.

56

St. Benedict’s, 811 P.2d at 201 (emphasis added).

57

Fed. R. Evid. 201.

58
Memorandum Decision and Order Granting [57] Motion for Sanctions and Denying [81] Motion for Sanctions,
docket no. 161, filed Jan. 18, 2017.
59

Answer and Counterclaims ¶ 94.

60

Id. ¶ 95.

61

Id. ¶ 67.

10

obtain counsel to defend against the litigation. This can reasonably be construed as a financial
injury to Standard Plumbing. Thus, the injury element has been adequately alleged.
Because all three elements of the intentional interference claim were adequately pled,
including the key element of “improper means,” the Standard Parties’ claim against the Greens
for intentional interference with economic relations will not be dismissed.
Defamation
“To establish a claim for defamation, a plaintiff must demonstrate that ‘(1) the defendant
published the statements in print or orally; (2) the statements were false; (3) the statements were
not subject to privilege; (4) the statements were published with the requisite degree of fault; and
(5) the statements resulted in damages.’” 62
The Greens argue that the Standard Parties fail to adequately allege a claim of defamation
because the Standard Parties have simply made generalized allegations regarding defamatory
statements without specifically identifying the statements. 63 The Greens also argue that the
Standard Parties failed to adequately plead the remaining elements of defamation. 64 The Greens
are correct.
The Standard Parties contend that they have adequately pled a claim for defamation by
alleging that “[t]he Green Defendants have made false statements about Standard Plumbing,
including false statements about the honor, integrity, and business practices of Standard
Plumbing.” 65 But the Standard Parties do not identify any factual support for these conclusions.
The Utah Supreme Court requires a plaintiff alleging defamation to be specific:
62

Oman v. Davis School Dist., 194 P.3d 956, 2008 UT 70, ¶ 68.

63

61 Motion at 2-3.

64

Id. at 3.

65

61 Opposition at 4-5 (quoting Answer and Counterclaims ¶ 98).

11

[T]he language complained of must be set forth in words or words to that effect
and . . . the defendant should not be required to resort to the ofttimes expensive
discovery process to drag from a litigant what he really intends to do to his
adversary by a vehicle shrouded in mystery. 66
Defamation allegations are “insufficient when [they do] not state ‘the nature or substance
of the acts allegedly committed by defendants,’” 67 or where they “contained merely broad and
general statements . . . but . . . ‘no allegation whatever of the contents, nature or substance’ of
any such false statements.” 68 In short, “the allegation of the conclusion is not sufficient; the
pleading must describe the nature or substance of the . . . words complained of” 69 in “words or
words to that effect.” 70 And although “there is no Utah law directly requiring that the complaint
also allege with complete specificity when, where, to whom, or by whom, the alleged defamatory
statements were made,” 71 other courts have generally required these elements. 72
After thorough review of the Answer and Counterclaims, no factual support for the
defamation claim has been found. Accordingly, the Greens are correct that the claim for
defamation should be dismissed. It only contains general, conclusory allegations. 73
Deceptive Trade Practices
The Standard Parties have brought their deceptive trade practices claim under Utah Code
§ 13-11a-3(h), which provides: “Deceptive trade practices occur when, in the course of a

66

Dennett v. Smith, 445 P.2d 983, 984 (Utah 1968) (emphasis added). See also Williams v. State Farm Ins. Co., 656
P.2d 966, 971 (Utah 1982).

67

Williams, 656 P.2d at 971 (citing Utah Steel & Iron Co. v. Bosch, 475 P.2d 1019, 1020 (Utah 1970)).

68

Williams, 656 P.2d at 971 (citing Heathman v. Fabian & Clendenin, 377 P.2d 189, 190 (Utah 1962)).

69

Williams, 656 P.2d at 971.

70

Dennett, 445 P.2d at 984.

71

Zoumadakis v. Uintah Basin Medical Center, Inc., 122 P.3d 891, 2005 UT App 325, ¶ 3.

72

Boisjoly v. Morton Thiokol, Inc., 706 F.Supp. 795, 800 (D. Utah 1988).

73

Zoumadakis, 122 P.3d 891, 2005 UT App 325, ¶ 3.

12

person’s business, vocation, or occupation, that person: . . . (h) disparages the goods, services, or
business of another by false or misleading representation of fact[.]” 74 The Standard Parties’
allegations to support their deceptive trade practices claim are that the Greens “are competitors
of Standard Plumbing” and that the Greens “have made false statements about Standard
Plumbing, including false statements about the honor, integrity, and business practices of
Standard Plumbing.” 75 The Standard Parties also allege that “[u]pon information and belief,” the
Greens “have engaged in deceptive trade practices in violation of Utah Code Ann. § 13-11a-3(h)
in that the Green Defendants have disparaged Standard Plumbing’s business by false or
misleading representations of fact.” 76
Beyond these conclusory statements, the Standard Parties make no further factual
allegations in support of their deceptive trade practices claim. A thorough review of the general
allegations in the Standard Parties’ Answer and Counterclaims reveals no factual support for
these allegations. The Standard Parties allege that the Greens made a false statement about being
“completely separate” from GW Green, 77 but this is not a statement “about Standard Plumbing”
that would support the Standard Parties’ deceptive trade practices claim. There is no allegation
about the Greens disparaging Standard Plumbing’s goods or services to another party. There is
no allegation about the Greens disparaging Standard Plumbing’s business in general. And while
there is a conclusory allegation that the Greens engaged in “misrepresentation about Standard
Plumbing,” that allegation appears within a different cause of action and, as explained
previously, it is not supported by factual allegations anywhere else in the Answer and

74

Utah Code § 13-11a-3(h).

75

Answer and Counterclaims ¶¶ 103, 104.

76

Id. ¶ 105.

77

Id. ¶¶ 86, 87

13

Counterclaims. Accordingly, the deceptive trade practices claim is not adequately pled and will
be dismissed.
Declaratory Relief
The federal Declaratory Judgment Act provides that if there is an “actual controversy
within its jurisdiction,” a court “may declare the rights and other legal relations of any interested
party seeking such declaration, whether or not further relief is or could be sought.” 78 The “actual
controversy” referred to in the Act “refers to the type of ‘Cases’ and ‘Controversies’ that are
justiciable under Article III of the United States Constitution.” 79 “It is not the role of federal
courts to resolve abstract issues of law. Rather, they are to review disputes arising out of specific
facts when the resolution of the dispute will have practical consequences to the conduct of the
parties.” 80 Thus, “[t]he controversy must be definite and concrete . . . .” 81
The Standard Parties assert three causes of action for declaratory relief: (1) the fourth
cause of action regarding the validity and enforceability of the January 9, 2013 Purchase
Agreement between Standard Plumbing and Harward Irrigation; (2) the fifth cause of action
regarding the validity of the lis pendens notices; and (3) the eighth cause of action regarding
quiet title. Those three causes of action will be analyzed using the principles enumerated in the
immediately preceding paragraph.
Validity of the Agreement Between Standard Plumbing and Harward Irrigation
The Greens argue that the Standard Parties have not adequately pled their claim for
declaratory judgment that the January 9, 2013 agreement between Standard Plumbing and

78

28 U.S.C. § 2201(a); Columbian Fin. Corp. v. BancInsure, 650 F.3d 1372, 1376 (10th Cir. 2011).

79

Columbian Fin. Corp., 650 F.3d at 1376.

80

Id.

81

Id. (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937)).

14

Harward Irrigation is valid and enforceable. 82 The Greens argue that in their Amended
Complaint they “have already challenged the validity and enforceability of the agreement
between Standard Plumbing and Harward Irrigation.” 83 Therefore, the Greens argue, “Standard’s
claim is unnecessary and redundant.” 84
The Standard Parties disagree, and argue that they have stated a valid claim for
declaratory relief. 85 The Standard Parties incorrectly argue that resolving the Standard Parties’
fourth cause of action would terminate the controversy between the parties. 86 The argument
conflates the alleged agreement between Harward and the Greens with the alleged agreement
between Harward and Standard Plumbing. 87
The Greens likewise incorrectly argue that the challenge raised in their Amended
Complaint resolves the matter. The Greens claims in the Amended Complaint have been
dismissed and are no longer a part of this lawsuit. 88

82

61 Motion at 4.

83

Id.

84

Id.

85

61 Opposition at 6.

86

Id. at 7.

87

Compare id. (stating that the Standard Parties have “every right to seek a declaration regarding the validity of
Plaintiff’s claimed contract with Harward Irrigation . . . .” (emphasis added)) with Answer and Counterclaims ¶ 108
(seeking declaration of validity of “the January 9, 2013 Purchase Agreement between Standard Plumbing and
Harward Irrigation”) and Answer and Counterclaims ¶ 109 (citing the “contract between Standard Plumbing and
Harward Irrigation”).
88

Memorandum Decision and Order Granting [55] Motion for Partial Summary Judgment; Finding Moot [58]
Motion under Rule 56(d); and Finding Moot [60] and [136] Motions for Partial Summary Judgment (“152 Order”),
docket no. 152, entered Dec. 27, 2016 (dismissing the Greens’ claims against the Standard Parties); Settlement
Agreement, Ex. A to Opposition Memorandum to Defendants Standard Plumbing Supply Company, Inc. and
Richard N. Reese’s Alternative Motion for Partial Summary Judgment and Memorandum in Support Thereof (“136
Opposition”), docket no. 140-2, filed Oct. 31, 2016 (settling claims between the Greens, the Harwards, and Grass
Valley); Order Approving Settlement Agreement, Assumption and Assignment of Leases, Rejection of Lease, and
Conveyance of Property, Ex. B to 136 Opposition, docket no. 140-3, filed Oct. 31, 2016.

15

The correct analysis is whether the claim presents an “actual controversy” that is
justiciable under Article III of the Constitution. 89 The question is whether there is a “definite and
concrete” controversy regarding the validity of the January 9, 2013 Purchase Agreement between
Standard Plumbing and Harward Irrigation. 90
The Standard Parties allege that “[t]he Green Defendants claim that the January 9, 2013
Purchase Agreement between Standard Plumbing and Harward Irrigation is not valid.” 91 They
also allege, contrary to the Greens’ alleged position, that “the Purchase Agreement is a valid and
enforceable contract between Standard Plumbing and Harward Irrigation.” 92 These opposing
statements indicate that there is a “definite and concrete” controversy.
The allegation that the Purchase Agreement is a valid contract has factual support. The
Answer and Counterclaims alleges that the Standard Parties were contacted by Harward
Irrigation regarding a possible sale; the Standard Parties were told that any deal between
Harward Irrigation and the Greens was off; that Michael Green sent a text stating that the deal
was “over;” and that Standard Plumbing then moved forward with making an offer “and a
contract was signed by Standard Plumbing and Harward Irrigation on January 9, 2013.” 93 The
Answer and Counterclaims further alleges that “Garth Green admitted to Richard Reese that
Standard Plumbing has a contract with Harward Irrigation . . . .” 94 Therefore, the allegations in
the Answer and Counterclaims support the allegation that there was a valid contract between

89

28 U.S.C. § 2201(a).

90

Columbian Fin. Corp., 650 F.3d at 1376 (quoting Aetna, 300 U.S. at 240-41).

91

Answer and Counterclaims ¶ 108.

92

Id. ¶ 109.

93

Id. ¶¶ 20, 50-53.

94

Id. ¶ 80.

16

Standard Plumbing and Harward Irrigation. Also, the Greens allegedly dispute the validity of the
contract. 95 Accordingly, the Standard Parties have adequately alleged a claim for declaratory
relief of the validity of the January 9, 2013 Purchase Agreement between Standard Plumbing and
Harward Irrigation. The fourth cause of action will not be dismissed.
Declaratory Relief Regarding Invalidity of Lis Pendens
The Greens argue that the fifth cause of action for declaratory relief fails because “the
Court has twice denied motions” regarding invalidity of the lis pendens notices and
“[a]ccordingly, there is no justiciable controversy[.]” 96 The Greens are incorrect.
Prior orders in this action have not fully adjudicated the question of lis pendens validity
or the potential liability of any wrongfully-filed lis pendens notice. As explained in a prior order
addressing the lis pendens notices:
This memorandum decision and order is not meant to suggest that the Standard
Parties have not suffered damages or that the Greens have acted with propriety or
are free from liability. The Greens may be facing a significant damages claim for
their behavior. Indeed, it may be significant that the Greens purchased the
Springville property in a foreclosure sale after recording a notice of lis pendens on
the property and indicating an intention to foreclose. It is also significant that the
notices of lis pendens appear to have negatively impacted the ability of the
Harwards and the Standard Parties to market or sublease the properties. But those
actions, and any potential damages flowing therefrom, are not currently at issue.
The issues currently before the court are whether the state court’s ruling should be
reconsidered and whether a bond should be posted to maintain the notices of lis
pendens. For the reasons stated above, the answer to each of those questions is
“no.” 97

95

Id. ¶ 108.

96

61 Motion at 4.

97

Memorandum Decision and Order Denying Standard Plumbing Supply Company, Inc. and Richard N. Reese’s
Motion for Reconsideration and/or Clarification of the State Court’s March 6, 2015 Oral Ruling Regarding Motion
for Release of Notice of Lis Pendens at 10, docket no. 118, filed Aug. 22, 2016.

17

The language immediately above shows that the quoted order did not exhaustively
analyze the lis pendens notices, but principally considered whether a bond should be posted to
maintain the lis pendens notices. Issues arising on consideration of a bond are not the only issues
that determine whether a lis pendens notice is filed properly. Whether the Green’s claims
“[affect] the title to, or the right of possession of, real property” 98 and whether the lis pendens
notices were valid has not been specifically resolved. 99 Thus, the fifth cause of action presents a
definite and concrete controversy about whether the lis pendens notices were validly filed.
A full analysis of the lis pendens notices may be conducted when evidence is presented
and the statute can be applied to the facts of this case. At this pleading stage, there are sufficient
allegations in the Standard Parties’ Answer and Counterclaims to find a definite and concrete
controversy regarding the validity of the lis pendens notices. 100 The fifth cause of action will not
be dismissed.
Declaratory Judgment of Quiet Title
The Greens argue that the eighth cause of action fails because there is not a justiciable
controversy “as to title in the five properties that Standard is currently leasing.” 101 The Greens
argue that this cause of action for quiet title is “redundant of [the Greens’] action, and . . . would
fail to produce a judgment that would serve a useful purpose.” 102 The Standard Parties disagree,

98

Utah Code § 78B-6-1302.

99

Id. § 78B-6-1304.5.

100
E.g., Answer and Counterclaims ¶ 79 (alleging that “Garth Green told Richard Reese that he ‘wanted him to hurt
a little’ and that he would not release the lis pendens that had been filed”) and ¶ 126 (alleging that the lis pendens
were filed to preclude parties with an interest in the property from exercising their full rights, and to allow the
Greens to purchase the property for less than market value).
101

61 Motion at 7.

102

Id.

18

arguing that they are “entitled to declaratory relief securing its leasehold interest against
Plaintiffs’ claims regarding those properties.” 103
This issue is moot. Recent filings in this case, which may be judicially noticed, 104
indicate that the Greens released the notices of lis pendens on each of the properties. 105 The
Standard Parties do not allege that title to the properties is encumbered any other way.
Accordingly, there is no case or controversy concerning the title in the properties at issue, and
the Standard Parties’ eighth cause of action seeking a declaratory judgment of quiet title in the
properties will be dismissed.
Civil Conspiracy
To plead a claim for civil conspiracy, a plaintiff must allege: “(1) a combination of two or
more persons, (2) an object to be accomplished, (3) a meeting of the minds on the object or
course of action, (4) one or more unlawful, overt acts, and (5) damages as a proximate result
thereof.” 106 “If the object of the alleged conspiracy or the means used to attain it is lawful, even
if damage results to the plaintiff or the defendant acted with a malicious motive, there can be no
civil action for conspiracy.” 107
The Standard Parties’ cause of action for civil conspiracy alleges that “[t]he Green
Defendants, GW Green, and Wendy Green conspired together to have the Green Defendants
wrongfully assert lis pendens against the five properties at issue for the wrongful scheme of

103

61 Opposition at 7.

104

Fed. R. Evid. 201(b)(2).

105

Release of Lis Pendens, docket no. 226-12 (Springville); Release of Lis Pendens, docket no. 226-14 (Roosevelt);
Release of Lis Pendens, docket no. 226-15 (Lehi); Release of Lis Pendens, docket no. 226-16 (Orem); Release of
Lis Pendens, docket no. 226-17 (Sandy).
106

Peterson v. Delta Air Lines, Inc., 42 P.3d 1253, 2002 UT App 56, ¶ 12.

107

Id.

19

causing the properties to enter default.” 108 According to the Standard Parties, this was done “so
the Green Defendants, GW Green, and/or Wendy Green could cause the defaulted property to be
purchased at a value substantially less than market value.” 109 The Standard Parties were
allegedly damaged by these actions “in that Standard Plumbing’s interest in the Sprinkler World
properties has been limited because of the lis pendens . . . .” 110
The Greens argue that this cause of action is inadequately pled because there is no
unlawful, overt act that has been pled. 111 The Greens argue that the lis pendens issue has been
fully adjudicated and the validity of the lis pendens notices has been conclusively established. 112
The Greens are incorrect in this argument. As discussed above, the lis pendens issue has not been
fully adjudicated. Certain portions of the lis pendens issue have been analyzed, such as the bond
issue and whether the notices contained a sufficiently specific description. But whether, for
example, the lis pendens notice in this case was valid has not been considered. If it is established
that the lis pendens notices were filed wrongfully, that would constitute an unlawful, overt act.
Even so, the Greens argue, “the alleged object of the conspiracy was to purchase the
properties at a discount,” a purpose that, the Greens argue, “is not unlawful.” 113 The Greens are
correct that purchasing properties at a discount is not an unlawful act. But that is not all that is
alleged in the Answer and Counterclaims. The cause of action for civil conspiracy also alleges
that the object was to “utilize the lis pendens for the specific intent of precluding any efforts by

108

Answer and Counterclaims ¶ 120.

109

Id. ¶ 121.

110

Id. ¶ 128.

111

61 Motion at 5.

112

Id.

113

Id.

20

any party with an interest in the property to refinance, obtain title insurance, sublease, etc.
because of the wrongful cloud on the title of the property by virtue of the lis pendens[.]” 114 Thus,
the alleged object was not just to purchase the properties at a discount; it was also to bar interest
holders from exercising their full rights in the property. This is an unlawful objective.
The Greens also argue that the civil conspiracy fails because “Standard does not allege
sufficient facts to establish these parties ‘had a meeting of the minds.’” 115 The Standard Parties
do not refute this in their 61 Opposition. The 61 Opposition does not show the Standard Parties
adequately pled facts supporting a “meeting of the minds.” The Answer and Counterclaims
includes the conclusory statement that “[t]he Green Defendants, GW Green, and Wendy Green
had a meeting of the minds . . . ,” 116 but does not provide further factual support for this
allegation. Beyond the conclusory statement that the counterclaim defendants “conspired
together[,]” 117 there is no direct allegation that the Greens, GW Green, and Wendy Green
specifically agreed on “an object to be accomplished.” 118 The Answer and Counterclaims states
that GW Green purchased the Springville Sprinkler World property through its two principals
Garth Green and Wendy Green, but that does not allege a “meeting of the minds on the object or
course of action.” The allegation shows that GW Green purchased the property. Even construing
the allegations and inferences in the light most favorable to the Standard Parties, there is no
factual support for allegation that the actions described in the Answer and Counterclaim were the
result of an agreement between the Greens, GW Green, and Wendy Green.

114

Answer and Counterclaims ¶ 126.

115

61 Motion at 6.

116

Answer and Counterclaims ¶ 126.

117

Id. ¶ 120.

118

Peterson, 42 P.3d 1253, 2002 UT App 56, ¶ 12.

21

The elements of civil conspiracy have not been adequately alleged, so the claim for civil
conspiracy will be dismissed.
Unjust Enrichment
To adequately plead an unjust enrichment claim against the Greens, the Standard Parties
must allege that the Greens “accepted and retained benefits conferred by the [Standard Parties]
under such circumstances as to make it inequitable for the [Greens] to retain those benefits
without compensating the [Standard Parties].” 119
The Standard Parties allege that “[t]he Green Defendants, GW Green, and Wendy Green
conspired together to assert lis pendens on the five locations at issue in this matter for the
specific purpose of encumbering those properties, making it difficult for those properties to be
resold and/or subleased.” 120 The Standard Parties also allege that “[t]he lis pendens forced the
Springville Sprinkler World into default, after which GW Green . . . purchased the note at less
than half its appraised market value, and then proceeded to foreclosure on the property.” 121 The
Standard Parties allege that “[t]his benefit was improperly conferred upon the Green Defendants,
GW Green, and Wendy Green.” 122 The Standard Parties allege that “[i]t would be inequitable to
permit the Green Defendants, GW Green, and Wendy Green to retain the value of this benefit
. . . .” 123

119

Rawlings v. Rawlings, 240 P.3d 754, 2010 UT 52, ¶ 41 (citing Jeffs v. Stubbs, 970 P.2d 1234, 1247-48 (Utah
1998)).

120

Answer and Counterclaims ¶ 130.

121

Id. ¶ 131.

122

Id. ¶ 132.

123

Id. ¶ 134.

22

The Greens argue the unjust enrichment claim fails because “it does not allege any
benefit conferred by Standard on [the Greens].” 124 The Standard Parties do not refute this,
instead choosing to argue that the lis pendens may ultimately be determined to be invalid. But
while the validity of the lis pendens notices is relevant, that does not explain whether the
Standard Parties have alleged a valid claim for unjust enrichment. One of the essential
allegations the Standard Parties must make to establish their claim for unjust enrichment is that
the Greens “accepted and retained benefits conferred by the [Standard Parties] . . . .” 125 The
Standard Parties have failed to make this allegation. Furthermore, the Standard Parties are
incorrect that they have conferred a benefit to the Greens by being “stripp[ed]” of certain
leasehold interest rights when the lis pendens was filed. 126 Thus, the claim for unjust enrichment
fails and will be dismissed.
Wrongful Lien
The Standard Parties concede that the wrongful lien claim should be dismissed because
the parties agree that “a wrongful lis pendens cannot form the basis for a claim for wrongful
lien.” 127 Accordingly, the wrongful lien claim will be dismissed.
Abuse of Process
“Abuse of process applies to one who uses a legal process against another primarily to
accomplish a purpose for which it is not designed.” 128 “Abuse of process has two elements:
‘First, an ulterior purpose; second, an act in the use of the process not proper in the regular

124

61 Motion at 6 (emphasis added).

125

Rawlings, 240 P.3d 754, 2010 UT 52, ¶ 41 (citing Jeffs, 970 P.2d at 1247-48).

126

217 225 Opposition at 18.

127

61 Opposition at 10 (citing Utah Code § 38-9-103(2)).

128

Hatch v. Davis, 102 P.3d 774, 2004 UT App 378, ¶ 33 (alterations omitted).

23

prosecution of the proceedings.’” 129 “[A]n abuse of process claim requires that the prior
proceedings have terminated in favor of the person against whom they were brought.” 130
The Standard Parties allege that “[b]y asserting [their] claims against Standard Plumbing,
the Green Defendants had the ulterior purpose of unnecessarily including Standard Plumbing in
this matter to distract, harass, and interfere with Standard Plumbing’s management of Sprinkler
World.” 131 The Standard Parties also allege that the lis pendens notices are evidence of “ulterior
purpose of encumbering the properties at issue in hopes of forcing them into default.” 132 The
Standard Parties allege that the Greens were successful in their efforts to buy the Springville
property at “half of market appraised value” 133 and that this is an illegitimate use of the lis
pendens statutes and regulations. 134
The Greens argue that these allegations are insufficient to state a claim for abuse of
process. According to the Greens, “Utah law does not support an abuse of process claim based
on the filing of a lis pendens.” 135 But that is incorrect. The case the Greens cite, Winters v.
Schulman, 136 does not support that proposition. Winters did not hold that an abuse of process
claim cannot be based on the filing of a lis pendens. Instead, it specifically stated that “[t]he Utah
Supreme Court has recognized a civil cause of action for abuse of process where it is shown that
a suit was brought without probable cause, for the purpose of harassment or annoyance; and it is

129

Id. ¶ 34 (internal quotation marks omitted).

130

Winters v. Schulman, 977 P.2d 1218, 1999 UT App 119, ¶ 28 (internal quotation marks omitted).

131

Answer and Counterclaims ¶ 153.

132

Id. ¶ 154.

133

Id. ¶ 155.

134

Id. ¶ 156.

135

61 Motion at 8.

136

Winters, 977 P.2d 1218, 1999 UT App 119.

24

usually said to require malice.” 137 Thus, Winters contemplates an abuse of process claim if a
lawsuit is brought groundlessly, for the purpose of harassment or annoyance. This logic can be
easily transposed to a lis pendens notice filed groundlessly, without probable cause, for the
purpose of harassment or annoyance. Winters ultimately held that the abuse of process claim in
that case could not stand because the party bringing the abuse of process claim had not been “a
successful defendant in a prior proceeding.” 138 Winters held that the lis pendens notice in that
case was invalid “because there was no action pending” when the lis pendens was filed and
because the underlying action to which the lis pendens notice referred did not seek title to or
possession of the real property in question. Neither of those allegations has been made by the
Standard Parties.
The Greens also argue that the Standard Parties fail to allege anything more than “ulterior
purpose.” 139 This argument is also incorrect. As the Greens acknowledge, the Standard Parties
have alleged ulterior purpose by alleging that the Greens engaged in behavior “to distract, harass,
and interfere with Standard Plumbing’s management of Sprinkler World.” 140 And the Standard
Parties have also alleged “an act in the use of the process not proper in the regular prosecution of
the proceedings” 141 by alleging that the Greens wrongfully filed the lis pendens notices. The
wrongfulness of the lis pendens notices has not been determined, but it is possible that the lis
pendens notices were groundless or that they contained a material misstatement. Garth Green’s
alleged statement to Richard Reese that he “wanted him to hurt a little” and that he (Garth

137

Id. ¶ 28.

138

Id. ¶ 29.

139

61 Motion at 9.

140

Answer and Counterclaims ¶ 153.

141

Hatch, 102 P.3d 774, 2004 UT App 378, ¶ 34 (internal quotation marks omitted).

25

Green) would not release the lis pendens may be relevant to the abuse of process claim. 142 Thus,
both elements of an abuse of process claim have been adequately pled. 143 The abuse of process
claim will not be dismissed.
187 MOTION TO SUPPLEMENT
Almost a year after the 61 Motion was fully briefed and submitted for decision to the
state court, and nine months after it was submitted to this court to be decided, the Greens
submitted their 187 Motion to Supplement the 61 Motion. The Greens argue that “since that
time, there have been several events which have occurred and rulings that have been made by
this Court which unequivocally confirm that the lis pendens . . . were lawful and properly
recorded.” 144 The events described by the Greens are court decisions, not new factual
development among the parties. 145 The Greens have submitted those court decisions and other
officially-recorded documents, such as the releases of lis pendens, as exhibits. 146
Federal Rule of Evidence 201 states that a court “must take judicial notice if a party
requests it and the court is supplied with necessary information.” 147 Judicial notice is appropriate
when a fact is (1) generally known within the trial court’s territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy cannot be reasonably
questioned.” 148

142

Id. ¶ 79.

143

The Greens did not argue that the Standard Parties failed to allege “prior proceedings have terminated in favor of
the person against whom they were brought.” Winters, 977 P.2d 1218, 1999 UT App 119, ¶ 28 (internal quotation
marks omitted). Therefore, this element is not analyzed here.
144

187 Motion to Supplement at 8.

145

Id.

146

Exs. A – R to 187 Opposition, docket no. 226-1 to docket no. 226-18.

147

Fed. R. Evid. 201(c)(2).

148

Fed. R. Evid. 201(b)

26

Each of the exhibits submitted by the Greens satisfies these requirements. Accordingly,
judicial notice is taken of the exhibits. But further supplementation of the 61 Motion is not
necessary, particularly since the proposed supplement 149 proposes additional facts that are not
relevant on a motion to dismiss; 150 makes many of the same arguments as the 61 Motion—
including the argument that the lis pendens notices are conclusively valid—and would further
delay resolution in this aging case.
Therefore, judicial notice is taken of the exhibits, but supplementation will be denied.
66 MOTION DISCUSSION
The 66 Motion was filed by GW Green in state court. GW Green argued that it had not
been properly served. GW Green also argued that “Standard has not properly pleaded claims for
conspiracy and/or unjust enrichment.” 151 Importantly, GW Green “adopt[ed] by reference under
Rule 10(c)” the arguments made in the Greens’ 61 Motion regarding conspiracy and unjust
enrichment. Because any issue involving service of process on GW Green was considered and
resolved in a prior order, 152 and because GW Greens expressly adopted the arguments which
have been considered and resolved above regarding conspiracy and unjust enrichment, the 66
Motion is moot.

149

Garth O. Green Enterprises, Inc., Garth O. Green and Michael Green’s Supplemental Memorandum in Support of
Their Motion to Dismiss the Claims Filed Against Them by Standard Plumbing Supply Co., Inc. and Richard Reese
(“Proposed Supplement”), Ex. 1 to 187 Motion to Supplement, docket no. 187-1, filed Feb. 2, 2017.
150

Motions to dismiss are analyzed based on the allegations of a pleading, not the facts set forth in the motion.

151

66 Motion at 3.

152

Memorandum Decision and Order Granting [62] Motion to Add GW Green and Wendy Green as Third Party
Defendants, docket no. 169, entered Jan. 25, 2017.

27

225 MOTION DISCUSSION
The 225 Motion brought by GW Green raises arguments similar to the Greens’ 61
Motion as to the sixth and seventh causes of action for civil conspiracy and unjust enrichment.
The 225 Motion argues that the Standard Parties have failed to state a claim for civil conspiracy
because there is no allegation that GW Green conspired to commit an unlawful act with
anyone. 153 GW Green argues that “Standard fails to allege any facts showing that GW Green had
a meeting of the minds with anyone to cause the lis pendens to be recorded by Green Enterprises
for an unlawful purpose.” 154 That argument has been addressed in this memorandum decision
and order, and was the basis for dismissing the civil conspiracy claim. The Standard Parties
argue civil conspiracy may be inferred because there was “a business relationship between the
parties,” 155 because Garth Green stated that “his intent with the lis pendens was to eventually
foreclose on the Sprinkler World property,” and because GW Green, through Garth Green and
Wendy Green, ultimately purchased the loan on the Springville Sprinkler World property “for
less than half of its appraised market value.” 156 But the Standard Parties are incorrect. As
explained previously, there are not sufficient allegations of fact to infer that there was a meeting
of the minds between the Greens, GW Green, and Wendy Green. Thus, GW Green is correct that
the Standard Parties have failed to adequately plead a claim for civil conspiracy. 157

153

225 Motion at 12-13.

154

Id.

155

217 225 Opposition at 15.

156

217 225 Opposition at 13-14.

157

See Twombly, 550 U.S. at 556-57 (“It makes sense to say, therefore, that an allegation of parallel conduct and a
bare assertion of conspiracy will not suffice. Without more, parallel conduct does not suggest conspiracy, and a
conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.”);
McDonald v. Coyle, 175 Fed. App’x 947, 949 (10th Cir. 2006) (“Moreover, McDonald presents no facts to support
his conspiracy allegations. Thus, they cannot survive dismissal because ‘the pleadings [in a conspiracy claim] must
specifically present facts tending to show agreement and concerted action.’” (quoting Scott v. Hern, 216 F.3d 897,
907 (10th Cir.2000))); Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989) (“Because plaintiff failed to allege

28

The 225 Motion also argues that the unjust enrichment claim fails because it fails to
allege that any benefit was conferred by the Standard Parties on GW Green. A similar argument
was advanced in the Greens’ 61 Motion. This argument is correct. The Answer and Counterclaim
does not allege that any benefit was conferred by the Standard Parties on GW Green. Thus, GW
Green is correct that the Standard Parties have failed to adequately plead a claim for unjust
enrichment.
For the reasons set forth above, the sixth cause of action for civil conspiracy, and the
seventh cause of action for unjust enrichment will be dismissed as to GW Green. The 225
Motion will be granted.
217 MOTION DISCUSSION
The 217 Motion brought by Wendy Green makes arguments similar to the Greens’ and
GW Green’s as to the sixth and seventh causes of action. The 217 Motion specifically
“incorporates and restates herein by this reference the arguments, points, and reasons set forth for
dismissal in the [225 Motion] . . . as they apply or may be applied to Wendy Green and the
allegations made against her.” 158 These arguments have been addressed above as to other parties,
and the same conclusion is reached as to Wendy Green. The claim for civil conspiracy fails to
allege a meeting of the minds. The claim for unjust enrichment fails to allege any benefit
conferred by the Standard Parties on Wendy Green. For these reasons, the sixth cause of action
for civil conspiracy, and the seventh cause of action for unjust enrichment will be dismissed as to
Wendy Green. The 217 Motion will be granted.

specific facts showing agreement and concerted action among defendants, the district court properly dismissed the
conspiracy claim with prejudice.”).
158

217 Motion at 3.

29

THE STANDARD PARTIES’ ALTER EGO CLAIM IS INAPPLICABLE
The Standard Parties request the following relief:
J. For an order piercing the corporate veil and holding Garth Green and Wendy
Green personally liable for the improper actions of GW Green;
K. For an order piercing the corporate veil and holding Garth Green and Wendy
Green personally liable for the improper actions of GW Green.
L. For an order deeming GW Green to be the alter ego of Garth O. Green, and
making GW Green and Garth 0. Green jointly and severally liable for their
individual liabilities to Standard Plumbing. 159
“An alter ego claim is not itself a claim for substantive relief . . . but rather, procedural,
i.e., to disregard the corporate entity as a distinct defendant and to hold the alter ego individuals
liable on the obligations of the corporation.” 160 Thus, even if the Standard Parties are correct that
they have adequately pled an alter ego claim, 161 the alter ego individuals Garth O. Green and
Wendy Green would be liable only on the obligations of GW Green. There are no claims
adequately pled against GW Green, so the Standard Parties’ alter ego claim is inapplicable to
hold Garth Green and Wendy Green personally liable for the obligations of GW Green.
NO AMENDMENT ALLOWED
Courts “should freely give leave when justice so requires.” 162 “The purpose of the Rule is
to provide litigants the maximum opportunity for each claim to be decided on its merits rather
than on procedural niceties.” 163 However, amendment may be denied if there is “undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

159

Answer and Counterclaims at 36.

160

Bushnell v. Barker, 274 P.3d 968, 2012 UT 20, ¶ 13.

161

217 225 Opposition at 17.

162

Fed.R.Civ.P. 15(a)(2).

163

Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (internal quotation marks omitted).

30

amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, [or] futility of amendment.” 164 Allowing the Standard Parties to amend would
be unduly prejudicial.
In Clements v. Sanofi-Aventis, U.S., Inc., 165 a federal district court allowed amendment
after dismissal because it would be equitable. The court determined that dismissing with
prejudice a complaint filed in state court and subsequently removed to federal court would be
procedurally unfair because “[w]hen [plaintiff] filed it, she was not reasonably on notice that she
would be held to federal pleading standards.” 166
Here, however, the Standard Parties were on notice that they would be held to federal
pleading standards. This case was removed to federal court in August 2015, over a year ago. At
that time, the federal rules of civil procedure applied. 167 A Scheduling Order was entered which
allowed the Standard Parties to amend their pleadings until September 15, 2016. 168 The Standard
Parties did not amend their Answer and Counterclaims. Accordingly, the Standard Parties’
Answer and Counterclaims stands as written because, unlike the plaintiff in Clements, the
Standard Parties were on notice that they would be held to federal pleading standards. It would
be unfair and inequitable to the Greens, GW Green, and Wendy Green to allow the Standard
Parties to amend their Answer and Counterclaims. This would force the counterclaim defendants
to defend a new set of claims and allegations after years in litigation. This is highly inequitable.

164

Id.

165

Clements v. Sanofi-Aventis, U.S., Inc., 111 F.Supp.3d 586 (D.N.J. 2015).

166

Id. at 591.

167

Fed. R. Civ. P. 81(c)(1) (“These rules apply to a civil action after it is removed from a state court.”); Fed. Nat’l
Mortg. Ass’n v. Milasinovich, 161 F.Supp.3d 981, 1006-1011 (D.N.M. 2016) (discussing cases) (citing Bruley v.
Lincoln Property Co., N.C., 140 F.R.D. 452, 453 (D.Colo.1991) (“Once a case has been removed from state court, I
must apply the Federal Rules of Civil Procedure and treat the case as though it were originally commenced here.”).
168

Scheduling Order at 4, docket no. 110, entered Aug. 9, 2016.

31

This same conclusion was reached as to the Greens’ claims against the Standard Parties. 169 The
Standard Parties will not be granted leave to amend their Answer and Counterclaims with regard
to these claims.
CONCLUSION AND ORDER
For the reasons above, IT IS HEREBY ORDERED that the 61 Motion 170 is GRANTED
IN PART AND DENIED IN PART. The claims for defamation, deceptive trade practices, civil
conspiracy, unjust enrichment, declaratory judgment for quiet title, and wrongful lien (second,
third, sixth, seventh, eighth, and ninth causes of action) are DISMISSED WITH PREJUDICE as
to the Greens. The claims for intentional interference with economic relations, declaratory relief
regarding validity and enforceability of the purchase agreement, declaratory relief regarding
invalidity of lis pendens, and abuse of process (first, fourth, fifth, and tenth causes of action)
remain against the Greens.
IT IS FURTHER ORDERED that the 187 Motion to Supplement 171 is GRANTED IN
PART AND DENIED IN PART. Judicial notice is taken of the attachments to the 187 Motion to
Supplement.

169

152 Order at 19-21.

170

Motion to Dismiss Counterclaims, docket no. 61, filed Apr. 29, 2016 (filed in state court Mar. 16, 2015);
Memorandum in Support of Motion to Dismiss Counterclaims (“61 Motion”), docket no. 61-1, filed Apr. 29, 2016
(filed in state court Mar. 16, 2015).
171

Garth O. Green Enterprises, Inc., Garth O. Green and Michael Green’s Motion for Leave to File Supplemental
Memorandum in Support of Their Motion to Dismiss the Claims Filed Against Them by Standard Plumbing Supply
Co., Inc. and Richard Reese (“187 Motion to Supplement”), docket no. 187, filed Feb. 2, 2017.

32

IT IS FURTHER ORDERED that the 66 Motion 172 is MOOT and the 225 Motion 173 is
GRANTED. The claims for civil conspiracy and unjust enrichment (sixth and seventh causes of
action) are DISMISSED WITH PREJUDICE as to GW Green. GW Green is dismissed from this
lawsuit because these were the only claims asserted against it.
IT IS FURTHER ORDERED that the 217 Motion 174 is GRANTED. The claims for civil
and unjust enrichment (sixth and seventh causes of action) are DISMISSED WITH PREJUDICE
as to Wendy Green. Wendy Green is dismissed from this lawsuit because these were the only
claims asserted against her.
IT IS FURTHER ORDERED that the Standard Parties are not granted leave to amend the
Answer and Counterclaims because the time to do so has passed and it would be highly
inequitable to the opposing parties to allow amendment.
The following table summarizes the disposition of the claims:

172

Motion to Dismiss and Memorandum in Support of Motion to Dismiss (“66 Motion”), docket no. 66 and docket
no. 66-1, filed Apr. 29, 2016 (filed in state court Jul. 7, 2015).
173

GW Green Family Limited Partnership’s Motion to Dismiss Third-Party Claims and Supporting Memorandum
(“225 Motion”), docket no. 225, filed Mar. 2, 2017.
174

Third-Party Defendant Wendy Green’s Motion to Dismiss & Supporting Memorandum (“217 Motion”), docket
no. 217, filed Feb. 23, 2017.

33

Cause of action

Against

1. Intentional Interference with
Economic Relations
2. Defamation

The Greens

3. Deceptive Trade Practices

The Greens

4. Declaratory Relief Regarding
Validity and Enforceability of
the Purchase Agreement
5. Declaratory Relief Regarding
Invalidity of Lis Pendens
6. Civil Conspiracy

Disposition

The Greens

7. Unjust Enrichment
8. Declaratory Judgment of Quiet
Title
9. Wrongful Lien
10. Abuse of Process

The Greens

DISMISSED WITH
PREJUDICE
DISMISSED WITH
PREJUDICE

The Greens
The Greens, GW Green,
Wendy Green
The Greens, GW Green,
Wendy Green
The Greens
The Greens

DISMISSED WITH
PREJUDICE
DISMISSED WITH
PREJUDICE
DISMISSED WITH
PREJUDICE
DISMISSED WITH
PREJUDICE

The Greens

Dated March 29, 2017.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

34