Goode et al v. Gaia, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00742-DDD-KAS
JAMES COREY GOODE, and
GOODE ENTERPRISE SOLUTIONS, INC,
Plaintiffs and Counter Defendants,
v.
GAIA, INC,
JAY WEIDNER,
BENJAMIN ZAVODNICK,
JIRKA RYSAVY,
BRAD WARKINS, and
KIERSTEN MEDVEDICH,
Defendants.
ALYSSA MONTALBANO,
Defendant, Counter Claimant, and Third-Party Plaintiff,
v.
DAVID WILCOCK,
THE WILCOCK SPIRITUAL HEALING AND EMPOWERMENT FOUNDATION,
Third-Party Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendant Alyssa Montalbano’s (“Montalbano”)
Motion 	to 	Dismiss 	Second 	Amended 	Complaint 	[#111] 	[#352] 	(the 	“Motion”).1
1 The District Judge permitted Defendant Montalbano to file the present Motion after the deadline
to answer or otherwise respond to the Second Amended Complaint [#111], filed December 8,
2020, and she did so by the District Judge’s deadline. See Order [#348] at 9 n.3.
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Plaintiffs filed a Response [#368] in opposition to the Motion [#352], 2 and Defendant
Montalbano filed a Reply [#378]. The Motion [#352] has been referred to the undersigned
for a Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1),
and D.C.COLO.LCivR 72.1(c)(3). The Court has reviewed these briefs, the entire case
file, and the applicable law, and is fully advised in the premises. For the reasons stated
below, the Court respectfully RECOMMENDS that the Motion [#352] be GRANTED.
I. Background
The primary allegations in the Second Amended Complaint [#111] concerning
Defendant Montalbano are as follows. 3 Plaintiff James Corey Goode (“Goode”) alleges
that he “is an educational and motivational speaker, influencer, author and media figure
and is well-known and respected in the Conscious Community.” Second Am. Compl.
[#111] ¶ 2. Plaintiff Goode alleges that he “has undergone years of repeated stalking and
harassment by Montalbano that unfortunately, even though she has lost the case she
brought against him, has been assessed attorneys fees for frivolous prosecution, and
received a Report and Recommendation from a Magistrate [Judge] that she was
delusional and that her case should be dismissed, still shows no sign of going away.” Id.
¶ 71.
2 In their Response [#368], Plaintiffs move the Court to award them attorney fees from Defendant
Montalbano as a sanction under Colo. Rev. Stat. § 13-17-102. Response [#368] at 23. Pursuant
to D.C.COLO.LCivR 7.1(d): “A motion shall not be included in a response or reply to the original
motion. A motion shall be filed as a separate document.” Thus, Plaintiffs’ request is denied without
prejudice.
3 In determining whether an operative complaint states a claim for relief, the Court views the
allegations in a light most favorable to the plaintiff, as the non-moving party. Abdi v. Wray, 942
F.3d 1019, 1025 (10th Cir. 2019).
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Plaintiff Goode states that he “has had to seek a TRO/Stalking Order against
Montalbano twice in the last two years due to her repeated stalking, threats, and invasion
of Mr. Corey Goode’s privacy.” Id. ¶ 72. He alleges that she “has stalked Mr. Goode by
incessantly and repeatedly contacting and attempting to contact him with the sole purpose
of coercing him into some fictitious and fanciful relationship that she has concocted in her
mind.” Id. ¶ 73. He avers that, “[i]n retaliation to Mr. Goode’s Stalking/TRO lawsuit filed
on or around June 15, 2018, Montalbano opened a lawsuit in Mesa County against Mr.
Goode on June 25, 2018.” Id. ¶ 74. He alleges that 36 filings were made in less than three
months and that these “filings are replete with Montalbano’s fanciful ideas of being
married to Mr. Goode in another dimension, having romantic meetings through astral
projection, and other disturbing stories as well as a painstaking detailed review of Mr.
Goode’s career and personal life details.” Id. ¶ 75.
Plaintiff Goode’s counsel construed Defendant Montalbano’s claims in the state
court action as implicating copyright, and so Plaintiff Goode removed that action to federal
court in September 2018. Id. ¶ 76. After removal, Defendant Montalbano amended her
claims “at the suggestion of Judge Moore and after Magistrate [Judge] Gallagher
recommended dismissal of the action,” and the lawsuit was remanded to state court in
December 2018. Id. ¶ 77. Plaintiff Goode states that, in the two months the case was in
federal court, there were 80 docket entries and that “[o]ver 95% of the filings in both [the
state and federal] cases were by Montalbano, most stricken and/or ignored by the judges
due to their sheer unfounded (in legal or reason), baseless and innocuousness nature.”
Id. ¶¶ 78-79. Plaintiff Goode asserts that “[t]he amount of filings mounted after removal .
. . has reached over a hundred,” that “[a]ll have been sent to Mr. Goode,” and that “[a]ll
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have been so voluminous that they necessitated packaging in boxes and caused
repeated and continuing emotional distress.” Id. ¶¶ 80-81.
Plaintiff Goode states that, “[f]or two years now [he] has dealt with Montalbano’s
repeated harassment, defamation and unwanted affections and attention,” and that, “after
years of Montalbano’s ongoing and repeated harassment, stalking, and unwanted contact
and attention, Mr. Goode has reached the point where he fears an impending attack of
Montalbano’s intense focus resulting in harm to himself and his family.” Id. ¶¶ 82-83.
Defendant Montalbano has also “filed multiple motions against the Judge in the Mesa
[County] action calling for his recusal for ‘perjury’ and accusing him of working with Mr.
Goode and his counsel.” Id. ¶ 86.
In addition, Plaintiff Goode alleges that Defendant Montalbano “has created a
YouTube account purely for the purpose to harass, defame, threaten and discredit Mr.
Goode.” Id. ¶ 87. He states that, on this YouTube channel, she “reads aloud—for hours
at a time—her voluminous, nonsensical court filings and inserts delusional commentary
about her imaginary husband-and-wife or ‘twin flame’ relationship she has been asserting
since at least 2018 exists between herself and Mr. Goode.” Id. ¶ 88. He states that she
“accuses Goode of criminal acts and links her channel to [Defendant] Zavodnick and
[Defendant] Weidner’s YouTube channels.” Id.
Other allegations concerning Defendant Montalbano are somewhat sporadically
provided 	in 	the 	Second 	Amended 	Complaint 	[#111]. 	Plaintiff 	Goode 	alleges 	that
Defendant Montalbano and others “consistently tag Mr. Goode and use the Goode Marks
in their Social Media posts—to ride off of the notoriety and reach of Mr. Goode’s
followers,” and they “make repeated misuse of the Goode Marks while defaming and
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harassing 	Goode—further 	harming 	Goode 	by 	spreading 	untruths 	and 	baseless
statements while bolstering their viewership through the use of ‘tagging’ on various social
media 	platforms.” 	Id. 	¶ 	58. 	He 	states 	that, 	“[u]pon 	information 	and 	belief, 	the
aforementioned malicious postings by Zavodnick, High and Montalbano contributed to
Goode’s blacklisting” from certain “major ufology events [and] leading ufology radio
shows[.]” Id. ¶ 89. He also states that Defendant Montalbano is part of an enterprise
whose purpose is “to accuse Goode of criminal activities through social media outlets and
other wirings and use extortion . . . , harassment and any other manipulative tactic to
deprive him of his livelihood.” Id. ¶¶ 104-05. He further alleges that Defendant Montalbano
uses “the hashtag ‘#CoreyGoode’ so that she can reach the tens of thousands of people
who follow Mr. Goode’s hashtag,” because her own “following on Twitter is one-tenth as
large.” Id. ¶ 113.
Based on these allegations, Plaintiffs asserts nine causes of action against
Defendant Montalbano: (1) Claim II: Civil RICO (Racketeer Influenced and Corrupt
Organizations Act) Conspiracy Pursuant to 18 U.S.C. § 1962(d), id. ¶¶ 141-43; (2) Claim
III: Federal Trademark Infringement (Under 15 U.S.C. §§ 1114 and 1125(a)), id. ¶¶ 144-
57; (3) Claim IV: False Designation of Origin and Federal Unfair Competition Under 15
U.S.C. § 1125, id. ¶¶ 158-61; (4) Claim V: Colorado Common Law Trademark and Trade
Name 	Infringement, 	id. 	¶¶ 	162-65; 	(5) 	Claim 	VI: 	Colorado 	Common 	Law 	Unfair
Competition, id. ¶¶ 166-72; (6) Claim VII: Colorado Consumer Protection Act, id. ¶¶ 173-
81; (7) Claim XIII: Slander Per Se, id. ¶¶ 195-99; (8) Claim XIV: Libel Per Se, id. ¶¶ 200-
04; and (9) Claim XV: Tortious Interference with a Business Expectancy, id. ¶¶ 205-08.
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As a result, Plaintiffs seek various forms of monetary and non-monetary relief. Id. at 40-
41.
In the present Motion [#352], Defendant Montalbano seeks dismissal of all claims
asserted against her pursuant to Fed. R. Civ. P. 12(b)(6).4 Plaintiffs state that they
construe Defendant Montalbano’s Motion [#352] as a motion for judgment on the
pleadings under Rule 12(c) because she filed it after her Answer [#217].
In Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1212 n.4 (10th Cir. 2003),
the Tenth Circuit Court of Appeals stated: “If . . . the defendant submits a motion to dismiss
after filing an answer, the motion should be treated as a motion for judgment on the
pleadings.” Here, Defendant Montalbano filed the instant Motion [#352] after she filed an
Answer to the Second Amended Complaint [#184]. While “federal courts have allowed
untimely motions if the defense has been previously included in the answer,” 5 Defendant
Montalbano does not appear to have raised the failures-to-state-a-claim arguments in her
Answer. Accordingly, the Court will construe the Motion as one filed under Rule 12(c).
See id. (noting that “the only time limitation on Rule 12(b) motions is that they must be
made ‘before pleading’” and, thus, “[a] strict interpretation” of the Rule “leads to the
conclusion that the district judge must deny any Rule 12(b) motion made after a
responsive pleading is interposed as being too late”); see also Fed. R. Civ. P. 12(c)
(allowing motions for judgment on the pleadings “[a]fter the pleadings are closed”).
4 Defendant Montalbano’s Motion [#352] originally sought dismissal of all claims, even those not
explicitly asserted against her. Given Plaintiffs’ affirmation that Claims I, VIII, IX, and XVII are not
asserted against Defendant Montalbano, see Response [#368] at 5, the Court does not address
her arguments on those claims.
5 See 5C ARTHUR R. M ILLER, ET AL., FEDERAL PRACTICE AND PROCEDURE § 1361 (3d ed.
2023 update).
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Regardless, the same standard of review applies to Rule 12(b)(6) and Rule 12(c) motions.
See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1102 (10th Cir.
2017) (noting the same de novo standard of review applies to motions under Rules
12(b)(6) and 12(c)).
II. Standard of Review
A Rule 12(b)(6) standard of review applies to Rule 12(c) motions. Brokers’ Choice
of Am., Inc., 861 F.3d at 1102. Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim where
the plaintiff has “fail[ed] to state a claim upon which relief can be granted.” The Rule 12
(b)(6) standard tests “the sufficiency of the allegations within the four corners of the
complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340
(10th Cir. 1994). “A complaint must contain ‘enough facts to state a claim to relief that is
plausible on its face.’” Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d
802, 811 (10th Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“When the complaint includes ‘well-pleaded allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.’”
Carraway v. State Farm Fire & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir.
Aug. 22, 2023) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)); cf. Hale v. Emporia
State Univ., 266 F. Supp. 3d 1261, 1269 (D. Kan. 2017) (noting, “[t]he court will grant a
motion for judgment on the pleadings only when the factual allegations in the complaint
fail to [state a plausible claim]”). When considering Rule 12(c) motions, “the Court cannot
consider any facts or allegations beyond the Complaint or Answer.” Chavez-Rodriguez v.
City of Santa Fe, No. CIV 07-633 JB/DJS, 2008 WL 5992269, at *8 (D.N.M. Oct. 17,
2008).
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“A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do . . . . [n]or does a complaint suffice if it tenders
naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal
quotation marks omitted). “[D]ismissal . . . is appropriate if the complaint alone is legally
insufficient to state a claim.” Brokers’ Choice of Am., Inc., 861 F.3d at 1104-05. “The
court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the
parties might present at trial[.]” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d
1226, 1236 (10th Cir. 1999).
III. Analysis
A. 	Claim II: Civil RICO Conspiracy
18 U.S.C. § 1964(c) allows for a private cause of action for a RICO Act violation,
i.e., a violation of 18 U.S.C. § 1962. Here, Plaintiffs assert that Defendant Montalbano
violated 18 U.S.C. § 1962(d) of RICO by conspiring to violate 18 U.S.C. § 1962(c). Second
Am. Compl. [#111] ¶¶ 141-43. These two statutory subparts provide:
(c) It shall be unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or indirectly, in the conduct of
such enterprise’s affairs through a pattern of racketeering activity or
collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the
provisions of subsection (a), (b), or (c) of this section.
Under 18 U.S.C. § 1961(1)(B), “racketeering activity” includes “any act which is
indictable under” a variety of provisions of the United States Code, including, as asserted
by Plaintiffs here, § 1341 (relating to mail fraud) and § 1343 (relating to wire fraud).
Second Am. Compl. [#111] ¶ 142. “The various acts of racketeering activity described in
the statute are often referred to as ‘predicate acts’ because they form the basis for liability
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under RICO.” BancOklahoma Mortg. Corp. v. Cap. Title Co., 194 F.3d 1089, 1102 (10th
Cir. 1999). The predicate act of mail fraud is comprised of a “‘scheme or artifice to defraud,
or for obtaining money or property by means of false or fraudulent pretenses’ and, in
support [of this scheme or artifice], the placement of any matter in the mail for delivery by
the Postal Service.” Aguilera-Valdez v. Davenport, No. 21-cv-01209-STV, 2022 WL
4603556, at *22 (D. Colo. Sept. 29, 2022) (quoting 18 U.S.C. § 1341). The predicate act
of wire fraud is comprised of a “‘scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses, representations, or promises, [and]
transmit[ 	] 	or 	cause[ 	] 	to 	be 	transmitted 	by 	means 	of 	wire, 	radio, 	or 	television
communication in interstate or foreign commerce, any writings, signs, signals, pictures,
or sounds for the purpose of executing such scheme or artifice[.]’” Id. (quoting 18 U.S.C.
§ 1343).
“If a plaintiff has no viable claim under § 1962(a), (b), or (c), then its subsection (d)
conspiracy claim fails as a matter of law.” Tal v. Hogan, 453 F.3d 1244, 1270 (10th Cir.
2006). However, this does not mean that every defendant alleged to have violated §
1962(d) must also be alleged to have violated § 1962(a), (b), or (c). “Pursuant to §
1962(d), conspiracy to commit a RICO violation also constitutes a violation of the Act
when a conspirator adopts the goal of furthering the enterprise, even if the conspirator
does not commit a predicate act.” CGC Holding Co., LLC v. Broad & Cassel, 773 F.3d
1076, 1088 (10th Cir. 2014). In other words, if a defendant agrees to further the enterprise
of other defendants who are alleged to have violated § 1962(a), (b), or (c), then she may
have violated § 1962(d). See, e.g., Gramercy Distressed Opportunity Fund II, L.P. v.
Bakhmatyuk, No. 21-CV-223-F, 2022 WL 3091501, at *19 (D. Wyo. July 7, 2022).
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“A claim of conspiracy requires plaintiff [to] demonstrate direct or circumstantial
evidence of a meeting of the minds or agreement of the defendants.” Henson v. Bank of
Am., 935 F. Supp. 2d 1128, 1141 (D. Colo. 2013) (citation omitted). “Conspiracy can be
shown by a sequence of events from which a reasonable jury could infer there was a
meeting 	of 	the 	minds.” 	Id. 	(citation 	and 	internal 	modification 	omitted). 	“However,
conclusory allegations that defendants acted ‘in concert’ or ‘conspired’ without specific
factual allegations to support such assertions are insufficient.” Id. (citation omitted).
Here, Plaintiffs have provided no allegations to support a finding that Defendant
Montalbano had a meeting of the minds with any Defendant who is alleged to have
violated any substantive portion of the RICO statute, i.e., §§ 1962(a), (b), or (c). Plaintiffs’
substantive RICO claim is asserted under § 1962(c) solely against Defendants Rysavy,
Warkins, and Medvedich. See Second Am. Compl. [#111] ¶¶ 122-40. The issue of
whether Plaintiffs have adequately alleged that these three Defendants violated § 1962(c)
is pending before the District Judge. See Motion to Dismiss [#175] at 13-14. As noted, a
§ 1962(d) claim cannot survive without a viable claim under § 1962(a), (b), or (c), see Tal,
453 F.3d at 1270, and Plaintiffs have not alleged a meeting of the minds between
Defendant Montalbano and Defendants Rysavy, Warkins, and/or Medvedich. Plaintiffs’
assertion 	that 	the 	conspiracy 	consists 	of 	Defendants 	Montalbano, 	Weidner, 	and
Zavodnick “working together to deprive Plaintiff of financial gain via defaming” Plaintiff
Goode online, Response [#368] at 14-15, is insufficient where none of the allegedly
conspiring Defendants are alleged to have violated a substantive provision of RICO.
Similarly, Plaintiffs’ assertion that Defendant Montalbano’s Answer reveals a
meeting of the minds lacks merit. See Response [#368] at 3 (citing to Answer [#217] ¶
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112). In Paragraph 112, Defendant Montalbano partially admitted to having a connection
with Defendant Weidner on social media. However, a mere social media connection does
not equate to a conspiratorial meeting of the minds under RICO. Further, Montalbano
qualified her response by asserting that she sought “employment with GAIA during 2017
and met with Mr. Weidner privately on September 11, 2017 to discuss a potential Dream
Vision[-]based series being carried at GAIA[,]” but “had no communication with Mr.
Weidner 	once 	the 	business 	opportunity 	fell 	through 	and 	then 	only 	had 	[limited]
communication with [Defendant] Weidner after” Plaintiffs threatened suit. Answer [#217]
¶ 112. This also does not equate to a conspiratorial meeting of the minds under RICO.
Accordingly, the Court recommends that the Motion [#352] be granted to the
extent that Plaintiffs’ Claim II: Civil RICO Conspiracy Pursuant to 18 U.S.C. § 1962(d) be
dismissed with prejudice to the extent asserted against Defendant Montalbano.
The 	Court 	recommends 	dismissal 	with 	prejudice 	for 	the 	following 	reasons.
Plaintiffs have had three opportunities to adequately state this claim through the filing of
three successive complaints in this matter. See Second Am. Compl. [#111]; Am. Compl.
[#36]; Compl. [#1]. In A & B Stores, Inc. v. Employers Mutual Casualty Co., No. CIV-14-
1228-HE, 2015 WL 1014808 at *3 (W.D. Okla. Mar. 9, 2015), for example, the Court
dismissed with prejudice a bad faith breach of contract claim in a case where, like here,
the plaintiff was represented by counsel, stating that the “plaintiff was given the
opportunity to amend and made minimal effort to correct the pleading deficiencies . . . .
The court concludes two tries is enough.”
Here, similarly, Plaintiffs are represented by counsel, have had three chances to
state their RICO claim against Defendant Montalbano, and there is no indication that
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allowing them a fourth chance would be anything but futile. For these reasons, the Court
recommends dismissal with prejudice. See, e.g., EMASCO Ins. Co. v. C & C Grocery &
Mkt., Inc., No. 19-cv-427-DES, 2023 WL 4086014, at *5 (E.D. Okla. June 20, 2023);
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with
prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and
granting leave to amend would be futile.”).6
B. 	Claim III: Federal Trademark Infringement
Plaintiffs 	assert 	that 	Defendant 	Montalbano 	committed 	federal 	trademark
infringement in violation of 15 U.S.C. §§ 1114 and 1125(a). Second Am. Compl. [#111]
¶¶ 144-57. Defendant Montalbano argues that Plaintiffs “have failed to allege or plead
any infringement facts” against her. Motion [#352] at 9.
The Lanham Act protects both trademarks and service marks. 1-800 Contacts, Inc.
v. Lens.com, Inc., 722 F.3d 1229, 1238 (10th Cir. 2013). A trademark is “any word, name,
symbol, or device, or any combination thereof—(1) used by a person, or (2) which a
person has a bona fide intention to use in commerce and applies to register on the
principal register established by this chapter, to identify and distinguish his or her goods,
including a unique product, from those manufactured or sold by others and to indicate the
source of the goods, even if that source is unknown.” 15 U.S.C. § 1127. A service mark
is the same except that it is used “to identify and distinguish the services of one person,
including a unique service, from the services of others and to indicate the source of the
services, even if that source is unknown.” Id. “Titles, character names, and other
6 This same analysis applies to all other claims below for which the Court recommends dismissal
with prejudice.
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distinctive features of radio or television programs may be registered as service marks
notwithstanding that they, or the programs, may advertise the goods of the sponsor.” Id.
15 U.S.C. § 1114, also known as § 32 of the Lanham Act, “protects the owner of a
registered mark from ‘[a]ny person who shall, without consent’ ‘use . . . any reproduction,
counterfeit, copy, or colorable imitation of a registered mark in connection with the sale,
offering for sale, distribution, or advertising of any goods or services,’ when ‘such use is
likely to cause confusion, or to cause mistake, or to deceive.’” Alfwear, Inc. v. Mast-
Jaigermeister US, Inc., __ F. App’x __, __, No. 21-4029, 2023 WL 5765891, at *4 (10th
Cir. Sept. 7, 2023) (quoting 15 U.S.C. § 1114(1)). 15 U.S.C. § 1125(a), also known as §
43(a) of the Lanham Act or the federal unfair competition law, provides, as is relevant
here, “that a person who ‘uses in commerce any word, term, name, symbol, or device,’
that ‘is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
connection, or association of such person with another person . . . shall be liable in a civil
action.’” Id. (quoting 15 U.S.C. § 1125(a)(1)). In other words, § 32 of the Lanham Act
protects registered marks and § 43(a) protects unregistered marks. Two Pesos, Inc. v.
Taco Cabana, Inc., 505 U.S. 763, 768 (1992) (“Section 43(a) prohibits a broader range
of practices than does § 32, which applies to registered marks, but it is common ground
that § 43(a) protects qualifying unregistered trademarks.”) (internal citation and quotation
marks omitted).
“The elements of an infringement claim under § 43(a) are (1) that the plaintiff has
a protectable interest in the mark; (2) that the defendant has used ‘an identical or similar
mark’ in commerce; and (3) that the defendant’s use is likely to confuse consumers.” 1-
800 Contacts, Inc., 722 F.3d at 1238 (internal citation omitted). “An infringement claim
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under § 32 has nearly identical elements, except that the registration of a mark serves as
prima facie evidence of both the mark’s validity and the registrant’s exclusive right to use
it in commerce[.]” Id. (internal citations omitted).
Given that Plaintiffs rely on the same allegations in support of their Claim III
(Federal Trademark Infringement), Claim IV (False Designation of Origin and Federal
Unfair Competition), Claim V (Colorado Common Law Trademark and Trade Name
Infringement), and Claim VI (Colorado Common Law Unfair Competition), see Response
[#368] at 15-19, the Court discusses them in detail here. Plaintiffs assert that they have
“exclusively used [the] claimed marks/names in commerce for many years,” and that
“[c]onsumers only associate the various names with the services provided by [Plaintiff]
Goode and thus has established enforceable and protectable trademarks in its names.”
Response [#368] at 16. In support of this statement they point to paragraph 38 of the
Second Amended Complaint [#111]: “Mr. Goode had worked autonomously on print,
clothing and media goods and services tied to his arbitrary, protected phrases: Blue
Avians TM , 20 and Back TM , Sphere Being Alliance ® and SBA ® (the “Goode Marks”).
This work was done well in advance of—and separate and apart from—his work with and
for Gaia. The Goode Marks have become a source indicator of Goode’s goodwill,
branding and message and have, as such, acquired secondary meaning.” Id.
Plaintiffs further assert that they have adequately described their trademarks and
specified which marks are at issue. Response [#368] at 16. In support, they point to
paragraphs 39 and 40 of the Second Amended Complaint [#111]: “Mr. Goode filed for
Federal Trademark Registrations for BLUE AVIANS (Application No. 87821423), 20 AND
BACK 	(Application 	No. 	87821401, 	SPHERE 	BEING 	ALLIANCE 	(Application 	No.
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87821504), and SBA (Application No. 87821495) in March of 2018,” and “Mr. Goode was
granted the rights to SBA ® and Sphere Being Alliance ® in November of 2018 and April
of 2019, respectively.” Id.
Plaintiffs state that Defendant Montalbano uses the names belonging to them, “and
that such use of Plaintiff’s trademarked names is likely to cause confusion among
consumers as to the source, sponsorship, affiliation, or approval of the services because
they are false or misreading representations regarding [Defendant’s] experience and
relationship with Plaintiffs.” Response [#368] at 16 (brackets in original). In support,
Plaintiffs point to paragraphs 87-88 and 112-13 of the Second Amended Complaint
[#111]: (1) “Most recently, Montalbano has created a YouTube account purely for the
purpose to harass, defame, threaten and discredit Mr. Goode.” (2) “On her YouTube
channel Montalbano reads aloud—for hours at a time—her voluminous, nonsensical court
filings and inserts delusional commentary about her imaginary husband-and-wife or ‘twin
flame’ relationship she has been asserting since at least 2018 exists between herself and
Mr. Goode. She accuses Goode of criminal acts and links her channel to Zavodnick and
Weidner’s YouTube channels.” (3) “Montalbano, aka ‘Ari Stone’ is known to be connected
to Weidner on social media (and since at least 2017 through discussions regarding a
potential work relationship with Gaia), an example below: [inserting a screenshot taken
from Defendant Montalbano’s Twitter account on March 17, 2020].” (4) “Note, again, the
‘watch, 	share 	like 	and 	subscribe’ 	Montalbano 	includes 	after 	using 	the 	hashtag
‘#CoreyGoode’ so that she can reach the tens of thousands of people who follow Mr.
Goode’s hashtag. Montalbano’s following on Twitter is one-tenth as large.” Id.
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Here, any fair reading of Plaintiffs’ Claim III, including the additional allegations
cited by Plaintiffs in their Response [#368], demonstrates that only four marks are at issue
here: (1) SPHERE BEING ALLIANCE ®, (2) SBA ®, (3) 20 AND BACK TM , and (4) BLUE
AVIANS TM . Second Am. Compl. [#111] ¶¶ 38-40, 144-57. None of the allegations cited
by Plaintiffs connects Defendant Montalbano even obliquely to the use of any of these
four marks. Response [#368] at 8-9, 16. In fact, the only potential “mark” mentioned in
these allegations is “#CoreyGoode”—which is not explicitly mentioned either in Plaintiffs’
recitation of the claim, see Second Am. Compl. [#111] ¶¶ 144-57, or in Plaintiffs’ briefing
on the present Motion [#352], see Response [#368] at 8-10, 15-19.
Plaintiffs also allege that Defendants “High, Zavodnick, Montalbano, Weidner and
Gaia consistently tag Mr. Goode and use the Goode Marks in their Social Media posts—
to ride off of the notoriety and reach of Mr. Goode’s followers. All four [sic] make repeated
misuse of the Goode Marks while defaming and harassing Goode—further harming
Goode by spreading untruths and baseless statements while bolstering their viewership
through the use of ‘tagging’ on various social media platforms.” Second Am. Compl.
[#111] ¶ 58. They also point to Montalbano’s Answer in which she admits to encouraging
people to like, subscribe, and share YouTube channels and videos of interest. See
Response [#368] at 12-13 (citing Answer [#217] ¶ 113). These appear to be the sole
allegation and admission which directly connect Defendant Montalbano with the Goode
marks. However, these are insufficient because Plaintiffs have not alleged which specific
marks Defendant Montalbano purportedly infringed upon, or any details regarding when
such infringements occurred or whether Defendant Montalbano used the same or similar
marks “in commerce.” See 1-800 Contacts, Inc., 722 F.3d at 1238. Thus, the Court finds
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that Plaintiffs have failed to adequately allege the second element of their federal
trademark infringement claim, i.e., that Defendant Montalbano has used an identical or
similar mark in commerce. See 1-800 Contacts, Inc., 722 F.3d at 1242.
The Court also finds that Plaintiffs have failed to adequately allege the third
element of their federal trademark infringement claim, i.e., that Defendant Montalbano’s
use of the Goode marks is likely to confuse consumers, i.e., Plaintiffs’ followers. Courts
consider six non-exhaustive factors to evaluate an alleged likelihood of confusion: (1)
evidence of actual consumer confusion, (2) the competing marks’ strength, (3) the alleged
infringer’s intent in adopting the contested mark, (4) the competing marks’ degree of
similarity, (5) similarities in the parties’ services and marketing, and (6) the degree of care
consumers are likely to exercise in purchasing the services. Vail Assocs., Inc. v. Vend-
Tel-Co., Ltd., 516 F.3d 853, 863 (10th Cir. 2008). “[E]vidence of actual confusion in the
marketplace may be the best indication of likelihood of confusion.” Sally Beauty Co. v.
Beautyco, 	Inc., 	304 	F.3d 	964, 	864 	(10th 	Cir. 	2002). 	Beyond 	vague, 	conclusory
allegations, Plaintiffs have alleged no facts that render a likelihood of confusion plausible.
Moreover, Plaintiffs have not alleged that any of their followers were actually confused by
the alleged use of the Goode marks.
Accordingly, the Court recommends that the Motion [#352] be granted to the
extent that Plaintiffs’ Claim III: Federal Trademark Infringement Under 15 U.S.C. §§ 1114
and 1125(a) be dismissed with prejudice to the extent asserted against Defendant
Montalbano.
C. 	Claim IV: False Designation of Origin and Federal Unfair Competition
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Plaintiffs assert a claim for false designation of origin and federal unfair competition
in violation of 15 U.S.C. § 1125(a). Second Am. Compl. [#111] ¶¶ 158-61. Defendant
Montalbano argues that Plaintiffs “have failed to plead any facts against Ms. Montalbano
to make a claim and have only made conclusory statements and accordingly the claim
should be dismissed with prejudice as no ‘False Designation of Origin’ has been shown.”
Motion [#352] at 9.
As noted above, 15 U.S.C. § 1125(a) is also known as § 43(a) of the Lanham Act
or the federal unfair competition law. See POM Wonderful LLC v. Coca-Cola Co., 573
U.S. 102, 107 (2014) (“The Lanham Act creates a cause of action for unfair competition
through misleading advertising or labeling.”). This provision, also known as the false
designation provision, provides a “broader remedy” than mere trademark protection. Id.
15 U.S.C. § 1125(a)(1) provides:
Any person who, on or in connection with any goods or services, or any
container for goods, uses in commerce any word, term, name, symbol, or
device, or any combination thereof, or any false designation of origin, false
or misleading description of fact, or false or misleading representation of
fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as
to the affiliation, connection, or association of such person with
another person, or as to the origin, sponsorship, or approval of his or
her goods, services, or commercial activities by another person, or
(B) 	in 	commercial 	advertising 	or 	promotion, 	misrepresents 	the
nature, characteristics, qualities, or geographic origin of his or her or
another person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is
or is likely to be damaged by such act.
The United States Supreme Court has referred to claims falling under section (A) as “false
association” or “false designation” claims and claims falling under section (B) as “false
advertising” claims. Lexmark Int’l, Inc. v. Statis Control Components, Inc., 572 U.S. 118,
122 (2014); see also John Bean Techs. Corp. v. B GSE Grp., LLC, 480 F. Supp. 3d 1274,
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1303 (D. Utah 2020) (identifying causes of action as “false designation” and “false
advertising”).
Here, Plaintiffs claim that “Defendants” have “made repeated representations
about the source, origin, and nature of Defendants’ products that have created the false
and misleading impression that Defendants’ goods or services are” created or authorized
by Plaintiffs. Second Am. Compl. [#111] ¶ 159. Plaintiffs also assert that Defendants
“have made false representations, false descriptions, and false designations of origin
regarding Defendants and Defendants’ good or services in violation of 15 U.S.C. §
1125(a). Id. ¶ 160.
A false designation of origin claim may take one of two forms: “‘passing off,’ where
a party represents his or her own goods or services as someone else’s or ‘reverse passing
off,’ where a party misrepresents someone else’s goods or services as his or her own.”
John Bean Techs. Corp., 480 F. Supp. 3d at 1303-04 (emphases in original). Plaintiffs do
not explicitly state which form of false designation of origin claim they are asserting in
either the Second Amended Complaint [#111] or the Response [#368].
Fed. R. Civ. P. 9(b) requires a party to “state with particularity the circumstances
constituting fraud or mistake.” This means that a plaintiff must “set forth the time, place
and contents of the false representation, the identity of the party making the false
statements and the consequences thereof.” Schwartz v. Celestial Seasonings, Inc., 124
F.3d 1246, 1252 (10th Cir. 1997) (citation omitted). “‘To demonstrate falsity within the
meaning of the Lanham Act, a plaintiff may show that the statement was literally false,
either on its face or by necessary implication, or that the statement was literally true but
likely to mislead or confuse consumers.’” Zoller Labs., LLC v. NBTY, Inc. 111 F. App’x
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978, 982 (10th Cir. 2004) (quoting Southland Sod Farms v. Stover Seed Co., 108 F.3d
1134, 1139 (9th Cir. 1997)). Rule 9(b) applies to claims of falsity under the Lanham Act
“insofar as the factual averments allege intentional or knowing misrepresentations.”
Cocona, Inc. v. Singtex Indus. Co., Ltd., No. 14-cv-01593-MJW, 2014 WL 5072730, at *8
(D. Colo. Oct. 9, 2014). Here, Plaintiffs allege that Defendant Montalbano’s conduct
relating to unfair competition is “knowing, willful, and continuing” in nature. Second Am.
Compl. [#111] ¶ 161. Thus, Rule 9(b) applies, and “[s]uch averments must be pled with
particularity.” Cocona, Inc., 2014 WL 5072730, at *8. Further, “[t]o the extent the Lanham
Act claim is based entirely on ‘a unified course’ of such conduct, the entire claim must be
pled with particularity.” Id.
Plaintiffs here rely on the same allegations discussed by the Court in Section III.B.
above in connection with their Claim III: Federal Trademark Infringement. See Response
[#368] at 8-10, 15-19. However, these allegations do not provide the requisite “time, place
and contents of the false representation.” Schwartz, 124 F.3d at 1252. In fact, most of
Plaintiffs’ allegations connecting Defendant Montalbano to instances of unfair competition
in Claim IV are conclusory. To the extent that Plaintiffs rest their claim on Defendant
Montalbano’s use of a hashtag containing Plaintiff Goode’s name, see, e.g., [#111] ¶ 113,
Plaintiffs have not adequately explained how Defendant Montalbano’s actions falsely
designate origin or falsely or misleadingly describe or represent facts to cause confusion
about designation of origin or association or to falsely advertise as proscribed by 15
U.S.C. § 1125(a)(1). No reasonable person seeing Defendant Montalbano’s alleged
Twitter post could be confused by the use of this hashtag, given that Defendant
Montalbano is simply providing a link to a YouTube video concerning litigation (or
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potential litigation) between Plaintiff Goode and another defendant in this case, Defendant
Jay Weidner. See Second Am. Compl. [#111] ¶ 113.
Accordingly, the Court recommends that the Motion [#352] be granted to the
extent that Plaintiffs’ Claim IV: False Designation of Origin and Federal Unfair Competition
Under 15 U.S.C. § 1125 be dismissed with prejudice to the extent asserted against
Defendant Montalbano.
D. 	Claim V: Colorado Common Law Trademark and Trade Name Infringement
Plaintiffs’ Claim V asserts that Defendant Montalbano committed trademark and
trade name infringement under Colorado common law. Second Am. Compl. [#111] ¶¶
162-65. Plaintiffs state that Defendants’ “unauthorized use of GES’ Marks and names for
[sic] in connection with the same or similar products and services infringes upon Goode’s
common law trademark and trade name rights.” Id. ¶ 164.
“The elements of common law trademark or service mark infringement are similar
to those required to prove unfair competition under § 43(a) of the Lanham Act.” Donchez
v. Coors Brewing Co., 392 F.3d 1211, 1219 (10th Cir. 2004). Thus, a plaintiff must
adequately allege “(1) a protectable interest in its mark; (2) the defendant’s use of that
mark in commerce; and (3) the likelihood of consumer confusion.” Your True Nature, Inc.
v. JF Show Store, No. 23-cv-00107-CNS-NRN, 2023 WL 2359234, at *3 (D. Colo. Feb.
14, 2023) (citing Donchez, 392 F.3d at 1219).
In Colorado, a claim of unfair competition regarding a similar trade name requires
a plaintiff to adequately allege “(1) its name has acquired a secondary meaning and (2)
the defendant has unfairly used the name, or a simulation of it, against the plaintiff.” Your
True Nature, Inc., 2023 WL 2359234, at *2 (citing Gregg Homes, Inc. v. Gregg & Co.
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Builders, 978 P.2d 146, 147 (Colo. App. 1998)). The definition of “secondary meaning” is
“the consuming public’s understanding that the mark, when used in context, refers not to
what the descriptive word ordinarily describes, but to the particular business that the mark
is meant to identify.” HealthONE of Denver, Inc. v. UnitedHealth Grp. Inc., 805 F. Supp.
2d 1115, 1124 (D. Colo. 2011) (citation omitted). “[T]he use of the same or a similar name
can constitute unfair competition ‘if the public is likely to be deceived by its use.’” Your
True Nature, Inc., 2023 WL 2359234, at *2 (quoting Gregg Homes, Inc., 978 P.2d at 147).
Plaintiffs here rely on the same allegations and argument discussed by the Court
in Section III.B. above in connection with their Claim III: Federal Trademark Infringement.
See Response [#368] at 8-10, 15-19. With respect to the common law trademark
infringement claim, the Court finds—for the same reasons discussed in Claim III above—
that Plaintiffs fail to adequately allege Defendant Montalbano’s use of their marks in
commerce and that any such use likely caused confusion, i.e., the second and third
elements of this claim.
Regarding trade name infringement, Plaintiffs’ sole allegation against Defendant
Montalbano concerns her use of the hashtag #CoreyGoode on or about March 17, 2020.
Second Am. Compl. [#111] ¶ 113. However, no reasonable person seeing this Twitter
post could be deceived by its use with respect to trade name usage, given that Defendant
Montalbano simply provided a link to a YouTube video concerning litigation (or potential
litigation) between Plaintiff Goode and another defendant in this case, Defendant Jay
Weidner. See id. As such, Plaintiffs have not explained how this post constitutes unfair
competition as to trade names.
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Accordingly, the Court recommends that the Motion [#352] be granted to the
extent that Plaintiffs’ Claim V: Colorado Common Law Trademark and Trade Name
Infringement be dismissed with prejudice to the extent asserted against Defendant
Montalbano.
E. 	Claim VI: Colorado Common Law Unfair Competition
Plaintiffs’ 	Claim 	VI 	asserts 	that 	Defendant 	Montalbano 	engaged 	in 	unfair
competition under Colorado common law. Second Am. Compl. [#111] ¶¶ 166-72. In
support, Plaintiffs broadly allege that “Defendants” have engaged in “unauthorized and
infringing use of Goode’s trademarks and trade names . . . and illegally took control of
Goode’s content . . . to [associate with that content], . . . to benefit from [Goode’s]
reputation and good will . . . and to create confusion and misperception[.]”Id. ¶ 168.
Under Colorado common law, the tort of unfair competition protects against
“copying of nonfunctional aspects of consumer products which have acquired secondary
meaning such that they operate as a designation of source.” HealthONE of Denver, Inc.,
805 F. Supp. 2d at 1123 (internal quotations and citation omitted).
Plaintiffs here rely on the same allegations discussed by the Court in Section III.B.
above in connection with their Claim III: Federal Trademark Infringement. See Response
[#368] at 8-10, 15-19. Again, Plaintiffs’ allegations against Defendant Montalbano are
vague 	and 	conclusory. 	To 	the 	extent 	that 	Plaintiffs’ 	claim 	rests 	on 	Defendant
Montalbano’s use of #CoreyGoode, Plaintiffs fail to adequately allege that she used that
hashtag as a designation of source.
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Accordingly, the Court recommends that the Motion [#352] be granted to the
extent that Plaintiffs’ Claim VI: Colorado Common Law Unfair Competition be dismissed
with prejudice to the extent asserted against Defendant Montalbano.
F. 	Claim VII: Colorado Consumer Protection Act
Plaintiffs’ Claim VII asserts that Defendant Montalbano violated the Colorado
Consumer Protection Act (“CCPA”). Second Am. Compl. [#111] ¶¶ 173-81.
A defendant engages in an unfair or deceptive trade practice under the CCPA
when it, among other things, “knowingly or recklessly makes a false representation as to
the source, sponsorship, approval, or certification of goods, services, or property; [or]
knowingly or recklessly makes a false representation as to affiliation, connection, or
association with or certification by another.” Colo. Rev. Stat. § 6-1-105(1)(b),(c). The
elements of a private cause of action under the CCPA are as follows: “(1) the defendant
engaged in an unfair or deceptive trade practice; (2) that the challenged practice occurred
in the course of defendant’s business, vocation or occupation; (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, 146-47 (Colo. 2003). “CCPA claims
must be pled with particularity pursuant to Federal Rule of Civil Procedure 9(b).”
Hauschild GMBH & CO. KG v. FlackTek, Inc., No. 20-cv-02532-PAB-STV, 2022 WL
392501, at *10 (D. Colo. Feb. 9, 2022).
Here, Plaintiffs’ Colorado Consumer Protect Act claim fails for the same reasons
that Plaintiffs’ claims for false designation and federal unfair competition (Claim IV) and
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Colorado unfair competition (Claim VI) fail. In support of their CCPA claim, Plaintiffs rely
on their allegations that Defendant Montalbano “consistently tag[ged] Mr. Goode and
use[d] the Goode Marks in their Social Media posts—to ride off of the notoriety and reach
of Mr. Goode’s followers . . . . while defaming and harassing Goode—further harming
Goode by spreading untruths and baseless statements[.]” Second Am. Compl. [#111] ¶
58; see also Response [#368] at 20 (arguing, in opposition to dismissal, that “Defendant
has admitted to using Goode’s marks without approval in the practice of ‘tagging.’ This is
sufficient to state a claim.”). However, these allegations do not provide the requisite “time,
place and contents of the false representation” underlying the unfair or deceptive trade
practice. Schwartz, 124 F.3d at 1252. In fact, most of Plaintiffs’ allegations connecting
Defendant Montalbano to instances of unfair competition in Claim VII are conclusory. She
is not mentioned by name in Plaintiffs’ statement of the claim, see Second Am. Compl.
[#111] at 173-81, and, although Plaintiffs are correct that the operative complaint “is to be
read as a whole and not in a piecemeal fashion,” see Response [#368] at 20, they have
not adequately explained how the elements of this claim are met, and the Court’s reading
of the Second Amended Complaint [#111] does not inherently show that the elements
have been met either.
Accordingly, the Court recommends that the Motion [#352] be granted to the
extent that Plaintiffs’ Claim VII: Colorado Consumer Protection Act be dismissed with
prejudice to the extent asserted against Defendant Montalbano.
G. 	Claim XIII: Slander Per Se
Plaintiffs’ Claim XIII asserts that Defendant Montalbano committed slander per se.
Second Am. Compl. [#111] ¶¶ 195-99. Slander is one of the two types of communication
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comprising the tort of defamation. Keohane v. Stewart, 882 P.2d 1293, 1297 n.5 (Colo.
1994). Slander is “generally an oral communication.” Id. “To establish an action for
slander per se, the plaintiff must show: (1) the defendant made a[ ] verbal statement; (2)
the statement was published to a third party; and (3) the statement defames the plaintiff’s
trade, business, or profession.” Sky Fun 1 v. Schuttloffel, 27 P.3d 361, 369 n.3 (Colo.
2011). The final element may also be met by “imputation of (1) a criminal offense; (2) a
loathsome disease; (3) a matter incompatible with the individual’s . . . office; or (4) serious
sexual misconduct.” Gordon v. Boyles, 99 P.3d 75, 79 (Colo. App. 2004) (citations
omitted).
Here, Plaintiffs base this claim on purported statements by Defendant Montalbano
accusing Plaintiff Goode of criminal acts. Second Am. Compl. [#111] ¶ 196; Response
[#368] at 21-22. However, Plaintiffs do not direct the Court’s attention to any specific
allegations supporting this claim. See Response [#368] at 21-22. The Court notes at least
two allegations, though, appear to be related to this claim. Plaintiffs state that Defendant
Montalbano “accuses Goode of criminal acts and links her [YouTube] channel to
[Defendant] Zavodnick and [Defendant] Weidner’s YouTube channels.” Second Am.
Compl. [#111] ¶ 88. Plaintiffs also state that she is part of an enterprise whose purpose
is “to accuse Goode of criminal activities through social media outlets and other wirings
and use extortion . . . , harassment and any other manipulative tactics to deprive him of
his livelihood.” Id. ¶¶ 104-06. Neither of these statements, though, provide enough detail
to state a claim of slander per se. For example, Plaintiffs have not explained what criminal
activities Plaintiff Goode has allegedly been accused of or described when these
statements were made.
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Accordingly, the Court recommends that the Motion [#352] be granted to the
extent that Plaintiffs’ Claim XIII: Slander Per Se be dismissed with prejudice to the
extent asserted against Defendant Montalbano.
H. 	Claim XIV: Libel Per Se
Plaintiffs’ Claim XIV asserts that Defendant Montalbano committed libel per se.
Second Am. Compl. [#111] ¶¶ 200-04. Libel is one of the two types of communication
comprising the tort of defamation. Keohane, 882 P.2d at 1297 n.5. Libel is “usually a
written communication.” Id.
The elements of libel per se are: (1) a false statement in a written or other fixed
medium; (2) published to a third person; (3) with reckless disregard as to the statement's
truth or falsity; (4) the statement was highly offensive to a reasonable person and is
defamatory as a matter of law; (5) the statement was about the plaintiff; and (6) the plaintiff
sustained actual damages. Cross v. Receivables Mgmt. Sols., Inc., No. 04 CV 01493
MSK PAC, 2006 WL 446083, at *5 (D. Colo. Feb. 21, 2006) (citing Denver Pub. Co. v.
Bueno, 54 P.3d 893, 899 n. 8 (Colo. 2002)). “With regard to the per se claims, a statement
is defamatory as a matter of law if it imputes a criminal offense, loathsome disease,
serious sexual misconduct, or another matter incompatible with the individual’s business,
trade, profession, or office to the subject of the statement.” Cross, 2006 WL 446083 at *5
(citing Denver Pub. Co., 54 P.3d at 899 n.8). “To support a per se claim, the statement
must be defamatory on its face, without resort to extrinsic proof or innuendo.” Cross, 2006
WL 446083, at *5 (citing Keohane, 882 P.2d at 1297 n.3).
Here, Plaintiffs base this claim on purported statements by Defendant Montalbano
accusing Plaintiff Goode of criminal acts. Second Am. Compl. [#111] ¶ 201; Response
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[#368] at 21-22. However, Plaintiffs do not direct the Court’s attention to any specific
allegations supporting this claim. See Response [#368] at 21-22. The only relevant
allegations appear to be those discussed above in connection with Plaintiffs’ Claim XIII:
Slander Per Se. Again, these statements do not provide enough detail to state a claim of
libel per se because they do not explain what criminal activities Plaintiff Goode has
allegedly been accused of or described when these statements were made. In addition,
it is unclear from the Second Amended Complaint whether any of the purported
statements at issue were made in written form, as is required for a libel claim. See Cross,
2006 WL 446083, at *5.
Accordingly, the Court recommends that the Motion [#352] be granted to the
extent that Plaintiffs’ Claim XIV: Libel Per Se be dismissed with prejudice to the extent
asserted against Defendant Montalbano.
I. 	Claim XV: Tortious Interference with a Business Expectancy
Plaintiffs’ 	Claim 	XV 	asserts 	that 	Defendant 	Montalbano 	committed 	tortious
interference with a business expectancy. Second Am. Compl. [#111] ¶¶ 205-08.
“Tortious interference with business expectancy is an intentional tort actionable
under Colorado law,” which is applicable where someone “intentionally and improperly
interfere with another’s prospective contractual relation.” Examination Bd. of Pro. Home
Inspectors v. Int’l Ass’n of Certified Home Inspectors, 519 F. Supp. 3d 893, 915 (D. Colo.
2021); Restatement (Second) of Torts § 766 (1979). The tort is applicable under two
separate circumstances: (1) where one induces or causes a “third person to not enter or
continue the prospective relation,” and (2) where one prevents “the other from acquiring
or continuing the prospective relation.” Examination Bd. of Pro. Home Inspectors, 519 F.
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Supp. 3d at 915 (quoting Restatement (Second) of Torts § 766 (1979)). “Because the tort
is forward looking plaintiffs need not prove the existence of an underlying contract to
succeed on a tortious interference claim.” Id. “However, they must demonstrate that the
tortfeasor employed intentional and improper means to prevent a contract’s formation.”
Id. (citing Dolton v. Capitol Fed. Sav. & Loan Ass’n, 642 P.2d 21, 23 (Colo. App. 1981)).
“Section 767 of the Restatement typically applies to tortious interference claims,”
unless those claims arise between business competitors. Id. Section 767 provides:
In determining whether an actor’s conduct in intentionally interfering with a
contract or a prospective contractual relation of another is improper or not,
consideration is given to the following factors: (a) the nature of the actor’s
conduct, (b) the actor’s motive, (c) the interests of the other with which the
actor’s conduct interferes, (d) the interests sought to be advanced by the
actor, (e) the social interests in protecting the freedom of action of the actor
and the contractual interests of the other, (f) the proximity or remoteness of
the actor's conduct to the interference and (g) the relations between the
parties.
In addition, the Court must determine whether Plaintiffs have sufficiently alleged “an
inference of injury, i.e., whether the tortfeasor’s wrongful conduct prevented the plaintiff
from forming a contract.” Examination Bd. of Pro. Home Inspectors, 519 F. Supp. 3d at
916. 	“In order to qualify as a protected relationship, ‘there [must be] a reasonable
likelihood or probability that a contract would have resulted; there must be something
beyond a mere hope.” Crocs, Inc. v. Effervescent, Inc., 248 F. Supp.3d 1040, 1059 (D.
Colo. 2017) (quoting Klein v. Grynberg, 44 F.3d 1497, 1506 (10th Cir. 1995)).
For example, in Klein v. Gryberg, the Tenth Circuit Court of Appeals, applying
Colorado law, held that prospective contracts which are too speculative cannot support a
tortious interference claim. 44 F.3d 1497, 1506 (10th Cir. 1995) (stating, “a protected
relationship exists only if there is a reasonable likelihood or probability that a contract
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would have resulted; there must be something beyond a mere hope.”). There, the plaintiff
“had no ongoing relationship with any of the investors,” only met with investors once, and
provided no indication that “any of the prospective investors had any intent” to enter into
a contract with him. Klein, Id. at 1506. The Circuit concluded that the plaintiff had not
shown that there was “a reasonable probability that [the plaintiff] would have received
economic benefits from the[ ] investors.” Id.
Here, the Court finds that Plaintiffs have not alleged any non-speculative business
expectancy sufficient to demonstrate an inference of injury. In the Response [#368],
Plaintiffs only cite paragraphs 71-88 of the Second Amended Complaint [#111] in support
of this claim, which discuss Defendant Montalbano’s alleged intentional and improper
actions 	without 	mentioning 	anything 	about 	any 	prospective 	contractual 	relations.
Response [#368] at 22-23. Plaintiffs’ statement of the claim in the Second Amended
Complaint [#111] alleges that “Goode had a multitude of actual or prospective business
contracts with the aforementioned Conferences and various entertainment agencies” and
that “Defendants knew of these actual or prospective business contracts and intentionally
and improperly interfered with the performance of these contracts.” Second Am. Compl.
[#111] ¶¶ 206-07. These vague statements are asserted against all Defendants, and there
is no indication what might apply to Defendant Montalbano specifically. See id. Plaintiffs
additionally state in the Response [#368] that Defendant Montalbano “continues to burden
Goode . . . and has caused Goode financial strain due to her improper use of the courts”
and that “[m]any companies do not wish to engage with Goode due to the lawsuits
Defendant has filed.” Response [#368] at 23. None of these statements from the Second
Amended Complaint [#111] or even from the Response [#368] supports a conclusion that
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there was a “reasonable probability” that Plaintiffs “would have received economic
benefits” from a third party in the absence of Defendant Montalbano’s actions. See Klein,
44 F.3d at 1506.
The situation here is akin to that in Examination Board of Professional Home
Inspectors v. International Association of Certified Home Inspectors, 519 F. Supp. 3d at
916-17, where the plaintiff failed to identify any “individuals with whom [it] intended to
contract but for [the defendant’s] interference,” instead simply stating that the plaintiff “saw
a drop in the number of people registering to sit for the [examination] following” the
defendants’ comment about the exam. The court stated: “While that may be sufficient to
establish an inference of injury in other contexts, it is insufficient for a tortious interference
with business expectancy claim.” Examination Bd. of Pro. Home Inspectors, 519 F. Supp.
3d at 917. The court therefore held that the plaintiff’s business expectancy was a “mere
hope” which was inadequate to support its claim. Id. (quoting Crocs, Inc., 248 F. Supp.
3d at 1059). Here, as well, Plaintiffs’ “mere hope” of prospectively forming business
contracts with unidentified third parties is insufficient.
Accordingly, the Court recommends that the Motion [#352] be granted to the
extent that Plaintiffs’ Claim XV: Tortious Interference with Business Expectancy be
dismissed with prejudice to the extent asserted against Defendant Montalbano.
IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Motion [#352] be GRANTED and that
Plaintiffs’ claims against Defendant Montalbano be DISMISSED with prejudice. 7
7 Defendant Montalbano also seeks sanctions and compensation for her legal expenses and time.
Motion [#352] at 15. However, she provides no supporting legal authority or documentation.
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IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge's findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Dated: November 1, 2023 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
Accordingly, the request is denied without prejudice and, if appropriate, may be refiled after the
District Judge otherwise resolves the Motion [#352] and this Recommendation.
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