Coomer v. Make Your Life Epic LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 21-cv-3440-WJM-KAS
ERIC COOMER, Ph.D.,
Plaintiff,
v.
MAKE YOUR LIFE EPIC LLC, doing business as ThriveTime Show,
CLAYTON THOMAS CLARK, individually, and
REOPEN AMERICA LLC, doing business as ReAwaken America Tour,
Defendants.
ORDER DIRECTING PARTIES TO SUPPLEMENT THEIR BRIEFING
ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court is Defendants Make Your Life Epic, doing business as
ThriveTime Show, Clayton Thomas Clark, and Reopen America LLC, doing business as
ReAwaken America Tour’s (collectively, “Defendants”) motion for partial summary
judgment (“Motion”) (ECF No. 213). Plaintiff Eric Coomer, Ph.D. filed a response, to
which Defendants filed a reply. (ECF Nos. 222, 224.) For the following reasons, the
Court directs the parties to supplement their briefing on the Motion.
The parties are familiar with the underlying facts of this case by way of, among
other sources, the Court’s Order denying Defendants’ special motion to dismiss and
motion to strike (ECF No. 45), the Tenth Circuit’s opinion dismissing Defendants’ appeal
of that Order (ECF No. 131), and Magistrate Judge Kathryn A. Starnella’s civil contempt
recommendation (ECF No. 144). The Court incorporates that pertinent background
here.
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Defendants seek summary judgment on “34 discrete statements” allegedly
published by them. (ECF No. 213 at 1.) 27 of these statements are listed in an
exhibit—prepared by Defendants—to which Defendants have repeatedly cited
throughout this litigation. (See, e.g., ECF No. 213-9; ECF No. 24-10.) The remaining
seven statements were allegedly published by Defendants during various months in
2022 and are included in paragraphs 89–102 of Coomer’s Second Amended Complaint.
(ECF No. 175.)
At the outset, the Court observes Defendants’ argument that “each allegedly
defamatory publication constitutes a separate and independent cause of relief.” (ECF
No. 224 at 2 (citing Lininger v. Knight, 226 P.2d 809, 812 (Colo. 1951) (“No law is better
settled than that each publication of a libel is a separate and independent claim.”).) The
Court agrees that this law shall govern this case, notwithstanding Coomer’s suggestion
to the contrary.1 Consistent with this, note 16 of 22:1 of the Colorado pattern jury
instructions echo that “[e]ach publication of a libel or slander is a separate cause of
action,” and instruct that, “if the case involves separate statements made on different
occasions, such as more than one article about the plaintiff, each article constitutes a
separate claim and should be treated separately in the instructions.” Relatedly, the
Colorado Court of Appeals has held that “a general jury verdict based on more than one
alleged defamatory statement” ordinarily may not be upheld if “one of the statements is
defamatory” while “others are not.” Zueger v. Goss, 343 P.3d 1028, 1035 (Colo. App.
2014). That court has advised trial courts “to include a special verdict form requiring the
1 Coomer refers to the Motion as an “effort[] to narrow the scope of [his] claim for defamation.” (ECF No.
222 at 25 (emphasis added).) But, as explained, each allegedly defamatory statement constitutes its own
separate cause of action for defamation, so this singular framing is not precisely accurate.
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jury to indicate which of the statements it relied upon in reaching its verdict.” Id.
It is the Court’s responsibility to rule on whether a statement is defamatory. See
id. at 1034 (“Whether a statement is defamatory is a question of law . . . .”). Colorado
courts have made clear that such a determination is appropriate at the summary
judgment stage. See SG Interests I, Ltd. V. Kolbenschlag, 452 P.3d 1, 6 (Colo. App.
2019) (“Because protracted litigation could have a chilling effect upon constitutionally
protected rights of free speech, it is appropriate to prompt[ly] resolv[e] . . . defamation
actions . . . by summary judgment.”) (cleaned up).
Yet the Court has difficulty discerning whether certain statements listed in
Defendants’ exhibit (ECF No. 213-9) are actionable because Coomer has repeatedly
suggested that some of these statements are “not intended to suffice as a standalone
cause[s] of action” but rather merely “lend necessary context to” other publications the
Court has already found to be actionable, such as that he “committed fraud and
treason” by allegedly rigging the 2020 election. (ECF No. 45 at 18.) For example,
• 	on page 16 of his Response, Coomer describes Defendants’ arguments
as “logically flawed in that they attempt to suggest that every quoted
statement in the Complaint is itself an independent claim for defamation,
including in some instances multiple separate statements from within the
same publication.” (ECF No. 222 at 16.)
• 	on page 21, Coomer casts doubt on the idea that he intends to argue that
Defendants’ accusations that he was a member of Antifa is a standalone
cause of action for defamation. (See id. at 21 (casting doubt on the notion
that he “w[as] asserting that” false statements that he a member of Antifa
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“standing alone [is] defamatory per se” and suggesting that “the numerous
‘Antifa’ publications lend essential context to the surrounding and
simultaneous allegations of election rigging”).)
• 	on page 24, Coomer suggests that statements 10, 11, 13, and 15–18 may
not be intended as independent causes of action. (Id. at 24 (“Even if
these ‘questions’ were discrete publications giving rise to independent
causes of action, the argument that they would not be relevant or
actionable is not correct.”).)
• 	one page later, Coomer deepens the confusion, arguing that these
statements “imply provably false facts or rely upon stated facts that
provably false, and would therefore be actionable, even if [he] did intend
them all as separate publications.” (Id. at 25 (emphasis added).)
The Court cannot grant summary judgment on allegedly defamatory statements (i.e.,
claims) Coomer does not intend to present to the jury as independent causes of action
in the first place.
Nevertheless, the Court will briefly address which statements appear to be
discernable in this action. As will be further explained in its upcoming Order on the
merits of the Motion, the Court will deny said Motion to the extent Defendants seek
summary judgment on the seven statements allegedly published in 2022. Coomer has
made clear in his Response that “[m]any of the[se] allegations . . . do not even contain
allegations sounding in defamation but rather provide evidentiary support for [his]
argument that Defendants post-Complaint conduct was willful and wanton . . . .” (Id. at
6.) In other words, the Court does not understand Coomer to argue that these 2022
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publications are independent defamation claims but instead that they are relevant only
to the exemplary damages issue. Hence, they are not defamation claims upon which
Defendants seek summary judgment. (See ECF No. 224 at 10 (making clear that
whether these allegations give rise to liability under Coomer’s punitive damages claim
“is not the subject of [their] summary judgment motion . . . .”).) And as to the 27
statements listed in their exhibit, Defendants concede that ten of these statement will
proceed to trial. (See ECF No. 213 at 8 (conceding that statements numbers 5–8, 21–
23, and 25–27 are defamatory (subject to their defenses at trial)).)
That leaves statements 1–4, 9–20, and 24 as the potential remaining subjects of
the Motion. Accordingly, the Court ORDERS Coomer to supplement his briefing on
Defendants’ Motion to clearly explain which of these statements he believes are
independent causes of action to be submitted to the jury via instructions as laid out
above in the pattern instruction and the Zueger decision.2 The Court stresses that it is
not at this time focused on whether these statements are relevant or admissible merely
for context purposes. The Court is more interested at this stage of the litigation with
which statements Coomer believes are causes of action and should therefore be
included in the jury instructions.
Coomer shall file his supplement, not to exceed 7 pages, exclusive of attorney
signature block and certificate of service, by no later than April 14, 2025.
2 The Court notes Coomer’s position that, “[t]o the extent this process is warranted, it is better addressed
through motions in limine and proposed jury instructions prior to trial.” 	(ECF No. 222 at 17 n.39.) 	But
motions in limine would generally pertain to whether certain evidence is admissible, not whether a certain
defamation cause of action may proceed to verdict. Nor does the Court agree that this process is better
saved for the jury instruction stage, since the Court does not hold the jury instruction conference until
towards the end of trial, at which point Coomer’s counsel would have already made opening statement and
rested 	his 	case.
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Defendants shall file a response to the supplement, not to exceed 7 pages, exclusive of
attorney signature block and certificate of service, by April 18, 2025.
Dated this 8th day of April, 2025.
BY THE COURT:
______________________
William J. Martínez
Senior United States District Judge
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