Colorado Montana Wyoming State Area Conference of the NAACP et al v. United States Election Integrity Plan et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:22-cv-00581-CNS
COLORADO MONTANA WYOMING STATE AREA CONFERENCE OF THE NAACP,
LEAGUE OF WOMEN VOTERS OF COLORADO,
MI FAMILIA VOTA,
Plaintiffs,
v.
UNITED STATES ELECTION INTEGRITY PLAN,
SHAWN SMITH,
ASHLEY EPP, and
HOLLY KASUN,
Defendants.
ORDER
Before the Court is Plaintiffs’ Motion to Dismiss Defendants’ Counterclaims for
Defamation and Abuse of Process. 	(ECF No. 49). 	The Court GRANTS the motion for the
following reasons.
I. FACTS1
Plaintiffs are civil- and voting-rights organizations who have filed this civil action against
Defendants, raising three claims for relief: (1) intimidating voters and potential voters in violation
1 The Court notes that it has previously denied Defendants’ Motion to Dismiss under Federal Rule of Civil Procedure
12(b)(1) and stated the factual background of the case based on the facts stated in Plaintiffs’ Complaint. With the
instant motion, the Court will examine the Defendants’ counterclaims and will accept as true the facts stated therein
and interpret them in a light most favorable to the Defendants.
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of 52 U.S.C. § 10307(b); (2) attempting to intimidate voters and potential voters in violation of 52
U.S.C. § 10307(b); and (3) violation of 42 U.S.C. § 1985. (ECF No. 1, pp. 12-13). Defendants
raise two counterclaims: (1) defamation and (2) abuse of process. (ECF No. 48, pp. 16-17). In
the instant motion, Plaintiffs move to dismiss both counterclaims under Federal Rule of Civil
Procedure 12(b)(6). (ECF No. 49).
II. LEGAL STANDARD
When determining whether a counterclaim should be dismissed for failure to state a claim,
the court applies the same standards as applied in considering a motion to dismiss a complaint
under Rule 12(b)(6). See Otter Prod., LLC v. Treefrog Devs., Inc., No. 11-CV-02180-WJM-KMT,
2012 WL 4478951, at *2 (D. Colo. Sept. 28, 2012). Under Rule 12(b)(6), a court may dismiss a
complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true
and interpreted in the light most favorable to the non-moving party, to state a claim to relief that
is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). Additionally, the complaint must sufficiently allege facts supporting
all the elements necessary to establish an entitlement to relief under the legal theory proposed;
however, a complaint may be dismissed because it asserts a legal theory not cognizable as a matter
of law. Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007); Golan v. Ashcroft,
310 F. Supp. 2d 1215, 1217 (D. Colo. 2004). 	A claim is not plausible on its face “if [the
allegations] are so general that they encompass a wide swath of conduct, much of it innocent,” and
the plaintiff has failed to “nudge[ the] claims across the line from conceivable to plausible.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570).
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The standard, however, remains a liberal pleading standard, and “a well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a
recovery is very remote and unlikely.” Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th
Cir. 2009) (internal quotations and citation omitted).
III. ANALYSIS
A. Defamation
In Colorado, defamation is “a communication holding an individual up to contempt or
ridicule that causes the individual to incur injury or damage.” Keohane v. Stewart, 882 P.2d 1293
(Colo. 1994). 	To establish a claim for defamation, Defendants must show: 	“(1) a defamatory
statement concerning another; (2) published to a third party; (3) with fault amounting to at least
negligence on the part of the publisher; and (4) either actionability of the statement irrespective of
special damages or the existence of special damages to the plaintiff caused by the publication.”
Edmond v. Pikes Peak Direct Mktg., Inc., No. 11-CV-02021-CMA-KLM, 2013 WL 535579, at *6
(D. Colo. Jan. 17, 2013) (citation omitted). 	“[C]ommunications made in the course of judicial
proceedings, even though they are made maliciously and with knowledge of their falsity, are
absolutely privileged if they bear a reasonable relationship to the subject of inquiry.” MacLarty v.
Whiteford, 496 P.2d 1071, 1072 (Colo. App. 	1972); see also Merrick v. Burns, Wall, Smith &
Mueller, P.C., 43 P.3d 712, 714 (Colo. App. 2001) (“Communications preliminary to a judicial
proceeding are protected by absolute immunity only if they have some relation to a proceeding
that is actually contemplated in good faith.”). The Colorado Court of Appeals has noted that there
is a public interest “in the freedom of expression by participants in judicial proceedings,
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uninhibited by risk from resultant suits for defamation” and is made “paramount to the right of the
individual to a legal remedy where he has been wronged thereby.” MacLarty, 496 P.2d at 1072.
Here, there is no dispute that the allegedly defamatory statements on which Defendants’
counterclaim is based were made in Plaintiff’s Complaint. Therefore, in accordance with Colorado
common law, even if such statements were defamatory, they are protected by this absolute
privilege.2 Defendants cite BKP, Inc. v. Killmer, Lane & Newman, LLP, 506 P.3d 84, 92, cert.
granted, No. 21SC930, 2022 WL 17585946 (Colo. Dec. 12, 2022), for the proposition that the
privilege has limits, however, this case is distinguishable. In BKP, the Colorado Court of Appeals
confirmed that “[t]he purpose of this privilege . . . is to afford litigants the utmost freedom of access
to the courts to preserve and defend their rights and to protect attorneys during the course of their
representation of client.” BKP, Inc., 506 P.3d at 90. The Court of Appeals determined, however,
that some of the statements made by counsel at a press conference were not protected by the
litigation privilege because the statements were contrary to allegations made in the complaint and
reversed the trial court’s order dismissing the case. Id. at 95, 100. This holding is not applicable
in this case as the allegedly defamatory statements are contained within the Complaint.
Defendants’ first counterclaim is therefore dismissed for failure to state a claim.
B. Abuse of Process
To establish a claim for abuse of process, Defendants must show: “(1) an ulterior purpose
for the use of a judicial proceeding; (2) willful action in the use of that process which is not proper
in the regular course of the proceedings, i.e., use of a legal proceeding in an improper manner; and
(3) resulting damage.” Parks v. Edward Dale Parrish LLC, 452 P.3d 141, 145 (Colo. App. 2019)
2 The Court does not need to reach the issue of whether such statements are actually defamatory.
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(citation omitted). 	There is no abuse of process “[i]f the action is confined to its regular and
legitimate function in relation to the cause of action stated in the complaint . . . even if the plaintiff
had an ulterior motive in bringing the action or if he knowingly brought suit upon an unfounded
claim.” Id. Thus, there is no liability for abuse of process “if the defendant’s ulterior purpose was
simply incidental to the proceeding’s proper purpose.” Stevens v. Mulay, No. 19-CV-01675-REB-
KLM, 2021 WL 1153059, at *1 (D. Colo. Mar. 26, 2021). Defendants argue that Plaintiffs are not
entitled to any of the relief sought in the Complaint and therefore “the relief itself is an improper
use of the legal system.” (ECF No. 50, p. 6). Defendants had the opportunity to file a motion to
dismiss under Rule 12(b)(6) and failed to do so;3 they cannot litigate the issue of whether Plaintiffs
have stated a claim for relief under the guise of abuse of process. Civil litigation undoubtedly will
cause a defendant “financial hardship and emotional upheaval” but that does not give rise to a
claim for abuse of process. Stevens, 2021 WL 1153059, at *1. Instead, the Court examines the
nominal purpose for which the judicial system is invoked. 	Partminer Worldwide Inc. v.
Siliconexpert Techs. Inc., No. 09-CV-00586-MSK- MJW, 2010 WL 502718, at *3 (D. Colo. Feb.
10, 2010). Here, Plaintiffs raise claims that are “apparently colorable on their face, and [request]
relief consistent with the claims alleged.” Id. 	Therefore, the Court does not find that Plaintiffs
have an improper motive for filing this civil action and Defendants have not alleged facts that show
that Plaintiffs have used the judicial system improperly; thus, this counterclaim must be dismissed.
3 Defendants’ prior motion to dismiss was under Rule 12(b)(1) wherein Defendants argued that Plaintiffs lacked
standing. (ECF No. 27). The Court denied the motion on April 28, 2022. (ECF No. 39). Defendants then filed their
Answer, Affirmative Defenses, and Counterclaims on May 12, 2022. (ECF No. 48).
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IV. CONCLUSION
Accordingly, Plaintiffs’ Motion to Dismiss is GRANTED. 	(ECF No. 49). 	Defendants’
counterclaims for defamation and abuse of process are DISMISSED.
DATED this 23rd day of January 2023.
BY THE COURT:
___________________________________
Charlotte N. Sweeney
United States District Judge
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