DBG Properties, LLC v. Preserve Pine Creek Village, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 25-cv-2092-WJM-MDB
DBG PROPERTIES, LLC,
Plaintiff,
v.
PRESERVE PINE CREEK VILLAGE, LLC, and
JACK KRAYNIAK,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS
This is a civil rights case between a real estate developer and a homeowners’
association. Plaintiff DBG Properties, LLC (“DBG”), the real estate developer, received
permission and funding to build an affordable housing complex in Colorado Springs,
Colorado. Before the development started, however, Defendant Preserve Pine Creek
Village, LLC (“PPCV”), the homeowners’ association, filed multiple state court lawsuits
in an effort to stop or delay the development from going forward. But those litigation
efforts failed—and failed badly.
Now, the tables have turned: DBG sues PPCV on the theory that PPCV abused
the legal system in bad faith to its financial detriment. PPCV moves to dismiss this
action pursuant to Colorado’s anti-SLAPP (Strategic Lawsuit Against Public
Participation) statute, § 13-20-1101, C.R.S. (2025). (ECF No. 23.) Defendant Jack
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Krayniak, a member of PPCV, moves to join1 PPCV’s anti-SLAPP motion and
separately moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (“Motion” or “Motions”).
(ECF No. 36.) The Motions are fully briefed. (ECF Nos. 32, 35, 52, 53.)
For the following reasons, the Motions are granted in part and denied in part.
I. 	BACKGROUND
As mentioned, DBG is a developer seeking to build an affordable housing
complex in Colorado Springs. (ECF No. 22 at 1.) PPCV is a “single purpose”
homeowners’ association comprised of “a group of property owners,” including
Krayniak, “that owns property adjacent to” the scheduled development. (ECF No. 23 at
2; ECF No. 22-1 at 2.) In January 2024, the Colorado Springs Planning Commission
(“the Commission” or “Colorado Springs”) approved DBG’s development plans. (ECF
No. 22 at 4.) PPCV appealed the Commission’s decision to the Colorado Springs City
Council (“the City Council”). (ECF No. 22-1 at 2.) The City Council denied the appeal.
(Id.)
In March 2024, PPCV filed a Rule 106(a)(4) action (the “Rule 106 action”) in
state district court against Colorado Springs and the City Council, seeking to overturn
the appeal denial. (Id.) In December 2024, DBG successfully moved to intervene in the
Rule 106 action as an intervenor-defendant. (Id.) In its intervenor complaint, DBG
sought “a declaratory judgment that . . . it be permitted to go forward with the project—
1 DBG originally named an additional individual member of PPCV, Eddie Lawrence, as a
defendant in this action. DBG voluntarily dismissed Lawrence from this action in September
2025 (ECF Nos. 49, 50), so this Motion is actually brought only by Krayniak at this juncture.
And apart from an alleged violation of the undersigned’s revised practice standards, the Court
does not understand DBG to oppose Krayniak joining PPCV’s anti-SLAPP motion. Accordingly,
that portion of the Motion (Krayniak’s joinder request) is granted. (ECF No. 36.)
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and the City be permitted to issue bonds—while the Rule 106(a)(4) appeal was pending
in state court.” (ECF No. 22-2 at 2 (footnote omitted).)
Shortly thereafter, PPCV removed DBG’s declaratory judgment complaint2 to this
federal District court (the “federal action”). (Id. at 3.) DBG and Colorado Springs moved
to remand the federal action to state court. (Id.) In January 2025, however, while the
remand motions were still pending, the state court dismissed the Rule 106 action with
prejudice. (ECF No. 22-1.) In doing so, the court observed that
Preserve Pine Creek does not cite either section of the City
Code in its briefs or how the submitted plans fail to meet the
requirements of those Code sections or how the City abused
its discretion with regard to those Code sections when the
City approved the submitted plans.
(Id. at 5.)
The court added that PPCV’s “remaining arguments deal with the weight to be
given evidence.” (Id.) But, the court explained, the applicable standard of review
dictated that the weight of the evidence “is a matter for the City, not this Court, to
consider.” (Id.) Given that deferential standard, the court dismissed PPCV’s action with
prejudice and upheld the City Council’s appeal denial because its decision was
undisputedly supported by record evidence. (Id. at 7.)
In February 2025, DBG voluntarily dismissed its declaratory judgment
complaint—i.e., the basis of PPCV’s removal efforts—with prejudice. (ECF No. 22 at 5.)
Despite the state court’s dismissal order and DBG’s voluntary dismissal, however,
PPCV did not move to dismiss the federal action. Instead, the federal action proceeded
2 It appears that the removal proceeding pertained only to DBG’s declaratory judgment
claim, not the Rule 106(a)(4) action as a whole. 	(See ECF No. 22-2 at 5 n.4 (observing that
“PPCV does not appear to be asking this Court to review its Rule 106(a)(4) appeal”).)
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on the merits and, in April 2025, United States Magistrate Judge Maritza Dominguez
Braswell issued a Recommendation that the federal action be remanded to state court.
(ECF No. 22-2.) As grounds, she concluded that the court lacked subject matter
jurisdiction because, despite PPCV’s invocation of federal question jurisdiction, PPCV
merely relied on its anticipated defense to DBG’s state declaratory judgment claim. (Id.
at 5.) Judge Dominguez Braswell explained that federal question jurisdiction cannot be
established by a party’s anticipated defense. (Id. at 6.) Based on this well-worn
principle, she recommended that the federal action “be remanded to state court.” (Id.)
Undeterred, PPCV filed an Objection to Judge Dominguez Braswell’s
Recommendation. (ECF No. 22-3.) On June 6, 2025, United States District Judge
Charlotte Sweeney concluded that PPCV’s Objection was “not sufficiently specific to
warrant de novo review.” (Id.) Indeed, Judge Sweeney explained, “PPCV did little, if
anything, to address Magistrate Judge Dominguez Braswell’s findings.” (Id. at 4.)
Instead, Judge Sweeney continued,
The arguments that PPCV presents in its objections . . . are
nothing more than a general objection to her findings—
rehashing arguments that § 13-51.5-104 is unconstitutional,
and rehashing argument that § 13-51.5-104 violates the
Noer Pennington doctrine. ECF No. 41 at 5–9. PPCV does
not even address Magistrate Judge Dominguez Braswell’s
finding that jurisdiction cannot be conferred based on
anticipated defenses or defenses actually raised.
(Id.)
Accordingly, Judge Sweeney overruled the Objection,3 adopted the
3 To the extent the Court refers to the prior lawsuits/actions/litigation in this case
throughout this Order, the Court means the Rule 106 action, the federal action, and/or the bond
action.
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Recommendation, and remanded the federal action to state court. (Id. at 6.)
PPCV then filed another state court action (the “bond action”) against the City of
Colorado Springs on June 4, 2025—i.e., two days before Judge Sweeney overruled its
Objection. (ECF No. 22 at 5.) In that suit, PPCV “assert[ed] four claims in connection
with a City of Colorado Springs municipal bond issuance under C.R.S. § 29-3-101 et
seq.” (ECF No. 22-4 at 1.) In essence, PPCV claimed that the bonds issued by
Colorado Springs violated the Taxpayers’ Bill of Rights Act (“TABOR”). (See generally
id.) It also requested “an accounting” under the Colorado Open Records Act (“CORA”).
(Id.)
On July 22, 2025—i.e., only a month and a half after PPCV filed suit—the state
court dismissed PPCV’s claims on several grounds in a three-page order. (Id.) First
and foremost, the court observed that, to have associational standing, an organization
like PPCV must show, among other things, that “its members would otherwise have
standing to sue in their own right.” (Id. (quoting TABOR Foundation v. Colorado
Department of Health Care Policy and Financing, 487 P.3d 1277, 1283 (Colo. App.
2020).) But, the court explained, PPCV had not “identified any of its members, nor has
it argued that it is a taxpayer.” (Id. at 1.) According to the court, PPCV supplied only
“conclusory” and “[im]plausible” statements on this point. (Id. at 2.) Consequently, the
court concluded that PPCV lacked standing. (Id.)
The court went on to consider the merits of PPCV’s claims. It concluded that
PPCV would lose on that score, too, because “[i]n this case, there will be no ‘district
debt,’” as is necessary to assert a TABOR claim. (Id.) Instead, the court reasoned,
“[t]he debt will only ever be owed by the private entity completing the development.”
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(Id.) The court added that “[a]ny assertion by [PPCV] that the City may ultimately be
liable for bond payments is conclusory, as [PPCV] has alleged neither any facts nor any
law to support such argument.” (Id.)
The court made quick work of PPCV’s counterarguments as well, noting that
PPCV either did “not respond” to portions of Colorado Springs’s arguments, asserted
“conclusory” “generalized allegation[s],” or posited “several” constitutional arguments,
“none of which have merit.” (Id. at 3–4.)
Finally, the court rejected PPCV’s position that it was entitled to “an accounting”4
because “the Colorado Open Records Act (CORA) automatically grants anyone’s
request for an accounting.” (Id. at 4.) It explained that PPCV was not entitled to an
“accounting” because PPCV’s complaint “does not assert a claim under CORA.” (Id.)
The court declared that “it is not sufficient to argue that an entire act authorizes an
accounting remedy without citing any particular provision of the act.” (Id.) For all these
reasons, the court dismissed the bond action.5 (Id.)
4 The state court’s order does not specify what PPCV sought an accounting of. And the
Court does not have PPCV’s complaint in that forum before it. So the Court can only surmise
that PPCV sought an accounting of Colorado Springs’s records, as it was the only party to the
bond action.
5 It is unclear what the current status of the bond action is. The state court did not
specify whether its dismissal order was with or without prejudice. Relatedly, PPCV says that it
asked Colorado Springs to meet and confer regarding amendment of the complaint “to plead
taxpayer status,” among other things. (ECF No. 23 at 3–4 n.1.) PPCV also describes the
TABOR action as being “currently before the El Paso County Court.” (Id. at 4.) And in its Reply,
PPCV says that it filed a “motion pursuant to Rule 60 of the Colorado Rules of Civil Procedure.”
(ECF No. 53 at 5.)
A “malicious prosecution action cannot be brought until the underlying action is
concluded and the time for appeal of the underlying suit has passed.” Holick v. Burkhart, 2017
WL 67907, at *9 (D. Kan. Jan. 6, 2017). Because the bond action does not appear to have
reached a final disposition, for this reason alone the Court has great doubts about whether this
action could sustain a malicious prosecution claim. In any event, PPCV and Krayniak do not
make this argument. And more to the point, the Court dismisses the malicious prosecution
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DBG now asserts three claims in this action against PPCV and Krayniak based
on this prior litigation: (1) abuse of process; (2) malicious prosecution; and (3) tortious
interference. (ECF No. 22 at 12–14.) PPCV and Krayniak move to dismiss6 these
claims on the grounds that they are foreclosed by the Noerr-Pennington doctrine and
Colorado’s anti-SLAPP statute. (ECF Nos. 23, 36.) Krayniak echoes these arguments
and separately asserts a Rule 12(b)(6) argument. (See generally ECF No. 36.)
II. 	DISMISSAL STANDARDS
A. 	ANTI-SLAPP DISMISSAL STANDARD
As a threshold matter, the Court addresses—and summarily rejects—DBG’s
argument that “Colorado’s anti-SLAPP statute does not apply in federal court.” (ECF
No. 32 at 15.) The undersigned has already held the direct opposite in a past case.
Coomer v. Make Your Life Epic LLC, 659 F.Supp.3d 1189, 1197–1198 (D. Colo. 2023).
DBG cites Coomer in its Responses but fails to acknowledge its direct applicability to
this issue. (Id. at 3, 10.) Regardless, the Court reiterates the conclusion it reached in
Coomer: Colorado’s anti-SLAPP statute applies in federal court.
In 2019, Colorado enacted its anti-SLAPP statute in an effort to “discourage
strategic lawsuits against public participation.” Avodah Farms v. O'Hara-Rusckowski,
2025 WL 1676509, at *3 (D. Colo. June 13, 2025) (quoting Coomer, 659 F.Supp.3d at
1196). The statute’s purpose is to “encourage and safeguard the constitutional rights of
claim because DBG does not satisfy all its legal elements. So the Court does not entertain this
issue any further.
6 The Court must note that the background section of PPCV’s Motion is woefully
unhelpful. It does not clearly lay out the pertinent background of this case; instead, it focuses
mainly on relitigating only one of the three judicial proceedings underlying this case. (ECF No.
23 at 1–4.) But for DBG’s background sections in its responses (and its complaint), the Court
would truly have no idea what this case was about.
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persons to petition, speak freely, associate freely, and otherwise participate in
government to the maximum extent permitted by law and, at the same time, to protect
the rights of persons to file meritorious lawsuits for demonstrable injury.” Salazar v.
Pub. Tr. Inst., 522 P.3d 242, 246 (Colo. App. 2022) (citation omitted); see also Lind-
Barnett v. Tender Care Veterinary Ctr., Inc., 580 P.3d 573, 575 (Colo. 2025) (explaining
that the anti-SLAPP statute is designed “to safeguard . . . against those who attempt to
use litigation to chill speech”). It provides a procedural mechanism, through a special
motion to dismiss, whereby the district court can weed out weak cases that tend to chill
speech. § 13-20-1101(3)(a).
That procedural mechanism involves a two-step analysis. First, the defendant
must show that the plaintiff’s claims fall within the ambit of the statute. § 13-20-
1101(3)(a). The General Assembly has identified four acts that qualify for statutory
protection:
(I) Any written or oral statement or writing made before a
legislative, executive, or judicial proceeding or any other
official proceeding authorized by law;
(II) Any written or oral statement or writing made in
connection with an issue under consideration or review by a
legislative, executive, or judicial body or any other official
proceeding authorized by law;
(III) Any written or oral statement or writing made in a place
open to the public or a public forum in connection with an
issue of public interest; or
(IV) Any other conduct or communication in furtherance of
the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public
issue or an issue of public interest.
§ 3-20-1101(2)(a).
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If the defendant clears this first hurdle, the burden shifts to the plaintiff to show a
“reasonable likelihood” of prevailing on their claims at trial. § 13-20-1101(3)(a).
Demonstrating a “reasonable likelihood” of success is a “minimal burden.” Moreau v.
U.S. Olympic & Paralympic Comm., 641 F.Supp.3d 1122, 1133 (D. Colo. 2022); see
also Nat’l Abortion Fedn v. Ctr. for Med. Progress, 2018 WL 5879786, at *4 (N.D. Cal.
Nov. 7, 2018), aff’d, 793 F. App’x 482 (9th Cir. 2019) (opining that the “required
probability [of prevailing] need not be high” in the second step of the anti-SLAPP
analysis) (cleaned up)).
“At step two, if the special motion mounts a legal challenge—i.e., attacks the
legal sufficiency of the plaintiff's allegations—then the trial court reviews the motion
under the standards articulated in Rule 12(b)(6).” Avodah Farms, 2025 WL 1676509, at
*3 (citing Timmins v. Henderson, 2023 WL 2466020, at *3 (D. Colo. Mar. 10, 2023)).
“But if the motion raises a factual challenge (or in other words, challenges the accuracy
of the factual allegations), then Rule 56 standards apply.” Id. (citing Moreau, 641
F.Supp.3d at 1133). In this latter situation, courts must generally allow discovery to
proceed before resolving a factual challenge to an anti-SLAPP motion. Coomer, 659
F.Supp.3d at 1203.
“If the plaintiff makes this showing [at step two], the case proceeds; if they do not,
the case is dismissed.” Lind-Barnett, 580 P.3d at 575.
B. 	RULE 12(b)(6) DISMISSAL STANDARD
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, 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). In deciding a motion under Rule 12(b)(6), the Court must “accept as true all
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well-pleaded factual allegations . . . and view these allegations in the light most
favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010)
(internal quotation marks omitted). The plaintiff may not rely on mere labels or
conclusions, “and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted).
III. 	ANALYSIS
PPCV and Krayniak contend that DBG’s claims must be dismissed under
Colorado’s anti-SLAPP statute because they are based on constitutionally protected
activity—namely, PPCV’s “lawful, linear exhaustion of judicial remedies available under
Rule, Statute, and Colorado’s Constitution.” (ECF No. 23 at 9.) Relatedly, they contend
that PPCV’s petitioning activities are immune under the Noerr-Pennington doctrine. (Id.
at 9; ECF No. 36 at 7.) Finally, Krayniak contends that DBG does not state a claim
under Rule 12(b)(6). (ECF No. 36.) Save one exception (explained below), the Court
rejects all three contentions.
A. 	THE SHAM EXCEPTION TO PETITION IMMUNITY
At the outset, the Court observes that PPCV and Krayniak’s Motions largely
center around the notion that they are immune from liability for twice suing DBG in state
court and removing one of those actions to federal court. (See generally ECF Nos. 23,
36.) Indeed, the vast majority of their anti-SLAPP arguments are just a repackaging of
their refrain that the Noerr-Pennington doctrine immunizes them from liability for
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initiating the prior lawsuits. (Id.) Given the centrality of the immunity question to the
Motions, the Court resolves that issue before addressing the anti-SLAPP and Rule
12(b)(6) arguments.
1. 	APPLICABLE LAW
“The First Amendment protects ‘the right of the people . . . to petition the
Government for a redress of grievances.’” CSMN Invs., LLC v. Cordillera Metro. Dist.,
956 F.3d 1276, 1282 (10th Cir. 2020). “The Supreme Court has ‘recognized this right to
petition as one of ‘the most precious of the liberties safeguarded by the Bill of Rights,’
and . . . explained that the right is implied by ‘[t]he very idea of a government, republican
in form . . . .’” Id. (quoting BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524–25 (2002)).
“Immunity flows from this right, protecting those who seek redress through the courts
from liability for petitioning activities.” Id.
This immunity principle originates from the antitrust context, where it is referred
to as the Noerr-Pennington doctrine. United Mine Workers of Am. v. Pennington, 381
U.S. 657 (1965). That doctrine teaches that defendants do not commit an antitrust
violation merely by trying to influence public officials—even if their ultimate goal in doing
so is to exclude competition. Id. at 669. Put another way, “the Sherman Act does not
prohibit . . . persons from associating . . . in an attempt to persuade the [government] to
take particular action with respect to a law that would produce a restraint or a
monopoly.” BE & K, 536 U.S. at 525; see also Van Sant & Co. v. Town of Calhan, 83
F.4th 1254 (10th Cir. 2023) (“Thus, the Noerr-Pennington doctrine ‘exempts from
antitrust liability any legitimate use of the political process by private individuals, even if
their intent is to eliminate competition.’”) (citation omitted). This is because the Petition
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Clause protects legitimate petitioning activities. Id. “In this Circuit, [Noerr-Pennington]
immunity extends beyond antitrust situations.” CSMN Invs., LLC, 956 F.3d at 1283.
Outside the antitrust situation, however, courts refer to the immunity concept as
“Petition Immunity.”7 Id.
Importantly, the “broad immunity” guaranteed by the Petition Clause is not
absolute. CSMN Invs., LLC, 956 F.3d at 1283; see also United States v. Ambort, 405
F.3d 1109, 1117 (10th Cir. 2005) (“As we have acknowledged, ‘the right to petition is not
an absolute protection from liability.’”) (citation omitted). In order to ensure that litigants
do not “use the courts to harass enemies with impunity,” the Supreme Court has crafted
an exception that “disallow[s] immunity for ‘sham’ petitioning . . . .” CSMN Invs., LLC,
956 F.3d at 1283. In deciding whether a lawsuit constitutes “sham petitioning,” the court
must consider (1) “whether the petitioning has an objectively reasonable basis,” and (2)
if not, “what is the subjective intent behind the petitioning?” Id. at 1283–84. That is, a
litigant’s subjective intent in bringing a suit matters only if the suit had no objectively
reasonable basis in the first place. Id. Losing in the underlying lawsuits is instructive
but not determinative on whether the suits were objectively baseless. Id.
The Colorado Supreme Court has set forth a similar three-part test for
determining whether a judicial proceeding constitutes a sham. Protect Our Mountain
Environment, Inc. v. Dist. Court, 677 P.2d 1360 (Colo. 1984) (“POME”). “Courts must
first determine whether the suing party presented sufficient facts to permit the court to
7 DBG says the Noerr-Pennington “doctrine only applies to immunize litigants from
antitrust liability, and so has no application to this case.” (ECF No. 52 at 6 (emphasis in
original).) This is true in a technical sense, but DBG is correct to “assum[e] [PPCV] intends to
claim immunity under the Petition Clause.” (Id.) The difference between the names is mere
semantics here.
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reasonably conclude that the defendant's action was devoid of objectively reasonable
factual support or, if so supported, was lacking a cognizable basis in law.” City of
Aurora v. 1405 Hotel, LLC, 371 P.3d 794 (2016) (citing POME, 677 P.2d at 1370). “If
the court finds that this showing has been made, it must determine whether the plaintiff
presented sufficient facts to permit the court to reasonably conclude that the defendant
brought its action primarily for harassment or some improper purpose.” Id. “Last, the
plaintiff must show that the defendant's petitioning activity had the capacity to adversely
affect a legal interest of the plaintiff.” Id.
2. 	OBJECTIVE BASELESSNESS
Applying these principles, the Court concludes that DBG has presented strong
evidence demonstrating that PPCV and Krayniak are not entitled to Petition Immunity
because the Rule 106 action and the bond action (but not the federal action) were sham
proceedings.
The Court begins by analyzing the Rule 106 action. There, the state court
dismissed PPCV’s action with prejudice after determining that the applicable legal
standard—whether “any competent evidence” supported Colorado Springs’s approval of
DBG’s affordable housing development plans—did not permit it to second-guess that
decision because it was supported by competent record evidence. (ECF No. 22-1 at 7.)
In reaching this conclusion, the court observed that PPCV did “not cite” the applicable
“section of the City Code in its briefs,” nor explain “how the submitted plans fail to meet
the requirements of those Code sections or how the City abused its discretion with
regard to those Code sections when the City approved the submitted plans.” (Id. at 5.)
Instead, PPCV simply insisted that Colorado Springs should have credited its evidence
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more than its opponents’ evidence.
But that was not the operative standard in the Rule 106 action. Again, the only
issue that mattered in that proceeding was whether the City’s appeal denial was
supported by competent evidence. In the Court’s view, failing to cite—let alone apply—
the applicable legal standard constitutes objective baselessness under the CSMN Invs.,
LLC and POME decisions. And nothing about the state court’s analysis otherwise
suggests that it considered PPCV’s arguments in defense of its suit to have been time-
worthy. Cf. CSMN Invs., LLC, 956 F.3d at 1288 (holding that the sham exception did
not apply where “both the district and appellate courts submitted lengthy opinions
containing in-depth analysis, treating Appellees’ arguments as time-worthy though
ultimately unpersuasive”). Hence, the Court deems the Rule 106 action as objectively
baseless.
The Court next addresses DBG’s claim that the federal action constitutes sham
petitioning in and of itself. (ECF No. 32 at 6–7.) PPCV and Krayniak do not appear to
dispute the proposition that the federal action can be analyzed as a standalone,
objectively baseless petition to the judiciary. (See generally ECF Nos. 35, 53.) On the
contrary, they argue that the federal action constitutes protected petitioning activity—
implicitly conceding that the federal action is itself a standalone action conducive to an
independent sham petitioning analysis. (See ECF No. 53 at 4 (arguing that the removal
of the declaratory judgment action constitutes petitioning under Colorado’s anti-SLAPP
statute).)
Whether a removal proceeding, like the federal action, can constitute petitioning
independent of the underlying state action appears to be an unanswered question in
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this Circuit. The parties do not cite to authority on this specific issue, and the Court has
not located any either. The Court has, however, identified authority stating that “[a]
removed action is not separate from the state action; rather, it is a continuation of it.”
Sawyer v. USAA Ins. Co., 839 F.Supp.2d 1189, 1223 (D. N. Mex. March 8, 2012)
(emphasis added). In this way, a removal is somewhat similar to an appeal, in that it is
just another phase of the same action. The Tenth Circuit has concluded that losing a
series of appeals stemming from the same underlying action is not tantamount to losing
multiple, independent suits. See CSMN Invs., LLC, 956 F.3d at 1288 (concluding that
losing before a local board, the state district court, and the Colorado Court of Appeals
did not constitute “multiple suits . . . on the same issue” because “[e]ach of these
appeals originated from the same case”). Extending this logic, the Court concludes that
the federal action cannot be analyzed for objective baselessness independent of the
Rule 106 action. As such, the Court does not base its Order on whether the federal
action is independently objectively baseless or brought for improper purposes.8
This last point brings the Court to PPCV and Krayniak’s related argument that
DBG cannot defeat Petition Immunity because it fails to show “a pattern of baseless,
repetitive claims.” (ECF No. 23 at 9.) PPCV and Krayniak rely on the CSMN Invs., LLC
decision in support of this argument. (Id.) But that case does not help them. In CSMN
8 Were the Court to further analyze this issue, however, it would conclude that the
federal action here was objectively baseless. Judge Dominguez Braswell recommended a
remand based on the basic principle that federal question jurisdiction cannot be predicated on
an asserted defense. (ECF No. 22-2 at 6.) In adopting the Recommendation, Judge Sweeney
noted that “PPCV did little, if anything, to address Magistrate Judge Dominguez Braswell’s
findings.” (ECF No. 22-3 at 4.) Perhaps worst of all, DBG had already voluntary dismissed the
basis of the removal proceedings by the time these two federal judges had ruled on PPCV’s
filings. Yet PPCV did not move to dismiss the federal action in the face of all this. In the Court’s
view, this strongly indicates objective baselessness and bad faith.
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Invs., LLC, the Circuit adopted the two-part analysis outlined in Prof’l Real Estate Inv’rs,
Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993), which does not require a
pattern showing. See CSMN Invs., LLC, 956 F.3d at 1287 (“So, for these reasons, we
adopt Professional Real Estate’s sham-petitioning test for determining whether conduct
is a sham, such that it loses Petition Clause immunity.”). To the extent the Circuit
considered whether a pattern showing was necessary, it did so only to the limited extent
that it was rejecting the Appellant’s “alternative basis for deeming Appellees’ petitioning
a ‘sham’” under the California Motor test, which does appear to permit the finding of
sham litigation where the plaintiff can show a slew of baseless proceedings. Id. at 1288
(citing Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972)) (emphasis
added). Hence, the Court holds that a plaintiff need not show a pattern of baseless,
repetitive litigation to defeat Petition Immunity under the sham litigation exception. The
Court does not read CSMN Invs., LLC as requiring otherwise.9
Even assuming a pattern of baseless, repetitive claims is necessary to defeat
Petition Immunity, however, the Court finds that DBG would satisfy that requirement as
well. The objective baselessness of the bond action is even more apparent than the
Rule 106 action. In the bond action, the state court dispensed with PPCV’s claims after
initially concluding that PPCV did not have standing to assert them. (ECF No. 22-4.)
PPCV did not have standing, the court explained, because it had not “identified any of
its members, nor . . . argued that it is a taxpayer,” as is necessary to plead associational
standing. (Id. at 2.) 	The court described PPCV’s standing arguments as “conclusory”
9 Although not binding here, the Court observes that Colorado courts do not require a
pattern of baseless petitioning either. See 1405 Hotel, LLC, 371 P.3d at 803 (“A repetitious
pattern of baseless litigation is not necessary for application of the sham exception.”).
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and “not plausible.” (Id. at 2.)
In addition, the state court did not rest its dismissal decision on standing alone.10
The court went on to conclude that PPCV’s case failed on the merits as well. This was
so, the court reasoned, because a TABOR claim requires the existence of some sort of
“district debt”—and no district debt was created as a result of DBG’s development grant.
(Id.) The court described PPCV’s arguments to the contrary as “conclusory,”
“generalized,” “merit[less],” and unsupported by “any facts []or law.” (Id. at 2–4.)
(Notice a theme here?) On top of that, the court rejected out of hand PPCV’s request
for “an accounting” because PPCV had not even asserted a CORA claim in its
complaint. (Id. at 4.) Perhaps most notably, the court reached all these conclusions in
very little time: The court ruled on DBG’s dismissal motion in less than two months after
PPCV had filed the action and wasted only three pages of paper in doing so.
For all these reasons, the Court easily concludes that DBG has sufficiently
pleaded that the Rule 106 action and the bond action were objectively baseless. To the
extent a showing of a pattern of baseless litigation is necessary, DBG has made that
showing here as well.
10 The parties have not briefed this issue, but the Court’s quick research seems to
suggest that a loss for a lack of standing does not always constitute objective baselessness.
Compare HRH, LLC v. Teton County, Wyoming, 2018 WL 8131667 at *3 (D. Wyo. Oct. 11,
2018) (concluding that plaintiff sufficiently pleaded objective baselessness where organization
filed “three appeals including repeated findings of no standing”), with City of Aurora v. 1405
Hotel, LLC, 371 P.3d 794 (Colo. App. 2016) (“Finally, we note that the fact that the division ruled
in 1405 Hotel I that the Hotels lacked standing to bring their first, second, and fourth claims does
not mean that the claims lacked a reasonable factual basis or a cognizable basis in law,
especially where the division's analysis of the standing issue resulted in a published decision.”).
Here, though, in the Court’s view the state court’s standing conclusion does show
objective baselessness. PPCV did not even identify who its members were, so the state court
had no way of meaningfully analyzing the associational standing issue.
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3. 	SUBJECTIVE INTENT AND ADVERSE LEGAL IMPACT
Having reached this threshold conclusion on objective baselessness, the Court
next considers the “subjective intent” behind PPCV’s filing of these actions and what
impact those actions allegedly had. CSMN Invs., LLC, 956 F.3d at 1283. DBG argues
that PPCV’s “primary objective” in filing its “specious legal filings” was to “delay[] the
Project.” (ECF No. 32 at 8.) Citing the Van Sant & Co. decision, PPCV counters that its
right to petition the judiciary “is absolute, regardless of motive.” (See, e.g., ECF No. 23
at 9; ECF No. 53 at 5.)
PPCV is mistaken for at least three reasons. First, nothing in Van Sant & Co
supports the broad proposition that the right to petition is absolute. Second, the Tenth
Circuit has said the exact opposite for at least 25 years. See, e.g., Ambort, 405 F.3d at
1117 (“As we have acknowledged, ‘the right to petition is not an absolute protection
from liability.’”) (quoting Cardtoons, L.C. v. Major League Baseball Players Ass’n, 208
F.3d 885, 891 (10th Cir. 2000)). And third, the CSMN Invs., LLC decision expressly
directs courts to consider a petitioner’s motive for bringing a suit, so long as the court
first concludes that the suit was objectively baseless. Id. at 1283. The Court has done
that here.
Turning to subjective intent, then, the Court concludes that DBG has presented
ample evidence—even at this early stage of the case—that PPCV and Krayniak’s
subjective intent in litigating the state actions was to stop or delay the development from
moving forward. PPCV’s communications with its members and counsel confirm that
delay was very much on its mind. In a letter to its members, PPCV stated: “The Board
is considering donating up to $50,000 (from reserves) to help pay for the existing legal
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fees that have stopped the development for over 18 months.” (ECF No. 22-5 at 2
(emphasis added).) Moreover, in what appears to be a flyer circulated to its members,
PPCV wrote: “This is our chance to stop [the development] for good after being able to
thankfully delay for 2 years.” (ECF No. 22-6 at 2 (emphasis added).) And in a
December 2024 e-mail detailing PPCV’s litigation plans, PPCV’s counsel advised
PPCV’s members as to the status of the Rule 106 action, noting that “[t]he city will not
issue the Private Activity Bonds (PAB) until the Rule 106 Appeal concludes. All other
funding is contingent on issuance of the PABS.” (ECF No. 32-2 at 3 (emphasis added).)
The e-mail then went on to list “key dates” DBG needed to meet to acquire the funding
necessary to complete the development. (Id.)
Tellingly, PPCV and Krayniak fail to even attempt to explain why these
communications do not reflect poorly on their true motives for bringing the Rule 106
action and the bond action. (See generally ECF Nos. 23, 35, 36, 53.) They instead
repeat the same conclusory statement: that their petitioning was made in good faith.
(Id.)
Thus, the record already strongly supports DBG’s theory that PPCV and
Krayniak initiated the state actions not with the intent of winning those cases on the
merits, but instead to ensure that the litigation would drag on long enough to prevent
DBG from meeting its “key” funding deadlines. The Court holds that the Petition Clause
does not immunize conduct of this kind. See Rule 11(b)(1) (providing that a legal filing
should not be “presented for any improper purpose, such as to . . . cause unnecessary
delay”).
Lastly, there can be no reasonable doubt that this delay has caused DBG
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financial hardship. POME, 677 P.2d at 1370. It submits a declaration stating that it
“has lost a significant amount of money because of the” PPCV’s litigation tactics.11
(ECF No. 32 at 9.) And in its motion to amend its first amended complaint, DBG
elaborates that it was “required to pay liquidated damages to the seller of the Project lot
as a result of the Project not proceeding as scheduled, incurr[ed] significant legal fees to
attempt to facilitate the closure of the Project following Defendants’ interference, and
incurr[ed] extraordinary land use penalties.” (ECF No. 62 at 3–4.) DBG adds that it has
“also suffered harm from the delay in the form of lost rents, increased construction
costs, and other injuries.” (Id. at 4.)
In sum, the Court concludes that DBG has sufficiently alleged that the sham
exception applies in this case. Accordingly, PPCV and Krayniak are not immune under
the Petition Clause for bringing the two state court actions.
B. 	APPLYING THE ANTI-SLAPP STATUTE
PPCV and Krayniak contend that their petitioning activities fall within the ambit of
Colorado’s anti-SLAPP statute and that DBG is not reasonably likely to prevail on its
abuse of process, malicious prosecution, and tortious interference claims. (ECF Nos.
23, 36.) DBG does not dispute that the anti-SLAPP statute applies to PPCV’s prior
litigation activities but maintains that “the Motion should be denied under step two of the
anti-SLAPP statute analysis”—i.e., the reasonable likelihood prong. (ECF No. 32 at 9.)
With the exception of its malicious prosecution claim, the Court concludes that DBG is
11 The Court understands that, since the Motions were filed, DBG has been able to close
on the development. (See ECF No. 62 at 4 (updating the Court that “the Project has closed”).)
As a result, DBG seeks to amend its first amended complaint to seek “narrower relief” based
only on the delay, not the complete stoppage of the development project. (Id.)
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reasonably likely to prevail on its claims.
1. 	WHEN TO PERFORM THE ANTI-SLAPP ANALYSIS
Initially, the Court notes that DBG urges it to abstain from ruling on the anti-
SLAPP issue at the dismissal stage because the Motions lodge factual challenges to
the first amended complaint. (Id.) The Court agrees that at least a portion of the
Motions pertain to the factual elements of DBG’s claims. As explained below, all three
claims involve elements that probe PPCV’s intent for bringing the prior actions. “Intent
is a factual determination, not a question of law.” Primerica Life Ins. Co. v. Arnold, 2023
WL 2631783, at *5 (D. Kan. Mar. 24, 2023). And where a defendant challenges the
factual sufficiency of a claim under the anti-SLAPP statute, courts must ordinarily let
discovery proceed. Coomer, 659 F.Supp.3d at 1203.
Nevertheless, the Court thinks this situation is an exception to that general rule
because, as established above, DBG has already presented a large amount of evidence
on the factual issue of PPCV’s intent in bringing the state actions. Moreover, as the
Court will explain shortly, DBG’s malicious prosecution claim must be dismissed solely
because of a legal deficiency. Thus, ruling on the anti-SLAPP motion at this juncture is
prudent because it will obviate the need for the parties to conduct needless discovery or
otherwise confer as to the malicious prosecution claim. Importantly, DBG will not be
prejudiced by the Court resolving the anti-SLAPP issue before discovery has run its
course because, to the extent it loses at this juncture, it is only on a legal issue. See
Hewitt v. Rice, 119 P.3d 541, 544 (Colo. App. 2004) (“In the context of a malicious
prosecution action, whether the underlying claim was resolved in favor of the party
prosecuting the malicious prosecution claim is a question of law.”).
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Hence, the Court elects to perform the anti-SLAPP analysis now and consider
the only contested issue here: whether DBG is reasonably likely to prevail on its claims.
2. 	ABUSE OF PROCESS
PPCV and Krayniak contend that DBG is not reasonably likely to prevail on its
abuse of process claim. (ECF No. 23 at 11.) To prevail on that claim, DBG must show
“(1) an ulterior purpose in the use of judicial proceedings; (2) willful actions by a
defendant in the use of process that are not proper in the regular conduct of a
proceeding; and (3) damages.” Hewitt v. Rice, 154 P.3d 408, 414 (Colo. 2007) (citing
Trask v. Nozisko, 134 P.3d 544, 553 (Colo. App. 2006)).
PPCV and Krayniak focus only on the first element, arguing that they had no
“ulterior motive” in bringing the Rule 106 action and the bond action. (Id.) Moreover,
PPCV and Krayniak continue, DBG “cannot meet that burden because, even though
they have lost, each action herein was privileged, well founded, and brought under
statute or rule for the primary aims intended, that being defeating the project by
pressing and exhausting all administrative and judicial remedies available.” (Id. at 13.)
But the Court has already found that DBG’s evidence suggests just the opposite:
PPCV’s written communications with its members and counsel indicate that their actual
purpose for bringing the state actions was to cause protracted delay—not defeating the
development with a legitimate judicial victory. Moreover, the Court emphasizes that the
reasonable likelihood inquiry is not an exacting standard. Moreau, 641 F.Supp.3d at
1133. For these reasons the Court rejects PPCV and Krayniak’s argument that DBG is
not reasonably likely to prevail on its abuse of process claim.
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3. 	MALICIOUS PROSECUTION
PPCV and Krayniak contend that DBG is not reasonably likely to prevail on its
malicious prosecution claim. (Id. at 11.) To prevail on that claim, DBG must show:
“(1) the defendant contributed to bringing a prior action against the plaintiff; (2) the prior
action ended in favor of the plaintiff; (3) no probable cause; (4) malice; and (5)
damages.” Thompson v. Md. Cas. Co., 84 P.3d 496, 503 (Colo. 2004).
PPCV and Krayniak again challenge only the first element. (Id. at 10.)
According to them, neither state court action, nor the federal action, were “brought
against” DBG. (Id.) As a result, PPCV and Krayniak posit, DBG cannot prevail on its
malicious prosecution claim as a matter of law. (Id.)
The Court agrees that DBG is not reasonably likely to prevail on its malicious
prosecution claim because it was not a party in the underlying state court actions, at
least in the context of a malicious prosecution claim. The Rule 106 action originally
involved only PPCV (plaintiff), Colorado Springs (defendant), and the City Council
(defendant). (ECF No. 22-1 at 1.) True, DBG successfully intervened in that action and
became an intervenor-defendant. (ECF No. 22-1 at 1.) So, looking at the caption of the
Rule 106 action, DBG was clearly on the opposite side of the “v.” from PPCV. (Id.)
But DBG does not cite, and the Court has not found, any authority providing that
an intervenor can assert a malicious prosecution claim. (ECF No. 32 at 13–14.) And to
the extent such authority exists, the Court has located recent cases—albeit outside this
federal jurisdiction—declining to permit non-original parties in an underlying action to
later assert a malicious abuse of process claim.12 See Council of Unit Owners of the
12 The elements of Maryland’s malicious abuse of process claim appear to be
substantially similar to the elements of Colorado’s malicious prosecution claim. See Havilah
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Millrace Condo. Inc. v. Guinot, 2025 WL 3227722, at *8 (Md. Ct. Spec. App. Nov. 19,
2025) (“Here, the putative class members were not original parties to the underlying
action; therefore, the HOAs cannot sue on behalf of them.”); see also One Thousand
Fleet Ltd. P'ship v. Guerriero, 346 Md. 29, 42 n.4 (1997) (collecting cases (albeit old
cases) holding “that the malicious use of process plaintiff must have been an original
party to the underlying action”). The Court finds this caselaw persuasive. Since DBG
was not an original party to the Rule 106 action, the Court holds that, as a matter of law,
it cannot prevail on its malicious prosecution claim predicated on that action.
Nor can DBG assert a malicious prosecution claim based on the federal action.
As explained above, a removal proceeding does not constitute a lawsuit independent of
the derivative state court proceedings. The removal was merely a continuation of that
original state court proceeding. Sawyer, 839 F.Supp.2d at 1223. Hence, DBG cannot
assert a malicious prosecution claim based on the federal action either.
Lastly, DBG’s malicious prosecution claim cannot proceed based on the bond
action any more than it can proceed based on the Rule 106 action. DBG was not a
party in the bond action (original or otherwise); rather, that case involved only PPCV
and Colorado Springs. (ECF No. 22-4.) Furthermore, unlike the Rule 106 action, DBG
did not even intervene in the bond action. (Id.)
DBG resists this conclusion by arguing that the bond action (and the Rule 106
Real Prop. Servs., LLC v. Early, 216 Md. App. 613, 622 (2014) (requiring “(1) a prior civil
proceeding [was] instituted by the defendant; (2) the proceeding [was] instituted without
probable cause; (3) the prior civil proceeding [was] instituted . . . with malice; (4) the
proceedings [were] terminated in favor of the plaintiff; and (5) the plaintiff must establish that
damages were inflicted upon the plaintiff by arrest or imprisonment, by seizure of property, or
other special injury which would not necessarily result in all suits prosecuted to recover for a like
cause of action.”).
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action, for that matter) “undisputedly sought relief adverse to [its] property interests in
the Project.” (ECF No. 32 at 13.) DBG then points to the Hewitt decision, wherein the
Colorado Supreme Court recognized a malicious prosecution claim based on the filing
of a notice of lis pendens. 154 P.3d at 415.
But DBG does not allege that it filed a notice of lis pendens with respect to the
development in any of the underlying state lawsuits. So DBG’s reliance on Hewitt is
unavailing here. Contrary to DBG’s suggestion, merely having an interest in the
outcome of a case cannot be alone sufficient to state a malicious prosecution claim.
(Id.) Were that the law, the first element of the malicious prosecution claim—requiring
“that the defendant contributed to bringing a prior action against the plaintiff”—would be
meaningless. Thompson, 84 P.3d at 503 (emphasis added).
For these reasons, the Court concludes that DBG is not reasonably likely to
prevail on its malicious prosecution claim. Accordingly, that claim must be dismissed.
4. 	TORTIOUS INTERFERENCE
PPCV and Krayniak also contend that DBG is not reasonably likely to prevail on
its tortious interference claim. (ECF No. 23 at 11.) To prevail on that claim, DBG must
show:
(1) existence of a valid contract between plaintiff and a third
party; (2) knowledge by the defendant of this contract, or
knowledge of facts which should lead him to inquire as to the
existence of the contract; (3) intent by the defendant to
induce a breach of contract by the third party; (4) action by
the defendant which induces a breach of the contract; and
(5) damage to the plaintiff.
Douglas v. Kinnebrew, 2023 WL 12058987, at *6 (Colo. App. Nov. 30, 2023) (quoting
Comtrol, Inc. v. Mountain States Tel. & Tel. Co., 513 P.2d 1082, 1084 (Colo. 1973)).
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PPCV and Krayniak again offer only one argument as to this claim: that their
petitioning activities are immune. (See ECF No. 22 at 13–14 (“Just as with Abuse of
Process, Plaintiff cannot show a likelihood of prevailing on its intentional interference
claim because, as a matter of law, it cannot establish the protected acts were
‘improper.’ Where tort claims are based on lawful conduct or speech protected by the
Constitution, such lawful conduct is insufficient as a matter of law to establish the
required element of improper conduct.”).) But the Court has repeatedly found otherwise
throughout this Order. So the Court rejects PPCV and Krayniak’s argument that DBG is
not reasonably likely to prevail on its tortious interference claim.
In all, the Court grants in part and denies in part the anti-SLAPP Motion. (ECF
No. 23.) DBG’s abuse of process and tortious interference claims may proceed; its
malicious prosecution claim may not.
C. 	RULE 12(b)(6)
Finally, “Krayniak aver[s] that Plaintiff’s complaint fails to state a claim against
them because (1) the subject act undertaken by PPCV were statutorily and
Constitutionally protected, supra, (2), infra, Plaintiff has not, and cannot, adequately
pled facts sufficient to pierce the corporate veil, and (3) Plaintiff’s claims lack merit.”
(ECF No. 36 at 4.)
Although Krayniak’s Motion purports to separately challenge the factual
sufficiency of DBG’s claims under the Rule 12(b)(6) standard, he fails to raise
arguments the Court has not already addressed in its analysis of the Petition Immunity
and anti-SLAPP issues. (See generally id.) The only unique argument he makes
separate from PPCV’s anti-SLAPP Motion is that DBG has not sufficiently pleaded alter
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ego or piercing the corporate vail. (Id. at 9.)
To pierce the corporate veil,13 DBG must show that “(1) the corporate entity is an
alter ego or mere instrumentality; (2) the corporate form was used to perpetrate a fraud
or defeat a rightful claim; and (3) an equitable result would be achieved by disregarding
the corporate form.” Martin v. Freeman, 272 P.3d 1182, 1184 (Colo. App. 2012).
Krayniak develops an argument only as to the second element, asserting that
DBG cannot show that he allegedly used PPCV’s corporate form to "perpetrate a fraud
or defeat a rightful claim.” (Id. at 10.) But the Court has already found that DBG
strongly alleges that Krayniak, an active member in PPCV, used that “single purpose”
corporation to bring two state court actions with the intent of stymying DBG’s ability to
start developing the affordable housing project. (ECF No. 23 at 2.) In the Court’s view,
these allegations are sufficient to show Krayniak used PPCV’s corporate form to
perpetrate a fraud.
Accordingly, the Court rejects Krayniak’s challenge to DBG’s alter ego theory of
liability.
IV. 	CONCLUSION
For the foregoing reasons, the Motions are GRANTED IN PART AND DENIED
IN PART. (ECF Nos. 23, 36.) More specifically,
1. 	PPCV’s Motion is GRANTED to the extent it seeks dismissal of DBG’s
13 The Court observes that DBG does not formally assert a veil piercing theory of liability
in its first amended complaint. (ECF No. 22.) But PPCV and Krayniak clearly understand DBG
to intend to make such an argument at trial, so the Court elects to assume the same.
Perhaps it would be prudent for DBG to formally add that claim and/or revamp its alter
ego allegations in its motion for leave to file the second amended complaint if it intends to assert
it. (ECF No. 62.)
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malicious prosecution claim. It is DENIED in all other respects. (ECF No. 23.)
2. 	Krayniak’s Motion is GRANTED to the extent he seeks to join PPCV’s
anti-SLAPP Motion. It is DENIED in all other respects. (ECF No. 36.)
3. 	The stay in this case is hereby LIFTED, consistent with the terms outlined
in Judge Dominguez Braswell’s order of October 27, 2025. (ECF No. 61.)
Dated this 28 th day of January, 2026.
BY THE COURT:
______________________
William J. Martínez
Senior United States District Judge
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