Toll Brothers, Inc. et al v. Gu et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-02884-PAB-CYC
TOLL BROTHERS, INC., a Delaware Corporation, et al.,
Plaintiffs,
v.
JEFFREY GU, an individual, et al.,
Defendants.
JEFFREY GU, an individual,
Counterclaim Plaintiff,
v.
TOLL BROTHERS, INC., a Delaware Corporation, et al.,
Counterclaim Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Cyrus Y. Chung, United States Magistrate Judge.
In 2022, counterclaim plaintiff (“the plaintiff”) Jeffrey Gu purchased a Toll Brothers
townhome in Wheat Ridge, Colorado. He later raised concerns about alleged construction defects
in the home. Finding Toll Brothers’ responses unsatisfactory, he created a number of entities
with names similar to Toll Brothers, their subsidiaries, and affiliated entities. Three Toll Brothers
entities sued him for trademark infringement, ECF No. 1, and the plaintiff answered and
counterclaimed, alleging nine causes of action against the three original Toll Brothers plaintiffs
and ten third-party defendants (collectively, “the defendants”). ECF No. 17. The defendants
collectively filed seven motions to dismiss, ECF Nos. 96, 106, 125, 129, 140, 142, 145, and one
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motion to compel arbitration in the alternative, ECF No. 132. Because all of the plaintiff’s causes
of action are barred on jurisdictional grounds or fail to state a cognizable claim, the Court
recommends GRANTING ECF Nos. 96, 106, 125, 129, 142, and 145, DENYING ECF Nos.
132 and 140 as moot, and DISMISSING the counterclaims.
BACKGROUND
For the purposes of this motion, the Court accepts the plaintiff’s well-pleaded factual
allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
1. 	The plaintiff buys a Toll Brothers home
Toll Brothers is a publicly traded company that builds and sells luxury homes in twenty-
four states. ECF No. 1 ¶¶ 24–25; ECF No. 17, Answer, ¶¶ 24–25.1 Like many large companies,
Toll Brothers consists of a parent company, defendant Toll Brothers, Inc., and numerous
subsidiaries and affiliated entities. See, e.g., ECF No. 17 ¶¶ 4, 26, 36, 48, 247, 258, 265, 267–69,
273–74; ECF No. 19-1 at 170–187, 255–260.2 Defendant Toll Southwest LLC (“Toll
Southwest”), incorporated in Delaware and registered as a foreign corporation in Colorado, is
one such subsidiary. ECF No. 17 ¶¶ 37, 265, 267; ECF No. 18-1 at 44, 46. Defendant TB
Proprietary Corp., which owns Toll Brothers’ registered service marks, is another. ECF No. 17
¶¶ 247, 251–53.
1 ECF No. 17 includes the plaintiff’s answer and counterclaim complaint (“the complaint”).
When citing to the numbered paragraphs in the answer portion, this Recommendation
specifically cites to “ECF No. 17, Answer.” All other citations to numbered paragraphs in ECF
No. 17 refer to the counterclaim complaint.
2 The plaintiff appended 201 exhibits spanning 1,486 pages to his counterclaim complaint. ECF
Nos. 18, 19, 20, 21. Throughout this Recommendation, citations to these exhibits are denoted by
the ECF document number and corresponding page number that appears at the top of the page.
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In early 2022, the plaintiff received emails advertising townhomes for a Toll Brothers
development in Wheat Ridge. ECF No. 17 ¶¶ 1, 8; ECF No. 18-1 at 2–3, 15–19. These emails
were sent from a domain name registered to Toll Brothers, Inc. and copied sales representatives
employed by the same entity. ECF No. 17 ¶¶ 2–3, 8–11, 13, 17; ECF No. 18-1 at 2–3, 15–19. In
response to these solicitations, the plaintiff submitted offers on two planned but as yet unbuilt
townhomes in the development. ECF No. 17 ¶¶ 27–29; ECF No. 18-1 at 31–32.
On February 12, 2022, the plaintiff signed an agreement to purchase one townhome in the
development from Toll Southwest, which is listed in the agreement as the “Seller.” ECF No. 17
¶¶ 34–35; ECF No. 18-1 at 34–42. The same day, the plaintiff paid $33,475 in earnest money to
another Toll Brothers entity, Toll Bros., Inc. ECF No. 17 ¶ 46; ECF No. 18-1 at 57.
During construction, the plaintiff’s independent inspector noted a number of deficiencies
in a September 12, 2022 report, ECF No. 17 ¶¶ 74–75; ECF No. 18-1 at 134–65, and the plaintiff
raised some of these concerns in an email with a Toll Brothers sales representative. ECF No. 18-
1 at 167–183. A few weeks later, the plaintiff observed deficiencies in the electrical system and
some of the wall studs, ECF No. 17 ¶¶ 96–110, 116–17; ECF No. 18-1 at 196, 198, 200, 202,
204, 210; however, there is no allegation that he communicated these concerns to Toll Brothers
or defendant City of Wheat Ridge (“the City”). Inspectors for the City, and its subcontractor,
defendant Charles Abbott & Associates (“CAA”), completed inspections for the home’s
electrical system, walls, and drywall without noting any deficiencies, ECF No. 17 ¶¶ 87–89, 94–
95, 111–15, 118; ECF No. 18-1 at 192, 194, 209, and the City’s Chief Building Official,
defendant Renee Meriaux, a CAA employee, subsequently issued a certificate of occupancy for
the home, certifying “that the building constructed . . . does comply with the Wheat Ridge
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Building Code,” and was approved for its intended use as a single-family residence. ECF No. 17
¶ 123; ECF No. 18-1 at 206.
The plaintiff closed on the home on January 19, 2023. ECF No. 17 ¶ 119; ECF No. 18-1
at 212–18. As with the purchase agreement, the closing disclosure listed the “Seller” as Toll
Southwest, ECF No. 17 ¶ 120; ECF No. 18-1 at 213, and Toll Southwest conveyed the property
to the plaintiff in a special warranty deed. ECF No. 17 ¶¶ 142–43; ECF No. 18-1 at 230–31 .
2. 	The plaintiff submits claims and investigates Toll Brothers
In 2023 and 2024, the plaintiff sent multiple warranty requests to Toll Brothers regarding
problems with his home. ECF No. 17 ¶¶ 162–168; ECF No. 19-1 at 11, 14, 18, 21. Toll Brothers
denied some of these requests as “beyond the scope of the warranty,” ECF No. 17 ¶ 166; ECF
No. 19-1 at 16, 19; ECF No. 20-1 at 140–44, but at least on one occasion, offered to conduct an
on-site inspection. ECF No. 19-1 at 22; ECF No. 20-1 at 140–44.
In June 2025, pursuant to Colorado law, the plaintiff sent Toll Brothers, Inc. two formal
notices of claim regarding structural defects in his townhome as precursors to a potential lawsuit.
ECF No. 17 ¶¶ 169–173; ECF No. 19-1 at 27–28, 30–31; see Colo. Rev. Stat. § 13-20-803.5.
Toll Brothers’ in-house counsel responded in a letter reviewing some of the plaintiff’s prior
warranty requests and Toll Brothers’ responses and, on behalf of Toll Brothers, “explicitly
request[ing] permission to view any known issues in [the plaintiff’s] home.” ECF No. 19-1 at
66–67. It is unclear from the complaint whether the plaintiff thereafter allowed an inspection, but
the defects were not resolved. ECF No. 17 ¶ 174.
Around this same time, the plaintiff began his own investigation of the Toll Brothers
corporate structure. Among other activities, the plaintiff contacted numerous Toll Brothers
executives and employees to ask for which particular entity they worked, ECF No. 17 ¶¶ 183–84,
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199–201, 439–61, researched them through LinkedIn, Toll Brothers, Inc.’s annual reports, and
other internet resources, id. ¶¶ 194, 409–16, 420, 422, 424, 427–28, 431, 434, 440, 466–70,
obtained and reviewed filings made by Toll Brothers entities in various states, id. ¶¶ 4, 23–26,
36–38, 48, 146, 158, 245–74, and compared the licenses, certificates of insurance, and statements
of authority for Toll Brothers on file with different Colorado counties, id. ¶¶ 275–293. He found,
for instance, that defendant Marsh USA LLC (“Marsh USA”) issued certificates of insurance
naming different Toll Brothers entities as the insured and providing different policy limits under
the same policy number. Id. ¶¶ 294–303; ECF No. 19-1 at 279–80; ECF No. 20-1 at 15–16, 18–
19, 21–22, 24–25, 27–28, 30–31, 33–34.
As part of his investigative efforts, the plaintiff also contacted many outside entities to
seek information about Toll Brothers. He contacted executives for defendant Felten Group, who
served as the engineering firm on the project, but they declined to provide the structural plans or
to indicate with which particular Toll Brothers entity Felten Group contracted. Id. ¶¶ 177–82;
ECF No. 19-1 at 41–45. He also had numerous communications with City employees about Toll
Brothers’ contractor’s license, certificate of insurance, and subdivision improvement agreement.
ECF No. 17 ¶¶ 204–232; ECF No. 19-1 at 85–89, 93–95, 97–110, 112–23, 125–28. In an email,
he requested that the City “[a]cknowledge” that the Toll Brothers license was improperly issued,
“[c]larify” whether the City intended to “revoke, amend, or re-issue” related permits, and to
“[p]rovide a written explanation of how this irregularity will be addressed” to protect
homeowners. ECF No. 17 ¶ 229; ECF No. 19-1 at 125–28.
The City responded to a number of the plaintiff’s communications, see ECF No. 19-1 at
86–89, 93–95, 97–107, but on July 1, 2025, Meriaux informed him that “the City is not required
to assist” in his research of Toll Brothers, and that she would “not continue to follow up on [his]
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questions as [he] pursue[s] his efforts vis-à-vis the contractor/builders.” ECF No. 17 ¶¶ 204, 207;
ECF No. 19-1 at 86. On July 10, 2025, the City Attorney, defendant Gerald Dahl, also told the
plaintiff that “the City has no need to enquire” about the Toll Brothers corporate structure and
“must decline to research on [his] behalf.” ECF No. 17 ¶ 223; ECF No. 19-1 at 102. Dahl
repeated this message upon continued inquiries from the plaintiff, see ECF No. 19-1 at 106, 112,
126, and on September 12, 2025, he sent the plaintiff a letter reiterating that the City would not
“join in research, assist or take independent action with respect to the Toll Brothers entities,” and
informed him that, at Dahl’s direction, City staff would request all his future communications be
made in writing. ECF No. 19-1 at 134–35. Dahl added that “your contacts have become
increasingly frequent and repetitive, and City staff have the right to be free from harassment.” Id.
at 135. Both Meriaux and Dahl emphasized that the City would continue to respond to open
records requests as required by law, id. at 85, 135, and the City did so. Id. at 137–44, 269–73.
Meanwhile, the plaintiff filed a complaint against Toll Brothers with the Colorado Real
Estate Commission (“the Commission”), claiming that Toll Southwest improperly sold him the
home without a licensed real estate broker because that Toll Brothers entity did not construct the
home or have its “officers, partners, or regularly salaried employees,” as permitted under a
statutory provision, sell him the home. ECF No. 17 ¶ 141; ECF No. 18-1 at 228; see Colo. Rev.
Stat. § 12-10-201(6)(b)(X). The Commission responded that its “review of the information and
materials provided does not suggest that a license law violation has taken place.” ECF No. 18-1
at 228.
On July 22, 2025, the plaintiff registered seven entities with the Colorado Secretary of
State using some iteration of the name “Toll,” “TB,” or “Toll Brothers,” registered a limited
liability company in Wisconsin named “Toll Southwest LLC,” and filed articles of incorporation
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in Florida for two similarly-named entities. ECF No. 1 at ¶¶ 31, 37–38; ECF No. 17, Answer,
¶¶ 31, 37–38. Two weeks later, Toll Brothers, Inc. sent the plaintiff a cease-and-desist letter
demanding that he immediately “dissolve the entities.” ECF No. 19-1 at 82; ECF No. 17 ¶ 203.
The plaintiff did not do so, ECF No. 1 ¶ 54; ECF No. 17, Answer, ¶ 54, and on September 12,
2025, Toll Brothers filed suit against the plaintiff and the Colorado and Wisconsin entities for
trademark infringement and related causes of action. ECF No. 1.
3. 	The plaintiff has a dispute with another homebuilding company
Around the same time as the plaintiff was investigating Toll Brothers, he was embroiled
in another conflict with a different homebuilder, defendant Risewell Homes Inc., formerly
known as The New Home Company (“TNHC”), and its independent contractor, defendant Bert
L. Howe & Associates, Inc. (“BHA”). ECF No. 17 ¶¶ 351–78. Like Toll Brothers, TNHC is
composed of a parent company and various subsidiaries and affiliated entities. Id. ¶¶ 471–73.
In 2024, the plaintiffs’ parents bought a TNHC home in Irvine, California. Id. ¶¶ 351-52;
ECF No. 20-1 at 106–111. The next year, the plaintiff made numerous warranty requests to
TNHC on their behalf and, subsequently, sent TNHC notice of claim letters for construction
defects under California law. ECF No. 17 ¶¶ 360–62. He also submitted complaints against
TNHC and its subsidiaries to the California Department of Real Estate, California State License
Board, and TNHC’s bond companies. Id. ¶¶ 372–73; ECF No. 20-1 at 120. TNHC hired BHA to
investigate the plaintiff’s construction defect claims, and the plaintiff also filed “various
complaints” against BHA to California state agencies. ECF No. 17 ¶ 376. As with Toll Brothers,
the plaintiff contacted TNHC employees to ask them for what entity they worked, id. ¶¶ 462–65;
ECF No. 21-1 at 152, 154, researched TNHC officers online, ECF No. 17 ¶¶ 475–77, 492, 494;
ECF No. 21-1 at 171–74, 177, 249, 253–56, and reviewed the companies’ licenses, registrations,
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and public disclosures. ECF No. 17 ¶¶ 471–74, 478–91, 493, 497–504; ECF No. 21-1 at 165,
167, 169, 179, 181–82, 184, 186, 188, 192–207, 209, 251, 258–72, 274–90, 292–557. He also
went to a TNHC worksite and took pictures, ECF No. 17 ¶¶ 363–67; ECF No. 20-1 at 373, 375;
ECF No. 21-1 at 2, and according to BHA, the plaintiff’s brother tried to enter its closed
corporate headquarters on one occasion “by attempting to defeat the key fob security features.”
ECF No. 20-1 at 137. Finally, on August 2, 2025, the plaintiff formed an entity in Colorado titled
the “The New Home Company Inc.” ECF No. 1 ¶ 47; ECF No. 17, Answer, ¶ 47.
Referencing these actions and others, TNHC sent the plaintiff four cease-and-desist
letters, ECF No. 17 ¶¶ 364, 374; ECF No. 20-1 at 113–115, 122–23, 125–31, 133–34, and BHA
sent him one, ECF No. 17 ¶ 377; ECF No. 20-1 at 136–38. The Toll Brothers entities’ complaint
against the plaintiff contains allegations regarding his conflict with TNHC and BHA although
they were not originally parties to this action. ECF No. 1 ¶¶ 45–52. The plaintiff alleges, and for
the purposes of this Recommendation, the Court accepts, that TNHC and BHA shared
information with Toll Brothers regarding their conflict with the plaintiff. ECF No. 17 ¶ 514.
After the Toll Brothers entities filed their trademark suit, the plaintiff filed counterclaims
against Toll Brothers, Inc., TB Proprietary Corp., Toll Southwest, the City, CAA, Meriaux, Dahl,
TNHC, Felten Group, TNHC, BHA, Marsh USA, and its parent companies, Marsh & McLennan
Companies, Inc. (“MMC”) and Marsh LLC. The defendants’ motions to dismiss followed.
ANALYSIS
The plaintiff brings nine causes of action: (1) a claim for declaratory judgement against
the Toll Brothers defendants; (2) “fraudulent inducement” against the Toll Brothers defendants;
(3) “civil conspiracy” against all defendants; (4) “deceptive trade practices” against the Toll
Brothers defendants; (5) “breach of statutory duty” against the City, Dahl, Meriaux, and CAA;
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(6) “abuse of process” against the Toll Brothers defendants, TNHC, and BHA; (7) “negligence”
against the City, Meriaux, and CAA; (8) violation of the First Amendment against the City,
Dahl, Meriaux, and CAA; and (9) violation of the Fourteenth Amendment against the City, Dahl,
Meriaux, and CAA. ECF No. 17 at 69–95.
For the reasons that follow, claims one, two, and four should be dismissed for lack of
subject matter jurisdiction, as should claims three, five, and seven with respect to the City and
Dahl; claim three should be dismissed as to defendants MMC and Marsh LLC on personal
jurisdiction grounds; and all of the plaintiff’s remaining claims against the remaining defendants
should be dismissed for failure to state a claim.
The Court addresses each claim in turn.
1. 	Declaratory Judgment (Claim One)
The plaintiff brings his first claim under the Declaratory Judgment Act (“DJA”), which
provides that, “[i]n a case of actual controversy within its jurisdiction . . . any court of the United
States . . . may declare the rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). He asks for
declarations that: (1) the Commission’s position statement (“CP-1”), ECF No. 18-1 at 226,
exempting certain individuals or entities selling real property in Colorado without a real estate
license from using Commission-Approved Forms does not apply to his home purchase, and (2)
the Toll Brothers defendants “violated Colorado’s real estate licensing statutes by marketing,
contracting, and conveying the property without a licensed broker.” ECF No. 17 at 70.
To bring a claim under the DJA, a plaintiff must clear two hurdles. “First, a declaratory
judgment plaintiff must present the court with a suit based on an ‘actual controversy,’ a
requirement the Supreme Court has repeatedly equated to the Constitution’s case-or-controversy
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requirement.” Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1240 (10th Cir. 2008). Second,
even if the case-or-controversy requirement is satisfied, “district courts are entitled to consider a
number of case-specific factors in deciding whether or not to exercise their statutory declaratory
judgment authority.” Id. Here, the plaintiff’s claim fails at the first step.
Although the defendants bring their motion under Fed. R. Civ. P. 12(b)(6) for failure to
state a claim, whether a request for declaratory judgment presents a “justiciable case or
controversy” is also a question of subject matter jurisdiction. United Fin. Cas. Co. v. Rocha, 726
F. Supp. 3d 1295, 1300–01 (D.N.M. 2023). In every proceeding, a federal court “must . . . satisfy
itself” that subject matter jurisdiction exists, even if it is not raised by the parties. Tafoya v. U.S.
Dep’t of Just., Law Enf’t Assistance Admin.,748 F.2d 1389, 1390 (10th Cir. 1984). As a
threshold matter, then, a party seeking “a declaratory judgment must demonstrate that it has met
the predicate case-or-controversy requirements of Article III standing,” which, in turn, consists
of three criteria: (1) it has suffered “an injury in fact—an invasion of a legally protected interest”
which is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical”;
(2) “a causal connection between the injury and the conduct complained of”; and (3) a likelihood
“that the injury will be redressed by a favorable decision.” Rocha, 726 F. Supp. 3d at 1301; see
also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (describing these three elements as
“the irreducible constitutional minimum of standing”).
The plaintiff has not satisfied these three elements, and accordingly, has not established
the Article III standing necessary for a case or controversy capable of adjudication under the
DJA. See Russell v. Fin. Cap. Equities, 158 F. App’x 953, 956 (10th Cir. 2005) (affirming
dismissal of declaratory judgment claim where plaintiff lacked constitutional standing).
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First, and most fundamentally, the plaintiff has not shown an injury-in-fact. He does not
articulate how buying a home from a Toll Brothers subsidiary, Toll Southwest, as opposed to the
parent company, has harmed him in any “concrete and particularized” way. Lujan, 504 U.S. at
560. He does not claim, for instance, that Toll Brothers refused to service his home’s warranty or
respond to his notice of defect claims as required under Colorado law. Indeed, he acknowledges
that Toll Brothers requested permission to perform an inspection in response to his notices. ECF
No. 17 ¶ 198. Although a court must construe a pro se plaintiff’s pleadings “liberally” and hold
them “to a less stringent standard than formal pleadings drafted by lawyers,” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991)), it “will not supply additional factual allegations to round out” the
complaint “or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d
1170, 1173–74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). Under these standards, the
plaintiff has failed to demonstrate an injury-in-fact.
Second, even if there were some injury, the plaintiff has not shown that it is “fairly
traceable to the challenged conduct of the defendant.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338
(2016) (citing Lujan, 504 U.S. at 560). Construed liberally, the gravamen of his declaratory
judgment claim is that Toll Southwest could not sell his home under the “homebuilder”
exception for real estate sales conducted by non-real estate brokers, see Colo. Rev. Stat. § 12-10-
201(6)(b)(X), because it was not a “genuine builder[ ] acting through [its] own officers and
employees.” ECF No. 17 at 70. By the same token, he alleges that Toll Southwest was not
exempt under CP-1 from using Commission-Approved Forms for the transaction. But even
assuming the truth of these propositions, the plaintiff does not explain how buying a home from
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an entity improperly relying on the “homebuilder” exception to brokered real estate transactions
or using non-standard forms caused his injury. Spokeo, 578 U.S. at 338.
Third, and finally, the plaintiff has not shown that his injury is redressable by judgment in
his favor. See Lujan, 504 U.S. at 556. “It is not the role of federal courts to resolve abstract issues
of law. Rather, they are to review disputes arising out of specific facts when the resolution of the
dispute will have practical consequences to the conduct of the parties.” Columbian Fin. Corp. v.
BancInsure, Inc., 650 F.3d 1372, 1376 (10th Cir. 2011). Thus, “Article III has long been
interpreted as forbidding federal courts from rendering advisory opinions.” Id. Here, the
plaintiff’s requested declarations would have no “practical consequences to the conduct of the
parties.” Id. The legislature expressly vested the Commission with the power to investigate and
penalize violations of Colorado’s real estate licensing law, Colo. Rev. Stat. § 12-10-217, and
where “a statute expressly provides a remedy, courts must be chary of reading others into it.”
Holer v. Moore & Co., 681 P.2d 962, 965 (Colo. App. 1983) (citing Transam. Mortg. Advisors,
Inc. v. Lewis, 444 U.S. 11 (1979)). The plaintiff points to no authority that would permit the
recission of his home purchase or provide any other remedy he seeks upon declarations that his
transaction was not covered by CP-1 or Colo. Rev. Stat. § 12-10-201(6)(b).
Because the plaintiff has not shown the existence of a justiciable case or controversy, a
jurisdictional issue, his DJA claim should be dismissed without prejudice. See Butts v. Colorado,
25-cv-00990-NYW-SBP, 2026 WL 878771, at *5 (D. Colo. Mar. 31, 2026) (citing Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006)). Nevertheless, the plaintiff may be
precluded from relitigating the standing issue in a future action. Brereton, 434 F.3d at 1218–19.
2. 	Fraudulent Inducement (Claim Two)
For his second claim, the plaintiff alleges that the Toll Brothers defendants “knowingly
misrepresented or concealed material facts . . . inducing [him] to enter into the Agreement of
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Sale and close on the property under false pretenses and to his material detriment,” ECF No. 17
at 71, and are therefore liable for false representation under state law.
As with his first claim, the plaintiff does not establish an injury-in-fact, a necessary
element of jurisdictional standing. See Tafoya, 748 F.2d at 1390. Although the plaintiff states
that “the physical problems” with his Toll Brothers home “are noteworthy,” he specifically
disclaims that this is a construction defect action or that he is “suing for damages for the
structural issues cited in the instant litigation[.]” ECF No. 127 at 2–3. Instead, he frames the
central harm as the fact that he entered into a contract to buy a Toll Brothers home in the first
place. He asserts that “had [he] known that he was not truly contracting with Toll Brothers,
Inc,—despite every outward indication to the contrary—he would not have proceeded with the
Agreement of Sale under the same terms, or possibly at all,” and “would have sought to negotiate
different terms, exercised greater due diligence, and verified the licensing of the true
counterparty.” ECF No. 17 at 75.
Putting aside that the sale agreement, closing disclosure, and deed all clearly identify the
home’s “Seller” as “Toll Southwest LLC,” ECF No. 18-1 at 34, 213, 230, whether the plaintiff
would have bought the home and on what terms if he had greater insight into Toll Brothers’
corporate structure, business practices, and licensing does not constitute a cognizable injury. “A
concrete injury must be de facto; that is, it must actually exist; it must be real, not abstract.”
Irvine v. I.C. Syst., Inc., 198 F. Supp. 3d 1232, 1236 (D. Colo. 2016) (quotation marks omitted).
Because the plaintiff’s asserted injury is fundamentally abstract—a claim about what he would
have done differently rather than how he has been concretely and particularly harmed—he does
not have constitutional standing. His second claim should be dismissed without prejudice for
lack of subject matter jurisdiction. Brereton, 434 F.3d at 1216.
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3. 	Civil Conspiracy (Claim Three)
The plaintiff next alleges that all defendants engaged in a civil conspiracy to “induce
consumers, including [him], to enter into property transactions under false pretenses, while
denying access to recourse mechanisms intentionally obscured by interlocking layers of legal and
administrative deceit.” ECF No. 17 at 75; id. at 75–83. This claim should be dismissed for lack
of subject matter jurisdiction with respect to the City and Dahl, lack of personal jurisdiction with
respect to MMC and Marsh LLC, and for failure to state a claim with respect to the remaining
defendants.
a. 	The City and Dahl are shielded by governmental immunity
The Colorado Governmental Immunity Act (“CGIA”), Colo. Rev. Stat. § 24-10-106(1),
“provides immunity to public entities in claims for injuries that lie or could lie in tort but waives
this immunity in certain limited circumstances.” Maphis v. City of Boulder, 504 P.3d 287, 291
(Colo. 2022). Public employees are also immune from liability under the CGIA for torts which
arise out of their official acts and omissions “unless the act or omission causing such injury was
willful and wanton.” Colo. Rev. Stat. § 24-10-118(2)(a). Immunity under the CGIA “deprives
courts of subject matter jurisdiction over those claims,” City of Aspen v. Burlingame Ranch II
Condo. Owners Ass’n, 551 P.3d 655, 658 (Colo. 2024), and plaintiffs bear the burden of showing
“that a defendant’s actions fall outside” the CGIA’s protections. McKenzie v. City & Cnty. of
Denver, No. 21-cv-00833-PAB-STV, 2023 WL 5488465, at *8 (D. Colo. July 21, 2023).
The City and Dahl are immune to suit on the civil conspiracy claim. Initially, the CGIA
contains no statutory waiver for civil conspiracy, which “is undeniably a tort claim,” and so the
City is absolutely immune. Falcon Broadband, Inc. v. Banning Lewis Ranch Metro. Dist. No. 1,
474 P.3d 1231, 1237 (Colo. App. 2018). And even assuming the truth of the plaintiff’s factual
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allegations as to Dahl—in sum, that he signed an improper and inaccurate site approval
agreement for the City, ECF No. 17 ¶¶ 215–222; ECF No. 101 at 4; that he did not issue a
correction or otherwise address these discrepancies when the plaintiff brought them to his
attention, ECF No. 17 ¶¶ 223–230; and that he required the plaintiff to make further inquiries in
writing and noted that City employees have the right to be free from harassment, Id. ¶ 241—they
fall well short of the “willful and wanton conduct” that could defeat his CGIA immunity as a
public employee. McKenzie, 2023 WL 5488465, at *8 (“Under Colorado law, conduct is not
willful or wanton unless it is done in conscious or reckless disregard of the rights of others.”
(citing Moody v. Ungerer, 885 P.2d 200, 205 (Colo. 1994))).
Because the CGIA applies, there is no subject matter jurisdiction for these defendants,
and the plaintiff’s civil conspiracy claim should be dismissed as to them.
b. 	There is no personal jurisdiction for MMC and Marsh LLC
Two of the Marsh entities move for dismissal on personal jurisdiction grounds, which
should be addressed before Rule 12(b)(6) dismissal. Kilter, LLC v. Aurora Climbing, Inc., No.
25-cv-02256-PAB-KAS, 2026 WL 864443, at *3 (D. Colo. Mar. 30, 2026); see also OMI
Holdings, Inc. v. Royals Ins. Co. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998).
Although a plaintiff’s burden to establish personal jurisdiction in the early phases of
litigation is “light,” Kitler, 2026 WL 864443 at *3, they still must allege facts showing either
specific jurisdiction, meaning the “suit arises out of or relates to the defendant’s contacts with the
forum,” or general jurisdiction, meaning the defendant’s contacts “are so continuous and
systematic as to render them essentially at home in the forum State.” Daimler AG v. Bauman,
571 U.S. 117, 127 (2014) (alterations, quotation marks, and citations omitted).
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Here, the plaintiff does neither. He does not allege that MMC or Marsh LLC conducted
any business in Colorado, either as it relates to the events of this case or generally. Indeed, he
does not make any allegations against MMC or Marsh LLC at all—all of the Toll Brothers
certificates of insurance were issued by Marsh USA. ECF No. 17 ¶¶ 294–304; ECF No. 20-1 at
15, 18, 21, 24, 27, 30, 33. Instead, without expressly saying so, he appears to premise personal
jurisdiction for MMC and Marsh LLC on the theory that they are “alter egos” of Marsh USA.
See Zayo Grp., LLC v. Sender, No. 25-cv-00662-CNS-TPO, 2026 WL 657484, at *4 (D. Colo.
Mar. 9, 2026). But the plaintiff’s factual allegations that (1) Marsh USA is the subsidiary of
Marsh LLC, who is the subsidiary of MMC, ECF No. 17 ¶¶ 306, 308, (2) the entities have the
same New York corporate headquarters, id. ¶¶ 307, 309, 313, (3) they have branding overlap, id.
¶¶ 311–12, 314–15, 318, and (4) Marsh USA has issued certificates of insurance bearing the
addresses of other MMC subsidiaries, id. ¶¶ 316–321, do little to overcome “the presumption of
corporate separateness,” which requires a showing that MMC and/or Marsh LLC “in fact
controls” Marsh USA. FDIC v. First Interstate Bank, 937 F. Supp. 1461, 1466 (D. Colo. 1996);
see also Griffith v. SSC Pueblo Belmont Operating Co. LLC, 381 P.3d 308, 313 (Colo. 2016)
(listing factors for finding a subsidiary is “merely an alter ego” of the parent company).
Because there is no basis for personal jurisdiction, the plaintiff’s civil conspiracy claim
against MMC and Marsh LLC—the sole count against them—should be dismissed.
c. 	The complaint does not sufficiently allege a claim for civil conspiracy
Finally, with respect to the remaining defendants, the civil conspiracy claim should be
dismissed for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at
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678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide swath
of conduct, much of it innocent, then the plaintiffs ‘have not nudged the claim 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). Legal conclusions are not entitled to the assumption of
truth, Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011), and
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678.
Although the complaint does not indicate whether the civil conspiracy claim arises under
federal or state law, see ECF No. 96 at 3, it fails to state a claim regardless. Civil conspiracy
under federal law requires “specific facts” showing “an agreement” among defendants “upon a
common, unconstitutional goal” and “concerted action taken to advance that goal.” Bledsoe v.
Carreno, 53 F.4th 589, 609 (10th Cir. 2022) (quotation marks and citation omitted). Civil
conspiracy under Colorado law is “a derivative cause of action”; it depends on the existence of
an underlying tort. Fine v. Tumpkin, 330 F. Supp. 3d 1246, 1257 (D. Colo. 2018). It requires “(1)
two or more persons, (2) an object to be accomplished, (3) an agreement on the object or course
of action, (4) one or more unlawful overt acts, and (5) damages as the proximate result.” Id.
(citing Jet Courier Serv., Inc. v. Mulei, 771 P.2d 486, 502 (Colo. 1989)).
In the instant matter, the plaintiff states five unconstitutional goals or unlawful objects of
the conspiracy, but fails to support them with any non-conclusory factual allegations, which is
fatal to his claim. ECF No. 17 at 83. They are addressed in turn below.
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1. 	“Misinform [the plaintiff] about the identity and legitimacy of his counterparty.”
The plaintiff does not allege that any of the defendants ever represented that he was
purchasing his home from Toll Brothers, Inc. as opposed to Toll Southwest, a fact that was
plainly disclosed in his agreement of sale, closing disclosure, and deed. The fact that different
Toll Brothers entities were involved in different phases of the transaction and post-sale service
does not permit “the reasonable inference that the defendant[s] [are] liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. The plaintiff’s after-the-fact investigation of Toll Brothers,
including his review of its statements of authority and corporate filings, and research on and
attempted communications with employees and executives makes no difference.
2. 	“Deflect liability through a maze of subsidiaries and recording false
instruments.”
The plaintiff does not allege that he tried to sue Toll Brothers, TNHC, or any of the
defendants for the construction defects in his or his parents’ homes and that they were not
amenable to suit due to their corporate structure or filings. This allegation is “not entitled to the
assumption of truth because [it] [is] entirely conclusory[.]” Khalik v. United Air Lines, 671 F.3d
1188, 1193 (10th Cir. 2012).
3. 	“Leverage government actors to provide false credibility to improper work.”
Here, the plaintiff appears to be referencing CAA’s issuance of inspection approvals
despite construction defects, ECF No. 17 ¶¶ 64–118, Meriaux’s issuance of a certificate of
occupancy, id. ¶¶ 123–130, the City’s issuance of a contractor’s license for Toll Brothers, id.
¶¶ 275–85, and Dahl’s and Meriaux’s responses when the plaintiff contacted them about these
and other Toll Brothers-related issues, id. ¶¶ 204–214. However, even accepting that the
approvals, certificate, and license were erroneously issued or contained errors, the plaintiff does
not plausibly allege that any defendant intentionally approved defective work or applications,
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much less that they agreed to do so with any other defendant, as would be required for a civil
conspiracy. Notably, the plaintiff does not claim that he or anyone else made the City, CAA, or
Meriaux aware of any construction defects or licensing issues until after the home was built.
4. 	“Obscure material defects in engineering, permitting, construction, and
insurance coverage.”
It is difficult to parse precisely which conduct by which defendants the plaintiff believes
forms the basis for this goal or object of the conspiracy. As it is, “[s]uch general and amorphous
allegations . . . don’t suffice to state a claim[.]” Phelps v. Kan., No. 23-2206-DDC-RES, 2026
WL 863783, at *20 (D. Kan. Mar. 30, 2026). Moreover, while the complaint “alleges boatloads
of specific facts,” it “never alleges specific facts showing an agreement” among any of the
various defendants operating in their distinct spheres of government, engineering, construction,
and insurance to achieve any common purpose, let alone an unlawful one. Id. at *35 (quotations
marks omitted). While “an express agreement isn’t essential,” “parallel conduct alone can’t
suffice to support a plausible inference of conspiracy.” Id. at *36. Given the generalized,
disparate, and sweeping nature of the acts and omissions the plaintiff attributes to the various
defendants, it is difficult to conclude that he has shown even so much as parallel conduct, let
alone that he has alleged the requisite agreement or meeting of the minds necessary for a civil
conspiracy.
5. 	“Retaliate against those—such as Plaintiff—who challenged these
arrangements.”
Again, it is hard to pinpoint exactly what conduct the plaintiff is referring to for this
charge, but reading the complaint broadly, the plaintiff is likely relying on: (1) the written
communications requirement imposed by Dahl, ECF No. 17 ¶¶ 231–41 (2) the Toll Brothers,
TNHC, and BHA cease-and-desist letters, id. ¶¶ 203, 374, 377, and (3) the Toll Brothers lawsuit
which discusses the TNHC/BHA dispute, id. ¶ 514. None of these allegations state a claim for
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conspiracy. His complaint does not allege that Dahl entered into an agreement with any other
defendant to require the plaintiff to make his future inquiries in writing. The fact that Toll
Brothers, TNHC, and BHA separately sent the plaintiff cease-and-desist letters pertaining to their
respective disputes is, at most, parallel conduct that, as a matter of law, “does not establish an
actionable conspiracy.” Cloward v. Race, No. 2:20-cv-00165-RJS-DBP, 2023 WL 2574316, at
*5 (D. Utah Mar. 20, 2023). Finally, the Toll Brothers trademark lawsuit, even with the
additional factual allegations supplied by TNHC/BHA, does not plausibly allege that any of the
defendants “reached an agreement to retaliate against plaintiff” for his investigations or
criticisms. Phelps, 2026 WL 863783, at *35. The plaintiff’s contention that the defendants filed
the lawsuit to silence him or get him to drop his claims is pure conjecture, which “stops short of
the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678.
The civil conspiracy claim should be dismissed with prejudice because “it is obvious that
the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an
opportunity to amend.” 3 Baker v. Buckner, No. 11-cv-01374-REB-KLM, 2012 WL 2524029, at
*8 (D. Colo. May 15, 2012) (quoting Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir.
2001)). The counterclaim complaint is 87 pages long and contains 514 allegations of fact. ECF
No. 17. As summarized in the background above, the plaintiff conducted a vast investigation into
the defendants. It is abundantly clear that the plaintiff has already put everything he has and
everything he can reasonably obtain into this counterclaim—and he still comes nowhere close to
stating a facially plausible claim for civil conspiracy. While “[g]enerally, a court will not dismiss
a pro se litigant’s action without leave to amend,” under the circumstances here, “it is patently
3 The same reasoning might apply to Felten Group, as Claim 3 is the only one asserted against it.
For reasons that are unclear, though, Felten Group has taken no action in this litigation other than
to appear. See ECF Nos. 135, 136.
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obvious” that the plaintiff cannot prevail on these accusations even with a reworking of his
complaint, “and thus amendment would be futile.” Williams v. Carbajol, No. 20-cv-02119-
NYW, 2021 WL 5579114, at *17 (D. Colo. Nov. 30, 2021) (quotation marks and citation
omitted).
4. 	Deceptive Trade Practices (Claim Four)
As with the plaintiff’s claims for declaratory judgment and fraud, his claim against the
Toll Brothers defendants under the Colorado Consumer Protection Act (“CCPA”), Colo. Rev.
Stat. § 6-1-105(1), should be dismissed on Article III standing grounds. ECF No. 17 at 83–85.
The plaintiff states that as a result of the defendants’ violations of the CCPA, he has
“suffered actual damages, including but not limited to loss of legal recourse, exposure to
construction defects, and material misrepresentation of the nature and structure of the
transaction.” Id. at 85. But for the reasons discussed, he has not sufficiently alleged: (1) that he
has been unable to pursue legal recourse against any responsible Toll Brothers entity; (2) that his
exposure to construction defects has any connection to which entity played which role in the sale
of his home; or (3) that any “material misrepresentation of the nature and structure of the
transaction” is anything other than an abstract injury, not cognizable in federal court. See Spokeo,
578 U.S. at 340. Accordingly, the fourth claim should be dismissed without prejudice for lack of
subject matter jurisdiction.
5. 	Breach of Statutory Duty (Claim Five)
The plaintiff alleges that the City, Dahl, Meriaux, and CAA violated “clear statutory
duties” they owed “to the public under Colorado law and applicable building codes,” causing
him harm. ECF No. 17 at 86.
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Here again, there is no subject matter jurisdiction as to the City and Dahl, who are
immune under the CGIA. This cause of action clearly “lie[s] in tort or could lie in tort.” Colo.
Rev. Stat. § 24-10-106(1); see Vanderloop v. Progressive Cas. Ins. Co., 769 F. Supp. 1172, 1175
(D. Colo. 1991) (stating that “the basic elements necessary to state any tort claim” are “(1) a
duty, (2) breach of the duty, and (3) injury caused by the breach”). The plaintiff’s protest that
Dahl’s signature on the site approval agreement, which incorrectly identifies Toll Southwest as a
“Colorado Limited Liability Company,” and contains other defects, constitutes “willful and
wanton” misconduct is without merit. ECF No. 101 at 3–4.
With respect to the other defendants, the complaint fails to state a claim upon which relief
can be granted. It is the plaintiff’s burden to identify a particular statute that contains an implied
private right of action, see Colo. Ins. Guar. Ass’n v. Menor, 166 P.3d 205, 210 (Colo. App.
2007), but he makes no effort to do so, instead gesturing broadly at the whole of Colorado’s
public safety statute, Colo. Rev. Stat. §§ 24-33.5-101 to 24-33.5-2810, international building
codes, and the City’s Municipal Code. ECF No. 17 at 86. It is not the role of the Court to
“construct legal theories on behalf of a pro se litigant.” Spence v. Three Birds All., No. 25-cv-
01988-SKC-STV, 2026 WL 2017172, at *2 (D. Colo. July 13, 2026) (citing Smith v. United
States, 561 F.3d 1090, 1096 (10th Cir. 2009)). Nor does the plaintiff make any effort to
distinguish Bd. of Cnty. Com’rs v. Moreland, 764 P.2d 812 (Colo. 1988), in which the Colorado
Supreme Court held that there was “no private civil damage remedy” “for any nonfeasance or
misfeasance” in administering the county’s uniform building code. Id. at 821.
However, because it is not “patently obvious” that the plaintiff cannot “correct the defect
in his pleading or state a claim for relief,” dismissal of claim five should be granted without
prejudice as to the non-immune defendants. Carbajol, 2021 WL 5579114, at *17.
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6. 	Abuse of Process (Claim Six)
The plaintiff fails to state a claim for abuse of process against the Toll Brothers
defendants, TNHC, and BHA. ECF No. 17 at 89–90. In order to state an abuse of process claim,
“a plaintiff must plausibly allege: (1) an ulterior purpose for the use of a judicial proceeding; (2)
willful action in the use of that process, that is, use of a legal proceeding in an improper manner;
and (3) resulting damage.” Rasmussen v. Burnett, 24-cv-01727-SKC-KAS, 2025 WL 605250, at
*7 (D. Colo. Feb. 25, 2025) (quoting Walker v. Van Laningham, 148 P.3d 391, 394 (Colo. App.
2006)). The complaint does not establish any of these elements through non-conclusory
allegations of fact.
As an initial matter, TNHC and BHA have not initiated any litigation against the
plaintiff—he has sued them. Therefore, TNHC and BHA has not made “use of a judicial
proceeding,” let alone done so improperly. Active Release Tech., LLC v. Xtomic, LLC, 413 P.3d
210, 214 (Colo. App. 2017) (holding that pre-litigation letters “were not a legal proceeding or a
court process”). To the extent that TNHC’s and BHA’s cease-and-desist letters may be
considered, they do not reflect that the defendants’ conduct was “aimed at an objective not
legitimate in the use of the process.” Parks v. Edward Dale Parrish LLC, 452 P.3d 141, 145
(Colo. App. 2019) (quotation marks and citation omitted). To the contrary, the letters are
exclusively addressed to the plaintiff’s filing of numerous prelitigation notices, complaints to
bond companies and various regulatory agencies, demands for information, contacting
employees, entry onto a construction site, and creation of a corporate entity—all of which the
plaintiff admits—and his brother’s alleged attempted entry into BHA’s office. See ECF No. 20–1
at 113–15, 122–23, 125–27, 133–34, 136–37; ECF No. 17 ¶¶ 361, 373, 376, 462–65; ECF No.
17, Answer, ¶ 47. That the plaintiff does not believe his conduct was wrongful or some
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allegations in the cease-and-desist letters are untrue is immaterial. His claim that the letters were
sent for an improper purpose is entirely conclusory.
The same is true with respect to Toll Brothers, who sent a cease-and-desist letter
regarding the entities he created, and then sued when he declined to dissolve them. See ECF No.
19-1 at 82; ECF No. 17 ¶ 203. When a plaintiff “asserts that a lawsuit’s filing is the abuse of
process, the plaintiff must also plausibly allege that the underlying lawsuit is devoid of factual
support or, if supportable in fact, has no cognizable basis in law.” Rasmussen, 2025 WL 605250,
at *7. The plaintiff has not done so. While he denies legal liability, he admits creating the entities
at the core of Toll Brothers’ trademark infringement suit. See ECF No. 1 ¶¶ 31, 34–41; ECF No.
17, Answer, ¶¶ 31, 34-41. Finally, even assuming that TNHC and BHA shared information with
Toll Brothers prior to the instant suit, this allegation does not establish any element of abuse of
process.
Because it is clear that the plaintiff cannot prevail on the facts alleged and amendment
would be futile, this claim should be dismissed with prejudice. See Brereton, 434 F.3d at 1219.
7. 	Negligence (Claim Seven)
The plaintiff’s claim for negligence, an action in tort, should be dismissed against the
City on subject matter jurisdiction grounds because of its CGIA immunity. See, e.g., Medina v.
State, 35 P.3d 443, 462 (Colo. 2001).
The negligence claim against Meriaux and CAA should be dismissed for failure to state a
claim. With respect to Meriaux, the plaintiff alleges that she improperly granted a contractor’s
license to “Toll Brothers,” issued a certificate of occupancy certifying that the home complied
with the City’s building code and could be occupied as a single family residence, and stopped
responding to his inquiries. See ECF No. 18-1 at 206; ECF No. 17 ¶¶ 123–30, 204–07, 211–14,
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275–85. For CAA, the plaintiff alleges that a building inspector failed to note certain building
code violations and construction defects in his approvals. See id. ¶¶ 94–118.
None of these facts, standing alone or taken together, states a plausible claim for common
law negligence against either defendant. See Connes v. Molalla Tans. Syst., 831 P.2d 1316, 1320
(Colo. 1992) (elements of negligence “consist of the existence of a legal duty by the defendant to
the plaintiff, breach of that duty by the defendant, injury to the plaintiff, and a sufficient causal
relationship between the defendant’s breach and the plaintiff’s injuries”). As it is not the duty of
the Court to develop the plaintiff’s legal theory, see Spence, 2026 WL 2017172, at *2, this claim
should be dismissed as to Meriaux and CAA. However, because it is not “obviously” futile for
the plaintiff to amend his complaint, dismissal should be without prejudice. Ark.-Platte & Gulf
P’ship v. Dow Chem. Co., 886 F. Supp. 762, 765 (D. Colo. 1995).
8. 	First Amendment (Claim Eight)
Without expressly saying so, the complaint alleges a First Amendment retaliation claim
against the City, Dahl, Meriaux, and CAA. ECF No. 17 at 92–93; ECF No. 101 at 5–7. To state
this claim, a plaintiff must allege that: (1) he was engaged in constitutionally protected activity;
(2) the defendant’s conduct caused the plaintiff to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity; and (3) the defendant’s adverse
action was substantially motivated as a response to the plaintiff’s exercise of constitutionally
protected conduct. Van Deelen v. Johnson, 497 F.3d 1151, 1155 (10th Cir. 2007).
The complaint clearly falls short on the second element. At the outset, the plaintiff states
no relevant facts with respect to CAA. Neither Meriaux’s nor Dahl’s polite declinations to
continue responding to Toll Brothers-related inquiries and requests, see ECF No. 17 ¶¶ 207, 223,
230; ECF No. 19-1 at 85–89, 100–110, are actions that would chill a person of ordinary firmness
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from continuing to engage in protected activity. Cf. Van Deelen, 497 F.3d at 1157 (finding that
“allegations of physical and verbal intimidation, including a threat by a deputy sheriff to shoot
[plaintiff] if he brought any more tax appeals” satisfied second element for retaliation claim). By
the same token, Dahl’s letter informing the plaintiff that: (1) he had instructed City employees to
require communication from the plaintiff be made in writing; (2) his “contacts ha[d] become
increasingly frequent and repetitive”; and (3) City employees “have the right to be free from
harassment,” does not constitute objectively chilling behavior. ECF No. 17 ¶¶ 240–41; ECF No.
19-1 at 134–35. Moreover, Meriaux and Dahl pledged that the City would continue to respond to
open records requests as legally required, and in fact did so. The fact that the plaintiff disagreed
with the scope of some of their responses, see ECF No. 17 ¶¶ 242–44, is of no moment. The
plaintiff points to no authority that requires government employees to engage limitlessly with a
citizen on whatever terms and topics he desires.
As it is clear that the plaintiff cannot prevail on this set of facts, and amendment would be
futile, the First Amendment claim should be dismissed with prejudice as to all defendants.
9. 	Fourteenth Amendment (Claim Nine)
Finally, the plaintiff alleges due process and equal protection violations under the
Fourteenth Amendment against the City, Dahl, Meriaux, and CAA. Both claims fail.
For his due process claim, the plaintiff must allege: (1) a protected property interest
subject to due process protections, and (2) a failure to provide an appropriate level of process. Al-
Turki v. Tomsic, 926 F.3d 610, 614 (10th Cir. 2019). The plaintiff alleges two separate property
interests: his home and his interest in “the regulatory processes governing construction,
permitting, and occupancy.” ECF No. 17 at 94. But the defendant has not been deprived of his
home and “it is well established that entitlement to nothing but procedure cannot be the basis for
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a property interest.” Robbins v. U.S. Bureau of Land Mgmt., 428 F.3d 1074, 1085 (10th Cir.
2006) (quotation marks omitted). Accordingly, neither of his identified property interests can
support a due process claim. Even if the plaintiff did satisfy the first element, he does not allege
the constitutionally “appropriate level of process” to which he was entitled but did not receive.
Tomsic, 926 F.3d at 614. He therefore has not stated a cognizable due process violation.
The plaintiff’s equal protection claim is likewise flawed. He asserts a class-of-one theory,
arguing that he was treated differently “from other homeowners and citizens who seek to raise
legitimate safety and licensing concerns.” ECF No. 17 at 94–95. But to succeed on this theory,
he must show that he was treated differently from others similarly situated to him “in every
material respect” and without a rational basis. Kan. Penn, 656 F.3d at 1216. The plaintiff alleges
that his “neighbor and designer Ms. Thompson” was not directed to put her communications in
writing when she called the City Building Department on one occasion, ECF No. 17 ¶ 238, but
she is not similarly situated to the plaintiff because there is no allegation that she contacted City
employees repeatedly even after being told that the City could no longer pursue her concerns. He
therefore has failed to state a prima facie case for an equal protection violation.
The Fourteenth Amendment claim should be dismissed without prejudice because it is
clear the plaintiff cannot prevail on the facts alleged and amendment would be futile.
CONCLUSION
For the foregoing reasons, the Court hereby RECOMMENDS4 the following:
4 Three of the granted motions also request attorneys’ fees under Colo. Rev. Stat. § 13-17-201.
See ECF Nos. 106, 125, 129. Under the Local Rules for this District, a request for attorneys fees
must be made by separate motion supported by affidavit. D.C.COLO.LCivR 54.3. A fee award is
thus inappropriate at this juncture. See Ramos v. Baltazar, No. 26-cv-02812-NYW, 2026 WL
2253638, at *4 n. 2 (D. Colo. Aug. 5, 2026).
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1. 	The City and Dahl’s motion to dismiss, ECF No. 96, should be GRANTED. Claims
three, five, and seven should be DISMISSED against the City and Dahl without
prejudice for lack of subject matter jurisdiction (CGIA), and claims eight and nine
should be DISMISSED with prejudice because amendment would be futile.
2. 	Meriaux and CAA’s motion to dismiss, ECF No. 106, should be GRANTED. Claims
three, eight, and nine should be DISMISSED against them with prejudice because
amendment would be futile. Claims five and seven should be DISMISSED without
prejudice.
3. 	The Toll Brothers defendants’ motion to dismiss, ECF No. 125, should be GRANTED.
Claims one, two, and four should be DISMISSED against them without prejudice for
lack of subject matter jurisdiction (Article III standing), and claim six should be
DISMISSED with prejudice because amendment would be futile.
4. 	Defendant Risewell Homes Inc.’s (formerly TNHC) motion to dismiss, ECF No. 129,
should be GRANTED to the extent that claims three and six should be DISMISSED for
failure to state a claim, and dismissal should be with prejudice because amendment
would be futile. The motion should be DENIED as moot to the extent that it requests
dismissal pursuant to Colo. Rev. Stat. § 13-20-1101. Defendant Risewell Homes Inc.’s
motion to compel arbitration, ECF No. 132, should also be DENIED as moot.
5. 	Defendant BHA’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), ECF No. 142,
is GRANTED. Claims three and six should be DISMISSED with prejudice because
amendment would be futile. Defendant’s BHA’s special motion to dismiss pursuant to
Colo. Rev. Stat. § 13-20-1101, ECF No. 140, should be DENIED as moot.
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6. 	Defendants MMC, Marsh LLC, and Marsh USA’s motion to dismiss, ECF No. 145,
should be GRANTED. Claim three should be DISMISSED against MMC and Marsh
LLC without prejudice for lack of personal jurisdiction, and against Marsh USA with
prejudice for failure to state a claim because amendment would be futile.
Respectfully submitted this 12 th day of August, 2026, at Denver, Colorado.5
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
5 Be advised that all parties shall have fourteen days after service hereof to serve and file any
written objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings
or recommendations to which the objections are being made. The District Court need not
consider frivolous, conclusive, or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676–83 (1980); 28 U.S.C. §
636(b)(1). Additionally, the failure to file written objections to the proposed findings and
recommendations within fourteen days after being served with a copy may bar the aggrieved
party from appealing the factual findings and legal conclusions of the Magistrate Judge that are
accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.
2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). Finally, all parties
must consult and comply with the District Judge’s practice standards for any specific
requirements concerning the filing and briefing of objections.
Case No. 1:25-cv-02884-PAB-CYC Document 185 filed 08/12/26 USDC Colorado
pg 29 of 29