Rocky Mtn. Rebar Inc. et al v. Wanzek Construction Inc. et al

OCR transcription for search; preserved printed pages are authoritative

Case No. 1:24-cv-01433-CNS-TPO Document51 __ filed 03/21/25 USDC Colorado
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:24-cv-01433-CNS-TPO

ROCKY MTN. REBAR INC., a Colorado corporation and
ROBERT GARCIA, JR., individually,

Plaintiffs,
V.

WANZEK CONSTRUCTION INC., a North Dakota corporation and
LARRY BYRKET, individually,

Defendants.

ORDER

Before the Court is the Special Motion to Dismiss Certain Allegations and Claims
in Plaintiffs’ Complaint Pursuant to Colorado’s Anti-SLAPP Statute, C. R. S. §§ 13-20-
1101 et seq., filed by Defendants Larry Byrket and Wanzek Construction, Inc. (Wanzek).
ECF No. 24. For the following reasons, the Court DENIES the motion.

1. BACKGROUND'

Wanzek is a construction company that specializes in renewable energy projects.
ECF No. 1, {{/ 3, 10. Rocky Mtn. Rebar (RMR) provides construction services on projects,
including wind farms. /d., J 8. Mr. Garcia is the owner of RMR, and Mr. Byrket is employed

by Wanzek. /d., {| 9.

1 The background facts are taken from the well-pleaded allegations in the complaint and interpreted in the
light most favorable to Plaintiff. ECF No. 1; see Porter v. Ford Motor Co., 917 F.3d 1246, 1248 n.1 (10th
Cir. 2019); Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016).

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

2
On January 14, 2020, Wanzek and Rocky Mtn. Rebar (RMR) entered into a Master
Subcontract Agreement (MSA), which included terms and conditions governing their
relationship. Id., ¶¶ 11–12. On May 30, 2023, Wanzek contracted with RMR to provide
rebar installation for a wind power project in Mississippi, the Delta Wind Farm. Id., ¶¶ 13–
14. RMR was set to begin work around August 14, 2023. Id., ¶ 15. Wanzek informed RMR
that it would need to obtain a Mississippi State construction license. Id., ¶ 16. RMR
applied, but was told that the licensing process would be delayed for about six weeks. Id.,
¶ 17. Rather than wait for the license, Wanzek hired Mr. Garcia directly so that the work
could commence. Id., ¶ 19.
On August 15, 2023, Wanzek required Mr. Garcia to produce physical copies of
his work authorization documents. Id., ¶ 23. Mr. Garcia brought around 30 men to the
project site. Id., ¶ 26. Mr. Garcia alleges that each of these workers was legally permitted
to work in the United States. Id., ¶ 27. On August 30, 2023, Mr. Byrket sent Mr. Garcia an
email, 	with 	“numerous 	people” 	copied, 	claiming 	that 	nine 	of 	the 	workers 	were
unauthorized to work in the United States and that these men did not have legitimate
documentation. Id., ¶ 28. Plaintiffs allege that Mr. Byrket knew that at least some of these
workers had documentation. Id., ¶ 31. On August 31, 2023, Mr. Byrket sent Mr. Garcia
another email with the subject line “RMR Employee’s [sic] that are allowed to work,”
stating that “[t]hese are the only folks allowed to work at the Delta Wind Farm, all others
cannot be onsite.” Id., ¶¶ 33–34. The email identified at least five workers. Id. Plaintiffs
claim that this email is false because the workers were lawfully permitted to work. Id., ¶
36. Around the same time, Wanzek provided offer letters to four of the individuals that Mr.
Byrket claimed lacked legal authorization to work. Id., ¶ 38. Wanzek provided other
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workers with contact information for a competitor to apply to work on the project with that
competitor. Id., ¶ 39. On September 1, 2023, Mr. Byrket sent another email, with six
people copied, writing that “with all the manpower issues, Wanzek has no choice but to
bring in another contractor to install rebar.” Id., ¶ 41. 2
Plaintiffs allege that these three emails were defamatory, disparaging, and false.
Id., ¶ 40.
Afterward, Mr. Garcia learned that RMR was not awarded multiple jobs because
of the September 1 email and because of a statement that Mr. Garcia was hostile to Latin
workers. Id., ¶¶ 45–47, 51. Plaintiffs allege that RMR has been blackballed by every major
company working on wind farms because of these allegedly false statements. Id., ¶ 54.
Plaintiff brought this lawsuit on May 21, 2024, bringing claims for defamation,
tortious 	interference 	with 	contract, 	tortious 	interference 	with 	prospective 	business
advantage, and breach of contract. Defendants filed the present special motion to dismiss
the tort claims under Colorado’s anti-SLAPP statute, C.R.S. §§ 13-20-1101 et seq. 3
II. LEGAL STANDARD
In 2019, the Colorado legislature enacted the Anti-SLAPP statute, allowing courts
to dismiss frivolous claims brought with the intent to chill a person’s constitutional rights,
particularly the right to free speech. C.R.S. §§ 13-20-1101 et seq. The statute allows
defendants to file a special motion to dismiss where the claim arises “from any act of that
person in furtherance of the person’s right of petition or free speech,” including, as
relevant here, “conduct or communication(s) in furtherance of . . . the constitutional right
2 The full email reads: “Bobby with all the manpower issues, Wanzek has no choice but to bring in another
contractor to install rebar. Our HR dept will be terminating RMR EE’s that are working for Wanzek effective
immediately. Please contact Ryan Janowicz with any further questions.”
3 “SLAPP” stands for “Strategic Lawsuits Against Public Participation.”
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of free speech in connection with a public issue or an issue of public interest.” C.R.S. §§
13-20-1101(2)(a)(IV), 13-20-1101(3)(a).
Colorado courts have held that, because Colorado’s statute is relatively new and
is largely identical to California’s anti-SLAPP statute, it is appropriate to apply California
anti-SLAPP caselaw. See, e.g., Moreau, 641 F. Supp. 3d at 1132.
Courts apply a two-part test to determine whether to grant the special motion to
dismiss. First, the Court must determine whether the defendant “has made a threshold
showing that the conduct underlying the plaintiff’s claim[s] falls within the scope of the
anti-SLAPP statute.” Moreau v. United States Olympic & Paralympic Comm., 641 F.
Supp. 3d 1122, 1134 (D. Colo. 2022) (citations omitted). In other words, the defendant
must make a “prima facie showing that the plaintiff’s suit arises from an act in furtherance
of the defendant’s constitutional right to free speech.” CoreCivic, Inc. v. Candide C 20-
03792 WHA, 2022 WL 16823696, at *1 (N.D. Cal. Nov. 8, 2022). If the plaintiff
successfully makes a prima facie showing, the Court then determines whether, based on
the pleadings and affidavits, the plaintiffs have “established a ‘reasonable likelihood’ of
prevailing on [their] claim.” Moreau, 641 F. Supp. 3d at 1134. Under this second step, if
an anti-SLAPP motion “mounts a legal challenge, courts assess the motion under Federal
Rule of Civil Procedure 12(b)(6)” and consider whether a claim is properly stated. Id. at
1129. If the motion mounts a factual challenge, courts assess the motion under Federal
Rule of Civil Procedure 56. Id.
III. ANALYSIS
Having considered the parties’ briefing and relevant legal authority, the Court
denies Defendants’ motion.
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A. 	Application of Colorado’s anti-SLAPP Law in Federal Court
First, Plaintiffs argue that Colorado’s anti-SLAPP statute does not apply in federal
court because it conflicts with Rule 1 and Rule 56 of the Federal Rules of Civil Procedure.
However, this Court has previously held that Colorado’s anti-SLAPP law does apply in
federal court. See, e.g., Moreau, 641 F. Supp. 3d at 1132. This Court previously reasoned
that Colorado’s anti-SLAPP statute is interpreted, like California’s, to eliminate conflicts
between standards in the Federal Rules of Civil Procedure and the anti-SLAPP statute.
See, e.g., CoreCivic, Inc. v. Candide Grp., LLC, 46 F.4th 1136, 1138 (9th Cir. 2022). The
Court follows this precedent and reiterates that Colorado’s anti-SLAPP law applies in
federal court.
B. 	Prima Facie Case
In applying Colorado’s anti-SLAPP framework, the Court first considers whether
Defendants have made a prima facie showing that Plaintiffs’ suit arises from Defendants’
constitutional right to free speech, and thus falls within the scope of the anti-SLAPP
statute. The Court finds that Defendants have failed to meet their burden.
Colorado’s anti-SLAPP statute lays out four “acts in furtherance of the right of
petition or free speech . . . in connection with a public issue” that come within the purview
of the statute:
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;
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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.
Colo. Rev. Stat. Ann. § 13-20-1101(2)(a)(I)-(IV). The parties do not dispute that the
speech in question here would only fall into category IV, if at all.
The precise boundaries of what constitutes a public issue are unclear. See Rivero
v. Am. Fed'n of State, Cnty., & Mun. Emps., AFL-CIO, 105 Cal. App. 4th 913, 924 (2003).
However, generally, courts have interpreted “a public issue” broadly. 4 California courts
have generally identified three categories of speech on public issues: either it concerns a
person or entity in the public eye, involves “conduct that could directly affect a large
number of people beyond the direct participants,” or relates to a “topic of widespread,
public interest.” Id. Colorado courts have articulated what constitutes a matter of public
interest as “an issue about which information is needed or appropriate”; “a subject of
legitimate news interest”; an issue “fairly considered as relating to any matter of political,
social, or other concern to the community”; or an issue that “involves the use of names,
likenesses or facts in giving information to the public for purposes of education,
amusement, or enlightenment when the public may reasonably be expected to have a
legitimate interest in the subject.” L.S.S. v. S.A.P., 523 P.3d 1280, 1287–88 (Colo. App.
2022) (citations omitted); City of San Diego v. Roe, 543 U.S. 77, 83–84 (2004); McIntyre
v. Jones, 194 P.3d 519, 525 (Colo. App. 2008) (citation and quotations omitted). Other
courts have defined a public issue as “when the public may reasonably be expected to
4 Most of the “public issue” caselaw is in the area of defamation law.
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have a legitimate interest in what is being published.” Williams v. Continental Airlines,
Inc., 943 P.2d 10, 17 (Colo. App. 1996); Spacecon Specialty Contractors, LLC v.
Bensinger, 713 F.3d 1028, 1035 (10th Cir. 2013) (citations omitted). In making this
determination, courts analyze the “content, form, and context of the statements in
conjunction with the motivation or ‘point’ of the statements as revealed by the whole
record.” McIntyre v. Jones, 194 P.3d 519, 525 (Colo. App. 2008).
In the context of workplace disputes, “unlawful workplace activity below some
threshold level of significance is not an issue of public interest, even though it implicates
a public policy.” Rivero, 105 Cal. App. 4th at 924. In Rivero, a union made statements
alleging unlawful supervision of eight staff members. The court found that the statements
did not involve a public interest because there was no media attention on the parties, the
statements only affected the individuals directly involved, and the issue of workplace
misconduct did not reach a certain threshold of significance. Id.
Defendants argue that the emails involve speech about a public issue: immigration
policy. See ECF No. 24 at 10. However, Defendants shortly thereafter described the issue
in much more narrow terms: “whether workers put forth by Plaintiffs for Wanzek’s project
had the legal status and proper documentation to work on the project.” ECF No. 24 at 10.
These statements do not involve immigration policy; they involve a private workplace
dispute about individual employees’ compliance with immigration laws.
Defendants also argue that Wanzek is a large construction company and so its
compliance with federal immigration laws, even with regard to private individuals, is an
area of public interest because it affects members of the public. Id. The Court disagrees.
As in Rivero, the statements only involved Mr. Garcia and the individuals who were told
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not to work at the project site. Indeed, the context and “point” of the speech indicates that
it is not about a matter of public interest: they were private emails communicating
business decisions (the status of RMR’s employees) to only those people involved in the
decisions. While the document verification policy arguably affects a large number of
people, Wanzek’s routine application of that policy does not.
Significantly, the cases Defendants cite involve speech that is “published to other
consumers,” or were intended as a “warning” to other people in the industry. Wilbanks v.
Wolk, 	121 	Cal. 	App. 	4th 	883, 	898-900 	(Cal. 	App. 	2004) 	(statements 	regarding
incompetence of a brokerage concerned a public issue because the statements were a
warning not to use the brokerage’s services); Chaker v. Mateo, 209 Cal. App. 4th 1138,
1146 (Cal. App. 2012) (defendants’ statements published to other consumers implicated
a public issue); Yang v. Tenet Healthcare Inc., 48 Cal. App. 5th 939, 948–49 (Cal. App.
2020) (a “hospital’s directive that doctors should no longer refer patients to” an allegedly
incompetent doctor addressed a public issue). Defendants’ argument that the emails were
allegedly communicated to outside parties is similarly unconvincing. Defendants point to
the allegation that “Mr. Garcia subsequently learned that two other companies, called
Mortenson and Blattner, two of the biggest wind farm builders, were steering contracts
away from Rocky Mtn. Rebar based on a statement that Mr. Garcia was hostile to Latin
workers.” ECF No. 1, ¶ 51. However, there is no indication that Plaintiffs are referring to
the emails in this allegation, nor is there any evidence that a statement that Mr. Garcia
was hostile to Latin workers appeared in the emails.
Defendants also argue that the speech here is “directed toward policies pertaining
to discrimination or which tends or seeks to expose discriminatory practices” or is akin to
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speech about “hiring and abuse of undocumented workers,” and so touches on a matter
of public concern. ECF No. 45 (Reply) at 7 (citing Barrett v. University of Colorado Health
Sciences Center, 851 P.2d 258, 264 (Colo. 1993); Dodge v. Evergreen Sch. Dist. #114,
56 F.4th 767 (9th Cir. 2022)). However, while these issues are clearly matters of public
interest, the emails do not fall in those categories.
In the cases cited by Defendants, the speech at issue offered commentary about
discrimination, immigration, and bigotry; that is, it sought to expose practices, or was
“directed toward” discriminatory policies. The speech here is not similarly targeted to the
policy or issue, but rather is a rote application of Wanzek’s documentation verification
policy. To illustrate, the emails do not discuss Wanzek’s policy of verifying work
authorization documents, state any opinion on the policy or on Mr. Garcia’s purported
failure to comply with it, or comment on or make an example of Mr. Garcia’s lack of
compliance. The emails do not connect Wanzek’s verification policies with federal
immigration requirements, or provide any critique or commentary on immigration policies,
or even Wanzek’s policies, at all. The emails simply inform Mr. Garcia that some of his
employees were not in compliance with Wanzek’s documentation verification requirement
and thus could not work on the site. The motivation or “point” of the emails was, therefore,
not to comment on a matter of public interest; it was to inform Mr. Garcia that his workers
were not complying with its policies.
Thus, Defendants do not meet their burden of showing that Plaintiffs’ claims arise
in the context of the anti-SLAPP statute.
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IV. CONCLUSION
Consistent with the above analysis, Defendants’ Motion to Dismiss Certain
Allegations and Claims in Plaintiffs’ Complaint Pursuant to Colorado’s Anti-SLAPP
Statute, C. R. S. §§ 13-20-1101 et seqg., ECF No. 24, is DENIED.

DATED this 21st day of March 2025.

District 4udge

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