Case 1:09-cv-00309-MSK-KMT Document 397 Filed 03/31/10 USDC Colorado Page 1 of 38

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger

SUZANNE SHELL,

Plaintiff,

v.

AMERICAN FAMILY RIGHTS ASSOCIATION;

WILLIAM O. TOWER;

ANN TOWER;

LEONARD HENDERSON;

SUSAN ADAMS JACKSON, a/k/a Susan Wolverton;

CLETUS KIEFER;

FAMILIES AT RISK DEFENSE ALLIANCE;

FRANCINE RENEE CYGAN;

MARK CYGAN;

ILLINOIS FAMILY ADVOCACY COALITION;

DOROTHY KERNAGHAN-BAEZ;

GEORGIA FAMILY RIGHTS, INC.;

DENNIS HINGER;

NATIONAL ASSOCIATION OF FAMILY ADVOCATES;

AIMEE DUTKIEWICZ;

THOMAS DUTKIEWICZ;

CONNECTICUT DCF WATCH;

WILLIAM WISEMAN;

WISEMAN STUDIOS;

ANN DURAND;

BRENDA SWALLOW;

KATHY TILLEY;

DEE CONTRERAS;

RANDALL BLAIR;

LLOYD PHILLIPS;

RINGO KAMENS;

CHERYL BARNES;

CPS WATCH, INC.;

DESERE’ CLABO, a/k/a HOWARD;

SARAH THOMPSON;

UNKNOWN DEFENDANTS DOE 1-15,

Defendants.

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(1) Defendant Dorothy Kernaghan-Baez’s Motion to Dismiss on behalf of Defendant

(6) Defendants Cheryl Barnes, CPS Watch, Inc., and Sarah Thompson’s Motion to

(13) Defendants William O. Tower and American Family Rights Associations’s

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The Court exercises jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

In this case, Ms. Shell generally alleges that the Defendants unlawfully used or copied

her proprietary information (web site contents) for their own financial benefit and in retaliation

against her for protecting such information. Multiple defendants have moved to dismiss. Their

arguments fall into several categories, set forth below.

Construing Ms. Shell’s allegations most favorably to her, the Court finds that the

In 1992, Ms. Shell noticed that there was a market need for services and information for

families involved with child protection services. She developed a body of intellectual property

to fill this need. In 1997, she acquired the domain name www.profanejustice.org and began

publishing on this website. She represents that each article, paper, and document published on

the website is her independent copyrighted work.

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1 A number of parties in this action are proceeding pro se, including Ms. Shell. In construing
these parties’ pleadings, the Court is mindful of their pro se status and, therefore, the Court construes
their pleadings liberally and holds them to a “less stringent standard” than pleadings drafted by lawyers
in accordance with Haines v. Kerner, 404 U.S. 519, 520 (1972). Such liberal construction is intended
merely to overlook technical formatting errors, poor writing style, and other defects in the party’s use of
legal terminology, citation, and theories. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The
Court, however, cannot act as a pro se litigant’s legal advocate, and a pro se plaintiff retains the burden to
allege sufficient facts to state a viable claim. Furthermore, pro se status does not relieve a party of the
duty to comply with the various rules and procedures governing litigants and counsel or the requirements
of the substantive law, and in these regards, the Court must apply the same standard to counsel licensed to
practice law and to a pro se party. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden v. San
Juan County, 32 F.3d 452, 455 (10th Cir. 1994).

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In 2001, Ms. Shell became aware that others were publishing her copyrighted works on

other websites without her consent. She attempted to limit their infringement and contends that

they have retaliated against her.

Ms. Shell co-founded Defendant American Family Rights Association (“AFRA”), but

withdrew her membership in 2003. Upon her withdrawal, she expressly prohibited AFRA from

using her copyrighted works.

Ms. Shell developed a licensing agreement for use of her copyrighted materials. She also

created a training program based on her trade secrets and proprietary information and advertised

this program on the internet. At her training seminars, attendees are required to sign a noncompete,

non-disclosure form prior to receiving the training or training materials. Defendants

Swallow and Durand attended Ms. Shell’s training program. Ms. Shell contends that Ms.

Swallow took and now uses the non-compete/non-disclosure form and proprietary information

without permission.

Ms. Shell asserts eleven claims: (1) misappropriation/theft of trade secrets by all

defendants, except Lloyd Phillips and Ringo Kamens; (2) copyright infringement by all

Brenda Swallow, William Wiseman, Wiseman Studios, Leonard Henderson, AFRA, Cletus

Kiefer, William O. Tower, Ann Tower, Dennis Hinger, Ringo Kamens; (6) tortious interference

with business relationship and/or business contract by all defendants; (7) racketeering under the

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2 In the absence of a specific declaration of the defendants that a particular claim is asserted
against, the Complaint is construed to assert the claim against all defendants.

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Racketeer Influenced and Corrupt Organizations Act (“RICO”) by all defendants except William

O. Tower, Families at Risk Defense Alliance, Kathy Tilley, and Lloyd Phillips; (8) false and

misleading advertising by all defendants; (9) unfair or deceptive trade practices and unfair

methods of competition by all defendants; (10) civil conspiracy by all defendants except Kathy

Tilley; and (11) antitrust violations under the Sherman Act by all defendants. Ms. Shell seeks

damages, compensatory and punitive, and injunctive relief enjoining further unlawful acts and

requiring the Defendants to print retractions and apologies.

The motions to dismiss in this case raise a variety of issues that can be categorically

grouped. The Court will focus first on issues pertaining to representation in this action and the

effect of other pending cases upon determination of the motions to dismiss in this case, then

those implicating personal jurisdiction, and finally those asserting Ms. Shell’s failure to state a

claim on which relief can be granted.

It is a long-standing rule that a corporation must be represented by an attorney to appear

equally applicable to corporations, partnerships, and associations pursuant to 28 U.S.C. § 1654.

D.C. Colo. L. Civ. R. 11.1 provides that “[o]nly pro se individual parties and members of this

court’s bar may appear or sign pleadings, motions, or other papers.” In fact, this Court has

previously warned the parties in this action that any company may only appear through a

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the Family Advocacy Coalition. Ms. Kernaghan-Baez responds that IFAC does not, and never

does not argue that it is her alter ego. Because the IFAC appears to be an entity and it is not

with leave to renew when it is represented by counsel.

responds that AFRA is a website domain name for a public website that he owns and operates,

but that it has no identity as an entity separate from him. Ms. Shell does not contest this

characterization. As Mr. Tower has stated that AFRA is merely a website name, the Court shall

treat AFRA as an alias of Mr. Tower. AFRA will be deleted from the caption of this case.

Wiseman Studios. Ms. Shell contends that Mr. Wiseman may not represent Wiseman Studios.

Mr. Wiseman responds that Wiseman Studios is not an entity separate from him, but is merely a

name by which he publishes a website. As a consequence, the Court shall treat Wiseman Studios

as an alias of Mr. Wiseman. Wiseman Studios shall be deleted from the caption of this case.

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3 Ms. Kernaghan-Baez has also filed two motions to dismiss regarding the claims against her
personally (#54, 206). These are addressed infra.

4 Notably, this Court has previously stricken an answer filed on behalf of AFRA by Ms.
Kernaghan-Baez (#43).

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the same issues raised in this action.

Ms. Kernaghan-Baez alleges that there is a pending California state court action

concerning the same issues. Ms. Shell responds that third-party claims against these defendants

were dismissed from the California action without prejudice on December 31, 2008, and

therefore the action is not pending as to them.

The Court liberally construes Ms. Kernaghan-Baez’s motion as seeking dismissal based

1999). Under the doctrine, a federal court may dismiss or stay a federal suit when pending state

court litigation will resolve the issues presented in the federal case. Because the rationale for

such deferral is to conserve judicial resources, its application is limited to exceptional

evaluates four factors in determining whether abstention is appropriate: (1) simultaneous

jurisdiction over a single res; (2) the relative convenience of the fora; (3) the order the

proceedings were initiated; and (4) the need to avoid piecemeal litigation.

In this case, there is an insufficient showing of exceptional circumstances to justify

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5 This is Ms. Kernaghan’s first motion to dismiss regarding the claims against her personally. As
discussed infra, she also asserts the defense of lack of personal jurisdiction in a second motion to dismiss.

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abstention. Although it appears that the California state court case was initiated first, this court

cannot determine whether the California action involves the same claim, issue or property that is

the subject of this action. Accordingly, the Court declines to abstain from hearing this action

Mr. Henderson argues that dismissal of this action is warranted under the doctrine of

issue preclusion also related to a California state action. Liberally construing Mr. Henderson’s

To determine the preclusive effect of a prior action, the Court looks to the law of the state

determination of factual or legal issues are precluded in an action if: (1) an issue was previously

decided in a prior action, and the issue is identical with the issue presented in the action in

question; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the

decision in the prior action was final and on the merits; and (5) the party against whom the

a final judgment on the merits in an earlier action; (2) the cause of action is the same in both

Based on the record before the Court, it appears that neither doctrine applies. Both

doctrines require a final determination in the prior action. There is no evidence before this Court

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that there has been a final determination in the California state action. Accordingly, Mr.

conspiracy claim based on the fact that Ms. Shell “already sued Defendant Swallow in Florida.”

Liberally construing her pleading, the Court again addresses both issue preclusion and claim

preclusion, but concludes that neither is applicable here.

In Florida, relitigation of issues is precluded when (1) the parties are identical; (2) the

issue is identical; (3) the issue was fully litigated; (4) there was a final determination of the issue.

preclusion applies when there was a final judgment on the merits and there is identity as to (1)

the thing sued for; (2) the cause of action: (3) the persons or parties to the cause of action; and

there is no indication that a final judgment was entered in the Florida action. Accordingly, the

Court does not find that issue preclusion or claim preclusion bars the litigation of this case or any

of the issues presented therein with respect to Ms. Swallow. The personal jurisdiction issues

Defendants Ms. Jackson, Mr. Dutkiewicz, Ms. Barnes, CPS Watch, Inc. (“CPS Watch”),

Ms. Thompson, Ms. Swallow, Ms. Tower, Ms. Kernaghan-Baez, Mr. Tower, Mr. Wiseman, and

Mr. Kiefer (the “Moving Defendants”) all request dismissal of claims against them due to the

absence of personal jurisdiction. Each defendant contends that he or she does not have the

requisite minimum contacts with Colorado. Ms. Shell responds to some of these Defendants’

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motions with the argument that the Defendants have consented to the Court’s exercise of

personal jurisdiction. The Court will address this contention first.

Ms. Shell responds to Mr. Dutkiewicz’ motion by arguing that he waived the defense of

lack of personal jurisdiction in accordance with Fed R. Civ. P. 12(h) when he filed an entry of

appearance in this matter. It is true that under Fed. R. Civ. P. 12(h), a defendant waives any

objection based on personal jurisdiction by filing a responsive pleading that does not contain that

responsive pleading and therefore did not act to waive his defense. Indeed, his Motion to

Dismiss, which is his responsive pleading, asserts the defense of personal jurisdiction. The

Ms. Shell argues that Ms. Kernaghan-Baez waived the defense of personal jurisdiction by

court and did not raise the defense. However, Ms. Kernaghan-Baez expressly stated in her prior

Motion to Dismiss that she was not consenting to personal jurisdiction in Colorado. Moreover,

liberally construing Ms. Kernaghan-Baez’s pleadings, the Court construes Ms. Kernaghan-

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6 Ms. Shell does not address these, and instead asks for leave to do so. No good cause has been
shown for a delay in her response to the substantive issues, therefore the Court denies her request to
supplement and addresses Mr. Dutkiewicz’s Motion to Dismiss on its merits.

7 Notably this is the third motion to dismiss filed by Ms. Kernaghan-Baez. The first motion she
filed was on behalf of Illinois Family Advocacy Coalition and, as discussed supra, is denied. The second
motion, also discussed supra, was based on the pendency of a substantially similar action in California
state court. The third motion is based on lack of sufficient contacts with Colorado. It is this argument
that Ms. Shell argues has been waived.

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Baez’s statement as indicating her intent to file a motion to dismiss based on lack of personal

jurisdiction in a separate document. Ms. Shell is not prejudiced by such construction of Ms.

Kernaghan-Baez’s motion as she had notice of Ms. Kernaghan-Baez’s intent to contest personal

Shell argues that Ms. Tower’s motion should not be considered because it was not filed by the

deadline of June 30, 2009. Ms. Tower filed her motion to dismiss by faxing to the Court. The

fax cover sheet attached to Ms. Tower’s Motion to Dismiss is dated June 30, 2009. Although it

was docketed on July 1, 2009, the Court deems its submission to be timely.

Ms. Dutkiewicz also moves to dismiss based on lack of personal jurisdiction due to

dismissal for improper service and did not raise the issue of sufficiency of contacts, under Fed.

any objection to personal jurisdiction by not raising it when she filed her first motion to dismiss.

Again, Ms. Shell does not address these, and instead asks for leave to do so. No good cause has been

shown for a delay in her response to the substantive issues, therefore the Court denies her request to

supplement and addresses Ms. Kernaghan-Baez’s Motion to Dismiss for insufficiency of contacts on its

merits.

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and her pleadings are entitled to liberal construction, she must still comply with applicable rules

As noted above, Ms. Jackson, Mr. Dutkiewicz, Ms. Barnes, CPS Watch, Ms. Thompson,

Ms. Swallow, Ms. Tower, Ms. Kernaghan-Baez, Mr. Tower, Mr. Wiseman, and Mr. Kiefer (the

“Moving Defendants”) have moved to dismiss the claims against them for lack of personal

jurisdiction due to insufficiency of contacts with Colorado. Each defendant contends that

because they lack the requisite minimum contacts with the state of Colorado, this Court cannot

exercise of personal jurisdiction over them.

exercise personal jurisdiction over each of these Defendants based on either general jurisdiction

(based on multiple or extensive contacts with Colorado) or specific jurisdiction (specific, often

limited, contacts with Colorado such as by the monitoring or use of a website, agency

relationships, a conspiracy, actions subject to RICO, and a forum selection clause in a contract).

an evidentiary hearing and determine the facts pertinent to personal jurisdiction, or may defer to

allegations made by a plaintiff, but in such event, the plaintiff must establish those facts at trial.

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showing of facts sufficient to establish personal jurisdiction.

For a court to exercise personal jurisdiction over a defendant, there must both a showing

that (i) jurisdiction is proper under the laws of the forum state and (ii) the exercise of jurisdiction

the constitutional limitations imposed by the due process clause; therefore, the inquiry collapses

The due process clause requires that the nonresident defendant have “minimum contacts”

for any claim, whether arising from activities in the state or not, if the defendant has sufficiently

strong business contacts with the forum state. Because general jurisdiction is not tied to the

events forming the basis for the litigation, however, a court imposes a stringent minimum

contacts test, requiring the defendant to have “continuous and systematic general business

contacts” with the forum state.

Alternatively, a court may exercise specific jurisdiction over a defendant if the

defendant’s actions in or directed at the forum give rise to the litigation. The specific personal

jurisdiction test is two-pronged. There is an interplay between the two prongs such that the

stronger one prong, the weaker the other prong can be for the exercise personal jurisdiction.

Under the first prong, a court decides whether the defendant has sufficient minimum contacts

with the forum state such that he should “reasonably anticipate being haled into court there.”

This inquiry requires a determination of whether the defendant “purposefully directed” its

activities at residents of the forum and whether the action “arises out of or relates to” the

defendant’s own activities within the state and create a “substantial connection” with the forum

state.

The second prong of the specific jurisdiction analysis is whether the exercise of personal

jurisdiction over the defendant offends “traditional notions of fair play and substantial justice.”

This inquiry requires a determination of whether personal jurisdiction over a defendant with

minimum contacts is reasonable in light of the circumstances surrounding the case. In assessing

reasonableness, a court considers: (1) the burden on the defendant, (2) the forum state’s interest

in resolving the dispute, (3) the plaintiff’s interest in receiving convenient and effective relief,

(4) the interstate judicial system’s interest in obtaining the most efficient resolution of

controversies, and (5) the shared interest of the several states in furthering fundamental

substantive social policies.

The Moving Defendants each argue that this Court cannot exercise either general or

specific jurisdiction over them. They argue that they do not have sufficient minimum contacts

for general jurisdiction because they neither live nor work in Colorado, have no assets in

Colorado, and do not conduct business either in or with residents of Colorado. With regard to

specific jurisdiction, they argue that they have done nothing directed at Colorado that gives rise

to this litigation.

Ms. Shell’s showing does not establish that any of the Moving Defendants have the

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requisite “continuous and systematic general business contacts” with Colorado necessary to

subject them to general jurisdiction in Colorado. She offers only conclusory allegations that the

Defendants conduct business within Colorado or with Colorado residents. This is not sufficient.

Without specific factual allegations as to each Defendant’s business activities in Colorado, the

Court cannot determine whether the Defendant conducted business activities within the state of

Colorado to such a degree that it would be subject to general jurisdiction in Colorado.

Similarly, Ms. Shell’s showing is insufficient to establish specific jurisdiction over any of

the Moving Defendants. Again, all of her allegations are conclusory and generally made as to all

Defendants. She offers no facts pertinent to any Defendant or to any act that would evidence

that a Defendant “purposefully directed” his or her business or personal activities at Colorado

and that these activities gave rise to this litigation. Regardless of Ms. Shell’s contention that her

arguments are not merely conclusory, but are founded in fact, she does not present specific

Ms. Shell argues that these Defendants have directed their activities at Colorado through

their control over or participation in websites that are available for the public to access

customarily a distinction made between passive websites, moderately interactive websites, and

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(10th Cir. 1999). A passive website provides no interaction between the user and the website; it

simply posts information for interested viewers to read. By itself, a passive website does not

constitute sufficient minimum contacts. At the opposite end of the spectrum are interactive

websites that allow for the knowing and repeated transmission of data over the internet.

Interactive websites are sufficient to create personal jurisdiction over a defendant if the website’s

viewers to subscribe to a mailing list, purchase books online through a virtual store, and search

for particular products, and sent emails to purchasers to confirm purchases and shipments);

(finding personal jurisdiction based on a highly interactive website that allowed viewers to

search for, purchase, and pay by credit card for products). In the middle of the spectrum are

moderately interactive websites which allow for some exchange of information between a webuser

and the website. Whether such a website is sufficient to create personal jurisdiction

depends on the level of interactivity and the commercial nature of the exchange of information .

addressed a moderately interactive website. To initially determine the type of website, the Court

considered the level of interactivity and the commercial nature of the exchange of information

occurring on the website. Concluding that the site was moderately-interactive, the Court ruled

that the website, by itself, did not support purposeful availment of the forum. The Court noted,

however, that in some circumstances a moderately-interactive website, especially if combined

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with other evidence of purposeful availment, could be sufficient to support personal jurisdiction.

Thus, to determine whether a moderately interactive website is sufficient for personal

jurisdiction a court must have specific evidence about the website and how it is used.

As to the commercial nature of any website Ms. Shell offers no facts, only conclusions

that they “do business.” Indeed, the allegation that the websites “provide goods and services”

such as child welfare protective services, investigations, and the like to the public, including

Colorado, are not substantiated with any specific factual allegations. There are no factual

allegations regarding the specific goods and services provided, how users utilize the goods and

services, or whether they can purchase them directly from the websites.

With regard to interactivity, Ms. Shell generally states that users can join and participate

in discussion groups. There is, however, no indication that the website provides anything more

owner or operator of the website) but only with other discussion group members. While this

allegation shows some level of interactivity, it is not commercial in nature nor does it indicate

any purposeful availment of the laws of foreign states such as Colorado. Accordingly, there is

no basis on which to conclude that the websites are highly interactive and, therefore, form a

sufficient basis on which the Court can exercise personal jurisdiction over any Defendant.

Rather, it appears that all of the websites are either passive websites or moderatelyinteractive

between the user and the host, Ms. Shell cannot rely on them alone to establish personal

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jurisdiction over the Moving Defendants without coming forth with additional evidence of

Therefore, Ms. Shell cannot rest on the activities of the websites to subject any of the Moving

The agency theory of personal jurisdiction is rooted in the concept that the principal is

entity creates contacts for purposes of personal jurisdiction is through its authorized

Ms. Shell appears to misunderstand this theory of jurisdiction. The agency theory of

jurisdiction subjects the principal to the jurisdiction of a state for acts of an

agent in or directed to the forum state. It does not, however, subject an individual agent to the

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13 The Court notes that even if one or more of these websites were found to be viable bases on
which to base an exercise of personal jurisdiction, i.e., highly-interactive or moderately-interactive with
additional evidence of purposeful availment, not every individual defendant associated with that website
would be subject to personal jurisdiction based on that website. The Court need not, however, address
which defendants would be subject to personal jurisdiction based on the websites as no website provides a
basis for such jurisdiction.

14 Notably, however, the inquiry as to whether an agent’s actions are sufficient for purposes of
personal jurisdiction is separate from whether the agent’s actions are sufficient to impose liability on the
principal.

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jurisdiction of a state based on the actions of the principal or corporate entity. Thus, any of the

Moving Defendants’ status as an “agent” or “member” of AFRA or other entity does not subject

them to personal jurisdiction in Colorado even if AFRA or other entity was subject to personal

demonstrated that any website is sufficiently interactive to subject its owners or moderators to

personal jurisdiction in Colorado.

The only principal who has moved for dismissal is CPS Watch. Ms. Shell, however, has

not demonstrated that any of CPS Watch’s agents, in particular Ms. Swallow or Ms. Thompson,

have undertaken actions within in or directed at Colorado sufficient to subject CPS Watch to

jurisdiction here. Indeed, Ms. Shell has not alleged that either Ms. Swallow or Ms. Thompson

have undertaken any activities in Colorado.

Thus, the Moving Defendants are not subjected to personal jurisdiction in Colorado

based on an agency theory of personal jurisdiction.

The Tenth Circuit has acknowledged that, in some circumstances, personal jurisdiction

may be exercised based on the existence of a conspiracy and acts taken in furtherance of the

1069 (10th Cir. 2007). To exercise personal jurisdiction based on a conspiracy theory, the

plaintiff must come forward with more than bare allegations of a conspiracy; the plaintiff must

civil conspiracy are (1) a combination of two or more persons; (2) an object to be accomplished;

(3) a meeting of the minds in the object or course of action; (4) one or more unlawful, overt acts;

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F.3d 980, 1004 (10th Cir. 2007).

conspiracy. She has not provided anything more than conclusory allegations that the Moving

Defendants agreed on a common goal or object. Mere conclusory allegations that parties were

involved in a conspiracy is insufficient. For example, Ms. Shell’s allegation that the “defendants

knowingly entered into the conspiracy”, that “the conspiracy began in August 2000”, and that the

showing as to a meeting of the minds regarding the object of the conspiracy.

Ms. Shell’s specific allegations that both Mr. Henderson and Mr. Dutkiewicz individually

published statements on their respective websites that Ms. Shell’s website material was no longer

copyrighted does not show any agreement between these two parties, or with any other

defendant, regarding Ms. Shell. Similarly, Ms. Jackson’s alleged posting of the statement

“Heigh Ho, Heigh Ho, a-stealing we will go . . . duly lifted and placed in our JFF files section,

Al!! Best, Sue “the Filch” J. In Mass.” on a website does not demonstrate an agreement to

deprive Ms. Shell of her rights. Although it indicates that something was “stolen” and placed in

the “JFF files section”, it does not relate in any way to Ms. Shell nor her proprietary information

nor does it indicate that any other person agreed to the object of this statement.

Moreover, Ms. Shell has not alleged that any alleged co-conspirator engaged in a specific

overt act in Colorado sufficient to subject all other co-conspirators to personal jurisdiction in

Colorado. Thus, exercising jurisdiction over the Moving Defendants based on a conspiracy

theory is not appropriate.

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If Congress statutorily authorizes nationwide service of process, then proper service

establishes personal jurisdiction over a defendant, provided that the court’s exercise of

arguably could create nationwide jurisdictional reach. First, subsection (b) provides that “in any

district court of the United states in which it is shown that the ends of justice require that other

parties residing in any other district be brought before the court, the court may cause such parties

to be summoned, and process for that purpose may be served in any judicial district of the United

States.” Subsection (d) provides that “all other process in any action or proceeding under this

chapter may be served on any person in any judicial district in which such person resides, is

found, has an agent, or transacts his affairs.”

in a district court where personal jurisdiction can be established over at least one defendant,

summonses can be effected nationwide on other defendants if required by the ends of justice.

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jurisdiction is appropriate under RICO, the Court engages in a three step analysis: (1) whether

personal jurisdiction can be established over one defendant; (2) whether the ends of justice

require nationwide service; and (3) whether the exercise of jurisdiction comports with due

process. As to the second step, the Tenth Circuit has not provided a bright line rule for the “ends

of justice” analysis, rather noting that it is a “flexible concept uniquely tailored to the facts of

each case.”

Here, Ms. Shell has asserted a RICO claim against all of the Defendants in this action.

Thus, if she meets the three requirements delineated above, all defendants would be subject to

the jurisdiction of this Court based on RICO. Certain defendants, however, have moved to

dismiss the RICO claim for failure to state a claim. If they succeed on their Motion to Dismiss

provide a basis for personal jurisdiction. Accordingly, the Court first determines whether Ms.

Shell has sufficiently stated a RICO claim. If she has, then the court shall address whether

nationwide jurisdiction is proper.

The RICO statute provides a private right of action for those injured by violations of

section 1962. 18 U.S.C. § 1964(c). To assert such a civil RICO claim, a plaintiff must

demonstrate four elements: (i) conduct (ii) of an enterprise (iii) through a pattern (iv) of

“enterprise” is statutorily defined and includes “any individual, partnership, corporation,

association, or other legal entity, and any union or group of individuals associated in fact

although not a legal entity.” 18 U.S.C. § 1961(4). In addition to the enterprises specifically

enumerated in the statute, an enterprise may be any union or group of individuals associated in

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452 U.S. 576, 580, 583 (1981). The existence of such an association-in-fact is proven by

evidence of an ongoing organization, either formal or informal, under which the various

the Supreme Court concluded that an association-in-fact must have a structure with three

features: purpose, relationships among those associated with the enterprise, and longevity.

In this case, neither the Complaint nor Ms. Shell’s responses to the motions to dismiss

sufficiently allege an enterprise. Ms. Shell argues that the existence of an association-in-fact is

apparent from the Defendants’ membership and participation in various groups (including

AFRA, CPS Watch, and other child welfare reform groups) created for the purpose of engaging

in legitimate activities related to child welfare reform. She contends that this association-in-fact

has a continuity of structure and personnel, but provides no additional factual allegations.

Indeed, Ms. Shell provides no specific allegations as to the structure of any group, the

relationship between the groups, the relationship between individuals within a group or the

overarching association-in-fact, nor the longevity of the groups or its members. Without such

allegations, the Court cannot ascertain whether the alleged association-in-fact has the requisite

structure to constitute an enterprise under RICO. Although these individuals may have a

nothing before the Court to indicate that there is any relationship between the group members

such that the entire association-in-fact functions as a continuing unit. The Court acknowledges

that membership in a group may demonstrate an association-in-fact under RICO in some

circumstances. Here, however, Ms. Shell has not presented any allegations that AFRA, CPS

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Watch, or the other unnamed groups are related in any way to each other, or that membership in

any of these groups leads to the member becoming part of a functioning unit. Therefore, as Ms.

case for personal jurisdiction based on RICO.

Ms. Shell also asserts that the forum selection clause in a signed contract subjects Ms.

Swallow to personal jurisdiction in this Court. The Complaint alleges that, in connection with

attendance of one of Ms. Shell’s seminars in Florida in March 2005, Ms. Swallow signed a

contract regarding dissemination of Ms. Shell’s proprietary material which included a forum

selection clause subjecting Ms. Swallow to the jurisdiction of Colorado courts. The Complaint,

however, indicates that Ms. Shell no longer possesses the contract as it was stolen by Ms.

Swallow.

Construing the facts in the Complaint as true, as is required on a motion to dismiss, the

clause subjecting Ms. Swallow to the jurisdiction of this Court. However, as there is a genuine

factual dispute regarding the existence of this contract, the ultimate determination of personal

jurisdiction over Ms. Swallow is subject to an adequate showing at trial regarding the existence

and contents of the contract.

Ms. Shell also argues that various Defendants are subject to the jurisdiction of this Court

based on a forum selection clause contained on her website which states “Anyone visiting this

site consents to jurisdiction and venue remaining in El Paso County, Colorado.” This, however,

is not sufficient to subject these parties to the jurisdiction of this Court because Ms. Shell does

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not sufficiently allege that any Defendant manifested their intent to consent to this forum

selection clause. Absent such allegation, it would be unreasonable to exercise personal

defendant must comport with due process). Furthermore, the Court notes that the provision

references only courts in El Paso County, Colorado, which arguably does not include this Court.

(holding that a forum selection clause requiring suit to be brought in “Courts of the State of

Colorado” excluded federal courts).

26

Thompson, Ms. Tower, Ms. Kernaghan-Baez, Mr. Tower, Mr. Wiseman, and Mr. Kiefer, all

not dismissed.

Ms. Contreras moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state

facts regarding her personal participation in any unlawful or tortious activity.

There is a strong presumption against dismissal for failure to state a claim under Rule

However, a claim must be dismissed if the complaint does not contain enough facts to make the

claim is plausible on its face if the complaint contains sufficient facts for a court to draw an

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factual allegations in a complaint, a complaint must contain “more than labels and conclusions”

or “a formulaic recitation of the elements of a cause of action” and must “raise a right to relief

12(b)(6), a court should accept, as true, all well-pleaded facts and construe all reasonable

(10th Cir. 2009).

Ms. Contreras moves to dismiss all claims against her because the Complaint fails to

allege any facts as to her specific actions. Ms. Shell responds that she has sufficiently alleged

Ms. Contreras’ personal participation in the alleged offenses simply by virtue of labeling her one

of the “defendants” and alleging that the defendants committed the offenses. This, however, is

not sufficient to state a claim upon which relief can be granted. Indeed, such pleading is merely

“labels and conclusions” and “formulaic recitation of the facts” insufficient to state a claim and,

therefore, does not lead to an inference that Ms. Contreras is liable for the alleged misconduct.

Moreover, it is not sufficient to put Ms. Contreras on notice of the claims against her, as required

that a claim could be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to provide a short and

plain statement of the case sufficient to put the defendant on notice of the bases for the claims).

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Alex Bryan (named in the Complaint as Ringo Kamens) moves to dismiss all of Ms.

judgment on the pleadings pursuant to Rule 12(c), the Court applies the same standards as used

570.

To demonstrate copyright infringement, a plaintiff must demonstrate two elements: (i)

ownership of a valid copyright; and (ii) unlawful appropriation of protected portions of the

second element, a plaintiff must show both that the defendant actually copied the copyrighted

work and that the elements of the work that were copied were “protected expression and of such

29

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In this case, Mr. Bryan contests Ms. Shell’s showing of both elements of a copyright

claim and asserts fair use as an affirmative defense. The only allegation in the Complaint

relating to Mr. Bryan is that he expressly notified Ms. Shell that he had copied the entire content

of her website, saved it to his hard drive and a USB drive, and printed out a single copy.

Even taking these allegations as true, they are insufficient to demonstrate that the

allegedly copied works were “protected expression and of such importance to the copied work

that the appropriation is actionable.” Ms. Shell has submitted the copyright certificates for

content that was registered. Additionally, although the allegations indicate that Mr. Bryan

copied the “entire website”, Ms. Shell does not specify to which website this refers nor the

content of the website that was copied. Without such information, the Court is unable to

Bryan actually copied the copyrighted work, or whether the copied works constituted “protected

expression and of such importance to the copied work that the appropriation is actionable.”

30

Ms. Shell also asserts claims for contributory copyright infringement and vicarious

copyright infringement against Mr. Bryan. She bases these claims on the allegation that Mr.

Bryan “published articles on the World Wide Web urging the public to infringe my copyright as

he had which many did.” Mr. Bryan moves to dismiss both of these claims against him for

failure to state a claim, in particular that he knew of another individual’s direct infringement of

Ms. Shell’s copyrights.

Although the Copyright Act does not expressly cover contributory or vicarious

infringement, these doctrines of secondary liability are well established in the law and are

Contributory copyright infringement occurs when a defendant induces or encourages direct

infringement and vicarious infringement occurs when a defendant profits from direct

infringement while declining to exercise a right to stop or limit it.

For contributory infringement, a plaintiff must allege (i) direct copyright infringement by

a third-party; (ii) knowledge by the defendant of the direct infringement; and (iii) material

Cir. 1971) (“[O]ne who, with knowledge of the infringing activity, induces, causes or materially

contributes to the infringing conduct of another, may be held liable as a ‘contributory’

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inducement to others to violate Ms. Shell’s copyright rights actually led to any direct

infringement nor that Mr. Bryan had knowledge of the other direct infringement. Mr. Bryan’s

statement, without more, is not sufficient to state a claim for contributory infringement.

For vicarious infringement, a plaintiff must allege that the defendant (i) had the right and

ability to supervise the infringing activity or infringer; and (ii) possessed a direct financial

971 (2d Cir. 1997) (requiring the defendant have a right and ability to supervise that coalesced

with an obvious and direct financial interest in the exploitation of copyrighted materials). Here,

the Complaint does not allege that Mr. Bryan financially profited from any direct infringement

committed by another person or that he had the right or ability to supervise anyone or anyone’s

infringing activities. The bare allegation that Mr. Bryan was part of a conspiracy is not sufficient

to subject him to vicarious liability for others’ infringing acts.

Accordingly, Ms. Shell’s claims against Mr. Bryan for copyright infringement,

contributory copyright infringement, and vicarious copyright infringement are dismissed.

Ms. Shell alleges that Mr. Bryan tortiously interfered with her business relationships by

inducing others to copy the contents of her website without paying, thereby breaching the

unilateral contract on her website. A claim of tortious interference with contract requires five

---------------------

24 Ms. Shell submits materials outside the complaint, answers, and attachments to those
documents to support her claims of contributory and vicarious copyright infringement. These
attachments, however, may not be considered a motion for judgment on the pleadings. See Fed. R. Civ.
P. 12(d); Alexander v. Oklahoma, 382 F.3d 1206, 1213–14 (10th Cir. 2004).

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elements: (i) an existing valid contract between the plaintiff and a third party; (ii) knowledge by

the defendant of this contract; (iii) intent by the defendant for one of the parties to breach the

126 P.3d 262, (Colo. Ct. App. 2005). Alternatively, a claim for tortious interference with

prospective business advantage does not require a showing of an underlying contract; rather, the

plaintiff must show intentional and improper interference such that a particular contract is

(Colo. Ct. App. 2009).

Here, the Complaint does not allege that Mr. Bryan’s inducement actually resulted in any

breach of contract or prevented the formation of any contract. Although Ms. Shell generally

alleges that the “defendants” breached their contracts with her, she provides no factual

allegations to demonstrate the existence of any particular contract, that any particular third party

breached their contract, or that it was Mr. Bryan’s statements that led to such breach of contract.

Nor are Ms. Shell’s allegations sufficient to demonstrate that Mr. Bryan’s actions prevented the

formation of any particular contract. Thus, Ms. Shell’s claim for tortious interference against

Mr. Bryan is dismissed.

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To prevail on her claim for breach of contract against Mr. Bryan, Ms. Shell must allege four

elements: (1) existence of a contract; (2) performance by herself; (3) failure to perform by Mr.

(Colo. 1992).

In this case, the Complaint alleges that Ms. Shell’s website contains a “Copyright

notice/security agreement” which includes “an offer to copy or distribute any content on my

website profane-justice.org in exchange for pre-payment of posted license fees equal to

$5,000.00 per printed page per copy.” The Complaint further alleges that Mr. Bryan copied the

material off of the website without paying the requisite licensing fees. Ms. Shell argues that this

action manifested Mr. Bryan’s acceptance of the terms of the contract and that he breached said

contract by failing to pay the licensing fees. The Court disagrees.

Ms. Shell’s “Copyright notice/security agreement” set the manner by which offerees

could accept the offer—by pre-payment of licensing fees. By her very allegations, however, Mr.

Bryan did not pay the licensing fees. Therefore, even if he copied the material off of the website,

he did not accept Ms. Shell’s offer to enter into a licensing agreement. There being no showing

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As to the remaining claims asserted against Mr. Bryan, the Complaint is devoid of any

specific allegations against him. Ms. Shell’s conclusory allegations as to all defendants is not

sufficient to state a claim against Mr. Bryan. Accordingly, Ms. Shell’s claims against Mr. Bryan

for false and misleading advertising, unfair and deceptive trade practices, conspiracy, and

As to all claims asserted against Mr. Bryan, Ms. Shell has requested granted leave to

replead to address any deficiency. Leave is granted to file an amended complaint. The

amendments may include new, reformulated or additional claims against Mr. Bryan, only.

A number of Defendants move for sanctions against Ms. Shell based on the filing of this

lawsuit. The defendants, however, do not provide specific authority under which sanctions are

appropriate nor a means by which the amount of damages could be measured. Absent authority

for imposition of sanctions and a showing of how the Defendants have been harmed, the Court is

disinclined to impose sanctions at this time.

for failure to comply with D.C. Colo. L. Civ. R. 11.1.

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insofar as it seeks any other relief including sanctions. All claims against

(6) Defendants Cheryl Barnes, CPS Watch, Inc., and Sarah Thompson’s Motion to

including sanctions. All claims against Defendants Cheryl Barnes, CPS Watch,

insofar as it seeks any other relief including sanctions. All claims against

Case 1:09-cv-00309-MSK-KMT Document 397 Filed 03/31/10 USDC Colorado Page 37 of 38

insofar as it seeks any other relief including sanctions. All claims against

(16) Defendant Ringo Kamens a/k/a Alex Bryan’s Motion for Judgment on the

(17) Ms. Shell’s claim under the Racketeering Influenced and Corrupt Organizations

37

(18) Ms. Shell is granted leave to replead, with specific factual allegations, claims

against Defendant Ringo Kamens a/k/a Alex Bryan, but no other Defendant

currently named, within fourteen days of the date of this Order.

(19) Request for leave to amend with respect to claims against Defendant Dee

Contreras must be made by separate motion filed within fourteen days of this

Order.

(20) Defendants Susan Adams Jackson, Dee Contreras, Thomas Dutkiewicz, Cheryl

Barnes, CPS Watch, Inc., Sarah Thompson, Ann Tower, Dorothy Kernaghan-

Baez, William O. Tower, American Family Rights Association, William

Wiseman, Wiseman Studios, Cletus Kiefer, and Ringo Kamens shall be deleted

from the caption in all future filings.

Dated this 31st day of March, 2010

Marcia S. Krieger

United States District Judge

38