Giduck v. Niblett

408 P.3d 856

John GIDUCK; Shari Nicoletti; and Archangel Group Ltd., a Colorado corporation, Plaintiffs-Appellants,

v.Joe NIBLETT; Mitchell Isaac Lake; Jay Harrison; Philip D. Martin; Tracy-Paul Warrington; Patrick McAleer; and Karl Monger, Defendants-Appellees.

Court of Appeals No. 13CA0775

Colorado Court of Appeals, Div. IV.

Announced July 3, 2014

Certiorari Dismissed August 28, 2015

Foster Graham Milstein & Calisher, LLP, Lawrence G. Katz, Chip G. Schoneberger, Denver, Colorado, for Plaintiffs-Appellants.

Welborn Sullivan Meck & Tooley, P.C., William R. Rapson, Denver, Colorado for Defendants-Appellees Joe Niblett, Philip D. Martin, and Tracy-Paul Warrington.

Hayes, Phillips, Hoffman & Carberry, P.C., Herbert C. Phillips, Fairplay, Colorado, for Defendants-Appellees Mitchell Isaac Lake, Jay Harrison, and Patrick McAleer.

Hall & Evans, L.L.C., Andrew D. Ringel, Conor P. Boyle, Denver, Colorado, for Defendant-Appellee Karl Monger

Opinion by JUDGE GRAHAM

¶ 1 In this defamation case, plaintiffs, John Giduck, his wife Shari Nicoletti, and Archangel Group, Ltd., appeal the district court's judgment in favor of defendants, Joe Niblett, Mitchell Isaac Lake, Jay Harrison, Philip D. Martin, Tracy–Paul Warrington, Patrick McAleer, and Karl Monger.¹

¶ 2 We conclude the district court lacked personal jurisdiction over Niblett, Lake, Harrison, Warrington, McAleer, and Monger (the foreign defendants). We further conclude that plaintiffs failed to state a claim against Martin. We therefore affirm.

I. Background

¶ 3 Giduck and Nicoletti are Colorado residents. Giduck has written at least three books and given lectures on terrorism and anti-terrorism. He claims to have Ph.D. and Juris Doctor degrees. He also claims to have extensive martial arts experience and to have trained with Russian Airborne and Special Forces units. Giduck also claims to have been hired by several state and federal agencies to provide analysis, consulting, and training. Archangel Group, Ltd., is a business through which Giduck, at all times pertinent, conducted or attempted to conduct, his business.

¶ 4 Plaintiffs sued defendants for defamation (libel per se and libel er quod), trespass, assault, invasion of privacy, intentional interference with contract, tortious interference with prospective business advantage, extreme and outrageous conduct, civil conspiracy, aiding and abetting tortious conduct, preliminary and permanent injunction, and violation of the Colorado Organized Crime Control Act, based upon various Internet postings by defendants on the website socnet.com and other websites. According to the complaint, "[d]efendants waged a public campaign of defamation all over" the Internet in order to discredit Giduck based upon defendants' opinion that Giduck exaggerated, or falsely represented, his expertise in the field of terrorism and counterterrorism.

¶ 5 In their original complaint, plaintiffs did not identify which defendants made the alleged defamatory statements. Defendants filed a motion for a more definite statement under C.R.C.P. 12(e), and the district court granted the motion, ruling:

The complaint names some 20 defendants that allegedly acted in conspiracy to post false and defamatory statements about the plaintiffs on an internet website. The complaint details numerous posts, which disparage the plaintiffs in varying degrees. The complaint does not identify which defendant posted any of the specific defamatory statements but simply alleges that the defendants were acting in concert and conspired to defame the plaintiffs. Basically, the defendants' motion is requesting a more definite statement as [to] which individual defendant posted which specific defamatory comment and approximately when it occurred.

The [c]ourt finds and concludes that [p]laintiffs' complaint lacks sufficient definiteness and particularity to enable the defendants to respond to and defend against each alleged wrong-doing.

¶ 6 Plaintiffs then filed an amended complaint listing approximately 174 statements made by specific defendants that were allegedly defamatory. Plaintiffs incorporated the amended claims by reference into their claims for trespass, assault, invasion of privacy, intentional interference with contract, tortious interference with prospective business advantage, extreme and outrageous conduct, civil conspiracy, aiding and abetting tortious conduct, preliminary and permanent injunction, and violation of the Colorado Organized Crime Control Act (claims three through twelve), all of which generally alleged that unspecified "defendants" had committed the tortious conduct.

¶ 7 Defendants filed separate but substantially similar motions to dismiss. Particularly, Monger filed a motion to dismiss under C.R.C.P. 12(b)(2) and 12(b)(5), arguing in part that plaintiffs failed to establish personal jurisdiction over him, and, thus, dismissal of the complaint was appropriate. The remaining defendants joined in Monger's motion to dismiss. Niblett, Warrington, and Martin filed a joint C.R.C.P. 12(b)(5) motion to dismiss, arguing that plaintiffs' complaint failed to state a claim because the alleged defamatory statements were either not defamatory as a matter of law or opinions protected by the Free Speech Clause of the First Amendment to the United States Constitution.² Lake, Harrison, and McAleer also filed a joint C.R.C.P. 12(b)(5) motion to dismiss on grounds that their statements were constitutionally protected. Defendants also renewed their motion for a more definite statement under C.R.C.P. 12(e) based on plaintiffs' failure to identify specific defendants in claims three through twelve.

¶ 8 The district court granted the motions to dismiss. The court granted Monger's motion to dismiss "[p]ursuant to C.R.C.P. 12(b)(2) and C.R.C.P. 12(b)(5)" without findings of fact or conclusions of law. The court granted Lake, Harrison, and McAleer's joint motion, concluding that each alleged defamatory statement was protected opinion. The court also granted Niblett, Warrington, and Martin's motion to dismiss for the same reason. As to Lake, Harrison, McAleer, Niblett, Warrington, and Martin, the court concluded:

The statements attributed to these [d]efendants regarding Giduck were blunt, uncomplimentary, and probably "rhetorical hyperbole." But they were also privileged statements of opinion protected by the First Amendment as applied in a litany of [United States] Supreme Court and Colorado appellate cases. The application of those cases is a question of law that must be addressed by this [c]ourt before the case goes any further. Dismissal of the defamation claims in the Amended Complaint is required for failure to state a claim upon which relief can be granted.

The court further concluded that:

The [c]ourt's [o]rder of August 15, 2012 directs the [p]laintiffs to file an amended complaint of "sufficient definiteness and particularity to enable the defendants to respond and defend against each alleged wrongdoing." As to the third through twelfth claims for relief the [p]laintiffs have ignored this direction. Instead they have simply repeated verbatim the allegations from the [o]riginal [c]omplaint with no attempt whatsoever to tie the alleged wrongdoing to any particular defendant. There is absolutely no allegation in any of these nine claims for relief that these [d]efendants did anything wrong, did anything injurious to [p]laintiffs, or, for that matter, that these [d]efendants did anything at all.

The failure to allege any wrongdoing by these specific [d]efendants in any of these nine claims requires that they be dismissed for failure to state a claim.

¶ 9 On appeal, plaintiffs make three arguments. First, the district court erred in concluding the defendants' statements were constitutionally privileged. Second, the court erred in dismissing claims three through twelve as a sanction for improperly amending their complaint. Third, the court erred in granting Monger's motion to dismiss for lack of personal jurisdiction. Because personal jurisdiction over a defendant is required before a court may enter enforceable orders, and because all of the defendants other than Martin assert that they were not subject to the in personam jurisdiction of the Colorado district court, we address the issue of personal jurisdiction first. See Currier v. Sutherland, 218 P.3d 709, 714 (Colo.2009) (personal jurisdiction involves the court's authority over a particular individual); Rombough v. Mitchell, 140 P.3d 202, 204 (Colo.App.2006) ("Personal jurisdiction is the court's power to subject a particular defendant to the decisions of the court."); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ("Personal jurisdiction ... is an essential element of the jurisdiction of a district court, without which the court is powerless to proceed to an adjudication." (internal quotation marks and alterations omitted)); Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (" ‘On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes.’ " (quoting Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S.Ct. 690, 44 L.Ed. 842 (1900) )).

II. Personal Jurisdiction

¶ 10 Plaintiffs contend the district court erred in granting Monger's motion to dismiss for failure to establish personal jurisdiction.³ We conclude that plaintiffs failed to establish the district court's personal jurisdiction over the foreign defendants and therefore the district court's dismissal of the complaint against these defendants was proper.

A. Standard of Review

¶ 11 Whether a court has personal jurisdiction over a party is a question of law that we review de novo. Union Pac. R.R. v. Equitas Ltd., 987 P.2d 954, 957 (Colo.App.1999). We also review de novo a trial court's ruling on a motion to dismiss. First Horizon Merch. Servs., Inc. v. Wellspring...