Examination Bd. of Prof'l Home Inspectors v. Int'l Ass'n of Certified Home Inspectors

Decision Date10 February 2021
Docket Numberc/w Civil Action No. 18-cv-01797-RBJ,Civil Action No 18-cv-01559-RBJ
PartiesEXAMINATION BOARD OF PROFESSIONAL HOME INSPECTORS, and AMERICAN SOCIETY OF HOME INSPECTORS, INC., Plaintiffs, v. INTERNATIONAL ASSOCIATION OF CERTIFIED HOME INSPECTORS and NICKIFOR GROMICKO a/k/a Nick Gromicko, Defendants.
CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado

EXAMINATION BOARD OF PROFESSIONAL HOME INSPECTORS,
and AMERICAN SOCIETY OF HOME INSPECTORS, INC., Plaintiffs,
v.
INTERNATIONAL ASSOCIATION OF CERTIFIED HOME INSPECTORS
and NICKIFOR GROMICKO a/k/a Nick Gromicko, Defendants.

Civil Action No 18-cv-01559-RBJ
c/w Civil Action No. 18-cv-01797-RBJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

February 10, 2021


Judge R. Brooke Jackson

ORDER

This matter is before the Court on the following motions: defendants' motion for summary judgment against the American Society of Home Inspectors, Inc. ("ASHI") (ECF No. 58); defendants' motion for summary judgment against Exam Board Professional Home Inspectors ("EBPHI") (ECF No. 59); ASHI's motion for partial summary judgment (ECF No. 60); and EBPHI's motion for partial summary judgment (ECF No. 61). The Court also considers defendants' motion to strike exhibits and arguments (ECF No. 84) and defendants' amended motion to strike exhibits and arguments (ECF No. 91).

I. FACTUAL BACKGROUND

Examination Board of Professional Home Inspectors ("EBPHI") filed the first case against defendants Nickifor Gromicko and the International Association of Certified Home Inspectors ("InterNACHI"), No. 18-cv-1559-RBJ. American Society of Home Inspectors

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("ASHI") filed the second case against defendants Gromicko and InterNACHI, No. 18-cv-1797-RBJ. The two cases have been consolidated for all purposes. The following facts appear to be undisputed and are, in any event, assumed to be true.

A. The EBPHI case

EBPHI administers and owns the National Home Inspectors Examination ("NHIE"), an exam many states use to license home inspectors. In addition to its being a membership association for home inspectors, InterNACHI also offers a licensing exam for the home inspection industry. Therefore, EBPHI and InterNACHI are competitors within the home inspection examination and licensing industry. ECF No. 1 at 2.

Defendant Gromicko made numerous statements about EBPHI and the NHIE on InterNACHI's online forum, such as:

The NHIE is a joke of an exam. Meaningless piece of crap and a scam IMHO; Perhaps we'll sue them on your behalf. Would you be interested? We'll pay for everything. . . .;

The NHIE is a stupid piece of crap exam that asks questions outside of a home inspector's. . . standards of practice. . . . We stand ready to go to court for you against the EBPHI.

The questions about basements are fine as basements are part of a home inspector's SOP . . . even in areas that don't have basements . . . the questions about radon and sprinklers are not. . . I can go to court for you and get an injunction forcing EBPHI to grade your exam without those questions. Then through discovery, I'll find out everyone else who has ever failed the NHIE, and file a class action suit against the EBPHI . . . . It's not even a psychometrically valid exam and I can prove it in court. They'll owe millions in lost revenue. . . . Just say go.

The NHIE is a joke and now they're going to be a joke in front of a federal judge.

ECF No. 59-11.

In response to these statements, EBPHI filed the following claims against defendants Gromicko and InterNACHI: (1) defamation, (2) trade libel, (3) commercial disparagement, (4)

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tortious interference with business expectancy, and (5) deceptive trade practices under the Colorado Consumer Protection Act.

B. The ASHI case

ASHI and InterNACHI are competitors in the home inspection industry. Both companies provide memberships to independent home inspectors. ECF No. 60-2 at 1. Member home inspectors enjoy certain benefits, including being advertised to homebuyers on the associations' websites. The claims and counterclaims giving rise to this suit involve both associations' websites.

ASHI's website has a "Find a Home Inspector" tool that allows homebuyers to search for home inspectors within their geographic area. A tagline at the top of this webpage reads, "Educated. Tested. Verified. Certified." ECF No 71-11. When homebuyers conduct a search using this feature, the results page will depict relevant ASHI members along with their company name, contact details, and whether the inspector is an ASHI associate, inspector, or certified inspector, ASHI's three membership classes.

ASHI's website lists the criteria that home inspectors must meet to qualify for each membership class. ECF No. 60-2 at 21. An ASHI certified inspector is defined as "the highest level of ASHI membership." To become ASHI certified, home inspectors must pass the NHIE; complete the ASHI standards of practice and ethics modules; have their inspection reports verified; and submit proof they have conducted at least 250 home inspections. Id. To become an ASHI inspector, individuals must pass the NHIE or their state's exam; complete the ASHI standards of practice and ethics modules; have their inspection reports successfully verified; and submit proof that they have conducted at least 75 home inspections. Id. at 25. Finally, ASHI

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associates are "inspectors who have recently joined ASHI." Id. at 29. To be an associate, individuals must complete the ASHI standards of practice and ethics education modules.

ASHI requires members to complete a number of things to maintain good standing within the organization. For instance, members must complete continuing education requirements to remain in their membership class. Id. at 10. Further, they must submit home inspection reports for ASHI to verify depending on their class. ASHI employs home inspector report writers who review members' submitted reports and determine whether they are "appropriately and correctly put together" and meet ASHI standards. ECF No. 71-8 at 10-11. Although ASHI associates must complete the standards of practice and ethics modules, they are not required to complete the continuing education requirements until after one year of membership. Id. at 9.

In addition to its differentiating members based on ASHI membership classes, ASHI began listing whether member home inspectors had their backgrounds verified as well. In the summer of 2017 ASHI began using a background verification logo to indicate which home inspectors had undergone successful background checks. ECF Nos. 71-8 at 14; 71 at 17. Although ASHI does not deny membership to convicted felons, it will not ascribe the background verification logo to individuals who have been convicted of felonies. ECF No. 71 at 17.

InterNACHI, the larger of the two associations, was founded by defendant Gromicko, and also has an active online presence. Mr. Gromicko continues to work for InterNACHI and describes his primary job responsibility as handling consumer and member complaints. ECF No. 60-4 at 3. As a part of this work he responds to complaints and comments appearing on InterNACHI's online forum. ECF No. 61-10. In fact, Mr. Gromicko is quite active on this forum, and his forum activity forms the basis for ASHI's claims against defendants.

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On July 17, 2017 Mr. Gromicko used InterNACHI's online forum to comment about a recent Washington Post article that purportedly recommended homebuyers use InterNACHI home inspectors rather than ASHI's. In response to the article Mr. Gromicko posted "[t]he reporter failed to note that ASHI (American Society of Home Inspectors) was taken over by NAMBLA on Friday." ECF No. 60-10 at 3. He followed up by stating "It's a good thing they were taken over too. Most of the few members they have left are beginning to suffer from rigamortis [sic]." An InterNACHI member replied to the forum post and stated that he searched NAMBLA online and it was not the result he was expecting. ECF No. 60-10 at 4. Yet another member replied "[m]e either, creepy and not cool." Id. at 4.

NAMBLA is alleged to be an acronym for the North American Man-Boy Love Association. It is thus alleged to be an "actual organization that promotes sex between grown men and young boys and is working to abolish age of consent laws." ECF No. 58-12. The organization is commonly referred to in popular culture, including in an episode of South Park and several episodes of The Daily Show. ECF Nos. 58-11, 58-12. ASHI has no connection to NAMBLA, and no NAMBLA-ASHI merger occurred. ECF No. 60-2 at 4.

Following the commencement of this lawsuit, Mr. Gromicko continued posting about ASHI on his online forum. In one such comment he wrote, "ASHI is a statistical mass murder [sic] of children on a grand national scale. I'd sooner work with Jeffrey Dahmer. He only killed and ate 17 people." ECF No. 60-2 at 5. Perhaps it goes without saying, but ASHI does not engage in the mass murder of children. Id. at 5.

As a result of these statements ASHI filed suit against Gromicko and InterNACHI. ASHI alleged the following claims: (1) defamation, (2) trade libel, (3) commercial disparagement, and (4) deceptive trade practices under the Colorado Consumer Protection Act. Defendants filed two

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counterclaims against ASHI: (1) false advertising under the Lanham Act, and (2) tortious interference with business expectancy.

II. PROCEDURAL BACKGROUND

EBPHI filed its complaint against defendants on June 21, 2018. ECF No. 1. ASHI first filed its complaint against defendants on July 16, 2018. No. 18-cv-1797-RBJ, ECF No. 1. On September 25, 2019 this Court issued an order to consolidate the two related actions, and EBPHI became the lead plaintiff. ECF No. 50. On April 9, 2020 all parties filed motions for summary judgment. ECF Nos. 58-61. All parties filed their responses to the motions on May 14, 2020. ECF Nos. 71-74. On June 4, 2020 the parties filed their replies. ECF Nos. 86-89. Defendants also filed a motion to strike exhibits and arguments in Plaintiff's responses. ECF No. 84. Defendants subsequently filed an amended motion to strike on June 17, 2020. ECF No. 91. ASHI filed its response on July 10, 2020. ECF Nos. 98, 99. Defendants filed their reply on July 29, 2020. ECF No. 103. These matters are ripe for review.

III. STANDARD OF REVIEW

A court may grant summary judgment if "there is no genuine dispute as to...

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