Goode v. GAIA, Inc.

• Docket Number: Civil Action 20-cv-00742-DDD-KAS
• Decision Date: 01 November 2023
• Parties: JAMES COREY GOODE, and GOODE ENTERPRISE SOLUTIONS, INC, Plaintiffs and Counter Defendants, v. GAIA, INC, JAY WEIDNER, BENJAMIN ZAVODNICK, JIRKA RYSAVY, BRAD WARKINS, and KIERSTEN MEDVEDICH, Defendants. ALYSSA MONTALBANO, Defendant, Counter Claimant, and Third-Party Plaintiff, v. DAVID WILCOCK, THE WILCOCK SPIRITUAL HEALING AND EMPOWERMENT FOUNDATION, Third-Party Defendants.
• Court: U.S. District Court — District of Colorado

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JAMES COREY GOODE, and GOODE ENTERPRISE SOLUTIONS, INC, Plaintiffs and Counter Defendants, v. GAIA, INC, JAY WEIDNER, BENJAMIN ZAVODNICK, JIRKA RYSAVY, BRAD WARKINS, and KIERSTEN MEDVEDICH, Defendants.

ALYSSA MONTALBANO, Defendant, Counter Claimant, and Third-Party Plaintiff, v. DAVID WILCOCK, THE WILCOCK SPIRITUAL HEALING AND EMPOWERMENT FOUNDATION, Third-Party Defendants.

Civil Action No. 20-cv-00742-DDD-KAS

United States District Court, D. Colorado

November 1, 2023

RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE

KATHRYN A. STARNELLA, MAGISTRATE JUDGE

This matter is before the Court on Defendant Alyssa Montalbano's (“Montalbano”) Motion to Dismiss Second Amended Complaint [#111] [#352] (the “Motion”).^[1] Plaintiffs filed a Response [#368] in opposition to the Motion [#352],^[2] and Defendant Montalbano filed a Reply [#378]. The Motion [#352] has been referred to the undersigned for a Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72(b)(1), and D.C.COLO.LCivR 72.1(c)(3). The Court has reviewed these briefs, the entire case file, and the applicable law, and is fully advised in the premises. For the reasons stated below, the Court respectfully RECOMMENDS that the Motion [#352] be GRANTED.

I. Background

The primary allegations in the Second Amended Complaint [#111] concerning Defendant Montalbano are as follows.^[3] Plaintiff James Corey Goode (“Goode”) alleges that he “is an educational and motivational speaker, influencer, author and media figure and is well-known and respected in the Conscious Community.” Second Am. Compl. [#111] ¶ 2. Plaintiff Goode alleges that he “has undergone years of repeated stalking and harassment by Montalbano that unfortunately, even though she has lost the case she brought against him, has been assessed attorneys fees for frivolous prosecution, and received a Report and Recommendation from a Magistrate [Judge] that she was delusional and that her case should be dismissed, still shows no sign of going away.” Id. ¶ 71.

Plaintiff Goode states that he “has had to seek a TRO/Stalking Order against Montalbano twice in the last two years due to her repeated stalking, threats, and invasion of Mr. Corey Goode's privacy.” Id. ¶ 72. He alleges that she “has stalked Mr. Goode by incessantly and repeatedly contacting and attempting to contact him with the sole purpose of coercing him into some fictitious and fanciful relationship that she has concocted in her mind.” Id. ¶ 73. He avers that, “[i]n retaliation to Mr. Goode's Stalking/TRO lawsuit filed on or around June 15, 2018, Montalbano opened a lawsuit in Mesa County against Mr. Goode on June 25, 2018.” Id. ¶ 74. He alleges that 36 filings were made in less than three months and that these “filings are replete with Montalbano's fanciful ideas of being married to Mr. Goode in another dimension, having romantic meetings through astral projection, and other disturbing stories as well as a painstaking detailed review of Mr. Goode's career and personal life details.” Id. ¶ 75.

Plaintiff Goode's counsel construed Defendant Montalbano's claims in the state court action as implicating copyright, and so Plaintiff Goode removed that action to federal court in September 2018. Id. ¶ 76. After removal, Defendant Montalbano amended her claims “at the suggestion of Judge Moore and after Magistrate [Judge] Gallagher recommended dismissal of the action,” and the lawsuit was remanded to state court in December 2018. Id. ¶ 77. Plaintiff Goode states that, in the two months the case was in federal court, there were 80 docket entries and that “[o]ver 95% of the filings in both [the state and federal] cases were by Montalbano, most stricken and/or ignored by the judges due to their sheer unfounded (in legal or reason), baseless and innocuousness nature.” Id. ¶¶ 78-79. Plaintiff Goode asserts that “[t]he amount of filings mounted after removal . . . has reached over a hundred,” that “[a]ll have been sent to Mr. Goode,” and that “[a]ll have been so voluminous that they necessitated packaging in boxes and caused repeated and continuing emotional distress.” Id. ¶¶ 80-81.

Plaintiff Goode states that, “[f]or two years now [he] has dealt with Montalbano's repeated harassment, defamation and unwanted affections and attention,” and that, “after years of Montalbano's ongoing and repeated harassment, stalking, and unwanted contact and attention, Mr. Goode has reached the point where he fears an impending attack of Montalbano's intense focus resulting in harm to himself and his family.” Id. ¶¶ 82-83. Defendant Montalbano has also “filed multiple motions against the Judge in the Mesa [County] action calling for his recusal for ‘perjury' and accusing him of working with Mr. Goode and his counsel.” Id. ¶ 86.

In addition, Plaintiff Goode alleges that Defendant Montalbano “has created a YouTube account purely for the purpose to harass, defame, threaten and discredit Mr. Goode.” Id. ¶ 87. He states that, on this YouTube channel, she “reads aloud-for hours at a time-her voluminous, nonsensical court filings and inserts delusional commentary about her imaginary husband-and-wife or ‘twin flame' relationship she has been asserting since at least 2018 exists between herself and Mr. Goode.” Id. ¶ 88. He states that she “accuses Goode of criminal acts and links her channel to [Defendant] Zavodnick and [Defendant] Weidner's YouTube channels.” Id.

Other allegations concerning Defendant Montalbano are somewhat sporadically provided in the Second Amended Complaint [#111]. Plaintiff Goode alleges that Defendant Montalbano and others “consistently tag Mr. Goode and use the Goode Marks in their Social Media posts-to ride off of the notoriety and reach of Mr. Goode's followers,” and they “make repeated misuse of the Goode Marks while defaming and harassing Goode-further harming Goode by spreading untruths and baseless statements while bolstering their viewership through the use of ‘tagging' on various social media platforms.” Id. ¶ 58. He states that, “[u]pon information and belief, the aforementioned malicious postings by Zavodnick, High and Montalbano contributed to Goode's blacklisting” from certain “major ufology events [and] leading ufology radio shows[.]” Id. ¶ 89. He also states that Defendant Montalbano is part of an enterprise whose purpose is “to accuse Goode of criminal activities through social media outlets and other wirings and use extortion . . ., harassment and any other manipulative tactic to deprive him of his livelihood.” Id. ¶¶ 104-05. He further alleges that Defendant Montalbano uses “the hashtag ‘#CoreyGoode' so that she can reach the tens of thousands of people who follow Mr. Goode's hashtag,” because her own “following on Twitter is one-tenth as large.” Id. ¶ 113.

Based on these allegations, Plaintiffs asserts nine causes of action against Defendant Montalbano: (1) Claim II: Civil RICO (Racketeer Influenced and Corrupt Organizations Act) Conspiracy Pursuant to 18 U.S.C. § 1962(d), id. ¶¶ 141-43; (2) Claim III: Federal Trademark Infringement (Under 15 U.S.C. §§ 1114 and 1125(a)), id. ¶¶ 14457; (3) Claim IV: False Designation of Origin and Federal Unfair Competition Under 15 U.S.C. § 1125, id. ¶¶ 158-61; (4) Claim V: Colorado Common Law Trademark and Trade Name Infringement, id. ¶¶ 162-65; (5) Claim VI: Colorado Common Law Unfair Competition, id. ¶¶ 166-72; (6) Claim VII: Colorado Consumer Protection Act, id. ¶¶ 17381; (7) Claim XIII: Slander Per Se, id. ¶¶ 195-99; (8) Claim XIV: Libel Per Se, id. ¶¶ 20004; and (9) Claim XV: Tortious Interference with a Business Expectancy, id. ¶¶ 205-08.

As a result, Plaintiffs seek various forms of monetary and non-monetary relief. Id. at 4041.

In the present Motion [#352], Defendant Montalbano seeks dismissal of all claims asserted against her pursuant to Fed.R.Civ.P. 12(b)(6).^[4] Plaintiffs state that they construe Defendant Montalbano's Motion [#352] as a motion for judgment on the pleadings under Rule 12(c) because she filed it after her Answer [#217].

In Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1212 n.4 (10th Cir. 2003), the Tenth Circuit Court of Appeals stated: “If . . . the defendant submits a motion to dismiss after filing an answer, the motion should be treated as a motion for judgment on the pleadings.” Here, Defendant Montalbano filed the instant Motion [#352] after she filed an Answer to the Second Amended Complaint [#184]. While “federal courts have allowed untimely motions if the defense has been previously included in the answer,”^[5] Defendant Montalbano does not appear to have raised the failures-to-state-a-claim arguments in her Answer. Accordingly, the Court will construe the Motion as one filed under Rule 12(c). See id. (noting that “the only time limitation on Rule 12(b) motions is that they must be made ‘before pleading'” and, thus, “[a] strict interpretation” of the Rule “leads to the conclusion that the district judge must deny any Rule 12(b) motion made after a responsive pleading is interposed as being too late”); see also Fed.R.Civ.P. 12(c) (allowing motions for judgment on the pleadings “[a]fter the pleadings are closed”).

Regardless, the same standard of review applies to Rule 12(b)(6) and Rule 12(c) motions. See Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1102 (10th Cir. 2017) (noting the same de novo standard of review applies to motions under Rules 12(b)(6) and 12(c)).

II. Standard of Review

A Rule 12(b)(6) standard of review applies to Rule 12(c) motions. Brokers' Choice of Am., Inc., 861 F.3d at 1102 Fed.R.Civ.P. 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed] to state a claim upon which relief can be granted.” The Rule 12 (b)(6) standard tests “the sufficiency of the allegations within the four corners of the...