Case 1:12-cv-02252-RPM Document 21 Filed 12/10/12 USDC Colorado Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 12-cv-02252-RPM KASEL ASSOCIATES INDUSTRIES, INC. and RAYMOND J. KASEL, Plaintiffs, v. CITY AND COUNTY OF DENVER, et al.

Defendants. PLAINTIFFS RESPONSE TO DEFENDANT SHARON BROWNS MOTION TO DISMISS THE SIXTH, EIGHTH AND NINTH CLAIMS FOR RELIF AND MOTION FOR MORE DEFINITE STATEMENT AS TO THE EIGHTH CLAIM FOR RELIEF Plaintiffs Kasel Associates Industries, Inc. and Raymond J. Kasel (collectively, Plaintiffs) by their attorneys, Campbell Killin Brittan & Ray, LLC, submit the following Response in Opposition to Defendant Sharon Browns (Brown) Motion to Dismiss the Sixth, Eighth and Ninth Claims for Relief (Motion to Dismiss) and Motion for a More Definitive Statement as to the Seventh Claim for Relief (Motion for More Definite Statement) (collectively, Motions). Defendants Emily vonSwearingen (vonSwearingen) and Michael Ensminger

(Ensiminger) failed to timely respond to Plaintiffs Amended Complaint.

However, on

November 30, 2012, each entered an appearance in which they stated that they were joining in Browns Motions. Plaintiffs contend that these belated entries of appearance and procedurally improper attempts to join Browns Motions do not remedy vonSwearingens and Ensmingers

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failure to timely respond. However, because the Court may consider overlooking these procedural irregularities from pro se defendants, Plaintiffs respond to the Motions as if they were brought jointly by Brown, vonSwearingen and Ensminger (the RiNo Defendants). I. INTRODUCTION The fundamental fact of this case is that the RiNo Defendants illegally and knowingly moved next to Kasel Industries lawfully operating dog treat manufacturing facility. Having secured the Citys permission to reside next to that facility by agreeing to endure or to themselves remediate against the discomfort naturally associated with manufacturing, reneged and sought some means to force Kasel Industries to curtail or stop manufacturing. Under the circumstances, the RiNo Defendants (unlike the defendants in the Walker v. Van Laningham case upon which they rely (148 P.3d 391 (Colo. App. 2006)), had no right to take action against what to them became a nuisance because they could not demonstrate that Plaintiffs had somehow invaded their rights, meaning that the Plaintiffs had used their own land in a way that unreasonably interfered with the RiNo Defendants property rights. While, as in Walker, a property owner in a residential area may own a right to exclude the operation of a dog kennel from the universe of possible uses of the neighboring land, or at least to limit the number of dogs, a property owner who moves to a clearly zoned industrial area and agrees to bear the risk of that decision has no such right. Thus, unable to mount a direct attack against Plaintiffs for legal uses they find objectionable, the RiNo Defendants have entered into a bargain with the City to chip away at Plaintiffs rights with respect to the use of their property. The facts of this case will show that the RiNo Defendants have spent years (nearly twenty years in the case of Ms. Brown) trying to force Kasel Industries to curtail manufacturing, at times, and especially of late, conspiring with representatives of the City of Denver, including Councilwoman Montero and her aide Stephanie Syner, as well as representatives of the 2

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Department of Environmental Health (DEH), Douglas Linkhart, Gary Lasswell, and Benjamin Siller, (collectively, the City Defendants), to accomplish their goal by subjecting Plaintiffs to a constant barrage of unwarranted inspections, investigations and administrative and judicial proceedings. Significantly, none of the noise or odor complaints by the RiNo Defendants has ever been substantiated. Instead, as the facts will show, Plaintiffs have consistently been found in compliance with applicable noise and odor emission levels until, finally, an ordinance was passed that contains no objective odor levels but basis liability only on complaints. After years of frustration, in 2011, the RiNo Defendants and the City Defendants initiated a conspiracy through which they would improperly use Denver Revised Municipal Code 410(b)(2) (the Odor Ordinance) to cite Plaintiffs without objective proof of any violation. Plaintiffs allege that this Odor Ordinance was enacted in 2010 specifically with Plaintiffs in mind as a result of the Citys historic inability to successfully cite and/or prosecute Plaintiffs. In furtherance of their common goal of forcing Plaintiffs out of the district, the RiNo Defendants, at the instruction of the City Defendants, actively solicited residential neighbors in the vicinity of Kasel Industries to call and register odor complaints so that DEH would receive five complaints about Plaintiffs within a 12 hour period. The RiNo Defendants efforts included the posting of defamatory fliers which stated: Councilwoman Montero is requesting your help to take action against the Pig Ear Factory and I take pride in our neighborhood and do not want my property values lowered, or my quality of life impacted, due to the reckless disregard one unethical businessman has for his neighbors. After several failed attempts to corral the necessary number of complaints (the RiNo Defendants needed at least two other willing complainants), these efforts ultimately paid off as the RiNo Defendants were able to get two other residential neighbors to register complaints with DEH within the requisite twelve hour period. Kasel Industries was then cited even though (i) there was no proof that Kasel Industries had done anything wrong; (ii) the 3

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validity of the complaints could not be founded on prior citations or convictions; and, (iii) as the facts at trial will establish, Plaintiffs were not even operating the factorys ovens at the time of the odor complaints were registered. Denver County Court Judge Larry Bohning recognized the campaign against Plaintiffs constituted an abuse of process stating candidly, in connection with the Citys second prosecution of Kasel Industries in a single year, that it was his belief that the City was attempting to accomplish an illegal act through legal means. (ECF#5 at 28). In the Amended Complaint, Plaintiffs allege that the RiNo Defendants, in conspiracy with the City Defendants, nonetheless continued their campaign by manipulating the Citys Odor Ordinance, and the administrative process associated therewith, through active solicitation of unsubstantiated odor complaints against Kasel Industries in a conscious effort to circumvent the standard means for evaluating odor emissions levels in order to allow the City to cite Plaintiffs. In sum, the RiNo Defendants used legal means improperly, and harbored an improper motive for doing so. Because Plaintiffs have sufficiently pled facts which support their abuse of process claim, to the extent their civil conspiracy and injunctive relief claims are premised on the abuse of process claim, they are likewise sufficiently pled. However, should the Court dismiss Plaintiffs abuse of process claim, for any reason, Plaintiffs conspiracy and injunctive relief claims against the RiNo Defendants remain nevertheless because they are equally premised on Plaintiffs defamation claim, which the RiNo Defendants are not seeking to dismiss. II. PLAINTIFFS CLAIMS FOR RELIEF AGAINST THE RINO DEFENDANTS A. Civil Conspiracy - Sixth Claim for Relief

The Amended Complaint specifically alleges that in February and March 2012, the City Defendants and the RiNo Defendants entered into an unlawful conspiracy to register unsubstantiated and false odor complaints in order that Kasel Industries would be found in 4

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violation of the Odor Ordinance. (ECF#5 at 82 and 85).

As set forth in more detail below,

Plaintiffs civil conspiracy claim is also based on allegations that the City Defendants and the RiNo Defendants conspired to defame/slander Kasel by posting fliers which, among other things, described Kasel as an unethical businessman. (ECF #5 at 86). B. Defamation - Seventh Claim for Relief

Plaintiffs allege that, in or around February, 2012, the RiNo Defendants defamed Plaintiffs by communicating and publishing to third persons the following statements about Plaintiff Kasel: Councilwoman Montero is requesting your help to take action against the Pig Ear Factory and I take pride in our neighborhood and do not want my property values lowered, or my quality of life impacted, due to the reckless disregard one unethical businessman has for his neighbors. (ECF #5 at 94) As alleged, these communications have affected the view of the owners and residents of the properties neighboring the Plaintiffs and Plaintiffs reputation in the community, likely resulting in success in finding two more residents to join the complaint campaign. It can reasonably be expected that the defamation will continue to affect the view of these neighboring owners and residents as Plaintiffs conduct operations at their factory. (ECF #5 at 98). Plaintiffs allege that at the time of publication, the City Defendants and the RiNo Defendants either knew that the statements were false or made the statements with reckless disregard as to whether they were false. (ECF #5 at 99). Plaintiffs also allege these statements were defamatory per se because they defamed Plaintiff Kasel in his trade, business, and profession and were intended to expose the Plaintiffs to public contempt. (ECF #5 at 100). C. Abuse of Process - Eighth Claim for Relief

Plaintiffs allege that the City Defendants and the RiNo Defendants, without a reasonable factual basis, used procedural tools, including the Odor Ordinance, in a manner not proper in the regular conduct of such an action. (ECF #5 at 104, 105 and 106). 5 Plaintiffs further allege

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that the City Defendants and the RiNo Defendants improperly used these procedural tools with the ulterior motive, and the ultimate coercive goal, of forcing Plaintiffs to curtail or cease manufacturing operations. (ECF #5 at 104-108). D. Injunctive Relief Ninth Claim for Relief

Plaintiffs seek an order enjoining the RiNo Defendants from further defamation of Plaintiffs and/or continuing their campaign to have neighboring residents register baseless odor complaints against Plaintiffs. (ECF #5 at 119). Plaintiffs have suffered real economic damage (costs of defense, lost profits, and damage to reputation among them) and have a protectable interest in preventing further harm. Further, there is no adequate remedy at law to protect against further harassment and defamation by the RiNo Defendants. (ECF #5 at 114 and 118). III. LEGAL STANDARD In reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must accept all the well pleaded allegations of the complaint as true and must construe then in the light most favorable to the plaintiff. David v. City & County of Denver, 101 F. 3d 1344 (10th Cir. 1990). Consistent with Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the Court must decide "whether the complaint contains enough facts to state a claim to relief that is plausible on its face.'" A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Peiker Acoustic, Inc. v. Patrick Kennedy, 2010 WL 4977870 at *1 (D.Colo. 2010). Thus, [w]hen there are well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. Determining whether a claim states a plausible claim for relief is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Id. In evaluating the Motion to Dismiss, the Court may consider not only the Amended 6

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Complaint itself, but also documents incorporated therein by reference. Telllabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1180 (10th Cir. 2007).1 Additionally, because Plaintiffs abuse of process, civil conspiracy and injunctive relief claims are pendant to their federal claims, they are governed by Colorado law. Erie v. Tompkins, 304 U.S. 64, 78 (1938). IV. LEGAL ARGUMENT A. Plaintiffs Have Properly Alleged a Claim for Abuse of Process.

Seeking to accomplish a coercive goal through a proper proceeding constitutes an abuse of process. Mintz v. Accident and Injury Medical Specialists, PC, 284 P.3d 62, 66 (Colo.App. Nov 10, 2010). [T]he gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. Peiker Acoustic, Inc., 2010 WL 4977870, *2 (D.Colo. 2010); Mintz, 284 P.3d at 66. An abuse of process claim requires two basic showings: using legal means improperly, and harboring an improper motive for doing so. Gustafson v. American Family Mut. Ins. Co., 2012 WL 4755357, *12 (D.Colo. 2012). An improper use of the legal process occurs when a particular procedural tool is used in an attempt to accomplish a result which that tool, when properly used, could not provide. Partminer Worldwide Inc. v. Siliconexpert Technologies Inc., 2010 WL 502718 *2 (D.Colo. 2010); see, e.g., Am. Guar. & Liab. Ins. Co. v. King, 97 P.3d 161, 170 (Colo.App.2003) (finding an abuse of process when party filed lawsuit against the wife without a valid claim to obtain money from husband); Aztec Sound Corp. v. Western States Leasing Co., 510 P.2d 897, 899 (Colo.App.1973) (defendant used replevin action not to regain property, but to force plaintiff to pay money not due);
1

Although the emails by and between the City Defendants and the RiNo Defendants were not attached to the Amended Complaint, they are referenced therein and their authenticity is not in dispute. As such, the Court may consider these emails substantiating Plaintiffs claims, as part of Plaintiffs allegations against the RiNo Defendants. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007) (internal quotation omitted).

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Lauren Corp. v. Century Geophysical Corp., 953 P.2d 200, 202 (Colo.App.1998) (party requested a declaratory judgment not to obtain relief, but to coerce the opposing party to transfer its software to a third party); Colo. Homes, Ltd. v. Loerch-Wilson, 43 P.3d 718 (Colo. App. 2001)(party obtained a temporary restraining order for purposes other than preventing the opposing party from threatening harm). The improper purpose is ordinarily an attempt to secure from another some collateral advantage not properly includable in the process itself and is a form of extortion in which a lawfully used process is perverted to an unlawful use. Peiker Acoustic, Inc., 2010 WL 4977870 at *2. Usually, the ulterior purpose is to obtain an advantage in another matter to achieve the surrender of property or the payment of money. Mintz, 284 P.3d at 66, citing Hertz v. Luzenac Group, 576 F.3d 1103, 1118 (10th Cir.2009). In seeking to dismiss Plaintiffs abuse of process claim against them, the RiNo Defendants rely exclusively on Walker v. Van Laningham, 148 P.3d 391 (Colo. App. 2006). While on the

surface Walker appears analogous, a closer look at the decision reveals that the property rights at issue are different as the Walker neighbors had a right to object to the barking dogs on their neighbors property. Nothing in the case indicates the Walkers decided to take up residence next to the kennel, properly operating within the least restrictive zoning, with full knowledge of the barking dogs. Further, the level of conspiratorial conduct of the RiNo Defendants here is poles apart from the conduct of the defendants in Walker. In Walker, the neighbors used a lawful process for the very purpose for which it was designed, to prevent loud and persistent dog barking. Thus, the complainants were not seeking an end other than that which the animal control ordinance was designed to accomplish. Here, as evidenced by the flier, the RiNo Defendants motives, or at least their disdain, went far beyond an odor issue. Further, as a result of the complaints in Walker, the plaintiff was convicted of a number of barking dog violations as well as a charge of cruelty to 8

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animals. Based on Walkers prior convictions, the Court of Appeals determined that the complaints registered against him were not unfounded. Id. at 396. In contrast, as explained below, the conduct here represents the latest in a continuous heretofore unsuccessful effort by the RiNo Defendants (in partnership with the City and the City officials) to force Plaintiffs, properly operating their manufacturing business in compliance with applicable zoning, to alter or give up their business. Also, of significance to the Courts analysis of the plaintiffs abuse of process claim in Walker, was the fact that the plaintiff had not alleged any willful acts by his neighbors in the animal control proceedings other than acts that were legitimate and proper in the regular conduct of those proceedings. Id. at 395. The Court concluded that the neighbors had not taken any improper or coercive action to obtain a collateral advantage not properly included in the process itself. Id. Here, Plaintiffs have specifically alleged that the RiNo Defendants enlisted the Citys aide (and vice versa, as existing evidence indicates and discovery should clarify) and conspired with the City to solicit and file unsubstantiated complaints and engaged in defamation of Plaintiff Kasel in furtherance of their improper purpose. (ECF #5 at 38-45). As opposed to Walker, where all the neighbors wanted was the barking to stop, in this case, the RiNo Defendants complaints were not based on any actual unlawful behavior by the Plaintiffs. Here, the Plaintiffs were not found to have violated any odor emissions standards or actually done anything wrong. The only basis for the citation was that the RiNo Defendants had registered the necessary number of complaints. The source for the complaints (foul odor) and level of odor was never properly substantiated. The DEH inspector who, at the earliest, contacted the complainants two days after the complaints were registered only asked the complainants what they thought was the source of the odor. In fact, as the evidence developed through disclosures and discovery, will

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show, Kasel Industries, was not even operating the factorys ovens at the time the odor complaints were registered and, therefore, could not have been the source of any odor. Additionally, in Walker, the defendants utilized the only applicable ordinance as intended to stop actual barking. In contrast, in this case, the RiNo Defendants only used the Odor Ordinance at the direction of the City Defendants as a pretext because Kasel Industries could not be found to have violated any of the applicable odor emissions or noise standards. The Defendants purposefully sought to avoid the standard means for measuring Plaintiffs compliance with the applicable odor emission levels. Further, as opposed to Walker, in this case the Defendants have a long history of improperly using the legal process in an improper attempt to hold Kasel to inapplicable residential and/or commercials standards. (ECF# 5 at 26, 27, 28 and 34). Unlike the plaintiff in Walker, in this case, Plaintiffs are not suing the RiNo Defendants for abuse of process simply because they registered odor complaints. Plaintiffs are suing the RiNo Defendants because, after years of relentless and unwarranted harassment which has caused Plaintiffs to be subjected to a constant barrage of inspections, investigations and administrative proceedings, the RiNo Defendants, frustrated by their lack of success in getting Plaintiffs to move out or change operations in a manner pleasing to Defendants, orchestrated a documented campaign to solicit unwarranted odor complaints against Plaintiffs. In taking this course and improperly enlisting the assistance of the City, the RiNo Defendants wrongfully manipulated the legal process so that Plaintiffs could be cited even though they were not guilty of any actual odor violation. The RiNo Defendants Motion to Dismiss Plaintiffs abuse of process claim against them must be denied because Plaintiffs have sufficiently alleged that the RiNo Defendants abused the legal process by using improper means, including the drumming up of manufactured odor complaints against Plaintiffs, in a way not intended by the ordinance, with the improper ulterior motive of allowing the City to cite Plaintiffs and in furtherance of their ultimate goal of either 10

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forcing Plaintiffs to submit to inapplicable and entirely subjective odor emission standards or stopping them from manufacturing in the district. While Plaintiffs contend that the Odor Ordinance is facially unconstitutional because it allows for issuance of a penalty even when there is no actual violation, even if the ordinance were deemed to be constitutional, it surely cannot be the case that it was intended to permit issuance of a penalty against an innocent property owner based solely on manufactured and unsubstantiated complaints. B. Plaintiffs Have Properly Alleged that the RiNo Defendants Engaged in a Civil Conspiracy to Both Defame Plaintiffs and to Unlawfully Utilize the Odor Ordinance to Have Plaintiffs Cited for Unfounded Odor Violations.

To establish a claim for civil conspiracy under Colorado law, the Plaintiff must prove: (i) a meeting of the minds among two or more persons; (ii) to establish a common object; (iii) one or more unlawful overt acts in furtherance of that object; and (iv)resulting damages. Jet Courier Serv., Inc. v. Mulei, 771 P.2d 486, 502 (Colo. 1989) (quoting More v. Johnson, 193 Colo. 489, 493, (1977)). In their Amended Complaint, Plaintiffs allege that the City Defendants and the RiNo Defendants entered into an unlawful plan to register unsubstantiated and false odor complaints in order that Kasel Industries would be found in violation of the Odor Ordinance. (ECF # 5 at 83). The agreement is confirmed by emails by and between the City Defendants and the RiNo Defendants. (ECF #5 at 84). It is early in this case, and discovery will shed further light on the nature and extent of the agreement. However, Plaintiffs have alleged facts based upon existing documents and information to support their contention that the RiNo Defendants and the City Defendants used legal means improperly, by actively encouraging and instructing the RiNo neighbors to register unsubstantiated odor complaints. (ECF #5 at 83-85). These unsubstantiated and drummed up odor complaints became the pretext for the City Defendants to improperly cite Kasel Industries. (ECF #5 at 90). 11

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Additionally, Plaintiffs allege the City Defendants and the RiNo Defendants conspired to defame/slander Kasel by posting fliers calling him an unethical businessman. (ECF #5 at 87). The Plaintiffs were harmed in that they were issued, and were required to defend against, a Notice of Violation, and Plaintiffs reputation was injured by unsubstantiated and false accusations of unethical conduct by Kasel published throughout the neighborhood. Again relying on the Walker decision, the RiNo Defendants seek to have Plaintiffs civil conspiracy claim dismissed based on their contention that, if the Court dismissed Plaintiffs abuse of process claim, Plaintiffs civil conspiracy also fails automatically because it is derivative. (ECF #13 at p. 13). However, the RiNo Defendants ignore the fact that Plaintiffs civil conspiracy claim is equally founded on Plaintiffs defamation claim. Therefore, even if the Court were to dismiss Plaintiffs abuse of process claim, Plaintiffs civil conspiracy claim would remain as the RiNo Defendants did not, and could not properly, ask the Court to dismiss Plaintiffs defamation claim. C. The Amended Complaint Sufficiently Alleges Claim for Injunctive Relief.

Plaintiffs have alleged that the RiNo Defendants have unfairly orchestrated a defamatory campaign to have neighboring property owners register odor complaints against Plaintiffs with the DEH. (ECF #5 at 112). Plaintiffs have also alleged a protectable interest in preventing the RiNo Defendants from continuing their campaign of harassment. (ECF #5 at 114). Further, as alleged, if the RiNo defendants are not restrained, Plaintiffs will continue to suffer immediate and irreparable harm. (ECF #5 at 116). Consequently, by their Amended Complaint, Plaintiffs are justified in seeking an order enjoining the Defendants from publishing defamatory statements about Plaintiffs and soliciting neighboring property owners to register odor complaints against Plaintiffs . In their Motion to Dismiss, the RiNo Defendants contend that: Lawful actions taken by citizens which constitute neither an abuse of process or a civil conspiracy do not support issuance of an injunction. (ECF#16 at p. 13). However, for the reasons set forth above, the alleged 12

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conduct of the RiNo Defendants in this matter constitutes not only an abuse of process and a civil conspiracy, it also constitutes defamation. Therefore, Plaintiffs claim for injunctive relief premised on these claims is valid. Even if Plaintiffs abuse of process and civil conspiracy claims were dismissed, Plaintiffs defamation claim would remain as a foundation for Plaintiffs claim for injunctive relief. D. The Motion for a More Definite Statement as to Plaintiffs Seventh Claim for Relief for Defamation Should Be Denied Pending Discovery

Defamation is a communication that holds an individual up to contempt or ridicule thereby causing him to incur injury or damage. Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994). [D]efamatory statements are so egregious and intolerable because the statement destroys an individual's reputation: a characteristic which cannot be bought, and one that, once lost, is extremely difficult to restore. Id. The elements for a cause of action for defamation are (1) a

defamatory statement concerning another; (2) published to a third party; (3) with fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special damages or the existence of special damages to the plaintiff caused by publication. McIntyre v. Jones, 194 P.3d 519, 52324 (Colo.App.2008); see Williams v. Dist. Court, 866 P.2d 908, 911 n. 4 (Colo.1993). In Colorado, liability for aiding or abetting a tortious act, like defamation, may be imposed if the party whom the defendant aids performs a wrongful act that causes an injury, the defendant is generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance, and the defendant knowingly and substantially assists the principal violation. Holmes v. Young, 885 P.2d 305, 308 (Colo.Ct.App.1994). Under Holmes, liability for aiding and abetting a common law tort may be imposed on those who knew that the tort was being committed and who understood in a general sense what their role was in conjunction with the tortious activity. Stat-Tech Liquidating Trust v. Fenster, 981 F.Supp. 1325, 1338 (D.Colo. 1997). 13

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In this case, as set forth above, Plaintiffs have alleged that the RiNo Defendants communicated and published defamatory statements about Plaintiffs to third persons. (ECF#5 at 94-100). Plaintiff further allege that these statements were defamatory per se because they defamed Plaintiff Kasel in his trade, business, and profession and were intended to expose the Plaintiffs to public contempt. (ECF #5 at 100). By her Motion, Defendant Brown is seeking a more definite statement as to whether she is the person alleged to have published the defamatory remarks before she can admit or deny these allegations. (ECF #16 at p. 14). As pled in the Amended Complaint, Plaintiffs allege that each of the RiNo Defendants is complicit for the creation and posting of the defamatory fliers because the fliers were created and posted as part of the RiNo Defendants agreed upon plan to disparage Plaintiffs reputation. The use of the pronoun I in the flier is not dispositive when all other existing evidence points to action in concert. As of now, the evidence is mostly circumstantial. Disclosures and discovery are needed to shed further light on the details of how the flier was created and posted and likely will lead to direct evidence. A key component of that discovery will be the deposition of the RiNo Defendants who know exactly what their specific roles in creating the flier were. Consequently, because Plaintiffs have sufficiently alleged the RiNo Defendants, acting in concert, defamed Plaintiffs, Plaintiffs assert it is necessary that they provide be required ,at this pre-discovery juncture, to submit a more definite statement as to which individual was specifically responsible for the single act of posting the defamatory statements. V. CONCLUSION When this Court considers the allegations contained in Plaintiffs Amended Complaint and the facts underlying those allegations, it must summarily deny the RiNo Defendants Motions because Plaintiffs have incontrovertibly stated plausible claims for relief against the RiNo 14

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Defendants for abuse of process, conspiracy and injunctive relief.

Thus, for all of the forgoing

reasons, Plaintiffs respectfully request that the Court deny both the RiNo Defendants Motion to Dismiss and Motion for a More Definitive Statement. Respectfully submitted this 10th day of December, 2012.
CAMPBELL KILLIN BRITTAN & RAY, LLC

By: s/ Richard O. Campbell Richard O. Campbell, #3257 Phillip Parrott, # 11828 Margaret R. Pflueger, #39780 ATTORNEYS FOR PLAINTIFFS KASEL ASSOCIATES INDUSTRIES, INC. and RAY KASEL

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CERTIFICATE OF SERVICE I hereby certify that on December 10, 2012, a true and correct copy of the foregoing PLAINTIFFS RESPONSE TO DEFENDANT SHARON BROWNS MOTION TO DISMISS THE SIXTH, EIGHTH AND NINTH CLAIMS FOR RELIF AND MOTION FOR MORE DEFINITVE STATEMENT AS TO THE EIGHTH CLAIM FOR RELIEF was electronically filed and served using the CM/ECF system which will send notification of such filing to the following : Joseph Rivera Assistant City Attorney Litigation Section Denver City Attorney's Office 201 West Colfax Avenue, Dept. 1108 Denver, CO 80202 And via email to: Randall Paulsen Paulsen & Armitage, LLC 8704 Yates Dr. Suite #100 Westminster CO, 80031 And via U.S. mail to: Emily vonSwearingen 3377 Blake Street, #209 Denver, CO 80205 Michael Ensminger 3377 Blake Street, #208 Denver, CO 80205

s/Bridget Duggan Bridget Duggan, Paralegal

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