Case 1:20-cv-02771-PAB-STV Document 23 Filed 09/22/21 USDC Colorado Page 1 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Chief Judge Philip A. Brimmer
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`Civil Action No. 20-cv-02771-PAB-STV
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`ESCOBAR, INC., a Puerto Rico corporation,
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`Plaintiff,
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`v.
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`BARWEST GROUP, LLC, a Colorado limited liability company,
`RYAN CHADWICK, an individual,
`ESCOBAR SPIRITS, LLC, a Colorado limited liability company,
`ESCOBAR ASPEN, an unknown entity, and
`DOES 1 THROUGH 10,
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`Defendants.
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`ORDER
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`This matter is before the Court on Defendants’ Fed. R. Civ. P. 12(b)(6) Motion to
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`Dismiss [Docket No. 10]. Plaintiff responded, Docket No. 15, and defendants replied.
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`Docket No. 16.
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`I. BACKGROUND1
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`Plaintiff’s purpose is to “promote, enhance, disseminate[,] and protect [Pablo]
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`Escobar’s cultural and intellectual works and to preserve ad protect the integrity of his
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`life, name[,] and image.” Docket No. 1 at 5, ¶ 21. Pablo Escobar died on December 2,
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`1993, and plaintiff has the “exclusive authority to manage and enforce the intellectual
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`property rights arising from Pablo Escobar’s personality right and any other intangible
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`1 The facts are taken from plaintiff’s complaint [Docket No. 1] and are presumed
`to be true for the purposes of this order.
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`rights.” Id., ¶ 22–23. Plaintiff has invested time, effort, and money in developing and
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`promoting its products and services under “names that consist of or include the word[s]
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`PABLO ESCOBAR and ESCOBAR” (the “Escobar names”) in the United States. Id.,
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`¶¶ 24–25. As a result, the Escobar names have “come to identify the [p]laintiff
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`exclusively and uniquely” and represent “enormous goodwill.” Id., ¶ 25. Plaintiff also
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`registered in California as “successor-in-interest to Pablo Escobar’s postmortem right of
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`publicity” under California Civil Code § 3344.1. Id., ¶ 26.
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`Defendants opened a nightclub in Aspen, Colorado under the name “Escobar
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`Aspen” and have a logo that uses the name “Escobar” and an “image of Escobar’s
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`face.” Id. at 6, ¶ 27. Defendants use their brand, the “image of Escobar,” and
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`“Escobar’s name” to advertise and promote their nightclub on their website and social
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`media accounts, and, on information and belief, have also “reproduced” the brand on
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`apparel that they sell, advertise, and promote. Id., ¶¶ 28–30. On information and
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`belief, defendants have created a line of vodka called “Escobar Vodka,” which has a
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`logo that uses the name “Escobar” and an “image of Escobar’s face,” and which is
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`advertised and promoted on defendants’ website and social media accounts and sold at
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`the nightclub. Id., ¶¶ 31–32. Upon information and belief, defendants use Pablo
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`Escobar’s name and likeness to market the Escobar Aspen, Escobar apparel, and
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`Escobar Vodka brands. Id., ¶ 33. They also advertise, promote, and offer these
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`brands to “confuse[s] consumers into believing that they are the official Pablo Escobar
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`brand” or are licensed by plaintiff. Id., ¶¶ 33–34.
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`Defendants, however, are not associated with plaintiff and have not been
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`2
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`authorized or licensed by plaintiff to use the name or likeness of Pablo Escobar in
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`connection with their businesses. Id. at 6–7, ¶ 35. Rather, upon information and belief,
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`defendants selected and used Pablo Escobar’s name and likeness with actual and
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`constructive knowledge of plaintiff’s ownership of and exclusive rights to use the name
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`and likeness of Pablo Escobar with the intent to trade off of the significant reputation of
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`Pablo Escobar and the goodwill symbolized by his name and image, which has
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`continued to grow over the years. Id. at 7, ¶¶ 36–37. Upon information and belief,
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`defendants know the goodwill associated with Pablo Escobar’s name and image and
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`have benefitted by acting intentionally, wilfully, and wantonly. Id., ¶¶ 40–41.
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`Defendants’ unauthorized use of Pablo Escobar’s name and likeness for
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`commercial purposes in connection with the nightclub, vodka, and apparel brands is
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`damaging “Escobar.”2 Id., ¶ 42. The consuming public is likely to be confused,
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`deceived, and misled into believing that plaintiff offered, licensed, authorized, endorsed,
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`or sponsored the use of Pablo Escobar’s name and likeness to defendants, and the
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`goodwill that plaintiff has built in the name, image, and likeness of Pablo Escobar is at
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`risk by defendants’ appropriation. Id., ¶ 43. This is because defendants have acted
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`without authorization and have “unfairly and unlawfully wrest[ed] from [plaintiff] control
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`over Pablo Escobar’s name, image[,] and likeness,” which has resulted in plaintiff’s
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`“extremely valuable” reputation being “irreparably damaged.” Id. at 7–8, ¶¶ 43–45.
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`Defendants also have actual knowledge that their conduct is “unlawful,” as plaintiff has
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`2 The complaint is not clear to whom “Escobar” refers in this allegation. Plaintiff,
`which is named “Escobar, Inc.,” refers to itself as “Escobar Holdings” and as “plaintiff.”
`See id. at 2, ¶ 2. It does not, however, define “Escobar.”
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`3
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`informed defendant Ryan Chadwick of plaintiff’s “well-established rights” and has asked
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`Mr. Chadwick to cease using the name, image, or likeliness of Pablo Escobar in any of
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`its brands, yet Mr. Chadwick has not agreed to do so. Id. at 8, ¶ 46.
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`II. LEGAL STANDARD
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`To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
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`Procedure, a complaint must allege enough factual matter that, taken as true, makes
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`the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
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`F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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`(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
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`facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
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`Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
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`F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
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`statement need only ‘give the defendant fair notice of what the claim is and the grounds
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`upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
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`Twombly, 550 U.S. at 555) (alterations omitted). However, a plaintiff still must provide
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`“supporting factual averments” with his allegations. Cory v. Allstate Ins., 583 F.3d
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`1240, 1244 (10th Cir. 2009) (“[C]onclusory allegations without supporting factual
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`averments are insufficient to state a claim on which relief can be based.” (citation
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`omitted)). Otherwise, the Court need not accept conclusory allegations. Moffet v.
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`Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002). “[W]here the
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`well-pleaded facts do not permit the court to infer more than the mere possibility of
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`misconduct, the complaint has alleged – but it has not shown – that the pleader is
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`entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations and
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`alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]
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`claims across the line from conceivable to plausible in order to survive a motion to
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`dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so
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`general that they encompass a wide swath of conduct, much of it innocent,” then
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`plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
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`Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
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`must contain either direct or inferential allegations respecting all the material elements
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`necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
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`1286 (alterations omitted).
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`Plaintiff brings five claims for relief, (1) violation of the “common right to publicity”
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`under California Code § 3344(a) and Colorado common law, (2) violation of the “right of
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`publicity,” (3) copyright infringement under 17 U.S.C. § 501, (4) unfair competition under
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`Colorado common law, and (5) accounting under 17 U.S.C. § 504. Docket No. 1 at
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`8–13.
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`III. ANALYSIS
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`A. Federal Law Claims
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`The Court first considers plaintiff’s federal law claims for copyright infringement
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`and accounting.
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`1. Copyright Infringement – Plaintiff’s Third Claim
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`Plaintiff alleges that defendants have used an original work of art painted by
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`Robert de Jesús Escobar Gaviria (“Robert Escobar”), that is “displayed on all of
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`[d]efendants’ ventures.” Docket No. 1 at 11, ¶ 69. Plaintiff refers to this artwork as the
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`“Pablo Artwork.” Id. Plaintiff claims that the Pablo Artwork was created outside the
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`United States and does not qualify as “United States work” for purposes of the
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`Copyright Act (the “Act”) and that it is an original and creative work that the Act protects.
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`Id., ¶¶ 70–71. Plaintiff alleges that (1) it informed defendants of the infringement, (2)
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`defendants have ignored “the pleads [sic] and continue to infringe,” (3) defendants had
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`access to the Pablo Artwork, and (4) defendants have knowingly, willfully, and in bad
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`faith violated Sections 106 and 501 of the Act. Id. at 11–12, ¶¶ 73, 75.
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`Under the Act, Congress granted copyright owners specific and exclusive rights.
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`See 17 U.S.C. § 106. The list of exclusive rights is exhaustive – “[i]f a right is not
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`‘specified,’ then it is not one of the exclusive rights granted by Congress.” Silvers v.
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`Sony Pictures Entm’t, Inc., 402 F.3d 881, 886–87 (9th Cir. 2005). However, “exclusive
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`rights may be chopped up and owned separately, and each separate owner of a
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`subdivided exclusive right may sue to enforce that owned portion of an exclusive right,
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`no matter how small.” Id. at 887.
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`Section 501(b) of the Act defines under what circumstances copyright owners
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`have standing to bring a suit against infringing parties. For a plaintiff to assert a claim
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`for copyright infringement, it must be (1) the “legal or beneficial owner of an exclusive
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`right under a copyright” and (2) entitled “to institute an action for any infringement of
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`that particular right committed while he or she is the owner of it.” 17 U.S.C. § 501(b).
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`Therefore, to state a claim for copyright infringement, plaintiff must allege: “(1)
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`ownership of a valid copyright, and (2) copying of constituent elements of the work that
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`are original.” Blehm v. Jacobs, 702 F.3d 1193, 1199 (10th Cir. 2012). The owner of a
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`valid copyright “is entitled, subject to the requirements of section 411, to institute an
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`action for any infringement of that particular right committed while he or she is the
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`owner of it.” 17 U.S.C. § 501(b).
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` Section 411(a) of the Act provides, among other things, that “no civil action for
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`infringement of the copyright in any United States work shall be instituted until
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`preregistration or registration of the copyright claim has been made in accordance with
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`this title.” 17 U.S.C. § 411(a). In Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010),
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`the Supreme Court held that § 411(a) imposed a non-jurisdictional precondition –
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`copyright registration – that plaintiffs must satisfy before filing copyright infringement
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`claims. Id. at 157. However, the Supreme Court declined to address “whether
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`§ 411(a)’s registration requirement is a mandatory precondition to suit” that district
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`courts may enforce sua sponte by dismissing copyright infringement claims involving
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`unregistered works. Id. at 171.
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`The Tenth Circuit has held that a plaintiff can only bring a suit for copyright
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`infringement after “a copyright is registered, and such registration occurs when the
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`Copyright Office approves the application.” La Resolana Architects, PA v. Clay
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`Realtors Angel Fire, 416 F.3d 1195, 1203–04 (10th Cir. 2005), abrogated on other
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`grounds by Reed Elsevier, 559 U.S. at 166–68. The Tenth Circuit rejected the
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`proposition that a work is registered within the meaning of § 411(a) upon submission of
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`a copyright application and found that the statute requires “actual registration by the
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`Register of Copyrights.” Id. at 1205.
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`Defendants argue that plaintiff failed to assert sufficient facts to sustain a
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`copyright claim because, along with failing to attach the allegedly copyrighted work,
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`plaintiff failed to “allege sufficient details, or chain-of-title, with specificity.” Docket No.
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`10 at 11. As a result, defendants argue, it is impossible to determine whether the Pablo
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`Artwork enjoys any copyright protections or resembles the image used by defendants.
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`Id. Finally, defendants argue that Robert Escobar is not the plaintiff, and plaintiff has
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`failed to allege sufficient facts to show that interests in the allegedly copyrighted work
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`were transferred to plaintiff. Id. at 11–12.
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`While plaintiff did not attach the Pablo Artwork to the complaint, plaintiff provided
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`it in response to defendants’ motion. See Docket No. 15-1 at 4. “[I]f a plaintiff does not
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`incorporate by reference or attach a document to its complaint, but the document is
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`referred to in the complaint and is central to the plaintiff’s claim, a defendant may
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`submit an indisputably authentic copy to the court to be considered on a motion to
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`dismiss.” GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th
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`Cir. 1997). It is not clear that the artwork attached to plaintiff’s response is an
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`indisputably authentic representation of the Pablo Artwork, however, and plaintiff
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`provides no argument that the Court should consider it to be indisputably authentic.
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`The Court need not decide this issue, however, because even if the Court took
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`notice of the artwork attached to plaintiff’s response and considered it to be indisputably
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`authentic, the Court would still find that plaintiff failed to plead a plausible copyright
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`infringement claim. While plaintiff alleges that the Pablo Artwork was first created
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`outside the United States, see Docket No. 1 at 11, ¶ 70, such that the registration
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`requirements of Section 411(a) of the Act do not apply, the Court finds plaintiff’s
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`allegations are not well-pled because they are conclusory. Generally, “[s]pecific facts
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`are not necessary; the statement need only ‘give the defendant fair notice of what the
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`claim is and the grounds upon which it rests.’” Erickson, 551 U.S. at 93 (quoting
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`Twombly, 550 U.S. at 555) (alterations omitted). However, a plaintiff still must provide
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`“supporting factual averments” with his allegations. Cory, 583 F.3d at 1244
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`(“[C]onclusory allegations without supporting factual averments are insufficient to state
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`a claim on which relief can be based.” (citation omitted)).
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`Plaintiff provides no “supporting factual averments” regarding where the Pablo
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`Artwork was created that could support an allegation that it is a non-United States work,
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`exempt from registration under Section 411, and for which plaintiff may bring an
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`infringement action. Plaintiff alleges only that “[t]he Pablo Artwork was first created
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`outside the United States” and that it was painted by Robert Escobar in 1999 and
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`published on December 1, 2004. Docket No. 1 at 11, ¶¶ 69–70. These allegations
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`show that it is possible that the Pablo Artwork did not need to be registered and that
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`Section 411’s requirements do not apply, but this is not enough to state a plausible
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`claim, and the Court need not accept plaintiff’s conclusory allegations. See Moffet, 291
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`F.3d at 1232; see also Iqbal, 556 U.S. at 679 (“[W]here the well-pleaded facts do not
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`permit the court to infer more than the mere possibility of misconduct, the complaint has
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`alleged – but it has not shown – that the pleader is entitled to relief.”); Khalik, 671 F.3d
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`at 1190 (“A plaintiff must nudge [his] claims across the line from conceivable to
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`plausible in order to survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)).
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`Even assuming that the Pablo Artwork is a non-United States work and that
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`registration was not required to bring an infringement action, plaintiff has failed to
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`plausibly allege facts that show ownership of the copyright, which is needed to bring a
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`copyright infringement action. See Blehm, 702 F.3d at 1199. Plaintiff claims in
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`response that Robert Escobar is the founder of Escobar, Inc., see Docket No. 15 at 5,
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`yet this allegation is not in the complaint, and the Court will not consider allegations that
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`appear for the first time in plaintiffs’ response. See Mattson v. Chertoff, No. 07-cv-
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`02432-PAB-BNB, 2009 WL 564289, *4 n.3 (D. Colo. Mar. 5, 2009) (“The plaintiff
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`attempts to assert an additional claim for a ‘matter’ ‘that occurred on March 1, 2008.’ I
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`will not address claims raised for the first time in a brief opposing a dispositive motion.”
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`(citation omitted)); see also In re Qwest Comm’ns Int'l, Inc., 396 F. Supp. 2d 1178, 1203
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`(D. Colo. 2004) (holding that “plaintiffs may not effectively amend their Complaint by
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`alleging new facts in their response to a motion to dismiss”). Because plaintiff has
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`failed to plausibly plead copyright infringement, the Court will dismiss plaintiff’s third
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`claim.
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`2. Accounting – Plaintiff’s Fifth Claim
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`Plaintiff argues that it is entitled to recover any and all profits of defendants that
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`are attributable to the wrongful conduct, as well as actual or statutory damages,
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`pursuant to 17 U.S.C. § 504. Docket No. 1 at 12, ¶¶ 84–85. Plaintif f alleges that the
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`amount of money due cannot be ascertained by plaintiff without a detailed accounting
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`by defendants of the precise number of units of infringing material advertised,
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`marketed, offered, or distributed by defendants. Id. at 13, ¶ 86. Defendants insist that
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`plaintiff’s claim for an accounting, which cites Section 504 of the Copyright Act, is
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`preempted by the Copyright Act. Docket No. 10 at 13. In reply, plaintiff argues that its
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`accounting claim is not preempted because it is not based solely on Section 504 and
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`plaintiff will need to conduct an accounting under its state-law claims. Docket No. 16 at
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`6.
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`A request for an accounting is not a separate claim for relief. Rather, it is a
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`remedy. See, e.g., First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766
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`F.2d 1007, 1011 (7th Cir. 1985); Bradshaw v. Thompson, 454 F.2d 75, 79 (6th Cir.
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`1972); Whitney v. Guys, Inc., 826 F.3d 1074, 1076–77 (8th Cir. 2016). An “accounting
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`for profits,” also referred to as an “accounting,” as well as disgorgement of profits, is a
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`form of restitution. See, e.g., Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S.
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`204, 214 n.2 (2002) (discussing accounting in ERISA context; “an accounting for profits
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`[is] a form of equitable restitution.”); Tull v. United States, 481 U.S. 412, 424 (1987)
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`(“An action for disgorgement of improper profits . . . is a remedy only for restitution.”).
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`An accounting or disgorgement of profits allows the plaintiff to “recover a judgment for
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`the profits due from use of his property” and thus “holds the defendant liable for his
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`profits, not for damages.” Teets v. Great-W. Life & Annuity Ins. Co., 921 F.3d 1200,
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`1225 (10th Cir. 2019) (citation omitted). As with other equitable remedies, the remedy
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`of an accounting is not cognizable when there is an adequate remedy at law. See
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`Haynes Trane Serv. Agency, Inc. v. Am. Standard, Inc. (Haynes I), 51 F. App’x 786,
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`800 (10th Cir. 2002) (unpublished).
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`The Court finds that plaintiff has not sufficiently explained why there is no
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`adequate remedy at law, i.e, damages, that would entitle it to such equitable relief.
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`Plaintiff states that “[t]he amount of money due from [d]efendants to [p]laintiff is
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`unknown to [p]laintiff and cannot be ascertained without a detailed accounting by
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`[d]efendants of the precise number of units of infringing material advertised, marketed,
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`offered[,] or distributed by [d]efendants.” Docket No. 1 at 13, ¶ 86. But plaintiff
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`provides no support for this statement and requests damages of “not less than
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`$5,000,000.00” and a trial by jury, indicating plaintiff seeks legal, rather than equitable,
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`relief. See Docket No. 1 at 14–15. “The necessary prerequisite to the right to maintain
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`a suit for an equitable accounting, like all other equitable remedies, is . . . the absence
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`of an adequate remedy at law,” and “the plaintiff must be able to show that the
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`‘accounts between the parties’ are of such a ‘complicated nature’ that only a court of
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`equity can satisfactorily unravel them.” Dairy Queen, Inc. v. Wood, 369 U.S. 469, 478
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`(1962) (citation omitted); Haynes Trane Serv. Agency, Inc. v. Am. Standard, Inc.
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`(Haynes II), 573 F.3d 947, 964–65 (10th Cir. 2009). Plaintiff’s request for
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`$5,000,000.00 in damages indicates that it has approximated what it believes it is due
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`and that it may not believe the accounts of the parties are so complicated as to be
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`beyond the abilities of a jury. The Court will dismiss plaintiff’s fifth claim because it
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`does not consider plaintiff’s arguments that it is entitled to an accounting to be a
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`separate claim for relief and because plaintiff has made no showing that it is entitled to
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`the equitable remedy of accounting.
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`B. State-Law Claims
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`Having dismissed plaintiff’s federal-law claims, the Court must ensure that it has
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`jurisdiction to hear plaintiff’s state-law claims. In every case and at every stage of the
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`proceeding, a federal court must satisfy itself as to its own jurisdiction, even if doing so
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`requires sua sponte action. See Citizens Concerned for Separation of Church & State
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`v. City & Cnty. of Denver, 628 F.2d 1289, 1297 (10th Cir. 1980). Absent an assurance
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`that jurisdiction exists, a court may not proceed in a case. See Cunningham v. BHP
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`Petroleum Gr. Brit. PLC, 427 F.3d 1238, 1245 (10th Cir. 2005). Therefore, before the
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`Court may consider plaintiff’s state-law claims, the Court must determine that it has
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`jurisdiction to hear them. Plaintiff alleges that the Court has jurisdiction pursuant to 28
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`U.S.C. §§ 1331 and 1332. Docket No. 1 at 4, ¶¶ 16–17.
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`Pursuant to Section 1332, “district courts shall have original jurisdiction of all civil
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`actions where the matter in controversy exceeds the sum or value of $75,000, exclusive
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`of interest and costs, and is between . . . citizens of different States.” 28 U.S.C.
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`§ 1332(a). “For purposes of federal diversity jurisdiction, an individual’s state
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`citizenship is equivalent to domicile.” Smith v. Cummings, 445 F.3d 1254, 1259 (10th
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`Cir. 2006). “To establish domicile in a particular state, a person must be physically
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`present in the state and intend to remain there.” Id. at 1260. The citizenship of a
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`limited liability company is determined by the citizenship of all of its members. See
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`Siloam Springs Hotel, LLC v. Century Sur. Co., 781 F.3d 1233, 1237–38 (10th Cir.
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`2015) (“[I]n determining the citizenship of an unincorporated association for purposes of
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`diversity, federal courts must include all the entities’ members.”). A corporation,
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`however, “shall be deemed to be a citizen of every State and foreign state by which it
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`has been incorporated and of the State or foreign state where it has its principal place
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`of business.” See 28 U.S.C. § 1332(c)(1). A corporation incorporated in a foreign
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`country may still have its principal place of business in the United States. See Burge v.
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`Sunrise Medical (US) LLC, No. 13-cv-02215-PAB-MEH, 2013 WL 6467994, at *2 (D.
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`Colo. Dec. 9, 2013) (citing Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas,
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`S.A., 20 F.3d 987, 990 (9th Cir. 1994)). While, at the pleading stage, the Court takes
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`as true all “well-pled (that is, plausible, conclusory, and non-speculative) facts,”
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`Dudnikov v. Chalk & Vermilion Fine Arts, 514 F.3d 1063, 1070 (10th Cir. 2008), the
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`Court finds that the allegations regarding the parties’ citizenship are not well-pled.
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`Plaintiff alleges that it is a Puerto Rico corporation with a principal place of
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`business at 324 South Beverly Drive, Unit 325, Beverly Hills, California 90212. Docket
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`No. 1 at 2, ¶ 2. Defendants states, however, that the address that plaintiff alleged as its
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`principal place of business is actually a UPS store. Docket No. 10 at 7. Defendant
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`provide a screen-shot from a UPS website showing a map of the area and one of its
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`locations at 324 South Beverly Drive. Docket No. 10-1 at 5.3 Plaintiff does not dispute
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`the accuracy of this screen-shot and explains that “many smaller businesses have
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`moved away from utilizing physical office space . . . . Many modern businesses have a
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`commercial address where they can receive official mail and then use virtual offices to
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`3 As with the Pablo Artwork, the Court may consider matters subject to judicial
`notice at the motion to dismiss stage without converting the motion to dismiss into one
`for summary judgment. See Tal v. Hogan, 453 F.3d 1244, 1264–65 n.24 (10th Cir.
`2006). The Court may “take judicial notice of a Google map and satellite image as a
`source whose accuracy cannot reasonably be questioned.” Pahls v. Thomas, 718 F.3d
`1210, 1216 n.1 (10th Cir. 2013) (internal quotation marks and alterations omitted). The
`Court may also take judicial notice of a screen-shot from a website. As noted by the
`Tenth Circuit, “[i]t is not uncommon for courts to take judicial notice of factual
`information found on the world wide web.” O’Toole v. Northrop Grumman Corp., 499
`F.3d 1218, 1225 (10th Cir. 2007) (taking judicial notice of earnings information on
`Northrop Grumman’s website); New Mexico ex rel. Balderas v. Google, LLC, 489 F.
`Supp. 3d 1254, 1257 (D.N.M. 2020).
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`Case 1:20-cv-02771-PAB-STV Document 23 Filed 09/22/21 USDC Colorado Page 15 of 19
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`hold meetings.” Docket No. 15 at 3–4. A P.O. box, however, may not serve as a
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`principal place of business. See Burge v. Sunrise Med. (US) LLC, No. 13-cv-02215-
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`PAB-MEH, 2013 WL 6467994, at *3 (D. Colo. Dec. 9, 2013) (citing Spencer v. Pocono
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`Int’l Raceway, Inc., 2012 WL 2050168, at *2 (M.D. Pa. June 6, 2012) (“a P.O. box may
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`not serve as a principal place of business”)). Because plaintiff has not provided its
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`principal place of business, the Court is unable to determine plaintiff’s citizenship.
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`As to defendants BarWest Group, LLC and Escobar Spirits, LLC, plaintiff alleges
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`that both are an LLCs “organized and existing under the laws of the State of Colorado”
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`with their “principal place[s] of business in the State of Colorado.” Docket No. 1 at 2,
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`¶¶ 4–5. Plaintiff concludes that both of these defendants are thus Colorado citizens.
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`Id. As stated above, however, the citizenship of an LLC is determined by the
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`citizenship of all of its members. See Siloam Springs, 781 F.3d at 1237–38.
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`Allegations regarding the principal place of business or state of incorporation of an LLC
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`are therefore irrelevant. Because plaintiff has identified none of the members or their
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`citizenship, plaintiff’s allegations with respect to the citizenship of defendants BarWest
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`Group, LLC and Escobar Spirits, LLC are not well-pled. See Den 8888, LLC v. Navajo
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`Express, Inc., No. 21-cv-00321-STV, 2021 WL 463623, at *3 (D. Colo. Feb. 9, 2021);
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`U.S. Advisor, LLC v. Berkshire Prop. Advisors, LLC, No. 09-cv-00697-PAB-CBS, 2009
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`WL 2055206, at *2 (D. Colo. July 10, 2009) (citing Hicklin Eng’g, L.C. v. Bartell, 439
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`F.3d 346, 347 (7th Cir. 2006)); Alphonse v. Arch Bay Holdings, L.L.C., 618 F. App’x
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`765, 768 (5th Cir. 2015) (unpublished) (“[W]e have observed that the appropriate tests
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`for citizenship involve tracing [entities’] citizenships down the various organizational
`
`15
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`Case 1:20-cv-02771-PAB-STV Document 23 Filed 09/22/21 USDC Colorado Page 16 of 19
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`layers where necessary.” (internal citation omitted)); Underwriters at Lloyd’s, London v.
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`Osting-Schwinn, 613 F.3d 1079, 1092 (11th Cir. 2010) (remanding case in which party
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`invoking the court’s diversity jurisdiction did not disclose the identity and citizenship of
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`each member of an unincorporated entity); Delay v. Rosenthal Collins Grp., LLC, 585
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`F.3d 1003, 1005 (6th Cir. 2009) (“When diversity jurisdiction is invoked in a case in
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`which a limited liability company is a party, the court needs to know the citizenship of
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`each member of the company. And because a member of a limited liability company
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`may itself have multiple members – and thus may itself have multiple citizenships – the
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`federal court needs to know the citizenship of each ‘sub-member’ as well.”); Rolling
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`Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir.
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`2004) (“[A] party must list the citizenships of all the members of the limited liability
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`company.”); Prospect Funding Holdings, LLC v. Fennell, 2015 WL 4477120, at *2
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`(S.D.N.Y. July 15, 2015) (collecting New York district court decisions holding that a
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`limited liability company must “plead facts establishing their citizenship including, . . .
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`the identity and citizenship of their members” in order to invoke diversity jurisdiction). A
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`negative allegation of citizenship is not sufficient. See, e.g., D.B. Zwirn Special
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`Opportunities Fund, L.P. v. Mehrotra, 661 F.3d 124, 125–26 (1st Cir. 2011) (holding
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`that allegations of LLC’s citizenship in the negative are insufficient to establish diversity
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`jurisdiction); see also 13E Charles A. Wright et al., Fed. Prac. & Proc. § 3611 (3d ed.
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`2009) (updated April 2021) (“Neither is a negative statement that a party is not a citizen
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`of a particular state usually sufficient.”).
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`Plaintiff’s allegations concerning the citizenship of Escobar Aspen are also not
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`Case 1:20-cv-02771-PAB-STV Document 23 Filed 09/22/21 USDC Colorado Page 17 of 19
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`well-pled. Plaintiff states that it “is informed and believes that” Escobar Aspen “is an
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`unknown entity, whose principal place of business is located at 426 E. Hyman Ave.,
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`Aspen, CO 81611.” Docket No. 1 at 3, ¶ 6. Plaintiff continues, “Escobar Aspen was an
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`unknown entity operating in the State of Colorado and with its principal place of
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`business in the State of Colorado; it is, thus, a citizen of Colorado.” Id. Plaintiff,
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`however, has not identified what type of business entity Escobar Aspen is. This
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`information is critical to the Court’s jurisdictional analysis because, as the Court has
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`explained, the citizenship of different sorts of business entities is determined differently.
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`See Herman v. PBIA & Co., No. 19-cv-00584-PAB, 2019 WL 1594253, at *2 (D. Colo.
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`Apr. 15, 2019). As a result, the Court is unable to determine Escobar Aspen’s
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`citizenship.
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`Finally, plaintiff’s allegations regarding the citizenship of Mr. Chadwick are also
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`not well-pled. Plaintiff alleges that he is a resident of New York who also maintains a
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`residence in Colorado. Docket No. 1 at 3, ¶ 7. Residency, however, is not synonymous
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`with domicile, see Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)
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`(“‘Domicile’ is not necessarily synonymous with ‘residence,’ and one can reside in one
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`place but be domiciled in another.”) (citations omitted)), and only the latter is
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`determinative of a party’s citizenship. See Whitelock v. Leatherman, 460 F.2d 507, 514
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`(10th Cir. 1972) (“[A]llegations of mere ‘residence’ may not be equated with ‘citizenship’
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`for the purposes of establishing diversity.”). “To establish domicile in a particular state,
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`a person must be physically present in the state and intend to remain there.” Smith,
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`445 F.3d at 1260 (citing Keys Youth Servs., Inc. v. Olathe, 248 F.3d 1267, 1272 (10th
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`17
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`Case 1:20-cv-02771-PAB-STV Document 23 Filed 09/22/2