Vivos Therapeutics v. Ortho-Tain

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 21, 2022
• Docket: 21-1309
• Status: Unpublished

Opinion

Appellate Case: 21-1309 Document: 010110699363 Date Filed: 06/21/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 21, 2022 _________________________________ Christopher M. Wolpert Clerk of Court VIVOS THERAPEUTICS, INC.,

Plaintiff - Appellee,

v. No. 21-1309 (D.C. No. 1:20-CV-01634-WJM-SKC) ORTHO-TAIN, INC., (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, BALDOCK, and EID, Circuit Judges. _________________________________

In this interlocutory appeal, Ortho-Tain, Inc. (OT), challenges a district court

order denying its motion to dismiss based in part on absolute immunity. OT also

invokes our pendent appellate jurisdiction to review other non-final rulings in the

district court’s order. To the extent the denial of immunity turns on a legal question,

we have jurisdiction under the collateral order doctrine and reverse and remand for

further proceedings. We dismiss the balance of the appeal for lack of jurisdiction.

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-1309 Document: 010110699363 Date Filed: 06/21/2022 Page: 2

I. Background

The parties are competing manufacturers of dental devices. According to the

amended complaint and attached exhibits, in April 2020, OT’s CEO, Leslie Stevens,

sent a letter to Benco Dental Supply, which is an affiliate of Vivos Therapeutics, Inc.,

accusing Benco of hosting seminars where Vivos misrepresented OT’s products as its

own. In a series of communications that followed (collectively, the “Spring 2020

Communications”), OT’s lawyer, Nathan Neff, repeatedly stated that Vivos and

Benco were violating state and federal law, including the Lanham Act, 15 U.S.C.

§ 1125(a), which provides a cause of action for false advertising, see Bimbo Bakeries

USA, Inc. v. Sycamore, 29 F.4th 630, 643 (10th Cir. 2022). Neff demanded that

Benco notify seminar attendees of the alleged misrepresentations, cited legal

authority for OT’s position, and at least implicitly, if not explicitly, threatened legal

action. Indeed, on June 1, 2020, Neff sent Benco a draft complaint, which he later

filed (with revisions) in the Northern District of Illinois, naming Vivos and Benco as

defendants. And in a June 3 letter captioned, “Settlement Discussions – Lanham Act

Violations,” Aplt. App. at 224, Neff asserted he was “privileged to defame” so long

as his statements related to the proposed legal claims, id. at 226.

Vivos filed this suit several days later, asserting claims for libel per se, slander

per se, intentional interference with contractual relations, and declaratory relief that it

had not violated the Lanham Act. The following month, OT filed its complaint in the

Northern District of Illinois against Vivos, Benco, and others. Thereafter, the district

court here dismissed Vivos’s complaint with leave to amend. Meanwhile, in

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December 2020, OT’s sales department sent emails (“December 2020 emails”) to

dentist-clients of Vivos, disparaging Vivos and its products. Consequently, when

Vivos filed its amended complaint, it reasserted its previous claims and added two

new claims for violations of the Lanham Act and the Colorado Consumer Protection

Act (CCPA). The following lists Vivos’s claims and the conduct upon which they

were predicated:

Count 1: Lanham Act based on the December 2020 emails (and other online material). Count 2: CCPA based on the December 2020 emails. Count 3: Libel per se based on the Spring 2020 Communications and the December 2020 emails. Count 4: Slander per se based on the Spring 2020 Communications. Count 5: Intentional interference with contractual relations based on the Spring 2020 Communications and the December 2020 emails. Count 6: Declaratory judgment that it had not violated the Lanham Act.

OT moved to dismiss, contending it had absolute immunity from any claims

based on the Spring 2020 Communications because they related to the Northern

District of Illinois litigation and as such were privileged. OT also argued that the

claims under the Lanham Act and the CCPA should be dismissed or stricken as

improper supplemental pleadings, that the entire amended complaint should be

dismissed for impermissibly incorporating allegations into subsequent counts, and

that the declaratory judgment claim should be dismissed as an improper anticipatory

filing intended to preempt the Northern District of Illinois litigation. The district

court rejected OT’s arguments, denied the motion to dismiss, and directed the parties

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to schedule a status conference. Instead, OT filed this appeal. Vivos then moved to

dismiss this appeal for lack of jurisdiction. The parties have fully briefed the

jurisdictional and merits issues. The Northern District of Illinois litigation has been

stayed pending the outcome of this appeal and the underlying district court action or

until the Northern District of Illinois removes the stay.

I. Appellate Jurisdiction

We first consider our jurisdiction. Generally, an order denying immunity

qualifies for immediate review under the collateral order doctrine to the extent it

turns on an issue of law. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Indeed,

in Robinson v. Volkswagenwerk AG, we recognized that the collateral order doctrine

permits immediate appellate review of an interlocutory order denying a motion to

dismiss based on a claim of absolute immunity under the litigation privilege. See

940 F.2d 1369, 1370 (10th Cir. 1991). We therefore proceeded to the merits and

observed that “[a]ll lawyers are protected by an absolute privilege against defamation

actions based upon litigation conduct in judicial proceedings.” Id. at 1372.

OT invokes essentially the same litigation privilege recognized in Robinson.

Ordinarily, we would have jurisdiction to review this type of interlocutory appeal

from the district court’s denial of immunity.1 However, “[i]f a district court cannot

1 In challenging OT’s analogy to the qualified immunity context, Vivos contends the denial of immunity is not immediately appealable because OT’s assertion of immunity does not extend to all of its claims. See Mot. to Dismiss at 8-9; Mot. to Dismiss Reply Br. at 5-6. But even in the qualified immunity context, the “right to immunity is a right to immunity from certain claims, not from litigation in general; when immunity with respect to those claims has been finally denied, 4 Appellate Case: 21-1309 Document: 010110699363 Date Filed: 06/21/2022 Page: 5

rule on the merits of [an] . . . immunity defense at the dismissal stage because the

allegations in the pleadings are insufficient as to some factual matter, the district

court’s determination is not immediately appealable.” Weise v. Casper, 507 F.3d

1260, 1264 (10th Cir. 2007).

Here, the district court rejected OT’s immunity claim in part because the

pleadings were insufficient to make a predicate factual determination. Distinguishing

between the letter written by OT’s CEO, Leslie Stevens, and the communications

from OT’s attorney, Nathan Neff, the district court determined that the litigation

privilege protects an attorney’s prelitigation statements only if they relate to litigation

contemplated in good faith. See Begley v. Ireson, 399 P.3d 777, 781 (Colo. App.

2017) (“[F]or a litigation privilege to apply to an attorney’s prelitigation statement,

not only must that statement be related to prospective litigation, but the litigation

must be contemplated in good faith.”). Yet the district court declined to make any

finding as to Neff’s good faith, stating, “[g]iven that this action is at the pleading

stage, and that the Court must construe the allegations in the light most favorable to

Vivos, the Court declines to delve into the factfinding endeavor of whether [Neff]

made these communications in good faith contemplation of litigation.” Aplt. App. at

351-52. Although the district court did not expressly say the pleadings were

inadequate to make a finding as to good-faith, it noted the good-faith requirement and

declined to make the necessary factual finding. Clearly, then, the district court found

appeal must be available, and cannot be foreclosed by the mere addition of other claims to the suit,” Behrens v. Pelletier, 516 U.S. 299, 312 (1996). 5 Appellate Case: 21-1309 Document: 010110699363 Date Filed: 06/21/2022 Page: 6

the pleadings insufficient. It follows that the denial of immunity for Neff’s

statements does not turn on a legal question and thus it is not immediately

appealable. See Weise, 507 F.3d at 1264. Accordingly, we dismiss the appeal to the

extent it challenges that ruling. However, as explained below, we retain jurisdiction

to review the denial of immunity for Stevens’ letter because that ruling turned solely

on a legal question.

II. Immunity

The district court denied immunity as to Stevens’ statements, reasoning that,

under Colorado law, the litigation privilege does not apply to non-attorney parties.

We review de novo this legal determination regarding the applicability of absolute

immunity. Robinson, 940 F.2d at 1370. Because the relevant claims arise under

diversity jurisdiction, we apply Colorado law to resolve the immunity question. See

Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir.

2014); see also Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist.,

353 F.3d 832, 837 (10th Cir. 2003) (“[S]tate law governs the applicability of

immunity to state law claims.” (internal quotation marks omitted)).

Colorado has adopted the Restatement (Second) of Torts, both as to attorneys,

§ 586; see BKP, Inc. v. Killmer, Lane & Newman, LLP, 506 P.3d 84, 90 (Colo. App.

2021), and parties, § 587; see Dep’t of Admin. v. State Pers. Bd., 703 P.2d 595,

597-98 (Colo. App. 1985). Under § 586 of the Restatement:

An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a

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part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

Similarly, under § 587 of the Restatement:

A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.

In accord with these provisions, statements made before or during a judicial

proceeding are privileged so long as they are related to the proceeding, and claims

sounding in defamation for such statements are barred. See Club Valencia

Homeowners Ass’n, Inc. v. Valencia Assocs., 712 P.2d 1024, 1025-26, 1028 (Colo.

App. 1985) (letter written jointly by attorney and his client relating to litigation

privileged, barring libel claims); Buckhannon v. U.S. W. Commc’ns, Inc., 928 P.2d

1331, 1333-35 (Colo. App. 1996) (statements by corporate defendant’s investigator,

attributed to the defendant, absolutely privileged regardless of tort theory); Dep’t of

Admin., 703 P.2d at 597-98 (statements by party to administrative proceeding

absolutely privileged). The Colorado Court of Appeals has cautioned, however, that

“extending the same protection to prelitigation statements as that applied to

statements made during court proceedings could condone improper behavior while

doing nothing to advance the goals of the litigation privilege (ensuring access to the

courts and protection of attorneys during the course of client representation).”

Begley, 399 P.3d at 781. The Begley court was concerned that “an attorney could

make a statement that tortiously interfered with a contract and then cloak it in the

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privilege by subsequently filing a bad faith and meritless claim related to the

otherwise tortious statement.” Id. Consequently, the court ruled that “for a litigation

privilege to apply to an attorney’s prelitigation statement, not only must that

statement be related to prospective litigation, but the litigation must be contemplated

in good faith.” Id. But this good-faith requirement applies to attorneys and parties

alike. See Restatement § 586 cmt. e (explaining that application of the privilege as to

attorneys is proper “only when the communication has some relation to a proceeding

that is contemplated in good faith and under serious consideration”); id. § 587 cmt. e

(same as to parties).

Here, the district court rejected OT’s immunity claim for Stevens’ letter, ruling

that only attorney statements are privileged. The district court also faulted OT for

failing to cite controlling authority demonstrating that the privilege applies to

statements by non-attorney parties. But OT cited both sections of the Restatement,

Club Valencia, Department of Administration, and Buckhannon, all of which confirm

that the privilege can apply to both attorneys and parties. See, e.g., Club Valencia,

712 P.2d at 1027-28 (affirming dismissal of libel claim brought against two parties

and attorney, recognizing the privilege applied to their letter because the purpose of

the privilege “is to afford litigants the utmost freedom of access to the courts . . . and

to protect attorneys during the course of their representation of clients” (emphasis

added)). The district court concluded otherwise, relying on another district court

case, which in turn quoted Begley’s statement that the litigation privilege protects

“‘an attorney’s defamatory statements.’” ClearCapital.com, Inc. v. Computershare,

8 Appellate Case: 21-1309 Document: 010110699363 Date Filed: 06/21/2022 Page: 9

Inc., No. 18-cv-00817-RBJ, 2019 WL 1573300, at *3-4 (D. Colo. Apr. 11, 2019)

(unpublished) (brackets omitted) (quoting Begley, 399 P.3d at 780). But Begley

should not be read so narrowly because it involved an attorney who was a named

defendant. See 399 P.3d at 780. Begley itself recognized that the “litigation

privilege exists to encourage and protect free access to the courts for litigants and

their attorneys.” Id. (emphasis added). And without restricting its analysis to

attorneys, Begley observed that statements made by “a party” or one who interferes

with a contract can be privileged. Id. (internal quotation marks omitted).

Accordingly, because the privilege can apply to attorneys and parties alike, the

district court should have analyzed all of the Spring 2020 Communications, including

Stevens’ letter and Neff’s follow-up communications, together. Under that analysis,

the relevant inquiry is whether OT’s Spring 2020 Communications related to the

Northern District of Illinois litigation and whether that litigation was contemplated in

good faith. We thus remand to the district court for proper analysis.

III. Pendent Jurisdiction

Finally, OT invokes our pendent jurisdiction to review the district court’s other

interlocutory rulings: (1) refusing to dismiss Counts 1 and 2 under the Lanham Act

and the CCPA as unauthorized supplemental pleadings, (2) refusing to dismiss the

entire amended complaint for impermissibly incorporating allegations to support

multiple claims, and (3) refusing to dismiss Count 6 as an improper anticipatory

filing. We conclude that none of these issues warrant review under our pendent

jurisdiction.

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Exercise of pendent jurisdiction is discretionary and “only appropriate in either

of two scenarios: (1) when the otherwise nonappealable decision is inextricably

intertwined with the appealable decision, or (2) where review of the nonappealable

decision is necessary to ensure meaningful review of the appealable one.” Cummings

v. Dean, 913 F.3d 1227, 1235 (10th Cir. 2019) (internal quotation marks omitted).

Given these limited scenarios, pendent jurisdiction is “generally disfavored” where,

as here, the underlying appeal involves an interlocutory question of immunity

brought under the collateral order doctrine, which “is premised on the ability to

decide the . . . immunity issue in isolation from the remaining issues of the case.” Id.

(internal quotation marks omitted).

Neither scenario exists here. The interlocutory rulings are not inextricably

intertwined with the question of OT’s immunity. See id. at 1236 (“A pendent claim

may be considered ‘inextricably intertwined’ only if it is coterminous with, or

subsumed in, the claim before the court on interlocutory appeal—that is, when the

appellate resolution of the collateral appeal necessarily resolves the pendent claim as

well.” (some internal quotation marks omitted)). And review of the interlocutory

rulings is unnecessary to ensure meaningful review of the immunity question.

Indeed, our foregoing analysis confirms it is not. See id. We therefore decline to

exercise pendent jurisdiction over the district court’s remaining interlocutory rulings.

V. Conclusion

Vivos’s motion to dismiss this appeal is denied in part and granted in part. To

the extent the denial of immunity turned on a question of law, the district court’s

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decision is reversed and remanded for further proceedings. To the extent the denial

of immunity turned on the factual inadequacy of the record, we dismiss the appeal.

We decline to exercise pendent jurisdiction over the balance of this appeal.

Entered for the Court

Allison H. Eid Circuit Judge