Acton Academy v. Apogee Summit Colorado LLC - Motion to Remand Granted, No Federal Jurisdiction

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April 8, 2026 Get Citation Alerts Download PDF Add Note

Acton Academy, a Texas Nonprofit Corporation v. Apogee Summit Colorado LLC, Tim Kennedy, an individual, and Matt Beaudreau, an individual

District Court, D. Colorado

• Citations: None known
• Docket Number: 1:25-cv-03502

• Precedential Status: Unknown Status

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer

Civil Action No. 25-cv-03502-PAB

ACTON ACADEMY, a Texas Nonprofit Corporation,

Plaintiff,

v.

APOGEE SUMMIT COLORADO LLC,
TIM KENNEDY, an individual, and
MATT BEAUDREAU, an individual,

Defendants.

ORDER

This matter comes before the Court on Plaintiff Acton Academy’s Motion to
Remand [Docket No. 17]. Defendants filed a response, Docket No. 25, and plaintiff filed
a reply. Docket No. 30.
I. BACKGROUND
Plaintiff Acton Academy filed this action in state court on September 23, 2025.
Docket No. 7. Plaintiff alleges that defendants breached a contract and
misappropriated trade secrets related to confidential and proprietary materials plaintiff
developed in support of its business and brand. Id. at 4, ¶ 1. Plaintiff brings state law
claims for Breach of Contract, Breach of the Covenant of Good Faith, Misappropriation
of Trade Secrets under Colo. Rev. Stat. § 7-74-101 et seq., Civil Conspiracy, and Unjust
Enrichment.1 Id. at 19-25, ¶¶ 104-162. Defendants were served on October 11, 2025,

1 Plaintiff also brings a claim titled “injunctive relief,” Docket No. 7 at 25-28,
¶¶ 163-185, but injunctive relief is a remedy, not a cause of action. See Bellwether
Docket No. 1 at 1-2, ¶ 3, and timely filed a notice of removal on November 3, 2025.
See generally id. In their notice of removal, defendants claim that the Court has original jurisdiction
over this action based on federal question jurisdiction, asserting that the allegations in
the complaint are “within the purview of the Lanham Act.” Id. at 1, ¶ 1. On December 2,

2025, plaintiff filed a motion to remand. Docket No. 17. On December 23, 2025,
defendants filed a response. Docket No. 25. On January 2, 2026, plaintiff filed a reply.
Docket No. 30.
II. LEGAL STANDARD
Generally, a defendant may remove “any civil action brought in a State court of
which the district courts of the United States have original jurisdiction.” 28 U.S.C.
§ 1441 (a). There are two basic statutory grounds for original jurisdiction in federal
district courts: federal-question jurisdiction under 28 U.S.C. § 1331 and diversity
jurisdiction under 28 U.S.C. § 1332. Nicodemus v. Union Pac. Corp., 318 F.3d 1231,
1235 (10th Cir. 2003). Pursuant to § 1331, “[t]he district courts shall have original

jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. “Under the longstanding well-pleaded complaint
rule . . . a suit ‘arises under’ federal law only when the plaintiff’s statement of his own
cause of action shows that it is based upon federal law.” Vaden v. Discover Bank, 556
U.S. 49, 60 (2009) (quoting Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149,
152 (1908)) (internal quotations and alterations omitted); see also Devon Energy Prod.

Cmty. Credit Union v. Chipotle Mexican Grill, Inc., 353 F. Supp. 3d 1070, 1088 (D. Colo.
2018) (“Injunctive relief is not a separate cause of action; rather, it is one form of relief
for the other legal violations alleged.”) (citation omitted).
Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1202 (10th Cir. 2012). In
other words, “[a]s a general rule, absent diversity jurisdiction, a case will not be
removable if the complaint does not affirmatively allege a federal claim.” Beneficial Nat’l
Bank v. Anderson, 539 U.S. 1, 6 (2003). For removal jurisdiction, “the required federal
right or immunity must be an essential element of the plaintiff's cause of action, and . . .

the federal controversy must be disclosed upon the face of the complaint, unaided by
the answer or by the petition for removal.” Fajen v. Found. Reserve Ins. Co., Inc., 683
F.2d 331, 333 (10th Cir. 1982) (internal quotation marks omitted); see also Gully v. First
Nat’l Bank, 299 U.S. 109, 113 (1936). It “takes more than a federal element to open the
‘arising under’ door” of § 1331. Empire Healthchoice Assurance, Inc. v. McVeigh, 547
U.S. 677, 701 (2006).
“The party invoking federal jurisdiction bears the burden of establishing such
jurisdiction as a threshold matter.” Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220,
1224 (10th Cir. 2004). “Federal district courts must strictly construe their removal

jurisdiction.” Env’t Remediation Holding Corp. v. Talisman Capital Opportunity Fund,
L.P., 106 F. Supp. 2d 1088, 1092 (D. Colo. 2000). “[A]ll doubts are to be resolved
against removal.” Fajen, 683 F.2d at 333. Thus, the court presumes that no jurisdiction
exists absent an adequate showing by the party invoking federal jurisdiction. Lorentzen
v. Lorentzen, No. 09-cv-00506-PAB, 2009 WL 641299, at *1 (D. Colo. Mar. 11, 2009).
III. ANALYSIS
Defendants argue that plaintiff alleges a federal cause of action under the
Lanham Act, 15 U.S.C. § 1051 et seq. Docket No. 25 at 7-9. Alternatively, defendants
argue that federal trademark law is a necessary element of plaintiff’s claims. Id. at 9-11.
A. Federal Cause of Action
Defendants state that, while plaintiff does not label any claim as a federal
trademark claim, plaintiff alleges facts which support a claim under the Lanham Act. Id.
at 7-8. In support, defendants point to a similar case plaintiff filed against defendant
Kennedy in the United States District Court for the Western District of Texas, where

plaintiff brought claims under the Lanham Act. Id. at 8-9.
This argument is unavailing. “[F]ederal jurisdiction attaches when federal law
creates the cause of action asserted.” Bd. of Cnty. Commissioners of Boulder Cnty. v.
Suncor Energy (U.S.A.) Inc., 25 F.4th 1238, 1255 (10th Cir. 2022) (quoting Merrill
Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S. 374, 383 (2016)). Importantly,
what matters is whether the plaintiff asserts a federal cause of action, not whether the
plaintiff pleads facts which could support a federal cause of action. In other words,
“[t]he plaintiff is the ‘master of the claim’ and may prevent removal by choosing not to
plead a federal claim even if one is available.” Schmeling v. NORDAM, 97 F.3d 1336,
1339 (10th Cir. 1996) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)).

Thus, it is irrelevant that plaintiff alleged facts which could support a cause of action
under the Lanham Act or that plaintiff brought Lanham Act claims in a separate case;
what matters is that plaintiff did not bring a Lanham Act claim here. Here, the complaint
does not bring a federal cause of action and nowhere refers to the Lanham Act. See
generally Docket No. 7. As the “master of the claim,” plaintiff has the right to “avoid
federal jurisdiction by exclusive reliance on state law.” Bd. of Cnty. Commissioners of
Boulder Cnty., 25 F.4th at 1256 (citation omitted). Plaintiff chose to do so here.
B. Substantial Question of Federal Law
Notwithstanding the general rule that a federal cause of action must be asserted,
“a case might still arise under the laws of the United States if a well-pleaded complaint
established that its right to relief under state law requires resolution of a substantial
question of federal law in dispute between the parties.” Id. at 1257 (citation and internal

quotations omitted). Defendants argue that this exception applies to this case. Docket
No. 25 at 9-11. Under the “substantial question” test, “federal jurisdiction over a state
law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3)
substantial, and (4) capable of resolution in federal court without disrupting the federal-
state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). The
Tenth Circuit has cautioned that “[t]he ‘substantial question’ branch of federal question
jurisdiction is exceedingly narrow.” Bd. of Cnty. Commissioners of Boulder Cnty., 25
F.4th at 1257 (citation omitted). For instance, the “mere need to apply federal law in a
state-law claim” will not “suffice to open the ‘arising under’ door.” Grable & Sons Metal
Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 313 (2005). Rather, the federal

question must be an essential element of a plaintiff’s claim. Gilmore v. Weatherford, 694 F.3d 1160, 1173 (10th Cir. 2012). A federal question is an “essential element” of a
plaintiff’s claim if, for example, it is the only contested legal or factual issue. Bd. of Cnty.
Commissioners of Boulder Cnty., 25 F.4th at 1266 (citation omitted). Moreover, “federal
jurisdiction demands not only a contested federal issue, but a substantial one, indicating
a serious federal interest in claiming the advantages thought to be inherent in a federal
forum.” Gilmore, 694 F.3d at 1171 (citations omitted).
Plaintiff’s claims can be resolved without resolving a federal question. For
instance, while the breach of contract claim is based in part on the unauthorized use of
plaintiff’s trademark, it is also based on the misappropriation of trade secrets, among
other things. Docket No. 7 at 19-20, ¶¶ 107-109. In fact, defendants admit that the
breach of contract claim “lists other non-trademark issues as other reasons for the
breach.” Docket No. 25 at 10. Nevertheless, defendants argue that a deposition taken
for the Western District of Texas case shows that the only items that could be at issue

are the federal trademarks. Id. Plaintiff disagrees with that characterization of the
deposition. Docket No. 30 at 5-6. Notably, “[a]lthough the court may consider evidence
outside the pleadings, it is not proper for the court to pre-try issues of liability on a
motion to remand.” Ferrell v. BGF Glob., LLC, 2015 WL 6438988, at *2 (W.D. Okla.
Oct. 21, 2015) (citation and internal quotations omitted). Thus, the Court refuses to
determine whether defendants can be held liable under various theories of plaintiff’s
breach of contract claim. Accordingly, because plaintiff’s breach of contract claim can
be decided on state-law issues, it does not necessarily raise a federal issue. The same
is true for plaintiff’s other claims.

Moreover, even if plaintiff’s claims necessarily raised a federal issue, defendants
still do not satisfy the substantial questions test because defendants do not argue that
the federal issues are substantial.2 See generally Docket No. 25. Because defendants
bear the burden of establishing jurisdiction, the failure to do so is fatal to the jurisdiction
issue. See Radil, 384 F.3d at 1224. Accordingly, the Court does not have federal
question jurisdiction over this case.3

2 Plaintiff argues that the federal issue is not substantial, noting that it primarily
raises a factual issue, not a legal issue. Docket No. 17 at 13-15.
3 In addition to the motion to remand, there is a pending motion to dismiss,
motion to stay, and motion to consolidate in this action. Docket Nos. 16, 18, 27.
IV. CONCLUSION
Therefore, it is
ORDERED that Plaintiff Acton Academy’s Motion to Remand [Docket No. 17] is
GRANTED. It is further
ORDERED that Defendants’ Motion to Dismiss [Docket No. 16] is DENIED as
moot. It is further
ORDERED that Plaintiff Acton Academy's Motion to Stay Pending this Court’s
Resolution of Acton Academy's Motion to Remand [Docket No. 18] is DENIED as moot.
It is further
ORDERED that Defendants Apogee Summit Colorado LLC, Tim Kennedy, and
Matt Beaudreau’s Motion to Consolidate [Docket No. 27] is DENIED as moot. It is
further
ORDERED that this case is REMANDED to the District Court of El Paso County
for all further proceedings. It is further
ORDERED that this case is closed.

DATED April 8, 2026.
BY THE COURT:
_S fo .
PHILIP A. BRIMMER
United States District Judge

Because the Court will grant the motion to remand, it will deny the other pending
motions as moot.