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Gunn v. Carter

United States District Court, D. Colorado

December 9, 2014

BEN GUNN, and JENNIFER GUNN, Plaintiffs,
v.
WILLIAM C. CARTER, Defendant, WCA LOGISTICS, LLC, and WCA LOGISTICS II, LLC, Defendants/Third-Party Plaintiffs,
v.
JOHN E. BREEN, Third-Party Defendant.

ORDER ADOPTING THE RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND DENYING THIRD-PARTY DEFENDANT'S MOTION TO DISMISS

WILLIAM J. MARTÍNEZ, District Judge.

This matter is before the Court on United States Magistrate Judge Michael E. Hegarty's Recommendation (ECF No. 110) that the Third-Party Defendant John E. Breen's Renewed Motion to Dismiss Third Party Complaint as Amended ("Motion") (ECF No. 66) be denied. The Court adopts Judge Hegarty's Recommendation in its entirety. Therefore, for the reasons set forth below, the Motion is denied.

I. BACKGROUND

On December 5, 2013, Defendants WCA Logistics, LLC and WCA Logistics II, LLC (together "Defendants") filed a Counterclaim and Third-Party Complaint against John E. Breen ("Breen"). (ECF No. 19.) Defendants subsequently amended their Third-Party Complaint against Breen to include counts of legal malpractice, negligence per se, breach of fiduciary duty, breach of the duty of loyalty, fraud, and civil conspiracy. (ECF No. 53 at 13-20.) Defendants allege that, approximately ten years ago, Breen began representing WCA Logistics, LLC ("WCA") as legal counsel "on a regular basis" in litigation and transactional matters. ( Id. at ¶ 13-14.)

Beginning in approximately June 2012, Breen served as the exclusive legal counsel and Chief Operating Officer of WCA. ( Id. at ¶ 15-16.) On September 20, 2012, Breen incorporated WCA Logistics II, LLC ("WCA II") ( Id. at ¶ 51), and thereafter served as legal counsel to both WCA and WCA II ( Id. at ¶ 24). On approximately September 22, 2012, WCA II, through Breen, executed an "Asset Purchase Agreement" with Ben and Jennifer Gunn for the purchase of Armada Logistics, Inc. ("Armada"). ( Id. at ¶ 52-54.) Breen's conduct during and after the Armada acquisition is the subject of several of the Defendants' malpractice claims. Defendants allege that "[u]ntil WCA and WCA II severed the attorney-client relationship in February 2013, Mr. Breen identified himself as COO for WCA, general counsel for WCA, president of WCA II, and owner of WCA II." ( Id. at ¶ 23.)

In response to Defendants' Amended Third-Party Complaint, Breen filed the instant Motion under Fed.R.Civ.P. 12(b)(6), alleging each claim is either barred by the statute of limitations applicable to attorney malpractice, or is insufficiently pled and "incapable of response." (ECF No. 66 at 1.) The Court referred the Motion to Judge Hegarty (ECF No. 107), who issued his Recommendation that the Motion be denied on September 19, 2014. (ECF No. 110.) Breen filed a timely objection to Judge Hegarty's Recommendation on October 1, 2014 (ECF No. 112), which the Court now considers.

II. LEGAL STANDARD

A. The Court's Review of the Magistrate Judge's Recommendation

A party who objects to a magistrate judge's recommendation on a potentially dispositive motion under Fed.R.Civ.P. 72(b) must, within 14 days after service of the recommendation, file specific written objections with the district judge. Id. at (b)(2). If a party properly files an objection, the district judge must review the relevant portion of the magistrate judge's recommendation de novo. Id. at (b)(3). When conducting his review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.

B. Motions to Dismiss under Fed. R. Civ. P 12(b)(6)

In reviewing a motion to dismiss, the court must accept all well-pled allegations contained in plaintiff's complaint as true, and determine whether the facts pled show the pleader is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Conclusory statements or other bare assertions are not entitled the presumption of truth. Id. at 678. Therefore, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard demands more than the "sheer possibility" of liability. Id. A well-pled claim will, instead, allow the court to draw "reasonable inference[s] that the defendant is liable." Id.

III. ANALYSIS

Breen argues that each claim against him in Defendants' Amended Third-Party Complaint is either barred by the statute of limitations applicable to attorney malpractice, or is insufficiently pled and "incapable of response." (ECF ...


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