United States District Court, D. Colorado
TERRENCE M. WYLES, Plaintiff,
ALUMINAID INTERNATIONAL, A.G., WEST HILLS RESEARCH & DEVELOPMENT, INC., formerly known as Aluminaid, Inc., ALUMINAID PTE, LTD., a/k/a Advanced First Aid Research PTE Limited, ZUPERFOODS, INC., CARL J. FREER, ERICKA FREER, a/k/a Ericka Lapresle, JAMES HUNT, ALLEN Z. SUSSMAN, LOEB & LOEB LLP, ADAM FREER, a/k/a Adam Agerstam, JULIA FREER, a/k/a Julia Agerstam, DAVID WARNOCK, ALEX ARENDT, Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
CHRISTINE M. ARGUELLO, District Judge.
Because claim splitting and res judicata preclude Plaintiff from re-litigating his claims in federal court, Defendants Loeb & Loeb LLP and Allen Sussman's ("Defendants") Motion to Dismiss (Doc. # 7) is granted. Further, Defendants' Motion for Sanctions (Doc. # 8) is denied without prejudice, as it is unclear whether attorney's fees should be awarded pursuant to Rule 11.
This case stems from Plaintiff's former employment with "Defendant Corporations." (Doc. # 1 at 5, ¶ 23.) Plaintiff's complaint lists eleven claims for relief: (1) breach of contract for employment; (2) violation of Colorado Wage Act; (3) libel and slander; (4) wrongful termination; (5) interference with contract/prospective economic advantage; (6) shareholder derivative action; (7) fraudulent transfers; (8) misrepresentation; (9) abuse of process; (10) negligence; and (11) joint liability. Over a year ago, on March 6, 2014, Plaintiff filed a complaint in Arapahoe County District Court ("State Court") asserting the same claims listed in this case-except misrepresentation and negligence-against the same defendants. (Doc. # 7-1.) Indeed, the State Court complaint included one additional defendant, Aja Reynolds. ( Id. )
On January 14, 2015, the State Court held that the employment agreement at issue in this case contains a forum selection clause that is applicable to Plaintiff's first (breach of contract for employment), second (violation of Colorado Wage Act), fourth (wrongful termination), and fifth (interference with contract/prospective economic advantage) claims for relief. (Doc. # 7-2 at 2.) The State Court determined that enforcement of the forum selection clause, which requires Plaintiff to bring any claims arising under the employment agreement in Switzerland, was contingent upon Defendants advancing to Plaintiff reasonable travel expenses related to litigating the matter in Switzerland within thirty days. ( Id. at 2-3) Because the parties disagreed as to what expenses were "reasonable, " on April 3, 2015, the State Court ordered that Defendants were responsible for advancing 80% of Plaintiff's proposed budget of $195, 066. (Doc. # 7-3 at 1-2.) The State Court also appointed a Special Master to determine "which expenses are reasonable and necessary, and the amount and timing of any deposits or reimbursements." ( Id. at 3.)
Further, the State Court ordered that the derivative claim concerning Defendant Aluminaid International be dismissed if the "foregoing payment/deposit is made and approved by the court." (Doc. # 7-2 at 3.) Plaintiff's derivative claim relating to West Hills Research & Development Inc. was dismissed; and Plaintiff's abuse of process claim was "dismissed without prejudice so that it may be brought before the California court." ( Id. at 4.)
Additionally, in the January 14, 2015 Order, the State Court denied without prejudice Plaintiff's motion to amend his complaint to assert a derivative claim of negligence/legal malpractice. ( Id. at 5.) Specifically, the State Court stated:
This issue may be raised again if the derivative claim [of legal malpractice] survives the motion to dismiss related to the payment/deposit discussed above.... Plaintiff may file another amended complaint in compliance with the foregoing within 14 days after the issues concerning the deposit/ advance discussed above have been resolved.
( Id. )
Despite the ongoing State Court case, on February 26, 2015, Plaintiff filed a complaint in this Court. (Doc. # 1.) On May 26, 2015, Defendants filed a Motion to Dismiss and a Motion for Sanctions. (Doc. ## 7, 8.) On June 16, 2015, Plaintiff filed a Response, to which Defendants replied on June 30, 2015. (Doc. ## 13, 16.)
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed due to the plaintiff's "failure to state a claim upon which relief can be granted." A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. See id.; see also Golan v. Ashcroft, 310 F.Supp.2d 1215, 1217 (D. Colo. 2004). The Rule 12(b)(6) standard tests "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994).
Additionally, under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." This pleading standard "does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting and citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks and citations omitted; alterations incorporated).
Further, "only a complaint that states a plausible claim for relief survives a motion to dismiss [under Rule 12(b)(6)]. Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint ...