United States District Court, D. Colorado
LEWIS T. BABCOCK, JUDGE
This matter is before me on a Motion To Dismiss filed by Defendant Ohio Security Insurance Company (“Ohio Security”). [Doc #8] Ohio Security seeks dismissal of the complaint filed against it by Plaintiff Rooftop Restoration, Inc., on the basis that it fails to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Oral arguments would not materially assist me in my determination. After consideration of the parties’ arguments, and for the reason stated, I GRANT IN PART and DENY IN PART the motion as follows.
I. Timeliness of Response
As an initial matter, I first address Ohio Security’s assertion that Plaintiff’s response to this motion was untimely. Specifically, it argues that it filed this motion on April 2, 2015, and that Plaintiff’s response was due no later than April 27, 2015. Plaintiff filed its response - without leave of the court - ten days out of time on May 7, 2015. [Doc #9] Ohio Security asks that the response be “disregarded” and its motion granted because it demonstrates that Plaintiff’s complaint fails to state a legally cognizable claim. [Doc #11]
On December 1, 2015, Plaintiff filed a surreply to the motion, pursuant to my order, addressing its late response. [Doc #13] Plaintiff acknowledges that its response was not timely filed, but argues that the lateness was due to a new calendaring program/computer glitch in which emails about new filings went into a “junk mail” folder and were not timely seen by Plaintiff’s counsel. Upon discovering that the Motion to Dismiss had been filed, Plaintiff asserts that its counsel “immediately filed a response.” Plaintiff contends - for the first time - that the reason for the late response constitutes excusable neglect under Fed. Rule Civ. P. 60(b)(1). Plaintiff further acknowledges that it should have sought leave from the court to file its belated response, pursuant to Fed.R.Civ.P. 6(b), but that it failed to do so. So, Plaintiff requests that I construe its surreply as a belated motion seeking leave to filed its response out of time. [Doc #13]
While the belated response might have been deemed to be excusable neglect, Plaintiff failed to seek leave to file its response late and didn’t acknowledge therein that its response was untimely. This failure is inexcusable, particularly when the circumstances of the late filing make it apparent that counsel was aware that the response was late, but neglected to address the issue with the Court. However, such failure, standing alone, constitutes insufficient grounds to grant Defendant’s Motion to Dismiss. See Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003)(citation omitted)(concluding that a district court may not grant a motion to dismiss for failure to state a claim merely because a party failed to file a response). Rather, “the district court must still examine the allegations in the plaintiff’s complaint and determine whether the plaintiff has stated a claim upon which relief can be granted.” Id. I review the merits of Ohio Security’s Motion to Dismiss, as discussed below, and I decline to dismiss Plaintiff’s case on the sole basis that his counsel’s failed to address the lateness of its response.
In its Complaint, Plaintiff asserts that Sikh Dharma of Colorado was the insured on a Property Policy (Policy No. BKS559685111) issued by Ohio Security for replacement cost value on loss to the insured’s property. [Doc #5] On March 27, 2014, a hail/wind storm caused damage to the insured’s property. The insured and Plaintiff requested “timely and full payment for all covered damages arising from the hail/wind storm” from Ohio Security under the Policy. Ultimately, on January 19, 2015, the insured assigned its claim against Ohio Security to Plaintiff. Plaintiff asserts that Ohio Security acknowledged that a covered loss occurred, and has made partial payments, but has refused to pay the entire Proof of Loss claimed of $58, 913.10.
Plaintiff asserts two claims against Ohio Security for: 1) Breach of (Insurance) Contract; and 2) Unreasonable Delay or Denial of Payment of Covered Benefits Pursuant to Colo. Rev. Statutes §10-3-1115 and §10-3-1116. [Doc #5]
III. Standard of Review
A claim will survive dismissal under Rule 12(b)(6) if it alleges a plausible claim for relief; that is, the “factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The concept of “plausibility” at the dismissal stage refers not to whether the allegations are likely to be true; rather, “[t]he question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law.” Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th Cir. 2009)(citing Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
IV. Breach of Contract
In its motion, Ohio Security asserts that Plaintiff’s complaint fails to state a claim for breach of contract upon which relief can be granted. It contends that the insured’s assignment of its rights under the Policy to Plaintiff is invalid, as a matter of law, because it is undisputed that they failed to obtain Ohio Security’s written consent to ...