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 IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR ATTORNEY FEES
CHRISTINE M. ARGUELLO United States District Judge
This matter is before the Court on Defendants Allen Z. Sussman and Loeb & Loeb, LLP’s (collectively, “the Loeb Defendants”) Motion for Attorney Fees. (Doc. # 19.) Because the Court finds that the Loeb Defendants are entitled to attorney fees under Colo. Rev. Stat. § 13-17-201 (2015), but that the requested award must be reduced, the Court grants in part and denies in part the Loeb Defendants’ motion.
The factual and procedural history of this case is fully set forth in the Court’s Order granting the Loeb Defendants’ Motion to Dismiss. (Doc. # 17.) In that Order, entered on June 30, 2015, the Court dismissed Plaintiff Terrence M. Wyles’ complaint under Fed.R.Civ.P. 12(b)(6) on the grounds of claim-splitting and res judicata because Mr. Wyles had previously filed a nearly identical complaint involving the same causes of action and defendants in State Court. (Id. at 5.) On July 1, 2015, the Court entered judgment against Mr. Wyles and granted costs to Defendants. (Doc. # 18.)
On July 13, 2015, the Loeb Defendants filed the instant motion, requesting attorney fees under Colo. Rev. Stat. § 13-17-201 for work expended defending this suit. (Doc. # 19.) Pursuant to D.C.COLO.LCivR 54.3, the Loeb Defendants’ attorney Katherine A. Jensen attached to the motion an affidavit concerning the reasonableness of her requested fees and a comprehensive billing statement. (Doc. # 19-1.) On August 8, 2015, Mr. Wyles responded to the Loeb Defendants’ motion. (Doc. # 27.) The Loeb Defendants did not file a reply.
A. WHETHER DEFENDANTS MAY RECOVER ATTORNEY FEES
The Loeb Defendants argue that they are entitled to attorney fees under Colo. Rev. Stat. § 13-17-201 because the Court dismissed all of Mr. Wyles’ claims pursuant to Fed.R.Civ.P. 12(b)(6), and attorney fees are mandated by the statute in those circumstances. (Doc. # 19 at 3.) In response, Mr. Wyles contends that the Court’s dismissal was akin to a summary judgment motion and, thus, the statute does not apply. (Doc. # 27 at 1-2.) The Court finds that Colo. Rev. Stat. § 13-17-201 is applicable, and that the Loeb Defendants are entitled to attorney fees under the statute.
In this diversity action, the Court applies the substantive law of the forum state.
Jones v. Denver Post Corp., 203 F.3d 748, 757 (10th Cir. 2000) (citing Boyd Rosene & Assocs. v. Kan. Mun. Gas Agency, 174 F.3d 1115, 1118 (10th Cir. 1999) (attorney fees are substantive for diversity purposes)). Colo. Rev. Stat. § 13-17-201 provides that:
In all actions brought as a result of . . . an injury to person or property occasioned by the tort of any other person, where any such action is dismissed on motion of the defendant prior to trial under rule 12(b) of the Colorado rules of civil procedure, such defendant shall have judgment for his reasonable attorney fees in defending the action.
Though the statute makes specific reference to dismissal under Colo. R. Civ. P. 12(b), it is equally applicable to dismissal under Fed.R.Civ.P. 12(b)(6). Jones, 203 F.3d at 757 n.6.
The purpose of this statute is to prevent claimants from bringing insubstantial tort claims. Smith v. Town of Snowmass Vill., 919 P.2d 868, 872 (Colo.App. 1996). To ensure this deterrent effect, the fee award is mandatory whenever a defendant “succeeds in dismissing a complaint under Rule 12(b)[, ] . . . even if the complaint included a mix of tort and non-tort claims.” Infant Swimming Research, Inc. v. Faegre & Benson, LLP, 335 F. App’x 707, 715-16 (10th Cir. 2009). However, attorney fees are not awarded “if a motion [to dismiss] under rule 12(b) . . . is treated as a motion for summary judgment and disposed of as provided in rule 56” because, if a court needs to consider matters beyond the pleadings in rendering its decision, the claim cannot be said to be “insubstantial” as required by the statute. Colo. Rev. Stat. § 13-17-201; Krystkowiak v. W.O. Brisben Cos., Inc., 90 P.3d 859, 869-70 (Colo. 2004).
“Ordinarily, consideration of material attached to a Defendants’ answer or motion to dismiss requires the court to convert the motion into one for summary judgment.” Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006) (internal citations omitted). However, in a motion to dismiss, a court may consider “facts subject to judicial notice . . . such as . . . facts which are a matter of public record” without having the effect of converting the motion to a motion for summary judgment. Id. This includes filings in related court proceedings, even those in state court. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (noting that “federal courts . . . may take [judicial] notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”). In particular, the Tenth Circuit has held that conversion does not occur when a court considers related court filings in making a res judicata determination. See Rose v. Utah ...