United States District Court, D. Colorado
ORDER ON MOTION TO DISMISS
WILEY Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE
I. INTRODUCTION & BACKGROUND
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint (ECF No. 16), filed on June 16, 2015. The matter is fully briefed. By way of background, Plaintiff and Defendant were in an amorous relationship while Plaintiff lived in Colorado and Defendant lived in California. The time span of the relationship is unknown, as neither party indicated any dates in any of the pleadings. Plaintiff claims that in the course of the relationship, Defendant allegedly made several promises to Plaintiff in exchange for Plaintiff’s agreement to “move to California and start a life together there with the anticipation of becoming married.” Am. Compl., ¶ 6. Among the promises Defendant allegedly made were: 1) to fully provide for Plaintiff’s financial needs; 2) to cover Plaintiff’s moving expenses; 3) to pay for a storage unit; 4) to buy Plaintiff a car; 5) to pay for travel expenses between Colorado and California; 6) to pay for Plaintiff’s healthcare, including insurance premiums; 7) to pay for the cost to remodel Plaintiff’s home in Aspen, Colorado; 8) to pay for the cost of custom work on an engagement ring; 9) and to place Plaintiff’s jewelry in a safe deposit box in California (collectively “the Promises”). Id. at ¶¶ 7, 11, 14, 21, 25. Plaintiff alleges that Defendant failed to keep any of the Promises. Further, Plaintiff asserts that Defendant’s infidelity in their relationship caused her “severe stress, anxiety, depression, heartache, grief, and other emotional distress” and “certain bacterial infections” which required “psychological and physical medical treatment.” Id. at ¶¶ 29-30. Defendant argues that Plaintiff’s claims fail because they are “unenforceable claims for breach of promise to marry and seduction, ” which were abolished by Colorado’s heart balm statute, and because they fail to meet basic pleading requirements. Def.’s Motion, ECF No. 16, p. 1.
II. STANDARD OF REVIEW
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although this standard does not require detailed factual allegations, it does require “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 678 (2007). Further, “a pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do’ . . . [n]or does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555, 557). A motion to dismiss can be granted if a complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In order for a complaint to survive a motion to dismiss, it must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id., citing Twombly, 550 U.S. at 570. Facial plausibility is met when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id., citing Twombly, 550 U.S. at 556. The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully, ” and indeed, when a complaint “pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id., citing Twombly, 550 U.S. at 557 (some quotations omitted). If the facts do not permit a court to infer more than the mere possibility of misconduct, “the complaint has alleged - but it has not ‘show[n]’- ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679, citing Fed. R. Civ. Pro. 8(a)(2). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A “plaintiff must ‘nudge [ ][his] claims across the line from conceivable to plausible’ in order to survive a motion to dismiss. . . . Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Deatley v. Allard, 2015 WL 134271, at *2 (D. Colo. Jan. 9, 2015), citing Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007).
Plaintiff asserts eight causes of action against Defendant including 1) breach of contract; 2) promissory estoppel; 3) unjust enrichment; 4) intentional misrepresentation; 5) negligent misrepresentation; 6) fraudulent concealment; 7) intentional infliction of emotional distress; and 8) negligent infliction of emotional distress. She seeks actual, special, consequential, and restitutionary damages, attorney’s fees, interest, costs, and expert witness fees.
Plaintiffs in Colorado used to have the ability to file suits for breach of promise to marry, alienation of affections, criminal conversation, and seduction. However, in 1937, the Colorado Legislature abolished those causes of action with the enactment of C.R.S. § 13-20-202 (the “heart balm statute”). The Colorado Legislature noted in subsection 201 that the public policy reason for abolishing such causes of action was because the remedies of such actions “have been subjected to grave abuses, caused extreme annoyance, embarrassment, humiliation, and pecuniary damage to many persons.” The statute only precludes those causes of actions specifically listed. See Destefano v. Grabrian, 763 P.2d 275, 282 (Colo.1988). It was further noted that the statute should not be applied further “than to bar actions for damages suffered from loss of marriage, humiliation, and other direct consequences” of the breach, alienation, criminal conversation or seduction, and “should not affect the rights and duties determinable by common law principles.” Lindeman v. Corp. of the President of the Church of Jesus Christ Latter-Day Saints, 43 F.Supp.3d 1197, 1207 (D. Colo. 2014), citing In re Marriage of Heinzman, 579 P.2d 638, 640 (Colo.App. 1977). Although cases implicating this statute normally involve a husband or wife suing a third party for engaging in an extramarital affair with his or her spouse, courts have applied the statute when alienation or breach of promise to marry claims are disguised as common law causes of action.
Defendant relies on the heart balm statute to support his argument that all of Plaintiff’s claims fail because they arise out of a broken relationship, and are based on the breach of a promise to marry and/or seduction. He argues that although Plaintiff does not state her claims of action as stemming from the breach of a promise to marry and/or seduction, her claims are only disguised as common law causes of action, and are in fact, based on claims that have been abolished in this state. See Def.’s Motion, ECF No. 16, p. 1. Plaintiff argues that the alleged promises made by Defendant, “although made in the course of the parties’ relationship, were independent of [Defendant’s] potential marriage to [Plaintiff].” Pl.’s Response, ECF No. 17, p. 8.
A. Claim One - Breach of Contract
Plaintiff alleges that Defendant breached the Promises made to her, and therefore Defendant is liable for breach of contract. Plaintiff claims that she provided consideration for all of the Promises in the form of “foregoing her life and home, uprooting her life, moving to California, and beginning a new life as the fiancé of Defendant with the expectation of becoming married.” Am. Compl., ¶ 33. However, Plaintiff produces no written contract that was allegedly breached, nor does she provide any specificity with regard to the terms of such a contract, dates that the contract was entered into, or mutual assent to definite and certain propositions that would support an argument for the existence of an oral contract. Compare with Murray v. Crawford, 2009 WL 1837445 (D. Colo. June 26, 2009) (relying on the existence of a signed, dated cohabitation agreement between parties in an amorous relationship, which had specific provisions governing damages in the event of relationship termination, defendant’s financial obligation to pay plaintiff 22.5% of his gross salary and commission for a period of thirty months, and the legal protection of each party’s personal property). The pertinent dates of the alleged contract are critical. Since a breach of contract claim accrues “on the date the breach is discovered or should have been discovered by the exercise of reasonable diligence, ” C.R.S. § 13-80-108(6), Plaintiff needed to at least allege an approximate date of breach to allow the claim to survive.
Further, Plaintiff lumps all of the alleged Promises under one breach of contract claim, even though the subject matter of the Promises varies, and the respective terms of some of the Promises would necessarily be independent from others. For example, Plaintiff offers no indication of the terms of the alleged agreement to “fully provide for the financial needs” of Plaintiff, nor does she offer an indication of terms surrounding Defendant’s alleged promise to buy Plaintiff a car, or to pay for her health insurance premiums, or to finance trips between Colorado and California. Plaintiff offers no dates whatsoever in connection with any of the alleged Promises. There are no facts indicating the expected frequency of insurance premium payments, the expected time span that a storage facility would be rented, the anticipated move date to California, or the dates that the alleged agreements were breached. She alleges partial performance on the part of Defendant in the form of some payments as evidence of “the existence of certain of the agreements, ” but fails to allege with any specificity when such payments were made, under what terms, or even to which of the various Promises the alleged payments applied.
There is a contract between the parties and the remodeling company for the improvements of the Colorado home; however, Plaintiff does not allege a breach of that written contract (and in fact admits that under that contract, she was obligated to the company to pay for the remodel; see Pl.’s Response, ECF No. 17 at p. 7). She instead alleges, without any supporting evidence, that Defendant failed to pay her for the entire remodel as he allegedly promised to do. As for the allegation that Defendant failed to pay for custom work on an engagement ring, Plaintiff’s complaint suffers from the same lack of specificity, statement of terms, or indication of any mutual assent to such an agreement, nor does she provide a copy of any written contract for the custom ring work that might evidence an intent by the Defendant to pay for the service. The factual allegations asserted by the Plaintiff for a claim of breach of contract are insufficient for me to be able to “determine whether they plausibly give rise to relief.” Iqbal, 556 U.S. at 679.
Additionally, I agree that the essence of Plaintiff’s claims arises out of a broken relationship and related failed expectations. This falls squarely within the causes of action abolished by C.R.S. § 13-20-202. Plaintiff argues that her claims are based on her “business partnership” with Defendant. Pl.’s Response, ECF No. 17, p. 10. However, she presents no evidence that the parties shared anything but a personal, amorous relationship. Plaintiff’s argument that her claims are independent of the broken relationship is unavailing because the statute bars ...