United States District Court, D. Colorado
BEYER LASER CENTER, LLC, and CRAIG F. BEYER, Plaintiffs,
MATEJ POLOMSKY, Defendant.
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant's Motion to Dismiss [filed
December 23, 2016; ECF No. 12]. The Motion is fully
briefed, and the Court held oral argument on February 16,
2017. Defendant's Motion first asks the
Court to determine whether Defendant is entitled to absolute
or statutory immunity. Alternatively, Defendant seeks
dismissal of Plaintiffs' Amended Complaint for failure to
state a claim. The Court holds that dismissing the Amended
Complaint on the basis of Defendant's immunity from
liability is not proper at this time. Additionally, with the
exception of Plaintiffs' claim for abuse of process,
which Plaintiffs agree to dismiss, the Court finds that each
of Plaintiffs' causes of action state a claim on which
relief may be granted. Therefore, Defendant's Motion to
Dismiss is granted in part and denied in part.
claims in Plaintiffs' Amended Complaint derive from an
ethics complaint Defendant filed with the Colorado State
Medical Board (“CMB”) against Plaintiff Craig
Beyer. Defendant responded to Plaintiffs' Amended
Complaint by filing the present Motion, which seeks dismissal
of the case in its entirety.
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiffs in their Amended Complaint,
which are taken as true for analysis under Fed.R.Civ.P.
12(b)(1) pursuant to Holt v. United States, 46 F.3d
1000, 1002 (10th Cir. 1995), and under Fed.R.Civ.P. 12(b)(6)
pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678
Beyer and Defendant are medical doctors practicing
ophthalmology and performing corrective vision surgeries. Am.
Compl. ¶¶ 1-2, 5. Beyer operates his ophthalmology
practice through Plaintiff Beyer Laser Center, LLC
(“BLC”). Id. at ¶ 2. Defendant
worked for BLC as a fellow from July 2012 through December
2012. Id. at ¶ 7; Ex. A to Am. Compl. 7, ECF
No. 18. In November 2012, a former employee of BLC asked
Defendant to file a false complaint with the CMB. Am. Compl.
¶ 12. Defendant and the former employee then agreed to
falsely allege in CMB complaints that Beyer had been
switching patients' laser vision correction treatment
cards without the patients' knowledge or permission.
Id. at ¶¶ 12, 17, 99. Before filing the
complaint, Defendant did not review patient files, consult
professional literature, or perform any other investigation
to substantiate the allegations he made. Id. at
and the former BLC employee entered into the conspiracy and
filed their complaints with the intent to injure
Plaintiffs' reputations and unfairly compete with
Plaintiffs. Id. at ¶¶ 98-99. Additionally,
Defendant filed the complaint, because he feared that he
could have professional and legal exposure if he knew about
unethical conduct, but failed to notify the CMB. Id.
at ¶¶ 34-35.
initiated an investigation into Beyer's conduct and
temporarily suspended Beyer's license in March 2015.
Id. at ¶ 50. After the CMB held a hearing on
Beyer's conduct, it concluded that the actions were
ethical, and it reinstated Beyer's license. Id.
at ¶ 51. As a result of Defendant's CMB complaint
and the conspiracy to harm Beyer's reputation, current
and prospective patients, surgeons, and service providers
canceled their contracts with Plaintiffs. Id. at
¶¶ 88-90. This has harmed Plaintiffs'
reputations and caused Plaintiffs to suffer a loss of income.
Id. at ¶¶ 64-67.
on these factual allegations, Plaintiffs filed their First
Amended Complaint in Boulder County, Colorado District Court
on October 27, 2016. ECF No. 4. Plaintiffs assert five claims
for relief: (1) defamation, (2) abuse of process, (3)
malicious prosecution, (4) intentional interference with
contractual relations, and (5) civil conspiracy. Id.
at ¶¶ 70-103. Defendant removed the case to this
Court on December 16, 2016. Notice of Removal, ECF No. 1. On
December 23, 2016, Defendant filed the present Motion to
Dismiss. Def.'s Mot. to Dismiss, ECF No. 12. Defendant
argues he is immune from liability for any injuries
Plaintiffs suffered as a result of his CMB complaint.
Id. at 6-11. Additionally, Defendant asserts that
even if the Court finds he is not entitled to absolute or
statutory immunity, Plaintiffs' Amended Complaint fails
to properly state a claim. Id. at 12-18.
responded to Defendant's Motion on January 13, 2017.
Pls.' Resp., ECF No. 22. Plaintiffs contend Defendant is
not entitled to absolute immunity, because the statutory
immunity found in Colo. Rev. Stat. § 12-36-118(3)(b)
displaced the common-law absolute immunity. Id. at
6-7. Furthermore, Plaintiffs contend Defendant is not
entitled to statutory immunity, because the Amended Complaint
alleges Defendant lacked good faith when he filed the CMB
complaint. Id. at 3-5. Finally, Plaintiffs assert
that each of their causes of action states a claim on which
relief may be granted. Id. at 7-10. Defendant filed
a Reply on January 27, 2017. ECF No. 23.
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.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Plausibility, in the context of a
motion to dismiss, means that the plaintiff pleaded facts
which allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. Twombly requires a two-prong
analysis. First, a court must identify “the allegations
in the complaint that are not entitled to the assumption of
truth, ” that is, those allegations which are legal
conclusions, bare assertions, or merely conclusory.
Id. at 679-80. Second, the Court must consider the
factual allegations “to determine if they plausibly
suggest an entitlement to relief.” Id. at 681.
If the allegations state a plausible claim for relief, such
claim survives the motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a prima facie
case in a complaint, the elements of each alleged cause of
action may help to determine whether the plaintiff has set
forth a plausible claim. Khalik, 671 F.3d at 1191.
Court will first address whether Defendant is entitled to
absolute immunity for the statements he made in the CMB
complaint. After concluding that common-law absolute immunity
does not apply here, the Court will analyze whether Defendant
is entitled to statutory immunity under Colo. Rev. Stat.
§ 12-36-118(3)(b). The Court finds that dismissal on the
basis of statutory immunity is not proper at this time,
because the Amended Complaint sufficiently alleges
Defendant's lack of good faith. Finally, the Court will
address the sufficiency of Plaintiffs' claims for relief.
With the exception of Plaintiffs' abuse of process claim,
which Plaintiffs agree to dismiss, the Court finds that each
of Plaintiffs' claims sufficiently alleges a cause of
Plaintiffs bring state-law claims only, the Court must
address whether Defendant is absolutely immune under Colorado
common law. Aspen Orthopaedics & Sports Med., LLC v.
Aspen Valley Hosp. Dist., 353 F.3d 832, 837 (10th Cir.
2003) (“[S]tate law governs the applicability of
immunity to state law claims . . . .” (quoting
Sheth v. Webster, 145 F.3d 1231, 1236 (11th Cir.
1998))); Gray-Hopkins v. Prince George's Cty.,
Md., 309 F.3d 224, 231 (4th Cir. 2002) (stating that in
analyzing state-law claims, the court “must look to
substantive state law . . . in determining the nature and
scope of a claimed immunity”). The determination of
whether a privilege or immunity applies is generally a
question of law for the court. Hoffler v. State Pers.
Bd., 7 P.3d 989, 990 (Colo.App. 1999); Walters v.
Linhof, 559 F.Supp. 1231, 1236 (D. Colo. 1983)
(“It is a preliminary question of law for the court to
determine whether the circumstances give rise to a
Colorado common law, “the general rule is that
communications made in the course of judicial proceedings . .
. are absolutely privileged if they bear a reasonable
relationship to the subject of the inquiry.”
MacLarty v. Whiteford, 496 P.2d 1071, 1072
(Colo.App. 1972) (holding that the defendant's statements
in a letter to the state liquor licensing authority were
absolutely privileged under Colorado common law). Colorado
courts have extended absolute immunity to statements made in
preparation for and during quasi-judicial proceedings.
Merrick v. Burns, Wall, Smith, & Mueller, P.C.,
43 P.3d 712, 714 (Colo.App. 2001) (“Communications
preliminary to a judicial proceeding are protected by
absolute immunity only if they have some relation to a
proceeding that is actually contemplated in good
faith.”); Dorr v. C.B. Johnson, Inc., 660 P.2d
517, 519 (Colo.App. 1983) (holding that statements made in a
report that the defendant was required to file under the
Workers Compensation Act were absolutely privileged).
claims he is entitled to common-law absolute immunity for the
statements he made in his CMB complaint, because the
allegations were used to launch an investigation into
Beyer's conduct. Def.'s Mot. 10-11. In response,
Plaintiffs argue that absolute immunity does not apply here,
because Section 12-36-118(3)(b) derogated absolute immunity
in this context. Pls.' Mot. 6-7. The Court agrees with
Plaintiffs, and holds that when the Colorado Legislature
enacted Section 12-36-118, it replaced common-law immunities
for those filing ethics complaints against doctors.
law principles apply in Colorado only in the absence of
statute.” Brown v. Rosenbloom, 524 P.2d 626,
628 (Colo.App. 1974) (citing Colo. State Bd. of Pharmacy
v. Hallett, 296 P. 540 (Colo. 1931)). Accordingly,
“[s]tatutes granting immunity are in derogation of
common law and, hence, must be strictly construed.”
State v. Nieto, 993 P.2d 493, 506 (Colo. 2000).
Pursuant to this general principle, the Colorado Court of
Appeals held in Brown that common-law immunities did
not apply, because “the scope of immunity for [medical
commissions] is specifically defined by [statute].” 524
P.2d at 628. Similarly, in Hoffler, the court found
that “the common law privilege [did] not apply”
where specific regulations required individuals to assist
investigators with full and accurate information. 7 P.3d at
991. Therefore, because Colorado statutory law defines the
scope of immunity for persons filing complaints with the
medical board, Colorado common-law immunities do not apply.
Reply, Defendant cites three cases for the proposition that a
legislature must include specific statutory language to
abolish common-law immunities. Def.'s Reply 7, ECF No. 23
(citing Pierson v. Ray, 386 U.S. 547, 556 (1967);
Martin v. Duffie, 463 F.2d 464, 468 (10th Cir.
1972); Imbler v. Pachtman, 424 U.S. 409 (1976)).
Additionally, the Tenth Circuit has specifically rejected an
argument that the immunity found in Colo. Rev. Stat. §
12-36-118(3)(b) displaced federal absolute immunity.
Horwitz v. State Bd. Of Med. Exam'rs of State of
Colo., 822 F.2d 1508, 1516 (10th Cir. 1987). However,
these cases all dealt with claims brought under federal law,
and were thus applying federal, instead of state, immunities
law. Although federal courts may require an explicit
statement to find that Congress intended to replace federal
common-law immunities, Colorado courts have not required such
a statement to find that the Colorado Legislature derogated a
state common-law immunity. See Brown, 524 P.2d at
628. Moreover, regarding Horwitz, it is clear that a
state legislature has no power to derogate federal law. U.S.
Const. art. VI, cl. 2. For that reason, Section
12-36-118(3)(b) did not eliminate the application of federal
absolute immunity over a Section 1983 claim. See
Horwitz, 822 F.2d at 1516. Equally clear is that the
Colorado Legislature can overrule any part of Colorado common