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Beyer Laser Center, LLC v. Polomsky

United States District Court, D. Colorado

March 2, 2017




         Before 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.[1] 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.


         The 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.

         I. Facts

         The 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 (2009).

         Plaintiff 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 ¶¶ 27-31.

         Defendant 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.

         The CMB 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.

         II. Procedural History

         Based 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.

         Plaintiffs 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.


         “To 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.'”[2] 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.

         Plausibility 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.


         The 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 action.

         I. Absolute Immunity

         Because 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 privilege.”).

         Under 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).

         Defendant 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.

         “Common 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.

         In his 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 ...

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