United States District Court, D. Colorado
BEYER LASER CENTER, LLC, and CRAIG F. BEYER, Plaintiffs,
MATEJ POLOMSKY, Defendant.
ORDER ON PLAINTIFFS' MOTION TO DISMISS
Michael E. Hegarty, United States Magistrate Judge.
the Court is Plaintiffs' Motion to Dismiss Counterclaims
[filed April 6, 2017; ECF No. 33]. The motion is
fully briefed, and the Court finds that oral argument (not
requested by the parties) will not assist in the adjudication
of the motion. For the following reasons and based on the
entire record herein, the Court grants in part and denies in
part the Plaintiffs' motion.
claims in Plaintiffs' Amended Complaint derive from an
ethics complaint Defendant Matej Polomsky (“Dr.
Polomsky”) filed with the Colorado State Medical Board
(“CMB”) against Plaintiff Craig F. Beyer
(“Dr. Beyer”). After the Court denied in
substantial part Dr. Polomsky's motion to dismiss, Dr.
Polomsky filed an Answer in response to the First Amended
Complaint (filed by Dr. Beyer and Plaintiff Beyer Laser
Center, LLC (“BLC”)) and eight Counterclaims
against the Plaintiffs. See Am. Comp., ECF No. 4;
Answer & Countercls., ECF No. 30.
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by the Defendant in his Counterclaims,
which are taken as true for analysis under Fed.R.Civ.P.
12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
2011, Dr. Beyer advertised an ophthalmology fellowship with
his company, BLC, on the website, “SFMatch.”
SFMatch is sponsored by the Association of University
Professors of Ophthalmology and was developed to allow
fellowship applicants to visit and evaluate various training
programs in a systematic fashion without the pressure of
being asked for a commitment before the evaluation process is
completed. Prospective fellows rely on the information
concerning the fellowship being offered by each medical
practice provided by the fellowship's program director to
determine which program is the best fit for the student's
career goals and educational needs.
October 2011, as part of this matching process, Dr. Polomsky
spent his time and money to travel across the country to
Boulder, Colorado, to learn about BLC and the fellowship
advertised by Dr. Beyer. BLC was one of at least eight
programs Dr. Polomsky considered for his fellowship training.
Dr. Beyer informed Dr. Polomsky that the fellowship would be
a one-year anterior segment/refractive surgery fellowship
program focused on training proficiency in the following
areas: 1) excimer laser PRK/LASIK; 2) femtosecond LASIK,
Cataract, LRI's, and DALK surgery; 3) Intraocular premium
IOL and Toric IOL surgery; 4) PKPs; 5) Intacts for
Keratoconus; 6) Riboflavin X-linking for keratoconus; 7) ICLs
for high myopia; and 8) clear lens extraction for high
hyperopia. This was particularly exciting to Dr. Polomsky,
since his primary purpose in deciding to engage in a
fellowship was to learn corneal surgery and build a career as
a specialist in that area.
Beyer stated that the fellow's training would be
conducted by two doctors at BLC. He also stated that the
fellow potentially would have the opportunity to become a
partner in the practice upon successful completion of the
fellowship. Relying on these statements, Dr. Polomsky chose
not to pursue other opportunities available to him, accepted
Plaintiffs' fellowship offer, and moved across the
country to work as a fellow at BLC.
Polomsky took a year out of his life and accepted a low
salary based on the promise that he would be taught the
procedures Dr. Beyer stated would be covered in the
fellowship. Shortly after Dr. Polomsky arrived at BLC, it
became apparent to him that he had been misled regarding the
nature of the “fellowship” at BLC and Dr.
Beyer's intentions regarding a fellow. For example,
rather than provide the broad scope of specialized training
he promised, Dr. Beyer gave only limited opportunities to
develop certain techniques and obtain a certain
certification, and he began assigning Dr. Polomsky to perform
general ophthalmology work with patients, providing little or
no oversight of Dr. Polomsky's work. During this
“fellowship, ” Dr. Polomsky was never provided
any training on DSEK, DALK, PKP, intacts, vision ICLs, or
femto cataract surgery. Moreover, many of the procedures as
to which Dr. Beyer promised to train Dr. Polomsky were
procedures Dr. Beyer did not perform himself, so there was no
way Dr. Beyer could provide the training at BLC, as promised.
having just hired a fellow, Dr. Beyer spent less than two
days per week in the office, leaving Dr. Polomsky with little
opportunity to learn the few procedures Dr. Beyer was capable
of teaching him. Shortly into his fellowship, Dr. Polomsky
was informed by three separate sources that Dr. Beyer was
switching procedure cards, using PTK cards to perform PRK
procedures. In fact, Dr. Beyer himself mentioned using PTK
cards for refractive outcomes to Dr. Polomsky. Due to his
lack of personal knowledge regarding these procedures prior
to his fellowship, Dr. Polomsky did not initially understand
the import of this conduct.
September 2012, Dr. Polomsky attended a conference on
refractive surgery and cornea surgery in Dallas, Texas. At
the conference, an expert from John Hopkins University School
of Medicine taught Dr. Polomsky the intended use of PTK
treatment cards including the scope of their FDA approval.
When Dr. Polomsky asked this expert whether a doctor could
use a PTK card to perform PRK procedures, the expert stated
that even if a doctor could, in theory, use PTK cards in such
a way, doing so would raise serious ethical and professional
approximately the same time, Dr. Polomsky was shown an email
written by Dr. Beyer in which Dr. Beyer discussed his intent
to advertise one procedure but use less costly procedure
cards intended for a therapeutic result when possible, in
order to save money. Dr. Polomsky also saw the medical file
of a patient in the military who had received treatment using
a PTK card without his knowledge or consent, potentially
putting that patient's military career in jeopardy.
AMO representative visited BLC in the fall 2012, Dr. Polomsky
asked the representative whether it was abnormal for a doctor
to use so many PTK cards if he was not performing many
corneal scarring treatments. This conversation strengthened
Dr. Polomsky's growing suspicion that it was not
appropriate for Dr. Beyer to be using PTK cards for anything
other than PTK treatments. Shortly thereafter, Dr. Polomsky
became aware that a doctor could lose his medical license for
switching procedure cards just to save money. Dr. Polomsky
also learned that a doctor who knew of unethical conduct by
another doctor and did not report it could be held just as
liable as if he had engaged in the unethical conduct himself.
Dr. Polomsky honestly and in good faith believed that Dr.
Beyer was engaging in unethical conduct by switching
procedure cards, Dr. Polomsky did not want to file a report
with the Colorado Medical Board. In fact, after realizing
that the nature and scope of the fellowship were not as
expected, and after learning of the ethical concerns
regarding Dr. Beyer's medical practices, all Dr. Polomsky
wanted to do was to terminate his relationship with BLC.
However, Dr. Polomsky believed that his obligation as a
doctor under the Colorado Medical Practice Act was to report
the conduct to the Medical Board. Moreover, Dr. Polomsky
believed that the only way to ensure he was not held
personally responsible if there were ever any legal
repercussions from Dr. Beyer's decision to switch
procedure cards was to report this conduct to the Colorado
Medical Board and let the Board determine whether Dr.
Beyer's conduct violated the Medical Practice Act.
Polomsky believed Dr. Beyer made work at BLC so intolerable,
he was forced to quit, conduct a cross-country job search
seeking alternative employment, and surrender his intended
career as a specialist in corneal surgery. Thereafter, Dr.
Polomsky suffered a period of unemployment and/or
22, 2015, the Plaintiffs filed a lawsuit in Boulder County
Court premised on the same factual predicates outlined in the
present litigation (the “First Lawsuit”). The
First Lawsuit was brought against two defendants, the alleged
“coconspirator” identified in the present lawsuit
and “John Doe.” During the course of the First
Lawsuit, Dr. Polomsky was deposed by Plaintiffs. The facts
alleged and claims brought in the First Lawsuit were
essentially the same facts and claims brought in the present
litigation. In fact, nearly half of the one hundred and three
paragraphs contained in the present Complaint are either
identical to the allegations made in the First Lawsuit or are
substantially the same, except that the name of the party has
been changed from “John Doe” or
“co-conspirator” to Dr. Polomsky. Moreover, every
“new” allegation in the present Complaint has
been identified as a “fact” which was uncovered
during the course of discovery in the prior litigation, with
specific citations to evidence compiled during discovery in
the First Lawsuit. The entire First Lawsuit, including all
claims against “John Doe, ” was dismissed with
prejudice on May 5, 2016. Dr. Polomsky incurred costs,
including but not limited to attorney's fees, as a result
of the First Lawsuit.
on these factual allegations, Dr. Polomsky asserts
counterclaims for breach of contract, breach of fiduciary
duty, abuse of process, malicious prosecution, fraud,
violation of the Colorado Consumer Protection Act, negligent
misrepresentation, and promissory estoppel. Countercls., ECF
No. 30. Plaintiff seeks recovery for actual and incidental
damages, costs, and attorney's fees. Id. at
filed the present motion arguing that Counterclaims 1, 2, 5,
7, and 8 should be dismissed pursuant to Rule 12(b)(6)
because they are barred by the applicable statutes of
limitation, and Counterclaims 2, 3, 4, and 6 contain only
conclusory allegations and, thus, fail to state plausible
claims for relief. Dr. Polomsky counters that Plaintiffs
reference the incorrect Colorado statutes for their
limitations provisions and argues his counterclaims are
timely under Colorado's “revival” statute. In
addition, Dr. Polomsky contends Plaintiffs impermissibly
apply a heightened pleading standard to argue he fails to
state plausible claims. Plaintiffs reply that Dr.
Polomsky's “attempt to apply the revival statute .
. . stretches the statute far beyond its permissible
bounds.” Further, Plaintiffs argue Dr. Polomsky's
allegations supporting Counterclaims 2, 3, 4, and 6 are
“threadbare” and “conclusory, ” and
fail to meet the Iqbal/Twombly standard.
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.'”
Iqbal, 556 U.S. at 678 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Plausibility, in the context of a motion to dismiss, means
that the plaintiff pled 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.
Okla., 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 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.
adequacy of pleadings is governed by Federal Civil Procedure
Rule 8(a)(2), which requires that a complaint contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). This rule “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (internal
citations omitted). Determining whether the allegations in a
complaint are “plausible” is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. If the
“well pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, ” the
complaint should be dismissed for failing to “show[ ]
that the pleader is entitled to relief” as required by
Rule 8(a)(2). Id.
Plaintiffs raise essentially two challenges to Dr.
Polomsky's counterclaims: they are time-barred and/or
they fail to state a claim. The Court will address each
challenge in turn.
Statute of Limitations
contend at the outset that Colo. Rev. Stat. § 13-80-109,
commonly referenced as the “revival statute, ”
does not apply to “save” Dr. Polomsky's
otherwise untimely counterclaims 1, 2, 5, 7, and 8. The
doctor counters that the statute does apply; in so doing, Dr.
Polomsky does not appear to assert that his counterclaims are
otherwise timely. Thus, the question before this Court is
whether Section 13-80-109 applies to render counterclaims 1,
2, 5, 7, and 8 timely.
“revival” statute provides in full:
Except for causes of action arising out of the transaction or
occurrence which is the subject matter of the opposing
party's claim, the limitation provisions of this article
shall apply to the case of any debt, contract, obligation,
injury, or liability alleged by a defending party as a
counterclaim or setoff. A counterclaim or setoff arising out
of the transaction or occurrence which is the subject matter
of the opposing party's claim shall be commenced within
one year after service of the complaint by the opposing party
and not thereafter.
Colo. Rev. Stat. § 13-80-109. The statute's
language-requiring that the counterclaim “aris[e] out
of the transaction or occurrence which is the subject matter
of the opposing party's claim”-tracks
Colorado's “compulsory counterclaim” rule
(Colo. R. Civ. P. 13(a)) and, thus, revival turns on whether
the counterclaim was a compulsory one. Plains Metro.
Dist. v. Ken-Caryl Ranch Metro. Dist., 250 P.3d 697, 702
(Colo.App. 2010) (citing Skyland Metro. Dist. v. Mountain
West Enter., LLC, 184 P.3d 106, 123-24
A counterclaim is compulsory if it is “logically
related” to the subject matter of the opposing
party's claim. Visual Factor, Inc. v. Sinclair,
166 Colo. 22, 26, 441 P.2d 643, 645 (1968); Dinosaur Park
Investments, L.L.C. v. Tello, 192 P.3d 513, 517
(Colo.App. 2008). Logical relationship “is a broad,
flexible, and practical standard, which prevents the filing
of a multiplicity of actions and encourages the resolution of
all disputes arising out of a common factual matrix in a
single lawsuit.” Allen [v. Martin],
203 P.3d [546, 556 (Colo.App. 2008)] (internal quotations
omitted). A counterclaim may be compulsory where the factual
and legal issues in both it and the complaint are
“offshoots” of the same controversy.
Skyland, 184 P.3d at 124.
Id. “Under the plain language of the revival
statute, the period to bring a stale counterclaim runs from
the date of service of the first complaint that contains the
claims giving rise to the compulsory counterclaims.”
Makeen v. Hailey, 381 P.3d 337, 342 (Colo.App.
2015); see also Full Draw Prods. v. Easton Sports,
Inc., 85 F.Supp.2d 1001, 1009 (D. Colo. 2000) (the
statute “clearly specifies that the amount of time a
defendant has to file a [compulsory] counterclaim is measured
with reference to the plaintiff's complaint, giving the
defendant one year, but no more, to file the
case, the Court previously set forth the following statement
of factual allegations from the operative pleading in this
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 [Colorado
Medical Board]. 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.
ECF No. 29 at 2-3. Plaintiffs contend the counterclaims for
breach of contract, breach of fiduciary duty, fraud,
negligent misrepresentation, and promissory estoppel are
time-barred and cannot be revived because they are not
logically related to the subject matter of the
breach of contract claim, Dr. Polomsky alleges:
50. In 2011 Plaintiffs and Dr. Polomsky entered into a
contract regarding the ophthalmology fellowship at BLC.
51. Dr. Polomsky performed all of his obligations under that
contract until Plaintiffs' actions caused Dr.