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Beyer Laser Center, LLC v. Polomsky

United States District Court, D. Colorado

May 30, 2017



          Michael E. Hegarty, United States Magistrate Judge.

         Before 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.[1]


         The 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.

         I. Facts

         The 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).

         In 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.

         In 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] 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.

         Dr. 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.

         Dr. 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.

         Despite 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.

         In 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 concerns.

         At 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.

         When an 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.

         Although 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.

         Dr. 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 underemployment.

         On June 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.

         II. Procedural History

         Based 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 25-26.

         Plaintiffs 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.


         “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.'” 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.

         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. 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.

         The 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.


         The 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.

         1. Statute of Limitations

         Plaintiffs 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.

         The “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 (Colo.App. 2007)).

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 counterclaim.”).

         In this case, the Court previously set forth the following statement of factual allegations from the operative pleading in this case:

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.

         Order, 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 Plaintiffs' claims.

         A. Counterclaim One

         For his 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. ...

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