United States District Court, D. Colorado
J. LEE BROWNING BELIZE TRUST, Plaintiff,
BRUCE LYNTON, STEVE DAUBENMIER, and DONALD MILLER, Defendants.
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
matter is before the court on Defendants Bruce Lynton, Steve
Daubenmier, and Donald Miller's (collectively,
“Individual Defendants”) Motion to Dismiss
Pursuant to Fed.R.Civ.P. 12(b)(6) (“Motion to
Dismiss” or “Motion”), filed August 11,
2017. [#39]. The undersigned considers the Motion
pursuant to 28 U.S.C. § 636(c) and the case reassignment
dated February 15, 2017 [#31], and concludes that oral
argument will not materially assist in the resolution of this
Motion. Accordingly, upon review of the Motion and associated
briefing, the entire case file, and applicable case law, the
court DENIES the Motion to Dismiss for the reasons stated
court has discussed the background of this case in detail in
its prior Orders, see, e.g., J. Lee Belize
Browning Trust v. Aspen Mountain Condominium Association,
Inc., Civil Action No. 15-cv-00945-NYW [ECF No. 85], and
discusses it here only as it pertains to the instant Motion.
This case arises from a dispute between Plaintiff J. Lee
Browning Belize Trust (“Plaintiff” or
“Belize Trust”) and Aspen Mountain Condominium
Association, Inc. (“AMCA”) over damage caused by
a June 2014 sewage blockage and back-up to Plaintiff's
condominium located in the Aspen Mountain Condominiums.
See [#1; #38]. In June 2014, part of the sewage
disposal line running from Unit 1-A to the sanitary sewer
system became blocked to the point of causing sewage back-up,
resulting in sewage-soaked carpeting and flooring as well as
other damage to Unit 1-A. [#38 at ¶ 3].
Plaintiff brought suit against AMCA, seeking damages for its
alleged refusals to make a definitive repair to the sewage
disposal line that caused repeated blockages, which
prohibited Plaintiff from listing or selling its condominium.
See J. Lee Belize Browning Trust v. Aspen Mountain
Condominium Association, Inc., Civil Action No.
15-cv-00945-NYW [ECF No.1 at ¶¶ 15-16] [hereinafter
“Original Action”]. On August 17, 2016, Plaintiff
initiated the instant action against the Individual
Defendants, identified as officers of AMCA. [#38 at ¶
5]. The events surrounding the sewage back-ups in
Plaintiff's condominium also give rise to this action
against the Individual Defendants. See generally
[#38]. Specifically, Belize Trust asserts a single cause of
action for breach of fiduciary duty against the Individual
Defendants based on Defendant Lynton's alleged
interference with Plaintiff's attempts to hire
Roto-Rooter Plumbing and Drain Service of Glenwood Springs
(“Roto-Rooter”) to fix the recurring sewage
back-ups and the Individual Defendants' refusal to
correct the issue themselves. See [id. at
¶¶ 6, 11-14, 23, 24, 29, 31-33, 36-39, 41-42].
Plaintiff seeks injunctive relief, damages, and exemplary
moved to consolidate this case with the Original Action, and
this court consolidated the two actions on February 14, 2017.
See Original Action [ECF No. 67]. Following
consolidation, the undersigned denied AMCA's Motion for
Summary Judgment and Plaintiff's Motion for Partial
Summary Judgment on the issue of liability, and ordered
Belize Trust to show cause why summary judgment in the
Original Action should not enter in favor of AMCA and against
Plaintiff for failure to assert a cognizable claim.
See Original Action [ECF No. 68 at 12]. Belize Trust
responded to the Order to Show Cause and filed a Motion to
Amend its Complaint to include new events of sewage back-up
and to consolidate its complaint in the two related actions;
the Individual Defendants filed a Motion For Partial Summary
Judgment Regarding Claims Against Board of Directors
Defendants (“Motion for Partial Summary
Judgment”) on the basis of claim-splitting.
See Original Action [ECF Nos. 76; 79; 80].
23, 2017, the court issued a Memorandum Opinion and Order
granting summary judgment in favor of AMCA and against
Plaintiff pursuant to Rule 56(f) of the Federal Rules of
Civil Procedure for failure to state a cognizable claim,
denying Plaintiff's request to amend its Complaint, and
denying without prejudice the Individual Defendants'
Motion for Partial Summary Judgment. See Original
Action [ECF No. 85]. In doing so, the court severed the
instant action against the Individual Defendants from the
Original Action, stating,
the most appropriate course of action is to sever the
Individual Defendants from this action and re-open Civil
Action No. 16-cv-2078 so that any claims, and motions related
to those claims, proceed therein. . . . The Parties should
meet and confer as to any proposed amendments to the
operative pleading in Civil Action No. 16-cv-2078, and to
facilitate a robust discussion between the Parties regarding
what claims will proceed in that action.
[Id. at 14].
then moved to file its First Amended Complaint
(“FAC”) in the instant action, which the court
granted on July 28, 2017. [#38]. The FAC is the operative
complaint in this matter. The Individual Defendants responded
to the FAC by filing the instant Motion to Dismiss arguing
for dismissal pursuant to Rule 12(b)(6) based solely on the
doctrine of claim preclusion. [#39]. Plaintiff has since
filed its Response [#43] and the Individual Defendants their
Reply [#45]. The Motion is now ripe for resolution.
Rule 12(b)(6) a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion
under Rule 12(b)(6), the court must “accept as true all
well-pleaded factual allegations . . . and view these
allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). A
plaintiff, however, may not rely on mere labels or
conclusions, “and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Rather, “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, 129
S.Ct. 1937, 1949 (2009); see also Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)
(explaining that plausibility refers “to the scope of
the allegations in a complaint, ” and that the
allegations must be sufficient to nudge a plaintiff's
claim(s) “across the line from conceivable to
plausible.”). The ultimate duty of the court is to
“determine whether the complaint sufficiently alleges
facts supporting all the elements necessary to establish an
entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160
(10th Cir. 2007).