United States District Court, D. Colorado
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
Comcast Corporation seeks dismissal of Plaintiff Clarice
Davis' negligence cause of action in light of my order
dismissing this claim against Defendant SEFNCO
Communications, Inc. My analysis of this claim as to SEFNCO
applies equally to Comcast. Ms. Davis' premises liability
claim preempts her negligence claim against Comcast, because
she failed to plead in the alternative that Comcast is not a
“landowner” under the Colorado Premises Liability
Act (“PLA”). Accordingly, I grant Comcast's
Joinder in SEFNCO's Partial Motion to Dismiss
Plaintiff's Negligence Claim.
Davis alleges she fell and sustained injuries after tripping
over a long cord on a common walkway at the Quail Run
Condominiums. Compl. ¶ 11, ECF No. 3. According to Ms.
Davis, “Defendants” owned, operated, and managed
the Quail Run Condominiums. Id. ¶ 7. As a
result of these allegations, Ms. Davis pleads claims for
negligence and premises liability. Id. ¶¶
13-25. Comcast responded to the Complaint by filing an Answer
on March 22, 2018. Comcast's Answer, ECF No. 6.
5, 2018, I granted SEFNCO's Motion to Dismiss in Part.
Order on SEFNCO's Mot. for Partial Dismissal, ECF No. 36.
I first noted the well-established principle under Colorado
law that the PLA preempts common law negligence claims.
Id. at 3-4. I then found that Ms. Davis did not
plead her claims in the alternative, because she did not
allege that SEFNCO owed her a duty separate from that which
landowners owe their entrants. Id. at 4-5.
23, 2018, Comcast filed the present motion, seeking to join
in SEFNCO's motion and dismiss Ms. Davis' negligence
claim against it. Comcast's Mot. for Partial Judgment on
the Pleadings, ECF No. 39. Because Comcast has filed an
answer, I construe its motion as one for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c).
Davis responded to Comcast's motion on August 6, 2018.
Resp. to Comcast's Mot. for Partial Judgment on the
Pleadings, ECF No. 45. Ms. Davis primarily reasserts the
arguments she made in response to SEFNCO's motion.
Id. at 3-7. However, Ms. Davis also argues that
Comcast is liable as a contractor who performed construction
or repair work at Quail Run Condominiums. Id. at 4.
motion for judgment on the pleadings under Rule 12(c) is
treated as a motion to dismiss under Rule 12(b)(6).”
Atl. Richfield Co. v. Farm Credit Bank of Wichita,
226 F.3d 1138, 1160 (10th Cir. 2000); Aberkalns v.
Blake, 633 F.Supp.2d 1231, 1233 (D. Colo. 2009)
(“Courts review a motion for judgment on the pleadings
using the same standard as a motion under Rule
12(b)(6).”). “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 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,
courts 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 678-80.
Second, courts 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.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, ” the
complaint has made an allegation, “but it has not shown
that the pleader is entitled to relief.” Id.
(quotation marks and citation omitted).
prior holding that Ms. Davis fails to plead an independent
and alternative claim for negligence against SEFNCO applies
equally to Comcast. Ms. Davis does not point to any
allegations in her Complaint that differentiate between
Comcast and SEFNCO for purposes of her negligence and
premises liability claims. In fact, Ms. Davis refers to
Comcast and SEFNCO collectively as “Defendants”
throughout her entire Complaint. For example, she alleges in
support of her negligence claim:
The Defendants were negligent by and through their agents and
employees, in that they did not maintain their
premises in a reasonably safe manner . . . . The
Defendants were negligent in that they did not keep their
premises in a reasonably safe condition for ...