United States District Court, D. Colorado
CUNNINGHAM LINDSEY U.S. INC., Plaintiff,
CRAWFORD & COMPANY, ROBERT WILLIAMS, ANDREW LARSON, WILLIAM WALLS, THOMAS WALLS, and RYAN WALLS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Defendant Crawford &
Company's (“Defendant Crawford”)
Amended Motion to Dismiss
[#71] (the “Motion”) pursuant to
Fed.R.Civ.P. 12(b)(6), filed on May 14, 2018. Plaintiff filed
an Opposition to the Motion [#87] (the
“Response”) on August 7, 2018. Defendant Crawford
filed a Reply [#90] on August 21, 2018. The Court has
reviewed the Motion, the Response, the Reply, the case file,
and the applicable law, and is sufficiently advised in the
premises. For the reasons set forth below, the Court
respectfully RECOMMENDS that the Motion be
is a loss adjusting, claims management, and risk solutions
firm. Second Am. Compl. [#48] at 3. Prior to
December 2017, Plaintiff employed the Individual
Defendantsas skilled claims adjusters to conduct its
business. Id. Plaintiff alleges that Defendant
Crawford deliberately induced the Individual Defendants to
resign their positions at Plaintiff's firm and join
Defendant Crawford in order to shut down Plaintiff's
Major & Complex Loss business in Denver. Id. at
8. Following the Individual Defendants' resignations,
Plaintiff received several items of correspondence from its
clients, requesting that their cases be transferred to
Defendant Crawford. Id. Plaintiff alleges that it
has lost substantial revenue as a result of the solicitation
of its clients by the Individual Defendants and Defendant
Crawford. Id. at 9.
Crawford seeks dismissal of all claims Plaintiff has
asserted. Specifically, Defendant Crawford seeks dismissal of
Plaintiff's claims of intentional interference with
contracts (“Claim Six”) and intentional
interference with prospective economic advantage
(“Claim Seven”), arguing both claims fail to meet
the requisite pleading standards. See Motion [#71];
Second Am. Compl. [#48]. Plaintiff opposes Defendant
Crawford's Motion [#71], arguing that Plaintiff pleaded
sufficient facts that plausibly allege claims for relief
against Defendant Crawford. See generally Response
[#87]. Alternatively, in the event of a dismissal, Plaintiff
asks the Court to dismiss the claims without prejudice.
purpose of a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6) is to test “the sufficiency of the allegations
within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40
F.3d 337, 340 (10th Cir. 1994). Fed.R.Civ.P. 12(b)(6) states
that a complaint may be dismissed for “failure to state
a claim upon which relief can be granted.” “The
Court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
withstand a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), “a complaint must contain enough allegations
of fact ‘to state a claim to relief that is plausible
on its face.'” Robbins v. Oklahoma, 519
F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). The complaint
“must plead sufficient facts, taken as true, to provide
‘plausible grounds' that discovery will reveal
evidence to support the plaintiff's allegations.”
Shero v. City of Grove, Okla., 510 F.3d 1196, 1200
(10th Cir. 2007) (citation omitted). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“A pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action
will not do. Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.”
Silva v. U.S. Bank, Nat'l Ass'n, 294
F.Supp.3d 1117, 1124 (D. Colo. 2018) (citing Iqbal,
556 U.S. at 678). Allegations that are “so general that
they encompass a wide swath of conduct, much of it innocent,
will not be sufficient.” L-3 Commc'ns Corp. v.
Jaxon Eng'g & Maint., Inc., No.
10-cv-02868-MSK-KMT, 2013 WL 1231875, at *2 (D. Colo. Mar.
27, 2013) (quoting Khalik v. United Air Lines, 671
F.3d 1188, 1191 (10th Cir. 2012) (internal quotations
factual allegations in a complaint “must be enough to
raise a right to relief above the speculative level” to
survive a Fed.R.Civ.P. 12(b)(6) motion to dismiss.
Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, ” a factual
allegation has been stated, “but it has not shown that
the pleader is entitled to relief, ” as required by
Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679.
Intentional Interference with Contracts (Claim Six)
Six in Plaintiff's Second Amended Complaint [#48] alleges
intentional interference with contracts against Defendant
Crawford. Colorado recognizes the tort of intentional
interference with contracts. Mueller v. Swift, No.
15-cv-1974-WJM-KLM, 2017 WL 2362137, at *6 (D. Colo. May 31,
2017) (citing Mem'l Gardens, Inc. v. Olympian Sales
& Mgmt. Consultants, Inc., 690 P.2d 207, 210 (Colo.
1984)). “The tortious conduct occurs when the
defendant, not a party to the contract, induces the third
party to breach the contract, or interferes with the third
party's performance of the contract.” Colo.
Nat'l Bank of Denver v. Friedman, 846 P.2d 159, 170
sufficiently plead a claim for intentional interference with
contracts, Plaintiff is required to include facts in its
Second Amended Complaint [#48] that plausibly allege: (1) the
existence of a contractual relationship between Plaintiff and
a third party; (2) Defendant Crawford knew or reasonably
should have known of the contract; (3) Defendant Crawford
intentionally and improperly interfered with that contract;
(4) Defendant Crawford's conduct caused the breach or
non-performance of the contract by the third party; and (5)
Plaintiff suffered damages as a result. Swift, 2017
WL 2362137, at *7 (citing Arapahoe Surgery Ctr., LLC v.
Cigna Healthcare, Inc., 171 F.Supp.3d 1092, 1120 (D.
Colo. 2016)). Here, Defendant Crawford's arguments are
directed to the first and third elements, which the Court
addresses respectively. See Motion [#71];
Response [#87] at 5-10; Reply [#90] at 2-7.
Existence of a Contract
seemingly concedes that it has not identified any specific
contract in the Second Amended Complaint [#48], as it argues
that “[Plaintiff] is not required at the pleading stage
to specifically identify each and every contract with which
[Defendant Crawford] interfered.” Response
[#87] at 5. Further, Plaintiff states that, “[a]lthough
[Plaintiff] has not included in its pleading an exhaustive
list of each and every contract it maintained with the
clients . . . [Plaintiff] plainly has alleged the existence
of such clients and such contracts.” Id. To
support its argument, Plaintiff cites Oaster v.
Robertson, 173 F.Supp.3d 1150 (D. Colo. 2016), where the
court allowed an intentional interference with contracts
claim to proceed because it was “undisputed that a
contract existed.” Id. at 1179. In
Oaster, the Court found that a contract existed
between the plaintiff and defendant during the parties'
business relationship, and it was undisputed that the parties
worked together on a “myraid of projects with numerous
Crawford disagrees with Plaintiff's argument and states
that Plaintiff “must offer specific factual
allegations establishing that it had contract(s) with a
third party with which the defendant purportedly
interfered.” Reply [#90] at 2 (emphasis added)
(citing Kansas Penn Gaming, LLC v. Collins, 656 F.3d
1210, 1214 (10th Cir. 2011); Shell v. Am. Family Rights
Ass'n, 899 F.Supp.2d 1035, 1060 (D. Colo. 2012)).
Defendant Crawford also distinguishes Oaster by
noting that the court there merely held plaintiff need not
“provide a copy of any contracts to
sufficiently allege a claim for breach of contract or
interference with contractual relations.” Id.
at 3 (emphasis in original).
succeed on a claim for intentional interference with existing
contractual relations, of course, one must plead and prove a
valid contract with a third party.” Nutting v. RAM
Sw., Inc., 106 F.Supp.2d 1121, 1128 (D. Colo. 2000).
Here, Plaintiff directs the Court to two paragraphs in the
Second Amended Complaint [#48] where Plaintiff states it has
“alleged the existence of . . . such contracts.”
Response [#87] at 5. However, these paragraphs
identically state: “At all times from January 1, 2015
to present, [Plaintiff] was party to numerous ongoing
contracts for claims management and other related services
with its clients.” Second ...