United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTION TO DISMISS
S. Krieger Chief United States District Judge
MATTER comes before the Court pursuant to the
Defendant's (“IBM”) Motion to Dismiss
(# 27). Also pending are two motions by IBM
(# 33, 49) to dismiss the Sptizers'
claims for lack of prosecution.
Spitzers' Complaint (# 5) appears to
allege that Plaintiff Michael Spitzer was employed by IBM. In
June 2015, apparently within the scope of his employment with
IBM, Mr. Spitzer rented a vehicle from former Defendant Avis
Budget Car Rental (“Avis”). Mr. Spitzer was
driving that vehicle on June 25, 2015, when he was involved
in an accident with a vehicle driven by Hector
Salas-Gonzales. (The Complaint does not identify where.) It
is somewhat unclear whether Plaintiff Deborah Spitzer was
also in the vehicle at the time, but for purposes of this
Opinion, the Court will assume she was. Both Spitzers
suffered bodily injuries as a result of the accident.
Sptizers then sought compensation for their injuries. They
first made claims against Mr. Gonzales' insurer and
recovered the full policy limits available under that policy.
They then made claims on their own auto insurance
policy's Underinsured Motorist provisions and recovered
the full policy limits there, as well. They then turned to
both IBM and Avis for additional coverage, and that is where
the allegations in the Complaint become disjointed and
difficult to follow.
Spitzers allege that, “upon information and belief,
” IBM “provided [them] with first party benefits,
” ¶ 31, but also allege that they “contacted
IBM to inquire what first party benefits were available to
them.” ¶ 32. They later received “an email
from IBM's corporate counsel directing [them] to” a
representative of former defendant Sedgwick Claim Management
Services (“Sedgwick”), “who would be
handling the[ir] claim.” ¶ 36.
same time, the Spitzers were pursuing a claim against any
insurance coverage available through Avis, and eventually,
Avis indicated that Sedgwick would also be handling the
Spitzers' claim against it. ¶ 40.
e-mail in which Sedgwick informed the Spitzers that it would
be handling their claim against Avis, it also advised them
“that there was no insurance policy for the Rental, but
there was corporate coverage of 100/300/25.” ¶ 41.
Thereafter, Sedgwick sent the Spitzers an email that advised
that that “Avis is co-primary for the loss, ”
that the Spitzers should work through their own insurer
“until their limits were exhausted and then Avis would
cover any excess damages.” ¶ 42. The Complaint
continues on at some additional length about difficulties
that the Spitzers had in communicating with Sedgwick. The
Court notes that IBM is never mentioned again in the factual
recitation of the Complaint.
on these facts, the Spitzers assert three causes of action,
all of which are pled generically against “the
Defendants” - that is, IBM, Avis, Sedgwick, and
Continental Casualty Company (the insurer of “the
rental”) - for: (i) breach of contract, in that
“an agreement existed between the parties by which the
Plaintiffs were entitled to first party benefits” and
that the Defendants failed to provide such benefits; (ii) bad
faith breach of insurance contract, in that the Defendants -
presumably IBM - “entered into an agreement with [the
Spitzers] by means of . . . Michael's employment contract
to provide first party benefits, ” but failed to pay
the Spitzers' claims for insurance benefits; and (iii)
unreasonable delay and denial, in violation of C.R.S. §
10-3-1115, based on the same facts as the bad faith breach
claim. All of the Defendants other than IBM have since been
dismissed from this action.
moved (# 27) to dismiss the Spitzers'
claims under Fed.R.Civ.P. 12(b)(6), arguing that: (i) as to
the breach of contract claim, the Spitzers have not alleged
the existence of any contract of insurance between themselves
and IBM and any failure of IBM to perform under such a
contract; and (ii) as to the bad faith and statutory claims,
such claims lie only as against insurers and the Spitzers
have failed to allege facts showing that IBM was an insurer.
Spitzers did not timely file a response to that motion. After
a full month had passed with no response, IBM moved
(# 33) to dismiss the Spitzers' claims
for failure to prosecute. That motion spurred the Spitzers to
file a response (# 34) to the original
motion to dismiss a few days later (but not to the motion to
dismiss for failure to prosecute). The Magistrate Judge
sua sponte struck (# 35) the
Spitzers' response as untimely. The Magistrate Judge
invited the Spitzers to “fil[e] a formal motion
requesting [ ] an extension [of the deadline for a filing a
response to the motion to dismiss], which satisfies Rule
6(b)(1)(B)'s excusable neglect standard, and only after
engaging in a robust and meaningful conferral with opposing
counsel.” The Spitzers never filed such motion. They
did, however, file an (untimely) consent form
(# 37) (through counsel) and appeared at a
Scheduling Conference (# 43). But for a
period of nearly three months, the Spitzers simply ignored
IBM's pending 12(b)(6) motion and motion to
dismiss for failure to prosecute. This delay prompted IBM to
file a second motion to dismiss for failure to prosecute
again, that motion prodded the Spitzers to action. In
response, they filed a Motion for Extension of Time
(# 51), seeking leave to file a response to
IBM's Rule 12(b)(6) motion out-of-time. The Spitzers'
counsel explained that: (i) “due to staff turnover,
” counsel did not “download” IBM's
motion until a few days before the response's due date;
(ii) counsel's staff then docketed an ...