United States District Court, D. Colorado
ILON T. WILLIAMS, Plaintiff,
STEWART TITLE COMPANY, Defendant.
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on defendant Stewart Title
Company's Renewed Motion to Dismiss [Docket No. 26]. The
Court has jurisdiction pursuant to 28 U.S.C. § 1332.
allegations in plaintiff's Amended Complaint [Docket No.
21] are to be taken as true in considering a motion to
dismiss. Brown v. Montoya, 662 F.3d 1152, 1162 (10th
March 2012, Ryan Altman sustained injuries while making
renovations on plaintiff's home in Boulder, Colorado.
Docket No. 21 at 3, ¶ 8. Altman subsequently asserted a
premises-liability claim against plaintiff Ilon T. Williams
and obtained a default judgment in the amount of $1, 367,
386.30. Id. at 3-4, ¶¶ 10-12. On September
18, 2014, Altman recorded a lien against plaintiff's home
and other properties she owns in the amount of the judgment.
Id. at 4, ¶ 13. Plaintiff became aware of the
lien on March 16, 2015. Id., ¶ 14.
January 2016, plaintiff entered into a contract to sell her
Boulder house to Asher and Martina Panian. Id. at 5,
¶ 23. The Panians hired defendant to act as the
title company, provide title insurance, and close the
transaction. Id., ¶ 25. The closing agreement,
executed by plaintiff, defendant, and the Panians, required
defendant to furnish a title insurance policy to the Panians
upon completion of a satisfactory title search and
examination. Docket No. 21 at 6-7, ¶¶ 36, 39.
Defendant issued a title commitment to the Panians on behalf
of Stewart Title Guaranty Company (“STGC”).
Id. at 6, ¶ 33; see also Docket No.
21-2 at 2-3. Defendant issued the policy without identifying
Altman's lien. Id. at 8, ¶ 52. After
closing, it was discovered that Altman's lien remained on
the property. Id. at 8, ¶ 51.
name of the Panians, STGC initiated a lawsuit in the District
Court of Boulder County, Colorado (the “state court
action”) against Altman and plaintiff, alleging that,
in the course of issuing the title insurance policy,
plaintiff represented under oath that there were no secured
interests or liens on her property. Id. at 8-9,
¶¶ 54-55; Docket No. 26-3 at 2, ¶
Plaintiff counterclaimed, alleging in part that STGC acted
through its “authorized agent, [defendant], ” to
conduct the closing of the sale of the Boulder house. Docket
No. 26-4 at 11, ¶ 15. After a trial in late 2017, a jury
found plaintiff liable for breach of contract, fraudulent
concealment, fraudulent misrepresentation, and fraudulent
inducement against STGC, as well as liable on four other
claims. Docket No. 26-1 at 3-11. The jury found STGC not
liable on plaintiff's counterclaims for negligent
misrepresentation, fraudulent concealment, and fraudulent
misrepresentation. Id. at 14-21. Plaintiff has
appealed the verdict to the Colorado Court of Appeals. Docket
February 16, 2018, plaintiff filed this lawsuit. Docket No.
1. The operative complaint includes claims against defendant
for negligence per se, breach of contract, and
negligent misrepresentation/nondisclosure causing loss in a
business transaction. Docket No. 21 at 10-13. Other than the
breach of contract claim here, the allegations in the
complaint are nearly identical to the allegations made
against STGC in the state court action. See id. at
13-15, ¶¶ 91-105; Docket No. 26-4 at 17-18,
offers four reasons for dismissing plaintiff's claims.
Docket No. 26 at 2. First, it argues that plaintiff has not
met the amount-in-controversy requirement, warranting
dismissal under Fed.R.Civ.P. 12(b)(1). Id. Second,
defendant argues that plaintiff's claims are compulsory
counterclaims under Colo. R. Civ. P. 13(a) that should have
been brought in the state court action. Id. at 4-5.
Third, defendant argues that the Court should dismiss or stay
this case either under the Colorado River doctrine
or based on res judicata because the issues have been
resolved in defendant's favor in the parallel state court
action. Id. at 5-6. Finally, defendant argues that
plaintiff fails to state a claim for which relief can be
granted under Fed.R.Civ.P. 12(b)(6). Id. at 10.
Subject Matter Jurisdiction
first argues that plaintiff has not satisfied the
amount-in-controversy requirement needed to establish federal
motion under Fed.R.Civ.P. 12(b)(1) is a request for the court
to dismiss a claim for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). A plaintiff bears the burden of
establishing that the Court has jurisdiction. Basso v.
Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974). When the court lacks subject matter jurisdiction over
a claim for relief, dismissal is proper under Rule 12(b)(1).
See Jackson v. City and Cty. of Denver, No.
11-cv-02293-PAB-KLM, 2012 WL 4355556 at *1 (D. Colo. Sept.
12(b)(1) challenges are generally presented in one of two
forms: “[t]he moving party may (1) facially attack the
complaint's allegations as to the existence of subject
matter jurisdiction, or (2) go beyond allegations contained
in the complaint by presenting evidence to challenge the
factual basis upon which subject matter jurisdiction
rests.” Merrill Lynch Bus. Fin. Servs., Inc. v.
Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting
Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir.
2003)). The court may review materials outside the pleadings