United States District Court, D. Colorado
ORDER ON MOTION FOR ATTORNEY'S FEES AND
COSTS
MICHAEL E. HEGARTY UNITED STATES MAGISTRATE JUDGE.
Before
the Court is Defendant's Motion for Attorney Fees and
Costs [filed November 27, 2018; ECF No. 67]. For the reasons
that follow, the motion is granted in part and denied in
part.
First,
the Court acknowledges Defendant's unrebutted request for
“authorization to submit documentation supporting its
attorney fees following a determination of its entitlement to
fees.” The Court will grant Defendant's request and
analyze here only whether Defendant is entitled to
awards of attorney's fees and costs; the reasonableness
of fees and/or costs, if any are awarded, will be determined
separately.[1]
Defendant
brings its request for an award of attorney's fees
pursuant to Colo. Rev. Stat. § 13-17-201, which
“provides for a reasonable award of attorney fees
‘[i]n all actions brought as a result of a death or an
injury to person or property occasioned by the tort of any
other person, where any such action is dismissed on motion of
the defendant prior to trial under [C.R.C.P.]
12(b).'”[2]Robinson v. Colo. State Lottery
Div., 179 P.3d 998, 1009 (Colo. 2008). In addition,
Defendant seeks an award of costs pursuant to Colo. Rev.
Stat. § 13-16-113(2), which is identical to §
13-17-201, except that it permits a “judgment for
costs” for Rule 12(b) dismissals of tort actions.
Awards under these statutes are mandatory. Crandall v.
City of Denver, 238 P.3d 659, 665 (Colo. 2010)
(“the express statutory language of sections
13-16-113(2) and 13-17-201 mandate awards of costs and
attorney fees to the defendant in the event that a
plaintiff's tort action is dismissed pre-trial on a
C.R.C.P. 12(b) motion to dismiss”).[3] In this case,
Plaintiff brought two claims against Defendant, one for
breach of contract and the other for “bad faith breach
of contract, ” which is a tort claim in Colorado.
Goodson v. Am. Standard Ins. Co., 89 P.3d 409, 415
(Colo. 2004). Defendant contends that the only question in
this matter is whether Plaintiff's action sounds in
contract or in tort.
Where,
as here, there are an equal number of contract and tort
claims, all arising out of the same nucleus of facts,
“the court should focus on the manner in which claims
are pled” to determine whether the essence of the
action is one in tort. Crow v. Penrose-St. Francis
Healthcare Sys., 262 P.3d 991, 997 (Colo.App. 2011);
see also Gagne v. Gagne, 338 P.3d 1152, 1167
(Colo.App. 2014). In Crow, the court found the
plaintiff “chose to include . . . tort claims to obtain
relief beyond what was available solely under a breach of
contract theory” and perceived no error in the trial
court's application of § 13-17-201. Id. T h
e Gagne court followed this reasoning and concluded
that a court must first determine whether the essence of the
action is tortious in nature, then ask whether tort claims
were “asserted to unlock additional remedies.”
338 P.3d at 1168.
In this
case, the Court need not undertake such analysis, because the
Plaintiff does not rebut Defendant's contention that her
case is, in essence, tortious in nature. Instead, Plaintiff
argues that the statute does not apply because her case is
not one of “a narrow category of baseless tort cases
... so lacking in substance that they could not survive a
motion to dismiss for failure to state a claim . . . .”
Resp. 2 (citing Bristol Bay Prods., LLC v. Lampack,
312 P.3d 1155, 1165 (Colo. 2013) and Krystkowiak v. W.O.
Brisben Cos., Inc., 90 P.3d 859, 869 (Colo. 2004)).
Specifically, Plaintiff asserts that, because the Court
initially denied Defendant's motion to dismiss, and the
case proceeded through fact and expert discovery over the
following seven months, her claims should be deemed to have
some merit. In addition, Plaintiff contends that because the
Court considered documents outside the pleadings in
dismissing her case, the motion should have been converted to
a motion for summary judgment.
For her
latter contention, Plaintiff cites § 13-17-201, which
provides in relevant part: “This section shall not
apply if a motion under rule 12(b) of the Colorado rules of
civil procedure is treated as a motion for summary judgment
and disposed of as provided in rule 56 of the Colorado rules
of civil procedure.” Colo. Rev. Stat. § 13-17-201.
Defendant replies that the Court properly considered Marlena
Whicker's state court complaint under a Rule 12(b)(6)
analysis because such pleading is subject to judicial notice
(Reply 4 (citing Tal v. Hogan, 453 F.3d 1244, 1265
(10th Cir. 2006))) and properly considered the subject
insurance policy, which was incorporated by reference in the
operative pleading and was central to the Plaintiff's
claims (id. (citing GFF Corp. v. Associated
Wholesale Grocerts, Inc., 130 F.3d 1381, 1384 (10th Cir.
1997))).
The
Court agrees with Defendant that the Court had properly
considered the documents without conversion to Fed.R.Civ.P.
56. See Order 2 n.2, 3 n.3, ECF No. 66. However, the
Court notes that, in accordance with the chronology and
filings in the case, its order dismissing the Second Amended
Complaint was more accurately issued pursuant to Fed.R.Civ.P.
12(c), which governs requests for judgment on the
pleadings.[4] That is, on October 19, 2018, the Court
withdrew its previous order denying the motion to dismiss
Plaintiff's First Amended Complaint, granted the
Plaintiff leave to file a Second Amended Complaint, and
vacated the discovery deadlines. ECF No. 58. The Court also
set deadlines for filing the Second Amended Complaint and for
briefing on the Defendant's pending motion to dismiss;
the deadlines for briefs were set after the filing of the
Second Amended Complaint. Id. In accordance with the
October 19, 2018 order, the Plaintiff timely filed the Second
Amended Complaint on October 20, 2018, ECF No. 59, Defendant
then filed its supplemental brief on the motion to dismiss on
October 24, 2018, ECF No. 60, and Plaintiff filed her
response to Defendant's brief, ECF No. 63, on October 29,
2018.
Then,
despite the pending motion to dismiss, Defendant filed an
“Answer to Plaintiff's Second Amended
Complaint” on November 5, 2018. ECF No. 64. The Answer
does not appear to be in response to only a portion of the
Second Amended Complaint or, otherwise, filed in the
alternative to the motion to dismiss; in fact, the Answer
asserts Plaintiff's failure to state a claim as a defense
and Defendant's prayer states: “having fully
answered the Amended Complaint and all claims for relief set
forth therein, Defendant prays for judgment against Plaintiff
and dismissal of all claims with prejudice.”
Id. at 7-8. As such, the subsequent November 14,
2018 order dismissing the Second Amended Complaint
(see Order 1 n.1, ECF No. 66) would be accurately
framed as an order granting a motion for judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c). See Jacobsen v.
Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002)
(a motion to dismiss filed after an answer, in which the
failure to state a claim is asserted, “should generally
be treated as a motion for judgment on the pleadings”).
In addition, the Court's dismissal order was properly
analyzed, since the standard used for a Rule 12(b)(6)
analysis is the same used for a Rule 12(c) analysis. See
Brokers' Choice of Am., Inc. v. NBC Universal, Inc.,
861 F.3d 1081, 1102 (10th Cir. 2017) (“we use the same
de novo standard of review ‘when evaluating 12(b)(6)
and 12(c) motions ...[;] our decision ... would be the same
whether considered as a 12(b)(6) motion or a 12(c)
motion.'” (quoting Jacobsen, 287 F.3d at
941 n.2)).
An
award of attorney's fees under Colo. Rev. Stat. §
13-17-201 and an award of costs under Colo. Rev. Stat. §
13-16-113(2) are not proper when a case is dismissed pursuant
to Rule 12(c). See BSLNI, Inc. v. Russ T. Diamonds,
Inc., 293 P.3d 598, 601 (Colo.App. 2012) (“under
the plain language of the statutes, the trial court must
award attorney fees and costs under sections 13-16-113(2) and
13-17-201 when it dismisses the entire action pursuant to
Rule 12(b)”). The BSLNI, Inc. court determined
that it must “interpret the meaning of the statutory
language ‘under rule 12(b)' narrowly, and will only
uphold an award of fees when an action is properly dismissed
pursuant to C.R.C.P. 12(b).” Id. The court
reasoned that motions to dismiss for failure to state a claim
“are intended to test the sufficiency of the complaint
and to ‘permit early dismissal' of meritless
claims, ” whereas motions for judgment on the pleadings
are filed “after the pleadings are closed.”
Id. at 601-02. The court concluded that the
requested statutory awards were not warranted for dismissal
of the action pursuant to Rule 12(c). Id. at 602.
Here,
the Defendant filed an Answer to the Second Amended
Complaint, which closed the pleadings and deemed the pending
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) a motion
for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).
In Colorado, the statutes providing awards of attorney's
fees and costs for tort actions dismissed pursuant to Rule
12(b)-Colo. Rev. Stat. §§ 13-16-113(2) and
13-17-201-are interpreted “narrowly” to permit
such awards only when an action is “properly dismissed
pursuant to C.R.C.P. 12(b).” Accordingly, the Court is
not permitted to order awards of attorneys' fees and
costs as requested by Defendant in this matter.
Based
on the entire record and for the reasons stated above, the
Court grants in part and denies in part
Defendant's Motion for Attorney's Fees and Costs
[filed November 27, 2018; ECF No. 67].
SO
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