United States District Court, D. Colorado
RAYMOND P. MOORE United States District Judge.
matter is before the Court on Defendants' motion to
dismiss six of the eight causes of action asserted against
them by Plaintiff. (ECF No. 20.) The motion has been fully
briefed. (ECF Nos. 28, 29.) The Court has reviewed the
pleadings, case file, and applicable law. For the reasons
stated below, the motion is granted in part and denied in
evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
court must accept as true all well-pleaded factual
allegations in the complaint, view those allegations in the
light most favorable to the plaintiff, and draw all
reasonable inferences in the plaintiff's favor.
Brokers' Choice of Am., Inc. v. NBC Universal,
Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v.
Knox, 613 F.3d 995, 1000 (10th Cir. 2010). The complaint
must allege a “plausible” right to relief.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14
(2007); see also Id. at 555 (“Factual
allegations must be enough to raise a right to relief above
the speculative level.”). Conclusory allegations are
insufficient, Cory v. Allstate Ins., 583 F.3d 1240,
1244 (10th Cir. 2009), and courts “are not bound to
accept as true a legal conclusion couched as a factual
allegation, ” Twombly, 550 U.S. at 555
determine whether a claim is plausible, a court considers
“the elements of the particular cause of action,
keeping in mind that the Rule 12(b)(6) standard doesn't
require a plaintiff to set forth a prima facie case for each
element.” George v. Urban Settlement Servs.,
833 F.3d 1242, 1247 (10th Cir. 2016) (quotation omitted).
However, if the allegations “are so general that they
encompass a wide swath of conduct, much of it innocent,
” the plaintiff has not “nudged [its] claims
across the line from conceivable to plausible.”
Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012) (quotation omitted).
present purposes, the Court accepts as true the allegations
in the complaint. Plaintiff is an interest rate advisory firm
that wanted to offer its clients a way to digitally and
efficiently manage their commercial loan portfolios. (ECF No.
2 at ¶ 1, 11.) It began soliciting bids from software
developers in August 2017. (Id. at 1.) Defendant 303
Software, Inc., develops custom web and mobile applications
for businesses. (Id. at ¶ 12.) Defendants
submitted a proposal to Plaintiff in September 2017, stating
that they could complete the project within six months and at
a cost lower than the other bids. (Id. at ¶ 1.)
The proposal contemplated a four-phase approach that would
cost between $200, 000 and $400, 000. (Id. at
¶¶ 17, 19.) Following weeks of negotiations,
Defendants sent Plaintiff a revised proposal with a total
cost of $537, 000. (Id. at ¶ 27.) Further
negotiations ensued, and in November 2017 the parties
executed two agreements-a Master Services Agreement
(“MSA”) and a Statement of Work
(“SOW”). (Id. at ¶ 36.)
December 2017, the first phase was completed, and Plaintiff
authorized moving forward with the next phase of the project.
(Id. at ¶ 42.) In March 2018, Defendants
informed Plaintiff they had fallen behind schedule, and by
July 2018, both parties recognized that the project would not
be completed by September 2018. (Id. at ¶¶
44, 51.) Defendants proposed a Second Statement of Work
(“SSOW”), assuring Plaintiff that it would be
completed under budget and without further delays.
(Id. at ¶ 56.) Plaintiff relied on these
assurances when the parties executed the SSOW. (Id.
at ¶ 57.)
October 2018, Defendants informed Plaintiff that they could
not meet that month's deadline and demanded additional
payments to proceed with the project. (Id. at ¶
64.) After failed attempts to negotiate terms on how to
proceed, Plaintiff provided written notice of Defendants'
breach of the MSA and SOW. (Id. at ¶ 73.)
Defendants failed to cure the breach within thirty days.
(Id. at ¶ 74.) By November 2018, Plaintiff had
made payments of more than $600, 000 for amounts owed under
the SOW and SSOW, yet it received no deliverables from
Defendants. (Id. at ¶¶ 75, 76.)
December 2018, Plaintiff brought this lawsuit, asserting
eight causes of action against Defendants. The first three
are fraudulent inducement claims based on Defendants'
various representations that caused Plaintiff (1) to enter
the MSA and SOW, (2) to authorize moving forward with the
development phase, and (3) to enter the SSOW. Plaintiff also
asserts causes of action for (4) breach of contract, (5)
violations of the Colorado Consumer Protection Act
(“CCPA”), (6) breach of good faith, (7) unjust
enrichment, and (8) negligent misrepresentation. Defendants
have moved to dismiss all but the breach of contract and
breach of good faith claims. The gist of the non-contractual
claims is that Plaintiff was harmed because it relied on
Defendants' representations about their capabilities and
their assurances about the timeline and costs for completing
the project. The parties agree that Colorado law governs this
argue that Plaintiff's fraudulent inducement and
negligent misrepresentation claims are barred by the
integration clause in the MSA and the economic loss rule. The