Ratcliff v. Good Times Restaurants, Inc.

          ORDER

          LEWIS T. BABCOCK, JUDGE.

         Before me is Defendants' Partial Motion to Dismiss, ECF No. 16, and Plaintiffs' Motion for Certification of Questions of Law to the Colorado Supreme Court, ECF No. 21. Defendants moved to dismiss Plaintiffs' claims relating to the loss of consortium to both Plaintiffs, negligence resulting in bodily injury for Amy Ratcliff, and negligent infliction of emotional distress of a bystander for Amy Ratcliff. Plaintiffs responded and additionally moved to certify certain questions to the Colorado Supreme Court. After consideration of the parties' arguments, for the reasons set forth below: (1) I grant the Motion to Dismiss in part; (2) I deny the Motion to Dismiss in part; and (3) I deny Plaintiffs' Motion for Certification of Questions of Law to the Colorado Supreme Court.

         I. Background

         In September 2017, Plaintiffs and Mrs. Ratcliff's daughters visited Colorado from Wyoming and went to one of Defendants' restaurants. Second Am. Compl., ECF No. 14 at ¶¶ 9 & 16. Mr. Ratcliff ordered a milkshake and when he took a drink through a straw, he ingested shards of broken glass. Id. at ¶¶ 22-26. He began bleeding from the mouth and went to the hospital. Id. at ¶¶ 30, 31, 36. Mr. Ratcliff had subsequent complications, including difficulty swallowing, aspiration, and fainting. Id. at ¶¶ 39, 41, 43. After returning to Wyoming, he had ongoing neck pain and a doctor discovered that pieces of glass remained in his throat. Id. at ¶¶ 51 & 57. He reported increased anxiety and night terrors and sought therapy after the event. Id. at ¶¶ 60, 61, 65, 71.

         Additionally, after the event, Mrs. Ratcliff began to have migraines, blackouts, and vertigo. Id. at ¶ 84, 95. She fainted from the migraines, was unable to drive, and Mr. Ratcliff alleged he was unable to look for an office job because he was helping care for her. Id. at ¶¶ 90, 93, 95.

         Plaintiffs asserted nine claims for relief, including: (1) negligence on behalf of Mr. Ratcliff; (2) negligence per se on behalf of Mr. Ratcliff; (3) strict products liability on behalf of Mr. Ratcliff; (4) breach of warranty through the Colorado Uniform Commercial Code on behalf of Mr. Ratcliff; (5) negligent infliction of emotional distress of Mr. Ratcliff; (6) loss of consortium on behalf of Mrs. Ratcliff; (7) negligence resulting in bodily injury for Mrs. Ratcliff; (8) negligent infliction of emotional distress of bystander for Mrs. Ratcliff; and (9) loss of consortium on behalf of Mr. Ratcliff. Id. at ¶¶ 96-149. I note that Mrs. Ratcliff went by the surname McHenry when this case was filed, but she has since married Mr. Ratcliff and I granted her Motion to Amend the Caption. ECF No. 29.

         II. Law

         A. Federal Rule of Civil Procedure 12(b)(6)

         To avoid dismissal under Rule 12(b)(6), “a complaint must contain enough allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.'” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Be l Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that enables 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) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         A court may not dismiss a complaint merely because it appears unlikely or improbable that a plaintiff can prove the facts alleged or ultimately prevail on the merits. Twombly, 550 U.S. at 556. Instead, a court must ask whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Id.

         Conclusory statements and legal conclusions are not accepted as true; mere “labels and conclusions” and “a formulaic recitation of the elements of a cause of action” will not suffice. Khalik, 671 F.3d at 1190-91 (quoting Twombly, 550 U.S. at 555). As such, when examining a complaint under Rule 12(b)(6), I disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable. Id. at 1191.

         B. Certification of Questions to the Colorado Supreme Court

         Under Colorado Appellate Rule 21.1, a federal court may request that the Colorado Supreme Court answer a certified question if it is determinative of the pending cause and there is no controlling precedent in the supreme court:

The supreme court may answer questions of law certified to it by . . . a United States District Court . . . when requested by the certifying court, if there is involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying ...