United States District Court, D. Colorado
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
matter is before the Court on the Recommendation of United
States Magistrate Judge (the “Recommendation”)
(ECF No. 40) to deny Defendant's Motion to Dismiss
Plaintiff's Second Claim Pursuant to Fed.R.Civ.P.
12(b)(6) (ECF No. 11). Defendant filed an objection, in part,
to the Recommendation, to which Plaintiff filed a response.
The matter is ripe for resolution.
to Fed.R.Civ.P. 72(b)(3), this Court reviews de novo any part
of the magistrate judge's recommendation that is properly
objected to. An objection is proper only if it is
sufficiently specific “to focus the district
court's attention on the factual and legal issues that
are truly in dispute.” United States v. One Parcel
of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). In
the absence of a timely and specific objection, “the
district court may review a magistrate's report under any
standard it deems appropriate.” Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see
also Fed. R. Civ. P. 72 Advisory Committee's Note
(“When no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation.”).
evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court accepts as true all well-pled factual allegations
in the complaint, views those allegations in the light most
favorable to the plaintiff, and draws 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).
“Factual allegations must be enough to raise a right to
relief above the speculative level, ” id. at
555, and conclusory allegations are insufficient, Cory v.
Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). The
Court is “not bound to accept as true a legal
conclusion couched as a factual allegation, ”
Twombly, 550 U.S. at 555 (quotation omitted).
alleges it contracted with Defendant to develop and build a
state-of-the-art website that would increase site traffic,
maximize customer/client engagement, and increase leads. The
parties' contract consisted of a Vendor Service Agreement
(the “VSA”) and Memorandum of Engagement. The VSA
contains an indemnification provison.
according to Plaintiff, Defendant failed to deliver. Thus,
this lawsuit followed with Plaintiff raising claims for
breach of contract and indemnification under the VSA.
Defendant moved to dismiss the second claim based on two
arguments: Plaintiff's failure to adequately plead lost
profits; and the VSA prohibits Plaintiff's claim for
indemnification because the indemnification provision applies
to claims asserted by a third-party against
indemnitee (Plaintiff) and not to claims based on injuries
allegedly suffered directly by the indemnitee (i.e.,
first-party indemnification). The Magistrate Judge found
Plaintiff's second claim was sufficiently pled and the
VSA applied to first-party indemnification. Defendant's
objection does not challenge the recommendation that
Plaintiff's second claim was sufficiently pled. Upon
review, the Court finds no clear error and accepts this
objection does, however, challenge the recommendation that
the VSA's indemnification provides for first-party
indemnification. Defendant raises a number of arguments to
support its objection such as, for example, that the
Recommendation's construction would render § 9 of
the VSA meaningless and would render a
commercially unreasonable result. They are the same arguments
previously raised and considered in the Recommendation. The
Court has considered all of Defendant's objections but is
Defendant acknowledges, under Colorado law, the proper
construction of a contract is a question of law for the
court. City of Aurora v. ACJ P'ship, 209 P.3d
1076, 1085 (Colo. 2009). “In construing a contract,
[the court's] primary goal is to determine and give
effect to the intent of the parties, ” as shown by the
language in the contract. Klun v. Klun, 442 P.3d 88,
92 (Colo. 2019). Upon consideration of the language in the
provisions at issue in the VSA, the Court agrees with the
Recommendation and its analysis and, accordingly, accepts
them. Accordingly, Defendant's objection is overruled.
on the foregoing, it is ORDERED
That the Recommendation of United States Magistrate Judge
(ECF No. 40) is ACCEPTED and ...