United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIFTH AND
SIXTH CLAIMS FOR RELIEF
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Defendant Prudential Insurance
Company of America's (“Prudential”) Motion to
Dismiss Plaintiff's Fifth and Sixth Claims for Relief.
(Doc. # 15.) For the following reasons, the Court denies
Defendant's Motion as moot as to Plaintiff's fifth
claim and grants Defendant's Motion as to Plaintiff's
sixth claim, thereby dismissing Plaintiff's tortious
interference with prospective business advantage claim
without prejudice.
I.
BACKGROUND
Beginning
in 2005, Plaintiff worked for Prudential as an External
Wholesaler in the annuity business in the Independent Broker
Dealer Distribution Channel. (Doc. # 4 ¶ 9.) Plaintiff
was responsible for promoting Prudential annuities products
with independent financial advisors within his assigned
territory. (Id. ¶ 14.)
In
2017, Plaintiff was 53 years old and had 18 months remaining
before he was eligible for Prudential's pension program.
(Id. ¶ 31.) In November 2017, following
numerous instances of being told that his sales results were
unacceptable, Plaintiff's employment was terminated.
(Id. ¶¶ 36-65.) Following termination,
Prudential filed the required “Uniform Termination
Notice for Securities Industry Registration” form
(“Form U5”) with the Financial Industry
Regulatory Authority (“FINRA”). The
“Termination Explanation” on the Form U5 states:
“Did not meet management's expectations. Not
compliance related.” (Doc. # 15-2.)
On
August 9, 2019, Plaintiff filed this action in Colorado
District Court for the City and County of Boulder. On
September 6, 2019, Prudential removed the matter to this
Court on grounds of diversity and federal question
jurisdiction. (Doc. # 1.) Plaintiff's Complaint raises
six claims for relief related to his termination. Relevant
here, Plaintiff's fifth claim is for defamation, and his
sixth claim is for tortious interference with prospective
business advantage. (Doc # 4 ¶¶ 108-09.)
Defendant
filed the instant Motion to Dismiss Plaintiff's Fifth and
Sixth Claims for Relief (Doc. # 15), and Plaintiff filed a
Response (Doc. # 22). Subsequently, the Parties filed a Joint
Motion to Dismiss Plaintiff's Fifth Claim for Relief and
Amend the Pleading. (Doc. # 34.) In the Joint Motion, the
Parties stipulated to the dismissal of Plaintiff's fifth
claim for relief-defamation-without prejudice. The Court
granted the Joint Motion as to Plaintiff's fifth claim
and dismissed it without prejudice. (Doc. # 35.)
In his
Response to Defendant's Motion to Dismiss, Plaintiff
requested leave to amend his Complaint. (Doc. # 22 at 7)
(“if the Court believes that the Sixth Claim for Relief
has not been sufficiently pled, [Plaintiff] seeks leave of
Court to amend its Complaint to address this
concern.”). On December 5, 2019, the Court denied,
without prejudice, Plaintiff's Motion for Leave to Amend
for failure to comply with Local Rule of Civil Procedure 7.1,
which provides that "[a] motion shall not be included in
a response or reply to the original motion. A motion shall be
filed as a separate document." (Doc. # 41);
D.C.COLO.LCivR 7.1(d). The Court reserved judgment on
Defendant's Motion to Dismiss and allowed Plaintiff
another opportunity to file a Motion for Leave to Amend that
complies with Local Rules of Civil Procedure 7.1 and 15.1.
(Doc. # 41.) Plaintiff did not renew his Motion for Leave to
Amend prior to the deadline set by the Court, prompting the
Court to address the instant matter.
II.
LEGAL STANDARDS
A.
RULE 12(b)(6)
Federal
Rule of Civil Procedure 12(b)(6) provides that a party may
move to dismiss a claim for relief in any pleading for
“failure to state a claim upon which relief can be
granted.” A claim will survive a Rule 12(b)(6) motion
to dismiss only if the complaint “contains
‘enough facts to state a claim to relief that is
plausible on its face.” Ridge at Red Hawk, L.L.C.
v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim is subject to dismissal if it fails to
state the required elements for a cause of action. See
Burnett v. Mortg. Elec. Registration Sys., Inc., 706
F.3d 1231, 1235 (10th Cir. 2013). A claim that simply uses
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 668
(2009) (citing Twombly, 550 U.S. 544, 555).
B.
TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS
ADVANTAGE
Under
Colorado law, in order to state a claim for tortious
interference with prospective business advantage, a plaintiff
must allege: (i) there was a prospective contractual relation
with a third party that was reasonably likely to result in
the formation of a contract; (ii) Defendant interfered with
that prospective relation, thereby preventing the formation
of the contract; (iii) such interference was intentional;
(iv) the interference was accomplished by the use of improper
means; and (v) harm was suffered as a result. Wolf Auto
Ctr. Sterling, LLC v. Schadegg, No. 15-CV-01035-MSK-KLM,
2016 WL 10570867, at *2 (D. Colo. Oct. 31, 2016); see
also Hertz v. Luzenac Group, Inc., 576 F.3d 1103, 1119
(10th Cir. 2009).
III.
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