Storlie v. Prudential Insurance of America

          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. ...