White v. Santomaso

Filing 86

ORDER denying 53 Third-Party Defendants Motion to Dismiss by Judge William J. Martinez on 2/2/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-01224-WJM-KLM
AMY V. WHITE,
Plaintiff,
v.
TYLER SANTOMASO,
Defendant/Third-Party Plaintiff,
v.
GREGORY P. NESSLER,
Third-Party Defendant.

ORDER DENYING THIRD-PARTY DEFENDANT’S MOTION TO DISMISS

In this personal injury case, Plaintiff Amy V. White (“White”) brings a claim of civil
conspiracy under Colorado law against Defendant Tyler Santomaso (“Santomaso”) for
injuries sustained from an alleged two-car accident which occurred on May 31, 2008, on
Colorado Highway 287, just north of Fort Collins, Colorado. (ECF No. 24.) Santomaso
has now filed a Third-Party Complaint (ECF No. 25) against Third-Party Defendant
Gregory P. Nessler (“Nessler”), the alleged co-conspirator, seeking contribution under
Colorado Revised Statutes §§ 13-50.5-102 (1) and 13-21-111.5 (4).
Before the Court is Nessler’s Motion to Dismiss (“Motion”) (ECF No. 53)
Santomaso’s Third-Party Complaint. Nessler also seeks the recovery of attorneys’ fees
pursuant to Colorado Revised Statute § 13-17-101. (Id.)

For the reasons set forth below, the Motion is denied.
I. LEGAL STANDARD
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To
survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as
true, to provide ‘plausible grounds’ that discovery will reveal evidence to support the
plaintiff’s allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir.
2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The court’s
function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for
the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted).
The concept of “plausibility” at the dismissal stage refers not to whether the
allegations are likely to be true; the court must assume them to be true. See Christy
Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192-93 (10th Cir. 2009).
The question is whether, if the allegations are true, it is plausible and not merely
possible that the plaintiff is entitled to relief under the relevant law. See Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).
II. FACTUAL BACKGROUND
The following are facts pled in the Third-Party Complaint, which the Court
accepts as true for purposes of the Motion:

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On or about May 31, 2008, White was driving a 2002 Toyota Camry northbound
on US Highway 287 (“287”) in the County of Larimer, State of Colorado, while Nessler
was driving a 2007 Chevrolet Avalanche on 287 in the opposite direction. (Third-Party
Compl. ¶¶ 4-5.) Santomaso was a passenger situated in the front seat of Nessler’s
vehicle. (Id. ¶ 5.)
At or about 10:10 a.m., Nessler fell asleep while driving at or near mile marker
351 while on 287. (Id. ¶ 6.) As a result, Nessler’s vehicle drifted into the northbound
lane of traffic on 287, and struck White’s vehicle head-on in the northbound lane (the
“Incident”). (Id.)
On May 26, 2010, White initiated this action against Santomaso only, and on
December 20, 2010, filed an Amended Complaint (the “White Complaint”) (ECF No. 24)
based on an alleged civil conspiracy between Santomaso and Nessler. Specifically,
White alleges that immediately prior to the Incident, Nessler and Santomaso shared
and unlawfully consumed marijuana and other illegal narcotic and/or intoxicating
substances which resulted in Nessler operating his vehicle under the influence of
marijuana and/or other illegal intoxicating and impairing substances at the time of the
Incident. (Id.) Nessler, however, was not named as a party defendant by White. (Id. ¶
8.)1
On December 30, 2010, Santomaso filed a Third-Party Complaint against
Nessler, alleging a claim for contribution pursuant to Colo. Rev. Stat. §§ 13-50.5-102

1

Previously, White filed a personal injury lawsuit against Nessler in Larimer
County, Colorado District Court. Santomaso was not named as a party defendant in that
action.

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and 13-21-111.5. (Id. ¶¶ 12-15.) The Third-Party Complaint alleges that Santomaso is
entitled to contribution from Nessler in an amount equal to Nessler’s pro rata share of
liability for the injuries and/or damages, if any, sustained by White as alleged in the
White Complaint or as proven at trial. (Id. ¶¶ 15-17.)
III. ANALYSIS
Nessler moves to dismiss Santomaso’s Third-Party Complaint, arguing that
Santomaso and White executed General Release and Settlement Agreements
(collectively the “Release Agreements”) that released Nessler from all liability arising out
of the Incident. (Motion ¶¶ 3-5.) Nessler attaches the Release Agreements to his
Motion, and urges the Court to take judicial notice of these agreements without
converting the Motion to Dismiss into a Motion for Summary Judgment. (Id. ¶ 7) (citing
Zimomra v. Alamo Rent-A-Car, Inc., 111 F.3d 1495, 1503-04 (10th Cir. 1997)). Nessler
also seeks the recovery of attorneys’ fees pursuant to Colo. Rev. Stat. § 13-17-101.
A.

The Release Agreements
Nessler attaches the two Release Agreements to his Motion and, without

substantive argument, explains in one sentence that the Court may take judicial notice
of these Agreements. The Court declines to do so.
Federal Rule of Evidence 201 allows a court to, at any stage of the proceeding,
take notice of “adjudicative” facts that fall into one of two categories: (i) facts that are
“generally known within the territorial jurisdiction of the trial court;” or (ii) facts that are
“capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(a), (b). “Adjudicative facts are

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simply the facts of the particular case.” United States v. Wolny, 133 F.3d 758, 764
(10th Cir. 1998) (internal quotation omitted).
Judicial notice may be taken during any stage of the judicial proceeding,
including the motion to dismiss stage. See 21B Fed. Prac. & Proc. Evid. § 5110, at 294
& n.17 (2d ed. 2005). And, while ordinarily, a motion to dismiss must be converted to a
motion for summary judgment when the court considers matters outside the complaint,
see Fed. R. Civ. P. 12(d), matters that are judicially noticeable do not have that effect,
see Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279 n.1 (10th Cir. 2004).
When considering a motion to dismiss, “the court is permitted to take judicial notice of
its own files and records, as well as facts which are a matter of public record.” Van
Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other
grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001).
The Court may also consider documents to which the complaint refers, if the
documents are central to the plaintiff’s claim and the parties do not dispute their
authenticity. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941-42 (10th Cir.
2002). If a document is not incorporated by reference or attached to the complaint, but
is referred to in the complaint and is central to the plaintiff’s claim, the defendant may
submit an “indisputably authentic copy to the court to be considered on a motion to
dismiss.” GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
1997).
Nessler asks the Court to take judicial notice of a Settlement Agreement and Full
and Final Release between White and Nessler (the “White Release”) (Motion, Exhibit

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A.) Nessler asserts that this agreement releases him from all liability arising out of the
Incident. (Motion ¶ 3.) The White Release, however, is not a matter of public record.2
Nor is it referenced in Santomaso’s Third-Party Complaint.3 Accordingly, the Court will
not take judicial notice of, or consider, the White Release in deciding the Motion to
Dismiss. See Jacobsen, 287 F.3d at 941-42.
Nessler further urges the Court to take judicial notice of a General Release and
Settlement Agreement between Santomaso and Nessler (the “Santomaso Release”).
(Motion, Exhibit B.) This Release, Nessler argues, also releases him from all liability
arising out of the Incident. (Motion ¶ 3.) The Santomaso Release, however, is not a
matter of public record, is not certified, and is not referenced in Santomaso’s ThirdParty Complaint. See GFF Corp., 130 F.3d at 1384. As such, the Court declines to
take judicial notice of, or consider, the Santomaso Release as well.4
B.

The Third-Party Complaint
As the Court has declined to take judicial notice of, or consider, the above-

mentioned Release Agreements, the Court will only look to the four corners of the
Third-Party Complaint to determine if its allegations are sufficient to state a claim under
Colo. Rev. Stat. §§ 13-50.5-102 and 13- 21-111.5. See Jacobsen, 287 F.3d at 941.
2

Pursuant to Court Order, the White Release is under seal from public viewing.

(ECF No. 74.)
3

Indeed, Santomaso asserts that he did not even become aware of the White
Release until after he filed the Third-Party Complaint, and that, as of the filing of his Response
to Nessler’s Motion to Dismiss (ECF No. 70), he had still not seen the Release. (Response ¶¶
4, 6.)
4

Santomaso also attached his Affidavit to his Response. (Resp., Exhibit L.) To
the extent that Santamaso wants the Court to consider this document in evaluating the Motion
to Dismiss, the Court declines to do so.

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Santomaso seeks contribution from Nessler pursuant to Colo. Rev. Stat. §§
13-50.5-102 and 13-21-111.5, which states that, where two or more persons become
jointly or severally liable in tort for the same injury to person, there is a right to
contribution among them.
The Third-Party Complaint alleges facts showing that Nessler may be jointly or
severally liable in tort for the same injury to Amy White. (Third-Party Compl. ¶¶ 4-17.)
Thus, Santomaso has stated a claim for contribution against Nessler. To the extent
that Nessler asserts affirmative defenses arguing that the Release Agreements release
him from all liability arising out of the Incident (Motion ¶¶ 3-5), these arguments are
more appropriate for a motion for summary judgment.
Accordingly, the Court finds that the Third-Party Complaint states a claim against
Nessler for contribution pursuant to Colo. Rev. Stat. §§ 13-50.5-102 and 13-21-111.5.
C.

Attorneys’ Fees
Finally, Nessler states that he is entitled to the recovery of attorneys’ fees

pursuant to Colo. Rev. Stat. § 13-17-101. (Motion ¶¶ 13-16.) Colo. Rev. Stat. §
13-17-101 provides for the recovery of attorneys’ fees when “the bringing or defense of
an action, or part thereof (including any claim for exemplary damages), is determined to
have been substantially frivolous, substantially groundless, or substantially vexatious.”
A claim is substantially frivolous “if the proponent can present no rational argument
based on the evidence or law in support of that claim or defense.” W. United Realty,
Inc. v. Isaacs, 679 P.2d 1063, 1069 (Colo. 1984). Since the Court has now denied
Nessler’s Motion to Dismiss the Third-Party Complaint, Santomaso’s claims are not
frivolous. Therefore, the Court will not award Nessler his attorneys’ fees.
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IV. CONCLUSION
For the reasons set forth above, Third-Party Defendant’s Motion to Dismiss (ECF
No. 53) is DENIED.
Dated this 2nd day of February, 2012.
BY THE COURT:

William J. Martínez
United States District Judge

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