Arrington v. Born-n-Raised, Inc. et al
Filing
31
ORDER. ORDERED that: Plaintiff's Motion to Extend the Date to File Response to Motion to Dismiss and Response to Motion for Summary Judgment and to File an Amended Complaint to Add Claim for Exemplary Damages 24 is DENIED as moot; Plaintiff sh all file a response to Defendant BNRs Motion for Summary Judgment 18 on or before 10/18/12; and Defendant's Motion to Dismiss 17 is GRANTED as confessed, and Plaintiff's claim for punitive damages is DISMISSED WITHOUT PREJUDICE, by Judge Lewis T. Babcock on 9/28/12.(lygsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 12-cv-00172-LTB-KLM
TROY R. ARRINGTON, II,
Plaintiff,
v.
BORN-N-RAISED, INC., and TIMOTHY R. CHAVEZ,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This case is before me on Plaintiff’s Motion to Extend the Date to File Response to
Motion to Dismiss and Response to Motion for Summary Judgment and to File an Amended
Complaint to Add Claim for Exemplary Damages [Doc # 24]. After consideration of the motion,
all related pleadings, and the case file, I deny Plaintiff’s motion as moot.
This action arises out of an automobile accident that occurred on March 19, 2009 in
Durango, Colorado. Plaintiff’s Complaint asserts a negligence claim against Defendant Timothy
R. Chavez (“Chavez”), the driver of the vehicle that struck Plaintiff’s vehicle; a negligence claim
against Defendant Born-N-Raised (“BNR”), Defendant Chavez’s employer; and a claim for
punitive damages against both Defendants.
On August 13, 2012, Defendants filed a motion to dismiss Plaintiff’s claim for punitive
damages pursuant to C.R.S. §13-21-102 which precludes such claims in the initial claim for
relief and case law that has applied this statute to federal court cases. See Doc # 17. Also on
August 13, 2012, Defendant BNR filed a motion for summary judgment asserting that it was
entitled to judgment as a matter of law on both of Plaintiff’s claims against it because Defendant
Chavez was not acting in the course and scope of his employment with BNR at the time of the
accident. See Doc # 18. Plaintiff seeks an extension of time to respond to both of Defendants’
dispositive motions.
Plaintiff argues that he needs additional time to respond to Defendant BNR’s motion for
summary judgement so he can obtain pertinent business records of BNR and cites a related
motion to compel. This motion to compel has since been ruled on and all authorized discovery
was ordered to be provided to Plaintiff by September 11, 2012. Thus, Plaintiff’s stated reason for
needing additional time to respond to Defendant BNR’s motion for summary judgment is now
moot.
Plaintiff argues that he needs additional time to respond to Defendants’ motion to dismiss
so he can obtain additional evidence to support his claim for punitive damages. Plaintiff has
since filed a motion to amend his Complaint to add a new claim for punitive damages. I construe
this motion as an admission by Plaintiff that the claim for punitive damages currently set forth in
his Complaint is deficient and grant Defendants’ Motion to Dismiss as confessed. I will address
the merits of Plaintiff’s Motion for Leave To Amend Complaint to Add Claim for Expemplary
Damages [Doc # 27] once it is fully briefed, and nothing in this Order shall preclude Defendants
from filing a new motion to dismiss the amended claim if it is accepted for filing.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s Motion to Extend the Date to File Response to Motion to Dismiss and
Response to Motion for Summary Judgment and to File an Amended Complaint to Add Claim
for Exemplary Damages [Doc # 24] is DENIED as moot;
2. Plaintiff shall file a response to Defendant BNR’s Motion for Summary Judgment
[Doc # 18] on or before October 18, 2012; and
3. Defendant’s Motion to Dismiss [Doc # 17] is GRANTED as confessed, and Plaintiff’s
claim for punitive damages is DISMISSED WITHOUT PREJUDICE.
Dated: September 28 , 2012 in Denver, Colorado.
BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE
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