Bugatti Fausett et al v. Osteotech, Inc.

Filing 36

ORDER denying 17 Motion for Judgment on the Pleadings. By Judge Robert E. Blackburn on 9/10/2014.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 1:13-cv-02170-REB-KLM
KARIN BUGATTI FAUSETT and
EDDIE FAUSETT,
Plaintiffs,
v.
OSTEOTECH, INC.,
Defendant.

ORDER DENYING MOTION FOR JUDGMENT ON THE PLEADINGS
Blackburn, J.

The matter before me is the Motion for Judgment on the Pleadings [#17]1 filed
November 22, 2013. The plaintiff filed a response [#22] and the defendant filed a reply
[#24]. I deny the motion.2
The defendant seeks entry of judgment in its favor under FED. R. CIV. P. 12(c). A
motion for judgment on the pleadings is evaluated under the same standard as a motion
to dismiss for failure to state a claim under FED. R. CIV. P. 12(b)(6). Jacobsen v.
Deseret Book Co., 287 F.3d 936, 941 n. 2 (10th Cir. 2002).
When ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), I must
determine whether the allegations of the complaint are sufficient to state a claim within

1

“[#17]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
2

I have subject matter jurisdiction over this matter under 28 U.S.C. § 1332 (diversity of
citizenship).

the meaning of Fed.R.Civ.P. 8(a). I must accept all well-pleaded allegations of the
complaint as true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir.
2002). “However, conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.” I review the complaint to
determine whether it “‘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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Thus, the
mere metaphysical possibility that some plaintiff could prove some set of facts in
support of the pleaded claims is insufficient; the complaint must give the court reason to
believe that this plaintiff has a reasonable likelihood of mustering factual support for
these claims." Id. (emphases in original).3 Nevertheless, the standard remains a liberal
one, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and that a recovery is very remote and
unlikely.“ Dias v. City and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)
(quoting Twombly, 127 S.Ct. at 1965) (internal quotation marks omitted).
3

Twombly rejected and supplanted the “no set of facts” language of Conley v. Gibson, 355 U.S.
41, 45-46 (1957). The Tenth Circuit has clarified the meaning of the “plausibility” standard:
“plausibility” in this context must refer to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs “have not nudged their
claims across the line from conceivable to plausible.” The allegations
must be enough that, if assumed to be true, the plaintiff plausibly (not just
speculatively) has a claim for relief.
This requirement of plausibility serves not only to weed out claims that do
not (in the absence of additional allegations) have a reasonable prospect
of success, but also to inform the defendants of the actual grounds of the
claim against them. “Without some factual allegation in the complaint, it
is hard to see how a claimant could satisfy the requirement of providing
not only ‘fair notice’ of the nature of the claim, but also ‘grounds' on which
the claim rests.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Twombly, 127 S.Ct. at 1974;
internal citations and footnote omitted).

2

Considering the allegations in the complaint [#7] in light of these apposite
standards of review, and being apprised of the legal arguments raised by and
authorities cited in the motion, response, and reply, I find that the complaint adequately
sets forth facts sufficient to state claims for relief that are plausible on their face.
Accordingly, the motion for judgment on the pleadings [#17] is denied.
THEREFORE, IT IS ORDERED that the Motion for Judgment on the
Pleadings [#17] filed November 22, 2013, is DENIED.
Dated September 10, 2014, at Denver, Colorado.
BY THE COURT:

3