Longwolf v. Post et al

Filing 30

ORDER granting 18 Plaintiff's Motion to Strike Defendant Barbara Post's Designation of Non-Party. The Notice of Designation of Non-party 14 is STRICKEN, by Magistrate Judge Kathleen M. Tafoya on 10/16/14.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–01613–KMT
DONNA LONGWOLF,
Plaintiff,
v.
BARBRA POST,
GEICO CASUALTY COMPANY, and
VALERA HOLTORF d/b/a DASHABOUT TOWN TAXI, LLC,
Defendants.

ORDER

This matter is before the court on “Plaintiff’s Motion to Strike Defendant Barbara Post’s
Designation of Non-Party” (Doc. No. 18 [Mot.], filed September 4, 2014). Defendant Post filed
her response on September 25, 2014 (Doc. No. 26 [Resp.]). Plaintiff did not file a reply.
FACTUAL BACKGROUND
This case is a personal injury action in which Plaintiff alleges negligence against
Defendant Post as the result of an automobile accident that occurred on June 13, 2011, involving
Defendant Post, who was driving a motor vehicle, and Defendant Dasabout Town Taxi, LLC,
whose driver was transporting Plaintiff in a carrier van. (See Doc. No. 1.)

PROCEDURAL BACKGROUND
On August 14, 2014, Defendant Post filed her Notice of Designation of Non-party
pursuant to Colo. Rev. Stat. § 13-21-111.5. (Doc. No. 14 [Designation].) Defendant Post
designated Dorothy Munoz, the driver of the carrier van operated by Defendant Dasabout Town
Taxi, LLC. (Id.) Plaintiff now moves to strike the Designation. (Mot.)
ANALYSIS
Plaintiff argues that the Designation should be stricken because the Federal Rules of Civil
Procedure do not allow for a designation of a non-party and because Defendant Post has failed to
satisfy the requirements of Colo. Rev. Stat. § 13-21-111.5. (See Mot.)
1.

Colorado Statutes in Diversity Cases

Plaintiff filed her case in this Court on the basis of diversity jurisdiction under 28 U.S.C.
¶ 1332. (See Doc. No. 1, ¶ 5.) This Court, sitting in diversity, is bound by Colorado statutes
when deciding questions of substantive law. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78
(1938). In determining a defendant’s liability, Colorado’s Pro-Rata Liability Statute, Colo. Rev.
Stat. § 13-21-111.5, allows the Court to consider the negligence or fault of nonparties. Thus,
Defendant’s argument that the Federal Rules of Civil Procedure do not allow for the designation
of a non-party fails.
2.

Designation under Colo. Rev. Stat. § 13-21-111.5

In Colorado, non-party designations must be made by filing a notice including “such
nonparty’s name and last-known address, or the best identification of such nonparty which is
possible under the circumstances, together with a brief statement of the basis for believing such
nonparty to be at fault.” Colo. Rev. Stat. § 13-21-111.5(3)(b). The designation must contain

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facts sufficient to “satisfy all the elements of a negligence claim.” Redden v. SCI Colo. Funeral
Servs., Inc., 38 P.3d 75, 81 (Colo. 2001); see also Stone v. Satriana, 41 P.3d 705, 709 (Colo.
2002) (interpreting Redden to require that designations “establish a prima facie case” against the
nonparty). “In order to establish a prima facie case for negligence, a plaintiff must show a legal
duty of care on the defendant’s part, breach of that duty, injury to the plaintiff, and causation,
i.e., that the defendant’s breach caused the plaintiff’s injury.” HealthONE v. Rodriquez ex rel.
Rodriquez, 50 P.3d 879, 888 (Colo. 2002).
“[A] designation of non-parties must give a plaintiff sufficient notice of the nonparties’ conduct so that plaintiff can prepare to address it . . . . At the very least,
the designation must set forth facts sufficient to permit a plaintiff to identify the
transaction or occurrence which purportedly leads to the non-party’s fault.”
Resolution Trust Corp. v. Deloitte & Touche, 818 F. Supp. 1406, 1409–09 (D. Colo. 1993)
(quoting F.D.I.C. v. Isham, 782 F. Supp. 524, 530 (D. Colo. 1992)). A nonparty designation
should be stricken as insufficient as a matter of law if the designating party fails to establish a
prima facie case of negligence. See Stone, 41 P.3d at 709; Redden, 38 P.3d at 80–81.
Although Redden was a professional negligence action, the Tenth Circuit has interpreted
its holding as governing non-party designations in all cases where the Colorado apportionment
statute applies. See Loughridge v. Chiles Power Supply Co., Inc., 431 F.3d 1268, 1278 (10th Cir.
2005)(stating, in case involving claims of sale of a defective product, failure to warn and
negligence, that “[t]o satisfy [Colo. Rev. Stat. § 13-21-111.5(3)(b)], the party must ‘allege the
basis for believing the nonparty is legally liable to the extent the non-party’s acts or omissions
would satisfy all the elements of a [ ] claim’ ”)(quoting Redden, 38 P.3d at 81).
Defendant Post’s Designation states

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It is believed that the evidence at trial, and particularly the testimony of the parties
and other witnesses, will show that Dorothy Munoz, the driver of the vehicle in
which the Plaintiff was a passenger, was negligent and a cause of the accident that
is the subject of this lawsuit.
(Designation.) Defendant Post’s Designation does not “go beyond [the] bald allegation” of
negligence. 38 P.3d at 81. Thus, Defendant Post’s Designation is stricken.
WHEREFORE, for the foregoing reasons, it is
ORDERED that “Plaintiff’s Motion to Strike Defendant Barbara Post’s Designation of
Non-Party” (Doc. No. 18) is GRANTED. The “Notice of Designation of Non-party” (Doc. No.
14) is STRICKEN.
Dated this 16th day of October, 2014.

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