Scoville v. Secura Insurance

Filing 24

MINUTE ORDER. Defendant's Motion to Dismiss 14 is denied as moot to the extent that it seeks dismissal of the complaint under Colorado Rules of Civil Procedure 12(b)(2)-(4). The motion is denied without prejudice to the extent that it seeks dismissal of the complaint under Colorado Rule of Civil Procedure 12(b)(5). By Judge Philip A. Brimmer on 5/25/18. (pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-03134-PAB-KMT
CHRISTOPHER SCOVILLE,
Plaintiff,
v.
SECURA INSURANCE and
SECURA INSURANCE, a Mutual Company, d/b/a, a/k/a, and/or f/k/a SECURA
INSURANCE, a Wisconsin corporation,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
Entered by Judge Philip A. Brimmer
This matter is before the Court on the Motion to Dismiss Plaintiff’s Complaint
[Docket No. 14] filed by defendant Secura Insurance, a Mutual Company. The Court
has jurisdiction pursuant to 28 U.S.C. § 1332.
Defendant moves to dismiss the complaint for lack of personal jurisdiction under
Colorado Rule of Civil Procedure 12(b)(2), insufficient service of process under Rules
12(b)(3) and 12(b)(4), and failure to state a claim under Rule 12(b)(5). Docket No. 14
at 1. On January 12, 2018, six days before the filing of defendant’s motion to dismiss in
this Court, defendant filed a Notice of Ripe Dispositive Motion [Docket No. 12] stating
that its motion to dismiss, filed in state court, had been rendered moot by perfection of
service of process and removal of the case to federal court to the extent the motion
sought dismissal under Colorado Rules of Civil Procedure 12(b)(1)-(4). Docket No. 12
at 1. As to the portion of defendant’s motion asserted under Rule 12(b)(5), defendant
indicated that it had “been fully briefed and [was] ripe for a ruling by this Court.” Id.
On January 18, 2018, defendant filed its motion to dismiss in this Court asserting
the same bases for dismissal that were presented in the state court filing. See Docket
No. 14. Because defendant has stated that the portions of the motion asserted under
Colorado Rules of Civil Procedure 12(b)(1)-(4) were rendered moot by plaintiff’s
perfection of service of process and defendant’s removal of the case to federal court,
those portions of defendant’s motion to dismiss will be denied as moot.
Defendant avers that the portion of the motion asserted under Rule 12(b)(5) is
ripe for disposition. However, the Colorado Rules of Civil Procedure do not apply in
federal court. See Murphy v. Dyer, 260 F. Supp. 822, 823 (D. Colo. 1966); see also
Hanna v. Plumer, 380 U.S. 460, 465 (1965) (reiterating that federal courts sitting in
diversity must “apply state substantive law and federal procedural law”); Fed. R. Civ. P.

81(c)(1) (stating that Federal Rules of Civil Procedure “apply to a civil action after it is
removed from a state court”). Although Colorado courts construe Colorado Rule of Civil
Procedure 12(b)(5) similarly to Federal Rule of Civil Procedure 12(b)(6), see
Optinrealbig.com, LLC v. Infinite Monkeys & Co., LLC, No. 06-cv-00634-ZLW-MJW ,
2007 WL 809797, at *1 n.3 (D. Colo. Mar. 15, 2007); Warne v. Hall, 373 P.3d 588, 595
(Colo. 2016) (embracing “plausibility standard” set forth in Twombly and Iqbal “as a
statement of the pleading requirements” under Colorado Rule of Civil Procedure 8),
many of the authorities defendant cites are Colorado cases that are not binding on this
Court for purposes of determining the standard of dismissal under Federal Rule of Civil
Procedure 12(b)(6). Moreover, plaintiff’s response cites only Colorado authority. See
Docket No. 14-5 at 4. Accordingly, defendant’s request for dismissal of the complaint
under Colorado Rule of Civil Procedure 12(b)(5) will be denied without prejudice.
Defendant may re-file its motion under the applicable federal rules. It is therefore
ORDERED that defendant’s Motion to Dismiss [Docket No. 14] is DENIED as
moot to the extent that it seeks dismissal of the complaint under Colorado Rules of Civil
Procedure 12(b)(2)-(4). It is further
ORDERED that defendant’s Motion to Dismiss [Docket No. 14] is DENIED
without prejudice to the extent that it seeks dismissal of the complaint under Colorado
Rule of Civil Procedure 12(b)(5).
DATED May 25, 2018.

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