Opinion
Civil Action No. 04-cv-2691-PSF-BNB.
July 5, 2005
ORDER ON DEFENDANT'S MOTION TO DISMISS
THIS MATTER is before the Court on Defendant's Motion to Dismiss Plaintiff's Second and Third Claims for Relief, filed January 5, 2005 (Dkt. # 4). In order to put this motion in perspective, the Order reviews the procedural history of this case.
Plaintiff Black Diamond Partners, LLC filed its complaint in San Miguel County District Court on October 28, 2004. On December 29, 2004, Defendant St. Paul Reinsurance Company Limited ("St. Paul") removed the case to federal court. In its Notice of Removal, St. Paul asserted that it had been served on November 29, 2004, and that the Notice of Removal was timely. There has been no motion to remand. On January 5, 2005, defendant filed an answer to plaintiff's complaint along with the Motion to Dismiss the Second and Third Claims for Relief.
The essential grounds asserted in the motion are that the Second Claim for Relief titled "Unreasonable Conduct or Position-Statutory Violation" fails to state a cause of action as there is no private right of action under the statute cited in the claim, C.R.S. § 10-3-1104(1)(h), and that the Third Claim for Relief, titled "Tortious Breach of Duty of Good Faith and Fair Dealing," is duplicative of plaintiff's First Claim for Relief, titled "Bad Faith Breach of Insurance Contract."
On January 24, 2005, plaintiff filed a combined motion to amend complaint and response to motion to dismiss. By Order entered January 27, 2005, the Magistrate Judge denied without prejudice plaintiff's Motion to Amend because it violated portions of Local Rule 7.1, D.C.COLO.L.CivR, by combining a motion with a response and by failing to certify that plaintiff's counsel conferred with opposing counsel regarding the motion.
On February 8, 2005, plaintiff filed a second motion to amend complaint and a separate response to defendant's motion to dismiss. In the proposed Amended Complaint plaintiff changed the title of the First Claim for Relief to "Breach of Insurance Contract" and omitted allegations of defendant's failing to act in good faith and with reckless disregard. Plaintiff retained its title for the Second Claim for Relief, but fleshed out somewhat the contention that the defendant engaged in deceptive or unfair trade practices and consumer fraud in violation of the Colorado Consumer Protection Act. Plaintiff also retained the title of its Third Claim for Relief, but tweaked some of the allegations in the claim.
By order entered in open court March 11, 2005, the Magistrate Judge granted plaintiff's second Motion to Amend Complaint, and directed defendant to respond to the Amended Complaint within ten days. On March 21, 2005, defendant filed its Answer to the Amended Complaint. Defendant did not refile a motion to dismiss.
Accordingly, the Court finds that defendant's outstanding motion to dismiss is moot at this time. In so finding, the Court recognizes that defendant raised arguments in opposition to plaintiff's second motion to amend complaint that advanced substantive arguments against the claims plaintiff sought to assert. Nonetheless, the Motion to Amend has been granted, the Amended Complaint has been filed and the defendant has answered.
Accordingly, the Court DENIES without prejudice the Defendant's Motion to Dismiss filed January 5, 2005 (Dkt. # 4).