Free Motion to Dismiss - District Court of Colorado - Colorado

Case 1:04-cv-00761-WDM-BNB

Document 82

Filed 06/09/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

04-cv-00761-WDM-BNB DEAN COLBY, Plaintiff, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, an Ohio corporation, Defendant.

PLAINTIFF'S MOTION TO DISMISS COMPLAINT WITHOUT PREJUDICE

Plaintiff Dean Colby, by and through his attorneys of record, respectfully moves the court to dismiss his complaint without prejudice pursuant to Colo. R. Civ. Proc. 41(a)(2), because of pending class-action litigation, and states as follows: D.C.ColoLCivR 7.1 Certification: Plaintiff's counsel has attempted to contact

Defendant's counsel with regard to this motion, and despite several contacts and discussions they have not responded. This action arises out of injuries sustained by Dean Colby in an automobile accident while riding in Thomas Sumners' automobile. Mr. Sumners was insured by Progressive Mountain Insurance Company (Progressive), and as a passenger in Mr. Sumners' vehicle, Plaintiff became an insured of Progressive under Colo. Rev. Stat. § 10-4-707(c). After discovering that Progressive failed to make an offer of extended personal injury protection (PIP)

1

Case 1:04-cv-00761-WDM-BNB

Document 82

Filed 06/09/2006

Page 2 of 5

compliant with the requirements of Colo. Rev. Stat. § 10-4-710, Plaintiff filed the instant action seeking reformation of the contract and statutory and punitive damages. Trial in this case is set for July 10, 2006. As it now appears that Plaintiff is a putative member of the class represented in Soto v. Progressive Mountain Insurance Company, Montrose County District Court Case No. 2002CV47, Plaintiff hereby moves to dismiss his complaint without prejudice pending the outcome of appellate litigation in that matter. On January 27, 2004, Judge Patrick granted class certification in the case. Soto v. Progressive Mountain Ins. Co., No. 2002CV47, Order On Motion for Class Certification and Defendant's Motion for Summary Judgment, (Colo. Dist. Court, Montrose County, January 27, 2004) (Ex. 1 at 6). However, in the same order, Judge Patrick also granted summary judgment to the defendant on the issue of whether Progressive's offer of extended PIP complied with Colo. Rev. Stat. § 10-4-710, leaving only claims regarding section 10-4-706(4)(b) and claims derivative of that claim. Id. at 11-12. The grant of summary judgment on the section 10-4-710 claim is currently pending on appeal in the Colorado Court of Appeals. Plaintiff's counsel interpreted the court's ruling as certifying only the section 10-4706(4)(b) claims and dismissing the others before certification, as otherwise 23(b)(3) damage claims would have been dismissed without notice. Based on that interpretation, Plaintiff filed his individual claims regarding Progressive's compliance with section 10-4-710. However, Progressive's counsel contacted Plaintiff's counsel with regard to two similarly situated cases and stated that they interpreted Judge Patrick's ruling as certifying the class with regard to both claims and then dismissing the section 10-4-710 claim, and that therefore the plaintiffs were

2

Case 1:04-cv-00761-WDM-BNB

Document 82

Filed 06/09/2006

Page 3 of 5

class members and the litigation redundant. Based on Defendant's interpretation that the section 10-4-710 claim was also a class claim, and a review of the procedural history, Plaintiff's counsel agreed that Defendant's interpretation had some merit and consequently agreed to dismiss individual Progressive claims pending the outcome of the Soto appeal. The parties, then, with regard to two similarly situated cases, stipulated to dismiss the claims without prejudice, with an agreement that the claims would be tolled. Schneider v. Progressive Mountain Ins. Co., No. 05CV1310, Stipulation of Dismissal Without Prejudice Pursuant to C.R.C.P. 41(a) (Colo. Dist. Ct., Larimer County, December 19, 2005) (Ex. 2); Murry v. Progressive Mountain Ins. Co., No. 2005CV8719, Stipulation of Dismissal Without Prejudice Pursuant to C.R.C.P. 41(a) (Colo. Dist. Ct., County of Denver, December 19, 2005) (Ex. 3). Plaintiff's counsel requested similar treatment of this case; however, Defendant has not responded to Plaintiff's request and, therefore, before any further effort or resources are expended, Plaintiff moves the court to order this complaint dismissed without prejudice, which will ­ because of the tolling that occurs for plaintiff's claim ­ allow for the appeal to be decided and his claim handled therein. If Plaintiff, as is alleged by Defendant, is a putative member of the class as defined in Soto, it is in the interests of judicial economy to dismiss Plaintiff's individual claims without prejudice pending the outcome of the appeal in Soto. If summary judgment is overturned in Soto, Plaintiff's claims may be prosecuted as part of the Soto class, thus making an individual trial unnecessary. Of course, should Plaintiff desire to opt-out of the class and receives permission to do so from the trial court, Plaintiff could re-file and prosecute his individual claims at that time. See generally Crown, Cork & Seal Co., v. Parker, 462 U.S. 345, 353-54 (1983) (class-action litigation tolls the limitations period as to individual claims of all putative class

3

Case 1:04-cv-00761-WDM-BNB

Document 82

Filed 06/09/2006

Page 4 of 5

members); Joseph v. Wiles, 223 F.3d 1155, 1166-68 (10th Cir. 2000) (same). If summary judgment dismissing the class' section 10-4-710 claims is affirmed, such a decision could ­ if Defendant is correct ­ be binding upon the Plaintiff and his claim. Dismissing the Plaintiff's complaint without prejudice pending the outcome of the Soto appeal would avoid unnecessary expenditures of resources on an individual trial by the parties and the court. For the foregoing reasons, Plaintiff hereby requests the court to dismiss the Plaintiff's complaint without prejudice pursuant to Colo. R. Civ. P. 41(a)(2), because of the certified class issues on appeal in Soto v. Progressive Mountain Insurance Company. Respectfully submitted this 9th day of June, 2006. s/Julie Cliff Robert B. Carey L. Dan Rector Julie Cliff The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909 Telephone: (719) 635-0377 FAX: (719) 635-2920 E-mail: [email protected] Attorney for Plaintiff Dean Colby

4

Case 1:04-cv-00761-WDM-BNB

Document 82

Filed 06/09/2006

Page 5 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on June 9, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Gregory Raphael Giometti Jon Arthur Halaby [email protected], [email protected]

[email protected], [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the matter (mail, hand-delivery, etc) indicated by the non-participant's name: Dean Colby, Ph.D. 1855 Athens North, #229 Boulder, CO 80302 s/Julie Cliff Robert B. Carey L. Dan Rector Julie Cliff The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909 Telephone: (719) 635-0377 FAX: (719) 635-2920 E-mail: [email protected] Attorney for Plaintiff Dean Colby

5