Opinion
Civil Case No. 08-cv-02264-LTB-MEH.
January 29, 2009
ORDER
This matter is before me on State Farm Fire and Casualty Company's Motion to Strike Plaintiff's Request for Exemplary Damages [ Doc # 18]. Plaintiff, Dalilah Klein, has not filed a response to the motion to strike. I GRANT the motion.
Plaintiff filed her complaint in the District Court for El Paso County, State of Colorado, on August 8, 2008. Defendant subsequently removed the case to this court pursuant to 28 U.S.C. § 1446, on the basis of diversity jurisdiction as provided by 28 U.S.C. § 1332.
Defendant then filed this motion to strike on January 8, 2009. The motion seeks to strike the exemplary damages sought by Plaintiff on the basis that Colo. Rev. Stat. § 13-21-102(1.5)(a) (2008) provides that "[a] claim for exemplary damages in an action governed by this section may not be included in any initial claim for relief [but] may be allowed by amendment to the pleadings only after the exchange of initial disclosures . . . and the plaintiff establishes prima facie proof of a triable issue." Because the only basis for Plaintiff's request for exemplary damages is pursuant to this statute, and the statute has been repeatedly applied in this court to Colorado diversity cases, Defendant asks that I strike Plaintiff's request for exemplary damages contained in her Complaint.
First, I note that on January 9, 2009, I ordered that Plaintiff had up to and including January 20, 2009 to file a response to the motion to strike. [ Doc #19]. As of the date of this order, January 29, 2009, Plaintiff has not filed a response. In addition, my review of the case law cited by Defendant in support of this motion reveals that Colo. Rev. Stat § 13-21-102(1.5)(a) applies to this case. See generally Hartshorn Properties, LLC v. BNSF Ry. Co., 2006 WL 3618292 (D. Colo. 2006) (not selection for publication); Jones v. Krautheim, 208 F.Supp.2d 1173, 1179 (D. Colo. 2002) (applying similar Colorado statute).
ACCORDINGLY, I GRANT the relief requested in State Farm Fire and Casualty Company's Motion to Strike Plaintiff's Request for Exemplary Damages [ Doc # 18] and, as a result, I ORDER that:
1) Plaintiff's request for exemplary damages contained in the prayer for relief in her Complaint and Jury Demand is STRICKEN pursuant to Colo. Rev. Stat. § 13-21-102(1.5)(a); and
2) Defendant State Farm Fire and Casualty Company is AWARDED it costs and fees incurred in filing this motion and shall submit a bill of costs within ten days of this Order.