1                   Opinions of the Colorado Supreme Court are available to the
2               public and can be accessed through the Judicial Branch’s homepage at
3                 http://www.courts.state.co.us. Opinions are also posted on the
4                 Colorado Bar Association’s homepage at http://www.cobar.org.
5
6                                                             ADVANCE SHEET HEADNOTE
7                                                                           June 27, 2016
8
9                                           2016 CO 50
0
1   No. 14SC176, Warne v. Hall—Civil Procedure—Pleading.
2
3          Warne petitioned for review of the court of appeals’ judgment reversing the

4   dismissal of Hall’s complaint, which asserted a claim of intentional interference with

5   contract.    Although invited to apply the standard for dismissal articulated in Bell

6   Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662

7   (2009), the district court dismissed for failure to state a claim upon which relief could be

8   granted without addressing either Twombly or Iqbal in its written order. By contrast,

9   the court of appeals expressly declined to apply the more recent United States Supreme

0   Court jurisprudence governing Fed. R. Civ. P. 12(b)(6), finding itself instead bound by

1   the Colorado Supreme Court’s existing precedent, which had heavily relied on the

2   United States Supreme Court’s earlier opinion in Conley v. Gibson, 355 U.S. 41 (1957),

3   and particularly its language to the effect that a complaint should not be dismissed for

4   failure to state a claim unless it appears beyond doubt that the plaintiff can prove “no

5   set of facts” in support of his claim. Declining, therefore, to be influenced by the United

6   States Supreme Court’s more recent admonition to the federal courts that “a complaint

7   must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is
1   plausible on its face,’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570), the

2   court of appeals found the complaint sufficient to state a claim.

3          The Colorado Supreme Court reversed the judgment of the court of appeals

4   finding the complaint to be sufficient. Because the Colorado Supreme Court’s case law

5   interpreting the Colorado Rules of Civil Procedure in general, and C.R.C.P. 8 and

6   12(b)(5) in particular, reflected first and foremost a preference to maintain uniformity in

7   the interpretation of the federal and state rules of civil procedure and a willingness to

8   be guided by the United States Supreme Court’s interpretation of corresponding federal

9   rules whenever possible, rather than an intent to adhere to a particular federal

0   interpretation prevalent at some fixed point in the past, the Colorado Supreme Court

1   found that its precedent was interpreted too narrowly by the court of appeals. Because

2   it also found that the plaintiff’s complaint, when evaluated in light of the more recent

3   and nuanced analysis of Twombly and Iqbal, failed to state a plausible claim for relief,

4   the Colorado Supreme Court found the complaint insufficient under the Colorado Rules

5   of Civil Procedure.

6




                                                 2
1

2

3                        The Supreme Court of the State of Colorado
4                          2 East 14th Avenue • Denver, Colorado 80203


5                                          2016 CO 50

6                             Supreme Court Case No. 14SC176
7                           Certiorari to the Colorado Court of Appeals
8                             Court of Appeals Case No. 12CA719

9                                          Petitioner:
0                                       Menda K. Warne,
1                                               v.
2                                         Respondent:
3                                          Bill J. Hall.

4                      Judgment Reversed in Part and Affirmed in Part
5                                             en banc
6                                          June 27, 2016

7   Attorneys for Petitioner:
8   Vaughn & DeMuro
9   Gordon L. Vaughan
0   David R. DeMuro
1    Colorado Springs, Colorado
2
3   Attorneys for Respondent:
4   Clark Williams and Matsunaka, LLC
5   Roger E. Clark
6    Loveland, Colorado
7
8   Attorneys for Amicus Curiae Colorado Civil Justice League:
9   Davis Graham & Stubbs LLP
0   Jordan Lipp
1   Geoffrey C. Klingsporn
2    Denver, Colorado
3
4   Wheeler Trigg O’Donnell LLP
5   Terence Ridley
6   Evan Stephenson
1   Thomas Werge
2    Denver, Colorado
3
4   Attorneys for Amicus Curiae Colorado Defense Lawyers Association:
5   Jaudon & Avery LLP
6   Jared R. Ellis
7     Denver, Colorado
8
9   Attorneys for Amicus Curiae Colorado Plaintiff Employment Lawyers Association:
0   Lowrey Parady, LLC
1   Sarah J. Parady
2    Denver, Colorado
3
4   Attorneys for Amici Curiae The State of Colorado and Colorado Intergovernmental
5   Risk Sharing Agency (CIRSA):
6   Cynthia H. Coffman, Attorney General
7   Daniel D. Domenico, Solicitor General
8   Frederick R. Yarger, Assistant Solicitor General
9   Kathleen L. Spalding, Senior Assistant Attorney General
0   Matthew D. Grove, Assistant Solicitor General
1    Denver, Colorado
2
3   Colorado Intergovernmental Risk Sharing Agency (CIRSA)
4   Tami A. Tanoue, General Counsel
5    Denver, Colorado
6
7   Attorneys for Amicus Curiae The Colorado Trial Lawyers Association:
8   Leventhal & Puga, P.C.
9   Benjamin Sachs
0   David Mason
1    Denver, Colorado
2
3   Holland, Holland Edwards & Grossman, PC
4   John R. Holland
5    Denver, Colorado
6
7
8
9
0
1   JUSTICE COATS delivered the Opinion of the Court.
2   JUSTICE GABRIEL dissents, and JUSTICE MÁRQUEZ and JUSTICE HOOD join in
3   the dissent.


                                            2
¶1     Warne petitioned for review of the court of appeals’ judgment reversing the

dismissal of Hall’s complaint, which asserted, as relevant here, a claim of intentional

interference with contract. See Hall v. Warne, No. 12CA719 (Colo. App. Jan. 23, 2014)

(not published pursuant to C.A.R. 35(f)). Although invited to apply the standard for

dismissal articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

Ashcroft v. Iqbal, 556 U.S. 662 (2009), the district court dismissed for failure to state a

claim upon which relief could be granted without addressing either Twombly or Iqbal

in its written order. By contrast, the court of appeals expressly declined to apply the

more recent United States Supreme Court jurisprudence governing Fed. R. Civ. P.

12(b)(6), finding itself instead bound by this court’s existing precedent, which has

heavily relied on the Supreme Court’s earlier opinion in Conley v. Gibson, 355 U.S. 41

(1957), and particularly its language to the effect that a complaint should not be

dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff

can prove “no set of facts” in support of his claim. Declining, therefore, to be influenced

by the United States Supreme Court’s more recent admonition to the federal courts that

“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for

relief that is plausible on its face,’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

570), the court of appeals found the complaint sufficient to state a claim.

¶2     Because our case law interpreting the Colorado Rules of Civil Procedure in

general, and C.R.C.P. 8 and 12(b)(5) in particular, reflects first and foremost a preference

to maintain uniformity in the interpretation of the federal and state rules of civil

procedure and a willingness to be guided by the Supreme Court’s interpretation of


                                             3
corresponding federal rules whenever possible, rather than an intent to adhere to a

particular federal interpretation prevalent at some fixed point in the past, the court of

appeals too narrowly understood our existing precedent.          Because the plaintiff’s

complaint, when evaluated in light of the more recent and nuanced analysis of

Twombly and Iqbal, fails to state a plausible claim for relief, the judgment of the court

of appeals finding the complaint to be sufficient is reversed, and the matter is remanded

with instruction to permit further proceedings consistent with this opinion.

                                           I.

¶3    Bill Hall filed a complaint in state district court against the Town of Gilcrest and

its mayor, Menda Warne, as an individual. Hall’s complaint alleged that Warne used

her authority as mayor to interfere with his purchase agreement to sell a parcel of land

in Gilcrest to Ensign United States Drilling, Inc., which intended, according to an

attachment to the complaint, to build its headquarters on the property. Although the

precise terms of the agreement were not included in the pleadings, the complaint, along

with its attached exhibits, indicated that Ensign tried for more than a year to obtain

approval to purchase the property and construct its headquarters in Gilcrest, but its

efforts were thwarted by the town government.         More specifically, the complaint

alleged that Warne caused Ensign to terminate the agreement by imposing

unauthorized and unreasonable conditions on its proposed site development plan, by

mayoral order, after the plan had been conditionally approved by the town board at a

public hearing. The complaint further alleged that Warne’s actions were motivated by

malice towards Hall and that the conditions imposed on Ensign’s plans were


                                            4
“disproportionate to any impact Ensign would have on the town” and “were not based

on the reasonable requirements of applicable ordinances or law.” On the basis of these

and similar allegations, the complaint asserted several claims for relief under state and

federal law, including intentional interference with contractual obligations, taking

without just compensation, and violation of substantive due process under 28 U.S.C.

§ 1983 (2012).

¶4     Because the original complaint included both state and federal claims, the case

was removed to federal district court pursuant to 28 U.S.C. § 1441 (2012).           Upon

removal, Warne and the town filed a motion to dismiss for failure to state a claim for

relief under Fed. R. Civ. P. 12(b)(6). Before briefing was complete, the federal district

court accepted a stipulation by the parties whereby the federal law claims would be

voluntarily dismissed by Hall and the case would be remanded to state district court for

resolution of the state law claim for intentional interference with contractual obligations

against Warne.1

¶5     On remand to the state district court, the motion to dismiss under Fed. R. Civ. P.

12(b)(6) was converted into a motion to dismiss under the corresponding, though

differently-numbered state rule, C.R.C.P. 12(b)(5). In subsequent briefing, Warne and

the town urged the district court to review the motion to dismiss according to the

“plausible on its face” standard recently articulated by the United States Supreme Court

in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.

1 Two unrelated claims against the town were also included in the remand order and
later dismissed by the state district court. The plaintiff did not appeal the dismissal of
these claims, and thus neither is at issue before us.


                                            5
662 (2009), rather than the so-called “no set of facts” standard from Conley v. Gibson,

355 U.S. 41 (1957), cited favorably by this court in the past.         Without expressly

distinguishing the Conley from the Twombly/Iqbal standard of review, the district

court granted the defendants’ motion to dismiss, finding that the complaint contained

insufficient allegations that Warne in fact caused the conditions to be imposed on

Ensign’s proposed development plan that ultimately led Ensign to terminate its contract

with Hall.

¶6    The plaintiff was granted leave to file an amended complaint, which he did, to

include additional allegations that he had been informed that Warne exercised control

over land development matters and would have used any means at her disposal to

ensure that Ensign would never meet the requirements necessary to build, regardless of

what had been approved by the town board. The defendants renewed their motion to

dismiss for failure to state a claim, which the district court again granted, finding that

while the amended complaint provided additional allegations supporting a conclusion

that Warne possessed the authority and intent to block Ensign’s development plan, it

lacked allegations of Warne’s specific conduct causing Ensign’s breach. Subsequently,

the district court also awarded attorney fees in favor of the defendants.

¶7    On Hall’s appeal of the dismissal of his claim for contractual interference, the

court of appeals reversed, finding itself bound by this court’s precedent relying on

Conley’s “no set of facts” standard and, therefore, rejecting Warne’s proposal to

examine the complaint under the Twombly/Iqbal “plausible on its face” standard.

Under the Conley standard, the court of appeals concluded that the complaint sufficed


                                            6
to state a claim for relief and, more specifically, that Hall’s allegations to the effect that

Warne possessed the authority and intent to block Ensign’s development plan and that

she had exercised that authority to impose conditions despite the town board’s prior

approval of Ensign’s plan sufficiently pled that Warne caused Ensign to terminate its

contract with Hall. The court of appeals therefore also reversed the district court’s

award of attorney fees.

¶8     Warne petitioned this court for further review by writ of certiorari.

                                             II.

¶9     In Bell Atlantic Corp. v. Twombly, in addressing the proper standard for

pleading an antitrust conspiracy through allegations of parallel conduct, the United

States Supreme Court explicated the pleading standard of Federal Rule of Civil

Procedure 8 in greater detail than it had done in at least a half-century, giving particular

emphasis to the “plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

relief.’” 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). In that context, the

Court stated that the factual allegations of the complaint must be enough to raise a right

to relief “above the speculative level,” id., and provide “plausible grounds to infer an

agreement,” id. at 556. Had there been any doubt, two years later, in Ashcroft v. Iqbal,

the Court made clear that Twombly’s “plausibility standard” was in no way limited to

the antitrust conspiracy context in which it had been articulated, but rather represented

a “construction of Rule 8,” Iqbal, 556 U.S. 662, 678–80 (2009), which governs the

pleading standard “in all civil actions and proceedings in the United States district

courts,” id. at 684. Quoting liberally from its earlier opinion in Twombly, the Court in


                                              7
Iqbal characterized that standard as being underlain by two working principles: First,

“the tenet that a court must accept as true all of the allegations contained in a complaint

is inapplicable to legal conclusions,” id. at 678, and second, “only a complaint that states

a plausible claim for relief survives a motion to dismiss,” id. at 679.

¶10    The Court derived its “plausibility standard” from Rule 8 as it then existed,

without feeling compelled to either amend the language of the rule or overturn any of

the Court’s prior interpretations, Twombly, 550 U.S. at 569 n.14, instead characterizing

the Twombly plaintiffs’ main argument against this interpretation as its “ostensible

conflict” with an isolated statement in the Court’s earlier construction in Conley v.

Gibson, 355 U.S. 41 (1957), Twombly, 550 U.S. at 560–61. As the Court explained, when

it spoke (some fifty years earlier in Conley) not only of the need for fair notice of the

grounds for entitlement to relief, but also of “the accepted rule that a complaint should

not be dismissed for failure to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to

relief,” id. at 561 (quoting Conley, 355 U.S. at 45–46), the “accepted rule” to which it

referred was a rule that “once a claim has been stated adequately, it may be supported

by showing any set of facts consistent with the allegations in the complaint,” id. at 563.

While the Court openly conceded that the “no set of facts” passage of Conley could be

read in isolation as saying that any statement revealing the theory of the claim would

suffice unless its factual impossibility could be shown from the face of the pleadings,

and that many courts had understood it precisely that way, id. at 561, in context, Conley

“described the breadth of opportunity to prove what an adequate complaint claims, not


                                              8
the minimum standard of adequate pleading to govern a complaint’s survival,” id. at

563.

¶11    Like many federal courts and other state courts, this court took Conley’s “no set

of facts” language, at least ostensibly, at face value. As the court of appeals rightly

noted, this court has a long, and continuous, tradition of repeating, in reliance on

Conley, that motions for dismissal are looked upon with disfavor and will be granted

only if it appears beyond doubt that the plaintiff can prove no set of facts in support of a

claim that would entitle the plaintiff to relief. See, e.g., Qwest Corp. v. Colo. Div. of

Prop. Taxation, 2013 CO 39, ¶ 12, 304 P.3d 217, 221; Sprott v. Roberts, 390 P.2d 465, 467

(Colo. 1964) (quoting Conley’s “no set of facts” passage for the first time in a concurring

opinion, while noting that “[t]his expresses the recognized way to test the sufficiency of

a claim, and it has been applied in a legion of cases in the lower federal courts”). In fact,

our reliance on the federal courts for our interpretation of the pleading standards of our

own Rule 8 can be traced back even before Conley, virtually to the initial replacement of

our former Code of Civil Procedure by the modern Rules of Civil Procedure. See

People ex rel. Bauer v. McCloskey, 150 P.2d 861, 863 (Colo. 1944) (citing Eberle v.

Sinclair Prairie Oil Co., 35 F. Supp. 296, 297 (E.D. Okla. 1940), aff'd, 120 F.2d 746 (10th

Cir. 1941); Sparks v. England, 113 F.2d 579, 582 (8th Cir. 1940); Leimer v. State Mut. Life

Assurance Co. of Worcester, Mass., 108 F.2d 302, 306 (8th Cir. 1940) (subsequently relied

on by Conley, 355 U.S. at 45–46 n.5, for its characterization of the “accepted rule”)).

¶12    The question before us today is therefore less one of whether we will abandon

the Conley pleading standard in favor of the Twombly/Iqbal standard than whether


                                             9
our pleading standard has always represented an attempt to mirror the accepted federal

construction of the virtually identical federal pleading rules, rather than to adopt the

particular interpretation of the corresponding federal rule that was prevalent at the

time. For a number of reasons, in the absence of some compelling justification unique

to the history or practice of this jurisdiction, we have always considered it preferable to

interpret our own rules of civil procedure harmoniously with our understanding of

similarly worded federal rules of practice. See Leaffer v. Zarlengo, 44 P.3d 1072, 1080

(Colo. 2002) (federal cases interpreting federal rules provide “highly persuasive

guidance” when interpreting identical state rules); Faris v. Rothenberg, 648 P.2d 1089,

1091 n.1 (Colo. 1982). We see no reason to abandon that philosophy or approach today.

¶13    As a general matter, except as required by the Supremacy Clause of the Federal

Constitution, we are clearly not bound to accept the United States Supreme Court’s

understanding of language susceptible of more than one reasonable interpretation, and

for various reasons we have, on occasion, deviated in our construction of similarly

worded constitutional provisions, statutes, and rules. However, quite apart from the

fact that a considered interpretation by the Supreme Court, applying rules of

construction equally acceptable in this jurisdiction, will virtually always be worthy of

serious consideration, as we have previously observed, simply disagreeing with the

Supreme Court about the meaning of the same or similar provisions appearing in both

federal and state law risks undermining confidence in the judicial process and the

objective interpretation of codified law. See Curious Theatre Co. v. Colo. Dep't of Pub.

Health & Env't, 220 P.3d 544, 551 (Colo. 2009). This concern is only heightened when


                                            10
the disagreement in question reflects our resistance to the Supreme Court’s

determination that our understanding of one of its prior pronouncements has in fact

been mistaken. Cf. Ingold v. AIMCO/Bluffs, L.L.C. Apartments, 159 P.3d 116, 123–25

(Colo. 2007) (overturning prior decision relying on federal caselaw subsequently

repudiated by the United States Supreme Court).

¶14    In light of our unequivocal statements of attribution in the past, we think it

disingenuous to suggest that our understanding of the pleading requirements of our

own rules was not directly borrowed from the prevailing interpretation of the

corresponding federal rules, by both the lower federal courts and ultimately the

Supreme Court itself. Of course, were we to conclude that our reliance on this federal

interpretation had become so much a part of the fabric of state practice that the benefit

of retaining it unaltered would outweigh the benefits of harmonizing the construction

of identical federal and state rules of civil procedure, we could avoid the tension created

by disparate interpretations of identical rules by simply amending our rule to expressly

codify a “no set of facts” standard. We do not, however, find that to be the case.

¶15    The desirability and importance of procedural uniformity in our unique, federal

form of government has been a critical factor not only in the development of federal

rules capable of serving as a model for the states, but also for our own decision to adopt

a version of the federal rules and construe them accordingly. It cannot seriously be

disputed that the Colorado Rules of Civil Procedure were modeled almost entirely after

the corresponding federal rules, with the principal goal of establishing uniformity

between state and federal judicial proceedings in this jurisdiction. See C.R.C.P. app. D


                                            11
at 427, Colo. Stat. Ann. vol. 1 (Supp. 1941) (“With the hope that procedure might be

adopted in Colorado following as far as practicable the new federal rules, so that a

Colorado lawyer would be equally at home in the courts of the United States and those

of Colorado, the Colorado Bar Association in September, 1938, authorized the

appointment of a Committee to effectuate that reform.”); see also Thomas Keely, How

Colorado Conformed State to Federal Civil Procedure, 16 F.R.D. 291 (1954) (authored by

the Chairman of the Colorado Supreme Court Rules Committee).

¶16    Far from a novel concept, the prevailing policy in this country has been to favor

procedural uniformity between state and federal court practice virtually since the

founding of our Union. Beginning with its adoption of the so-called “Conformity Act”

in 1789, Congress required lower federal courts to largely apply the procedural law of

the state in which they were located. Act of Sept. 29, 1789, ch. 21, § 2, 1 Stat. 93, 93; see

also 4 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1002 (3d

ed. 2002) (titled, “History of Federal Procedure Under Statute”). While the Conformity

Act’s localized approach to federal procedure ultimately proved problematic, it was

replaced by the Federal Rules of Civil Procedure, which were intended to facilitate

state-federal uniformity by serving as a singular, authoritative model for states to

follow.   See Report of the Committee on Judicial Administration and Remedial

Procedure, reprinted in Report of the Thirty-Fifth Annual Meeting of the American Bar

Association at 434–35 (1912) (resolving to adopt rules of civil procedure for use in

federal courts and “as a model”); see also Edson R. Sunderland, The Grant of

Rule-Making Power to the Supreme Court of the United States, 32 Mich. L. Rev. 1116,


                                             12
1122 (1934) (authored by one of the eventual drafters of the Federal Rules) (“[T]he

primary purpose [of the Federal Rules project] . . . was the attainment of local

uniformity in trial court practice between the state and federal courts.”).

¶17    Beyond the convenience and practical benefits of permitting practicing attorneys

to move effortlessly from one forum to another, both this court and the Supreme Court

have long emphasized the undesirability of having vastly different outcomes result

from nothing more than a choice of forums. See, e.g., Erie R. Co. v. Tompkins, 304 U.S.

64, 77–78 (1938); AE, Inc. v. Goodyear Tire & Rubber Co., 168 P.3d 507, 511 (Colo. 2007)

(“Colorado’s policy is to discourage . . . forum shopping.”). While state courts are

generally free to adopt procedural rules different from those governing federal

proceedings, but see Brown v. W. Ry. of Ala., 338 U.S. 294, 298 (1949) (state court not

permitted to dismiss federal law claim under strict local rule of pleading), the more

outcome-determinative any specific disparity between state and federal rules may be,

the more undesirable that disparity becomes. In this respect, there can be little question

that the difference between a rule of pleading that effectively permits reliance on the

compulsory process available in civil actions to discover whether grounds for the action

exist in the first place and another that effectively bars such reliance without being able

to first allege plausible grounds for relief can be extremely outcome-determinative. One

important benefit of uniformity in federal and state procedures has been and continues

to be the reduction of forum shopping.

¶18    In addition to the clear importance we have identified in maintaining a

substantial degree of procedural uniformity between state and federal practice, we also


                                            13
do not view the plausibility standard described by the Supreme Court as effecting a

meaningful departure from the direction our interpretations and amendments have

taken in light of the existing realities of modern practice. Just as the Supreme Court

observed that a good many judges and commentators have balked at taking the literal

terms of the Conley passage as a pleading standard, Twombly, 550 U.S. at 562–63 (citing

numerous examples of Conley’s “no set of facts” language being “questioned, criticized,

and explained away” by judges and scholars, alike), we have at times found it

problematic to accept factual allegations that appear too conclusory, and on at least one

occasion have, without openly criticizing the “no set of facts” standard, simply found a

complaint insufficient to state a claim, for the reason that it merely asserted a theory

without alleging facts which, if proved, would satisfy the elements of the claim, see

Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011) (favorably citing Western

Innovations, Inc. v. Sonitrol Corp., 187 P.3d 1155, 1158 (Colo. App. 2008) (itself relying

on Twombly, 550 U.S at 555–56)); see also Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d

377, 385 (Colo. 2001) (predating Twombly) (Mullarky, C.J., joined by Rice and Coats, JJ.,

concurring in part and dissenting in part) (“[T]he Van Wyks’ conclusory allegations of

unreasonableness fail to support a nuisance claim and thus, the motion to dismiss was

properly granted.”).

¶19   Similarly, just as the Supreme Court in Twombly referenced the costs of modern

litigation and the inadequacy of discovery and case management alone to weed out

groundless complaints as support for its decision to finally correct the widespread

misinterpretation of Conley, see Twombly, 550 U.S. at 558–59; see also Iqbal, 556 U.S. at


                                           14
678–79 (“Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with

nothing more than conclusions.”), we have similarly identified a growing need, and

effort in our rules, to expedite the litigation process and avoid unnecessary expense,

especially with respect to discovery, see DCP Midstream, LP v. Anadarko Petroleum

Corp., 2013 CO 36, ¶ 27, 303 P.3d 1187, 1194; see also Richard P. Holme, New Pretrial

Rules for Civil Cases—Part II: What Is Changed, 44 Colo. Law. 111 (July 2015)

(discussing 2015 amendments to the Colorado Rules of Civil Procedure, which were

“designed to significantly reduce the cost of and delays in litigation and to create a new

culture for the handling of lawsuits”); id. at 111 (explaining that one of the primary

influences of the 2015 amendments were proposed amendments to the federal rules

which were later adopted). In light of our recent ruling in Antero Resources Corp. v.

Strudley, 2015 CO 26, ¶¶ 19–26, 347 P.3d 149, 155–57, to the effect that the federal rules,

in one particular regard, authorize a trial court to eliminate frivolous claims and

defenses beyond what is currently authorized by our rules, the effectiveness of the

“plausibility standard” in weeding out groundless complaints at the pleading stage

may take on an even greater practical significance in this jurisdiction than in the federal

courts.

¶20       Finally, in addition to his other arguments for not accepting the plausibility

standard of Twombly and Iqbal as the correct interpretation of our own Rule 8, Hall

asserts that, in fact, the state and federal rules are not similar at all and that material

differences in the provisions of the two rules make a parallel interpretation of our rule

untenable. Hall refers to language in subsection (e)(1) of the rule, which finds no analog


                                            15
in the federal rule.    Compare C.R.C.P. 8(e)(1), with Fed. R. Civ. P. 8(d)(1).          That

subsection indicates, in relevant part, that when a pleader is without direct knowledge,

allegations may be made upon information and belief, and that pleadings otherwise

meeting the requirements of the rules shall not be considered objectionable “for failure

to state ultimate facts as distinguished from conclusions of law.” C.R.C.P. 8(e)(1).

¶21    Even without express authorization in the language of Federal Rule 8, federal

courts had long understood it to permit pleading based on information and belief, and

they continue to do so following Twombly and Iqbal. See generally 5 Charles Alan

Wright & Arthur R. Miller, Federal Practice & Procedure § 1224 & nn.1–1.75 (3d ed. 2002

& 2015 Supp.) (titled, “Statement of the Claim—Pleading on Information and Belief”)

(gathering cases and characterizing allegations on information and belief as a “practical

necessity”). Far from its conflicting with the plausibility standard, federal courts have

observed that pleading based on information and belief may, in fact, be useful where

the facts giving rise to a plausible claim are peculiarly within the possession and control

of the defendant, or where the belief is based on factual information that makes the

inference of culpability plausible. See, e.g., Arista Records, LLC v. Doe 3, 604 F.3d 110,

120 (2d Cir. 2010); see also 5 Wright & Miller, supra, § 1224 & n.7 (“Pleading on

information and belief is a desirable and essential expedient when matters that are

necessary to complete the statement of a claim are not within the knowledge of the

plaintiff but he has sufficient data to justify interposing an allegation on the subject.”).

¶22    With regard to C.R.C.P. 8(e)(1)’s reference to “ultimate facts” and “conclusions of

law,” although this reference might on first glance appear to bear on the requirement of


                                              16
Twombly/Iqbal to allege plausible grounds for relief, in reality the term “ultimate

facts” appears as a term of art, with reference to distinctions between “evidentiary

facts,” “ultimate facts,” and “conclusions of law,” having significance for pleading

under the former code pleading system in this jurisdiction, but not for pleading under

the scheme of the rules. See McCloskey, 150 P.2d at 862 (addressing C.R.C.P. 8(e)(1)

and explaining that it served to distinguish our rules from code pleading rules); see also

John Denison, Code Pleading in Colorado §§ 312–13 (1936) (authored by former Chief

Justice of Colorado) (“It is said that ultimate fact is a conclusion by reasoning on

evidentiary facts, and that evidentiary fact is acquired by the senses, i.e., sight, hearing,

taste, etc.”).

¶23     As the original committee comment explained, C.R.C.P. 8(e)(1)’s unique

language—with regard to both pleading based on “information and belief” and

pleading “ultimate facts”—was not added to distinguish our rule from the

corresponding rule, but rather to “clarify the [rule’s] meaning and bring it in line with

the majority of the Federal decisions.” C.R.C.P. 8(e)(1) note, Colo. Stat. Ann. vol. 1

(Supp. 1941).

¶24     Because we understand our prior cases as reflecting the merit of interpreting our

rules of civil pleading harmoniously with the corresponding federal rules, wherever

that can be accomplished without violating our own interpretative rules or interfering

with important state policy, and because we find the interpretative gloss added by the

Supreme Court in Twombly and Iqbal to be very much in line with the direction our

rule-making has taken and the current needs of the civil justice system in this


                                             17
jurisdiction, we join those other states already embracing the plausibility standard

articulated in those cases as a statement of the pleading requirements of their own

analogs to Federal Rule 8.

                                            III.

¶25    A plaintiff cannot be entitled to relief on a claim of intentional interference with

contract unless he alleges and proves that the defendant intentionally and improperly

induced a party to breach the contract or improperly made it impossible for a party to

perform.2 Krystkowiak v. W.O. Brisben Cos., 90 P.3d 859, 871 (Colo. 2004). Because it is

so clearly dependent upon context and circumstances, we have never attempted to

rigidly define “improper” for all purposes of interference with contract, but we have

favorably referenced the Restatement (Second) of Torts § 767 (Am. Law Inst. 1965), in

this regard and its enumeration of potentially relevant factors, which includes the

nature of the actor’s conduct, the actor’s motive, the interests of the other with which

the actor’s conduct interferes, the interests sought to be advanced by the actor, the social

interests in protecting the freedom of action of the actor and the contractual interests of

the other, the proximity or remoteness of the actor’s conduct to the interference, and the

relation between the parties. See Trimble v. City & Cty. of Denver, 697 P.2d 716, 726

(Colo. 1985). Evaluated in terms of the plausibility standard and its disregard of legal

conclusions, whatever else the amended complaint may or may not have adequately


2 Because Warne withdrew her argument that Hall failed to allege with adequate
specificity the willful and wanton conduct required to overcome a defense of
governmental immunity, see § 24-10-110(5)(a), (b), C.R.S. (2015), any separate statutory
pleading requirements concerning willful and wanton conduct are not before us.


                                            18
alleged, it failed to sufficiently allege that Warne acted improperly in inducing a breach

or making performance of the contract between Hall and Ensign impossible.

¶26   While the complaint did not allege the specific terms of the purchase agreement

between Hall and Ensign, the entirety of its allegations made clear that the agreement

contemplated the town’s approval of a site development plan before the property could

be used for the purpose for which Ensign desired its purchase. The thrust of Hall’s

complaint, therefore, was that Warne induced a breach of the purchase agreement or

effectively made the purchase impossible by improperly imposing conditions on the

plan that were not agreeable to Ensign. The allegations of the complaint bearing on the

question of the wrongfulness or impropriety of Warne’s conduct were of two broad,

and at times overlapping, kinds: allegations that Warne’s actions were motivated by

malice toward Hall and allegations that the conditions and the manner of their

imposition were unauthorized, unlawful, or unreasonable.

¶27   Much as was the case in both Twombly and Iqbal, the allegations of Hall’s

complaint were insufficient to state a claim because a number of them were conclusory

and therefore not at all entitled to an assumption that they were true, and because the

remainder insufficiently alleged plausible grounds for relief, largely because they were

equally consistent with non-tortious conduct. See Iqbal, 556 U.S. at 680–84; Twombly,

550 U.S. at 564–70. The broad allegations that Warne’s actions were motivated by

malice or animosity toward Hall were unchallengeably conclusory allegations of a kind

elsewhere held to be incapable of supporting a plausible claim for relief. See, e.g.,

Emmons v. City Univ. of N.Y., 715 F. Supp. 2d 394, 425 (E.D.N.Y. 2010) (allegation that


                                           19
defendant acted out of “bad faith, self-interest, malice, and personal animosity” deemed

conclusory and insufficient to support a claim for tortious interference with contract); cf.

Iqbal, 556 U.S. at 686 (bald allegation of discriminatory intent held insufficient to

support unlawful discrimination claim). Similarly, the allegations that the conditions

allegedly imposed by mayoral order were unlawful, arbitrary, or unreasonable, without

reference to any particular law prohibiting them or any factual allegation specifying

how or why they should be considered unreasonable, were bare, conclusory assertions.

Even alleging that the conditions were disproportionate to any impact Ensign would

have on the town, without alleging the reasons why and manner in which the

conditions were disproportionate, could only be considered formulaic or conclusory

and therefore not entitled to be assumed true. In any event, without factual allegations

establishing that the imposition of disproportionate conditions exceeded Warne’s

authority or was otherwise prohibited, the complaint’s conclusory allegation of

disproportionality fails to plausibly suggest improper conduct, even if we were to

assume its truth. Cf. Twombly, 550 U.S. at 566 (allegation of parallel conduct held

insufficient to support antitrust claim requiring proof of an agreement).

¶28    To the extent the complaint included allegations of specific examples of conduct

that could be taken as previous exhibitions of “animosity” toward Hall, like Warne’s

asking how and for how much he acquired the property in question and opposing

Ensign’s plan despite its having had the support of the town board, these allegations

were, as was similarly the case in both Twombly and Iqbal, equally consistent with

non-tortious explanations for her conduct, namely attempting to fulfill her duty to the


                                            20
town by acting in its best interests. See id. at 567–68 (while alleged parallel conduct by

antitrust defendants was consistent with an illegal agreement, it was equally consistent

with each defendant acting independently according to its own economic interest);

Iqbal, 556 U.S. at 680–81 (discrimination complaint against government officials held

insufficient where there was an “obvious alternative explanation” for the challenged

conduct). As the Supreme Court itself has emphasized, scrutinizing a complaint for

allegations that are not as consistent with proper conduct may be particularly important

with regard to the actions of government officials, who “must be neither deterred nor

detracted from the vigorous performance of their duties.” See Iqbal, 556 U.S. at 685–86.

Even assuming, as Hall was allegedly advised, that Warne stated she was not going to

allow Ensign to do business in Gilcrest, and taking as true the belief of a town official

that Warne would have used any means at the disposal of the town to ensure that

Ensign would never meet the requirements to build, those alleged statements do not

plausibly suggest malice towards Hall any more than, or perhaps even as much as,

merely an objection to doing business with Ensign, whether justified on legitimate

grounds or not. Land use decisions can clearly involve a complex array of policy

considerations as well as heated personal interactions, and therefore in the absence of

factual allegations plausibly suggesting Warne was acting out of unrelated personal

animus towards Hall or to the detriment, rather than the benefit, of the town for

personal reasons, even angrily opposing Ensign’s development plan does not plausibly

allege impropriety.




                                           21
                                            IV.

¶29    In his answer brief, the plaintiff requests that he be permitted to amend his

complaint in the event his complaint is deemed insufficient according to the plausibility

standard. Rule 15(a) of our Rules of Civil Procedure provides that leave to file amended

pleadings “shall be freely given when justice so requires.” Although our opinion today

does not result in an amendment to the language of our rules of procedure, it clearly

signals a shift in the considerations according to which a motion to dismiss is to be

evaluated and, therefore, a change in the terms in which a complaint may have to be

expressed to avoid dismissal. Because the plaintiff has not until today had notice of the

terms in which his claim must be pled, justice requires that he be given an opportunity

to amend the allegations of this claim for relief before any ruling on a motion to dismiss

for failure to state a claim. Only if the plaintiff fails to overcome a motion to dismiss his

newly amended complaint will an order of attorney fees become appropriate.

                                             V.

¶30    Because the plaintiff’s complaint, when evaluated in light of the more recent and

nuanced analysis of Twombly and Iqbal, fails to state a plausible claim for relief, the

judgment of the court of appeals finding the complaint to be sufficient is reversed, and

the matter is remanded with instruction to permit further proceedings consistent with

this opinion.

JUSTICE GABRIEL dissents, and JUSTICE MÁRQUEZ and JUSTICE HOOD join in
the dissent.




                                             22
JUSTICE GABRIEL, dissenting.

¶31    Today, the majority jettisons a rule that has stood the test of time for over fifty

years, based largely on an asserted preference for maintaining uniformity with federal

court interpretations of analogous federal rules of procedure. In reaching this result,

the majority misperceives the existing state of the law in Colorado and grafts onto

C.R.C.P. 8 a “plausibility” requirement that the rule does not contain and that other

courts have correctly recognized results in a loss of clarity, stability, and predictability.

Even more concerning, the majority’s preferred standard allows a single district judge,

at the incipient stages of a case, to weigh what the judge speculates the plaintiff will

plausibly be able to prove, based on the individual judge’s subjective experience and

common sense, and then to decide whether the plaintiff’s action is viable.

¶32    I cannot subscribe to such a standard, which I believe will deny access to justice

for innumerable plaintiffs with legitimate complaints.             Indeed, the majority’s

application of its newly adopted standard in this case demonstrates the overreaching

nature and ultimate unfairness of that standard.

¶33    Accordingly, I respectfully dissent.

                   I. Current Law and the Plausibility Standard

¶34    As the majority correctly observes, in Conley v. Gibson, 355 U.S. 41, 45–46 (1957),

abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007), the United States

Supreme Court concluded that a complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove “no set of facts” in

support of his or her claim. Maj. op. ¶ 1. The majority also correctly observes that this


                                              1
standard was first cited in an opinion of this court over fifty years ago. See Sprott v.

Roberts, 390 P.2d 465, 467 (Colo. 1964) (Frantz, J., concurring in the result). We have

consistently adhered to that standard, without apparent difficulty or controversy, ever

since.

¶35      Notwithstanding this fifty-year history, the majority now assails the Conley

standard.     In doing so, however, the majority does not acknowledge either our

long-established rules of notice pleading or the well-settled principles that inform how

the Conley standard has been implemented in practice.

¶36      It has been settled since before Conley that a plaintiff need not set out in detail

the facts on which his or her claim is based. See Conley, 355 U.S. at 47. To the contrary,

both Fed. R. Civ. P. 8(a)(2) and C.R.C.P. 8(a)(2) require only a “short and plain

statement” of the claim that will give the defendant fair notice of what the plaintiff’s

claim is and the grounds on which it rests. Conley, 355 U.S. at 47; Smith ex rel. Leech v.

Mills, 225 P.2d 483, 484 (Colo. 1950); see also Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of

the claim showing that the pleader is entitled to relief.’ Specific facts are not necessary;

the statement need only ‘give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’”) (quoting Fed. R. Civ. P. 8(a)(2); Twombly, 550 U.S. at

555).

¶37      It is likewise settled that in considering a motion to dismiss for failure to state a

claim, a court assesses the “well-pleaded” factual allegations of a complaint and ignores

conclusory allegations or allegations purporting to assert principles of law. See Ruiz v.


                                               2
McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) (noting that for purposes of

Fed. R. Civ. P. 12(b)(6), all well-pleaded facts, as distinguished from conclusory

allegations, must be taken as true); Fernandez-Montez v. Allied Pilots Ass’n, 987 F.2d

278, 284 (5th Cir. 1993) (“[C]onclusory allegations or legal conclusions masquerading as

factual conclusions will not suffice to prevent a motion to dismiss.”); Gray v. Univ. of

Colo. Hosp. Auth., 2012 COA 113, ¶ 37, 284 P.3d 191, 198 (noting that conclusory

allegations are insufficient to defeat a C.R.C.P. 12(b)(5) motion to dismiss for failure to

state a claim); Vickery v. Evelyn V. Trumble Living Tr., 277 P.3d 864, 869 (Colo. App.

2011) (noting that for purposes of a C.R.C.P. 12(b)(5) motion, courts must accept all

well-pleaded facts as true but are not required to accept as true legal conclusions

couched as factual allegations).

¶38    These principles, which are central to the Conley standard, recognize the

practical limitations on how much a plaintiff can reasonably be required to plead,

particularly given that the plaintiff often lacks information that is in the defendant’s

exclusive possession and has no means of obtaining that information absent discovery.

See Conley, 355 U.S. at 47–48 (noting that (1) the civil rules’ simplified notice pleading

standard was made possible by the liberal opportunity for discovery and other pretrial

procedures established by the rules to allow the parties to flesh out more precisely the

basis of a plaintiff’s claim and (2) “[t]he Federal Rules reject the approach that pleading

is a game of skill in which one misstep by counsel may be decisive to the outcome and

accept the principle that the purpose of pleading is to facilitate a proper decision on the

merits”).


                                            3
¶39   As amicus curiae Colorado Plaintiff Employment Lawyers Association observes,

this kind of “information asymmetry” is especially acute in cases in which a plaintiff

must prove the defendant’s motives and state of mind.        See Br. of Amicus Curiae

Colorado Plaintiff Employment Lawyers Ass’n, at 6–7. See generally Arthur R. Miller,

From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil

Procedure, 60 Duke L.J. 1, 43–46 (2010) (describing in detail the information asymmetry

problem posed by Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), particularly in

cases involving questions of intent and malice). Indeed, as discussed more fully below,

the information asymmetry in this case underlies the majority’s conclusion that Hall’s

complaint should be dismissed for failure to state a claim on which relief can be

granted. Maj. op. ¶¶ 25–28.

¶40   The foregoing principles do not, however, allow a plaintiff to allege a claim and

then rely on compulsory process to discover whether grounds for the action existed in

the first place, as the majority suggests. See maj. op. ¶ 17. As noted above, a complaint

must contain and is assessed based on its “well-pleaded allegations,” and not on any

conclusory allegations or allegations of law. Moreover, all allegations of a complaint

(and any other pleading) are subject to the requirements of C.R.C.P. 11, which requires

all pleadings of a party represented by an attorney to be signed by at least one attorney

of record, and which further provides:

      The signature of an attorney constitutes a certificate by him that he has
      read the pleading; that to the best of his knowledge, information, and
      belief formed after reasonable inquiry, it is well grounded in fact and is
      warranted by existing law or a good faith argument for the extension,
      modification, or reversal of existing law, and that it is not interposed for


                                           4
       any improper purpose, such as to harass or to cause unnecessary delay or
       needless increase in the cost of litigation.

Accordingly, a plaintiff may not properly make baseless allegations and then later rely

on discovery tools to try to find evidence to support such claims.

¶41    For all of these reasons, I believe that the Conley standard, as it has been refined

over time, has worked precisely as it was intended. Neither trial nor appellate courts in

Colorado have had any difficulty in applying this standard. Nor have I seen any

evidence that this standard has contributed to a flood of frivolous cases overwhelming

our legal system, or that courts properly exercising their ample case management

authority have had any difficulty in weeding out unmeritorious claims or in protecting

defendants from needless expense and harassment. Accordingly, I am not persuaded

that the existing standard has posed a problem in need of a solution, much less the sea

change in pleadings practice that I believe the majority opinion will effect.

¶42    Notwithstanding the foregoing, the majority chooses to adopt the Twombly and

Iqbal plausibility standard, see Iqbal, 556 U.S. at 679 (noting that to survive a motion to

dismiss, a complaint must state a “plausible” claim for relief); Twombly, 550 U.S. at 556

(same), principally based on an asserted need for uniformity between how federal

courts construe Fed. R. Civ. P. 8 and how Colorado courts construe the Colorado

analogue, C.R.C.P. 8. For a number of reasons, I am unpersuaded.

¶43    First, although we look to federal decisions interpreting federal rules for

guidance, we are not bound to interpret our rules of civil procedure in the same way

that the United States Supreme Court interprets its rules.        See Garcia v. Schneider



                                             5
Energy Servs., Inc., 2012 CO 62, ¶ 10, 287 P.3d 112, 115. This is particularly true when,

as here, the language of our respective rules differs.

¶44    As pertinent here, both Fed. R. Civ. P. 8 and C.R.C.P. 8 require “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2); C.R.C.P. 8(a)(2). Both rules also require that each allegation of a pleading be

“simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1); C.R.C.P. 8(e)(1). Unlike its federal

counterpart, however, the Colorado rule proceeds to allow a pleader who lacks direct

knowledge to make allegations “upon information and belief.” C.R.C.P. 8(e)(1). This

difference suggests to me a preference in the Colorado rules for a more lenient pleading

standard than the “plausibility” standard adopted in Twombly, 550 U.S. at 556, 570, and

expanded in Iqbal, 556 U.S. at 678.

¶45    Second, the Twombly and Iqbal “plausibility” standard is neither set forth in nor

required by Fed. R. Civ. P. 8 or Fed. R. Civ. P. 12(b)(6) (governing motions to dismiss for

failure to state a claim on which relief can be granted). Nor do I perceive any language

in Colorado’s corresponding provisions, C.R.C.P. 8 or C.R.C.P. 12(b)(5), that supports

the adoption of such a standard. To the contrary, I believe that such a standard is

inconsistent with the purposes of the foregoing rules generally and with several of our

pleading rules in particular.

¶46    C.R.C.P. 8, C.R.C.P. 12(b)(5), and their federal counterparts require only fair

notice of a claim, and they envision the use of proper case management and other

devices set forth in the civil rules to clarify and address the merits of that claim. See,




                                             6
e.g., Conley, 355 U.S. at 47–48; Smith ex rel. Leech, 225 P.2d at 484. The plausibility rule

is contrary to these purposes.

¶47    Likewise, the “factual enhancement” that the plausibility standard requires, see

Twombly, 550 U.S. at 557, is inconsistent with (1) C.R.C.P. 8(a)(2), which mandates only

“a short and plain statement of the claim showing that the pleader is entitled to relief,”

see Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 605 (Minn. 2014) (noting that the

plausibility standard raises the bar for claimants and thereby conflicts with Minnesota’s

counterpart to C.R.C.P. 8, which preferred non-technical, broad-brush pleadings), and

(2) C.R.C.P. 8(e)(2), which allows for hypothetical pleading.

¶48    And the “factual enhancement” requirement is inconsistent with C.R.C.P. 9,

which sets forth when certain matters must be pleaded with additional specificity or

particularity, and which expressly provides that “[m]alice, intent, knowledge, and other

condition of mind of a person may be averred generally.” C.R.C.P. 9(b). Under a

plausibility standard, all matters, including matters relating to a person’s state of mind,

arguably must be pleaded with specificity, and this would be difficult, if not impossible,

when the information that the plaintiff needs to satisfy such an enhanced pleading

standard is within the defendant’s exclusive possession and control.            See Miller,

60 Duke L.J. at 43 (“It is uncertain how plaintiffs with potentially meritorious claims are

expected to plead with factual sufficiency without the benefit of some discovery,

especially when they are limited in terms of time or money, or have no access to

important information that often is in the possession of the defendant, especially when

the defendant denies access.”) (footnotes omitted). As a result, the plausibility standard


                                             7
will likely result in the disproportionate dismissal of meritorious claims, thereby closing

the courthouse doors to many deserving claimants when the pleading rules were, in

fact, designed to open the doors for them. See Twombly, 550 U.S. at 575 (Stevens, J.,

dissenting) (“Under the relaxed pleading standards of the Federal Rules, the idea was

not to keep litigants out of court but rather to keep them in. The merits of a claim

would be sorted out during a flexible pretrial process and, as appropriate, through the

crucible of trial.”).

¶49    Third, I believe that the “plausibility” standard is unworkable and gives far too

much authority to judges to dismiss claims, even before the defendant has been

required to answer the complaint, based on subjective and inherently speculative

factors. In Iqbal, 556 U.S. at 679, the Court explained what it meant by “plausible”:

“Determining whether a complaint states a plausible claim for relief will . . . be a

context-specific task that requires the reviewing court to draw on its judicial experience

and common sense.” See also Plausible, Webster’s Third New Int’l Dictionary (2002)

(defining “plausible,” in pertinent part, as “superficially worthy of belief : CREDIBLE”).

¶50    Such a standard, which is subjective on its face, allows motions to dismiss to turn

on the “judicial experience and common sense” of the particular judge who happens to

be assigned to the case. Moreover, such a standard requires the judge to speculate as to

the evidence that a plaintiff will likely be able to present and then to weigh that

presumed evidence—before the defendant has even submitted an answer to the

complaint—to decide whether a claim based on such evidence would be “plausible”

(itself an inherently amorphous concept).       See Webb v. Nashville Area Habitat for


                                            8
Humanity, Inc., 346 S.W.3d 422, 431–32 (Tenn. 2011) (“[T]he plausibility standard

incorporates an evaluation and determination of the likelihood of success on the

merits—a judicial weighing of the facts pleaded to see if they ‘plausibly’ present a claim

for relief—at the earliest stage of the proceedings, before a sworn denial is even

required.”).   In this regard, the “plausibility” standard approaches a summary

judgment test, albeit without any evidentiary record. Cf. Andersen v. Lindenbaum,

160 P.3d 237, 239 (Colo. 2007) (“To avoid summary judgment, the evidence presented in

opposition to such a motion must . . . be sufficient to demonstrate that a reasonable jury

could return a verdict for the non-moving party.”).

¶51    I cannot see how such a standard represents an advance over our present rule,

which requires courts to assess the well-pleaded allegations of the complaint to

determine whether, if true, such allegations set forth a viable claim for relief. To the

contrary, I agree with the Tennessee Supreme Court’s assessment that Twombly and

Iqbal have resulted in “a loss of clarity, stability, and predictability in federal pleadings

practice.” Webb, 346 S.W.3d at 431. I fear that the same outcome is now likely in

Colorado.

¶52    Fourth, in trumpeting the need for uniformity between the state and federal

standards, the majority suggests that adopting a plausibility standard is necessary to

expedite litigation and avoid unnecessary expense. See maj. op. ¶ 19. The majority,

however, does not adequately account for the case management tools that we have

recently implemented to achieve the majority’s desired ends. Specifically, although the

majority’s concern for expediting litigation and avoiding unnecessary costs, particularly


                                             9
with respect to discovery, is appropriate, we recently adopted significant amendments

to our rules of civil procedure to address these very concerns. See generally Richard P.

Holme, New Pretrial Rules for Civil Cases—Part II: What is Changed, 44 Colo. Law. 111

(July 2015) (discussing the series of amendments to the Colorado Rules of Civil

Procedure that became effective on July 1, 2015 and that were designed to reduce

significantly the costs and delays in litigation, particularly with respect to discovery

matters). I have every confidence in our trial judges’ abilities to implement these rules

to achieve the desired ends. I therefore see no reason to alter our longstanding pleading

rules, particularly in the context of this litigation as opposed to through the normal

rulemaking process, to try to achieve the same ends.

¶53   Finally, I am unconvinced by the majority’s suggestion that adopting the

plausibility standard is necessary to avoid the undesirability of having “vastly different

outcomes result from nothing more than a choice of forums.” Maj. op. ¶ 17. The federal

and Colorado standards have been different for nine years, and I have seen no evidence

to suggest that these different standards have resulted in a spike in forum-shopping or

in “vastly different outcomes” (although I would anticipate that under the federal

standard, some meritorious complaints likely have been dismissed).

¶54   For these reasons, I see no compelling reason to overturn more than fifty years of

precedent in order to adopt a plausibility standard that I believe is unworkable and

unfair. See Walsh, 851 N.W.2d at 604 (“The doctrine of stare decisis directs us to adhere

to our former decisions in order to promote the stability of the law and the integrity of

the judicial process.   We therefore require ‘a compelling reason’ to overrule our


                                           10
precedent. . . . [The defendant] has not presented a compelling textual reason to

overrule [the cases setting forth the prevailing pleading standards in Minnesota].”)

(quoting Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn. 2000)).

                                    II. Application

¶55    The overreaching nature and unfairness of the plausibility standard that I have

identified above are well demonstrated by the majority’s application of that standard in

this case.

¶56    The majority concludes that Hall’s complaint failed to sufficiently allege that

Warne acted improperly in inducing a breach or making performance of the contract

between Hall and Ensign impossible. Maj. op. ¶ 25. In reaching this conclusion, the

majority deems Hall’s allegations to be conclusory and sees no factual allegations

plausibly suggesting that Warne was acting out of unrelated personal animus toward

Hall or to the detriment, rather than the benefit, of the town for personal reasons. Id. at

¶¶ 27–28. I do not agree with the majority’s reading of Hall’s complaint.

¶57    To establish a claim for intentional interference with contract, a plaintiff must

prove that the defendant (1) was aware of a contract between two parties, (2) intended

that one of the parties breach the contract, and (3) induced the party to breach or make

it impossible for the party to perform the contract. Krystkowiak v. W.O. Brisben Cos.,

90 P.3d 859, 871 (Colo. 2004). In addition, the defendant must have acted “improperly”

in causing the result. Id.

¶58    To determine whether the defendant acted improperly, courts consider the

following factors:


                                            11
      (a) the nature of the actor’s conduct,

      (b) the actor’s motive,

      (c) the interests of the other with which the actor’s conduct interferes,

      (d) the interests sought to be advanced by the actor,

      (e) the social interests in protecting the freedom of action of the actor and
      the contractual interests of the other,

      (f) the proximity or remoteness of the actor’s conduct to the interference
      and

      (g) the relations between the parties.

Restatement (Second) of Torts § 767 (1979); accord Memorial Gardens, Inc. v. Olympian

Sales & Mgmt. Consultants, Inc., 690 P.2d 207, 210 & n.7 (Colo. 1984).

¶59   Here, Hall alleged, in substance, the following facts:

         Hall entered into a contract to sell certain property in the Town of
          Gilcrest to Ensign.

         In subsequent meetings with the Town Planner and the Town Board,
          the Town imposed a series of conditions on Ensign. These conditions
          were onerous, and many of them had no lawful basis either in the
          Town’s own ordinances or in any other applicable laws or regulations.

         In May and June 2007, the Town made additional baseless demands on
          Ensign. As a result, Ensign became increasingly frustrated and began
          to look elsewhere for its business expansion.

         At a July 16, 2007 meeting of the Town Board, which Warne, the
          Town’s mayor, attended, Hall explained that if the Town continued to
          demand more and more conditions of Ensign that were not tied to
          applicable law or regulations, then Ensign would withdraw from the
          contract to buy Hall’s property and find somewhere else to do
          business.

         The Board then unanimously approved Ensign’s site plan and
          application (Warne did not vote).


                                               12
         After this unanimous vote, Warne stormed out of the meeting room
          and stated that she was not going to allow Ensign to do business in
          Gilcrest.

         A former mayor and planning commission member stated that Warne
          exercised control over all land use matters and would have used any
          means at the Town’s disposal to ensure that Ensign would never meet
          the requirements necessary to build, regardless of what had been
          approved by the Board.

         Consistent with this statement, after the Board unanimously approved
          Ensign’s site plan and application, and notwithstanding the fact that
          Hall had advised the Board (and Warne) that further conditions would
          cause Ensign to terminate its contract with Hall, the Town imposed
          still more conditions on Ensign. These conditions again imposed
          requirements beyond those required by the Town code; they were not
          connected to, or were disproportionate to, any impact that Ensign’s
          operations would have had on the Town; and they were not
          reasonably related to the public health, safety, or welfare of the Town
          or its residents.

         As a result of these new requirements and exactions, Ensign
          terminated its contract with Hall, as it said it would do (and as Warne
          was advised it would do).

         Warne had previously exhibited animosity toward Hall, the additional
          exactions and conditions were imposed at Warne’s insistence and on
          her order, and Warne’s actions were motivated by malice toward Hall.

¶60   In my view, and as the division below concluded, Hall v. Town of Gilcrest,

No. 12CA0719, slip op. at 7–12 (Colo. App. Jan. 23, 2014), these allegations more than

adequately alleged the requisite elements of an intentional interference with contract

claim. Indeed, I would so conclude even were I to apply the plausibility standard.

¶61   Specifically, it appears undisputed that Hall properly alleged the existence of a

contract between himself and Ensign and that Warne knew of this contract. Hall has

also alleged specific facts to establish that Warne intended for Ensign to terminate this


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contract and that she either induced Ensign to breach the contract or made Ensign’s

performance impossible. For example, as noted above, Hall alleged that (1) Warne was

told that Ensign would terminate the contract if more conditions were imposed; (2) she

stated her intention to ensure that Ensign would not do business in Gilcrest; and

(3) knowing that Ensign would terminate the contract if further conditions were

imposed, she orchestrated the imposition of additional unreasonable (and legally

unfounded) conditions, which, in fact, induced Ensign to terminate its contract with

Hall.

¶62     Finally, Hall has sufficiently alleged that Warne’s conduct was improper. As

noted above, he alleged that after the Town Board had unanimously approved Ensign’s

site plan and application, Warne acted unilaterally to impose unprecedented and

unreasonable conditions that were inconsistent with the Town code, and Hall alleged

that Warne did so out of malice toward him and with the intent of ensuring that Ensign

would terminate its contract with him. In my view, such allegations are not at all

conclusory, and they clearly and sufficiently assert that Warne was acting out of

unrelated personal animus toward Hall, rather than for the Town’s benefit (the Town

Board, after all, had unanimously approved the deal).

¶63     Although the majority deems Hall’s allegations insufficient, it is not clear to me,

and the majority does not indicate, what more Hall could possibly have alleged. This

case reflects precisely the type of information asymmetry scenario discussed above, in

which a party is required to make allegations about another party’s state of mind.

Absent an ability to read Warne’s mind, Hall could do no more than plead conduct


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reflecting her improper motives, and he has done that with what I perceive to be ample

specificity.

¶64    In these circumstances, it is clear to me that Warne has received the reasonable

notice of the nature and basis of Hall’s claim to which she was entitled under C.R.C.P. 8.

It is equally clear to me that Hall has pleaded a viable intentional interference with

contract claim.   Indeed, as pleaded, the complaint sets forth what I view to be a

prototypical intentional interference case.

¶65    In holding otherwise, the majority has effectively granted Warne summary

judgment before she was even required to respond to the complaint and before giving

Hall a fair opportunity to conduct discovery to establish facts that are in Warne’s

exclusive possession and control. In doing so, I believe that the majority has denied

Hall the fair day in court to which he was entitled.

                                     III. Conclusion

¶66    For these reasons, I respectfully dissent.

I am authorized to state that JUSTICE MÁRQUEZ and JUSTICE HOOD join in this

dissent.




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