Sundine v. Harris et al

Filing 70

ORDER re: 44 MOTION to Dismiss Complaint for Lack of Jurisdiction, Or In The Alternative, To Stay On Abstinence Grounds filed by Brian Mills, Cliff Harris; the Court hereby ORDERS the parties to file supplemental briefs on or before May 8, 2012 (one brief per side); Whether this action should be dismissed on the ground of claim-splitting; Whether Defendants in this action are in privity with the defendants in the Bass action (for purposes of claim- splitting); and The effect, if any, on this action from (a) the settlement between the parties in the Bass action, and (b) the administrative closure of the Bass action; Each brief shall not exceed 12 pages, exclusive of attorney or party signature block(s) and the certificate of service, and shall comply with D.COLO.LCivR 10.1. No response or reply briefs will be permitted, by Judge William J. Martinez on 4/24/2012. (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-01204-WJM-CBS
CHERYL SUNDINE, individually and on behalf of others similarly situated,
Plaintiffs,
v.
CLIFF HARRIS, and
BRIAN MILLS,
Defendants.

ORDER DIRECTING FURTHER BRIEFING

This matter is before the Court on Defendants’ Motion to Dismiss Complaint for
Lack of Jurisdiction, or in the Alternative, to Stay on Abstinence Grounds (the “Motion”).
(ECF No. 44.) Plaintiffs have filed a Response (ECF No. 52), and Defendants have
filed a Reply (ECF No. 58).
In the Motion, Defendants argue that Plaintiffs should be precluded from
maintaining this action on the grounds of res judicata and collateral estoppel, or
alternatively that this action should be stayed on abstinence grounds. Defendants’
arguments are based on the existence of a similar case filed in this district in 2009,
Bass v. PJCOMN Acquisition Corp. et al., No. 09-1614-REB-MEH (the “Bass action”).
In the Bass action, Plaintiffs sought to amend their complaint in February 2011 to add
the above-named Defendants. After the U.S. Magistrate Judge assigned to the Bass

action issued a Recommendation that Plaintiffs’ motion to amend be denied, Plaintiffs
filed this separate action.
The Court concludes that further briefing is necessary on Defendants’ Motion.
Specifically, the parties’ briefing has not addressed the issue of whether this action
should be dismissed on the potentially applicable ground of claim-splitting, a doctrine
recognized by the Tenth Circuit. See, e.g., Katz v. Gerardi, 655 F.3d 1212, 1217-19
(10th Cir. 2011); Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 982
(10th Cir. 2002). The parties have also failed to sufficiently address a particular aspect
of the claim-splitting doctrine: whether defendants in the Bass action are in privity with
Defendants in this action. See Hartsel Springs Ranch, 296 F.3d at 987-88 (discussing
privity in context of claim-splitting); see also Pac. Frontier v. Pleasant Grove City, 414
F.3d 1221, 1230 (10th Cir. 2005) (discussing privity in related context). The Court will
require the parties to file supplemental briefs addressing these two issues.
The Court also notes that the Bass action has now been administratively closed
pending approval of the U.S. Bankruptcy Court for the District of Maryland of a
settlement entered into between the parties in the Bass action.1 Thus, the Court also
requests briefing from the parties addressing the effect, if any, on this action from (1)
the settlement between the parties in the Bass action, and (2) the administrative closure
of the Bass action.

1

The record in that action reflects that one of the Defendants in that action filed for
bankruptcy in the District of Maryland.

2

In accordance with the foregoing, the Court hereby ORDERS the parties to file
supplemental briefs on or before May 8, 2012 (one brief per side), which address the
following issues:
(1)

Whether this action should be dismissed on the ground of claim-splitting;

(2)

Whether Defendants in this action are in privity with the defendants in the Bass
action (for purposes of claim-splitting); and

(3)

The effect, if any, on this action from (a) the settlement between the parties in the
Bass action, and (b) the administrative closure of the Bass action.

Each brief shall not exceed 12 pages, exclusive of attorney or party signature block(s)
and the certificate of service, and shall comply with D.COLO.LCivR 10.1. No response
or reply briefs will be permitted.
SO ORDERED.
Dated this 24th day of April, 2012.
BY THE COURT:

William J. Martínez
United States District Judge

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