Blixseth v. Cushman & Wakefield of Colorado, Inc et al

Filing 61

ORDER. The Motion to Dismiss by Cushman & Wakefield, Inc., Cushman & Wakefield of Colorado, Inc. and Dean Pauww 24 is GRANTED. Defendants Credit Suisse AG, Credit Suisse Securities (USA), LLC, Credit Suisse (USA) Inc., Credit Suisse Holdings (USA) Inc. and CreditSuisse Cayman Island Branch's Motion to Dismiss the Complaint 28 is GRANTED in part and DENIED in part. All of plaintiff Timothy L. Blixseth's claims against defendants Cushman & Wakefield, Inc., Cushman & Wakefield of Col orado, Inc. and Dean Pauww are dismissed. Plaintiff Timothy L. Blixseth's first, second, third, fourth, sixth, seventh, eighth, and ninth claims against Credit Suisse are dismissed. Plaintiff mayproceed with his fifth claim against Credit Suisse. By Judge Philip A. Brimmer on 9/30/13.(pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-00393-PAB-KLM
TIMOTHY L. BLIXSETH, an individual,
Plaintiff,
v.
CUSHMAN & WAKEFIELD OF COLORADO, INC., a Colorado corporation,
DEAN PAUWW, an individual and citizen of the State of Colorado,
CUSHMAN & WAKEFIELD, INC., a New York corporation,
CREDIT SUISSE AG, a Swiss corporation,
CREDIT SUISSE GROUP AG, a Swiss corporation,
CREDIT SUISSE SECURITIES (USA), LLC, a Delaware limited liability company,
CREDIT SUISSE (USA), INC., a Delaware corporation,
CREDIT SUISSE HOLDINGS (USA), INC., a Delaware corporation,
CREDIT SUISSE CAYMAN ISLAND BRANCH, an entity of unknown type, and
DOES 1-100,
Defendants.

ORDER

This matter is before the Court on the Motion to Dismiss [Docket No. 24] filed by
defendants Cushman & Wakefield, Inc., Cushman & Wakefield of Colorado, Inc.,
(collectively “Cushman”) and Dean Pauww, as well as the Motion to Dismiss [Docket
No. 28] filed by defendants Credit Suisse AG, Credit Suisse Securities (USA), LLC,
Credit Suisse (USA) Inc., Credit Suisse Holdings (USA) Inc., and Credit Suisse Cayman
Islands Branch.1 The Court has subject matter jurisdiction pursuant to 28 U.S.C.
§§ 1331, 1332.
1

The Court will use the term “Credit Suisse” to denote actions taken by all the
Credit Suisse entities. The Court will refer to the individual entity names identified in the
complaint to denote actions performed by those entities.

I. BACKGROUND2
A. Allegations in Complaint
This case arises out of a Credit Agreement between the Yellowstone Mountain
Club, LLC (“Yellowstone Club”), Yellowstone Development, LLC, Big Sky Ridge, LLC,
and Credit Suisse Cayman Islands Branch. See Docket Nos. 28-1, 28-2. Before
August 13, 2008, plaintiff Timothy L. Blixseth was the sole shareholder and president of
Blixseth Group, Inc. (“BGI”), which is an Oregon S Corporation.3 Docket No. 1 at 35,
¶ 87. During the relevant period, BGI owned approximately 89% of the Yellowstone
Club – a master-planned private ski and golf resort community established by plaintiff
and his ex-wife, Edra Blixseth. Id. at ¶¶ 88, 90; see also id. at 8, ¶ 24. BGI and
plaintiff, as president of BGI, managed and made all strategic, business, planning, and
financial decisions for the Yellowstone Club. Id. at ¶ 89.
In 2003 and 2004, Credit Suisse First Boston devised a financing program aimed
at high-end luxury resorts, which would allow the developers and owners of such
resorts to take equity out of these projects in the form of loans or distributions to
shareholders and limited liability members. Docket No. 1 at 7, ¶ 5, ¶ 19. Credit Suisse
First Boston’s program was named the “Equity Recapitalization Loan Program,”
2

The following facts are drawn from plaintiff’s complaint and, for the purposes of
ruling on the motions to dismiss, assumed to be true.
3

An S corporation is a corporate entity that is not taxed at the corporate level.
The responsibility for the payment of taxes owed by the S corporation “passes through”
to its shareholders, who pay the tax liability in proportion to each shareholder’s pro rata
share of the S corporation. An S corporation avoids double taxation on dividends
because S-corporation income is only taxed once – at the shareholder level. See In re
Northlake Foods, Inc., 715 F.3d 1251, 1254 n. 2 (11th Cir. 2013).
2

designed to make plaintiff and other resort owners believe that the loan proceeds
derived from the equity in the resorts were based on traditional real estate appraisal
valuations. Id. The loans, however, were not based on real estate valuations of equity
but on undiscounted, projected, future cash flows, not taking into consideration market
risks – which plaintiff claims was in violation of federal and state law and regulations.
Id.
The basic goal and intent of the equity recapitalization loan program was to
induce the high-end resort developers into believing that the loans were being
collateralized by “equity” based real estate “appraisals” in conformity with “traditional”
banking industry standards and to borrow hundreds of millions of dollars in loans based
on traditional appraisals. Docket No. 1 at 5-6, ¶ 20. Credit Suisse First Boston
engendered confidence and trust as the lender advisor and fiduciary of the developers
based on its aggressive marketing scheme in which it departed from traditional lending
and banking relationships and used misleading language such as the equity
recapitalization loan program in order to “bait” the developers into a confidence and
trust based relationship, and then “switch” them into a loan scheme in violation of state
and federal law. Id. Credit Suisse demanded that the lawyers for the developers
endorse the legality of the scheme with categorical language that it “complied with all
laws” in written “Opinion Letters,” while knowing that it violated fundamental real estate
lending and securities laws, and violated fundamental principles of tort and contract. Id.
On December 16, 2004, Jeff Barcy, a senior executive at Credit Suisse First
Boston, personally solicited plaintiff in an attempt to convince plaintiff to process all of
the Yellowstone Club’s financial needs through Credit Suisse. Docket No. 1 at 37, ¶ 94.
3

As part of this solicitation effort, Mr. Barcy referred plaintiff to Ron Boedekker, the real
estate developer for Lake Las Vegas, another master-planned private resort
community. Id. at 37-38, ¶ 97. Credit Suisse had financed a loan for Mr. Boedekker
and Lake Las Vegas, which was supported by an appraisal performed by Charles
Reinagel, an appraiser for Cushman, who utilized the Total Net Value method to reach
a valuation estimate. Id. at 27, ¶ 66.
Sometime after plaintiff’s introduction to Mr. Boedekker, plaintiff agreed to a loan
on behalf of the Yellowstone Club in the amount of $150 million financed by Credit
Suisse First Boston. Docket No. 1 at 38, ¶ 98. Plaintiff also signed a Credit
Agreement, in his capacity as the president of BGI and manager of the Yellowstone
Club, with Credit Suisse Cayman Islands Branch to secure a second loan in the amount
of $375 million on behalf of the Yellowstone Club. See Docket Nos. 28-1, 28-2.4 The
Yellowstone Club was eligible to receive a $375 million loan based on a July 1, 2005
appraisal performed by Dean R. Pauww, a certified appraiser employed by Cushman,
who valued the Yellowstone Club at $1.165 billion. See Docket No. 25-1 at 6-7. Mr.
Pauww reached his valuation opinion of the Yellowstone Club by using the Total Value
Net method, which estimates the value of master-planned real estate communities
based on “the sum of the market value of the bulk lots of the entire planned community,

4

Defendants have attached documents to their motions to dismiss and request
that the Court consider these documents. See Docket Nos. 25-26; Docket Nos. 28-1 to
28-17. Plaintiff does not object to defendants’ attachment of these documents in his
responses. See Docket Nos. 34, 35. Accordingly, the Court will consider these
documents to the extent they are central to plaintiff’s complaint, incorporated by
reference in the complaint, or matters of which the Court may take judicial notice. See
Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010).
4

as if all of the bulk lots were complete . . . and available for sale to merchant builders,
as of the date of the appraisal.” Id. at 11; see also id. at 70-71 (describing the valuation
methodology). The Total Net Value method used in Pauww’s appraisal was a new
appraisal methodology in 2004. Docket No. 1 at 27, ¶ 66. Mr. Pauww’s appraisal
opinion noted that the $1.165 billion valuation was “not the Market Value of the
[Yellowstone Club] as the standard valuation deductions for the time value of money
and profit are not reflected . . . [and that] [t]he As Is market value would be lower than
the Total Net Value.” Docket No. 25-1 at 88. In addition, Mr. Pauww’s appraisal noted
that, because it did not use an “as is” market value to estimate the value of the
Yellowstone Club, the appraisal did not comply with the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub. L. No. 101-73, 103 Stat.
183.5 See Docket No. 25-1 at 3-4.
Several individuals working for Cushman, including Mr. Pauww, had reservations
about the use of the Total Net Value method, id. at 27-30, ¶¶ 69-75, yet neither
Cushman nor any of its certified appraisers advised plaintiff or other real estate
developers about the potential problems associated with the Total Net Value method.
Id. at 33-34, ¶¶ 84-85. The July 1, 2005 $1.165 billion valuation of the Yellowstone
Club misrepresented the true value of the Yellowstone Club, which Cushman knew or
should have known because Cushman previously valued the Yellowstone Club at $420
million in October 2004. Id. at 38-39, ¶ 99. Plaintiff would not have accepted Credit
5

Congress enacted FIRREA to “provide that Federal financial and public policy
interests in real estate related transactions will be protected by requiring that real estate
appraisals utilized in connection with federally related transactions are performed in
writing, in accordance with uniform standards.” 12 U.S.C. § 3331.
5

Suisse’s loan, but for the appraisal opinion offered in support of the $1.165 million
valuation. Id. at 39-40, ¶¶ 100-101.
The Credit Agreement plaintiff signed as president of BGI contains a nonrecourse clause, which states that none of the partners, managers, or managing
members of the Yellowstone Club may be held personally liable for payment of the
obligations arising out of the Credit Agreement.6 Docket No. 28-2 at 47. Plaintiff used
$209 million from the $375 million loan for purposes unrelated to the Yellowstone Club
because he relied on representations made by employees of Credit Suisse First Boston
that he could do so under the terms of the Credit Agreement. Docket No. 1 at 14, ¶ 37;
id. at 23, ¶ 55; id. at 38-40, ¶¶ 99-101.
During the negotiations for the Credit Agreement, Credit Suisse admitted in a
“Memo to the Credit Committee” that it was acting as “Yellowstone Club’s lending
advisor.” Docket No. 1 at 42, ¶¶ 105, 106. Credit Suisse’s risk management team
drafted a confidential information memorandum (“CIM”) confirming the fiduciary
relationship between the Yellowstone Club and Credit Suisse. Id. at 43-45, ¶¶ 109-111.
In December 2006, plaintiff and Edra Blixseth filed for divorce. Docket No. 1 at
36, ¶ 92. In March 2007, plaintiff told Edra Blixseth that he intended to sell the
6

Section 9.20 of the Credit Agreement states:

No Recourse to Partners. Notwithstanding anything in any of the Loan
Documents to the contrary, no partner or member or managing member in
the Borrower shall be personally liable for the payment of the Obligations;
provided, however, nothing contained herein shall release, diminish or
impair the obligations of the Borrower to pay in full when due all
Obligations in accordance with the provisions of the Loan Documents.
Docket No. 28-2 at 47, § 9.20.
6

Porcupine Creek, a major BGI asset, in order to repay the $209 million he spent from
the $375 million loan to the Yellowstone Club. Id. at 47, ¶ 116. Edra Blixseth refused
to cooperate and instead embarked on a course that eventually led to the transfer of
BGI’s primary assets to Samuel Byrne, principal of CrossHarbor Capital Partners, LLC
(“CrossHarbor”). Id. at 48, ¶ 118.
On January 15, 2008, CrossHarbor made an offer to purchase the Yellowstone
Club for $455 million. Docket No. 1 at 48, ¶ 119(a). CrossHarbor sought to purchase
the Yellowstone Club as part of a “pre-packaged bankruptcy” to shed some of the
Yellowstone Club’s liabilities, which offer plaintiff refused. Id. at 49, ¶ 119(d). On
March 26, 2008, CrossHarbor cancelled the $455 million proposed purchase of the
Yellowstone Club because of plaintiff’s refusal, and CrossHarbor began negotiations
with Edra Blixseth in an attempt to obtain her ownership interests in the Yellowstone
Club. Id. at 48, ¶ 119(b). In April 2008, CrossHarbor purchased a portion of the $375
million debt the Yellowstone Club owed to Credit Suisse. Id. at 119(c). Throughout
2008, CrossHarbor and Edra Blixseth developed a plan wherein Edra Blixseth would
obtain ownership of the Yellowstone Club through the divorce proceedings and
CrossHarbor would inject $100 million of operating capital into the Yellowstone Club.
Id. at 50, ¶¶ 119(f)-(h). Sometime before August 13, 2008, CrossHarbor gave Edra
Blixseth a $35 million loan to purchase the Yellowstone Club as part of her divorce
settlement. Id. at 50-51, ¶¶ 119(h).
On August 13, 2008, Edra Blixseth and plaintiff entered into a Marital Settlement
Agreement (“MSA”). Id. at 37, ¶ 93. Pursuant to the MSA, Edra Blixseth received the

7

Yellowstone Club, Porcupine Creek, and other marital property valued at over $800
million. Id. at 50-51, ¶ 119(h). Shortly thereafter, Edra Blixseth transferred control of
the Yellowstone Club to CrossHarbor and CrossHarbor intentionally defaulted on
several of the Yellowstone Club’s debts in order to qualify for bankruptcy. Id. at 52-53,
¶¶ 119(k)-(l). On November 10, 2008, CrossHarbor filed a Chapter 11 bankruptcy
petition on behalf of the Yellowstone Club. Id. at 51-52, ¶¶ 119(h)-(i). CrossHarbor
acted as the debtor in possession for the Yellowstone Club’s bankruptcy proceedings
and agreed to a “scheme[ ]” with Credit Suisse to gain control of the Yellowstone Club
and blame plaintiff for the financial demise of the Yellowstone Club. Id. at 53-54,
¶¶ 119(m)-(n).
During the bankruptcy proceedings, CrossHarbor and Credit Suisse proposed a
Plan of Reorganization which gave CrossHarbor complete control of the Yellowstone
Club’s assets and allowed Credit Suisse to have a remaining balance of $375 million on
its loan to the Yellowstone Club. Id. at 54, ¶ 119(o). In addition, Credit Suisse and
CrossHarbor agreed to collect the balance of the $375 million loan from plaintiff’s
individual assets through a Liquidating Trust for the Yellowstone Club’s bankruptcy. Id.
at 54, ¶ 119(p).
Credit Suisse First Boston agreed to participate in the Third Amended Plan of
Reorganization with other Yellowstone Club creditors, CrossHarbor, and the Liquidating
Trustee. Docket No. 1 at 41, ¶ 103. Pursuant to the terms of the Third Amended Plan
of Reorganization, the Liquidating Trustee was authorized to file claims against plaintiff
to recover $286 million in loan proceeds, despite the non-recourse clause of the Credit

8

Agreement. Id. at 41, ¶ 104; id. at 54-55, ¶ 119(q). The Third Amended Plan of
Reorganization also contained an exculpation clause indemnifying all parties to the
reorganization agreement from any liability to any third party for claims arising out of or
related to the Yellowstone Club’s Chapter 11 bankruptcy. Docket No. 28-12 at 48,
§ 8.4.
Had plaintiff known the Credit Agreement did not comply with FIRREA and the
Uniform Standards of Professional Appraisal Practice (“USPAP”), he would not have
accepted the $375 million loan from Credit Suisse or relinquished his ownership of the
Yellowstone Club to Edra Blixseth as part of the MSA. Docket No. 1 at 56-57, ¶¶ 120121. As a result of the equity recapitalization loan program, plaintiff suffered damages
in excess of $1.068 billion comprised of attorneys’ fees, lost business opportunities, and
reputational harm. Id. at 57, ¶ 124.
B. Procedural History
On February 14, 2012, plaintiff filed the present case, asserting claims against all
defendants for (1) violations of the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1961-1968; (2) common law fraud; (3) breach of fiduciary duty;
(4) common law negligence and negligent misrepresentation; (5) tortious interference
with contractual relations; (6) breach of covenants of good faith and fair dealing under
the Uniform Commercial Code and common law; (7) breach of contract; (8) equitable
indemnity; and (9) common law conspiracy. Docket No. 1 at 68-83.
On May 15, 2012, defendants filed the present motions to dismiss all of plaintiff’s
claims. Docket No. 24; Docket No. 28. In his response to Cushman’s motion to
dismiss, plaintiff indicated that he is no longer pursuing his claims for tortious
9

interference of contract, breach of contract, and equitable indemnity against Cushman.
See Docket No. 34 at 34. Similarly, in his response to Credit Suisse’s motion to
dismiss, plaintiff states that he no longer seeks to prosecute his equitable indemnity
claim against Credit Suisse. Docket No. 35 at 35.
II. STANDARD OF REVIEW
Credit Suisse requests that the Court dismiss plaintiff’s complaint pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.7 Docket No. 28 at
34. Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate if the
Court lacks subject matter jurisdiction over claims for relief asserted in the complaint.
Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving
party may (1) facially attack the complaint's allegations as to the existence of subject
matter jurisdiction, or (2) go beyond allegations contained in the complaint by
presenting evidence to challenge the factual basis upon which subject matter
jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074
(10th Cir. 2004) (quoting Maestas v. Lujan, 351 F .3d 1001, 1013 (10th Cir. 2003)).
When resolving a facial attack on the allegations of subject matter jurisdiction, the Court
“must accept the allegations in the complaint as true.” Holt v. United States, 46 F.3d
1000, 1002 (10th Cir. 1995).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the complaint need not
allege specific facts, but need only give defendants fair notice of what the claim is and
the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). However,
7

Cushman requests dismissal pursuant to Fed. R. Civ. P. 12, but does not
specify a particular subsection. Docket No. 24 at 1.
10

“where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged – but it has not shown – that the
pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal
quotation marks and alteration marks omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678.
III. ANALYSIS
A. RICO
Cushman and Credit Suisse argue that Blixseth does not have standing to assert
his RICO claim because he does not allege facts showing that he suffered any harm
independent from the harm suffered by the Yellowstone Club.8 Docket No. 24 at 8-9;
Docket No. 24 at 4-8. In response, plaintiff argues that his RICO claim adequately
asserts injuries that he personally suffered independent of any damage suffered by the
Yellowstone Cub and independent of his former status as a shareholder. Docket No.
35 at 3-4.
Pursuant to RICO, a plaintiff can recover damages for injuries to his business or
property arising out of prohibited racketeering activities. 18 U.S.C. § 1964(c); see Bixler
v. Foster, 596 F.3d 751, 756 (10th Cir. 2010). Generally, a shareholder or guarantor
lacks standing to assert RICO claims when his or her losses are only derivative of a
corporation’s losses, meaning that the individual’s losses come about only because of
the firm’s loss. Niemi v. Lasshofer, --- F.3d ----, 2013 WL 4767016, at *7 (10th Cir.
8

Defendants assert the standing argument as to multiple claims. The Court will
address the standing issue as it pertains to each claim separately.
11

Sept. 6, 2013); see also Sparling v. Hoffman Const. Co., Inc., 864 F.2d 635, 640-41
(9th Cir. 1988) (listing cases). The shareholder standing rule is an equitable restriction
that prohibits shareholders from initiating actions to enforce the rights of the corporation
unless the corporation’s management has refused to pursue the same action for
reasons other than good-faith business judgment. Franchise Tax Bd. of Calif. v. Alcan
Aluminum Ltd., 493 U.S. 331, 336 (1990). Similarly, “corporate presidents ordinarily do
not have standing to assert an individual RICO claim for conduct which harmed the
corporation, because such injuries are derivative.” Tal v. Hogan, 453 F.3d 1244, 1254
(10th Cir. 2006).
An exception to the shareholder standing rule allows “a shareholder with a direct,
personal interest in a cause of action to bring suit even if the corporation’s rights are
also implicated.” Bixler, 596 F.3d at 757 (citation omitted). Plaintiff bears the burden of
showing that his RICO claim falls within the exception to the shareholder standing rule
and he must do so “with the manner and degree of evidence required at the successive
stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). To
determine whether plaintiff has properly alleged an injury to his business or property
that is independent and separate of an injury to the Yellowstone Club, the Court must
first examine the alleged predicate acts that purportedly caused the injury. Bixler, 596
F.3d at 758.
Plaintiff’s RICO claim relates to the manner in which Credit Suisse and Cushman
solicited the Yellowstone Club and arranged financing for the Yellowstone Club’s
activities. Docket No. 1 at 58-67. Specifically, plaintiff alleges that Credit Suisse,

12

Cushman, and Mr. Paauw were the leaders of an enterprise premised on a “Loan to
Own” scheme, id. at 62, ¶ 137(b), which allowed Cushman to issue grossly inflated
appraisals for several master-planned resort communities. Id. According to the
complaint, the enterprise performed its illegal activities by (1) soliciting potential real
estate developers of first class master-planned communities, (2) earning the trust and
confidence of these developers and inducing these developers to borrow large sums of
money based on inflated appraisal values reached through the use of the Total Net
Value method, (3) issuing the loans through Credit Suisse Cayman Islands Branch to
avoid the requirements of FIRREA, (4) inducing the developers to take out equity in the
inflated loans, (5) providing Credit Suisse’s risk management team with a contingency
plan to take over the resorts through bankruptcy once the loans inevitably defaulted,
and (6) collecting front-end fees for work performed in soliciting, managing, and
servicing the loans. Id. at 61-64, ¶¶ 137-142. Plaintiff also alleges that “Credit Suisse
[as leader of the enterprise] concealed the FIRREA frauds from the Plaintiff to convince
the Yellowstone Club to engage them, then sold their lies to obtain the funds,” id. at 64,
¶ 141, and that this “bait and switch” RICO fraudulent enterprise would not have
occurred “[w]ithout the original FIRREA violations and frauds . . ., and without the bank
and lending fraud . . . by Edra Blixseth acting in collusion with a Credit Suisse noteholder, CrossHarbor, to take over control of the Yellowstone Club through a fraudulently
schemed bankruptcy.” Id. at 65, ¶ 144.
The Court finds that plaintiff’s RICO claim does not sufficiently allege a personal
injury independent of an injury to the Yellowstone Club. First, it is undisputed that
plaintiff signed the Credit Agreement in his capacity as president of BGI and manager
13

of the Yellowstone Club, Docket No. 28-2 at 49; therefore, any injury arising out of the
Credit Agreement is not a personal and direct injury. Niemi, 2013 WL 4767016, at *8.
Although plaintiff used loan proceeds for his personal use, it is undisputed that the loan
itself was made to the Yellowstone Club – and not to plaintiff – meaning that a loss
arising from a default would be suffered by the creditors, not the borrower. Id. Third, to
the extent plaintiff lost control of the Yellowstone Club and lost his ownership stake in
the Yellowstone Club, this harm is a derivative injury. It is the loss of a return on an
investment by actions of a third party (Credit Suisse) that caused harm to a corporate
entity (the Yellowstone Club), resulting in a diminution in the value of the Yellowstone
Club’s stock. See Massey v. Merrill Lynch & Co., Inc., 464 F.3d 642, 647 (7th Cir.
2006). Thus, although plaintiff was told the alleged deceptive representations in person
and signed the loan agreement, because these things occurred in his capacity as the
president of BGI and manager of the Yellowstone Club, and not in his individual
capacity, any harm caused by the alleged enterprise is harm to the Yellowstone Club.
See Bixler, 596 F.3d at 758. Accordingly, plaintiff does not sufficiently allege that the
direct injury exception applies to his RICO claim, and the Court will dismiss plaintiff’s
RICO claim for failure to state a claim. Niemi, 2013 WL 4767016, at * 8.
B. Fraud
Defendants argue that plaintiff does not have standing to assert his fraud claim.
Docket No. 40 at 15; Docket No. 39 at 3-5. In response, plaintiff contends that the
complaint presents a detailed case of fraud based on the representations Cushman
and Credit Suisse made “by holding out to [plaintiff] that the $1.1 billion Total Net Value

14

appraisal of the Yellowstone Club which supported [Credit Suisse’s] predatory $375
million loan was a legitimate appraisal when in fact it was grossly inflated.” Docket No.
35 at 15. Plaintiff also argues that defendants’ standing argument fails because
defendants told plaintiff that he was “personally” entitled to use the proceeds from the
loan “just like a home equity loan.” Id. at 18 (citation omitted). Plaintiff asserts that the
complaint alleges that Cushman and Credit Suisse became plaintiff’s “lending advisors”
by obtaining proprietary and financial information about the Yellowstone Club and
encouraging and convincing plaintiff to use $209 million from the loan for his personal
use. Id. at 19.
Under Montana law,9 to allege a prima facie case of fraud, plaintiff must assert
the following nine elements: (1) a representation; (2) the falsity of that representation;
(3) the materiality of the representation; (4) the speaker’s knowledge of the
representation’s falsity or ignorance of its truth; (5) the speaker’s intent that the
representation should be acted upon by the person and in the manner reasonably
contemplated; (6) the hearer’s ignorance of the representation’s falsity; (7) the hearer’s
reliance upon the truth of the representation; (8) the hearer’s right to rely upon the
representation; and (9) the hearer’s consequent and proximate injury or damages

9

For the purpose of resolving defendants’ motions to dismiss, the parties appear
to agree that the elements of plaintiff’s state law claims are defined by either Montana
or Colorado law and that the laws of those states define the elements similarly. Thus,
the Court finds that a choice of law analysis is not necessary and will apply Montana
law to the state law claims presented here. Although Credit Suisse argues that the
Credit Agreement contains a choice of law provision, Docket No. 28 at 11, Credit
Suisse does not explain why such clause would bind a non-party to the agreement.
The same is true in regard to Credit Suisse’s venue argument.
15

caused by his or her reliance on the representation.10 In re Estate of Kindsfather, 108
P.3d 487, 490 (Mont. 2005).
As noted above, to avoid the application of the shareholder standing doctrine,
plaintiff must allege that he has suffered an injury independent of an injury to the
Yellowstone Club. Tal, 453 F.3d at 1254. Plaintiff has not done so here. Although
plaintiff states that defendants concealed facts regarding whether the Total Net Value
appraisal complied with the USPAP and FIRREA, Docket No. 1 at 68-69, ¶ 156, and
that the loan to the Yellowstone Club could be repaid by sales of lots in the ordinary
course of business, id., because plaintiff had access to $209 million from the Credit
Suisse loan only because of his position as a manager of the Yellowstone Club, any
injury resulting from plaintiff’s personal use of the loan is not a direct injury to plaintiff,
but rather an injury to the Yellowstone Club. Niemi, 2013 WL 4767016, at *8. The
Yellowstone Club had the obligation to repay the Credit Agreement, and plaintiff was
never directly or personally liable for reimbursement of the underlying loan. Thus,
because it was the Yellowstone Club that secured the loan, the Yellowstone Club that
had an obligation to repay the loan, and the Yellowstone Club’s properties that suffered
as a result of plaintiff’s personal use of the loan proceeds, plaintiff’s injury is derivative.
Bixler, 596 F.3d at 758-59. Accordingly, because plaintiff does not sufficiently allege a
10

In his response to Credit Suisse’s motion to dismiss, plaintiff discusses the
theory of constructive fraud. Docket No. 35 at 14-15. “Constructive fraud” is defined by
statute in Montana. See Mont. Code Ann. § 28-2-406. Constructive fraud is essentially
actual fraud without the element of intent and has similar elements as negligent
misrepresentation. See Town of Geraldine v. Mont. Municipal Ins. Authority, 198 P.3d
796, 801 (Mont. 2008). Because plaintiff does not assert a claim of constructive fraud
in the complaint, the Court will not consider plaintiff’s arguments regarding constructive
fraud.
16

direct injury arising out of defendants’ allegedly fraudulent conduct, the Court will
dismiss plaintiff’s fraud claim for failure to state a claim. Niemi, 2013 WL 4767016, at
*8.
C. Breach of Fiduciary Duty
Defendants argue that plaintiff does not have standing to assert his breach of
fiduciary duty claim and that, even assuming plaintiff has standing, he does not
establish that Credit Suisse owed him a duty. Docket No. 40 at 15; Docket No. 24 at
31-32. In response, plaintiff contends that defendants had a fiduciary duty to plaintiff
because they acted as his “lending advisor” and represented that he could use $209
million from the loan for personal use. Docket No. 35 at 27-28.
In Montana, the relationship between a bank and its customer is generally
described as that of debtor and creditor and does not give rise to fiduciary
responsibilities. McCoy v. First Citizens Bank, 148 P.3d 677, 683 (Mont. 2006). A
limited exception to this rule exists when special circumstances place a bank beyond
the role of a simple creditor and into the role of advisor. Id. However, Montana courts
have “recognized that no fiduciary duty arises between a bank and its borrower where
the bank did not offer financial advice, its advice was not always heeded, or where the
borrower was advised by others, such as legal counsel.” Simmons Oil Corp. v. Holly
Corp., 852 P.2d 523, 526 (Mont. 1993) (citing Lachenmaier v. First Bank Sys., Inc., 803
P.2d 614, 619 (Mont. 1990)). Whether a fiduciary duty exists is a question of law, not
fact. McCoy, 148 P.3d at 683.

17

In regard to his fiduciary duty claim, the Court finds that plaintiff has not
established that he suffered an injury independent of an injury suffered by the
Yellowstone Club. Tal, 453 F.3d at 1254. Because plaintiff’s claim relies on the same
facts as his fraud claim, namely, Credit Suisse’s alleged fraudulent loan, plaintiff cannot
show what independent harm he suffered from such a loan. Id. Even assuming that
Credit Suisse and Cushman acted as a form of financial advisor to plaintiff, this
allegation is insufficient to allege a fiduciary relationship because plaintiff asserts that
he had independent legal advice. See Docket No. 1 at 5-6, ¶ 20 (referring to
developers’ lawyers); id. at 12-13, ¶¶ 32-33 (with regard to Credit Suisse’s role as
“lending advisors” to plaintiff, plaintiff “relied upon his lawyers”) ; id. at 18-19, ¶¶ 47
(referring to his lawyers’ involvement in plaintiff’s dealing with the banks); Simmons, 852
P.2d at 526. Thus, because plaintiff does not sufficiently allege that he suffered an
injury independent of an injury to the Yellowstone Club and does not sufficiently allege
that defendants owed him a fiduciary duty, the Court will dismiss plaintiff’s breach of
fiduciary duty claim. Simmons, 852 P.2d at 526.
D. Negligence and Negligent Misrepresentation
Defendants argue that plaintiff cannot state a claim of negligence and negligent
misrepresentation because he has not shown that defendants owed him a duty. Docket
No. 28 at 27-28; Docket No. 24 at 30-31. In response, plaintiff argues that he was a
foreseeable victim of defendants’ misleading appraisals and that misrepresentations in
real estate appraisals may give rise to a claim of negligence or negligent
misrepresentation. Docket No. 34 at 30-31; Docket No. 35 at 28-29.

18

Under Montana law, a cause of action for negligence requires a plaintiff to prove
the following four elements: (1) duty; (2) breach of duty; (3) causation; and (4)
damages. Brown v. Demaree, 901 P.2d 567, 569 (Mont. 1995). By contrast, the tort of
negligent misrepresentation requires proof of the following elements: (1) the defendant
made a representation as to a past or existing material fact; (2) the representation was
untrue; (3) regardless of its actual belief, the defendant made the representation without
any reasonable ground for believing it to be true; (4) the representation was made with
the intent to induce the plaintiff to rely on it; (5) the plaintiff was unaware of the falsity of
the representation and justifiably acted in reliance upon the truth of the representation;
(6) the plaintiff, as a result of his or her reliance, sustained damages. Kurtzenacker v.
Davis Surveying, Inc., 278 P.3d 1002, 1007-1008 (Mont. 2012). An action for negligent
misrepresentation is an action in fraud, see Bushnell v. Cook, 718 P.2d 665, 668 (Mont.
1986); thus, plaintiff’s pleading of fraud must meet the standard set forth in Rule 9(b).
See Town of Geraldine, 198 P.3d at 801 (noting that “[i]n all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall be stated with
particularity”) (citing Mont. R. Civ. P. 9(b)).
In support of his negligence and negligent misrepresentation claims, plaintiff
alleges the same facts discussed above in relation to the fraud claim, namely, that
defendants induced plaintiff to sign the Credit Agreement through an inflated appraisal
when defendants knew the appraisal was fraudulent. Docket No. 1 at 72-73, ¶¶ 170176.
Because plaintiff’s negligence and negligent misrepresentation claims are based
on statements Cushman and Credit Suisse made to plaintiff in his capacity as the
19

president and manager of the Yellowstone Club, plaintiff has not shown a direct injury
that is separate from the injury suffered by Yellowstone Club. Bixler, 596 F.3d at 75859; Tal, 453 F.3d at 1254. As a result, the Court will dismiss plaintiff’s negligence and
negligent misrepresentation claims. Niemi, 2013 WL 4767016, at * 8.
E. Breach of Contract
Credit Suisse argues that plaintiff’s breach of contract claim is barred by the
exculpation clause contained in the Third Amended Plan of Reorganization, which
indemnifies Credit Suisse from “any liability to any Person for any act or omission in
connection with, relating to or arising out of the Chapter 11 Cases.”11 Docket No. 28 at
9; Docket No. 28-12 at 48. In response, plaintiff argues that the exculpation clause is
invalid because “it is well established that the Bankruptcy Code (and Due Process for
that matter) does not allow a plan of reorganization to release a non-debtor from liability
to third parties.” Docket No. 35 at 6 (citations omitted). Plaintiff also claims that the
exculpation clause does not apply because it expressly does not indemnify parties for
claims arising out of “willful misconduct or gross negligence.” Docket No. 28-12 at 48,
§ 8.4.
Plaintiff’s breach of contract claim is based on the theory that he is a third party
beneficiary of the Credit Agreement. Docket No. 1 at 80, ¶ 202. Plaintiff asserts that
the Credit Agreement contains a non-recourse clause to shield managers or partners of
the Yellowstone Club, such as himself, from personal liability arising out of a default on
the loan. Id. at ¶ 204. He claims that Credit Suisse breached the non-recourse clause
11

As noted above, plaintiff voluntarily dismissed his breach of contract claim
against Cushman. See Docket No. 34 at 34.
20

of the Credit Agreement when it agreed to participate in the Third Amended Plan of
Reorganization and seek to recover the proceeds of the Yellowstone Club’s loan from
plaintiff in his individual capacity. Id. at 80-81, ¶203. Plaintiff asserts that, as a third
party beneficiary, plaintiff can sue for any damages arising from such breach. Id. at 8081, ¶¶ 204, 207. Before reaching the merits of plaintiff’s breach of contract claim, the
Court will address the whether plaintiff can raise these claims in light of the exculpatory
clause.
Although plaintiff claims that the bankruptcy court does not have the authority to
issue an order exculpating Credit Suisse from all and any liability that may arise out of
the Yellowstone Club’s Chapter 11 proceedings, plaintiff acknowledges that the
bankruptcy court for the District of Montana confirmed the Yellowstone Club’s Third
Amended Plan of Reorganization and that its order doing so is valid and enforceable.
See In re Yellowstone Mountain Club, LLC, 436 B.R. 598, 634 (Bankr. D. Mont. 2010).
In addition, plaintiff does not identify any authority allowing this Court to ignore a valid
order from a bankruptcy court. See, e.g., 28 U.S.C. § 158(a) (noting that an appeal
from a bankruptcy court “shall be taken only to the district court for the judicial district in
which the bankruptcy judge is serving”); cf. Travelers Indem. Co. v. Bailey, 557 U.S.
137, 152 (2009) (noting that a bankruptcy court’s plan confirmation order cannot, after it
becomes final, be collaterally attacked).
In addition, although plaintiff argues that the exculpation clause does not bar
claims based on intentional and willful misconduct, the Court finds that plaintiff’s claim
for breach of contract, as pled, does not sufficiently allege any willful misconduct or

21

gross negligence. Accordingly, the Court finds that the exculpatory clause bars
plaintiff’s breach of contract claim and will therefore dismiss it.12
F. Tortious Interference with Contractual Relations
Credit Suisse argues that plaintiff does not sufficiently allege a claim of tortious
interference with contractual relations because plaintiff does not allege that Credit
Suisse caused any party to breach a contract it had with plaintiff.13 Docket No. 28 at
28. Credit Suisse also argues that plaintiff’s case is premature because plaintiff’s
damages are uncertain and speculative at this time. Id. at 29. In response, plaintiff
contends that he has alleged sufficient facts to show that Credit Suisse “improperly”
interfered with his contractual rights when it caused the Yellowstone Club entities not to
honor the releases of liability which plaintiff secured as part of the MSA. Docket No. 35
at 34. In addition, plaintiff asserts that Credit Suisse caused the Yellowstone Club
entities and Edra Blixseth to breach the MSA, which allowed the Liquidation Trust to
seek reimbursement of the loan directly from plaintiff. Id.

12

The Court takes judicial notice of the fact that District Court for the District of
Montana has affirmed the Third Amended Plan of Reorganization on appeal. See
Timothy L. Blixseth v. Yellowstone Mountain Club, LLC, No. 11-cv-65-BU-SEH (D.
Mont. 2011) [Docket No. 121, March 6, 2013]. See Guttman v. Khalsa, 669 F.3d 1101,
1127 n. 5 (10th Cir. 2012) (stating that court can take judicial notice of public records).
13

As noted above, plaintiff voluntarily dismissed his claim of tortious interference
with contractual relations against Cushman. See Docket No. 34 at 34. Credit Suisse
argues that the exculpation clause also bars plaintiff’s claims for tortious interference
with contractual relations and breach of the implied covenant of good faith and fair
dealing against Credit Suisse. However, the Court will address such claims given that it
is at least arguable that these claims fall within the “willful misconduct or gross
negligence” exception of the exculpation clause. Docket No. 28-12 at 48, § 8.4.
22

Under Montana law, a tortious interference with contract claim requires the
claimant to establish that the defendant’s acts: (1) were intentional and willful; (2) were
calculated to cause damage to the claimant's business; (3) were done with the unlawful
purpose of causing damage or loss, without right or justifiable cause on the part of the
actor; and (4) that actual damages and loss resulted. Emmerson v. Walker, 236 P.3d
598, 603 (Mont. 2010). Tortious interference with contractual relations requires proof of
malice in the legal sense – that the defendant acted wrongfully, unlawfully, or without
justification or excuse. Richland Nat’l Bank & Trust v. Swenson, 816 P.2d 1045, 1051
(1991).
The Court finds that plaintiff has adequately pled the four elements of a tortious
interference with contract claim. Plaintiff alleges that Credit Suisse, with the assistance
of CrossHarbor, directed the Liquidating Trustee to invalidate the releases in the MSA.
Docket No. 1 at 75, ¶ 187. Plaintiff asserts that such actions on the part of Credit
Suisse were intentional and motivated by Credit Suisse’s desire to recoup the proceeds
of the loan it provided to the Yellowstone Club. Id. at 76, ¶ 189. Plaintiff also claims
that Credit Suisse performed these actions with the specific intent to cause plaintiff a
loss of over $280 million in personal assets. Id. at ¶ 190. Finally, plaintiff suffered
damages in the form of accrued attorneys’ fees and is likely to suffer additional
damages if judgments are entered against him in the various proceedings currently
pending against him. Id. at 77, ¶ 192. Based on the foregoing, the Court finds that
plaintiff has sufficiently alleged that Credit Suisse intentionally interfered with plaintiff’s

23

contractual rights under the MSA. See Tindall v. Konitz Contracting, Inc., 783 P.2d
1376, 1381 (Mont. 1989).
G. Breach of Covenant of Good Faith and Fair Dealing
Credit Suisse argues that plaintiff has not sufficiently alleged a claim for breach
of the covenant of good faith and fair dealing because such a claim is not actionable for
misrepresentations made before a contract is formed.14 Docket No. 28 at 29. In
addition, Credit Suisse asserts that New York law does not recognize a separate cause
of action for breach of the implied covenant of good faith and fair dealing not
represented in the contract. Docket No. 28 at 30. In response, plaintiff argues that the
tort of breach of the implied covenant of good faith and fair dealing is actionable in
Colorado and Montana and that his complaint adequately asserts such a claim. Docket
No. 35 at 30-31.
Under Montana law, every contract entered into, regardless of type, contains an
implied covenant of good faith and fair dealing. Story v. City of Bozeman, 791 P.2d
767, 775 (Mont. 1990). The implied covenant of good faith and fair dealing is breached
where one party uses discretion conferred by the contract to unfairly deprive the other
party of the benefit of the bargain by acting dishonestly or abusing discretion granted by
the contract. Phelps v. Frampton, 170 P.3d 474, 484 (Mont. 2007). The covenant is
measured by the justifiable expectations of the parties, and expectations that contradict
an express term of the contract are per se unjustifiable. Hardy v. Vision Service Plan,
14

Although plaintiff does not expressly dismiss his claim against Cushman for
breach of the implied covenant of good faith and fair dealing, the Court will dismiss this
claim against Cushman because plaintiff did not present any arguments in support of
this claim in his response to Cushman’s motion. See Docket No. 34 at 30-35.
24

120 P.3d 402, 405 (Mont. 2005). An “alleged implied covenant cannot be in direct
contradiction of the written term contract” and cannot “be read to prohibit a party from
doing that which is expressly permitted by an agreement.” Farris v. Hutchinson, 838
P.2d 374, 376-77 (Mont. 1992) (citation omitted).
Plaintiff alleges that Credit Suisse breached the covenant of good faith and fair
dealing when it (1) misrepresented the true value of the Yellowstone Club by using an
inflated appraisal created using the Total Net Value method and (2) participated in the
Third Amended Plan of Reorganization for the Yellowstone Club seeking
reimbursement of the $375 million loan. Docket No. 1 at 78-79. The Court finds that
plaintiff fails to assert a claim for breach of the covenant of good faith and fair dealing
based on the representations Credit Suisse made about the value of the Yellowstone
Club before plaintiff signed the Credit Agreement because the implied covenant of good
faith and fair dealing focuses on the performance of the contract, and not on precontractual misrepresentations. Story, 791 P.2d at 775 (noting that the implied
covenant of good faith ensures that “[e]ach party to a contract has a justified
expectation that the other will act in a reasonable manner in its performance”).
With regard to plaintiff’s claim against Credit Suisse based on Credit Suisse’s
participation in the Third Amended Plan of Reorganization, the Court finds that plaintiff
does not assert an actionable claim because he does not state that Credit Suisse
abused its discretion under the Credit Agreement. See Phelps, 170 P.3d at 484. In
other words, even assuming plaintiff’s allegations are true, there are no allegations that
Credit Suisse performed an unreasonable banking practice in agreeing to the Third
Amended Plan of Reorganization once the Yellowstone Club had defaulted on the
25

Credit Agreement. See Story, 791 P.2d at 775 (noting that the conduct required by the
“implied covenant of good faith and fair dealing is honesty in fact and the observance of
reasonable commercial standards of fair dealing in the trade”). Assuming that Credit
Suisse voluntarily joined the Third Amended Plan of Reorganization, there is no
evidence that this decision was anything other than sound business judgment in an
attempt to recoup the proceeds of its loan. See Lachenmaier v. First Bank Sys., Inc.,
803 P.2d 614, 617 (Mont. 1990) (noting that bank did not breach “honesty in fact”
standard required of contracting parties when it continued to loan and encourage
borrowers to borrow more money simultaneously with the plans of the regional office to
liquidate borrowers’ assets and foreclose on debt). Accordingly, because plaintiff does
not sufficiently allege that Credit Suisse abused its discretion under the Credit
Agreement, the Court will dismiss plaintiff’s claim for breach of the implied covenant of
good faith and fair dealing for failure to state a claim. Id.
H. Equitable indemnity
Plaintiff indicated in his responses to defendants’ motions to dismiss that he is
no longer pursuing his claim for equitable indemnity and requests that the Court dismiss
this claim without prejudice. Docket No. 34 at 34; Docket No. 35 at 35. Accordingly,
the Court will dismiss plaintiff’s equitable indemnity claim without prejudice.
I. Conspiracy
Defendants argue that plaintiff does not sufficiently allege a claim of conspiracy
because (1) plaintiff’s claim is not pled with particularity in accordance with Rule 9(b) of
the Federal Rules of Civil Procedure, (2) plaintiff fails to establish an independent cause

26

of action for his civil conspiracy claim, and (3) plaintiff does not sufficiently allege a
meeting of the minds between Cushman and Credit Suisse. Docket No. 28 at 34. In
response, plaintiff argues that he sufficiently alleges a conspiracy because it is
plausible to infer from his complaint that Credit Suisse and Cushman conspired to
circumvent U.S. banking laws, had a meeting of the minds to create a Total Net Value
appraisal, and committed multiple counts of wire fraud. Docket No. 34 at 15.
Under Montana law, the elements of a civil conspiracy are (1) two or more
persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or
course of action; (4) one or more unlawful overt acts; and (5) damages as the
proximate result thereof. Schumacker v. Meridian Oil Co., 956 P.2d 1370, 1374 (Mont
1998). Moreover, it is not the conspiracy itself that gives rise to a cause of action; it is
the torts committed or the wrong done in furtherance of a civil conspiracy that do so. Id.
“If the object of an alleged ‘conspiracy’ is lawful, and the means used to attain that
object are lawful, there can be no civil action for conspiracy. The foregoing is true even
though damage may result to the plaintiffs and even though defendants may have
acted with a malicious motive.” Simmons, 852 P.2d at 530.
Plaintiff alleges that defendants, in connection with Mr. Byrne, CrossHarbor, and
Edra Blixseth, aided and abetted an unlawful scheme to earn excessive fees and gain
ownership and control over the Yellowstone Club at the expense of the developers,
homeowners, and plaintiff. Docket No. 1 at 83, ¶¶ 215-217. As noted above, any harm
plaintiff suffered as a result of the loss of his ownership stake in the Yellowstone Club is
a derivative injury. Plaintiff does not sufficiently allege that the direct injury exception
applies to his conspiracy claim. See Niemi, 2013 WL 4767016, at * 8; Bixler, 596 F.3d
27

at 758. Moreover, the Court has dismissed all of plaintiff’s underlying tort claims. As a
result, plaintiff cannot state a plausible claim of civil conspiracy because he cannot
sustain an independent conspiracy claim absent a tort or wrong committed in
furtherance of the conspiracy. Schumacker, 956 P.2d at 1374. Accordingly, the Court
will dismiss plaintiff’s civil conspiracy claim for failure to state a claim upon which relief
can be granted.
J. Request for Leave to Amend Complaint
In his responses, plaintiff requests leave to file an amended complaint should the
Court find that he does not assert plausible claims for relief. Docket No. 34 at 34;
Docket No. 35 at 35. Plaintiff, however, does not attach a proposed amended
complaint to his responses and does not explain in any detail how his proposed
amendments would cure the alleged pleading defects.
Rule 15(a) of the Federal Rules of Civil Procedure instructs courts to “freely give
leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a). Nevertheless,
denying leave to amend is justified if the proposed amendments are unduly delayed,
unduly prejudicial, futile, or sought in bad faith. Foman v. Davis, 371 U.S. 178, 182
(1962); Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). As a general rule,
the Court retains the discretion to permit such amendments. Minter v. Prime Equip.
Co., 451 F.3d 1196, 1204 (10th Cir. 2006).
The Court finds that it would be futile to give plaintiff an opportunity to amend his
complaint with regard to his RICO, common law fraud, breach of fiduciary duty,
common law negligence, negligent misrepresentation, and common law conspiracy

28

claims because plaintiff has not presented any facts that he could uncover if granted
leave to amend his complaint to raise a plausible inference that he sustained a direct
injury as a result of defendants’ actions. See Bixler, 596 F.3d at 758. Accordingly, the
Court will deny plaintiff’s motion to amend with regard to those claims. Minter, 451 F.3d
at 1204. The Court will grant plaintiff leave to amend his claim against Credit Suisse for
breach of the implied covenant of good faith and fair dealing.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Motion to Dismiss by Cushman & Wakefield, Inc., Cushman
& Wakefield of Colorado, Inc. and Dean Pauww [Docket No. 24] is GRANTED. It is
further
ORDERED that Defendants Credit Suisse AG, Credit Suisse Securities (USA),
LLC, Credit Suisse (USA) Inc., Credit Suisse Holdings (USA) Inc. and Credit
Suisse Cayman Island Branch’s Motion to Dismiss the Complaint [Docket No. 28] is
GRANTED in part and DENIED in part as indicated in this Order. It is further
ORDERED that all of plaintiff Timothy L. Blixseth’s claims against defendants
Cushman & Wakefield, Inc., Cushman & Wakefield of Colorado, Inc. and Dean Pauww
are dismissed. It is further
ORDERED that plaintiff Timothy L. Blixseth’s first, second, third, fourth, sixth,
seventh, eighth, and ninth claims against Credit Suisse are dismissed. Plaintiff may
proceed with his fifth claim against Credit Suisse.

29

DATED September 30, 2013.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

30