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

Filing 83

ORDER. Plaintiff's 58 Request for Judicial Notice and 59 Second Request for Judicial Notice are denied as moot. By Judge Philip A. Brimmer on 1/30/14.(mfiel, )

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.
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 a Request for Judicial Notice [Docket No. 58]
and Second Request for Judicial Notice [Docket No. 59] filed by plaintiff Timothy L.
Blixseth.
The background facts in this case have been stated at length in the Court’s
September 30, 2013 Order [Docket No. 61] and will not be restated here except to the
extent necessary to resolve the instant motions. 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. §§ 19611968; (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 July 19, 2013, plaintiff filed the instant motions,
asking the Court to take judicial notice of three court documents: a Summons and
Notice filed by Allenby, LLC and Haygood, LLC against Credit Suisse in the Supreme
Court of the State of New York [Docket No. 58-1], an Order Granting Motion to Dismiss
Involuntary Case in In re Blixseth, alleged debtor in the United States Bankruptcy Court
for the District of Nevada [Docket No. 58-2], and a complaint filed by plaintiff Claymore
Holdings, LLC against Credit Suisse in the District Court of Dallas County, Texas
[Docket No. 59-1]. On September 30, 2013, this Court issued an order dismissing
plaintiff’s first, second, third, fourth, sixth, seventh, eighth, and ninth claims, but granted
plaintiff leave to amend his compliant with respect to his claim for breach of covenants
of good faith and fair dealing. Docket No. 61 at 29-30. The Court also dismissed
defendants Cushman & Wakefield, Inc., Cushman & Wakefield of Colorado, Inc. and
Dean Pauww from the case. Id. On October 21, 2013, plaintiff filed a First Amended
Complaint and Jury Demand asserting claims against the remaining defendants for
tortious interference with contractual relations and breach of the covenants of good faith
and fair dealing. Docket No. 68 at 58, 62.
Plaintiff’s motions assert two primary arguments. See Docket No. 58 at 2-4;
Docket No. 59 at 2-3. First, plaintiff argues that judicially noticing the three court
documents supports his RICO claims. However, plaintiff’s RICO claims have been
dismissed and his requests that the Court take judicial notice for this reason are
therefore moot. Second, plaintiff argues that judicially noticing the three court
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documents supports the plausibility of the allegations in his original complaint.
However, this Court has already ruled on a motion to dismiss plaintiff’s original
complaint and plaintiff has filed a First Amended Complaint and Jury Demand. See
Docket No. 61; Docket No. 68. Thus, because plaintiff’s requests for judicial notice
relate to the plausibility of the original complaint, such requests are directed toward an
inoperative, superseded pleading. See, e.g., Gilles v. United States, 906 F.2d 1386,
1389 (10th Cir. 1990) (“[A] pleading that has been amended under Rule 15(a)
supersedes the pleading it modifies . . . .”) (internal quotation marks omitted). As such,
plaintiff’s motions requesting that the Court take judicial notice are moot.
For the foregoing reasons, it is
ORDERED that plaintiff’s Request for Judicial Notice [Docket No. 58] and
Second Request for Judicial Notice [Docket No. 59] are DENIED as moot.

DATED January 30, 2014.
BY THE COURT:

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

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