Bourret v. Aspect Energy, LLC et al

Filing 81

ORDER Granting Plaintiff's 32 Motion for Leave to File Second Amended Complaint to Add Claims for Fraud and Exemplary Damages and the Second AmendedComplaint tendered [32-1] therewith is ordered filed, by Judge Richard P. Matsch on 12/5/2013.(rpmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Richard P. Matsch
Civil Action No. 12-cv-3320-RPM
JACQUES BOURRET,
Plaintiff,
v.
ASPECT MANAGEMENT CORPORATION,
ASPECT HOLDINGS, LLC,
ASPECT ENERGY, LLC, and
ASPECT ENERGY INT’L, LLC,
Defendants.

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A SECOND
AMENDED COMPLAINT TO ADD CLAIMS FOR FRAUD AND EXEMPLARY
DAMAGES

Plaintiff Jacques Bourret seeks leave to file a second amended complaint adding
claims for fraudulent misrepresentation and fraudulent concealment and a prayer for
exemplary damages. Defendants (“Aspect”) oppose the Motion.
The parties’ consulting agreement called for Bourret to provide services “relating
primarily to the Company’s participation in oil and gas activities in the Middle East,” and it
entitled him to “1.5% of the net profits . . . in any project originating from [his] direct and
substantial work.” [Doc. 44, Ex. A at 1-2.] Bourret contends that the June 14, 2013
deposition testimony of Alex Cranberg, Aspect’s CEO, is the basis for adding these claims,
as it reveals that Aspect’s promise to pay Bourret for any project he originated in the Middle
East was falsely made because Aspect knew and failed to disclose that the work it had

already done in Kurdistan would lead to a denial of any claim Bourret might make for
originating the Atrush project.
Under Federal Rule of Civil Procedure 15(a), leave to amend should be freely given
absent “a showing of undue delay, undue prejudice to the opposing party, bad faith or
dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of
amendment.” Duncan v. Manager, Dept. of Safety, City & County of Denver, 397 F.3d 1300,
1315 (10th Cir. 2005). A proposed amended complaint is futile if it would be dismissed on
summary judgment. E.Spire Commc’ns, Inc. v. N.M. Pub. Regulation Comm'n, 392 F.3d
1204, 1211 (10th Cir. 2004). Aspect raises futility as the sole basis for denying Bourret’s
Motion, contending for a few reasons that none of the proposed claims would survive
summary judgment. The Court will accordingly construe the record and draw all reasonable
inferences in Bourret’s favor.
Aspect argues that Bourret cannot prove three common elements of his fraudulent
misrepresentation and fraudulent concealment claims:

(1) that the misrepresented or

concealed fact was “material”; (2) that Aspect acted with culpable intent; and (3) that
Bourret’s reliance on Aspect’s misrepresentation and concealment was justified. [See Doc.
44 at 9-11.] These elements involve questions of fact that should be determined by the
factfinder unless reasonable minds could not differ. See Wagnon v. State Farm Fire and
Casualty Co., 146 F.3d 764, 768 (10th Cir. 1998) (materiality); Baum v. Great W. Cities,
Inc., of N.M., 703 F.2d 1197, 1210-11 (10th Cir. 1983) (intent); Balkind v. Telluride Mtn.
Title Co., 8 P.3d 581, 587 (Colo. App. 2000) (justifiable reliance). For each element, there
are disputed issues of material fact that could lead reasonable minds to differ, including the
parties’ intentions as to the scope of the consulting agreement and Bourret’s work; Bourret’s
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knowledge of Aspect’s activities in Kurdistan at the time he entered into the agreement; and
whether Aspect intended to mislead him by implying in the language of the agreement that it
would pay him if he originated a project there. Therefore, leave to amend is not futile.
With regard to Bourret’s proposed fraudulent nondisclosure claim, Aspect asserts that
it had no duty to disclose that Kurdistan was effectively off limits for Bourret to receive an
origination fee. [See Doc. 44 at 12.] Under Colorado law, a duty to disclose arises if the
defendant, inter alia, (1) stated some but not all material facts, knowingly creating a false
impression; or (2) promised to perform an act knowing that undisclosed facts made his
performance unlikely. CJI-Civ. 19:5 (2013). There is a genuine dispute as to whether
Aspect knew that, by promising to pay Bourret an origination fee for any project in the
Middle East, it knowingly created a false impression that the promise included projects in
Kurdistan; and whether it promised to pay for Bourret’s work anywhere in the Middle East
knowing that it would subsequently take the position that it—and not Bourret—had
originated any project acquired in Kurdistan. Again, amendment is not futile.
To recover punitive or exemplary damages under Colorado law, a plaintiff must show
that “the injury complained of is attended by circumstances of fraud, malice, or willful and
wanton conduct.” Colo. Rev. Stat. § 13-21-102(1)(a). Aspect argues that there is no basis to
add Bourret’s proposed prayer for exemplary damages because his proposed fraud claims
cannot withstand summary judgment. [Doc. 44 at 13.] But as discussed above, the Court
concludes that summary judgment on the fraud claims would be inappropriate. Therefore,
adding the prayer for exemplary damages is warranted.
Upon the foregoing, it is

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ORDERED that Plaintiff’s Motion for Leave to File Second Amended Complaint to
Add Claims for Fraud and Exemplary Damages [Doc. 32] is granted. The Second Amended
Complaint tendered therewith is ordered filed.
Dated: December 5, 2013
BY THE COURT:
s/Richard P. Matsch
_________________
Richard P. Matsch
Senior District Judge

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