Seng v. Americana Investments, LLC et al
Filing
107
ORDER granting in part and denying in part 67 Motion for Partial Summary Judgment; adopting in part Report and Recommendations 96 , by Judge Robert E. Blackburn on 8/21/2014.(trlee, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01745-REB-KMT
CHUN CHEE SENG,
Plaintiff,
v.
AMERICANA INVESTMENTS, LLC,
MARGARET V. ANDERSON-CLARKE, and
ANDERSON-CLARKE LAW,
Defendants.
ORDER RE: RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is the Recommendation of United States Magistrate
Judge [#96],1 filed July 31, 2014. No objections having been filed to the
recommendation, I review it only for plain error. See Morales-Fernandez v.
Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005). I adopt
the recommendation in all but two particulars.
The majority of the magistrate judge’s recommended disposition admits of no
error, much less plain error. It is clear that defendant has admitted all material facts
necessary to prove up plaintiff’s claim for breach of contract with respect to the Second
Settlement Agreement and that plaintiff therefore is entitled to summary judgment as to
1
“[#96]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
that claim.2 Moreover, because the amount of damages attendant on the breach is fully
liquidated, no further evidence need be taken to enter judgment for plaintiff on that
claim.
I further agree with the magistrate judge that the motion to dismiss of defendant,
Americana Investments, LLC (“Americana”), should be granted as to plaintiff’s federal
and state securities claims (which are barred by limitations and not subject to equitable
tolling) and common law fraud claim (which is not plead with the requisite particularity),
and denied with respect to plaintiff’s breach of contract claim. Thus the
recommendation is approved and adopted to that extent as well.
However, I disagree with the magistrate judge that defendant failed to adequately
brief its motion to dismiss with respect to plaintiff’s claim under §11-51-501, C.R.S. I
find that the issue was adequately raised and joined by the motion and that this claim
plainly suffers from the same infirmities that warrant dismissal of plaintiff’s common law
fraud claim. Moreover, because I concur with the magistrate judge that plaintiff is
entitled to summary judgment on his breach of contract claim against Americana, his
claim for unjust enrichment against this same defendant is no longer available as an
alternative theory of recovery and therefore now is properly dismissed as against this
2
Plaintiff also sought a hearing on his summary judgment motion. Although the magistrate judge
did not so specify, it is clear that the issues raised by and inherent to the motion have been fully briefed,
obviating the necessity for an evidentiary hearing or oral argument. Thus, the motion properly stood
submitted on the briefs. Cf. FED. R. CIV. P. 56(c) and (d). Geear v. Boulder Community Hospital, 844
F.2d 764, 766 (10th Cir.) (holding that hearing requirement for summary judgment motions is satisfied by
court's review of documents submitted by parties), cert. denied, 109 S.Ct. 312 (1988).
2
particular defendant.3 See West Ridge Group, LLC v. First Trust Co. of Onaga, 2011
WL 635567 at *7 (10th Cir. Feb. 23, 2011). Thus, I must respectfully reject the
recommendation insofar as it recommends denying the motion to dismiss these two
claims.
For these reasons, I approve and adopt the recommendation of the United States
magistrate judge, except as it recommends denying defendant’s motion to dismiss
plaintiff’s claims for unjust enrichment (as against Americana only) and violation of §1151-501, C.R.S. These claims also will be dismissed.4
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#96], filed
July 31, 2014, is APPROVED AND ADOPTED in part and respectfully REJECTED IN
PART as follows:
a. That the recommendation is respectfully REJECTED insofar as it
recommends that defendant’s motion to dismiss plaintiff’s Ninth Claim for
Relief, alleging unjust enrichment as against Americana only, and Twelfth
Claim for Relief, alleging a claim for relief under §11-51-501, C.R.S., be
denied; and
3
This claim also implicates the two defendants (Margaret V. Anderson-Clarke and AndersonClarke Law) as against whom default has been entered by the clerk of the court. (See Clerk’s Entry of
Default as to Margaret V. Anderson-Clarke [#79], filed June 26, 2014; Clerk’s Entry of Default as to
Anderson-Clarke Law [#77], filed June 16, 2014.) Because default judgments have not yet been
requested, however, the Ninth Claim for Relief will be dismissed as against defendant Americana only.
4
The court’s resolution of Americana’s motion to dismiss and plaintiff’s motion for partial
summary judgment together disposes of all claims asserted against this defendant.
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b. That in all other respects, the recommendation is APPROVED AND
ADOPTED as an order of the court;
2. That Defendant Americana Investments, LLC’s Motion To Dismiss
Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) and Memorandum in Support [#16],
filed September 3, 2013, is GRANTED IN PART and DENIED IN PART as follows;
a. That the motion is GRANTED with respect to the Seventh, Ninth (as
against defendant Americana only), Tenth, Eleventh, and Twelfth Claims
for Relief asserted in the Complaint and Demand for Jury Trial [#1],
filed July 2, 2013, and these claims are DISMISSED WITH PREJUDICE;
and
b. That in all other respects, the motion is DENIED;
3. That Plaintiff’s Motion for Partial Summary Judgment Against Defendant
Americana Investments, LLC and Request for Hearing [#67], filed June 6, 2014, is
GRANTED IN PART and DENIED IN PART as follows:
a. That the motion is GRANTED with respect to plaintiff’s request for
summary judgment on the First Claim for Relief asserted in the Complaint
and Demand for Jury Trial [#1], filed July 2, 2013 against defendant; and
b. That the request that the court conduct a hearing on the issues raised
by and inherent to the motion is DENIED;
4. That the Seventh, Ninth (as against defendant Americana only), Tenth,
Eleventh, and Twelfth Claims for Relief asserted in the Complaint and Demand for
Jury Trial [#1], filed July 2, 2013, are DISMISSED WITH PREJUDICE; and
5. That at the time judgment enters, judgment SHALL ENTER as follows:
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a. On behalf of defendant, Americana Investments, LLC, against plaintiff,
Chun Chee Seng, as to the Seventh, Ninth (as against Americana only),
Tenth, Eleventh, and Twelfth Claims for Relief asserted in the Complaint
and Demand for Jury Trial [#1], filed July 2, 2013; provided, that the
judgment as to these claims shall be with prejudice; and
b. On behalf of plaintiff, Chun Chee Seng, and against defendant,
Americana Investments, LLC, in the amount of six million dollars
($6,000,000) on the First Claim for Relief asserted in the Complaint and
Demand for Jury Trial [#1], filed July 2, 2013; plus prejudgment interest
at the rate specified by §5-12-102(1)(b), C.R.S., from the date of the
breach to the date of the judgment; and post-judgment interest at the rate
provided by law from the date of the judgment to the date the judgment in
paid in full
Dated August 21, 2014, at Denver, Colorado.
BY THE COURT:
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