Atigun, Inc v. Premier Oilfied Equipment Company et al

Filing 60

ORDER On Motions to Dismiss re 43 , 45 , and 46 : Altira Fund's Motion to Dismiss 43 is granted as to Atigun's Eighth Claim for Relief and denied as to Atigun's Ninth Claim for Relief; Premier Oilfield Equipment Company's Motion to Dismiss 45 is granted as to Atigun's Fourth, Sixth, Seventh, Eighth, and Tenth Claims for Relief and denied as to Atiguns Ninth Claim for Relief; Defendants Tiger Oilfield Tank Company, LLC, Hy-Tech Truck & Trailer Manufacturing, LL C, Triple S Irrevocable Trust Fund, Gary Harms, Jr. andCindy Harms' Motion to Dismiss 46 is granted; Atigun's Fourth, Sixth, Seventh, Eighth, and Tenth Claims for Relief are dismissed with prejudice. Atigun's claims for breach of con tract, breach of warranty, and breach of the implied covenant of good faith and fair dealing shall go forward against Defendants Tiger, Hy-Tech, and Premier. Atiguns misrepresentation claim shall go forward against Defendants Tiger, Hy-Tech, Premier, and Gary Harms. Atigun's Colorado Uniform Fraudulent Transfer Act claim shall go forward against all Defendants, by Judge Richard P. Matsch on 8/1/2014.(jsmit)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Richard P. Matsch
Civil Action No. 13-cv-02219-RPM
ATIGUN, INC., an Alaska corporation,
Plaintiff,
v.
PREMIER OILFIELD EQUIPMENT COMPANY, a Delaware corporation;
TIGER OILFIELD TANK COMPANY, LLC, f/k/a DELTA OILFIELD TANK CO., LLC,
a Colorado limited liability company;
HY-TECH TRUCK & TRAILER MANUFACTURING, LLC, a Colorado limited liability
company;
ALTIRA TECHNOLOGY FUND V, L.P., a Delaware limited partnership;
TRIPLE S IRREVOCABLE TRUST FUND;
GARY HARM, JR. an individual; and
CINDY HARMS, an individual,
Defendants.

ORDER ON MOTIONS TO DISMISS

In this civil action, Plaintiff Atigun, Inc. asserts ten claims for relief against Defendants
arising from a failed transaction concerning tanks used in hydraulic fracturing. [Doc. 25 at
9-20.] Defendants have moved to dismiss Atigun’s Fourth, Sixth, Seventh, Eighth, Ninth,
and Tenth Claims for Relief.

[See Docs. 43, 45, 46.]

The Court carefully reviewed

Defendants’ motions and Atigun’s Combined Response thereto, and reaches the following
conclusions taking the well-pleaded allegations in Atigun’s Third Amended Complaint as
true and construing them in Atigun’s favor.

Atigun’s Fourth Claim for Relief seeks rescission of the parties’ tank purchase
agreement. Rescission is impossible at this point, and in any event, it is inconsistent with
Atigun’s other theories of recovery asking the Court to affirm the parties’ agreement. See
Trimble v. City and County of Denver, 697 P.2d 716, 722-23 (Colo. 1985).
Atigun’s Sixth and Eighth Claims for Relief seek damages for unfair trade practices and
fraudulent transfer, respectively, under Alaska law. Colorado has the “most significant
relationship” to Atigun’s allegations; accordingly, Colorado law governs this action, to the
exclusion of Alaska law.
Atigun’s Seventh Claim for Relief is brought under the Colorado Consumer Protection
Act (“CCPA”), Colo. Rev. Stat. § 6-1-105. Atigun has not plausibly shown, as it must to
sustain a CCPA claim at this stage, Rhino Linings USA, Inc. v. Rocky Mtn. Rhino Lining,
Inc., 62 P.3d 142, 146-47, 150 (Colo. 2003), that Defendants’ practices significantly impact
the public as actual or potential consumers of Defendants’ goods or services.
Atigun’s Ninth Claim for Relief is brought under the Colorado Uniform Fraudulent
Transfer Act (“CUFTA”), Colo. Rev. Stat. § 38-8-105. Defendant Altira Fund has moved to
dismiss this claim, arguing that it is not a “transferee” under CUFTA. [Doc. 43 at 4-6.]
Defendant Premier Oilfield Equipment Company also seeks dismissal of this claim on the
basis that Atigun has not plausibly shown that Premier acted with intent to defraud Atigun.
[Doc. 45 at 15-18.] The allegations concerning Defendants’ Asset Purchase Agreement,
construed in Atigun’s favor, plausibly show that Altira Fund was a transferee pursuant to the
Agreement; and that Premier acted with actual intent to defraud.

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Atigun’s Tenth Claim for Relief seeks recovery under a constructive fraud theory.
Atigun has failed to plausibly show that the parties’ arms-length transaction created a special
relationship between the parties or imposed a heightened duty that Defendants owed Atigun.
Upon the foregoing, it is
ORDERED that Altira Fund’s Motion to Dismiss [Doc. 43] is granted as to Atigun’s
Eighth Claim for Relief and denied as to Atigun’s Ninth Claim for Relief; and it is
FURTHER ORDERED that Premier Oilfield Equipment Company’s Motion to Dismiss
[Doc. 45] is granted as to Atigun’s Fourth, Sixth, Seventh, Eighth, and Tenth Claims for
Relief and denied as to Atigun’s Ninth Claim for Relief; and it is
FURTHER ORDERED that Defendants Tiger Oilfield Tank Company, LLC, Hy-Tech
Truck & Trailer Manufacturing, LLC, Triple S Irrevocable Trust Fund, Gary Harms, Jr. and
Cindy Harms’ Motion to Dismiss [Doc. 46] is granted; and it is accordingly
FURTHER ORDERED that Atigun’s Fourth, Sixth, Seventh, Eighth, and Tenth Claims
for Relief are dismissed with prejudice. Atigun’s claims for breach of contract, breach of
warranty, and breach of the implied covenant of good faith and fair dealing shall go forward
against Defendants Tiger, Hy-Tech, and Premier. Atigun’s misrepresentation claim shall go
forward against Defendants Tiger, Hy-Tech, Premier, and Gary Harms. Atigun’s Colorado
Uniform Fraudulent Transfer Act claim shall go forward against all Defendants.
Dated: August 1, 2014.
BY THE COURT:

s/Richard P. Matsch
_________________
Richard P. Matsch
Senior District Judge
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