College Pharmacy, Inc, et al v. Prairie Capital Advisors, Inc, et al
ORDER adopting 49 Report and Recommendations re Report and denying 23 Motion to Dismiss for Failure to State a Claim, by Judge Robert E. Blackburn on 8/7/2014.(trlee, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-02570-REB-BNB
COLLEGE PHARMACY, INCORPORATED EMPLOYEE STOCK OWNERSHIP PLAN,
John Stinar, Trustee, and
COLLEGE PHARMACY, INC., a Colorado corporation,
MARK LARIVEE, individually, and
PRAIRIE CAPITAL ADVISORS, INC., an Illinois corporation,
ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter is before me on the following:(1) defendant Mark Larivee’s Motion to
Dismiss Pursuant to Rule 12(b)(6) or in the Alternative Require Plaintiff to
Comply with Heightened Pleading Requirements Pursuant to Federal Rule 9(b)
and a Request for Attorney Fees [#23]1 filed November 21, 2013; and (2) the
Recommendation of United States Magistrate Judge [#49] filed July 18, 2014.
Because no objection to the recommendation was filed, I review the recommendation
only for plain error. See Morales-Fernandez v. Immigration & Naturalization
Service, 418 F.3d 1116, 1122 (10th Cir. 2005). Finding no error, much less plain error,
“[#23]” 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.
in the recommendation of the magistrate judge, I find and conclude that the
recommendation should be approved and adopted as an order of this court.
In the motion to dismiss [#23], defendant Mark Larivee argues that the
allegations in the complaint are not sufficient to state a claim on which relief can be
granted. Alternatively, he argues that the heightened pleading standard of FED. R. CIV.
P. 9 are applicable to the complaint of the plaintiffs. For the reasons stated by the
magistrate judge, I find and conclude that the allegations of the complaint are sufficient
to state a plausible claim for relief against Mr. Larivee. In addition, I find and conclude
that the pleading standards of FED. R. CIV. P. 9 are not applicable to the claim asserted
against Mr. Larivee.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#49] filed
July 18, 2014, is APPROVED and ADOPTED as an order of this court; and
2. That defendant Mark Larivee’s Motion to Dismiss Pursuant to Rule 12(b)(6)
or in the Alternative Require Plaintiff to Comply with Heightened Pleading
Requirements Pursuant to Federal Rule 9(b) and a Request for Attorney Fees
[#23] filed November 21, 2013, is DENIED.
Dated August 7, 2014, at Denver, Colorado.
BY THE COURT:
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