Pipeline Productions, Inc. v. The Madison Companies, LLC, et al
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that defendants' Motion To Dismiss For Failure To State A Claim (Doc. #59) filed June 10, 2017 is SUSTAINED in part. The Court dismisses plaintiffs' claims against Bryan Gordon for breach of fi duciary duty, fraud and tortious interference. IT IS FURTHER ORDERED that defendants' Motion To Dismiss For Failure To State A Claim (Doc. #59) filed June 10, 2017 is OVERRULED as to all remaining claims. IT IS FURTHER ORDERED that the Honorable K. Gary Sebelius immediately initiate proceedings to expedite pretrial proceedings in this case and coordinate them with proceedings pending in the United States District Court for the District of Colorado, Madison Cos., LLC, v. Mosiman et al., Case No. 17-cv-01669-WJM-MJW. Signed by District Judge Kathryn H. Vratil on 10/11/2017. (hl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PIPELINE PRODUCTIONS, INC., et al.,
HORSEPOWER ENTERTAINMENT, et al.,
MEMORANDUM AND ORDER
On May 21, 2015, Pipeline Productions, Inc. and Backwood Enterprises, LLC brought suit
against Horsepower Entertainment and The Madison Companies, LLC. Complaint (Doc. #1).
On June 19, 2017, OK Productions, Inc. and Brett Mosiman joined as plaintiffs, and plaintiffs named
Bryan Gordon as an additional defendant. Amended Complaint (Doc. #56). Plaintiffs assert state
law claims for breach of contract, breach of fiduciary duty, fraud and tortious interference with a
prospective business advantage. Id. at ¶¶ 63-86. This matter comes before the Court on defendants’
Motion To Dismiss For Failure To State A Claim. (Doc. #59) filed July 10, 2017. For the reasons
below, the Court sustains defendants’ motion in part.
In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as
true all well-pleaded factual allegations and determines whether they plausibly give rise to an
entitlement of relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to dismiss,
a complaint must contain sufficient factual matter to state a claim which is plausible – not merely
conceivable – on its face. Id. at 679-80; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In
determining whether a complaint states a plausible claim for relief, the Court draws on its judicial
experience and common sense. Iqbal, 556 U.S. at 679. The Court need not accept as true those
allegations which state only legal conclusions. See id.
Plaintiffs bear the burden of framing their claim with enough factual matter to suggest that
they are entitled to relief; it is not enough to make threadbare recitals of a cause of action
accompanied by conclusory statements. See Twombly, 550 U.S. at 556. Plaintiffs make a facially
plausible claim by pleading factual content from which the Court can reasonably infer that defendant
is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Plaintiffs must show more than a sheer
possibility that defendant has acted unlawfully – it is not enough to plead facts that are “merely
consistent with” defendant’s liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which
offers labels and conclusions, a formulaic recitation of the elements of a cause of action or naked
assertions devoid of further factual enhancement will not stand. Iqbal, 556 U.S. at 678. Similarly,
where the well-pleaded facts do not permit the Court to infer more than the mere possibility of
misconduct, the pleading has alleged – but has not “shown” – that the pleader is entitled to relief.
See id. at 679. The degree of specificity necessary to establish plausibility and fair notice depends
on context because what constitutes fair notice under Rule 8(a)(2), Fed. R. Civ. P., depends on the
type of case. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (citing Phillips v. Cty.
of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008)).
Procedural And Factual Background
Pipeline Productions, Inc. is a Kansas corporation with its principal place of business in
Lawrence, Kansas. Doc. #56 at ¶ 7. Backwood Enterprises, LLC is an Arkansas limited liability
corporation with its principal place of business in Lawrence, Kansas. Id. at ¶ 8. Pipeline and
Backwood (collectively, “Pipeline”) produce live music and music festivals. Id. Brett Mosiman and
Nathan Prenger conduct business for Pipeline and related entities, including OK Productions.1
The Madison Companies, LLC is a Delaware limited liability company with its principal
place of business in Greenwood Village, Colorado. Id. at ¶ 11. Horsepower Entertainment, a
Delaware limited liability company, is a wholly-owned subsidiary of Madison with its principal
place of business in Greenwood Village, Colorado. Id. at ¶ 12. Madison and Horsepower
(collectively, “Horsepower”) provide venture capital. Bryan Gordon is the principal of Horsepower.
Id. at ¶ 13.
Highly summarized, the complaint alleges as follows. On November 4, 2014, Mosiman
proposed a joint venture agreement between Pipeline and Horsepower for the limited purpose of
owning and producing the Thunder Mountain Festival (“Thunder”). Id. at ¶ 32. On November 4,
2014,2 Horsepower, through its principal Gordon, orally accepted a modified version of Mosiman’s
proposal. Horsepower agreed that it would (1) pay Pipeline $750,000 for a 51 per cent interest in
Thunder, (2) provide $500,000 of operating capital for Thunder and (3) pay Pipeline $80,000 to
operate and produce Thunder. Id. at ¶ 33.
Based on the November 4 Agreement, Pipeline personnel spent more than 4,000 hours on
Thunder from November of 2014 through May of 2015. Id. at ¶ 37. Their efforts included creating
infrastructure, contracting with vendors, setting up ticketing and marketing and promoting Thunder.
Id. Mosiman used his industry contacts to obtain commitments from approximately 50 artists. Id.
OK Productions is an Arkansas entity which is related to Pipeline; the record does
not reflect the exact nature of that relationship.
The amended complaint alleges that the parties completed the agreement on
November 6, 2014. Doc. #56 at ¶ 36. However, the amended complaint refers to the agreement as
the “November 4 Agreement.” To avoid confusion, the Court adopts this language.
at ¶ 38. As part of its commitment to provide operating capital, Horsepower provided $272,000 to
pay deposits for music artists. Id. at ¶ 39. Pipeline kept Horsepower informed about Thunder’s
progress and provided daily reports about advance ticket sales. Id. at ¶ 41.
Based on music industry expectations and ticket sales, Horsepower forecasted that Thunder
would generate a loss in 2015. Id. at ¶ 47. In March and April of 2015, Horsepower and Pipeline
began to debate the terms of the November 4 Agreement. Id. at ¶¶ 48-52. Horsepower refused to
fulfill its commitment to (1) provide $268,000 to produce Thunder, (2) fund its purchase of a
51 per cent interest in Thunder and (3) pay Pipeline $80,000 for operating costs. Id. at ¶ 53. Despite
Pipeline’s continued efforts, it cancelled Thunder. Id. at ¶ 53. Around this time, defendants hired
some of plaintiffs’ key employees, including Nate Prenger and ticketing employees. Id. at ¶ 57.
On April 15, 2015, Horsepower filed suit against Pipeline, Mosiman and Prenger. Among
other things, Horsepower sought a declaratory judgment that it did not have any obligations
regarding the production of Thunder. Pipeline removed the case to the United States District Court
for the District of Delaware. On December 4, 2015, that court dismissed Horsepower’s claims for
lack of jurisdiction over the parties or the case.
On May 21, 2015, the week after it removed the Delaware case, Pipeline sued Horsepower
in this Court. On February 22, 2017, the Court overruled Horsepower’s motion to dismiss or to
transfer to the District of Delaware. See Memorandum And Order (Doc. #37). On April 27, 2017,
the Court overruled Horsepower’s motion for reconsideration. See Memorandum And Order
On June 19, 2017, Pipeline filed its amended complaint in this Court. Doc. #56. Pipeline
asserts breach of contract (Count 1), breach of fiduciary duty related to a joint venture (Count 2),
fraud (Count 3) and tortious interference (Count 4). Doc. #56 at ¶¶ 63-86. The amended complaint
added OK Productions, Inc. and Mosiman as plaintiffs. Id. at ¶ 13. It also joined Gordon as
defendant on plaintiffs’ claims for breach of fiduciary duty, fraud and tortious interference. Id. at
¶¶ 69, 77, 83.
Defendants seek dismissal of plaintiffs’ claims for breach of fiduciary duty, fraud and
tortious interference and all claims against Gordon. Memorandum In Support Of Motion To
Dismiss For Failure To State A Claim (Doc. #60) filed July 10, 2017. First, defendants assert that
the claims for breach of fiduciary duty and fraud should be dismissed because Kansas law requires
dismissal of tort claims based on the same facts as a breach of contract claim and the tort claims fail
to plead damages beyond the contract claim. Id. at 4-12. Second, defendants contend that the fraud
claim must be dismissed for failure to plead fraud with particularity. Id. at 14-16. Third, defendants
argue that plaintiffs fail to allege the elements of tortious interference with a contract or prospective
business advantage. Id. at 16-22. Fourth, defendants seek dismissal of all claims against Gordon
because plaintiffs added him as a defendant after the statute of limitations had expired. Id. at 23-27.
Breach Of Contract And Tort Claims
Defendants assert that under Kansas law plaintiffs cannot allege the same conduct in support
of both a breach of contract claim and a tort claim. Doc. #60 at 5 (citing Ford Motor Credit Co. v.
Suburban Ford, 699 P.2d 992, 998-99 (Kan. 1985)). Because plaintiffs’ claims for breach of
fiduciary duty, fraud and breach of contract largely rely on the same allegations, defendants argue
that the Court must dismiss the tort claims.
Kansas law does not support defendants’ argument. On multiple occasions, the Kansas
Supreme Court has allowed litigants to bring tort and contract claims based on common facts. See
Burcham v. Unison Bancorp, Inc., 77 P.3d 130, 145-46 (Kan. 2003) (breach of contract, tortious
interference with contract and breach of fiduciary duty); Gerhardt v. Harris, 934 P.2d 976, 981-83
(Kan. 1997) (breach of contract and fraud). The Kansas Supreme Court has stated, “[W]hen the
same conduct could satisfy the elements of both a breach of contract or of an independent tort,
unless conduct is permitted by the express provisions of a contract, a plaintiff may pursue both
remedies.” Bittel v. Farm Credit Servs. Of Cent. Kan., 962 P.2d 491, 498 (Kan. 1998). In their
reply, defendants correctly admit that contract and tort claims may coexist where “the tort claim is
based upon some independent duty arising outside of those imposed by the contract.” Reply To
Response To Motion (Doc. #63) filed August 14, 2017 at 6. Accordingly, the viability of plaintiffs’
claims depends on whether they allege breach of fiduciary duty and fraud as torts independent from
defendants’ contractual obligations.3
Breach Of Fiduciary Duty
Defendants argue that the Court should dismiss plaintiffs’ breach of fiduciary duty claim
because plaintiffs inappropriately base the tort claim on the same conduct as their breach of contract
claim. Doc. #60 at 10. Defendants assert that the November 4 Agreement created a joint venture
and defined the terms of the parties’ relationship; thus, defendants reason that plaintiffs should seek
a remedy for any breach of fiduciary duty through a breach of contract claim. Id.
Neither party contends that the November 4 Agreement permitted the alleged tortious
conduct. Thus, the Court will only analyze whether the plaintiffs allege independent torts. See
Bittel, 962 P.2d at 498.
Contrary to defendants’ arguments, “a party may be liable in tort for breaching an
independent duty toward another, even where the relationship creating such a duty originates in the
Universal Premium Acceptance Corp. v. Oxford Bank & Tr.,
277 F. Supp. 2d 1120, 1129 (D. Kan. 2003). Under Kansas law, all joint venture members owe their
co-venturers the “same fiduciary duty to each other as do partners.” Goben v. Barry, 679 P.2d 90,
97 (Kan. 1984). Partners owe each other the duties of loyalty and care. See Kan. Stat. Ann. § 56a404. Thus, even where parties form a joint venture through a contract, co-venturers owe each other
fiduciary duties unless the contract expressly negates these duties. Modern Air Conditioning, Inc.
v. Cinderella Homes, Inc., 596 P.2d 816, 823 (Kan. 1979). In fact, the Kansas Supreme Court has
held that plaintiffs can claim both breach of fiduciary duty and breach of contract against the same
defendants. Burcham, 77 P.3d at 145-46.
Here, the fact that plaintiffs and defendants formed their joint venture through contract does
not preclude plaintiffs from bringing independent tort actions based on these fiduciary duties.
Plaintiffs allege that defendants breached their fiduciary duty by, among other things, attempting
to force plaintiffs to amend their original agreement, threatening to sue plaintiffs and “pilfering
plaintiffs’ key employees and partners.” Doc. #56 at ¶ 73. Plaintiffs base their claim on acts which
the November 4 Agreement did not expressly govern. Because neither party contends that the
November 4 Agreement negates the co-venturers’ fiduciary duties and breach of fiduciary duty
constitutes an independent tort, plaintiffs may allege claims for breach of contract and fiduciary
For many years, Kansas courts have recognized an independent duty to refrain from
misrepresenting present facts or intentions. See Garhardt v. Harris, 934 P.2d 976, 981 (Kan. 1997)
(“if promisor had no intention at the time the promise was made to [perform contractual duties] . .
. there is actionable fraud”); El Dorado Nat’l Bank v. Eikmeier, 300 P. 1085, 1089 (Kan. 1931); Ice
Corp. v. Hamilton Sundstrand Inc., 444 F. Supp. 2d 1165, 1173 (D. Kan. 2006). Kansas courts
distinguish this duty from a party’s contractual obligations. “[T]he gravamen of [a fraud claim] is
not the breach of the agreement to perform, but the fraudulent representation concerning a present,
existing intention to perform when such intention is in fact nonexistent.” Modern Air Conditioning,
Inc., 596 P.2d at 824; Smith v. MCI Telecommunications Corp., 755 F. Supp. 354, 357
(D. Kan. 1990) (“[F]raud qualifies as an independent tort.”); Ice Corp., 444 F. Supp. 2d at 1173.
Thus, when properly pled, Kansas courts recognize fraudulent inducement as a tort independent
from breach of contract claims.
Viewing the facts in the light most favorable to plaintiffs, the amended complaint alleges a
plausible claim that defendants violated the general tort duty to refrain from misrepresenting present
facts or intentions. In the amended complaint, plaintiffs present more than a threadbare claim,
stating that defendants misrepresented their intention to perform their contractual duties in an effort
to coerce plaintiffs into a more onerous deal. Doc. #56 at ¶¶ 3, 45, 48. In particular, plaintiffs allege
that defendants “had no intention of performing their promises to fund Thunder at the time they
made them.” Id. at ¶ 77. Thus, the fraud claim relies on defendants’ intentions at the time of
contracting, not their non-performance of the contract. In arguing this motion, defendants rely on
inapposite cases – where plaintiffs improperly premised fraud claims on express contractual duties.
See Wade v. EMCASCO Ins. Co., 483 F.3d 657, 676 (10th Cir. 2007) (fraud claim “merely a claim
that EMCASCO breached its contractual duty”); see also VinStickers, LLC v. Millernet Corp.,
No. 07-2031-JWL, 2008 WL 360578 at *3 (D. Kan. Feb. 8, 2008) (fraud claims did not allege no
intent to perform at contracting); LaCrosse Furniture Co., Ltd. v. Shoda Iron Works Co., Ltd., No.
06-2505-JTM, 2007 WL 4463572 at *2 (D. Kan. Dec. 17, 2007) (fraud claim based on “failure to
satisfy  contractual obligation”). Because these cases are distinct, this authority does not persuade
the Court that dismissal of plaintiffs’ fraud claim is appropriate.
Failure To Allege Additional Damages
Defendants argue that the Court must dismiss these tort claims because plaintiffs fail to plead
damages beyond those alleged for the breach of contract claim. Doc. #60 at 12. In the breach of
contract claim, plaintiffs seek “substantial damages as a direct result of the breach of contract.”
Doc. #56 at ¶ 67. The breach of fiduciary duty and fraud claims seek “substantial damages as a
direct result of the breach of fiduciary duty” and “damages [sustained by] relying upon the promises
of defendants,” respectively. Id. at ¶¶ 75, 81. The Court will not allow plaintiffs to make a double
recovery. See Ice Corp., 444 F. Supp. 2d at 1173. At this early stage in litigation, however, the
Court allows plaintiffs to plead these claims in the alternative and recover extra-contractual damages
if they prove their tort allegations. Id.; see N. Ala. Fab. Co., Inc. v. Bedeschi Mid-west Conveyor
Co., LLC, No. 16-2740-DDC, 2017 WL 1836973 at *10. (D. Kan. May 8, 2017). Accordingly, the
Court overrules defendants’ motion on this ground.
Failure To Plead Fraud With Particularity
Rule 9(b), Fed. R. Civ. P., requires that plaintiffs plead fraud with particularity. Rule 9(b)
aims to afford opposing parties with fair notice of the facts upon which plaintiffs base fraud claims.
See Koch v. Koch Indus., Inc., 203 F.3d 1202, 1236 (10th Cir. 2000). It requires plaintiffs to allege
the who, what, when, where and how of the alleged fraud. U.S. ex. rel. Sikkenga v. Regence
Bluecross Blueshield of Utah, 472 F.3d 702, 726-27 (10th Cir. 2006). “Allegations of fraud may
be based on information and belief when the facts in question are peculiarly within the opposing
party’s knowledge and the complaint sets forth the factual basis for the plaintiff’s belief.” Scheidt
v. Klein, 956 F.2d 963, 967 (10th Cir. 1992). Further, the Court must read the requirements of Rule
9(b) in conjunction with Rule 8, which calls for pleadings to be “simple, concise, and direct, . . . and
to be construed as to do substantial justice.” Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246,
1252 (10th Cir. 1997).
Plaintiffs allege that Gordon, on behalf of Horsepower, made multiple statements that
materially misrepresented defendants’ intent to perform the November 4 Agreement at the time of
contracting. Doc. #56 at ¶¶ 26-28, 34-35. Plaintiffs identify specific dates for some of these
statements. Id. at ¶¶ 28, 34. The amended complaint includes direct quotes and explains how
plaintiffs relied on these statements. Id. at ¶¶ 34-35, 77, 79-80. Because plaintiffs provide
defendants with sufficient notice to form a defense to the fraud claim, the Court finds that plaintiffs
have pled fraud with particularity. The Court overrules defendants’ motion on this ground.
Tortious Interference Claim
In Count 4, plaintiffs plead tortious interference. Plaintiffs allege that defendants attempted
to make them “unable to fund a defense” in the Delaware litigation “by hiring away [plaintiffs’] key
partners and employees, including Nate Prenger, their Sprocket Marketing partners, and their key
ticketing employee.” Doc. #56 at ¶¶ 57-58, 84. Plaintiffs fail to specify whether they allege tortious
interference with a contract or a prospective business advantage. Because plaintiffs do not reference
any contracts with their employees, the Court construes the allegations as a claim for interference
with a prospective business advantage. See id. at ¶ 84.
In Kansas, plaintiffs must prove the following to recover based on tortious interference with
a prospective business advantage: (1) a business relationship or expectancy existed with probable
future economic benefit to plaintiffs; (2) defendants knew of the relationship or expectance; (3) but
for defendants’ conduct, plaintiffs were reasonably certain to have continued the relationship or
realized the expectancy; (4) defendants engaged in intentional misconduct and (5) plaintiffs
sustained direct and proximate damages. Byers v. Snyder, 237 P.3d 1258, 1269 (Kan. Ct. App.
Defendants assert that plaintiffs fail to plead all necessary elements of tortious interference.
In particular, defendants argue that plaintiffs did not allege that defendants engaged in any
intentional misconduct. Doc. #60 at 16-22. Kansas courts have determined that allegations of
“intent to do a harmful act without reasonable justification” satisfy the intentional misconduct
element. Linden Place, LLC, v. Stanley Bank, 167 P.3d 374, 380 (Kan. Ct. App. 2007). Here,
plaintiffs allege that defendants “hired away their key partners and employees . . . . for the purpose
of keeping [p]laintiffs from engaging in the frivolous Delaware lawsuit and driving [p]laintiffs out
of business.” Doc. #56 at ¶¶ 57-58. In short, plaintiffs allege that defendants intended to (1) hinder
plaintiffs’ ability to defend themselves in the Delaware litigation and (2) inflict economic hardship
on their business. These allegations constitute intentional misconduct. Viewing the facts in the light
most favorable to the plaintiffs, the Court finds that plaintiffs have sufficiently alleged the elements
of tortious interference with a prospective business advantage.
Claims Against Bryan Gordon
Defendants argue that Kansas has a two-year statute of limitations which bars the tort claims
against Gordon because plaintiffs did not name him as a defendant until June 19, 2017 – more than
two years after Horsepower repudiated the November 4 Agreement. See Doc. #60 at 23 (citing Kan.
Stat. Ann. § 60-513(a)(3), (a)(4), (b)).4
The two-year statute of limitations on a breach of fiduciary duty claim begins at the later of
(1) when plaintiff suffers substantial injury or (2) when the “injury becomes reasonably ascertainable
to the injured party.” Kan. Stat. Ann. § 60-513(a)(4), (b). In response to the motion to dismiss,
plaintiffs do not address the breach of fiduciary duty claim. In their amended complaint, plaintiffs
allege that defendants breached their duties by attempting to force plaintiffs to enter into a new deal,
threatening to sue plaintiffs and hiring plaintiffs’ employees. Doc. #56 at ¶ 73. By plaintiffs’ own
contentions, all of these acts all occurred in the spring of 2015 – more than two years before
plaintiffs added Gordon as a defendant. Id. at ¶¶ 48-49, 57. Further, plaintiffs suffered injury when
they cancelled Thunder and began defending the Delaware lawsuit, which Horsepower initiated on
April 15, 2015. The Court finds that Section 60-513(a)(4) bars plaintiffs’ breach of fiduciary duty
claim against Gordon.
Kansas law also requires plaintiffs to bring claims of tortious interference with a prospective
business advantage within two years of substantial injury or when the injury becomes reasonably
ascertainable. Kan. Stat. Ann. § 60-513(a)(4), (b). Plaintiffs allege that defendants’ tortious
interference caused two injuries; both were reasonably ascertainable more than two years before
The Court will not analyze whether the claims against Gordon relate back under
Rule 15(c), Fed. R. Civ. P., because plaintiffs concede that they do not. Doc. #62 at 11.
plaintiffs named Gordon as a defendant. The first injury occurred when defendants hired plaintiffs’
key employees in early 2015. Plaintiffs also allege that defendants’ tortious interference limited
their ability to defend the Delaware lawsuit. This lawsuit began in April of 2015. Because plaintiffs
failed to include Gordon as a defendant within two years of their alleged injuries, plaintiffs cannot
claim tortious interference with a prospective business advantage against him.
In Kansas, a cause of action for fraud accrues when the injured party discovers the fraud.
Kan. Stat. Ann. § 60-513(b). “[A] fraud is discovered at the time of  actual discovery or 
when, with reasonable diligence, the fraud could have been discovered.” Waite v. Adler, 716 P.2d
524, 528 (Kan. 1986). Plaintiffs argue that they could not reasonably ascertain Gordon’s fraudulent
activity until after Horsepower refused to comply with the November 4 Agreement. Doc. #62 at 1112. In particular, plaintiffs assert that they discovered Gordon’s fraud in October of 2015 or
February of 2016, when they learned about his history of fraud with other companies. Id. Plaintiffs
base this argument on an affidavit which is attached to their response. Ex. 1 to Doc. #62. The Court
cannot consider an affidavit when deciding a Rule 12(b)(6) motion because its analysis is confined
to the face of the complaint. See MacArthur v. San Juan Cty., 309 F.3d 1216, 1221 (10th Cir. 2002).
On the facts alleged in the amended complaint, plaintiffs’ interactions with Gordon that could have
allowed them to discover his role in the fraud occurred before or shortly after Horsepower breached
the November 4 Agreement in April of 2015 – more than two years before plaintiffs added Gordon
as a defendant. Doc. #56 at ¶¶ 19, 21, 26-28, 33-34, 52. Accordingly, the Court sustains
defendants’ motion on this ground.
Plaintiff’s Motion To Amend
In the final section of their response, plaintiffs seek leave to file an amended complaint if the
Court dismisses any of their claims. Doc. #62 at 13-14. District of Kansas Rule 15.1 requires a
party moving for leave to amend to attach a proposed amended pleading to its motion. Plaintiffs fail
to attach a proposed amended complaint to their motion. The Court requires compliance with this
rule. The proposed pleading allows the Court to assess whether the proposed amendment would be
futile and weigh other factors relevant to deciding the motion. Calderon v. Kan. Dept. Of Soc. and
Rehabilitation Servs., 181 F.3d 1180, 1186 (10th Cir. 1999). Further, the opposing party needs an
opportunity to review, evaluate and oppose the proposed amendment. Id.
Plaintiffs’ response indicates that the amended pleading would generally add specificity and
supplement Gordon’s involvement in the fraud. However, district courts do not need to “engage in
independent research or read the minds of litigants to determine if information justifying an
amendment exists.” Brever v. Rockwell Intern. Corp., 40 F.3d 1119, 1131 (10th Cir. 1994).
Because plaintiffs failed to comply with Rule 15.1, the Court is unable to assess whether to grant
leave to amend. Calderon, 181 F.3d at 1186 (court only need to consider motion to amend when it
gives court and opposing party notice of the basis of the proposed amendment). Thus, the Court will
not consider plaintiffs’ request for leave to amend.
IT IS THEREFORE ORDERED that defendants’ Motion To Dismiss For Failure To State
A Claim (Doc. #59) filed June 10, 2017 is SUSTAINED in part. The Court dismisses plaintiffs’
claims against Bryan Gordon for breach of fiduciary duty, fraud and tortious interference.
IT IS FURTHER ORDERED that defendants’ Motion To Dismiss For Failure To State A
Claim (Doc. #59) filed June 10, 2017 is OVERRULED as to all remaining claims.
IT IS FURTHER ORDERED that the Honorable K. Gary Sebelius immediately initiate
proceedings to expedite pretrial proceedings in this case and coordinate them with proceedings
pending in the United States District Court for the District of Colorado, Madison Cos., LLC, v.
Mosiman et al., Case No. 17-cv-01669-WJM-MJW.
Dated this 11th day of October, 2017 at Kansas City, Kansas.
s/ Kathryn H. Vratil
Kathryn H. Vratil
United States District Judge
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