July 18, 2019

Archives for February 7, 2012

Attorneys Required to Open Cases via CM/ECF in United States District Court for Colorado

On February 23, 2012, attorneys will be required to open civil cases in the United States District Court for the District of Colorado via ECF and provide payment via pay.gov. Other changes that will occur (some before February 23) include:

  • The clerk’s office will no longer return your filed complaint via email. You will receive a Notice of Electronic Filing (NEF) when your case is opened.
  • Summons forms, if provided, will be issued through ECF. You will receive a NEF with the summons and the magistrate consent form. A new event has been created for filing the civil summons called “Summons Request.” Please note you should use the national summons form, not the local form.
  • The fee for filing an appeal may be paid online at the time of filing.
  • A new event has been created for filing the corporate disclosure statement and entering corporate parents in CM/ECF.

More Information

Cases That Must Be Filed via Email and Will Be Opened by the Clerk’s Office

  1. Sealed (qui tam, etc.).
  2. Discovery motions in civil cases pending in another court.
  3. Petition to Quash an IRS summons.
  4. Petition for Judicial Assistance for Discovery from Foreign Tribunal pursuant to 28 U.S.C. § 1782.
  5. Petition to Perpetuate Testimony pursuant to Federal Rule 27.
  6. Petition to enforce administrative subpoenas or summons.
  7. Applications for civil seizure warrant.
  8. Application for warrants for inspection, entry and investigation or to determine need for and to undertake response action.
  9. Motions for Extension of Time to File Forfeiture Action.
  10. Filings of complaints and orders for appointment of receiver pursuant to 28 U.S.C. § 7547.
  11. Request to issue subpoena pursuant to the Digital Millennium Copyright Act.
  12. Applications pursuant to 12 U.S.C. § 3409.
  13. Certifications of judgments from other districts.

Click here to read the full announcement from the United States District Court for the District of Colorado.

Rate of Interest on Appealed Judgments to Remain 3% in 2012

The Colorado Supreme Court has revised a Chief Justice Directive, which maintains the rate of interest on judgments which are appealed at 3% for 2012, in accordance with C.R.S. §§ 5-12-106(2)(a) and 13-21-101(3).

The Colorado Secretary of State has certified the rate of interest, which Chief Justice Bender approved on February 7, 2012.

The details are outlined in CJD 85-22 – “Rate of Interest on Judgments Which Are Appealed”

e-Legislative Report: Week Four, February 6, 2012

At the Capitol – Week Four

CBA Bill Introduced: SB 12-131 – Duty to Search for Designated Beneficiary Agreements

On January 31, legislation sponsored by the CBA, SB 12-131, concerning the responsibilities of a fiduciary with regard to the estate of a person who may have executed a designated beneficiary agreement, was introduced by Senator Guzman and referred to the Judiciary Committee. The bill is scheduled for committee review on Wednesday, February 8 at 1:30 p.m.

Here is a little bit about the bill:

A personal representative in any probate proceeding regarding a decedent’s estate shall not be surcharged for making distributions to devisees or heirs at law that do not take into consideration a designated beneficiary agreement (DBA) if:

  • The personal representative has made a search in every county in which the personal representative has actual knowledge that the decedent was domiciled at any time during the 3 years prior to the decedent’s death for a recorded, unrevoked DBA in which the decedent granted the right of intestate succession; and
  • The personal representative has not received actual notice nor has actual knowledge of the existence of a valid, unrevoked DBA in which the decedent granted the right of intestate succession.

A personal representative or trustee is not individually or personally liable for making a distribution of property to devisees or heirs at law that does not take into consideration the right of a party to a DBA to inherit property due to a valid, unrevoked DBA if the personal representative or trustee complied with the fiduciary duty to search for the existence of a DBA and does not have actual notice or actual knowledge of the existence of a valid, unrevoked DBA in which the decedent granted a right of intestate succession.

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.

Due to the storm of the month on Friday, February 3, the LPC met by conference call to consider requests from sections of the CBA.

At the request of the Elder and Trust and Estate Sections, the LPC voted to support HB 12-1074 – Judicial Oversight of Guardians and Conservators. The bill is a response to the recent Legislative Audit of the state probate system. The bill authorizes the court with jurisdiction over a guardianship of an incapacitated person or over a conservatorship of a protected person to have access to data maintained by other state agencies in order to conduct an investigation when a guardian or conservator has failed to file required reports with the court or has failed to respond to court orders. The court will also have access to this data with respect to the incapacitated person or protected person. The bill specifies which types of data may be accessed. The court may access the data only to obtain contact information for the guardian, conservator, incapacitated person, or protected person.

The bill requires the court to preserve the confidentiality of the data obtained from state agencies and use the data only for the purposes of conducting the investigation of the guardian, conservator, incapacitated person, or protected person. Notwithstanding the provisions of the open records law, documents and information obtained by the court pursuant to an investigation are not public records and shall be open to public inspection only upon an order of the court based on a finding of good cause.

The judicial department and other state agencies may enter into agreements for the sharing of this data with the applicable court. Under current law, prior to appointment as a guardian or conservator, a nominee signs an acceptance of office. The bill amends the acceptance of office to include an acknowledgment that the nominee understands that Colorado law allows the court to access personal contact information held by state agencies if the nominee fails to file required reports or fails to respond to a court order.

The bill is assigned to the Judiciary Committee and is scheduled for review on Thursday, February 9 at 1:30 p.m.

The LPC also voted to support the budget priorities of the Judicial Branch. The Judicial Liaison Section urged support for all nine listed submitted budget priorities; the Trust & Estate and Elder Law Sections urged support for additional probate staff to address identified needs across the state; and finally the Access to Justice Commission specifically requested Bar Association support for additional “pro se” or self represented litigants throughout the state. The other budget priorities include: a modest pay increase for the lowest paid persons working in the court system; implementation of the final judges from the 2007 legislation (County Court Judge in Jefferson County and a district court judge in the 6th Judicial District [La Plata, Archuleta, and San Juan Counties); additional probation officers (sex offender supervision); hardware for in–house e–filing project; funding for judge training; operating funds for the new Ralph L. Carr Justice Center; and funding for courthouse furnishings across the state. Each request from the Judicial Branch has an identified designated cash fund source and will not increase Judicial’s general fund request; as a matter of fact, the FY 2013 budget request from State Judicial reflects a general fund request reduction of just under $500,000.

In the coming weeks, the Joint Budge Committee (JBC) will be considering the Judicial Branch budget priorities as well as requests from the various departments of state government.

Click here for the full e-Legislative Report.

Judge Diana Barber to Retire from Montrose County Court Bench

The Seventh Judicial District Nominating Commission will meet March 19, 2012 to interview and select nominees for appointment by Governor Hickenlooper to the office of Associate County Judge for Montrose County. The vacancy will be created by the retirement of the Honorable Diana Barber on March 30, 2012.

Eligible applicants for appointment to fill the vacancy must be qualified electors of Montrose County and must be admitted to the practice of law in Colorado. Applicants must also reside in the Southwest Water Conservation District (link below provides map). Applications must be received by Wednesday, February 29. The appointed county court judge will serve an initial provisional term of two years before facing a retention election. Retained judges serve four-year terms.

Further information about applying for the vacancy is available here from the Colorado Judicial Branch.

Governor Hickenlooper Appoints David Lobato to Pueblo County Court Bench

On Tuesday, February 7, 2012,  Governor John Hickenlooper announced the appointment of David Lobato to serve as a county court judge in the Tenth Judicial District. His appointment is effective immediately.

Lobato will fill the vacancy created by the retirement of the Honorable Ernest Ruybalid.

Lobato, of Pueblo, currently serves as the Deputy State Public Defender in the Pueblo Regional Office. He works exclusively in the area of criminal defense, handling misdemeanor, traffic, and felony cases.

Before attending law school, Lobato was an associate pastor at Cathedral of the Sacred Heart in Pueblo. He was ordained a Roman Catholic Priest after completing course studies in Rome. He earned his bachelor’s degree from the College of Santa Fe and his law degree from the University of Colorado Law School.

 

Scope of Civil Procedure Rules Amended by the Colorado Supreme Court

The Colorado Supreme Court has amended Rule 1 of the Colorado Rules of Civil Procedure, Scope of Rules. The change provides that:

  1. Amendments shall be effective on the date established by the Supreme Court at the time of their adoption, and
  2. Unless otherwise stated by the Supreme Court as being applicable only to actions brought after the effective date of an amendment, amendments govern all proceedings in actions brought after they take effect and all further proceedings in pending actions (except if a court determines that their application in a particular pending action would not be feasible or would work injustice, in which case the former procedure applies).

This amendment was adopted on February 1, 2012, applies retroactively to January 1, 2012, and is effective immediately.

Click here to review the red line changes to Rule 1 of the Colorado Rules of Civil Procedure, outlined as Rule Change 2012(01).

Tenth Circuit: Insufficient Non-Conclusory Facts to Support Allegation of Employment Discrimination and Retaliation

The Tenth Circuit Court of Appeals published its opinion in Khalik v. United Air Lines on Monday, February 6, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner is an Arab-American, born in Kuwait, who practices Islam. Respondent hired her in 1995, and she rose to the position of Business Services Representative before being terminated in 2009. Petitioner alleges claims under Title VII of the Civil Rights Act of 1964 for retaliation and discrimination because of race, religion, national origin, and ethnic heritage. Petitioner’s complaint also brings a retaliation claim under the Family and Medical Leave Act (FMLA).

“While the 12(b)(6) standard does not require that [Petitioner] establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether [Petitioner] has set forth a plausible claim. . . . To set forth a prima facie case of discrimination, a plaintiff must establish that (1) she is a member of a protected class, (2) she suffered an adverse employment action, (3) she qualified for the position at issue, and (4) she was treated less favorably than others not in the protected class. The burden then shifts to the defendant to produce a legitimate, non-discriminatory reason for the adverse employment action. If the defendant does so, the burden then shifts back to the plaintiff to show that the plaintiff’s protected status was a determinative factor in the employment decision or that the employer’s explanation is pretext. Title VII also makes it unlawful for an employer to retaliate against an employee.”

The Court agreed with the district court that Petitioner’s allegations are the type of insufficient conclusory and formulaic statements disregarded by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1955 (2009). “[Petitioner]’s general assertions of discrimination and retaliation, without any details whatsover of events leading up to her termination, are insufficient to survive a motion to dismiss.” The Court noted that while specific facts are not necessary, some facts are. The non-conclusory facts presented do not sufficiently allege discrimination or retaliation. “There is no context for when [Petitioner] complained, or to whom. There are no allegations of similarly situated employees who were treated differently. There are no facts relating to the alleged discrimination. There is no nexus between the person(s) to whom she complained and the person who fired her. Indeed, there is nothing other than sheer speculation to link the . . . termination to a discriminatory or retaliatory motive. And finally, [Petitioner] alleges nothing that would link her request for FMLA leave, which she provides no details about, to her termination.” Without more, her claims are not plausible under the Twombly/Iqbal standard, and the dismissal was affirmed.

Tenth Circuit: Although Corporation Made False or Misleading Statements to the Market, It Did Not Act with Scienter

The Tenth Circuit Court of Appeals published its opinion in In re Level 3 Communications Inc. Securities Litigation on Monday, February 6, 2012.

The Tenth Circuit affirmed the district court’s decision. This case arises from allegations that certain officers of Level 3 Communications, Inc. engaged in securities fraud. The lead plaintiff filed a class action complaint on behalf of all purchasers or acquirers of Level 3 securities between October 17, 2006, and October 23, 2007. Plaintiff alleges that Defendants made false or misleading statements of material fact to the market during the class period regarding Level 3’s progress in integrating several entities it had acquired.

Under Section 10(b) of the Securities Exchange Act of 1934, it is unlawful to “use or employ, in connection with the purchase or sale of any security . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe.” Additionally, 17 C.F.R. § 240.10b-5 prohibits “mak[ing] any untrue statement of a material fact.” On appeal, Plaintiff “argues that the district court should be reversed because the amended complaint adequately pleaded false statements of material fact made by [D]efendants, as well as facts sufficient to raise a strong inference of scienter. Although [the Court agreed] with [P]laintiff that at least a few of the complaint’s 237 paragraphs include materially false statements, [it affirmed] the district court’s dismissal of the complaint based on [the] conclusion that it fails adequately to plead scienter.”

According to the Court, “[t]he importance of integration to Level 3 and its investors does not mean that everything [D]efendants said on the topic was material. Many of the statements in [P]laintiff’s complaint are, as a matter of law, nothing more than puffery. . . . [B]road claims by [D]efendants regarding integration efforts and the customer experience overall are likewise non-actionable.” However, “on occasion [D]efendants’ comments regarding Level 3’s integration progress did cross the line from corporate optimism and puffery to objectively verifiable matters of fact” that could be actionable. Three of the statements were found to be false or misleading when made. However, “it is not enough for [P]laintiff to point out misleading statements of material fact. Under the heightened pleading standards of the PSLRA, [P]laintiff must state with particularity facts ‘giving rise to a strong inference’ that the [D]efendants acted with scienter, which we define as ‘a mental state embracing intent to deceive, manipulate, or defraud, or recklessness.'” The Court concluded that no cogent inference of scienter could be drawn from the complaint.

Tenth Circuit: Unpublished Opinions, 2/6/12

On Monday, February 6, 2012, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Unpublished

Beals v. United States Dep’t of Justice

United States v. Addison

United States v. Harwood

Sampson v. Integra Telecom Holdings, Inc.

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Bad Faith Breach of Insurance Contract by Public Entity and the Colorado Governmental Immunity Act

The Colorado Court of Appeals issued its opinion in Colorado Special Districts Property and Liability Pool v. Lyons III on February 2, 2012.

Bad-Faith Breach of Insurance Contract—Public Entity—Colorado Governmental Immunity Act—Tort—Discovery—Attorney Fees

Defendants William S. Lyons, Jr. and William S. Lyons III (collectively, Lyonses) appealed the district court’s order, pursuant to C.R.C.P. 12(b)(1), dismissing their claim for bad-faith breach of insurance contract against plaintiff Colorado Special Districts Property and Liability Pool (Pool) and third-party defendant County Technical Services, Inc. (CTSI), on the ground that the Pool and CTSI are immune from liability under the Colorado Governmental Immunity Act (CGIA). The order was affirmed and the case was remanded with directions.

In early 2006, several banks purchased bonds issued by Lincoln Creek Metropolitan District (District), a quasi-municipal corporation in Douglas County. The District issued the bonds to finance construction of a proposed master-planned residential community called Lincoln Creek Village. The Lyonses were members of the District’s board of directors and LCV, LLC, the developer’s board of directors. The banks brought an action (the underlying lawsuit) against LCV and the Lyonses, alleging claims for damages arising from the offering and sale of the bonds issued by the District. The Pool claimed it had no duty to defend or indemnify the Lyonses in the underlying lawsuit because the Lyonses were not covered under the insurance policy and the banks in the underlying lawsuit did not name the District as a defendant or sue the Lyonses in their capacity as members of the District’s board of directors. The trial court found that the Pool and CTSI were both “public entities” and, therefore, immune under the CGIA. It dismissed the Lyonses’ bad-faith claim against these entities.

The Lyonses contended that the district court erred in dismissing their claim for bad-faith breach of insurance contract under the CGIA. The CGIA provides a public entity the defense of sovereign immunity against actions for tort injuries and does not apply to actions grounded in contract. Here, the Lyonses’ bad faith breach of contract claim against the Pool and CTSI was a tort claim that existed independently of the Lyonses’ underlying contract claim against the Pool. Accordingly, the district court did not err in concluding that the CGIA applied to that claim.

The Lyonses next contended that the district court erred in determining that CTSI was a “public entity” within the meaning of the CGIA and, therefore, not immune under the CGIA. The definition of “public entity” includes any “separate entity created by intergovernmental contract or cooperation” composed only of entities that are themselves public entities under the statutory definition. Here, the Pool is a “separate entity created by intergovernmental contract or cooperation” among special districts. Because CTSI is a public corporation, is governmental in nature, and serves as an intermediary to the Pool, CTSI is an “instrumentality” of the Pool and, thus, a “public entity” under the CGIA. CTSI also is a public entity under CRS § 24-10-103(5) because, like the Pool, it is a separate entity created by intergovernmental cooperation between or among other public entities.

The Lyonses next contended that the district court abused its discretion by implicitly rejecting their request to conduct discovery on whether the Pool and CTSI waived their immunity. However, by their own admission, the Lyonses chose not to conduct discovery on the immunity issue because of a perceived need to maintain consistency between their positions in this case and the underlying lawsuit.

Finally, the Pool and CTSI requested an award of attorney fees for defending against the Lyonses’ bad faith claim on appeal. CTSI was entitled to its attorney fees on appeal because the only claim asserted against it was dismissed before trial under C.R.C.P. 12(b)(1). The Pool, however, was not entitled to attorney fees on appeal because the Lyonses’ breach of contract claim was stayed in the district court and had not been dismissed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 2, 2012, can be found here.

Colorado Court of Appeals: Petitioner Entitled to Attorney Fees and Costs for Piercing the Corporate Veil

The Colorado Court of Appeals issued its opinion in Swinerton Builders v. Nassi on February 2, 2012.

Attorney Fees—Breach of Contract—Pierce Corporate Veil

Plaintiff Swinerton Builders (Swinerton) appealed the district court’s order denying its motion to recover the attorney fees and costs that it incurred in successfully piercing Beauvallon Corporation’s (Beauvallon) corporate veil. The order was reversed and the case was remanded.

Swinerton entered into a construction contract with Beauvallon in 2001 that contained an arbitration clause and fee-shifting provision. After the construction project was completed, Swinerton filed a demand for arbitration, asserting breach of contract claims against Beauvallon and its president, defendant Craig Nassi, and an unjust enrichment claim against Beauvallon. Ultimately, the arbitrators ordered Beauvallon to pay Swinerton more than $1 million in damages, interest, attorney fees, and costs, and the district court confirmed this award. Thereafter, the district court ruled in favor of Swinerton, concluding that Swinerton could pierce Beauvallon’s corporate veil and hold Nassi personally liable for the arbitration award against Beauvallon.

Swinerton contended that the district court erred in refusing to award it the attorney fees and costs that it incurred in its successful veil-piercing action. A party who prevails in an action to pierce the corporate veil of a corporation may recover the attorney fees and costs incurred in that action if (1) the action was brought to enforce a breach of contract judgment against the corporation; and (2) the contract underlying the judgment authorized an award of fees and costs for enforcing the judgment against the corporation.

Here, Swinerton’s action to pierce the corporate veil was not a separate and independent claim. Rather, it was a procedural mechanism to enforce the arbitration award against Beauvallon in the underlying breach of contract action. Thus, the veil-piercing lawsuit was, in effect, an enforcement action against Beauvallon. When the district court determined that Swinerton could pierce Beauvallon’s corporate veil, Nassi became liable for, among other things, Beauvallon’s contractual obligations under the fee-shifting provision. Accordingly, Swinerton was entitled to recover the reasonable attorney fees and costs incurred in the veil-piercing action. The case was remanded to the district court for a determination and award of the appropriate amount of such fees.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 2, 2012, can be found here.

Colorado Court of Appeals: Error to Give Presumption Instruction Because it Restricted Jury’s Consideration of the Totality of the Circumstances

The Colorado Court of Appeals issued its opinion in People v. Chirico on February 2, 2012.

Assault—Jury Instructions—Self-Defense—Citizen’s Arrest

Defendant Austin Chirico appealed from the judgment entered on a jury verdict finding him guilty of third-degree assault. The judgment was reversed and the case was remanded for a new trial.

The victim, with about thirty others, had been socializing and drinking alcohol one night at a friend’s home near the University of Colorado-Boulder campus. Victim confronted defendant, whom he believed had broken a fence at the home. When defendant attempted to walk away, victim grabbed defendant and shoved him. The two traded punches and wrestled on the ground until defendant captured the victim in a headlock. The victim sustained one or more blows to his face, which fractured his cheekbone, and defendant was charged with second-degree assault.

Defendant contended that it was reversible error for the trial court to instruct the jury that because every person is presumed to know the law, it was presumed that defendant knew someone could employ lawful force against him if he committed a crime in that person’s presence (the presumption instruction). It is undisputed that the trial court’s basic instructions regarding defendant’s right to self-defense and the law of citizen’s arrest were correct. In evaluating the reasonableness of a defendant’s belief in the need to take defensive action, however, a jury must consider the totality of the circumstances, including the perceptions of the defendant. Thus, although the presumption instruction, in general, did not misstate the law, it was error to give it to the jury in this case because it restricted the jury’s consideration of the totality of the circumstances, which was an issue to be decided by the jury in this matter.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 2, 2012, can be found here.