May 20, 2019

Archives for June 28, 2016

Application Period Open for Bankruptcy Judgeship in District of Colorado

BankruptcyCourtThe U.S. District Court for the District of Colorado announced that it is accepting applications for a bankruptcy judge in the District of Colorado. The position is located in Denver and will be available January 4, 2017, pending successful completion of a background investigation. Bankruptcy judges are appointed for 14-year terms pursuant to 28 U.S.C. § 152.

Qualified applicants must be members in good standing of the highest bar of at least one state, the District of Columbia, or the Commonwealth of Puerto Rico, and must be in good standing in every bar in which the applicant is a member. Applicants must possess, and have a reputation for, integrity and good character; possess, and have demonstrated, a commitment to equal justice under the law; possess, and have demonstrated, outstanding legal ability and competence; indicate by demeanor, character, and personality that the applicant would exhibit judicial temperament if appointed; and be of sound physical and mental health sufficient to perform the essential duties of the office. Applicants must have been engaged in the practice of law or other suitable law-related occupation for the last five years, must not be related by blood or marriage to any judge of the Tenth Circuit or District of Colorado or a member of the Tenth Circuit Judicial Council, must comply with financial disclosure requirements, and must be willing to serve.

Application forms are available on the Tenth Circuit website and will be accepted through August 15, 2016. For more information, click here.

Colorado Supreme Court: “Plausible on its Face” Standard Applies to Motions to Dismiss

The Colorado Supreme Court issued its opinion in Warne v. Hall on Monday, June 27, 2016.

Civil Procedure—Pleading.

Warne petitioned for review of the Colorado Court of Appeals’ judgment reversing the dismissal of Hall’s complaint, which asserted a claim of intentional interference with contract. Although invited to apply the standard for dismissal articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the district court dismissed for failure to state a claim upon which relief could be granted without addressing either Twombly or Iqbal in its written order. By contrast, the court of appeals expressly declined to apply the more recent U.S. Supreme Court jurisprudence governing F.R.C.P. 12(b)(6), finding itself instead bound by the Colorado Supreme Court’s existing precedent, which had heavily relied on the U.S. Supreme Court’s earlier opinion in Conley v. Gibson, 355 U.S. 41 (1957), and particularly its language to the effect that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove “no set of facts” in support of his claim. Declining, therefore, to be influenced by the U.S. Supreme Court’s more recent admonition to the federal courts that “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face,’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570), the court of appeals found the complaint sufficient to state a claim.

The supreme court reversed the judgment of the court of appeals. Because the court’s case law interpreting the Colorado Rules of Civil Procedure in general, and C.R.C.P. 8 and 12(b)(5) in particular, reflected first and foremost a preference to maintain uniformity in the interpretation of the federal and state rules of civil procedure and a willingness to be guided by the U.S. Supreme Court’s interpretation of corresponding federal rules whenever possible, rather than an intent to adhere to a particular federal interpretation prevalent at some fixed point in the past, the Colorado Supreme Court found that its precedent was interpreted too narrowly by the court of appeals. Because it also found that plaintiff’s complaint, when evaluated in light of the more recent and nuanced analysis of Twombly and Iqbal, failed to state a plausible claim for relief, the court found the complaint insufficient under the Colorado Rules of Civil Procedure.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Economic Loss Rule Does Not Bar Tort Claims Arising Before Execution of Contract

The Colorado Supreme Court issued its opinion in Van Rees v. Unleaded Software, Inc. on Monday, June 27, 2016.

Economic Loss Doctrine—Conversion and Civil Theft—Public Impact or Interest—Private or Internal Transactions.

After Unleaded Software, Inc. failed to deliver contracted-for websites and services, Van Rees brought suit, alleging various tort theories, civil theft, three breach of contract claims, and a violation of the Colorado Consumer Protection Act (CCPA). The trial court dismissed all but the contract claims, and the court of appeals affirmed, holding that the economic loss rule barred the tort and civil theft claims and that Van Rees failed to allege a significant public impact under the CCPA.

The supreme court affirmed in part and reversed in part. The economic loss rule applies only if there is no independent tort duty. Here, where Van Rees alleged Unleaded induced him into entering a contractual relationship when it knew it would not be able to perform the promised services, there is an independent tort duty, and the court therefore reversed as to Van Rees’s tort claims. The court did not reach the question of the economic loss rule as it relates to civil theft and instead affirmed the dismissal of that claim because Van Rees failed to adequately allege the knowing deprivation of a thing of value. Finally, the court affirmed the dismissal of the CCPA claim for failure to allege a significant public impact.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 6/27/2016

On Monday, June 27, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Mercer

Pelletier v. United States

United States v. Marquez

United States v. Brown

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.