August 21, 2019

Colorado Court of Appeals: Juvenile Petition Dismissed Where Acts Charged Occurred when Offender Under 10 Years Old

The Colorado Court of Appeals issued its opinion in People in Interest of P.K. on August 27, 2015.

Juvenile—Aggravated Incest—Subject Matter Jurisdiction—Age.

In 2011, when P.K. was 11 years old, he was charged with three counts of aggravated incest against his younger brother. P.K. was between 8 and 11 years old at the time of the alleged offenses. P.K. offered an admission to a single charge of aggravated incest. The juvenile court accepted P.K.’s admission and sentenced him to two years of supervised probation. After a second petition to revoke probation was filed against P.K., his counsel asserted that the juvenile court lacked subject matter jurisdiction to have taken P.K.’s admission and imposed a sentence because he was under 10 years old for over half of the charging period. The juvenile court denied his motion to withdraw his admission. P.K. appealed.

In assessing the jurisdiction of the juvenile court, the relevant inquiry is the age at which the alleged acts were committed, not the age at which a disposition was imposed. Here, the prosecution charged multiple dates within a range, some of which occurred when P.K. was under 10 years old. Because the juvenile court only has jurisdiction over children 10 years of age and older, the juvenile court was without jurisdiction to accept P.K.’s admission because the charging document was fatally defective by including dates in which P.K. was under the age of 10. The order was reversed and the case was remanded with directions to the juvenile court to dismiss the delinquency petition without prejudice.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: “Reverse Preemption” Deprived District Court and Tenth Circuit of Subject Matter Jurisdiction

The Tenth Circuit Court of Appeals issued its opinion in Western Insurance Co. v. A & H Insurance Inc. on Friday, April 24, 2015.

Western Insurance is insolvent and being liquidated in Utah state court. The liquidator brought suit against several of Western’s “affiliates” to recover funds Western had transferred to them. The defendants removed the ancillary proceeding to federal court under diversity jurisdiction, and the liquidator sought a remand, which the district court granted. Defendants appealed.

Because insolvent insurers are exempt from federal bankruptcy protection, state law governs insurer insolvency proceedings. After the defendants removed the case to federal court, liquidators argued the McCarran-Ferguson Act barred removal, as it is essentially a “reverse preemption” doctrine. The district court remanded “for the reasons stated on the record.”

The Tenth Circuit first evaluated its jurisdiction and found it could only proceed to entertain the appeal if the remand order was not based on lack of subject matter jurisdiction. In its order, the district court made several contradictory statements regarding its rationale for remand, leaving it unclear whether it relied on the McCarran-Ferguson Act’s “reverse preemption” in its remand order. However, the Tenth Circuit found that the bulk of the district court’s decision focused on the McCarran-Ferguson Act. Because the district court’s remand was based to a fair degree on lack of subject matter jurisdiction, the Tenth Circuit found it lacked jurisdiction to hear the appeal.

The appeal was dismissed.

Colorado Court of Appeals: Complaint Timely Filed in ICCES Despite Selection of Wrong District Court

The Colorado Court of Appeals issued its opinion in Maslak v. Town of Vail on Thursday, January 15, 2015.

CRCP 106(a)(4)—Complaint—E-filing—Lack of Subject Matter Jurisdiction.

The Town of Vail (Town) and the Vail Recreation District (VRD) submitted an application to the Planning Commission to amend the Vail Golf Course’s conditional use permit so the golf course could be expanded to accommodate an events center. Over the objections of plaintiffs (collectively, homeowners), the Planning Commission approved the application. The homeowners appealed the Planning Commission’s decision to the Town Council, which upheld the decision. The homeowners then filed a CRCP 106(a)(4) complaint, seeking review of the Town Council’s decision. Although the complaint was timely filed, it was inadvertently e-filed in Denver District Court, the wrong district court. The complaint was thereafter e-filed in the Eagle County District Court, the correct district court, but by then it was not timely. The court granted defendants’ motions to dismiss for lack of subject matter jurisdiction and awarded defendants their attorney fees.

On appeal, the homeowners contended that, because their complaint was timely filed (albeit in the wrong court), the Eagle County District Court erred in dismissing it for lack of subject matter jurisdiction. The Court of Appeals agreed. The fact that the homeowners e-filed their complaint with the Denver District Court did not deprive the Eagle County District Court of its subject matter jurisdiction over the action. Furthermore, submitting the complaint to the “correct court” pursuant to the Denver District Court Clerk’s e-filing rejection notice instructions, did not constitute the filing of an entirely new and separate action for purposes of invoking district court jurisdiction within the twenty-eight-day jurisdictional window. The orders were vacated and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Issue of Federal Law Does Not Confer Federal Jurisdiction Over State Law Claims

The Tenth Circuit Court of Appeals issued its opinion in Becker v. Ute Indian Tribe of the Uintah and Ouray Reservation on Tuesday, October 21, 2014.

Plaintiff Lynn Becker contracted to provide services to the Ute Indian Tribe of the Uintah and Ouray Reservation related to its mineral and energy resource development. A dispute arose regarding Becker’s compensation under the contract, and he brought claims for breach of contract, breach of covenant of good faith and fair dealing, and accounting claims against the Tribe in the U.S. District Court for the District of Utah. The Tribe moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. The district court granted the Tribe’s motion to dismiss, because all Becker’s claims were state law claims.

Becker appealed, asserting that although his claims were state law claims, the district court had federal question jurisdiction because the case raised substantial issues of federal law. The Tenth Circuit disagreed, finding instead that the mere question of a federal issue in a state cause of action does not automatically confer federal question jurisdiction. The district court’s dismissal was affirmed.

Colorado Court of Appeals: Failure to Exhaust Administrative Remedies Deprived Trial Court of Jurisdiction

The Colorado Court of Appeals issued its opinion in Liberty Bankers Life Insurance Co. v. First Citizens Bank & Trust Co. on Thursday, November 6, 2014.

Subject Matter Jurisdiction—Financial Institutions Reform, Recovery and Enforcement Act—Receiver—Proof of Claim—Doctrine of Administrative Exhaustion—Attorney Fees.

The underlying claims in this case relate to appellant’s (Liberty) participation in two loans with Colorado Capital Bank (CCB) for the purpose of funding the development of a townhome project. CCB was closed by the Colorado Division of Banking on July 8, 2011, and the Federal Deposit Insurance Corporation (FDIC) was named its receiver (FDIC-R). On the same day, First Citizens Bank & Trust Co. (FCBT) purchased the assets and assumed the liabilities of CCB in a purchase and assumption agreement. The FDIC later denied Liberty’s proof of claim, and Liberty thereafter filed suit against FCBT and the FDIC-R in federal court. In the state court proceedings, Liberty filed twelve counterclaims against FCBT, which were dismissed by the court.

On appeal, Liberty argued that the district court incorrectly dismissed its counts 1 through 3 for lack of subject matter jurisdiction. However, Liberty did not properly plead the claims found in its counterclaims in its original proof of claim. Therefore, the district court correctly dismissed those claims for lack of subject matter jurisdiction.

Liberty further argued that the doctrine of administrative exhaustion did not apply in this case. Liberty’s futility argument was based on (1) the transfer of assets and liabilities to FCBT and (2) the FDIC-R’s motion to dismiss in the federal litigation. The jurisdictional bar extends to successors in interest of the failed bank. Further, by failing to properly plead its claims in the proof of claim, Liberty had already failed to exhaust the process provided to it. FDIC-R’s actions in filing a motion to dismiss, therefore, had no bearing on futility. Accordingly, Liberty’s pursuit of relief is not futile “beyond a reasonable doubt,” and does not excuse its failure to exhaust its claims. The district court correctly dismissed those claims for lack of subject matter jurisdiction.

FCBT claimed that it was entitled to reasonable attorney fees incurred on appeal under CRS § 13-17-201. Although Liberty’s counterclaims facially alleged a tort claim of gross negligence and willful misconduct, the overall action was more accurately characterized as a contract action, because all of the counterclaims were based on acts or omissions relating to the alleged breach of the two participation agreements. The essence of Liberty’s action did not sound in tort, so FCBT was not entitled to attorney fees incurred on appeal under CRS § 13-17-201.

Summary and full case available here, courtesy of  The Colorado Lawyer.

Colorado Court of Appeals: Uniform Debt-Management Services Act Does Not Implicate Subject Matter Jurisdiction

The Colorado Court of Appeals issued its opinion in State of Colorado v. Johnson Law Group, PLLC on Thursday, November 6, 2014.

Uniform Debt-Management Services Act—Subject Matter Jurisdiction—Affirmative Defense—Waiver.

Plaintiff, the State of Colorado, appealed the district court’s order dismissing its complaint against defendants, Johnson Law Group, PLLC, a Florida private limited liability company, and Clint L. Johnson. Johnson is an attorney who, in 2006, was licensed to practice law in Florida. In 2008, he added a debt-management services practice that extended to approximately forty-two states. In 2011, plaintiff filed a complaint against defendants, asserting violations of the Uniform Debt-Management Services Act (UDMSA) and the Colorado Consumer Protection Act. The court dismissed the complaint, concluding that the legal services exception defense was jurisdictional and, therefore, defendants were not subject to UDMSA regulation.

On appeal, plaintiff contended that the district court erred in dismissing its complaint for lack of subject matter jurisdiction. Because the legal services exception in the UDMSA does not implicate subject matter jurisdiction, it can be waived if not timely asserted as an affirmative defense. Defendant did not assert this affirmative defense until the eve of trial. Therefore, defendant waived any legal services exception defense by failing to assert it in their responsive pleading. The order dismissing the action was reversed and the case was remanded to the district court for a determination of penalties to be assessed against defendants.

Summary and full case available here, courtesy of  The Colorado Lawyer.

Colorado Court of Appeals: Lien Against Judge’s Personal Property Correctly Deemed Spurious and Thus Invalid

The Colorado Court of Appeals issued its opinion in Egelhoff v. Taylor on Thursday, September 26, 2013.

Spurious Liens and Documents—Administrative Remedies—Subject Matter Jurisdiction.

Defendant Lesley Joe Taylor appealed the judgment declaring invalid his putative lien against the property of plaintiff Martin Foster Egelhoff. The judgment was affirmed.

Taylor filed a document purporting to be a lien with the Denver County Clerk and Recorder, asserting that Egelhoff owed him $500 million and that this debt was secured by Egelhoff’s real and personal property. The lien was found to be invalid pursuant to CRS § 38-35-204 and CRCP 105.1.

On appeal, Taylor asserted that the court erred in concluding that his lien was spurious and, thus, invalid. Taylor did not provide a transcript of the hearing. Therefore, it is presumed that the court’s ruling declaring the lien invalid is supported by the record. Further, neither the documents Taylor sent to the district court nor his arguments on appeal provided any legal or factual support for the validity of the lien. Accordingly, the district court did not err in finding the lien spurious and thus invalid.

Taylor also contended that Egelhoff failed to exhaust his administrative remedies before challenging the liens as spurious under CRS § 38-35-204 and, therefore, the court lacked subject matter jurisdiction. Egelhoff had no available administrative remedies to exhaust. The proper procedure for removing a spurious lien is to file a petition in a court seeking an order to show cause under CRS § 38-35-204, as Egelhoff did here. In addition, both Taylor and Egelhoff proceeded in this action as private parties, not state agencies. Therefore, the doctrine of exhaustion of administrative remedies was inapplicable.

Summary and full case available here.

Tenth Circuit: Court Did Not Have Subject Matter Jurisdiction Over Plaintiff’s Claims Against Federal Officers

The Tenth Circuit Court of Appeals published its opinion in Ingram v. Faruque on Friday, September 6, 2013.

Delbert Ingram is an employee at the Oklahoma City Department of Veterans Affairs Medical Center (“VAMC”). At the time of the incidents resulting in this appeal, VAMC police received a report from one of Mr. Ingram’s coworkers stating that Mr. Ingram had said he had been thinking about killing his supervisor.  Mr. Ingram was taken to an emergency room. An emergency room physician found Mr. Ingram to be was sufficiently ill “that immediate emergency action [was] necessary.” When Mr. Ingram attempted to leave the emergency room, Lt. Stevenson informed him that, although he was not under arrest, he was not free to leave the emergency room. Mr. Ingram stated that Lt. Stevenson said this with his hand on his firearm, and that after making this statement, Lt. Stevenson shut and locked the door to the padded isolation room. After conversations with physicians and being transported to a psychiatric ward, Mr. Ingram was held in the ward for over twenty-four hours before being medically cleared and released.

Mr. Ingram sued Defendants in their individual capacities claiming they violated his rights under the Fourth and Fifth Amendments of the U.S. Constitution by holding him in the psychiatric ward without his consent. Defendants filed motions to dismiss, arguing that, among other things, the district court lacked subject matter jurisdiction over the action, because the Federal Tort Claims Act (“FTCA”) provided the sole remedy for Mr. Ingram’s claims, and that the court therefore should not authorize a remedy under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). In Bivens, the U.S. Supreme Court recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.

The district court agreed and granted Defendants’ motions to dismiss. Specifically, the court concluded that Mr. Ingram had a remedy available under 38 U.S.C. § 7316 (“VA Immunity Statute”), which applies the remedy available against the United States under the FTCA to damages arising from the provision of medical services by health care employees of the Veteran’s Administration (“VA”). Because of the availability of that remedy, the district court concluded Mr. Ingram did not have a cause of action under Bivens. Mr. Ingram appealed.

The Tenth Circuit held that the text of the VA Immunity Statute created an exclusive remedy that precluded a Bivens claim. The court also concluded that Mr. Ingram’s claims fell within the scope of the VA Immunity Statute, such that he was precluded from bringing a cause of action under Bivens. Because Mr. Ingram had an adequate alternative remedy available through the VA Immunity Statute and the FTCA, it was not appropriate to authorize a Bivens remedy for Mr. Ingram. Accordingly, the Tenth Circuit held the district court did not err in ruling that it lacked subject matter jurisdiction over Mr. Ingram’s claims.


Tenth Circuit: District Court Lacked Jurisdiction Under FTCA and Tucker Act in FDIC Receivership Case

The Tenth Circuit Court of Appeals published its opinion in ECCO Plains, LLC. v. United States on Wednesday, September 4, 2013.

Ken Ulrich is the majority owner of High Plains Cattle Company, LLC. High Plains and Doug English formed ECCO Plains, LLC, to raise cattle for sale. Each made a $7,000,000 capital contribution to ECCO Plains. High Plains financed its capital contribution with a loan from the New Frontier Bank; Ulrich personally guaranteed the debt. English also financed his capital contribution from the Bank. No ECCO Plains assets were pledged as security for either loan. As part of the ECCO Plains operating agreement, the parties agreed that High Plains would, upon request, receive a return of its capital contribution before English received any of his capital contribution. The Bank, as well as FDIC, had a copy of the agreement. After the Bank became insolvent, FDIC was appointed receiver.

ECCO Plains sold approximately $5,500,000 worth of cattle to a packing house in Northern Colorado. FDIC caused the packing house to make the sale proceeds payable to both ECCO Plains and FDIC. High Plains made a written demand to FDIC to apply 100% of the sale proceeds to High Plains’ loan. The demand was based on its 50 percent membership interest in ECCO Plains and the terms of the ECCO Plains/English operating agreement. English, on the other hand, instructed FDIC to apply 50% of the proceeds to the High Plains loan and the other 50% to the English Cattle Company loan. FDIC, however, did neither. Instead, it applied all of the proceeds to the English Cattle Company loan. It then sold that loan, along with the High Plains loan, to third parties.

ECCO Plains, High Plains and Ulrich filed suit against the United States. All three alleged conversion and negligence under the Federal Tort Claims Act FTCA. ECCO Plains also alleged a Fifth Amendment Takings Claim. The government moved to dismiss based on lack of subject matter jurisdiction or, in the alternative, for failure to state a claim. The district judge granted the motion. He concluded ECCO Plains’ FTCA claims should be dismissed for lack of subject matter jurisdiction because it failed to file a notice of claim. The remaining claims were dismissed for failure to state a claim.

The Tenth Circuit first considered High Plains and Ulrich’s conversion and negligence claims. While those claims would be covered by the FTCA, the FTCA excludes claims arising out of interference with contract rights. The court agreed with the government that High Plains and Ulrich’s claims were actually that the FDIC interfered with their contractual right to the proceeds of the sale. Their complaint satisfied the elements of interference with contract under Colorado law and treatises in effect at the time of the FTCA’s enactment. The court held that the district court lacked subject matter jurisdiction over the conversion and negligence claims.

The court also held that ECCO Plain’s Fifth Amendment Takings claim should have been construed as an illegal exaction claim and dismissed for lack of jurisdiction. An illegal exaction claim exists when “the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum that was improperly paid, exacted, or taken from the claimant in contravention of the Constitution, a statute, or a regulation.” Under the Tucker Act, the United States Court of Federal Claims has jurisdiction over illegal exaction claims when the exaction is based on an asserted statutory power. Here, the FDIC acted under its receivership powers to take control of the cattle sale money.

The court reversed the district court’s dismissal of High Plains and Ulrich’s negligence and conversion claims and ECCO Plains’ Fifth Amendment Takings claim for failure to state a claim and remanded to the district court to dismiss the claims for lack of jurisdiction.

Tenth Circuit: Question of Jurisdiction Must First be Determined Before Issue of Interaction of Federal Banking and State Foreclosure Laws

The Tenth Circuit Court of Appeals published its opinion in Dutcher v. Matheson on Tuesday, August 13, 2013.

In 2011, Stuart T. Matheson, a Utah-based attorney, conducted a non-judicial foreclosure sale on behalf of ReconTrust against the Dutchers. After that sale, the Dutchers, along with the other named plaintiffs, filed a class-action lawsuit in Utah state court alleging that Matheson and his law firm, ReconTrust, and Bank of America violated Utah law as it applies to non-judicial foreclosures. The defendants sought to remove the case to federal court and filed a motion to dismiss based in part on federal preemption. The district court held that it had jurisdiction and dismissed the complaint for failure to state a claim.

Shortly thereafter, another district court in Utah concluded in a similar case that federal law did not preempt Utah state law. This led the plaintiffs in this case to file a motion for reconsideration. They also asked for leave to amend their complaint. The district court denied all motions. Plaintiffs appealed.

The central question was whether the court had subject matter jurisdiction to hear the case. A claim may be brought in federal court if the claim is one “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. When determining whether a claim arises under federal law, the court examines the well pleaded allegations of the complaint and ignores potential defenses.

The plaintiffs’ complaint did not assert any cause of action premised upon a violation of a federal statute or the Constitution. But the doctrine of complete preemption provides an exception to the well pleaded complaint rule. When the federal statute completely preempts the state law cause of action, a claim that comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. Complete preemption is rare.

In the Tenth Circuit, a claim of complete preemption demands a two-part analysis: the first question is whether the federal question at issue preempts the state law relied on by the plaintiff; and second, whether Congress intended to allow removal in such a case, as manifested by the provision of a federal cause of action. The court concluded, after reviewing the holdings of other circuits who have reviewed the issue, that the absence of a federal cause of action precluded the court from relying on complete preemption as a jurisdictional basis for the district court to act.

The district court held in the alternative that diversity jurisdiction provided a basis for its jurisdiction. In order to invoke diversity jurisdiction, a party must show that complete diversity of citizenship exists between the adverse parties and that the amount in controversy exceeds $75,000. Complete diversity is lacking when any of the plaintiffs has the same residency as even a single defendant. Here, the plaintiffs and some of the defendants—Matheson and his law firm—shared a state of residency: Utah. The court was not persuaded that some of the defendants had been fraudulently joined.

Accordingly, the Tenth Circuit VACATED the district court’s dismissal of this action and the denial of the plaintiffs’ motions for reconsideration and to amend. The court REMANDED with instructions for the district court to determine whether it has jurisdiction to act.

Colorado Court of Appeals: District Court Lacked Subject Matter Jurisdiction in Paternity Action Because Each Presumed and Natural Father Not Given Notice

The Colorado Court of Appeals issued its opinion in In re the Support of E.K., and Concerning the People on Thursday, June 20, 2013.

Paternity—Subject Matter Jurisdiction—Parties—Notice.

In this paternity action, P.W.K. (obligor) appealed the district court’s judgment adopting a magistrate’s order that established his paternity of three children, E.K., J.K., and P.K. The judgment was vacated and the case was remanded with directions.

Obligor did not dispute that he was P.K.’s biological parent. Genetic-testing results excluded obligor as the biological parent of E.K. and J.K. Mother identified by name the separate biological fathers for E.K. and J.K., and she testified that each biological father had met his respective child. The magistrate adjudicated obligor the parent of the three children, incorrectly stating in her written order that obligor had admitted that he was their parent, and ordered him to pay child support and the costs of genetic testing.

The Court of Appeals considered on its own motion whether the district court lacked subject matter jurisdiction in this matter. A district court lacks jurisdiction to resolve matters in a paternity action unless each man presumed to be the children’s father and each man alleged to be the children’s natural father are made parties to or given notice of the action. Because the alleged biological fathers of E.K. and J.K. were not made parties to or given notice of this paternity action, the judgment was vacated for lack of subject matter jurisdiction. The case was remanded to the district court for further proceedings in compliance with the Uniform Parentage Act.

Summary and full case available here.

Tenth Circuit: Environmental Group Plaintiffs Had Standing to Challenge Oil and Gas Leases But Claims Not Ripe

The Tenth Circuit published its opinion in Southern Utah Wilderness Alliance v. Palma on Tuesday, January 8, 2013.

Kirkwood Oil and Gas, LLC owned 39 oil and gas leases in Southern Utah that in the 1980s it applied to convert to combined hydrocarbon leases. Such leases would allow Kirkwood to extract oil from tar sands. The Bureau of Land Management (BLM) never accepted or rejected Kirkwood’s applications. Between 2006 and 2008, BLM and the Interior Board of Land Appeals (IBLA) issued several decisions declaring that the underlying oil and gas leases were “suspended” pending review of the conversion applications. The Southern Utah Wilderness Alliance and several other environmental groups (SUWA) alleged BLM and IBLA violated the Mineral Leasing Act and other federal laws by retroactively deeming the 39 Kirkwood leases to be suspended, thereby avoiding expiration of the leases according to their terms. The district court held SUWA did not have standing to bring its claims and dismissed the suit for lack of subject matter jurisdiction.

The Tenth Circuit discussed the affidavits SUWA submitted to establish injury in fact and held that the district court “misapplied the law when it rejected SUWA’s standing on the basis that the affidavits failed to show its members have visited each of the leases at issue. Neither our court nor the Supreme Court has ever required an environmental plaintiff to show it has traversed each bit of land that will be affected by a challenged agency action.” The court also held that the district court had erred in holding SUWA failed to show a concrete injury sufficient to support standing. “A plaintiff who has repeatedly visited a particular site, has imminent plans to do so again, and whose interests are harmed by a defendant’s conduct has suffered injury in fact that is concrete and particularized.”

The court found that while SUWA was a proper party to challenge the BLM’s decision, its claims were not yet ripe. The challenged decisions were interim decisions, not final. The BLM had not made a decision regarding converting to combined hydrocarbon leases and it appeared unlikely Kirkwood would engage in any oil or gas development until that decision was made. Thus, any harm to SUWA’s members was not imminent or certain. The court remanded to the district court for dismissal without prejudice.