United States District Court, D. Colorado
ORDER RE: RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
ROBERT E. BLACKBURN, District Judge.
The matter before me is the Recommendation of United States Magistrate Judge [#96],  filed July 31, 2014. No objections having been filed to the recommendation, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005). I adopt the recommendation in all but two particulars.
The majority of the magistrate judge's recommended disposition admits of no error, much less plain error. It is clear that defendant has admitted all material facts necessary to prove up plaintiff's claim for breach of contract with respect to the Second Settlement Agreement and that plaintiff therefore is entitled to summary judgment as to that claim. Moreover, because the amount of damages attendant on the breach is fully liquidated, no further evidence need be taken to enter judgment for plaintiff on that claim.
I further agree with the magistrate judge that the motion to dismiss of defendant, Americana Investments, LLC ("Americana"), should be granted as to plaintiff's federal and state securities claims (which are barred by limitations and not subject to equitable tolling) and common law fraud claim (which is not plead with the requisite particularity), and denied with respect to plaintiff's breach of contract claim. Thus the recommendation is approved and adopted to that extent as well.
However, I disagree with the magistrate judge that defendant failed to adequately brief its motion to dismiss with respect to plaintiff's claim under §11-51-501, C.R.S. I find that the issue was adequately raised and joined by the motion and that this claim plainly suffers from the same infirmities that warrant dismissal of plaintiff's common law fraud claim. Moreover, because I concur with the magistrate judge that plaintiff is entitled to summary judgment on his breach of contract claim against Americana, his claim for unjust enrichment against this same defendant is no longer available as an alternative theory of recovery and therefore now is properly dismissed as against this particular defendant. See West Ridge Group, LLC v. First Trust Co. of Onaga, 2011 WL 635567 at *7 (10th Cir. Feb. 23, 2011). Thus, I must respectfully reject the recommendation insofar as it recommends denying the motion to dismiss these two claims.
For these reasons, I approve and adopt the recommendation of the United States magistrate judge, except as it recommends denying defendant's motion to dismiss plaintiff's claims for unjust enrichment (as against Americana only) and violation of §11-51-501, C.R.S. These claims also will be dismissed.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#96], filed July 31, 2014, is APPROVED AND ADOPTED in part and respectfully REJECTED IN PART as follows:
a. That the recommendation is respectfully REJECTED insofar as it recommends that defendant's motion to dismiss plaintiff's Ninth Claim for Relief, alleging unjust enrichment as against Americana only, and Twelfth Claim for Relief, alleging a claim for relief under §11-51-501, C.R.S., be denied; and
b. That in all other respects, the recommendation is APPROVED AND ADOPTED as an order of the court;
2. That Defendant Americana Investments, LLC's Motion To Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) and Memorandum in Support [#16], filed September 3, 2013, is GRANTED IN PART and DENIED IN PART as follows;
a. That the motion is GRANTED with respect to the Seventh, Ninth (as against defendant Americana only), Tenth, Eleventh, and Twelfth Claims for Relief asserted in the Complaint and Demand for Jury Trial [#1], filed July 2, 2013, and these claims are DISMISSED WITH PREJUDICE; and
b. That in all other respects, the motion is DENIED;
3. That Plaintiff's Motion for Partial Summary Judgment Against Defendant Americana Investments, LLC and Request for Hearing [#67], filed June 6, 2014, is ...