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Deatley v. Allard

United States District Court, D. Colorado

January 9, 2015

ALAN E. DEATLEY, an individual, 15 CORPORATIONS, INC., a Washington state corporation, and SOLUTIONS INTERNATIONAL LLC, an Oregon Limited Liability Company, Plaintiffs,
v.
KERMIT ALLARD, individual, ROBERT KLICK, individual, DAVE ZAMZOW, individual, ALLARD & KLICK, LLC, a Colorado Limited Liability Company, and EHRHARDT KEEFE STEINER & HOTTMAN, a Colorado Limited Liability Limited Partnership, Defendants.

ORDER

RAYMOND P. MOORE, District Judge.

This matter concerns Plaintiffs' allegations that Defendants engaged in negligent misrepresentation, professional negligence, fraud, and defamation in regards to accounting and valuation services provided to Plaintiffs with respect to conservation easements in Colorado. (ECF No. 3 at 2.)

This matter is before the Court on Defendant Zamzow's motion to dismiss (ECF No. 22), Defendants Allard, Klick, Allard Klick & Company LLC's[1] (hereinafter "Allard Defendants") (ECF No. 23) as well as their joinder to another Defendant's motion to dismiss (ECF No. 44), and EKS&H, LLLP's[2] (hereinafter "EKS&H") motion to dismiss (ECF No. 25). Plaintiffs did not respond to any of the motions to dismiss within the time permitted by Local Rule 7.1(d) or request an extension of time in which to respond. D.C. Colo. L. Civ. R. 7.1(d); ( see generally Dkt.). This matter is ripe for adjudication.

For the reasons stated below, the Court GRANTS Defendant Zamzow's motion to dismiss (ECF No. 22), Allard Defendants' motion to dismiss (ECF No. 23), and Defendant EKS&H's motion to dismiss (ECF No. 25). The Court DISMISSES Plaintiff's First Amended Complaint (ECF No. 3) without prejudice.

I. BACKGROUND

A. Factual Background

The following facts come from Plaintiffs' Amended Complaint (ECF No. 3) and are accepted as true for purposes of adjudicating the instant motions.

Beginning in 2000, Allard Defendants and Zamzow provided accounting and valuation services to DeAtley. (ECF No. 3 ¶ 10.) The valuation services related to a conservation easement. (ECF No. 3 ¶ 11.) Zamzow collected and organized data for the valuation analysis to be performed by Defendant Allard. (ECF No. 3 ¶ 14.) Defendant Allard assembled the valuation report and signed the report. (ECF No. 3 ¶ 16.) "The valuation report was the basis for a conservation easement donation claimed by DeAtley and his business interests." (ECF No. 3 ¶ 18.) "The valuation report was the basis for deductions submitted and claimed by DeAtley and his business interests in federal tax filings." (ECF No. 3 ¶ 20.) Some of these valuation services were provided to DeAtley in Colorado. (ECF No. 3 ¶ 26.)

EKS&H provided accounting, tax, and valuation services to Plaintiffs. (ECF No. 3 ¶ 34.) Plaintiff 15 Corporations ("15 Corporations") is a successor in interest to thirteen different corporations. (ECF No. 3 ¶ 3.) In 2011, the Colorado Department of Revenue disallowed tax credits sold by the thirteen different corporations for which 15 Corporations is the successor in interest. (ECF No. 3 ¶ 38.) Six months prior to the Colorado Department of Revenue's disallowing the tax credits sold by the thirteen different corporations for which 15 Corporations is the successor in interest, DeAtley was indicted on criminal charges related to the conservation easements organized by various entities, including Defendants. (ECF No. 3 ¶ 39.)

B. Procedural Background

This is one of a series of cases filed by Plaintiffs related to DeAtley's involvement with Colorado conservation easement tax credits. E.g., 15 Corps., Inc. v. Colo. Dep't of Rev., Case No. 13-CV-0251-WJM-MJW (D. Colo.) (dismissed without prejudice on Nov. 25, 2013); DeAtley v. Keybank Nat'l Ass'n, Case No. 12-CV-02973-PAB-BNB (D. Colo.) (dismissed without prejudice on Aug. 23, 2013 as to certain defendants; judgment in favor of the remaining defendant entered on Dec. 30, 2014); Deatley v. Stuart, Case No. 13-CV-01140-REB-BNB (D. Colo.) (dismissed without prejudice on Feb. 24, 2014); DeAtley v. Powers, Case No. 13-2-35139-1 (Sup. Ct. of King Cty. Wash.) (status unknown).

In the instant lawsuit, Plaintiffs allege four sparsely-pled causes of action. (ECF No. 3.) In Claim One, Plaintiffs allege that Defendants, in the course of their professional services to Plaintiffs, provided misrepresentations. (ECF No. 3 ¶¶ 52-63.) In Claim Two, Plaintiffs allege that Defendants engaged in professional negligence. (ECF No. 3 ¶¶ 64-75.) In Claim Three, Plaintiffs allege that Defendants engaged in fraudulent conduct. (ECF No. 3 ¶¶ 76-88.) In Claim Four, Plaintiffs allege that Defendants defamed Plaintiffs with regard to statements made to a grand jury, to prosecutors, to third-party purchases, and in court documents. (ECF No. 3 ¶¶ 89-94.)

This case was transferred to the Court from the United States District Court for the Western District of Washington. (ECF No. 1.) The Court previously dismissed certain Defendants from the action. (ECF No. 29.) The remaining Defendants filed motions to dismiss under either Rule 12(b)(6) or 9(b) of the Federal Rules of Civil Procedure or a combination of both rules. (ECF Nos. 22, 23, 25.) Plaintiffs did not respond to any of the motions to dismiss nor request an extension of time in which to respond. ( See generally Dkt.)

II. LEGAL STANDARDS

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must be dismissed if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do...." Id. at 555 (citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. A "plaintiff must nudge [] [his] claims across the line from conceivable to plausible' in order to survive a motion to dismiss.... Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a ...


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