United States District Court, D. Colorado
RECOMMENDATION OF THE MAGISTRATE JUDGE REGARDING MOTION FOR PARTIAL DISMISSAL OF PLAINITFF'S CLAIMS
GORDON P. GALLAGHER, Magistrate Judge.
This matter comes before the Court on the following motion: Defendants' motion for partial dismissal of Plaintiff's claims (ECF # 21). Plaintiff did not respond. The motion has been referred to this Magistrate Judge for recommendation. The Court has reviewed the pending motion. The Court has also considered the entire case file, the applicable law, and is sufficiently advised in the premises. Oral argument would not be of assistance to the Court in this instance. The Court RECOMMENDS that the motion for partial dismissal (ECF #21) be DENIED.
James Gerald Kreutzer (Plaintiff herein) was a defendant in a federal criminal action in 2013. Kreutzer hired Stanley Myron Slonaker, Esq. (Defendant herein) to represent him in that criminal action. Kreutzer was ultimately sentenced to a BOP term thirty-eight (38) months, three (3) years supervised release, a $100 special assessment, a $10, 000 fine and $186, 473 in restitution. The parties are diverse and the amount in question exceeds $75, 000.00.
Plaintiff's claims for relief, as set forth in the Complaint (ECF #1) are negligence and breach of fiduciary duty. In support of the negligence claim, Plaintiff states that:
a. Defendant Slonaker failed to file appropriate documents in preparation of cross examinations of two witnesses that the Assistant United States Attorney Norvell were presenting in proposing an enhancement of Plaintiff's sanctions and sentence.
b. Defendant Slonaker failed to file appropriate document to present rebuttal witnesses in opposition of an enhancement of Plaintiff's sanctions and sentence.
c. Defendant Slonaker failed to meet with Plaintiff to give him notice of Judge Martinez's notice to an upward variance of the Sentence proposed by the recommendation of the Probation Officer.
d. Defendant Sloanaker failed to have a client meeting with Plaintiff to prepare documents that would have opposed Assistant United States Attorney Norvell's evidence.
(ECF #1, p. 6) (sic). As a result of the aforementioned claimed negligence, Kreutzer believes that he "[r]eceived an extensive sentence above the guidelines and a substantial fine." (ECF #1, p. 6).
In support of the breach of fiduciary duty claim, Plaintiff asserts multiple sub-theories as set forth below:
Negligence: the general allegations are that Slonaker failed to prepare documents, failed to prepare witnesses, failed to review the file, failed to make timely Court filings, and essentially was not prepared to properly represent Kreutzer at the sentencing hearing. This negligence based breach of fiduciary duty claim is set forth in the complaint in paragraphs 39, 41, 42, 43 and 44 (ECF #1).
Breach of duty of care: In paragraph 40, Plaintiff claims a breach of duty of care for a supposed failure to notify the Plaintiff that District Court Judge William Martinez had filed a notice ...