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Giese v. Giese

United States District Court, D. Colorado

April 17, 2017

ADAM GIESE and BLACK DIAMOND WELL SERVICES, INC., Plaintiffs,
v.
JULIANNA SAVONI GIESE, JAMES W. GIESE, JAMES W. GIESE, PC, SORONEN, DONLEY, PATTERSON, CPA'S PC, and JOHN DOES 1-10, Defendants.

          ORDER

          R. Brooke Jackson United States District Judge.

         This matter is before the Court on defendants' motion to dismiss plaintiffs' third amended complaint. Defs.' Mot. to Dismiss, ECF No. 39; Third Am. Compl. and Jury Demand, ECF No. 22. For the reasons below, the Court GRANTS that motion.

         I. FACTS

         Plaintiff Adam Giese is the sole owner and employee of Black Diamond Well Services, Inc. (“Black Diamond”)-a Colorado-based oil drilling business and the other plaintiff in this action.[1] ECF No. 22 at ¶13, 15-16. He alleges that his mother (defendant Julianna Giese), his father (defendant James Giese), his father's law firm (defendant James W. Giese, PC), an accounting firm (defendant Soronen, Donley, Patterson, CPA's PC (“SDP”)), and numerous other unnamed individuals (defendants John Does 1-10) stole hundreds of thousands of dollars from him and his company during a roughly four-year time period from September 6, 2011 through August of 2015.[2] See generally ECF No. 22 at ¶¶13-90.

         Summarized briefly, plaintiff alleges that defendants appropriated his money after plaintiff allowed his mother, Julianna, to perform bookkeeping for Black Diamond. See Id. at ¶¶22, 24. Plaintiff alleges that after he gave Julianna this role, she abused her access to plaintiff's finances, and that defendants began to perform numerous transactions, transfers, withdrawals, and other allegedly illicit activities with plaintiff's money in plaintiff's name for defendants' sole benefit. See, e.g., id. at ¶¶74-90. Plaintiff discovered these alleged thefts and the extent of his loss only after his debit card was declined in August of 2015 while traveling in South Dakota with his girlfriend. Id. at ¶¶28-30. After he discovered that his accounts had essentially been liquidated, plaintiff confronted his parents, which quickly fueled acrimony among the parties that appears to continue to this day. See, e.g., id. at ¶¶38, 84, 87-89.

         Procedural History

         Plaintiff initially filed suit against all defendants on May 6, 2016. Compl., ECF No. 1. Ten days later on May 16, 2016 plaintiff amended his complaint. First Am. Compl., ECF No. 11. A few weeks later on June 7, 2016 plaintiff amended his complaint for a second time. Second Am. Compl., ECF No. 14. Shortly thereafter, defendants Julianna Giese, James Giese, and James Giese, PC moved to dismiss plaintiff's second amended complaint. ECF No. 16. Defendant SDP also filed a motion to dismiss of its own on August 8, 2016. ECF No. 30. While those motions were pending, plaintiff filed a motion to amend his complaint once again. ECF No. 21. The Court granted that motion and subsequently mooted defendants' motions. ECF Nos. 35-36.

         On June 30, 2016 plaintiff's third amended complaint became the operative pleading. ECF No. 22. In that complaint, plaintiff asserts fourteen claims for relief: (1) a claim for injunctive relief against his parents; (2) a claim for a violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962, against his parents and James Giese, PC; (3) a claim for a violation of Colorado Organized Crime Control Act (“COCCA”), C.R.S. § 18-17-101, et seq., against his parents and James Giese, PC; (4) a claim for “outrageous conduct” against his parents and James Giese, PC; (5) a claim for negligent misrepresentation against his parents; (6) a claim for “fraud/misrepresentation/duty to disclose” against his parents; (7) a claim asserting that plaintiff's parents breached their fiduciary duty; (8) a claim asserting that plaintiff's parents breached their relationship of trust and confidence; (9) a claim for defamation against plaintiff's parents; (10) a claim for negligence against James Giese, PC; (11) a claim for negligent hiring/supervision against James Giese, PC; (12) a claim for negligence against SDP; (13) a claim for civil conspiracy against plaintiff's parents and James Giese, PC; and (14) a claim for “joint and several liability” against all defendants under C.R.S. § 13-21-111.5(4). ECF No. 22 at ¶¶91-166.

         On October 25, 2016 defendants Julianna Giese, James Giese, and James Giese, PC moved to dismiss plaintiff's third amended complaint. ECF No. 39. Their motion has been fully briefed and is ripe for review. See ECF Nos. 39, 44-45.

         II. STANDARD OF REVIEW

         To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is a claim that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), conclusory allegations are not entitled to be presumed true, Iqbal, 556 U.S. at 681. However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).

         III. ANALYSIS

         The moving defendants argue that plaintiff's RICO claim should be dismissed, and if it is dismissed, that the remaining claims should be dismissed for lack of federal jurisdiction. See generally ECF No. 39. I agree with both arguments.

         A. ...


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