Autotech Technologies, LP v. Palmer Drives Controls and Systems, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Case No. 19-cv-00718-PAB-NRN
AUTOTECH TECHNOLOGIES, LP, d/b/a EZAutomation,
Plaintiff,
v.
PALMER DRIVES CONTROLS AND SYSTEMS, INC., and
LYNN WEBERG,
Defendants.
____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Plaintiff’s Motion to Reconsider [Docket No.
223]. The Court has jurisdiction under 28 U.S.C. § 1332.
I. BACKGROUND
The Court assumes the parties’ familiarity with the background facts and
procedural history in this case, which have been set forth in previous orders, see Docket
Nos. 214, 218, and will not be repeated here except to the extent necessary to resolve
the present motion.
On March 16, 2023, the Court granted in part defendants’ motion for summary
judgment and dismissed plaintiff’s claims for breach of fiduciary duty and fraud. Docket
No. 218 at 15. In its response to the summary judgment motion, plaintiff Autotech
Technologies (“Autotech” or “EZAuto”) supported its argument with citations to Vikram
Kumar’s declaration. See Docket No. 188 at 9-10. However, the Court declined to
consider Mr. Kumar’s declaration because plaintiff failed to comply with the Court’s
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Practice Standards for putting such evidence before the Court. Docket No. 218 at 8-10,
12-13. The Court explained,
EZAuto cites evidence that it asks the Court to consider on the issue of a
confidential relationship, but has failed to comply with the Practice Standards for
putting such evidence before the Court. As the Practice Standard regarding
summary judgment motions emphasizes, the “sole purpose of these procedures
is to establish facts and determine which of them are in dispute.” Practice
Standards (Civil Cases), Chief Judge Philip A. Brimmer, § III.F.3.b.vii. EZAuto
has significantly compromised this process by not including a statement of facts
in its response. Had it done so, defendants would have been required to admit
or deny those facts and provide a basis for any denials, which would assist the
Court in determining what facts are undisputed and what facts are disputed.
Moreover, the requirement in the Practice Standards that a party opposing
summary judgment state its facts in the form of statements is consistent with
Fed. R. Civ. P. 56(e), which refers to “assertions of fact.” Rule 56 distinguishes
such assertions or statements of fact from the evidence that supports the
assertions. See, e.g., Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact
cannot be or is genuinely disputed must support that assertion by: (A) citing to
particular parts of materials in the record”). Thus, for EZAuto to simply cite to a
declaration in its response frustrates the summary judgment process and violates
the Court’s Practice Standards. As a result, the Court will not consider such
evidence either to establish an undisputed fact or to raise a dispute of material
fact.
Id. at 9-10. The Court found that plaintiff failed to establish each element essential for
the breach of fiduciary duty and fraud claims and therefore granted summary judgment
to defendants on these claims. Id. at 10-14.
Plaintiff requests that the Court reconsider the summary judgment order. Docket
No. 223 at 1. Defendants filed a response opposing the motion to reconsider. Docket
No. 224. Plaintiff filed a reply. Docket No. 225.
II. LEGAL STANDARD
The Federal Rules of Civil Procedure do not specifically provide for motions for
reconsideration. See Hatfield v. Bd. of Cnty. Comm’rs for Converse Cnty., 52 F.3d 858,
861 (10th Cir. 1995). Instead, motions for reconsideration fall within a court’s plenary
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power to revisit and amend interlocutory orders as justice requires. See Paramount
Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir. 1980) (citing
Fed. R. Civ. P. 54(b)); see also Houston Fearless Corp. v. Teter, 313 F.2d 91, 92 (10th
Cir. 1962). In order to avoid the inefficiency which would attend the repeated re-
adjudication of interlocutory orders, judges in this district have imposed limits on their
broad discretion to revisit interlocutory orders. See, e.g., Montano v. Chao, No. 07-cv-
00735-EWN-KMT, 2008 WL 4427087, at *5-6 (D. Colo. Sept. 28, 2008) (applying Rule
60(b) analysis to the reconsideration of interlocutory order); United Fire & Cas. Co. v.
McCrerey & Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007 WL 1306484, at
*1-2 (D. Colo. May 3, 2007) (applying Rule 59(e) standard to the reconsideration of the
duty-to-defend order). Regardless of the analysis applied, the basic assessment tends
to be the same: courts consider whether new evidence or legal authority has emerged
or whether the prior ruling was clearly in error. See Echon v. Sackett, No. 14-cv-03420-
PAB-NYW, 2019 WL 8275344, at *2 (D. Colo. Feb. 12, 2019); Cf. Alpenglow Botanicals,
LLC v. United States, 894 F.3d 1187, 1203 (10th Cir. 2018) (“[A] motion for
reconsideration is appropriate where the court has misapprehended the facts, a party’s
position, or the controlling law.”). Motions to reconsider are generally an inappropriate
vehicle to advance “new arguments, or supporting facts which were available at the time
of the original motion.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000).
III. ANALYSIS
Plaintiff seeks reconsideration of the Court’s order for several reasons. Docket
No. 223 at 1-2. First, plaintiff argues that it “complied with the Court’s Practice
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Standards and Federal Rule of Civil Procedure 56.” Id. at 1. Plaintiff contends that the
plain language of the Practice Standards only requires the nonmovant to provide a
“Statement of Additional Disputed Facts” and does not require the nonmovant to provide
a statement of “undisputed” facts. Id. at 2-3. Plaintiff argues that it was not required to
include facts from Mr. Kumar’s declaration in the facts section because Mr. Kumar’s
declaration contains “undisputed” facts. Id. at 3. Second, plaintiff asserts that, to the
extent plaintiff failed to comply with the Practice Standards, it was “in substantial
compliance and its position was stated clearly enough that this dispute should be
resolved on the merits, not based on a technical deviation from the Practice Standards.”
Id. at 1-2. Plaintiff argues that Mr. Kumar’s declaration establishes all the elements of
the breach of fiduciary duty and fraud claims. Id. at 10-12. Third, plaintiff argues that its
response to defendants’ statement of undisputed facts establishes that there are
material questions of fact related to the claims. Id. at 2.
Plaintiff makes no argument that reconsideration is warranted due to the
emergence of new evidence or legal authority. See generally id. Therefore, the Court
interprets plaintiff’s motion as claiming that the Court clearly erred in the application of
its own Practice Standards and in granting summary judgment.
A. Interpretation of Practice Standard § III.F.3.b.v.
“Considerable deference is accorded to the [district court’s] interpretation and
application of its own rules of practice and procedure.” Bylin v. Billings, 568 F.3d 1224,
1230 n.7 (10th Cir. 2009) (internal citation and alterations omitted); see also Norwood v.
United Parcel Serv., Inc., 57 F.4th 779, 789 (10th Cir. 2023) (recognizing that district
courts have discretion in applying local rules and holding that the district court did not
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abuse its discretion in ignoring plaintiff’s broad citation to a 142-page deposition in
plaintiff’s summary judgment response).
The Practice Standards require the party opposing summary judgment, in a
section of the brief entitled “Response to Statement of Undisputed Material Facts,” to
admit or deny the asserted material facts set forth by the movant. Practice Standards
(Civil Cases), Chief Judge Philip A. Brimmer, § III.F.3.b.iv. If the party opposing
summary judgment
believes that there exist additional disputed questions of fact. . ., the party shall,
in a separate section of the party’s brief styled “Statement of Additional Disputed
Facts,” set forth in simple, declarative sentences, separately numbered and
paragraphed, each additional, material disputed fact which undercuts movant’s
claim that it is entitled to judgment as a matter of law. Each separately
numbered and paragraphed fact shall be accompanied by a specific reference to
material in the record which establishes the fact or at least demonstrates that it is
disputed.
Id., § III.F.3.b.v. (emphasis omitted). Plaintiff argues that, because Practice Standard
III.F.3.b.v. references a “Statement of Additional Disputed Facts,” but not a Statement of
Additional Undisputed Facts, it reasonably interpreted the Practice Standards not to
require any such statement of undisputed facts. Docket No. 223 at 2-3. Plaintiff argues
that each fact in Mr. Kumar’s declaration is undisputed. Id. at 3-7. Plaintiff requests
that the Court reconsider its summary judgment order and not disregard the information
in Mr. Kumar’s declaration. Id. at 8.
Defendants oppose plaintiff’s motion for reconsideration and argue that the Court
correctly interpreted its own Practice Standards. Docket No. 224 at 5-6, ¶¶ 12-13.
Defendants assert that plaintiff failed to comply with the Practice Standards because
plaintiff did not include a “Statement of Additional Facts.” Id. at 5, ¶ 12. Defendants
argue that they were denied the opportunity to admit or deny the facts in Mr. Kumar’s
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declaration. Id. at 6, ¶ 13. Defendants further contend that granting the motion to
reconsider would “put the trial date in jeopardy.” Id. at 7, ¶ 16.
The Court rejects the plaintiff’s interpretation of the Court’s Practice Standard.
Plaintiff’s response to defendants’ summary judgment motion did not characterize the
statements in Mr. Kumar’s declaration as “undisputed.” See generally Docket No. 188.
In order to oppose a summary judgment motion, it is usually not material whether facts
asserted by the opponent are disputed or undisputed since disputes of fact themselves
can justify denying summary judgment. Thus, there was no basis for the Court to
presume that the facts in the declaration were “undisputed” and no reason for the
plaintiff not to file a statement of facts. There is no exception in the Practice Standards,
or Rule 56, for “undisputed” facts to be stated outside of a statement of facts. Had
plaintiff included those facts in a statement of facts, defendants would have been
required to admit or deny those facts, which would have assisted the Court in
determining which facts are undisputed and what facts are disputed. See Practice
Standards (Civil Cases), Chief Judge Philip A. Brimmer, § III.F.3.b.vi; Docket No. 218 at
9. As the Court noted in the summary judgment order, plaintiff “significantly
compromised [the summary judgment] process by not including a statement of facts in
its response.” Docket No. 218 at 9.
However, under the circumstances of this case, reconsideration of the Court’s
summary judgment order on the issue of fiduciary duty is appropriate to avoid manifest
injustice from not considering Mr. Kumar’s declaration. Although defendants state in
their response to the motion for reconsideration that they were denied the opportunity to
admit or deny the facts in the Kumar declaration, Docket No. 224 at 6, ¶ 13, it is clear
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that defendants do not deny those facts. Defendants’ response is based on the
argument that plaintiff fails to satisfy the standards for reconsideration, not that, had
plaintiff properly filed a statement of facts, defendants would have contested those facts
or argued something different than defendants did. See generally Docket No. 224.
Accordingly, the Court will consider the information in Mr. Kumar’s declaration and will
reconsider its order granting summary judgment in favor of defendants on the breach of
fiduciary duty and fraud claims.1
B. Breach of Fiduciary Duty Claim
In order to establish a breach of fiduciary duty under Colorado law, a plaintiff
must prove: “1) the existence of a fiduciary relationship between plaintiff and defendant;
2) defendant’s breach of the fiduciary duty; and 3) damages as a result of the breach.”
F.D.I.C. v. Refco Grp., Ltd., 989 F. Supp. 1052, 1080 (D. Colo. 1997); see also Aller v.
Law Office of Carole C. Schriefer, P.C., 140 P.3d 23, 26 (Colo. App. 2005); Colo. Jury
Instr., Civil § 26:1. As discussed in the summary judgment order, defendants argued
they were entitled to summary judgment on the breach of fiduciary duty claim because
there is no evidence that they owed plaintiff a fiduciary duty. Docket No. 218 at 7 (citing
Docket No. 178 at 11-12). Plaintiff responded that the fiduciary duty arises out of the
“confidential relationship” between the parties and cited facts from Mr. Kumar’s
declaration. Id. at 7-8 (citing Docket No. 188 at 9, 11).
1 The Court rejects defendants’ argument that granting the motion to reconsider
would “put the trial date in jeopardy.” See Docket No. 224 at 7, ¶ 16. As plaintiff notes,
discovery is complete on the claims for breach of fiduciary duty and fraud. Docket No.
225 at 3.
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A confidential relationship “exists when one party justifiably reposes confidence
in another such that the parties drop their guard and assume that each side is acting
fairly.” DerKevorkian v. Lionbridge Techs., Inc., 316 F. App’x 727, 737 (10th Cir. 2008)
(unpublished) (quoting Lewis v. Lewis, 189 P.3d 1134, 1143 (Colo. 2008)). Under
Colorado law, to establish a breach of a fiduciary duty arising from a confidential
relationship between two parties:
there must be proof, among other things, that (1) either the reposing of trust and
confidence in the other party was justified, or the party in whom such confidence
was reposed either invited, ostensibly accepted, or acquiesced in such trust; (2)
the alleged trustee assumed a primary duty to represent the other party’s interest
in the subject of the transaction; (3) the nature and scope of the duty that arose
by reason of the confidential relationship extended to the subject matter of the
suit; and (4) that duty was violated, resulting in damage to the party reposing
such confidence.
Id. at 737-38 (quoting Equitex, Inc. v. Ungar, 60 P.3d 746, 752 (Colo. App. 2002)); see
also Jarnagin v. Busby, Inc., 867 P.2d 63, 67 (Colo. App. 1993); Colo. Jury Instr., Civil
§ 26:3. Furthermore, “[t]he confidential relationship. . . must be established prior to the
date of the transaction that gives rise to the claim.” DerKevorkian, 316 F. App’x at 737
(quoting Vikell Investors Pac., Inc. v. Kip Hampden, Ltd., 946 P.2d 589, 597 (Colo. App.
1997)).
Plaintiff argues that Mr. Kumar’s declaration, as well as its response to
defendants’ statement of undisputed facts, establishes the elements of its claim for
breach of fiduciary duty arising from a confidential relationship. Docket No. 223 at 9-11.
The Court agrees. First, Mr. Kumar’s declaration provides evidence that plaintiff
justifiably reposed trust and confidence in defendants and that defendants invited the
trust. See DerKevorkian, 316 F. App’x at 737-38. Mr. Kumar’s declaration states that,
in various communications, Mr. Weberg “promised that Palmer would in all respects be
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honest, open and loyal to Autotech[,] would protect Autotech’s interests. . . . [and] would
act as Autotech’s partner.” Docket No. 191-7 at 1, ¶ 3. Mr. Kumar asserts that, “[b]ased
on the foregoing assurances from Weberg, in September 2017[,] I disclosed to Weberg
that the customer for the project we were discussing was Green. I then put Weberg in
direct contact with the owners of Green, Dan and David Schneider.” Id., ¶ 5. Mr. Kumar
also states that he provided Mr. Weberg with proprietary information regarding the
functionality of plaintiff’s products that were going to be used for the Green project. Id.,
¶ 6. Mr. Kumar agreed that defendants could independently communicate with Green
because he believed Mr. Weberg’s assurances. Id., ¶ 7.2
Second, Mr. Kumar’s declaration raises an inference that defendants assumed a
primary duty to represent plaintiff’s interest in the Green project. See DerKevorkian,
316 F. App’x at 737-38. Mr. Kumar’s declaration states that, in various
communications, Mr. Weberg promised that Palmer “would protect Autotech’s interests.”
Docket No. 191-7 at 1, ¶ 3. The declaration also states that Mr. Weberg promised that
“Palmer was committed to using and promoting Autotech’s products for the Green
project.” Id. at 2, ¶ 8. Third, the nature and scope of the duty extends to the subject
matter of this suit, namely, the use of plaintiff’s products for the Green project. See
DerKevorkian, 316 F. App’x at 737-38; Docket No. 223 at 11.
2 In their reply to the summary judgment motion, defendants argued that plaintiff
cannot establish that it reposed special trust or confidence in defendants regarding their
contacts with Green when plaintiff possessed “unfettered access” to Green. Docket No.
194 at 10. The Court rejects this argument. Allowing defendants to communicate
directly with Green is only one aspect of the trust that plaintiff reposed on defendants.
See Docket No. 191-7 at 1, ¶¶ 5-7. Plaintiff puts forth additional evidence that it trusted
defendants by disclosing Green’s identity as the customer and revealing its proprietary
information for the project. Id., ¶¶ 5-6.
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Fourth, plaintiff’s response to defendants’ statement of facts raises a genuine issue
of material fact as to whether the duty was breached, resulting in damage to plaintiff.
See DerKevorkian, 316 F. App’x at 737-38. Plaintiff cites evidence that on November
21, 2017, a Palmer employee contacted a competitor company, Unitronics, and stated
that Palmer was looking at Unitronic’s products “as an alternative to what the customer
has requested.” Docket No. 188 at 6, ¶ 41 (citing Docket No. 122-9 at 18-20); see also
Docket No. 191-14 at 5-6 (email from Mr. Weberg to the Schneiders discussing sharing
Green’s project scope document with Unitronics); Docket No. 191-11 at 1 (email from
Mr. Weberg to the Schneiders discussing getting “better pricing” from Unitronics). The
Court found it was undisputed that, on January 11, 2018, Mr. Weberg informed Mr.
Kumar via email of Green’s decision to have Palmer build a prototype using Unitronics’
components. Docket No. 218 at 5. Finally, evidence creates an inference that the
confidential relationship was established before the date of the transaction that gives
rise to this claim. See DerKevorkian, 316 F. App’x at 737. Mr. Kumar states that he did
not disclose the identity of the customer, Green, until Mr. Weberg promised that Palmer
would be “honest, open, and loyal” to plaintiff. Docket No. 191-7 at 1, ¶¶ 2-5.
Accordingly, because plaintiff has established evidence on each element of the
claim, see Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001),
the Court grants this portion of the motion to reconsider. Therefore, the portion of the
Court’s summary judgment order that dismissed plaintiff’s claim for breach of fiduciary
duty is vacated. Plaintiff’s claim for breach of fiduciary duty is reinstated and will
proceed to trial on May 22, 2023.
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C. Fraud Claim
The elements of a fraud claim in Colorado are: “(1) that the defendant made a
false representation of a material fact; (2) that the one making the representation knew
it was false; (3) that the person to whom the representation was made was ignorant of
the falsity; (4) that the representation was made with the intention that it be acted upon;
and (5) that the reliance resulted in damage to the plaintiff.” Bristol Bay Prods., LLC v.
Lampack, 312 P.3d 1155, 1160 (Colo. 2013). “Unless the speaker making the
representations deliberately falsified his or her intention to induce reliance, statements
of future events are not actionable.” Nelson v. Gas Research Inst., 121 P.3d 340, 343
(Colo. App. 2005).
Plaintiff argues that Mr. Kumar’s declaration establishes all the elements of its
fraud claim. Docket No. 223 at 12. Plaintiff asserts that Palmer promised it would
remain loyal to plaintiff and that plaintiff justifiably relied on this misrepresentation by
disclosing the identity of the customer, providing proprietary information to defendants,
and introducing defendants to Green. Id. However, Mr. Kumar’s declaration does not
establish that Mr. Weberg’s statements before September 2017 – which are statements
of future events and not actionable without evidence of deliberate falsification, see
Nelson, 121 P.3d at 343 – were false when Mr. Weberg made the statements. See
generally Docket No. 191-7. Accordingly, Mr. Kumar’s declaration does not establish
the elements of a fraud claim. In its response to the summary judgment motion, plaintiff
argued that several other pieces of evidence indicate that defendants never intended to
keep their promises. Docket No. 188 at 16. Plaintiff asserted that Palmer never trained
an engineer to program plaintiff’s controller. Id. However, as discussed in the summary
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judgment order, the undisputed evidence is that Palmer hired a controls engineer,
Dallas Trahan, and he worked between 4 to 6 weeks of “pretty much full-time
development” on the Green project using plaintiff’s products. Docket No. 218 at 3-4.
Plaintiff also argued that in November 2017 defendants began plotting to have
Unitronics replace plaintiff as the supplier. Docket No. 188 at 16. However, plaintiff
points to no facts that support an inference that defendants knew that Mr. Weberg’s
statements before September 2017 were false when Mr. Weberg made the statements.
Plaintiff also presents no evidence that defendants knew they were going to promote a
competitor’s product before defendants had any knowledge of the customer’s identity or
any specific information about Green’s project. Accordingly, plaintiff has failed to raise a
genuine issue of material fact that any statements defendants made to plaintiff before
being introduced to Green were deliberately false. See Nelson, 121 P.3d at 343.
In its response to the summary judgment motion, plaintiff additionally argued that
“concealment of information is fraudulent when a party has a duty to speak.” Docket
No. 188 at 14. In Colorado, the elements of fraudulent concealment are
(1) the party concealed a material existing fact that in equity and good
conscience should be disclosed; (2) the party knew it was concealing such a fact;
(3) the other party was ignorant of the existence of the fact concealed; (4) the
concealment was practiced with the intent that it be acted on; and (5) the
concealment resulted in damage to the other party.
Wood v. Houghton Mifflin Harcourt Pub. Co., 569 F. Supp. 2d 1135, 1141 (D. Colo.
2008) (quoting Poly Trucking, Inc. v. Concentra Health Servs., 93 P.3d 561, 563 (Colo.
App. 2004)). “Colorado courts look to the Restatement (Second) of Torts § 551(2) to
determine whether a party has a duty in equity or conscience to disclose a material
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fact.” Id.3 The Court held in its summary judgment order in this case that, “[e]ven
assuming that EZAuto has established a duty to disclose, it presents no arguments
regarding the other four elements of a fraudulent concealment claim.” Docket No. 218
at 14 (citing Wood, 569 F. Supp. 2d at 1141). In its motion for reconsideration, plaintiff
argues that, although it presented no legal argument on the elements of a fraudulent
concealment claim, it presented facts to support all the elements. Docket No. 223 at 14.
The Court finds no clear error in its ruling that plaintiff failed to present any arguments
regarding the other elements of a fraudulent inducement claim. Furthermore, plaintiff
has failed to put forth any evidence to show that defendants’ purported concealment of
any facts was “practiced with the intent that it be acted on.” See Wood, 569 F. Supp. 2d
at 1141.4
Because plaintiff has not shown that the prior ruling on the fraud claim was
clearly in error, the Court denies this portion of plaintiff’s motion for reconsideration.
See Echon, 2019 WL 8275344, at *2.
IV. CONCLUSION
It is therefore
ORDERED that Plaintiff’s Motion to Reconsider [Docket No. 223] is granted in
part and denied in part. It is further
3 Section 551(2) recognizes that a party to a business transaction has a duty to
disclose (1) “matters known to him that the other is entitled to know because of a
fiduciary or other similar relation of trust and confidence between them;” (2) “matters
known to him that he knows to be necessary to prevent his partial or ambiguous
statement of the facts from being misleading;” and (3) “subsequently acquired
information that he knows will make untrue or misleading a previous representation that
when made was true or believed to be so.” Restatement (Second) of Torts § 551(2).
4 With no citation to the record, plaintiff asserts in its motion that “Defendants
intended that Plaintiff act on their concealment.” Docket No. 223 at 14.
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ORDERED that the portion of the Court’s Order [Docket No. 218] is VACATED to
the extent that it dismissed plaintiff’s claim for breach of fiduciary duty. It is further
ORDERED that plaintiff’s claim for breach of fiduciary duty is REINSTATED.
DATED May 15, 2023.
BY THE COURT:
s/ Philip A. Brimmer_____________
PHILIP A. BRIMMER
Chief United States District Judge
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