Barak et al v. Rooster's Guide & Outfitting Adventures et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Raymond P. Moore
Civil Action No. 19-cv-03556-RM-STV
ALON BARAK,
KR8TIV, LLC, a Wyoming limited liability company, and
KR8TIV GROUP, LLC, a Delaware limited liability company,
Plaintiffs,
v.
ROOSTER’S GUIDE & OUTFITTING ADVENTURES, a Colorado company a/k/a Rocky
Mountain Natural Organics,
RODNEY COGBURN, and
AVA COGBURN,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Before the Court is Plaintiffs’ Motion for Reconsideration (ECF No. 224), seeking an
order amending the Court’s May 1, 2023, Order (ECF No. 220) on the parties’ cross-motions for
summary judgment and partial summary judgment (ECF Nos. 189, 191). Citing the Court’s
inherent authority to consider interlocutory orders, Plaintiffs contend that the Court should
dismiss two of Defendants’ counterclaims. The Motion has been briefed (ECF Nos. 225, 230)
and is denied for the reasons below.
This lawsuit arises from a failed joint venture to cultivate hemp on about thirty acres of
farmland in Mesa County, Colorado. The plan was for Defendants to provide property and labor
and for Plaintiffs to provide financing. After expenses were reimbursed, the anticipated profits
were to be split evenly. Although hemp was planted and harvested, both sides claim that they
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did not receive any profits and blame the other for the failed venture. After the Court’s May 1
Order, some of Plaintiffs’ claims and all of Defendants’ counterclaims remain at issue.
In their Third Amended Complaint (ECF No. 99), Plaintiffs asserted claims for breach of
contract, conversion, civil theft, and unjust enrichment. Defendants moved for summary
judgment on all the claims. (ECF No. 189.) The Court found that Plaintiffs had failed to adduce
evidence that the parties reached agreement on the terms Plaintiffs were seeking to enforce;
therefore, Defendants were entitled to summary judgment on the breach of contract claims.
(ECF No. 220 at 5-9.) The Court further noted that the parties’ agreement would not be
enforceable to the extent it ran afoul of federal law. See Sensoria, LLC v. Kaweske,
581 F. Supp. 3d 1243, 1258 (D. Colo. 2022). The Court found genuine issues of material fact
precluded granting summary judgment in Defendants’ favor on Plaintiffs’ remaining claims,
except with respect to the claims against the Walcher Defendants. (ECF No. 220 at 9-11.)
Meanwhile, Defendants assert counterclaims for breach of contract, fraud in the
inducement and misrepresentation, and civil theft (ECF No. 161), and Plaintiff moved for
summary judgment solely on the civil theft claim (ECF No. 191). The Court found genuine
issues of material fact precluded granting summary judgment in Plaintiffs’ favor on that claim
and did not address Defendants’ other claims.
The essence of Plaintiffs’ Motion is that because the Court granted summary judgment in
Defendants’ favor on Plaintiffs’ breach of contract claims, it should now grant summary
judgment on Defendants’ counterclaims for breach of contract and fraud in the inducement and
misrepresentation. Plaintiffs contend that Fed. R. Civ. P. 56(f) provides an appropriate vehicle
for such relief, if the Court gives Defendants notice and a reasonable time to respond. However,
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Plaintiffs could have moved to dismiss these claims at the summary judgment stage, and they fail
to provide a coherent explanation as to why they did not do so. A motion for reconsideration
“cannot be used to expand a judgment to encompass new issues which could have been raised
prior to issuance of the judgment.” Sprint Nextel Corp. v. Middle Man, Inc., 822 F.3d 524, 536
(10th Cir. 2016) (quotation omitted).
Moreover, pursuant to this Court’s Civil Practice Standards, Plaintiffs are limited to a
single motion for summary judgment without obtaining the Court’s permission, which will be
given only in exceptional circumstances. See Civ. Practice Standard IV.N.3.a. Plaintiffs have
not sought permission to file what is essentially a second motion for summary judgment. Nor
have they presented exceptional circumstances that would persuade the Court to consider
granting such permission.
Further, the Court notes that the parties’ breach of contract claims are not inherently
congruent because Defendants’ claims are premised on both a written agreement and certain oral
promises made by Plaintiffs.
Under the circumstances presented, Plaintiffs’ contention of “manifest injustice” rings
hollow.
Accordingly, Plaintiffs’ Motion (ECF No. 224) is DENIED.
DATED this 24th day of October, 2023.
BY THE COURT:
____________________________________
RAYMOND P. MOORE
Senior United States District Judge
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