Knellinger et al v. Young et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney

Civil Action No. 1:22-cv-01379-CNS-STV

DAVID KNELLINGER and
ROBERT STOREY, individually and on behalf of all persons similarly situated,

Plaintiffs,
V.
DAVID YOUNG, in his official capacities as Colorado Treasurer, Colorado Office of
Treasury; and
BIANCA GARDELLI, in her individual and official capacities as Director of Colorado
Department of Treasury, Unclaimed Property Division,

Defendants.

ORDER

Before the Court are Plaintiffs’ Motion to Certify Order for Interlocutory Appeal
Under 28 U.S.C. § 1292(b), ECF No. 89; Defendants’ Motion to Stay Briefing on Motion
for Class Certification (ECF 96), ECF No. 98; and Plaintiffs’ Motion for Class Certification
and Memorandum in Support, ECF No. 96. Each of the foregoing are fully briefed. See
ECF Nos. 89, 91, 92; ECF Nos. 98, 104, 110; ECF Nos. 96, 105, 112.

For the reasons explained below, the Court GRANTS Plaintiffs’ motion to certify,
ECF No. 89, and GRANTS Defendants’ motion to stay, ECF No. 98. In light of these
conclusions, Plaintiffs’ motion for class certification, ECF No. 96, is DENIED WITHOUT
PREJUDICE. Additionally, the parties’ summary judgment intent conference currently

scheduled for August 28, 2026 is hereby VACATED.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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I. 	BACKGROUND
The 	Court 	assumes 	the 	parties’ 	familiarity 	with 	the 	factual 	and 	procedural
background and posture of this case, which was summarized in the Court’s order ruling
on Defendants’ second motion to dismiss earlier this year. See ECF No. 85; Knellinger v.
Young, No. 1:22-cv-01379-CNS-STV, 2026 WL 411749, at *1–2 (D. Colo. Feb. 13, 2026)
(the MTD Order). Thus, the following brief summary suffices.
This case concerns the Revised Uniform Unclaimed Property Act (RUUPA), which
provides the framework for the State of Colorado’s handling of unclaimed property,
including the requirements to transfer such property to the State, as well as the notice to
which property owners are entitled. See C.R.S. § 38-13-101, et. seq. In their complaint,
Plaintiffs allege that Defendants’ seizure of their unclaimed property violates their rights
under the Fifth and Fourteenth Amendments. See generally ECF No. 1 ¶¶ 1–13.
Defendants filed their first motion to dismiss nearly four years ago, ECF No. 31,
which the Court granted in its entirety, see ECF No. 43. Plaintiffs appealed, and the Tenth
Circuit, finding that Plaintiffs had standing to bring their takings claims, reversed and
remanded the case back to the Court. See ECF Nos. 49, 50; see also Knellinger v. Young,
134 F.4th 1034 (10th Cir. 2025) (Knellinger I). Following remand, Defendants again
moved to dismiss Plaintiffs’ claims, ECF No. 60, and the Court granted in part Defendants’
dismissal motion in the MTD Order. See Knellinger, 2026 WL 411749.
In the MTD Order, the Court determined that Plaintiffs’ due process claims arising
from Defendants’ alleged failure to comply with RUUPA’s notice provisions, as well as
Defendants’ alleged actions undertaken without sufficient statutory and constitutional
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authority, were properly pleaded and not barred by qualified immunity or sovereign
immunity. See Knellinger, 2026 WL 411749, at *8–9, *13.1 However, with respect to
Plaintiffs’ takings claims, the Court found that Eleventh Amendment immunity barred such
claims against Defendants in their official capacities, id. at *3, and qualified immunity
barred the same claims against Defendants in their individual capacities, id. at *11.
Additionally, as to Plaintiffs’ due process claims arising from Defendants’ alleged acts in
conformance 	with 	the 	RUUPA’s 	notice 	scheme 	(which 	Plaintiffs 	contend 	is
unconstitutional as written), the Court concluded that Defendants were entitled to qualified
immunity. Id. at *12.
Since then, the parties have completed discovery, see ECF No. 98 at 1, and filed
the motions referenced above. Both parties have also notified the Court of their intention
to file summary judgment motions. The Court set a conference to discuss the parties’
anticipated cross motions for summary judgment on August 28, 2026.
II. 	ANALYSIS
A. Plaintiffs’ Motion to Certify the MTD Order for Interlocutory Appeal, ECF
No. 89
In 	their 	motion 	to 	certify, 	Plaintiffs 	contend 	that 	there 	are 	six 	“controlling
constitutional questions of upmost importance” arising from the Court’s MTD Order that
are well positioned for interlocutory appeal. See ECF No. 89 at 2–3. Defendants disagree.
ECF No. 91.
1 The Court’s conclusion applied to these claims brought against Defendants in both their official and
individual capacities. See id. at *8–9, *13.
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Explained below, because the MTD Order gave rise to at least one controlling
question of law about which there is substantial ground for difference of opinion, and the
resolution of which will help to materially advance the termination of this litigation, the
Court grants Plaintiff’s’ motion to certify the MTD Order for interlocutory appeal pursuant
to § 1292(b). See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996)
(“[T]he appellate court may address any issue fairly included within the certified order
because ‘it is the order that is appealable, and not the controlling question identified by
the district court.’”) (citation omitted).
1. 	Legal Standard
Both parties implicitly concede that the Court’s MTD Order is not a “final decision”
appealable under 28 U.S.C. § 1291. See ECF Nos. 89, 91. However, under 28 U.S.C. §
1292(b), a district court may certify an otherwise unappealable interlocutory order for
appeal if three criteria are met: (1) the order involves a “controlling question of law;”
(2) there is “substantial ground for difference of opinion” as to the resolution of the
question; and (3) certification “may materially advance the ultimate termination of the
litigation.”
Interlocutory appeals are “traditionally disfavored” because they “are necessarily
‘disruptive, time-consuming, and expensive’ for the parties and the courts.” Vallario v.
Vandehey, 554 F.3d 1259, 1262 (10th Cir. 2009) (quoting Waste Mgmt. Holdings, Inc. v.
Mowbray, 208 F.3d 288, 294 (1st Cir. 2000)). Nevertheless, in certain “rare and
extraordinary cases,” In re Richard D. Van Lunen Charitable Found., No. 22-cv-02309-
REB, 2023 WL 4706758, at *3 (D. Colo. July 24, 2023) (citation omitted), interlocutory
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review under 28 U.S.C. § 1292(b) may be permitted if an “immediate appeal of a
controlling issue will avoid protracted litigation.” Carbajal v. Keefer, 51 F. Supp. 3d 1065,
1068 (D. Colo. 2014).
The moving party “has a heavy burden to show that ‘exceptional circumstances’”
warrant immediate appellate review. Hawaii ex rel. Louie v. JP Morgan Chase & Co., 921
F. Supp. 2d 1059, 1065 (D. Haw. 2013) (quoting Coopers & Lybrand v. Livesay, 437 U.S.
463, 475 (1978)). “It is within a district court’s discretion to certify an order for appeal
under section 1292(b).” Kerr v. Hickenlooper, No. 11-cv-01350-WJM-BNB, 2012 WL
4359076, at *1 (D. Colo. Sept. 21, 2012) (citing Swint v. Chambers Cnty. Comm’n, 514
U.S. 35, 47 (1995)). While an interlocutory order can be certified for appeal if it involves
at least one controlling question of law, the scope of appellate review includes all issues
raised in the underlying order. See Yamaha Motor Corp, 516 U.S. at 205.
2. 	Application of the § 1292(b) Factors to the Questions Raised by the
MTD Order
One issue from the MTD Order on which Plaintiffs seek § 1292(b) certification
concerns the interplay between their alleged takings claims under the Fifth Amendment
and the application of Eleventh Amendment immunity as a bar to such claims. ECF No.
89 at 6. Applying the § 1292(b) factors below, the Court agrees that an interlocutory
appeal is appropriate.
a. 	Controlling Question of Law
In a § 1292(b) inquiry, a “question of law” refers to a question about “the meaning
of a statutory or constitutional provision, regulation, or common law doctrine” that can be
decided “quickly and cleanly” without waiting until the end of the case and “without having
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to study the record.” In re Richard D. Van Lunen Charitable Found., No. 22-cv-02309-
REB, 2023 WL 4706758, at *3 (D. Colo. July 24, 2023) (citing Ahrenholz v. Bd. of Trs. of
the Univ. of Ill., 219 F.3d 674, 676–77 (7th Cir. 2000)); see also Martinez v. Back Bone
Bullies Ltd, No. 21-cv-01245-MEH, 2022 WL 1027148, at *2 (D. Colo. Apr. 6, 2022) (a
controlling question of law is one that can be decided “without consideration of factual
circumstances”). A question of law is “controlling” if it has the potential to “substantially
accelerate the disposition of the litigation.” Hessert v. Street Dog Coalition, No. 25-cv-
03807-NYW-NRN, 2026 WL 83956, at *3 (D. Colo. Jan. 12, 2023) (citing In re Grand Jury
Proceedings June 1991, 767 F. Supp. 222, 225 (D. Colo. 1991)).
Plaintiffs contend that the first question (as they frame it)—“[w]hether sovereign
immunity 	precludes 	Plaintiffs 	from 	recovering 	their 	property 	from 	the 	state’s
possession”—is a controlling question of law with the potential to “substantially” change
the course of this ligation. ECF No. 89 at 4. Defendants do not appear to dispute this in
their response, see generally ECF No. 91, and in any event, the Court agrees.
There is no dispute that the MTD Order dismissed Plaintiffs’ taking claims against
Defendants in their official capacities based on its determination that such claims were
barred by Eleventh Amendment immunity. See Knellinger, 2026 WL 411749, at *3–4.
Here, this is a controlling question because its resolution “could ‘materially affect the
outcome of the litigation.’” Ute Indian Tribe v. Utah, No. 2:75-cv-00408-RJS, 2026 WL
1256900, at *2 (D. Utah May 7, 2026) (citing Roberts v. C.R. England, Inc., No. 2:12-cv-
00302-RJS-BCW, 2018 WL 2386056, at *2 (D. Utah Apr. 24, 2018)). Indeed, whether the
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Tenth Circuit agrees with the MTD Order or not will either finalize the dismissal of
Plaintiffs’ takings claims on the basis of sovereign immunity or revive them.
Additionally, the application of Eleventh Amendment immunity is a question of law
that does not require the weighing of evidence to resolve. See Cornforth v. Univ. of
Oklahoma Bd. of Regents, 263 F.3d 1129, 1131 (10th Cir. 2001) (“Questions involving
Eleventh Amendment immunity are questions of law that this court reviews de novo.”)
(citing Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000)); Boellstorff v. State
Farm Mut. Auto. Ins. Co., No. 05-cv-02192 MSK CBS, 2007 WL 552247, at *2 (D. Colo.
Feb. 20, 2007), aff’d, 540 F.3d 1223 (10th Cir. 2008) (finding a controlling question of law
where the question “does not require the weighing of evidence”).
Accordingly, the Court finds a controlling question of law.
b. 	Substantial Ground for Difference of Opinion
With respect to the second § 1292(b) factor, the Court likewise finds that the
question of whether Eleventh Amendment immunity can bar Plaintiffs’ Fifth Amendment
takings claims gives rise to substantial ground for a difference of opinion.
Determining whether a question has substantial grounds for a difference of opinion
goes “hand in hand” with the controlling question of law inquiry. See In re Richard, 2023
WL 4706758, at *4. A substantial ground for difference of opinion exists where “the circuits
are in dispute on the question and the court of appeals of the circuit has not spoken on
the point . . . or if novel and difficult questions of first impression are presented.” Atl.
Richfield Co. v. NL Indus., Inc., No. 20-cv-00234-NYW-KAS, 2023 WL 5333756, at *6 (D.
Colo. Aug. 18, 2023) (citing Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010)).
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As Plaintiffs correctly note, the MTD Order acknowledges that the Tenth Circuit
previously held that Plaintiffs “may ‘pursue a suit for compensation,’ under § 1983,”
Knellinger, 2026 WL 411749, at *3 (referencing Knellinger, 134 F.4th at 1045). Despite
this, the Court nonetheless concluded that Eleventh Amendment immunity barred
Plaintiffs’ takings claims against Defendants in their official capacities. See id. at *3–4. In
doing so, the Court noted that the Tenth Circuit’s decision in Knellinger I was reached
without consideration of any immunity defense. Id. The MTD Order also discussed the
Tenth Circuit’s reliance on Knick v. Twp. of Scott, Pennsylvania, 588 U.S. 180 (2019) in
Knellinger I, but determined that Knick is sufficiently factually distinguishable from this
matter to resolve Defendants’ assertion of Eleventh Amendment immunity because Knick
involved an alleged taking at the municipal level and, as a result, did not address Eleventh
Amendment immunity. Id. at *3–5. Based on those distinguishing factors, in the MTD
Order, the Court instead relied on Williams v. Utah Dep’t of Corrections, 928 F.3d 1209
(10th Cir. 2019), as well as similar decisions from other circuit courts, to reach its
conclusion that Eleventh Amendment immunity applied here. See Knellinger, 2026 WL
411749, at *4 (explaining that “Knick did not change states’ sovereign immunity from
takings claims for damages in federal court, so long as state courts remain open to those
claims” because here, “even if the takings claims are barred, there are still avenues
available for Plaintiffs to pursue relief” through the state court system) (citing Pavlock v.
Holcomb, 35 F.4th 581, 589 (7th Cir. 2022)).
Defendants argue that there is “no conflict” between the Tenth Circuit’s decision in
Knellinger I and the Court’s MTD Order such that this factor weighs against granting an
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interlocutory appeal. See ECF No. 91 at 1–2. But the Court is not so convinced. In fact,
in reaching its conclusion in the MTD Order, the Court itself acknowledged the “potential
tension between Defendants’ asserted immunity defenses and the Tenth Circuit’s
conclusion that ‘Plaintiffs may pursue a suit for compensation under § 1983.” Id. at *2
(citing Knellinger, 134 F.4th at 1045) (cleaned up). And the Court further acknowledges
now that barring Plaintiffs’ takings claims because they may seek relief in state court could
implicate the Tenth Circuit’s determination that Plaintiffs are not required to seek relief in
state court to pursue the alleged takings. See Knellinger, 134 F.4th at 1044–45.
To be clear, any apparent discrepancies between Williams and Knellinger I were
thoughtfully considered and thoroughly addressed by the Court in the MTD Order. See
Knellinger, 2026 WL 411749, at *3–5. However, the difficulty in resolving the Tenth
Circuit’s positions in Williams and Knellinger I, coupled with the fact that the Tenth Circuit
has not yet formally ruled on the application of Eleventh Amendment immunity in the
context of a takings claim against state officials under the Fifth Amendment, convinces
the Court that the MTD Order concerns issues that give rise to substantial ground for a
difference of opinion. See, e.g., Forest Guardians v. Bureau of Land Mgmt., 188 F.R.D.
389, 396–97 (D.N.M. 1999) (concluding that “conflicting decisions” and “uncertain
precedent” from the Tenth Circuit create a “substantial ground for difference of opinion”
where prior precedent which “may be controlling” nevertheless “did not address” other
“argument[s] raised by the [p]laintiffs” in a similar context); Pub. Serv. Co. of New Mexico
v. Approximately 15.49 Acres of Land in McKinley Cnty., New Mexico, 167 F. Supp. 3d
1248, 1270 (D.N.M. 2016) (explaining that “district courts should certify questions when
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they are unsure what the law is” and when “there is no clear precedent on which to rely”)
(citing Branzan Alternative Inv. Fund, LLLP v. The Bank of New York Mellon Tr. Co., N.A.,
No. 14-cv-02513-REB-MJW, 2015 WL 6859996, at *1 (D. Colo. Nov. 9, 2015)).
c. 	Materially Advance the Termination of the Litigation
Finally, the Court considers the third prong of the § 1292(b) inquiry: material
advancement of the ultimate termination of this litigation. “An immediate appeal advances
the termination of litigation where it ‘would (1) eliminate the need for trial, (2) eliminate
complex issues so as to simplify the trial, or (3) eliminate issues to make discovery easier
and less costly.’” Atl. Richfield Co., 2023 WL 5333756, at *9 (citing XTO Energy, Inc. v.
ATD, LLC, 189 F. Supp. 3d 1174, 1195 (D.N.M. 2016)).
Defendants argue that an interlocutory appeal would not serve such ends here
because the MTD Order already “simplified the case by allowing Plaintiffs to proceed with
their more limited due process claim” and “Plaintiffs have identified no actual efficiencies
to be realized by immediate review or any urgency based on ongoing harms.” ECF No.
91 at 7. Contrary to Defendants’ position, see id., the Court finds that an interlocutory
appeal would advance the interests of judicial economy in this case.
Although it is true that the MTD Order narrowed the issues remaining for class
certification, summary judgment, and trial, continuing on this narrowed path is judicious
only if there is no opportunity for those issues to expand later. But Plaintiffs have made
clear that they intend to appeal the MTD Order either way. See ECF No. 89 at 14
(“Whether Plaintiffs’ appeal immediately or after a final adjudication, the parties will
ultimately brief an appeal.”). And to the extent the court of appeals disagrees with the
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MTD Order’s conclusions—either now or in connection with Plaintiffs’ appeal of a final
judgment—and revies Plaintiffs’ takings claims, the parties would be required to relitigate
the case over again, including expanding discovery and potentially rearguing significant
summary judgment and class certification motions.
At this stage, even though discovery is now complete, the Court has not yet ruled
on Plaintiffs’ class certification motion, and the parties have not filed dispositive motions.
Cf. Finken v. USA Cycling, Inc., No. 1:17-cv-79, 2020 WL 4933811, at *4 (D. Utah Aug.
24, 2020) (concluding that “an interlocutory appeal will not speed up or substantially
shorten 	the 	litigation” 	where 	discovery 	was 	complete, 	dispositive 	motions 	have
concluded, and the case was “ready for trial”). Because resolution of the issues discussed
in the MTD Order would materially advance the ultimate termination of this litigation, the
Court finds it is “more efficient . . . to allow [an] appeal at this time.” Pub. Serv. Co. of New
Mexico, 167 F. Supp. 3d at 1270–71 (concluding that “an interlocutory appeal will
materially advance the ultimate termination of this proceeding” because, otherwise, the
parties would potentially need to engage in repetitive processes if an appeal at the
conclusion of the litigation was successful).
Accordingly, consistent with the foregoing, the Court grants Plaintiffs’ motion, ECF
No. 89, and certifies the MTD Order for interlocutory appeal pursuant to § 1292(b).
B. Defendants’ Motion to Stay Briefing on Motion for Class Certification
(ECF 96), ECF No. 98
The Court turns next to Defendants’ motion to stay, ECF No. 98, which asks to
stay the briefing schedule and resolution of Plaintiffs’ class certification motion. Plaintiffs
oppose the requested relief. ECF No. 104.
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As an initial matter, the Court notes that although Plaintiffs’ class certification
motion is now fully briefed, see ECF Nos. 98, 104, 112, the Court has not yet ruled on it.
However, in light of its conclusion above permitting Plaintiffs to seek interlocutory appeal
of the MTD Order, the Court finds that a stay is appropriate at this time. See, e.g., Kerr,
No. 2012 WL 4359076, at *4 (“The district court has discretion to determine whether to
stay proceedings pending disposition of an interlocutory appeal.”) (citing United States ex
rel. Drake v. NSI, Inc., 736 F.Supp.2d 489, 503 (D. Conn. 2010)). Indeed, as Defendants
note, see ECF No. 98 at 2 (citing ECF No. 96 at 2), the various questions of fact and law
that Plaintiffs argue are common to the proposed class (and that the Court will have to
consider in connection with Plaintiffs’ certification motion) are likely to be impacted by the
resolution of Plaintiffs’ interlocutory appeal.
For example, certain of Plaintiffs’ proposed common questions—for instance,
whether RUUPA’s failure to require pre-deprivation notice to property owners violates due
process and whether enforcement of RUUPA results in the unconstitutional seizure of
private property, see ECF No. 96 at 10—implicate claims that were dismissed in the MTD
Order. See, e.g., Knellinger, 2026 WL 411749, at *12 (concluding that “Plaintiffs cannot
maintain a due process claim based on Defendants’ compliance with RUUPA's notice
provisions because such actions do not establish the violation of a clearly established
due process right”). Additionally, Plaintiffs’ proposed common question of “[w]hether
Colorado owns or otherwise has title of unclaimed property seized pursuant to RUUPA,”
ECF No. 96 at 10, similarly implicates the MTD Order’s conclusion that “because
Plaintiffs’ unclaimed property held in trust ‘is not owned by the state,’ that “property has
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not been taken at all,’ and thus, cannot support a takings claim.” Knellinger, 2026 WL
411749, at *7 (citing C.R.S. § 38-13-803; Taylor v. Westly, 402 F.3d 924, 936 (9th Cir.
2005)). Because the Tenth Circuit will have the opportunity to review the entire MTD Order
in connection with Plaintiffs’ interlocutory appeal, see Yamaha Motor Corp, 516 U.S. at
205, reviewing the class certification motion in this posture would be inefficient and
potentially lead to duplicative work for the Court and the parties. See, e.g., United States
ex rel. Blyn v. Triumph Grp., Inc., No. 2:12-cv-922-DAK, 2016 WL 3546244, at *3 (D. Utah
June 23, 2016) (“Because part of the purpose of granting the interlocutory appeal is to
avoid protracted and expensive litigation, the court also concludes that the case should
be stayed pending the decision by the Tenth Circuit.”).
Accordingly, Defendants’ motion for stay, ECF No. 98, is granted, and this
underlying 	litigation 	is 	stayed 	pending 	the 	Tenth 	Circuit’s 	resolution 	of 	Plaintiffs’
interlocutory appeal.
C. Plaintiffs’ Motion for Class Certification and Memorandum in Support,
ECF No. 96
Finally, the Court turns to Plaintiffs’ class certification motion. ECF No. 96.
Although that motion is now fully briefed, see ECF Nos. 96, 105, 112, as discussed
above, it raises numerous questions of law likely to be impacted by a decision from the
Tenth Circuit on Plaintiffs’ interlocutory appeal. For that reason, it would be inefficient and
potentially duplicative for the Court to consider Plaintiffs’ class certification arguments at
this stage, before the Tenth Circuit has had the opportunity to consider the MTD Order
(as Plaintiffs have requested).
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Accordingly, Plaintiffs’ motion for class certification, ECF No. 96, is denied without
prejudice. Following the Tenth Circuit’s resolution of Plaintiffs’ interlocutory appeal and
the parties’ submission of a joint status report to the Court (discussed below), Plaintiffs
will be permitted to refile their class certification motion as necessary.
III. 	CONCLUSION
Consistent with the above analyses, the Court orders the following:
1) Plaintiffs’ Motion to Certify Order for Interlocutory Appeal Under 28 U.S.C. §
1292(b), ECF No. 89, is GRANTED;
2) Defendants’ Motion to Stay Briefing on Motion for Class Certification (ECF 96),
ECF No. 98, is GRANTED, and this litigation is hereby STAYED pending the
Tenth Circuit’s resolution of Plaintiffs’ interlocutory appeal; and
3) Plaintiffs’ Motion for Class Certification and Memorandum in Support, ECF No.
96, is DENIED WITHOUT PREJUDICE.
Additionally, the parties are ORDERED to submit a joint status report to the Court
describing the current case status, as well as their proposed case schedule, 14 days after
the appellate mandate issues. Finally, in light of the stay, the parties’ summary judgment
intent conference currently scheduled for August 28, 2026 is hereby VACATED.
DATED this 21st day of August 2026.
BY THE COURT:
________________________________
Charlotte N. Sweeney
United States District Judge
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