HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 290 - Open's Supp Proposed Jury InstructionsIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 21-cv-02063-CNS-SP
CITY OF FORT COLLINS,
Plaintiff/Counterclaim Defendant,
v.
OPEN INTERNATIONAL, LLC
Defendant/Counterclaim Plaintiff,
and
OPEN INVESTMENTS, LLC,
Defendant.
OPEN’S SUPPLEMENTAL PROPOSED JURY INSTRUCTIONS
Defense tendered and rejected
11/1/2023
Case No. 1:21-cv-02063-CNS-SBP Document 290 filed 11/01/23 USDC Colorado pg 1 of 5
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FRAUDULENT INDUCEMENT – ACTUAL DAMAGES1, 2
The City has the burden of proving the nature and extent of its damages by a
preponderance of the evidence. If you find in favor of the City, you must determine the total
dollar amount of the City’s damages, if any, that were caused by the false representation of
Open. However, you should not infer that the City is entitled to recover damages merely because
I am instructing you on the elements of damages.
In determining these damages, you shall consider the following:
1. The difference between the market value of what the City received in the
transaction and what its value would have been had the representation been true.3
1For the reasons explained in its Motion to Compel Election of Remedies and Limit Jury
Demand, Dkt. 232, and its Response, Dkt. 236, Open maintains its objection to the jury hearing
any claim, defense, or evidence of fraudulent inducement. The City’s pleaded fraudulent
inducement claim seeks only the equitable remedy of rescission and therefore is not triable to a
jury. The City has not pled, disclosed, or shown any evidence to support an award of actual
damages for its claim of fraudulent inducement, see Dkt. 240, Exs. 1-3 (initial and supplemental
damages disclosures); Dkt. 230 at ECF pages 7, 40-41 (final pretrial order); and its damages
expert never once mentioned fraud or misrepresentation—let alone actual damages for fraud or
misrepresentation—in his report, Dkt. 150-4 (expert disclosure). Without waiving these
objections, in light of the Court’s Order Denying Motion to Compel Election of Remedies and
Limit Jury Demand, Dkt. 255, and its rulings made during the Trial Preparation Conference, Dkt.
258, Open submits this proposed instruction on the measure of damages for fraudulent
inducement.
2 CJI-Civ. § 19:17 (2023).
3 Open omits the consequential damages portion of this instruction in light of the restriction
against consequential damages in the MPSA, which applies to any damages the City may be
permitted to seek in the event it elects to affirm the MPSA and pursues damages for fraudulent
inducement. See Sections 12.1 and 13.5(c) of the MPSA; Am. Health Connection v. Doctor to
Doctor Sales Sols., LLC, No. 21-cv-00702, 2021 U.S. Dist. LEXIS 232613, at *4 (D. Colo. Dec.
6, 2021) (contract limitation bars fraudulent inducement damages in excess of limitation).
Case No. 1:21-cv-02063-CNS-SBP Document 290 filed 11/01/23 USDC Colorado pg 2 of 5
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NEGLIGENT MISREPRESENTATION – ACTUAL DAMAGES4
The City has the burden of proving the nature and extent of its damages by a
preponderance of the evidence. If you find in favor of the City, you must determine the total
dollar amount of the City’s damages, if any, that were caused by the negligent representation of
Open.5 However, you should not infer that the City is entitled to recover damages merely
because I am instructing you on the elements of damages.
The damages recoverable for a negligent misrepresentation are those necessary to
compensate the City for the financial loss to it of which the misrepresentation is a legal cause,
including:
1. The difference between the market value of what the City received in the
transaction and its purchase price or other value given for it.6
The damages recoverable for a negligent misrepresentation do not include the benefit of
the City’s contract with Open.7
4 For the reasons explained in its Motion to Compel Election of Remedies and Limit Jury
Demand, Dkt. 232, and its Response, Dkt. 236, Open maintains its objection to the jury hearing
any claim, defense, or evidence of negligent misrepresentation. The City’s pleaded negligent
misrepresentation claim seeks only the equitable remedy of rescission and therefore is not triable
to a jury. The City has not pled, disclosed, or shown any evidence to support an award of actual
damages for its claim of negligent misrepresentation, see Dkt. 240, Exs. 1-3 (initial and
supplemental damages disclosures); Dkt. 230 at ECF pages 7, 40-41 (final pretrial order); and its
damages expert never once mentioned fraud or misrepresentation—let alone actual damages for
fraud or misrepresentation—in his report, Dkt. 150-4 (expert disclosure). Without waiving these
objections, in light of the Court’s Order Denying Motion to Compel Election of Remedies and
Limit Jury Demand, Dkt. 255, and its rulings made during the Trial Preparation Conference, Dkt.
258, Open submits this proposed instruction on the measure of damages for negligent
misrepresentation.
5 CJI-Civ. § 19:17 (2023).
6 Open omits the “loss suffered otherwise” portion of this instruction in light of the restriction
against consequential damages in the MPSA, which applies to any damages the City may be
permitted to seek in the event it elects to affirm the MPSA and pursue damages for negligent
misrepresentation. See Sections 12.1 and 13.5(c) of the MPSA; Am. Health Connection v.
Doctor to Doctor Sales Sols., LLC, No. 21-cv-00702, 2021 U.S. Dist. LEXIS 232613, at *4 (D.
Colo. Dec. 6, 2021) (contract limitation bars fraudulent inducement damages in excess of
limitation).
7 Restatement (Second) of Torts §§ 552B(1) and (2); see also Whatley v. Crawford & Co., 15
Fed. Appx. 625, 630 (10th Cir. 2001).
Case No. 1:21-cv-02063-CNS-SBP Document 290 filed 11/01/23 USDC Colorado pg 3 of 5
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LIMITATION OF DAMAGES FOR NEGLIGENT MISREPRESENTATION AND
FRAUDULENT INDUCEMENT8,9
The amount of damages awardable to the City, if any, is limited to the fees paid by the City to Open u
liability.”10
8 For the reasons explained in its Motion to Compel Election of Remedies and Limit Jury
Demand, Dkt. 232, and its Response, Dkt. 236, Open maintains its objection to the jury hearing
any claim, defense, or evidence of fraudulent inducement and negligent misrepresentation. The
City’s pleaded fraudulent inducement claim seeks only the equitable remedy of rescission and
therefore is not triable to a jury. The City has not pled, disclosed, or shown any evidence to
support an award of actual damages for its claim of fraudulent inducement or negligent
misrepresentation, see Dkt. 240, Exs. 1-3 (initial and supplemental damages disclosures); Dkt.
230 at ECF pages 7, 40-41 (final pretrial order); and its damages expert never once mentioned
fraud or misrepresentation—let alone actual damages for fraud or misrepresentation—in his
report, Dkt. 150-4 (expert disclosure). Without waiving these objections, in light of the Court’s
Order Denying Motion to Compel Election of Remedies and Limit Jury Demand, Dkt. 255, and
its rulings made during the Trial Preparation Conference, Dkt. 258, Open submits this proposed
instruction on the limitation of damages for negligent misrepresentation and fraudulent
inducement, should the City elect to affirm the contract and thereby affirm the limitation
provisions under the MPSA.
9 Am. Health Connection v. Doctor to Doctor Sales Sols., LLC, No. 21-cv-00702, 2021 U.S. Dist.
LEXIS 232613, at *4 (D. Colo. Dec. 6, 2021) (contract limitation bars fraudulent inducement
damages in excess of limitation).
10 CJI-Civ. 30:39; Sections 12.1 of the MPSA.
Case No. 1:21-cv-02063-CNS-SBP Document 290 filed 11/01/23 USDC Colorado pg 4 of 5
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Dated: November 1, 2023 Respectfully submitted,
HOLLAND & HART LLP
s/ Kevin C. McAdam
Paul D. Swanson
Kevin C. McAdam
Alexander D. White
Alexandria E. Pierce
Holland & Hart LLP
555 17th Street, Suite 3200
Denver, Colorado 80202
Telephone: 303-295-8000
pdswanson@hollandhart.com
adwhite@hollandhart.com
aepierce@hollandhart.com
Attorneys for Defendants-Counterclaimant Open
International, LLC and Open Investments, LLC
Case No. 1:21-cv-02063-CNS-SBP Document 290 filed 11/01/23 USDC Colorado pg 5 of 5