HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 294 - Open's Supp Tendered Jury Instructions In Response To Juror QuestionsIN 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 TENDERED JURY INSTRUCTIONS
IN RESPONSE TO JUROR QUESTIONS
Open tenders the following—which includes two independent alternative instructions—to
address the jury’s questions raised the morning of November 3, 2023.
HOW TO RESPOND TO JURY QUESTIONS 2-5 REGARDING NATURE OF AND
DIFFERENCES BETWEEN FRAULUDENT INDUCEMENT AND NEGLIGENT
MISREPRSENTATION CLAIMS1
Alternative 1:
In light of your questions, I will now provide you a supplemental instruction to explain
how the claims of fraudulent inducement and negligent misrepresentation are different or not
different.
1 Compare Mehaffy, Rider, Windholz & Wilson v. Central Bank, N.A., 892 P.2d 230, 236-37
(Colo. 1995) (defining negligence element and explaining that, “[i]n a claim for negligent
misrepresentation, the misrepresentation must be of a material fact that presently exists or has
existed in the past.”), and Colo. Pool Sys. v. Scottsdale Ins. Co., 2012 COA 178 ¶ 60 (“In every
negligent misrepresentation case, the plaintiff must show justifiable reliance on the alleged
misrepresentation.”), with CJI-Civ. 19:1 (articulating same elements for fraudulent inducement).
Defense tendered and rejected
11/3/2023
Case No. 1:21-cv-02063-CNS-SBP Document 294 filed 11/03/23 USDC Colorado pg 1 of 2
2
Both claims require:
1. A false statement or representation of a past or present fact or information;
2. The fact or information must be material;
3. Open knew or intended that the City would rely on the statement or representation;
4. The City justifiably relied on the statement or representation; and
5. The City was damaged as a result.
What distinguishes these claims is that, for fraudulent inducement, you must find that
Open knew the fact or information was false. In contrast, for negligent misrepresentation, you
must find that Open was negligent in obtaining or communicating the fact or information.
Alternative 2:
In light of your questions, I will now provide you a supplemental instruction to explain
how the claims of fraudulent inducement and negligent misrepresentation are different or not
different.
My Instructions Nos. 17-20 apply equally to both the claim of fraudulent inducement and
the claim of negligent misrepresentation. You must therefore apply those instructions when
resolving both of those claims.
What distinguishes these claims is that, for fraudulent inducement, you must find that
Open knew the fact or information was false. In contrast, for negligent misrepresentation, you
must find that Open was negligent in obtaining or communicating the fact or information.
Dated: November 3, 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
30832478_v1
Case No. 1:21-cv-02063-CNS-SBP Document 294 filed 11/03/23 USDC Colorado pg 2 of 2