UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ TIMOTHY L. BLIXSETH, an individual, Plaintiff - Appellant,

v. CUSHMAN & WAKEFIELD OF COLORADO, INC., a Colorado corporation; DEAN PAAUW, an individual and citizen of the State of Colorado; CUSHMAN & WAKEFIELD, INC., a New York corporation; CREDIT SUISSE AG, a Swiss Corporation; CREDIT SUISSE GROUP AG, a Swiss corporation; CREDIT SUISSE SECURITIES (USA), LLC, a Delaware limited liability company; CREDIT SUISSE (USA), INC., a Delaware corporation; CREDIT SUISSE HOLDINGS (USA), INC., a Delaware corporation; CREDIT SUISSE CAYMAN ISLAND BRANCH, an entity of unknown type; DOES 1-100, Defendants - Appellees. No. 15-1375 (D.C. No. 1:12-CV -00393-PAB-KLM) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32. 1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 3, 2017
Elisabeth A. Shumaker Clerk of Court2 Before PHILLIPS and SEYMOUR , Circuit Judges. **

________________ _________________ BACKGROUND This case stems from longstanding ba nkruptcy proceedings for the Yellowstone Mountain Club. Other courts have set out the events occurring before and after the bankruptcy filing, and we do not detail them here. 1 For this appeal, we simply note that in 1997, Timothy Blixseth and his wife (now ex-wife and present adversary) founded the Ye llowstone Mountain Club, LLC, a luxury golf and ski resort in Montana. In 2004, Dean Paau w, an employee of Cushman & Wakefield, 2

** The Honorable Neil Gorsuch heard oral ar gument but did not participate in this Order & Judgment. The practice of this court permits the remaining two panel judges, if in agreement, to act as a qu orum in resolving the appeal. See 28 U.S.C. § 46(d); see also United States v. Wiles , 106 F.3d 1516, 1516 n* (10th Cir. 19 97) (noting this court allows remaining panel judges to act as a quorum to resolve an appeal); Murray v. National Broadcasting Co ., 35 F.3d 45, 48 (2nd Cir. 1994), cert. denied , 513 U.S. 1082 (1995) (remaining two judges of original three ju dge panel may decide petition for rehearing without third judge).

1 The history of the Yellowstone Mo untain Club and its bankruptcy are described in detail in Blixseth v. Kirschner (In re Ye llowstone Mountain Club, LLC) , 436 B.R. 598 (Bankr. D. Mont. 2010). See also Blixseth v. Gl asser (In re Yellowstone Mountain Club , LLC) , No. 08-61570-11-RBK, 2014 WL 1369363 (D. Mont. Apr. 7, 2014) aff’d in part and rev’d in part , 656 F. App’x 307 (9th Cir. 2016); Kirschner v. Blixseth , CV 11-08283 GAF (C.D. Cal. June 18, 2014).

2 In his Complaint, Blix seth asserted claims ag ainst Dean Paauw, two Cushman entities, and six Credit Suisse en tities: Cushman & Wakefield of Colorado, Inc., Cushman & Wakefield, Inc. (colle ctively Cushman), and Credit Suisse AG, Credit Suisse Group AG, Credit Suisse Secu rities (USA), LLC, Credit Suisse (USA), Inc., Credit Suisse Holdings (USA), Inc. and Credit Suisse Cayman Island Branch (collectively Credit Suisse).3 appraised the Yellowstone Cl ub for $1.165 billion. In 2005, based on this appraisal, Credit Suisse lent $375 milli on to the Yellowstone Club. Until 2008, Blixseth was the president and sole share holder of Blixseth Group, Inc., which was the majority owner of the Yellowstone Club. From Credit Suisse’s $375 million loan to the Yellowstone Club, Blixseth took $209 million for himself
based on Credit Suisse’s assura nces that he could do so. 3 Soon after the loan and Blixseth’s cash withdrawal, the Ye llowstone Club filed for bankruptcy. In the district court, Blixse th asserted the same nine claims against each of the Defendants (Dean Paauw, Cushman, and Cr edit Suisse): (1) violations of the Racketeer Influenced and Corrupt Organiza tions Act (RICO); (2 ) common-law fraud; (3) breach of fiduciary duty; (4) common-law negligence and negligent misrepresentation; (5) torti ous interference with contr actual relations; (6) breach of covenants of good faith and fair dealing under the Unif orm Commercial Code and common law; (7) breach of contract; (8 ) equitable indemnity; and (9) common-law conspiracy. The Defendants filed motions to dism iss all nine clai ms. In response, Blixseth abandoned three claims against Cushman—claims for tortious interference with contractual relations, breach of contract, and equitabl e indemnity. He also abandoned his claim against Credit Suisse for equitable indemnity. After considering the motion

3 In considering the motions to dismis s, we assume the facts alleged in Blixseth’s Complaint as true. Kansas Penn Gaming, LLC v. Collins , 656 F.3d 1210, 1214 (10th Cir. 2011).4 to dismiss the remain ing claims, the district court dismissed all remaining claims against Cushman and Dean Paauw. The district court also dismissed all of Blixseth’s claims against Credit Suisse except one for tortious in terference with contractual relations. Though the district court concluded that it would be futile to allow Blixseth to amend his complaint for most of his clai ms, it allowed Blixseth leave to amend his complaint to try to as sert a plausible claim against Cr edit Suisse for breach of the implied covenant of good faith and fair de aling. Blixseth ame nded his Complaint and reasserted that claim. Thus, two claims against Credit Suisse survived dismissa l: (1) the claim alleging tortious interference with a contra ct, and (2) the claim alleging breach of the implied covenant of good faith and fair dealing. Credit Suis se sought and won summary judgment on these tw o claims. Blixseth now app eals the district court’s orders granting dismissal and summa ry judgment against his claims. DISCUSSION I. Motion to Dismiss A. Jurisdiction Before addressing the merits of this appeal, we must address Cushman’s motion arguing that we lack appellate juri sdiction to review Blixseth’s claims dismissed for failure to state a claim. Among the prerequisites to our appellate jurisdiction is one requiring that appellants, in their notices of a ppeal, “designate the judgment, order, or part th ereof being appealed.” Fed. R. App. P. 3(c)(1)(B); see McBride v. CITGO Petroleum Corp. , 281 F.3d 1099, 1104 (10th Cir. 2002).5 In his Notice of Appeal, Blixseth designa ted as “the judgment , order, or part thereof being appealed,” “t he final judgment entered on September 4, 2015, a copy of which is attached hereto as Exhibit 1.” R. Vol. 8 at 2068. But instead of attaching the final judgment, Blixseth atta ched the district court’s su mmary-judgment order. From this, Cushman argues that Blixseth has waived his right to appeal any issues outside the summary-judgment order—specifically a ny issues arising from the order granting the motions to dismiss. We disagree, be cause the designation, not the attachment, governs the scope of a permissible appeal. See McBride , 281 F.3d at 1103–04. By designating the final judgment, all earlier orders merged into that final judgment. Id. (“[A] notice of appeal which names the final judgment is su fficient to support review of all earlier orders that merge in the fina l judgment.”). In fact, Rule 3 doesn’t even require appellants to attach th e order they intend to appeal. See Fed. R. App. P. 3. None of Cushman’s cited cases persuade us otherwise. Unlike in those cases, Blixseth designated the entire final judgment in his Notice of Appeal, not an earlier order or a part of the final judgment. See Averitt v. Southland Motor Inn of Okla. , 720 F.2d 1178, 1180–81 (10th Cir. 1983) (defendant designated the district court’s final judgment “insofar as that j udgment relates to punitive dama ges,” so we disallowed an appeal of the entire judgment). Thus, we have jurisdiction over the claims dismissed in response to the Defendant s’ motions to dismiss. B. Standing On appeal, Blixseth argues that the district court er red in concluding that he lacked prudential standing to assert his claims allegi ng RICO violations, fraud,6 breach of fiduciary duty, negligence, and negligent misrepresentation. 4 Blixseth challenges the district court’ s conclusion that his claimed injuries were derivative of the Yellowstone Club’s. We review de novo questions of standing. Wyoming ex rel. Crank v. United States , 539 F.3d 1236, 1241 (10th Cir. 2008). In a thorough and well-reasoned order, th e district court co rrectly applied the general rule that shareholders lack standi ng to assert claims when their losses are only derivative of a corporation’s losses, meaning that the individual’s losses depend on the company’s losses. See Niemi v. Lasshofer , 728 F.3d 1252, 1260 (10th Cir. 2013). In ruling, the district court also cons idered an exception to this rule, one allowing shareholders “with a direct, personal interest in a cause of action to bring suit even if the corporation’s rights ar e also implicated.” R. Vol. 4 at 1090 (quoting Bixler v. Foster , 596 F.3d 751, 757 (10th Cir. 2010)). But the district court concluded that this exception didn’t apply. It reas oned that Blixseth had signed the loan documents with Credit Suisse as the Yellowstone Club’s ma nager, that Credit Suisse had lent money to the Yellowstone Club and not Blixseth, and that Credit Suisse’s alleged misrepresentations had been made to Blixseth as President of Blixseth Group, Inc., and as the Yellowstone Club’s manager. Thus, the district court concluded that Blixseth lacked prudential st anding to assert his RICO, fraud, breach of fiduciary duty, negligence, and negligent misrepre sentation claims against the Defendants

4 Blixseth does not appeal the district court’s dismissal of his claim for breach of fiduciary duty.7 because his alleged injuries derived from the Yellowstone Club’s injuries. Accordingly, the district c ourt dismissed these claims. Next, the district court dismissed Blix seth’s breach-of-contract claim, finding it barred by an exculpation clause in th e Third Amended Plan of Organization from the Yellowstone Club bankruptcy. 5 The district court reas oned that the exculpation clause bars claims agains t Credit Suisse arising from the Yellowstone Club’s bankruptcy. 6 Now Blixseth argues that the district court erred on the pr udential-standing and exculpatory-clause grounds. After reviewi ng the record, the briefing, and all of Blixseth’s arguments, we af firm the district court’s Order granting Cushman and Dean Paauw’s motion to dismiss and par tially granting Credit Suisse’s motion to dismiss. We do so for substantially the same reasons given by the district court in its detailed Order. II. Summary Judgment Blixseth also claims that the district court erred in granting summary judgment in favor of Credit Suisse on his claims for (1) tortious interference with contractual

5 We review de novo the district cour t’s holding that Blix seth’s Complaint failed to state a breach-of-contract cl aim under Fed. R. Civ. P. 12(b)(6). Khalik v. United Air Lines , 671 F.3d 1188, 1190 (10th Cir. 2012).

6 The district court dismissed Blixseth’s conspiracy claim after dismissing the conspiracy’s underlying tort claims. On app eal, Blixseth argues that if we reinstate “any of the dismissed claims, Cushman would then be properly subject to liability as a co-conspirator.” Appellant’s Opening Br. at 19 n.4. Because we do not reinstate any of the dismissed claims, and because Blixse th does not argue that the district court erred in dismissing his conspi racy claim, we affirm the dismissal of this claim.8 relations, and (2) breach of the implied c ovenant of good faith and fair dealing. Blixseth argues that the Yellowstone Club Liquidating Trust interfered with certain releases obtained in his divorce proceed ings. The Yellowstone Club’s bankruptcyreorganization plan created the Yellowst one Club Liquidating Tr ust to receive and hold the Yellowstone Club’s property. Th e Liquidating Trust substituted for the Yellowstone Club and pursued its claims against Blixseth . Blixseth claims that because Credit Suisse controls the Liquidating Trus t, Credit Suisse also controls the Liquidating Trust’s actions. Ab sent showing that Credit Suisse had this control, Blixseth’s claims fo r breach of the implie d covenant of good faith and fair dealing and tortious interference with c ontractual relations must fail. The district court determined that Blix seth is collaterally estopped from this argument because the Bankruptc y Court for the District of Montana had already ruled that Credit Suisse didn’t control the Liquidating Trust. See Moss v. Kopp , 559 F.3d 1155, 1161 (10th Cir. 2009) (“Collateral estoppel bars a party from relitigating an issue once it has suffered an adverse determ ination on the issue, even if the issue arises when the party is pursuing or defe nding against a different claim.”). Thus, the district court dismissed Blix seth’s claims that Blixseth premised on Credit Suisse’s alleged control of th e Liquidating Trust. The district court also acknowledged that Blixseth asserted that Credit Suisse had targeted Blixseth to fund the bankrup tcy-reorganization plan, even before the Liquidating Trust was formed. Th e district court concluded th at Blixseth had failed to show that Credit Suisse caused any dama ges. After thoroughl y addressing each of9 Blixseth’s arguments, the dist rict court dismissed his rema ining claims and entered a final judgment in favor of the Defendants. After reviewing the record and the br iefing, including all of Blixseth’s materials, we find no error in the district court’s deta iled summary-judgment order. We affirm for substantiall y the same reasons stated by the district court. III. Request for Additional Discovery Finally, Blixseth claims the district court erred in denying his request for additional discovery under Federal Rule of Civil Procedure 56(d). Blixseth requested the district court delay its summary-j udgment ruling until he could complete additional discovery. On appeal, Blixseth simply claims that the dist rict court erred in concluding that the discovery he sought wa s irrelevant. Indeed, the district court found that Blixseth’s add itional discovery would not be relevant to the claimpreclusion issues or be unavailable in rela ted proceedings. For s ubstantially the same reasons stated by the district court, the district court didn’t abuse its discretion in denying Blixseth’s request for additional discovery. CONCLUSION For the reasons stated above, Cushman’ s motion to dismiss this appeal is denied. The district cour t’s judgment is affirmed. Entered for the Court

Gregory A. Phillips Circuit Judge