UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

JOHN ALEXANDER, 

 Plaintiff-Appellant, 

v. 

KENNETH ADELBERG, 

 Defendant-Appellee. 

No. 12-1054 

(D.C. No. 1:11-CV-02918-RPM) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES, 

Circuit Judge. 

 

 

 John Alexander is payee on a note made by Woodmoor Pines Golf & Country 

Club, LLC, and guaranteed by KDGC Holdings, LLC. He brought this diversity 

action against Kenneth Adelberg, seeking recovery from Mr. Adelberg for 

nonpayment of the note, relying on Colo. Rev. Stat. § 7-90-913(b). The district court 

dismissed the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). 

 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, 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 

September 26, 2012

Elisabeth A. Shumaker 

Clerk of Court
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Specifically, the court held that Colo. Rev. Stat. § 7-90-913(b) was inapplicable to 

Mr. Alexander’s claim because the assets of both Woodmoor Pines Golf & Country 

Club and KDGC Holdings “were sold to Tri-Lakes Golf, LLC, in a sale approved by 

the District Court, County of El Paso, Colorado, in the course of a receivership 

proceeding after that court ordered dissolution under statutory authority for judicial 

dissolution of corporations.” Aplt. App. at 59. The district court also observed that 

Mr. Adelberg has some ownership in the purchasing entity, Tri-Lakes Golf, but 

concluded that he “ha[d] no liability for its obligations because of [Colo. Rev. Stat.] 

§ 7-80-705.” Id. Mr. Alexander filed a motion for reconsideration, which the district 

court summarily denied. 

 This appeal followed. Mr. Alexander challenges the district court’s 

conclusions that: (1) Colo. Rev. Stat. § 7-90-913(b) is inapplicable to his claim, and 

(2) the limited liability provisions of Colo. Rev. Stat. § 7-80-705 shield Mr. Adelberg 

from liability. 

 Our jurisdiction arises under 28 U.S.C. § 1291. We review de novo a district 

court’s dismissal under Rule 12(b)(6). Khalik v. United Air Lines, 671 F.3d 1188, 

1190 (10th Cir. 2012). “To survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible 

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable inference 
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that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 

Additionally, “[i]n evaluating a Rule 12(b)(6) motion to dismiss, courts may consider 

not only the complaint itself, but also attached exhibits, and documents incorporated 

into the complaint by reference.” Smith v. United States, 561 F.3d 1090, 1098 

(10th Cir. 2009) (citation and internal quotation marks omitted). Because this is a 

diversity case, “we review the district court’s determination of state law de novo.” 

Butler v. Union Pac. R.R., 68 F.3d 378, 379 (10th Cir. 1995). 

 The parties are familiar with the facts and procedural history of this case, and 

we need not restate either here. Having reviewed the briefs, the record, and the 

applicable law pursuant to the above-mentioned standards, we hold that 

Mr. Alexander has not identified any reversible error in this case. We therefore 

AFFIRM the judgment of the district court for substantially the same reasons stated 

in its succinct February 9, 2012, order for dismissal. We GRANT Mr. Alexander’s 

motion to strike materials contained in Mr. Adelberg’s supplemental appendix. 

 Entered for the Court 

 Wade Brorby 

 Senior Circuit Judge