UNITED STATES CO URT 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 Holdi ngs, LLC. He brought this diversity action against Kenneth Adelberg, seeki ng 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 fa ilure to state a cl aim under Fed. R. Civ. P. 12(b)(6).

* After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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- 2 - Specifically, the court held that Colo. Rev. Stat. § 7-90- 913(b) was inapplicable to

Mr. Alexander’s claim becaus e the assets of both Woodm oor 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, Co lorado, in the course of a receivership proceeding after that court or dered dissolution under statut ory authority for judicial dissolution of corporations.” Aplt. App. at 59. The distri ct court also observed that Mr. Adelberg has some ownership in th e 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 re consideration, which the district court summarily denied. This appeal followed. Mr. Alexa nder challenges the district court’s conclusions that: (1) Colo. Re v. Stat. § 7-90-913(b) is ina pplicable 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, accepte d as true, ‘to state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 67 8 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). “A cl aim has facial plau sibility when the plaintiff pleads factual conten t that allows the court to draw the reasonable inference- 3 - 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 atta ched exhibits, and doc uments incorporated into the complaint by reference.” Smith v. United States , 561 F.3d 1090, 1098 (10th Cir. 2009) (cita tion 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 w ith 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 reversib le 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