1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02333-LTB-CBS 

LAFAYE ADAMS,

Plaintiff,

v.

FEDEX GROUND PACKAGE SYSTEM, INC., 

MARK HARRIS, in his official capacity as Senior Manager, and in his individual capacity, and

MARK POOLE, in his official capacity as P & D Manager, and in his individual capacity

Defendants.

____________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

____________________________________________________________________________

Magistrate Judge Craig B. Shaffer

This civil action comes before the court on Defendants’ Motion to Dismiss Plaintiff’s

Second Amended Complaint. Pursuant to the Order of Reference dated January 27, 2012

(Doc. # 6) and the memorandum dated June 22, 2012 (Doc. # 27), this matter was referred to

the Magistrate Judge. The court has reviewed the Motion, Plaintiff’s Response (filed August 22,

2012) (Doc. # 48), Defendants’ Reply (filed September 4, 2012) (Doc. # 49), Plaintiff’s Second

Amended Complaint (filed January 4, 2013) (Doc. # 55), Defendants’ Supplement to the Motion

to Dismiss (filed January 24, 2013) (Doc. # 56), Plaintiff’s Response to Defendants’ Supplement

(filed February 7, 2013) (Doc. # 57), the entire case file, and the applicable law and is

sufficiently advised in the premises. 

I. Statement of the Case

Ms. Adams became a “non-driving independent contractor” upon entering into a “Pickup

and Delivery Contractor Operating Agreement” with FedEx Ground Package System, Inc.

(“FedEx”) on April 30, 2009. (See Complaint (Doc. # 2) at 4, 6 of 10; Second Amended

Complaint (“SAC”) at ¶¶ 19, 26-27, 197). She purchased a route that provided pick-up and

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 1 of 15
1 Generally, a court considers only the contents of the complaint when ruling on a

12(b)(6) motion. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Exceptions to this

general rule include: documents incorporated by reference in the complaint; documents referred

to in and central to the complaint, when no party disputes its authenticity; and “‘matters of which

a court may take judicial notice.’” Id. (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 322 (2007)). If a plaintiff does not incorporate by reference or attach a document to

its complaint, but the document is referred to in the complaint and is central to the plaintiff’s

claim, a defendant may submit an indisputably authentic copy to the court to be considered on a

motion to dismiss. GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384

(10th Cir. 1997). Ms. Adams mentions the Operating Agreement and the arbitration in her

complaint (see, e.g., Doc. # 55 at ¶¶ 19, 26, 28, 39-41, 43-44, 56, 62-63, 80-81, 83-86, 91, 93-

94, 99-116, 177, 179-80, 184, 189-90, 192-94, 197-200, 203, 208) and does not dispute the

authenticity of the attachments to Defendants’ Motion. Accordingly, the court may consider the

Operating Agreement and arbitration documents. Cf. GFF Corp., 130 F.3d at 1385 (concluding

that district court properly considered letter that was “frequently referred to and quoted from” in

the amended complaint). 

2

delivery services from FedEx’s Centennial, Colorado terminal. (See Doc. # 55 at ¶¶ 7, 25-27). 

Her business relationship with FedEx quickly deteriorated, resulting in FedEx’s termination of

the Operating Agreement on or about September 3, 2009 for breach of the Operating

Agreement. (See Doc. # 55 at ¶ 13). Pursuant to the Operating Agreement, Ms. Adams filed a

demand for arbitration on or about October 14, 2009. (See Demand for Arbitration (Doc. # 26-

2)).1

 In her Demand for arbitration, Ms. Adams described the nature of the dispute as “Wrongful

termination and unclean hands by FedEx Ground. Retaliation and Discrimination based on sex,

race and age. I am seeking monetary compensation for the lost [sic] of my contract or

reinstatement of contract and replacement of truck,” $85,000.00, attorney fees, and arbitration

costs. (See Doc. # 26-2). On February 10, 2011, following a two-day hearing, the Arbitrator

denied Ms. Adams’s claims. The Arbitrator determined that

the evidence is clear that the problems experienced by Federal Express Ground

with this non-driving contractor claimant (LaFaye Adams) were overwhelming and

unprecedented. The problems included extreme levels of pick-up and delivery

failures (e.g. the unchallenged testimony of Mark Harris was that the level of such

situations from Mrs. Adams in four months exceeded those experienced by all 24

other contractors in the entire year of 2010), cooperation issues (e.g., demanding

that all communication be in writing), failure of service issues (e.g., not having

qualified drivers and back-up drivers on a full-time basis), serious integrity

problems engaged in by employees of Mrs. Adams (e.g. falsifying company

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 2 of 15
3

records relating to pick-ups and deliveries) and noncompliance with federal

regulatory standards (e.g., violations of DOT safe driving requirements). These

problems also operated as breaches of paragraph 1.10 of the Operating

Agreement and justified the respondent’s termination of the contract here. 

(See Standard Award of Arbitrator (Doc. # 26-3)). 

Proceeding pro se, Ms. Adams initiated this lawsuit on September 6, 2011. (See Doc. #

1). The operative pleading is Ms. Adams’s Second Amended Complaint (“SAC”) (Doc. # 55). 

The SAC is Ms. Adams’s fifth pleading in this case. (See Docs. # 1 and # 2 (initial Complaint),

Doc. # 12 (Amended Complaint, withdrawn by Ms. Adams on May 1, 2012 (see Courtroom

Minutes/Minute Order (Doc. # 21))), Doc. # 23 (revised Amended Complaint), and Doc. # 55

(SAC)). Defendants filed motions to dismiss her first three pleadings. (See Doc. # 12 (Motion to

Dismiss initial Complaint), Doc. # 18 (Motion to Dismiss Amended Complaint), and Doc. # 29

(Motion to Dismiss revised Amended Complaint)). On January 4, 2013, the court permitted Ms.

Adams to file her Second Amended Complaint (“SAC”), indicated it would apply the arguments

asserted in Defendants’ pending Motion to Dismiss (Doc. # 29) to the SAC, and permitted

Defendants and Ms. Adams to file supplemental briefs. (See Order (Doc. # 54)). Ms. Adams

brings 10 claims for violation of 42 U.S.C. § 1981, 42 U.S.C. § 2000e-2 et seq. (Title VII”), 42

U.S.C. § 1983, 29 U.S.C. § 62[3] et seq. (“ADEA”), “the Equality Act of 2010” (a British law), and

the Colorado Consumer Protection Act (“CCPA”), Colo. Rev. Stat. § 6-1-101 et seq., and for

fraudulent inducement, defamation and libel, “Economic Duress,” and declaratory judgment

under Colorado common law. (See Doc. # 55). 

II. Standard of Review

Defendants move to dismiss the SAC pursuant to Fed. R. Civ. P. 12(b). Rule 12(b)(6)

states that a court may dismiss a complaint for "failure to state a claim upon which relief can be

granted." While factual assertions are taken as true, legal conclusions are not. The burden is

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 3 of 15
4

on the plaintiff to frame “a complaint with enough factual matter (taken as true) to suggest” that

he or she is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). To

survive dismissal under Rule 12(b)(6) for failure to state a claim, plaintiffs must “nudge[] their

claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. “A claim has

facial plausibility when the [pleaded] factual content . . . allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

III. Analysis

A. Preclusion of Ms. Adams’s Claims Based on Prior Arbitration Award 

Defendants argue that, based on the arbitration award, collateral estoppel precludes Ms.

Adams from relitigating her claims that the Operating Agreement was wrongfully terminated for

any improper reason, including discrimination. “The doctrine of collateral estoppel, also known

as issue preclusion, attaches only [w]hen an issue of fact or law is actually litigated and

determined by a valid and final judgment, and the determination is essential to the judgment.” 

B-S Steel of Kansas, Inc. v. Texas Industries, Inc., 439 F.3d 653, 662 (10th Cir. 2006) (internal

quotation marks and citations omitted). The doctrine of issue preclusion will “bar a party from

re-litigating an issue once it has suffered an adverse determination on the issue, even if the

issue arises when the party is pursuing or defending against a different claim.” Burrell v. Armijo,

456 F.3d 1159, 1172 (10th Cir. 2006) (internal quotation marks and citation omitted). 

“[C]ollateral estoppel requires an identity of issues raised in the successive proceedings and the

determination of these issues by a valid final judgment to which such determination was

essential.” Frandsen v. Westinghouse Corp., 46 F.3d 975, 978 (10th Cir. 1990) (citation

omitted). Four elements are required to apply the doctrine of issue preclusion: (1) the issue

previously decided is identical with the one presented in the action in question; (2) the prior

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 4 of 15
5

action has been finally adjudicated on the merits; (3) the party against whom the doctrine is

invoked was a party, or in privity with a party, to the prior adjudication; and (4) the party against

whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. 

Id. (citation omitted).

The Tenth Circuit has previously applied collateral estoppel to an arbitration award. 

Coffey v. Dean Witter Reynolds Inc., 961 F.2d 922, 924-28 & n. 4 (10th Cir. 1992) (“The doctrine

of collateral estoppel . . . bars relitigation of legal or factual issues that have previously been

decided through arbitration.”). See also Rodriguez v. Bar-S Food Co., 567 F. Supp. 1241, 1245

(D. Colo. 1983) (Colorado law recognizes that arbitration award may be given preclusive effect

against a subsequent judicial proceeding). Cf. MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831

(10th Cir. 2005) (“As for finality, a valid and final award by arbitration generally has the same

effect under the rules of res judicata as a judgment of a court.”). 

Claims for breach of contract, defamation, fraudulent inducement, and economic duress

are arbitrable. See Brown v. Coleman Co., Inc., 220 F.3d 1180, 1184 (10th Cir. 2000)

(employee's defamation claim against employer fell within scope of arbitration clause in

employment contract, where arbitration clause stated that ‘all disputes or controversies arising

under or in connection with’ the agreement would be settled exclusively by arbitration”); 

Mar-Len of Louisiana, Inc. v. Parsons-Gilbane, 773 F.2d 633, 636 (5th Cir. 1985) (clause

requiring arbitration of dispute “with respect to the interpretation or performance” of agreement

was sufficiently broad to include claim that contract modifications were invalid because of

economic duress); Encore Productions, Inc. v. Promise Keepers, 53 F. Supp. 2d 1101, (D.

Colo. 1999) (claim breach of contract and related covenant of good faith and fair dealing under

Colorado law was subject to arbitration under comprehensive arbitration provision of contract); 

NOS Communications, Inc. v. Robertson, 936 F. Supp. 761, 766 (D. Colo. 1996) (plaintiff's

fraudulent inducement claim should be arbitrated where there is a broad arbitration clause); Lee

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 5 of 15
6

v. Grandcor Medical Systems, Inc., 702 F. Supp. 252, 256 (D. Colo. 1988) (“general arbitration

clause covers a claim that the plaintiff was fraudulently induced to enter into the underlying

agreement”); Stone v. Vail Resorts Development Co., No. 09-cv-02081-WYD-KLM, 2010 WL

2653314 (D. Colo. July 1, 2010) (breach of contract claims subject to arbitration); Adams v.

Modernad Media, LLC, No. 12-cv-00513-PAB-MEH, 2013 WL 674024, at * 4 (D. Colo. Feb. 25,

2013) (given broad scope of arbitration clause, court found claims for breach of contract and

fraudulent misrepresentation subject to arbitration). Courts have also concluded that federal

claims for employment discrimination are arbitrable. See 14 Penn Plaza LLC v. Pyett, 556 U.S.

247, 267 n. 9 (2009) (“nothing in the text of Title VII . . . precludes contractual arbitration”); 

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991) (holding that plaintiff's ADEA

claim was subject to arbitration); Arciniaga v. General Motors Corp., 460 F.3d 231, 234, 238 (2d

Cir. 2006) (finding discrimination claim asserted under 42 U.S.C. § 1981 arbitrable); Metz v.

Merrill Lynch, Pierce, Fenner and Smith, 39 F.3d 1482, 1487 (10th Cir. 1994) (“Title VII claims

are subject to compulsory arbitration.”) (citation omitted); Notes to 42 U.S.C. § 1981, Alternative

Means of Dispute Resolution (“Where appropriate and to the extent authorized by law, the use

of alternative means of dispute resolution, including . . . arbitration, is encouraged to resolve

disputes arising under the Acts or provisions of Federal law amended by this title”). 

Ms. Adams's claims for violation of § 1981, Title VII, the ADEA, for fraudulent inducement

and economic duress in entering the Operating Agreement, for defamation and libel, and for

declaratory judgment that the Operating Agreement is void and unenforceable are all

encompassed by issue preclusion. The parties fully arbitrated the matters initiated by Ms.

Adams against FedEx. In the arbitration, Ms. Adams complained of wrongful termination of the

Operating Agreement based on “[r]etaliation and [d]iscrimination based on sex, race and age.” 

(See Doc. # 26-2). The arbitrator decided “the evidence is clear that the problems experienced

by Federal Express Ground with this non-driving contractor claimant (LaFaye Adams) were

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 6 of 15
7

overwhelming and unprecedented” and that “[t]hese problems also operated as breaches of” the

Operating Agreement. (See Doc. # 26-3 at 2 of 3). The arbitrator denied all claims asserted by

Ms. Adams, including her claims for “[w]rongful termination and unclean hands by Fed Ex

Ground. Retaliation and Discrimination based on sex, race and age.” (See id. at 3 of 3). The

arbitrator found that the grounds for termination of the Operating Agreement were

“overwhelming and unprecedented . . . problems,” not discrimination based on race, gender, or

age. (See Doc. 26-2 at 2 of 3). Ms. Adams’s allegations in this lawsuit that the termination of

the Operating Agreement was discriminatory were raised and rejected in the arbitration. 

The arbitration fully concluded to a final award, which Ms. Adams never moved to vacate. 

“Collateral estoppel precludes the relitigation of factual or legal issues that were decided in a

previous case, regardless of whether that case was based on the same cause of action.” Wilner

v. Budig, 848 F.2d 1032, 1034 (10th Cir. 1988). 

Ms. Adams argues that collateral estoppel should not apply because she 

“did not have the full and fair opportunity to be heard nor challenge Mark Harris’ testimony” in

the arbitration and that the “issues here were not identical to the issue that was actually

determined” in the arbitration. (See Doc. # 48 at 12 of 27). The Operating Agreement, Ms.

Adams’s Demand for Arbitration, and the Award of Arbitrator all belie her argument and 

conclusory allegation that she did not have a full opportunity to be heard. (See Doc. # 55 at ¶

114). Ms. Adams’s claims for discrimination based on race, gender, and age, and for

Fraudulent Inducement, Economic Duress, and Defamation and Libel are all claims covered by

the arbitration clause in the Operating Agreement. They are essentially the same claims she

arbitrated, that the Operating Agreement was terminated for an improper purpose, including

discrimination based on race, gender, and age. (See Doc. # 26-3 at 1; Brown v. Wheat First

Securities, Inc., 257 F.3d 821, 827–828 (D.C. Cir. 2001) (civil rights claim arising out of same

events that were the subject of arbitration was barred by collateral estoppel)). Ms. Adams did

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 7 of 15
8

not previously challenge the final arbitration award. In fact, she represents that she is not

challenging the validity or result of the arbitration in this lawsuit. (See Doc. # 48 at 13 of 27

(“Plaintiff is not attempting to challenge the Arbitrator’s authority or vacate the award of Breach

of Contract.”)). Collateral estoppel bars Ms. Adams from reasserting claims challenging the

termination of the Operating Agreement that she failed to prove in the arbitration. 

B. Third Claim for Relief against All Defendants for Violation of § 1983 

Title 42 U.S.C. § 1983 provides a civil cause of action for individuals who are deprived of

“any rights, privileges, or immunities secured by the Constitution and laws” by a person acting

“under color of law.” Adickes v. SH Kress & Co., 398 U.S. 144, 147, 150 (1970). To assert her

claim under § 1983, Ms. Adams must allege a deprivation of a federal or constitutional right by a

person acting under color of state law. Watson v. City of Kansas City, Kan., 857 F.2d 690, 694

(10th Cir. 1988). Section 1983 does not impose liability in the absence of action taken under

color of state law. Adickes, 398 U.S. at 150. See also American Manufacturers Mutual

Insurance Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“[T]he under-color-of-state-law element of §

1983 excludes from its reach ‘merely private conduct, no matter how discriminatory or

wrongful’”). If the conduct of Defendants does not qualify as state action, then the inquiry into §

1983 liability ends. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). 

“The traditional definition of acting under color of state law requires that the defendant in

a § 1983 action have exercised power possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42,

49 (1988) (internal quotation marks and citation omitted). Purely private conduct is not under

color of state law unless that conduct is furthered by actual or purported state authority. Jojola

v. Chavez, 55 F.3d 488, 493 (10th Cir. 1995). See also Blum v. Yaretsky, 457 U.S. 991, 1004

(1982) (court must determine whether private party’s “conduct has sufficiently received the

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 8 of 15
9

imprimatur of the State so as to make it ‘state action’ for purposes of the Fourteenth

Amendment”); Marchese v. Mt. San Rafael Hosp., 24 F. App’x 963, 964 (10th Cir. 2001)

(“Although private parties may be held liable in certain circumstances, a plaintiff must show that

the party’s conduct is fairly attributable to the State.”). 

Ms. Adams’s claim is based on a legal conclusion without sufficiently alleged supporting

facts. Other than a single conclusory allegation that Defendants “were acting under the color of

law” (see Doc. # 55 at ¶ 143), Ms. Adams alleges no facts and makes no arguments that

Defendants are state actors. (See Doc. # 55; Plaintiff’s Response to Motion to Dismiss (Doc. #

48)). As Ms. Adams has not alleged facts sufficiently plausible to suggest that Defendants were

functioning in any capacity other than as private actors, her Third Claim for Relief is properly

dismissed for failure to state a claim to which relief can be granted. 

C. Fifth Claim for Relief against All Defendants for Violation of Equality Act of 2010

Ms. Adams alleges that Defendants violated “The Equality Act 2010.” (See Doc. # 55 at

¶¶ 8(D), 164-175). The Equality Act of 2010 is a British law. See Equality Act, 2010, c. 15

(U.K.), Part 1. (available at http://www.legislation.gov.uk/ukpga/2010/15/pdfs/ukpga_20100015

_en.pdf). The Equality Act 2010 brought “nine separate statutes prohibiting discrimination in

Britain together into a single Act.” Iyiola Solanke, Infusing the Silos in the Equality Act 2010 with

Synergy, 40 Indus. L.J. 336, 343 (December 2011). “Similarly to the United States' Title VII

protected classes, Britain also has legislatively established classes against which an employer

cannot discriminate.” Jeremy Corapi, Red Card: Using the National Football League’s “Rooney

Rule” to Eject Race Discrimination from English Professional Soccer's Managerial and

Executive Hiring Practices, 23 Fordham Intell. Prop. Media & Ent. L.J. 341, 381 (Autumn 2012). 

“Britain's Equality Act of 2010, which amended its Equality Act of 2006, provides that it shall be

illegal for any employer to discriminate against any individual based on age, disability, gender

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 9 of 15
10

reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief

[(including lack of belief)], sex, [or] sexual orientation.” Id. (internal quotation marks omitted). 

“The Act covers Great Britain (England, Wales and Scotland) but not Northern Ireland.” 

B. Hepple, ‘The New Single Equality Act in Britain’ (2010) Equal Rights Review, 5. The Equality

Act does not apply in Colorado. See Equality Act, 2010, c. 15 (U.K.), Part 1 (setting forth “[t]he

authorities to which this section applies”); Chilcott v. Hart, 45 P. 391, 398 (Colo. 1896) (“it is

clear that in this state acts of the British parliament passed since 1607 are not in force”). Ms.

Adams argues that the Act “leaves it to tribunals to determine whether the law applies,

depending for example on the connection between the employment relationship and Great

Britain.” (See Doc. # 57 at 3 of 8). Ms. Adams has alleged no facts to suggest that she had an

employment relationship with Great Britain. Ms. Adams’s claim for violation of the Equality Act

2010 must be dismissed for failure to state a claim to which relief can be granted. 

D. Sixth Claim for Relief against Defendant FedEx for Violation of CCPA

Ms. Adams alleges that Defendant FedEx engaged in deceptive trade practices under the

CCPA. (See Doc. # 55 at ¶ 178). The CCPA outlaws deceptive trade practices in connection

with the offering or sale of goods or services. Colo. Rev. Stat. § 6–1–105. A claim under the

CCPA consists of the following elements: “(1) that the defendant engaged in an unfair or

deceptive trade practice; (2) that the challenged practice occurred in the course of defendant's

business, vocation, or occupation; (3) that it significantly impacts the public as actual or potential

consumers of the defendant's goods, services, or property; (4) that the plaintiff suffered injury in

fact to a legally protected interest; and (5) that the challenged practice caused the plaintiff's

injury.” Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 146–47

(Colo. 2003). If all elements of a CCPA claim are not met, the claim fails as a matter of law. 

HealthONE of Denver, Inc. v. UnitedHealth Group, Inc., 805 F. Supp. 2d 1115, 1120 (D. Colo.

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 10 of 15
11

2011).

“A CCPA claim will only lie if the plaintiff can show the defendant knowingly engaged in a

deceptive trade practice.” Crowe v. Tull, 126 P.3d 196, 204 (Colo. 2006) (citation omitted). To

state the element that Defendants engaged in an unfair or deceptive trade practice, Ms. Adams

must fulfill the heightened Rule 9(b) pleading standard. HealthONE, 805 F. Supp. 2d at

1120–21. See also Cavitat Med. Techs., Inc. v. Aetna, Inc., No. 04–CV–01849, 2006 WL

218018 at *3 (D. Colo. Jan. 27, 2006) (holding that claims under § 6–1–105 of the Colorado

Consumer Protection Act must be pled with particularity pursuant to Fed. R. Civ. P. 9(b)); Duran

v. Clover Club Foods Co., 616 F. Supp. 790, 793 (D. Colo. 1985) (holding that “Rule 9(b)'s

requirement of particularity applies to a plaintiffs' allegations of deceptive trade practices under

the Colorado Consumer Protection Act.”). “Rule 9(b) requires a complaint to set forth the time,

place and contents of the false representation, the identity of the party making the false

statements and the consequences thereof.” HealthONE, 805 F. Supp. 2d at 1120–21 (internal

quotation marks and citation omitted). “At a minimum, Rule 9(b) requires that a plaintiff set forth

the who, what, when, where and how of the alleged fraud.” Tatten v. Bank of America Corp.,

___ F. Supp. 2d ___, 2012 WL 6568475, at * 5 (D. Colo. Dec, 17, 2012) (internal quotation

marks and citation omitted). 

Ms. Adams argues that Rule 9(b) “only requires identification of the circumstances

constituting fraud or mistake.” (See Doc. # 48 at 22 of 27 (citing Monus v. Colorado Baseball

1993, Inc., No. 95-1099, D.C. No. 93-S-2160, 103 F.3d 145, at * 3 (10th Cir. Dec. 17, 1996)). 

“That requirement means, in the instant case, that individual plaintiffs should identify particular

defendants with whom they dealt directly, and from whom they purchased stock; that individual

plaintiffs should designate the occasions on which affirmative misstatements were allegedly

made to them-and by whom; and that individual plaintiffs should designate what affirmative

misstatements or half-truths were directed to them-and how.” Id. Ms. Adams fails to meet this

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 11 of 15
12

pleading requirement. The SAC, Ms. Adams’ fifth iteration of her pleading, does not identify with

particularity the false statements, who made the false statements, or when the statements were

made. 

Even if Ms. Adams had adequately pled circumstances of fraud, she fails to sufficiently

plead additional elements of a CCPA claim. First, Ms. Adams’s allegation that the Operation

Agreement made her an employee of FedEx is inconsistent with her allegation that she was a

consumer of FedEx services for purposes of her CCPA claim. (See Doc. # 55 at ¶¶ 19, 21-23,

59-61, 91, 176-86). Ms. Adams also fails to allege a significant impact on the public as actual or

potential consumers of FedEx’s goods, services, or property. The CCPA is not intended to

provide additional remedies to claimants whose disputes have no public impact but are, instead,

purely private transactions. Rhino Linings U.S., 62 P.3d at 150 (Colo. 2003). Considerations

relevant to whether a challenged practice significantly impacts the public include: “(1) the

number of consumers directly affected by the challenged practice, (2) the relative sophistication

and bargaining power of the consumers affected by the challenged practice, and (3) evidence

that the challenged practice has previously impacted other consumers or has the significant

potential to do so in the future.” Rhino Linings USA, 62 P.3d at 149. Ms. Adams does not

specifically allege the number of consumers affected, the relative sophistication or bargaining

power of any consumers, or the previous or significant potential impact on any consumer. She

merely alleges that FedEx induced her and “over 3,000" persons to enter into the Operation

Agreement. (See Doc. # 55 at ¶ 179). Ms. Adams’s arguments in her Response, that she is an

individual with less bargaining power and that FedEx may enter into additional business

agreements with other persons, do not cure her failure to state facts that support a significant

public impact. (See Doc. # 48 at 19 of 27). Ms. Adams’s allegations, individually or in concert,

are conclusory and insufficient to support a CCPA claim. See, e.g., Johnstown Feed & Seed,

Inc. v. Continental Western Insurance Company, 641 F. Supp. 2d 1167, 1181 (D. Colo. 2009)

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 12 of 15
13

(“the fact that a workers' compensation insurer and an insured have a dispute over a claim does

not necessarily mean that other members of the public are or have been affected by the

insurer's practices”) (quoting Brodeur v. American Home Assur. Co., 169 P.3d 139, 155 (Colo.

2007)). As Ms. Adams fails to plead the elements of a CCPA claim, including the particularity

requirement for pleading for fraud, her CCPA claim is properly dismissed. 

E. Seventh Claim for Relief Alleging Economic Duress 

Ms. Adams alleges a claim for “Economic Duress,” arguing that she was coerced to

arbitrate her dispute with FedEx regarding the termination of the Operating Agreement. (See

Doc. # 55 at ¶¶ 196-203). Even if Ms. Adams’s claim for Economic Duress were not barred by

collateral estoppel, it fails to state a claim to which relief can be granted. “A contract is voidable

on the grounds of duress if a party's manifestation of assent is induced by an improper threat

that leaves no reasonable alternative.” Premier Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d

504, 521 (Colo. App. 2006) (internal quotation marks and citation omitted). “[W]hile economic

duress can be pleaded as an equitable defense to a contract claim, it cannot be affirmatively

pleaded in an action at law as a tort claim to collect money damages.” Duell v. United Bank of

Pueblo, 892 P.2d 336, 342 (Colo. App. 1994). As this civil action lacks a breach of contract

claim, Ms. Adams’s claim of economic duress is properly dismissed for failure to state a claim to

which relief can be granted. 

F. Tenth Claim for Relief for Declaratory Judgment 

Even if Ms. Adams’s claim for Declaratory Judgment were not barred by collateral

estoppel, in light of the court’s recommendation that the First through Ninth Claims for Relief be

dismissed, there are no rights left for the court to declare; thus, Ms. Adams’s claim for

declaratory judgment is moot. 

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 13 of 15
14

G. Defendants’ Additional Arguments 

Based on its determinations, above, the court need not at this time reach the additional

grounds for dismissal raised by Defendants, i.e., that Ms. Adams was an independent contractor

and not an employee, that she did not timely file her administrative remedies for her civil rights

claims, and that her state law claims are barred by the applicable statutes of limitations. 

Accordingly, IT IS RECOMMENDED that Defendants’ Motion to Dismiss Plaintiff’s

Second Amended Complaint (filed June 21, 2012) (Doc. # 26) be GRANTED and this civil action

be dismissed in its entirety. 

Advisement to the Parties

Within fourteen days after service of a copy of the Recommendation, any party may

serve and file written objections to the magistrate judge’s proposed findings and

recommendations with the Clerk of the United States District Court for the District of Colorado. 

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). 

The district judge shall make a de novo determination of those specific portions of the proposed

findings or recommendations to which specific objection is made. 28 U.S.C. § 636(b)(1). A

general objection that does not put the district court on notice of the basis for the objection will

not preserve the objection for de novo review. See In re Griego, 64 F.3d at 583; United States

v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d

1057, 1060 (10th Cir. 1996). The district judge may accept, reject, or modify, in whole or in part,

the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1). “[A]

party’s objections to the magistrate judge’s report and recommendation must be both timely and

specific to preserve an issue for de novo review by the district court or for appellate review.” 

One Parcel of Real Property, 73 F.3d at 1060. Failure to make timely objections may bar de

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 14 of 15
15

novo review by the district judge of the magistrate judge’s proposed findings and

recommendations and will result in a waiver of the right to appeal from a judgment of the district

court based on the proposed findings and recommendations of the magistrate judge. See Vega

v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (district court’s decision to review a

magistrate’s recommendation de novo despite the lack of an objection does not preclude

application of the “firm waiver rule”); One Parcel of Real Property, 73 F.3d at 1059-60 (a party’s

objections to the magistrate judge’s report and recommendation must be both timely and

specific to preserve an issue for de novo review by the district court or for appellate review); 

International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901,

904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate’s order, crossclaimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980

F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to

appeal the magistrate’s ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th

Cir. 2005) (firm waiver rule does not apply when the interests of justice require review). 

DATED at Denver, Colorado, this 1st day of March, 2013.

BY THE COURT:

 s/Craig B. Shaffer 

 United States Magistrate Judge 

Case 1:11-cv-02333-LTB-CBS Document 58 Filed 03/01/13 USDC Colorado Page 15 of 15