UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JUN LI, et al., 

 Plaintiffs - Appellants, 

and 

DIANWEN CUI, et al., 

 Plaintiffs, 

v. 

COLORADO REGIONAL CENTER I, 

LLC, et al., 

 Defendants - Appellees. 

––––––––––––––––––––––––––––––––––– 

DIANWEN CUI, et al., 

 Plaintiffs - Appellants, 

and 

JUN LI, et al., 

 Plaintiffs, 

v. 

COLORADO REGIONAL CENTER LLC, 

et al., 

 Defendants - Appellees, 

and 

No. 21-1232 

(D.C. No. 1:19-CV-02443-RM-STV) 

(D. Colo.) 

No. 21-1253 

(D.C. No. 1:19-CV-02443-RM-STV) 

(D. Colo.) 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 7, 2022

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 21-1232 Document: 010110750340 Date Filed: 10/07/2022 Page: 1
2 

PETER KNOBEL, 

 Defendant. 

_________________________________ 

ORDER

_________________________________ 

Before MATHESON, KELLY, and PHILLIPS, Circuit Judges. 

_________________________________ 

This matter is before the court on Peter Knobel’s Petition for Panel Rehearing for 

Purposes of Clarification (“Petition”). Upon careful consideration, the Petition is 

GRANTED to the extent of the modifications1

 in the attached revised order and 

judgment. The court’s September 12, 2022 order and judgment is withdrawn and replaced 

by the attached revised order and judgment, which shall be filed as of today’s date. 

Entered for the Court 

CHRISTOPHER M. WOLPERT, Clerk 

1

 In addition to the modifications intended to provide the clarification requested in the 

Petition, the court has sua sponte further revised the order and judgment. 

Appellate Case: 21-1232 Document: 010110750340 Date Filed: 10/07/2022 Page: 2
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JUN LI; QI QIN; YI LIU; JIE YANG; 

YUQUAN NI; ZHONGZAO SHI; FANG 

SHENG; SHUNLI SHAO; KAIYUAN 

WU; ZHIJIAN WU; ZHONGWEI LI; 

YUWEI DONG; LIN QIAO; JINGE HU; 

RUJUN LIU; FAN ZHANG; LU LI; SA 

WU; YING XU; CAO XIAOLONG; 

HSIN-YI WU, 

 Plaintiffs - Appellants, 

and 

DIANWEN CUI; LEI GU; SUFEN LENG; 

XUE MEI; ZHOU MEI; YAN SONG; LU 

WANG; YUE WU; ZHOU YANG; 

JINGWEN ZHANG; LEI ZHANG; LING 

ZHANG; XIAOHONG ZHANG; QIN 

ZHOU; XUN ZHU; CHUNYI ZOU, 

 Plaintiffs, 

v. 

COLORADO REGIONAL CENTER I, 

LLC; SOLARIS PROPERTY OWNER I 

LLC; PETER KNOBEL; COLORADO 

REGIONAL CENTER PROJECT 

SOLARIS LLLP, and all principals and 

ultimate owners of business entities 

pursuant to piercing of the limited liability 

veil, 

 Defendants - Appellees. 

––––––––––––––––––––––––––––––––––– 

DIANWEN CUI; LEI GU; SUFEN LENG; 

No. 21-1232 

(D.C. No. 1:19-CV-02443-RM-STV) 

(D. Colo.) 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 7, 2022

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 21-1232 Document: 010110750340 Date Filed: 10/07/2022 Page: 3
XUE MEI; ZHOU MEI; YAN SONG; LU 

WANG; YUE WU; ZHOU YANG; 

JINGWEN ZHANG; LEI ZHANG; LING 

ZHANG; XIAOHONG ZHANG; QIN 

ZHOU; XUN ZHU; CHUNYI ZOU, 

 Plaintiffs - Appellants, 

and 

JUN LI; QI QIN; YI LIU; JIE YANG; 

YUQUAN NI; ZHONGZAO SHI; FANG 

SHENG; SHUNLI SHAO; KAIYUAN 

WU; ZHIJIAN WU; ZHONGWEI LI; LIN 

QIAO; JINGE HU; RUJUN LIU; FAN 

ZHANG; LU LI; SA WU; YING XU; 

CAO XIAOLONG; WU HSIN-YI; 

YUWEI DONG, 

 Plaintiffs, 

v. 

COLORADO REGIONAL CENTER LLC; 

COLORADO REGIONAL CENTER I, 

LLC; SOLARIS PROPERTY OWNER 

LLC; SOLARIS PROPERTY OWNER I 

LLC; COLORADO REGIONAL CENTER 

PROJECT SOLARIS LLLP; 

WAVELAND VENTURES, LLC, 

 Defendants - Appellees, 

and 

PETER KNOBEL, 

 Defendant. 

No. 21-1253 

(D.C. No. 1:19-CV-02443-RM-STV) 

(D. Colo.) 

________________________________

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1 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, KELLY, and PHILLIPS, Circuit Judges. 

_________________________________ 

Appellants are two groups of Chinese investors, the Li Appellants and the Cui 

Appellants. Each investor purchased a limited partnership interest in Colorado 

Regional Center Project Solaris LLLP (“CRCPS”). Through its general partner, 

CRCPS loaned the proceeds from the investments to a real estate development 

project. After the project produced low returns and defaulted on the loans, each 

group of Appellants separately sued CRCPS, its general partner, and other parties 

involved in the real-estate project. 

The district court dismissed both complaints, denied several motions filed by 

Appellants, and ordered them to pay attorney fees. Each group of Appellants 

appealed. We consolidated their appeals. Exercising jurisdiction under 28 U.S.C. 

§ 1291, we 

(A) affirm the district court’s dismissal of Appellants’ claims under Federal 

Rule of Civil Procedure 12(b)(6) except for the Li Appellants’ claim for 

breach of fiduciary duty, which we affirm in part and reverse in part; 

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

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

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. 

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2 

(B) affirm dismissal of the Cui Appellants’ remaining state law claims for 

lack of subject-matter jurisdiction; 

(C) reverse the district court’s denial of the Cui Appellants’ motion to amend 

their complaint; 

(D) affirm the district court’s denial of the Li Appellants’ motion for default 

judgment; and 

(E) vacate the awards of attorney fees as described herein. 

We remand to the district court for further proceedings consistent with this Order and 

Judgment. 

I. BACKGROUND 

A. Factual Background1

The Parties 

CRCPS is a limited liability limited partnership created by Colorado Regional 

Center, LLC (“CRC”) and Waveland Ventures, LLC. It serves as an EB–5 Regional 

Center, an entity approved by the federal government to promote economic growth 

by encouraging investments by foreign persons in exchange for permanent resident 

cards (green cards). As described in Liu v. SEC, 140 S. Ct. 1936, 1941 (2020), “[t]he 

EB–5 Program, administered by the U.S. Citizenship and Immigration Services, 

1

 The Li Appellants and Cui Appellants each amended their complaints three 

times. Their third amended complaints are the operative complaints, from which we 

draw the factual background presented above. “In reviewing a district court’s 

dismissal under . . . 12(b)(6), we accept as true all well-pleaded factual allegations in 

the complaint and view them in the light most favorable to the plaintiff[s].” Garling 

v. United States Env’t Prot. Agency, 849 F.3d 1289, 1292 (10th Cir. 2017) 

(quotations and alterations omitted). 

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3 

permits noncitizens to apply for permanent residence in the United States by 

investing in approved commercial enterprises that are based on proposals for 

promoting economic growth.” (quotations omitted). Colorado Regional Center I LLC 

(“CRC I”),2

 a subsidiary of CRC, manages CRCPS as its general partner. 

Appellants, two groups of Chinese investors, purchased limited partnership 

interests in CRCPS. In total, 165 investors each paid approximately $500,000 for 

their limited partnership interests, totaling $82.5 million. CRCPS loaned the 

proceeds from these investments to Solaris Property Owner, LLC (“SPO”) to fund the 

completion of a condominium complex in Vail, Colorado. 

Governing Documents 

Three documents set forth the terms of the parties’ arrangements. 

First, CRCPS’s “Partnership Agreement” (undated) set the terms of CRCPS’s 

internal management. It provided that CRC I had the exclusive right to manage, 

operate, and control CRCPS. Neither CRCPS nor the limited partners could hold 

CRC I liable for any acts or omissions unless CRC I acted in bad faith, gross 

negligence, or willful misconduct. The Partnership Agreement allowed limited 

partners to exercise a put option3

 to sell their interest to the partnership. 

2

 Although the Li Appellants refer to this entity as “CRC 1,” the Cui 

Appellants refer to it as “CRC I,” which we adopt throughout this order. 

3

 A put option is “[a]n option to sell something (esp. securities) at a fixed price 

even if the market declines.” Option, Black’s Law Dictionary (11th ed. 2019). 

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Second, the “Loan Agreement,” dated November 5, 2010, provided for CRCPS 

to loan funds to SPO to complete development of SPO’s condominium project. 

Third, the “Confidential Information Memorandum,” dated March 31, 2011, 

set the terms of each investor’s purchase of the limited partnership stake. It stated 

that each investor would pay approximately $500,000 for a limited partnership 

interest in CRCPS. CRCPS would loan the proceeds to SPO, which would use these 

funds to pay project development costs for the condominium complex. The 

Memorandum also stated that certain condominium units in the building would be 

used as collateral for the loan. A related document designated 19 condominium units 

as collateral. 

The Confidential Information Memorandum provided that CRCPS would fund 

the loan through multiple advances, and each advance would carry a 5% interest rate. 

The principal balance and accrued interest on each advance was due within five years 

of each advance. SPO could not prepay any of the balance for three years, but after 

the three-year-period, it could repay with cash or a collateral condominium unit. 

CRCPS could refuse repayment through cash and compel SPO to convey the 

collateral condominium unit. 

Investments and Loans 

Based on the documents, CRCPS began soliciting investments. Investors 

purchased limited partnership interests in CRCPS between 2012 and 2015. Before 

receiving any advances, SPO assigned its rights and obligations under the 

arrangement to its wholly owned subsidiary, Solaris Property Owner I (“SPO I”). 

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Between April 2012 and January 2015, CRCPS made 19 loan advances to 

SPO I. About three years after the first advance, CRCPS and SPO I entered into an 

agreement regarding the collateral condominium units (the “Agreement Regarding 

Collateral Units” or “ARCU”). Under the ARCU, SPO I gave CRCPS notice that it 

would pay back the loan advances by conveying the collateral condominium units. 

The ARCU stated that SPO I would not immediately transfer the deed to the 

condominium units but CRCPS would be responsible for all fees and costs associated 

with the units and would pause the accrual of interest on the advances. Thus, under 

the ARCU, SPO I was deemed to have repaid the loan advances. 

In 2016, CRC I and CRCPS began sending notices to the limited partners that 

identified the collateral condominium units as partnership property but acknowledged 

that SPO I still held title. The notices stated that CRCPS was coordinating with 

SPO I to transfer title. 

B. District Court Proceedings4

In 2019, the two groups of limited partners—the Li and the Cui Appellants—

filed lawsuits alleging state and federal claims against various defendants. In 

general, they alleged that SPO and SPO I misrepresented the value of the collateral 

condominium units and that CRC I violated its duties as the general partner of 

CRCPS. According to Appellants, Defendants-Appellees misrepresented that the 

4

 We summarize the district court proceedings here and elaborate on them as 

needed later in our analysis. 

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6 

loan was fully secured when it was not. They alleged that these misrepresentations 

led to losses of over $40 million and that SPO and SPO I defaulted on their loans. 

In their operative complaint, the Li Appellants brought several direct and 

derivative5

 claims against CRCPS, CRC, CRC I, Waveland Ventures, LLC, SPO, 

SPO I, and Peter Knobel (SPO’s owner).6

 Separately, the Cui Appellants sued 

CRCPS, CRC, CRC I, Waveland Ventures, LLC, SPO, SPO I, and Mr. Knobel 

5

 “A derivative action is a vehicle that enables the prosecution of claims on 

behalf of a corporation or other entity.” S’holder Derivative Actions L. & Prac. § 1:1 

(2022). A derivative suit enables limited partners and other shareholders to assert 

claims on behalf of the entity, here CRCPS. A plaintiff in a derivative suit may 

assert claims against parties that owe fiduciary duties to the entity. 

6

 The Li Appellants brought: 

(1) a derivative breach-of-fiduciary-duty claim against CRC I; 

(2) a derivative civil-theft claim against CRC, SPO, SPO I, and 

Mr. Knobel; 

(3) a derivative breach-of-contract claim based on the Loan Agreement 

against SPO I; 

(4) a derivative breach-of-transfer-of-title claim against SPO I; 

(5) a derivative federal securities-fraud claim against CRC I; 

(6) a derivative Colorado securities-fraud claim against CRC and 

Mr. Knobel; 

(7) a derivative claim to remove CRC I as CRCPS’s general partner; 

(8) a direct fraud claim against CRC, CRC I, Waveland Ventures, 

LLC, and Mr. Knobel; 

(9) a direct fraud claim against CRCPS; and 

(10) a direct claim to pierce the corporate veil to hold CRC I’s and 

SPO I’s owners and members liable. 

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alleging both direct and derivative claims.7

 In both complaints, the derivative claims 

were brought on behalf of CRCPS.8

Motions to Dismiss and Other Motions 

Appellees moved to dismiss both operative complaints for failure to state a 

claim. CRC I also filed a counterclaim against the Li Appellants after the Li 

Appellants alerted the district court that CRC I had been removed as general partner 

of CRCPS for cause. CRC I argued its removal as general partner was improper. 

The Li Appellants moved to dismiss the counterclaim, and the Cui Appellants moved 

for a receiver to be appointed to manage CRCPS. 

Before the district court ruled on the motions to dismiss, Appellants 

voluntarily dismissed some of their claims. The Li Appellants’ remaining claims 

were: 

7

 The Cui Appellants brought: 

(1) a direct fraud claim against all Defendants; 

(2) a direct and derivative breach-of-fiduciary-duty claim against CRC 

and CRC I; 

(3) a direct Colorado consumer protection claim against all 

Defendants; 

(4) a direct federal securities-fraud claim against CRCPS and CRC I; 

(5) a direct federal securities-fraud claim against all Defendants; 

(6) a direct and derivative breach-of-contract claim against SPO I; 

(7) a direct and derivative declaratory relief claim against CRC I, SPO, 

and SPO I; and 

(8) a direct claim to pierce the corporate veil to hold CRC I’s and 

SPO I’s owners and members liable. 

8

 The Li and Cui Appellants also identified other Defendants that are not 

relevant to this appeal. 

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(1) a derivative breach-of-fiduciary-duty claim against CRC I; 

(2) a derivative civil-theft claim against CRC, SPO, SPO I, and 

Mr. Knobel;9

 

(3) a derivative breach-of-contract claim based on the Loan Agreement 

against SPO I;10 

(4) a derivative federal securities-fraud claim against CRC I; and 

(5) a derivative state securities-fraud claim against CRC, its principals, 

and Mr. Knobel. 

The Cui Appellants’ remaining claims were: 

(1) a direct fraud claim against all Defendants; 

(2) a direct and derivative breach-of-fiduciary-duty claim against CRC 

and CRC I; 

(3) a direct federal securities-fraud claim against all Defendants; 

(4) a derivative breach-of-contract claim against SPO I; and 

(5) a direct and derivative claim for declaratory relief against CRC I, 

SPO, and SPO I.11 

9

 The district court dismissed this claim, and the Li Appellants mention it only 

in a footnote in their opening brief. They have thus waived any arguments as to this 

claim. San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1055-56 (10th Cir. 2011) 

(argument raised in a footnote and inadequately developed is waived). 

10 The district court also dismissed the Li Appellants’ surviving derivative 

breach-of-contract claim against SPO I for lack of subject-matter jurisdiction. The Li 

Appellants do not challenge this dismissal on appeal. 

11 The district court order lists this claim as against CRCPS, SPO, and SPO I, 

but the complaint lists CRC I, SPO, and SPO I, so we describe the claim as stated in 

the complaint. 

The Cui Appellants pled this as a separate claim for relief under Colo. Rev. 

Stat. § 13-51-106, which allows a plaintiff to “have determined any question of 

construction or validity arising under the instrument, statute, ordinance, contract, or 

franchise and obtain a declaration of rights, status, or other legal relations 

thereunder.” See Villa Sierra Condo. Ass’n v. Field Corp., 878 P.2d 161, 164 

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The district court granted the Appellees’ motions to dismiss in part and denied 

them in part. It (1) granted the motions as to Appellants’ federal securities-law 

claims; (2) denied the motions as to Appellants’ breach-of-contract claims and the 

Cui Appellants’ declaratory-relief claim against SPO and SPO I; and (3) dismissed 

the remaining state law claims. 

Because only state law claims against SPO and SPO I remained, the court 

ordered the parties to address whether diversity jurisdiction existed, and if not, 

whether it should exercise supplemental jurisdiction over those claims. After 

briefing, the court determined that it lacked diversity subject-matter jurisdiction over 

Appellants’ remaining state law claims against SPO and SPO I, declined to exercise 

supplemental jurisdiction over those claims, and dismissed them without prejudice. 

The district court next denied the Cui Appellants’ motion to appoint a receiver. 

It also denied the Li Appellants’ motion to dismiss CRC I’s counterclaim. CRC I 

later withdrew its counterclaim. 

The Li Appellants moved for reconsideration of the district court’s dismissal 

of their claims. They also moved for default judgment on their abandoned claim to 

remove CRC I as general partner. The Cui Appellants also renewed their motion for 

appointment of a receiver. The district court denied these motions. 

(Colo. App. 1994) (Section 13-51-106 is “intended to provide a method to relieve 

parties from uncertainty and insecurity with respect to their rights, status, and other 

legal relations” (quotations omitted)).

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Finally, the Cui Appellants moved to file a fourth amended complaint, which 

the district court denied. 

Attorney Fees 

Appellees then moved for attorney fees on multiple grounds. Waveland 

Ventures, LLC, CRC, and CRC I (collectively “CRC Defendants”) sought attorney 

fees against the Li and Cui Appellants under Colorado law and the Private Securities 

Litigation Award Act (“PSLRA”). SPO, SPO I, and Mr. Knobel (collectively “SPO 

Defendants”) sought attorney fees against the Li and Cui Appellants under the Loan 

Agreement, Colorado law, and the PSLRA. The district court addressed these 

requests in three orders, which we describe below. 

a. Order on the CRC Defendants’ motion for attorney fees 

The court awarded the CRC Defendants $390,056.25 against the Li Appellants 

and $139,539.75 against the Cui Appellants under Colorado law, Colo. Rev. Stat. 

§ 13-17-201. It explained that the CRC Defendants were entitled to attorney fees 

under Colorado law because (1) the Li and Cui Appellants asserted tort claims 

against the CRC Defendants and (2) the court had dismissed the entire action against 

the CRC Defendants under Rule 12(b)(6). 

b. Order on the SPO Defendants’ motion for attorney fees 

The district court awarded the SPO Defendants attorney fees against the Li 

Appellants and the Cui Appellants. 

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11 

i. Li Appellants 

The court awarded the SPO Defendants $244,020.68 in attorney fees against 

the Li Appellants under the Loan Agreement and Colorado law, which each provided 

an independent basis for the award. 

First, the court granted attorney fees under the Loan Agreement. The Loan 

Agreement provided that the prevailing parties in litigation arising from the loan 

were entitled to attorney fees. The district court concluded that the SPO Defendants 

were the prevailing parties. It then said that “[t]his should end the issue of fees as 

against the Li [Appellants] because the Court will not award a party, and the SPO 

Defendants cannot recover, the same fees more than once.” App., Vol. XIV at 3867. 

Nonetheless, the court proceeded to evaluate the remaining bases for attorney fees. 

Second, the court concluded that Mr. Knobel, but not the other SPO 

Defendants, was entitled to attorney fees under Colorado law. It determined that the 

entire action was dismissed with prejudice only as to Mr. Knobel under 

Rule 12(b)(6), not SPO and SPO I,12 so only he could recover attorney fees under 

Colorado law. It then concluded that the essence of the action against Mr. Knobel 

was in tort, which entitled him to fees under Colorado law. 

12 The court dismissed certain state law claims against SPO and SPO I without 

prejudice for lack of diversity jurisdiction and because it declined to exercise 

supplemental jurisdiction. 

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ii. Cui Appellants 

The court awarded the SPO Defendants $77,376.79 against the Cui Appellants 

under the Loan Agreement and Colorado law. 

First, the court awarded attorney fees under the Loan Agreement because the 

SPO Defendants were the prevailing parties on the Cui Appellants’ claims. 

Second, the court awarded Mr. Knobel, but not the other SPO Defendants, 

attorney fees under Colorado law. It again explained that only Mr. Knobel was 

dismissed entirely under Rule 12(b)(6). It also concluded that the Cui Appellants’ 

claims against Mr. Knobel were tort claims. The court declined to specify the 

amount of fees awarded to Mr. Knobel under Colorado law because it had awarded 

him fees under the Loan Agreement and he could not recover those fees twice.13

c. Order on fees under the PSLRA 

The court separately addressed the requests for attorney fees against the 

Appellants’ counsel under the PSLRA. It concluded that the Li Appellants’ counsel 

and the Cui Appellants’ counsel had violated Federal Rule of Civil Procedure 11(b). 

Because the PSLRA imposes a rebuttable presumption in favor of attorney fees for 

substantial Rule 11 violations, the court evaluated whether each counsel’s violation 

was substantial and, if so, whether the presumption that attorney fees should be 

assessed had been rebutted. 

13 On appeal, neither the Li Appellants nor the Cui Appellants challenge the 

attorney fee awards to the SPO Defendants based on the Loan Agreement. 

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13 

As to the Li Appellants’ counsel, the court determined his Rule 11 violation 

was substantial, so the PSLRA’s presumption applied, and that he had failed to rebut 

the presumption. It said that, excluding the claims that the Li Appellants voluntarily 

dismissed, four of the five remaining claims were frivolous. The court awarded 

$390,056.25 to the CRC Defendants and $244,020.68 to the SPO Defendants against 

the Li Appellants’ counsel. 

As to the Cui Appellants’ counsel, the court determined that the entire amount 

of attorney fees should be assessed against him for the claims against the CRC 

Defendants. But it concluded that his Rule 11 violation was not substantial for the 

claims against the SPO Defendants, so the presumption that he should be liable for 

the full amount of attorney fees did not apply. The court thus awarded $139,539.75 

to the CRC Defendants and $5,000 to the SPO Defendants against the Cui 

Appellants’ counsel. 

Finally, the court noted that the attorney fee awards were not cumulative and 

that the CRC and SPO Defendants could only collect once even though fees were 

awarded under different theories. 

Appellants timely appealed.14

14 We summarize here our understanding of the district court’s subject-matter 

jurisdiction underlying its orders. Both sets of Appellants filed claims for federal 

securities-fraud. The remainder of their claims were based on state law. The district 

court had federal question jurisdiction over the federal securities claims under 

28 U.S.C. § 1331 and 15 U.S.C. §§ 77v and 78aa. It dismissed them under Rule 

12(b)(6). It also dismissed the state law claims against the CRC Defendants and 

Mr. Knobel under Rule 12(b)(6), apparently exercising supplemental jurisdiction 

under 28 U.S.C. § 1367. It denied the Rule 12(b)(6) motions to dismiss the 

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14 

II. DISCUSSION 

On appeal: 

(A) The Appellants challenge the district court’s Rule 12(b)(6) dismissal of 

their claims for (1) breach of fiduciary duty, (2) federal securities fraud, 

(3) Colorado securities fraud (Li Appellants only), and (4) Colorado 

common law fraud (Cui Appellants only). 

(B) The Cui Appellants argue the district court erred in dismissing their 

remaining state law claims for lack of subject-matter jurisdiction. 

(C) The Cui Appellants contend the district court abused its discretion in 

denying their motion to file a fourth amended complaint. 

(D) The Li Appellants assert the district court improperly denied their motion 

for default judgment on their original claim seeking removal of CRC I as 

general partner. 

(E) The Appellants challenge the district court’s awards of attorney fees under 

Colorado law and the PSLRA. 

We address each issue in turn.15

A. Rule 12(b)(6) Dismissals 

On appeal, both sets of Appellants challenge the dismissal of (1) their breachof-fiduciary-duty claims against CRC I and (2) their federal securities-fraud claims. 

The Li Appellants contest dismissal of (3) their state securities-fraud claim, and the 

derivative state breach-of-contract and declaratory-judgment claims against SPO and 

SPO I. But, after asking for supplemental briefing on subject-matter jurisdiction 

regarding those claims, the court determined it lacked diversity jurisdiction under 

28 U.S.C. § 1332 and declined to exercise supplemental jurisdiction under 28 U.S.C. 

§ 1367. 

15 The Li Appellants listed eight issues in their brief. Li Aplt. Br. at 5-6. The 

Cui Appellants listed seven issues in their brief. Cui Aplt. Br. at 5-6. We have 

consolidated the issues into the foregoing five categories and have identified those 

which both sets of Appellants raise and those which each of them raise on their own. 

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15 

Cui Appellants argue against dismissal of (4) their fraud claim. Although many of 

the arguments overlap, we address them based on each separate complaint. 

We review de novo the dismissal of a complaint under Rule 12(b)(6). 

Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). “We accept all 

well-pleaded factual allegations in the complaint as true, and we view them in the 

light most favorable to the nonmoving party.” Sinclair Wyo. Refin. Co. v. A&B 

Builders, Ltd., 989 F.3d 747, 765 (10th Cir. 2021) (quotations and alterations 

omitted). To survive a Rule 12(b)(6) motion, a complaint must contain “enough facts 

to state a claim to relief that is plausible on its face.” 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 that the 

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009). “Threadbare recitals of the elements of a cause of action, supported by 

mere conclusory statements, do not suffice.” Id. 

We typically consider “only the contents of the complaint when ruling on a 

12(b)(6) motion.” Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir. 

2013). But we will consider “documents incorporated by reference in the complaint 

[and] documents referred to in and central to the complaint, when no party disputes 

[their] authenticity.” Id.; see Broker’s Choice of Am., Inc. v. NBC Universal, Inc., 

861 F.3d 1081, 1103 (10th Cir. 2017). 

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“[W]e may affirm the judgment on any ground supported by the record” as 

long as the plaintiff “had a fair opportunity to address that ground.” Nakkhumpun v. 

Taylor, 782 F.3d 1142, 1157 (10th Cir. 2015). 

“Federal courts exercising diversity jurisdiction apply the substantive law of 

the forum state . . . .” Sinclair Wyo. Refin. Co., 989 F.3d at 765-66; see Erie R.R. v. 

Tomkins, 304 U.S. 64, 78 (1938). We therefore apply Colorado law to Appellants’ 

state law claims. 

Breach-of-Fiduciary-Duty Claims 

a. Legal background 

i. Economic loss rule 

To state a breach-of-fiduciary-duty claim, a plaintiff must allege (1) “the 

defendant was acting as a fiduciary of the plaintiff,” (2) “[the defendant] breached a 

fiduciary duty to the plaintiff,” (3) “the plaintiff incurred damages,” and (4) “the 

defendant’s breach of fiduciary duty was a cause of the plaintiff’s damages.” Taylor 

v. Taylor, 381 P.3d 428, 431 (Colo. App. 2016) (quotations and emphases omitted). 

This claim may be based on breach of a contractual duty or breach of a tort duty. 

Compare Casey v. Colo. Higher Educ. Ins. Benefits All. Tr., 310 P.3d 196, 204 (Colo. 

App. 2012) (breach of fiduciary duty could support a breach-of-contract claim), with 

Castro v. Lintz, 338 P.3d 1063, 1069 (Colo. App. 2014) (construing breach-offiduciary-duty claim as a tort claim). 

The Appellants’ challenge to dismissal of their fiduciary-duty claims 

implicates the “economic loss rule,” which bars a party to a contract from using a tort 

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17 

claim to recover contract damages unless the party can show it is owed an 

independent duty in tort creating a separate entitlement to those damages. 

Under the economic loss rule, if a plaintiff alleges “only economic loss from 

the breach of an express or implied contractual duty,” he or she “may not assert a tort 

claim for such a breach absent an independent duty of care under tort law.” Town of 

Alma v. AZCO Const., Inc., 10 P.3d 1256, 1264 (Colo. 2000). “Economic loss is 

defined generally as damages other than physical harm to persons or property.” Id. 

To be independent of a contractual duty, the duty must (1) “arise from a source other 

than the relevant contract,” and (2) “not be a duty also imposed by the contract.” 

Haynes Trane Serv. Agency, Inc. v. Am. Standard, Inc., 573 F.3d 947, 962 (10th Cir. 

2009) (applying Colorado law). “Fiduciary relationships may be the kind of special 

relationship that will trigger an independent common law duty of care,” but “not 

every fiduciary relationship implicates a risk of damages for which contract law 

cannot provide a remedy.” Casey, 310 P.3d at 202-03 (quotations omitted). 

ii. Federal Rule of Civil Procedure 23.1 and the contemporaneous 

ownership rule 

The fiduciary-duty claims also implicate Federal Rule of Civil Procedure 

23.1(b), known as the contemporaneous ownership rule. Bangor Punta Operations, 

Inc. v. Bangor & A. R. Co., 417 U.S. 703, 708 n.4 (1974). It provides that a plaintiff 

bringing a derivative action must allege that he or she “was a shareholder or member 

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at the time of the transaction complained of.” Fed. R. Civ. P. 23.1(b).16 Rule 23.1 is 

a procedural rule, but we apply the state’s substantive law in determining whether the 

transaction at issue occurred while the plaintiff was a shareholder or member. Cadle 

v. Hicks, 272 F. App’x 676, 678-79 (10th Cir. 2008) (unpublished) (cited as 

instructive under Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A)). 

b. Analysis 

In their complaint, the Li Appellants brought a derivative-breach-of-fiduciaryduty claim against CRC I. They alleged that CRC I, acting as general partner of 

CRCPS, failed to adequately ensure that the loan agreement with the SPO Defendants 

was sufficiently collateralized. They also alleged that CRC I breached its fiduciary 

duty in failing to demand complete repayment of the loan and by providing 

misleading information about it. 

The Cui Appellants separately brought both direct and derivative breach-offiduciary-duty claims against the CRC Defendants. They alleged that the CRC 

Defendants provided them with misleading marketing materials and took advantage 

of the Cui Appellants’ lack of English proficiency to convince them to invest in the 

limited partnership. 

The district court dismissed the breach-of-fiduciary-duty claims on two 

grounds. First, the court read both complaints as asserting the claims under tort law. 

16 Under Colorado’s limited partnership statute, “‘Member’ means a general 

partner or a limited partner.” Colo Rev. Stat. § 7-61-102(2). 

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It concluded the economic loss rule barred the claims because the CRC Defendants’ 

duties arose from contract. Second, the court held that many of the allegations 

supporting the Li Appellants’ claim and all of the allegations supporting the Cui 

Appellants’ derivative claim stemmed from the CRC Defendants’ conduct that 

preceded the plaintiffs’ investments in the limited partnership. Thus, under Federal 

Rule of Civil Procedure 23.1, the court held that Appellants could not recover based 

on those allegations. 

Appellants argue the district court erred in construing their allegations as 

arising under tort and not under contract. They contend their complaints make clear 

that their breach-of-fiduciary-duty claims arose from contract and are therefore 

properly construed as breach-of-contract claims. And because their claims are 

contractual, Appellants argue the economic loss rule does not bar their claims. 

Appellants also contend the district court improperly applied Rule 23.1. 

i. Li Appellants 

The Li Appellants brought this claim derivatively against CRC I, arguing it 

breached its fiduciary duty to CRCPS and therefore violated its contractual 

obligations. 

We employ a three-step analysis to determine whether the district court 

properly dismissed the Li Appellants’ breach-of-fiduciary-duty claim. First, we 

determine this is a contract claim, not, as the district court concluded, a tort claim 

subject to the economic loss rule. So the district court should not have dismissed it 

on that ground. Second, because part of this claim was based on alleged misconduct 

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that occurred before the Li Appellants invested in CRCPS, the district court correctly 

determined that Rule 23.1 and the “contemporaneous ownership rule” barred that part 

of the claim. Third, we conclude that the remaining post-investment allegations 

stated a claim for breach of contract. We thus affirm the district court’s dismissal of 

the pre-investment allegations supporting the claim and reverse the dismissal of the 

post-investment allegations. 

1) The contractual nature of the Li Appellants’ claim 

Construing the complaint in the light most favorable to the Li Appellants, see 

Sinclair Wyo. Refin. Co., 989 F.3d at 765, we conclude that it pled a breach-ofcontract claim rather than a tort claim. The Li Appellants’ complaint labeled its 

claim as a “Breach of Fiduciary Duty arising by Contract and Statute.” App., Vol. II 

at 299 (emphasis added). In describing this count, the complaint identified the 

contractual language creating the fiduciary relationship. Id. at 300 ¶ 114 (“The 

CRCPS [Partnership Agreement] at Section 8.04 states that ‘In carrying out their 

duties and exercising their powers hereunder, the General Partner [CRC I] shall 

exercise reasonable skill, care, and business judgment.”). It then described CRC’s 

breaches as “contractual and fiduciary.” Id. at 301 ¶ 126. Finally, the complaint 

sought damages equaling the “shortfall between what it would have received i[f] the 

Loan had been paid in cash versus the value of what it actually received (hereafter, 

the ‘Damages’).” Id. at 302 ¶ 129. These allegations show that the legal predicate 

for the Li Appellants’ breach-of-fiduciary-duty claim was contract, not tort. 

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Casey v. Colorado Higher Education Institute is instructive. 310 P.3d 196 

(Colo. App. 2012). There, the plaintiffs brought a breach-of-contract claim alleging 

the defendants breached their fiduciary duties. Id. at 201. The defendants responded 

that, by alleging breach of fiduciary duties, the claim was based on tort and thus was 

barred. Id. The Colorado Court of Appeals rejected this argument, concluding that 

the “[t]he complaint does not allege a tort claim for breach of fiduciary duty against 

the trustees. Rather it alleges that the trustees breached the contract . . . by ‘failing to 

perform their contractual obligations, including contractually imposed fiduciary 

duties.’” Id. at 203 (alterations omitted). Because the complaint referred to the 

specific contractual duties creating the fiduciary duty, the court concluded it was a 

contractual claim. Id. The Li complaint similarly alleged a breach of fiduciary duty 

that breached the parties’ contract. 

Appellees’ assertion that the Li Appellants alleged a tort-based breach of 

fiduciary duty is not persuasive. 

First, they point to the Li Appellants’ colloquy with the district court at the 

motion-to-dismiss hearing where counsel confirmed to the district court that the 

claim was a breach-of-fiduciary-duty claim. Appellees argue that the Li Appellants 

should have clarified then that its claim arose from contract or statute. But the Li 

Appellants were not asked whether the claim arose from tort or contract. They were 

asked only whether it was a breach-of-fiduciary-duty claim, and they confirmed it 

was. App., Vol. X at 2723. Their response did not contradict the plain language of 

their complaint, which governs in any event. 

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Second, Appellees argue that the Li Appellants’ assertion of breach-of-contract 

claims against SPO I shows that they knew how to assert breach-of-contract claims. 

But Appellees fail to explain how the Li Appellants’ assertion of a breach-of-contract 

claim elsewhere in their complaint affects the substance of this claim. 

We conclude that the complaint alleged a contractual breach-of-fiduciary-duty 

claim and is thus not subject to the economic loss rule. The district court erred in 

dismissing the claim on this ground. 

2) Rule 23.1 

The Li complaint alleged pre-investment misconduct as the basis for CRC I’s 

breach of its fiduciary duties. Rule 23.1 barred its derivative claim based on these 

allegations. The complaint alleged that CRC I willfully and negligently structured 

the Loan Agreement with SPO. App., Vol. II at 300 ¶ 118. Because this alleged 

misconduct predated the Li Appellants’ investment, the district court dismissed these 

allegations. The Li Appellants contend the transaction supporting their derivative 

claim did not occur until they purchased the ownership stake in CRCPS. We 

disagree. 

The Loan Agreement was executed on November 5, 2010. Id. at 276 ¶ 31. 

Per the Li complaint, no investors, including the Li Appellants, received marketing 

materials regarding the limited partnership stakes until after the Loan Agreement’s 

execution. Id. at 285 ¶ 61. Thus, the Li Appellants did not own any interest in 

CRCPS when the transaction complained of—the Loan Agreement—was executed. 

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The Li Appellants cite Elk River Assocs. v. Huskin, 691 P.2d 1148 (Colo. App. 

1984), to argue that CRC I’s fiduciary obligation to the investors predated their 

actual investment. Li Aplt. Br. at 32. Huskin said “a fiduciary relationship between 

the parties to a limited partnership can attach during the negotiations which precede 

formal execution of the certificate of limited partnership.” 691 P.2d at 1152. This 

argument fails for two reasons. 

First, the Li Appellants sued derivatively on behalf of CRCPS, so the relevant 

fiduciary duty is not between the limited partners and the general partner but between 

the general partner and the CRCPS partnership. See Burks v. Lasker, 441 U.S. 471, 

477 (1979) (“A derivative suit is brought by shareholders to enforce a claim on 

behalf of the corporation.”); Colo. Rev. Stat. § 7-62-1001(1) (Colorado law 

permitting limited partners to bring derivative suits on behalf of the limited 

partnership). Because the Li Appellants were not limited partners of CRCPS when 

the Loan Agreement was executed, they could not sue CRC I on behalf of CRCPS. 

Second, even assuming the fiduciary relationship between the Li Appellants 

and CRC I began during negotiations to sell the limited partnership interests in 

CRCPS and that the Li Appellants were suing directly, the negotiations did not begin 

until after execution of the Loan Agreement. Thus, Rule 23.1(b) barred the Li 

Appellants’ pre-investment derivative claims. 

3) Remaining post-investment allegations 

Turning to the Li Appellants’ remaining, post-investment allegations, we 

conclude they plausibly stated a claim for breach of contract. 

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To plausibly state a breach of contract, a plaintiff must allege “(1) the 

existence of a contract; (2) performance by the plaintiff or some justification for 

nonperformance; (3) failure to perform the contract by the defendant; and 

(4) resulting damages to the plaintiff.” Marquardt v. Perry, 200 P.3d 1126, 1129 

(Colo. App. 2008). 

The Li complaint alleged that (1) the Partnership Agreement was the contract 

governing the relationship between CRCPS and CRC I, App., Vol. II at 300 ¶ 114; 

(2) CRCPS paid management fees to CRC I, id. at 298 ¶ 104; (3) in failing to honor 

its fiduciary duties, CRC I failed to perform the contract, id. at 300-01 ¶¶ 114-18, 

126; and (4) CRCPS incurred damages resulting from the breach, id. at 302 ¶ 129. 

The Li complaint thus plausibly alleged a breach of contract. 

* * * * 

In sum, the breach-of-fiduciary-duty claim was validly pled as a contract 

claim, but Rule 23.1(b) barred the pre-investment part of the claim. We therefore 

reverse the district court’s dismissal of the Li Appellants’ breach-of-fiduciary-duty 

claim for allegations relating to post-investment conduct. 

ii. Cui Appellants 

In contrast, the Cui Appellants’ complaint failed to allege a contractual breachof-fiduciary-duty claim and was thus subject to the economic loss rule. The Cui 

complaint described this count generally as a breach of fiduciary duty by CRC and 

CRC I. App., Vol. VI at 1585. It did not mention any contractual creation of the 

fiduciary duty. Indeed, the Cui complaint stated that CRC owed the Cui Appellants a 

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duty “[a]s the regional center entrusted by the Plaintiffs to oversee their investment.” 

Id. at 1586 ¶ 107. Thus, the complaint on its face does not allege a fiduciary duty 

arising out of contract. 

Because the Cui Appellants’ claim arises out of tort, we must apply the 

economic loss rule. As described above, the rule bars recovery for economic losses 

under tort if the breach stemmed from a breach of a contractual duty. Town of Alma, 

10 P.3d at 1264. Here, the breach stemmed from a breach of contract, and the Cui 

complaint alleged only economic losses. Thus, the economic loss rule barred the Cui 

Appellants’ breach-of-fiduciary-duty claim. We therefore affirm the district court’s 

dismissal of the Cui Appellants’ breach-of-fiduciary-duty claim. 

Federal Securities-Fraud Claims 

The Li Appellants appeal the dismissal of their derivative federal securitiesfraud claim against CRC I. The Cui Appellants appeal dismissal of their direct 

federal securities-fraud claim against all Appellees.17 We affirm the district court. 

a. Li Appellants 

The Li Appellants brought a derivative federal securities-fraud claim only 

against CRC I. They allege that CRC I made material misrepresentations to the 

limited partners to induce them to exercise their put options at a loss. The district 

court dismissed their claim because it (1) was barred under the statute of repose and 

17 The Cui complaint also included a direct federal securities-fraud claim under 

15 U.S.C. § 80a against CRCPS and CRC I in its capacity as the general partner. The 

Cui Appellants do not raise this claim on appeal. 

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(2) was not a proper derivative claim. We affirm on the second ground and do not 

address the first. 

A derivative action “permits an individual shareholder to bring ‘suit to enforce 

a corporate cause of action against officers, directors, and third parties.’” Kamen v. 

Kemper Fin. Servs., Inc., 500 U.S. 90, 95 (1991) (quoting Ross v. Bernhard, 396 U.S. 

531, 534 (1970)). The derivative action allows an individual shareholder “to protect 

the interests of the corporation from the misfeasance and malfeasance of faithless 

directors and managers.” Id. (emphasis added) (quotations omitted).18

Here, the Li Appellants’ securities-fraud claim did not allege violations by 

CRC I against CRCPS. Instead, they alleged harms that CRC I and CRCPS caused 

the investors directly. For instance, the Li complaint alleged that “CRCPS - acting 

through CRC1 - issued an offering of securities when it granted a put right to each 

limited partner to ‘put’ his unit back to CRCPS.” App., Vol. II at 310 ¶ 187. In 

making this “offering of the put option to investors,” the Li complaint alleged, “CRC 

failed to explain the history and method by which it was over-valuing the collateral.” 

Id. at 310-11 ¶ 189 (emphasis added), see also id. at 311 ¶ 190 (“CRC never 

explained clearly to investors the implications of allowing SPO to recharacterize the 

loan (a debt) as ‘investors equity.’ . . . This is a material omission of fact to induce 

18 We treat limited partnerships and corporations the same for purposes of a 

derivative suit. See Fed. R. Civ. P. 23.1(a) (treating unincorporated associations and 

corporations similarly for derivative suits); Colo. Rev. Stat. § 7-60-106(1) (defining a 

limited liability partnership as an association). The parties do not dispute this 

approach. 

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the limited partners to invest and stay in the transaction which has caused them 

continuing detriment.” (emphasis added)). These allegations described a direct and 

not a derivative claim. They do not allege any harm caused to CRCPS. It was thus 

an improper derivative claim, and the district court properly dismissed it. 

b. Cui Appellants 

The Cui Appellants brought direct federal securities-fraud claims against all 

Appellees. They allege that Appellees made material misrepresentations to convince 

them to purchase their limited partnership interests in CRCPS.19 The district court 

dismissed their claim after concluding it was barred under the statute of repose. We 

agree. 

“A statute of repose . . . puts an outer limit on the right to bring a civil action.” 

CTS Corp. v. Waldburger, 573 U.S. 1, 8 (2014). Unlike a statute of limitations, 

whose limit begins after a claim accrues, a statute of repose’s limit is measured “from 

the date of the last culpable act or omission of the defendant.” Id. Thus, it bars “any 

suit that is brought after a specified time since the defendant acted . . . , even if this 

period ends before the plaintiff has suffered a resulting injury.” Id. (quotations 

omitted). 

19 The Cui Appellants’ complaint also alleged that Appellees violated 

section 78o of the Federal Securities Act by selling securities without being 

registered. They do not present any argument regarding these allegations on appeal, 

so they have abandoned this claim. 

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Under 28 U.S.C. § 1658(b)(2), a plaintiff alleging a federal securities violation 

may not bring a private cause of action later than “5 years after such violation.” 

Before the district court, the Cui Appellants did not dispute Appellees’ assertion that 

they purchased their limited partnerships in 2012. App., Vol. XI at 2955 n.43. They 

thus needed to bring their claims no later than 2017, but they failed to file their 

complaint until 2019. The Cui Appellants’ federal securities-fraud claim was 

therefore time-barred.20 

Li Appellants’ Colorado Securities-Fraud Claim 

The Li Appellants brought a derivative securities-fraud claim under the 

Colorado Securities Act against CRC, its principals, and Mr. Knobel. Their 

allegations were identical to their federal securities-fraud claims: CRC, along with 

Mr. Knobel, “sent misleading and fraudulent valuations to investors in connection 

with an attempt to get them to exercise a put option offered to them, which would 

cause a loss to each investor.” App., Vol. II at 312 ¶ 200. 

As with their federal securities-fraud claims, Appellants failed to allege a 

derivative action. They alleged that they, as investors, suffered harms, not CRCPS. 

We thus affirm the dismissal of their Colorado Securities Act derivative fraud claims.

20 The Cui Appellants incorporate the Li Appellants’ arguments regarding the 

statute of repose. They suggest that Appellees’ 2016-2019 notices offering to allow 

limited partners to exercise their put options each constituted a new security. But the 

Cui complaint alleged only that the security at issue was the 2012 sale of the limited 

partnership interest. 

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Cui Appellants’ Fraud Claims 

The Cui Appellants appeal dismissal of their Colorado fraud claim against all 

Appellees. To state a fraud claim under Colorado law, a plaintiff must allege (1) “the 

defendant misrepresented a material fact,” (2) “the defendant knew the representation 

was false,” (3) the plaintiff “did not know the representation was false,” (4) “the 

defendant made the misrepresentation intending that the [plaintiff] act on it,” and 

(5) “damages resulted from the [plaintiff’s] reliance.” Loveland Essential Grp., LLC 

v. Grommon Farms, Inc., 251 P.3d 1109, 1116 (Colo. App. 2010). 

A plaintiff asserting a fraud claim must satisfy the heightened pleading 

requirements of Federal Rule of Civil Procedure 9(b). Under Rule 9(b), the plaintiff 

“must state with particularity the circumstances constituting fraud or mistake.” 

Fed. R. Civ. P. 9(b). We have interpreted this Rule to require a plaintiff 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.” Toone v. Wells Fargo 

Bank, N.A., 716. F.3d 516, 522 (10th Cir. 2013) (quotations omitted); United States 

ex rel. Polukoff v. St. Mark’s Hosp., 895 F.3d 730, 745 (10th Cir. 2018) (allegations 

of fraud must “provide factual allegations regarding the who, what, when, where and 

how of the alleged claims” (quotations and alterations omitted)). 

The district court dismissed the Cui Appellants’ fraud claim after determining 

the Cui complaint failed to meet Rule 9(b)’s heightened pleading standard. The Cui 

Appellants contend the complaint adequately alerted Appellees to the nature of their 

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claim, and any deficiency in the pleadings resulted from asymmetric information. 

We agree with the district court. 

As the district court determined, the Cui Appellants’ allegations lacked the 

specificity needed to allege fraud. For instance, the complaint alleged that Waveland 

LLC “colluded with SPO to defraud the EB–5 investors by misrepresenting to them 

that the Loan was 100% collateralized and safe.” App., Vol. VI at 1564-65 ¶ 9. But 

this allegation contained no specifics regarding which statements were fraudulent, 

nor did it identify when or where the false representation was made. Elsewhere in 

the complaint, the Cui Appellants identified numerous purported misrepresentations 

in a marketing presentation to potential investors by Appellees’ agents, id. at 1573-75 

¶¶ 65-66, but the complaint again failed to identify where, when, and to whom the 

misrepresentations were made. Indeed, as the district court noted, the complaint 

failed to allege that any of the Cui Appellants attended this presentation. These 

allegations lack the requisite specificity to allege a fraud claim. 

The Cui Appellants argue we should relax Rule 9(b)’s heightened pleading 

standard because Appellees were better placed to have details regarding their 

fraudulent scheme. We have held that “courts may consider whether any pleading 

deficiencies resulted from the plaintiff’s inability to obtain information in the 

defendant’s exclusive control.” Polukoff, 895 F.3d at 745 (quotations omitted). But 

the Cui Appellants’ complaint was deficient, not because they lacked information in 

Appellees’ exclusive control, but because they failed to identify necessary 

information that was squarely within their knowledge, such as the dates, locations, 

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and identities of relevant actors. We thus affirm the district court’s dismissal of the 

Cui Appellants’ fraud claim. 

B. Dismissal of State Claims for Lack of Jurisdiction 

After the district court denied the motion to dismiss the Li Appellants’ 

derivative breach-of-contract claim against SPO I and the Cui Appellants’ derivative 

breach-of-contract and declaratory-judgment claims against SPO and SPO I, it 

ordered the parties to address whether it had diversity jurisdiction over these claims, 

and if not, whether it should exercise supplemental jurisdiction. 

After briefing, the district court concluded that because the Appellants’ 

remaining claims were derivative in nature, it had to determine whether to align 

CRCPS as a plaintiff or a defendant. It concluded CRCPS’s interests were adverse to 

the Appellants’ interests, so the court aligned it as a defendant. And because 

CRCPS, as a limited partnership, takes on the citizenship of its limited partners, see 

Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990), the court concluded it had 

the same citizenship as the Appellants. It therefore determined it lacked subjectmatter jurisdiction. It then declined to exercise supplemental jurisdiction under 

28 U.S.C. § 1367(c)(3).21

On appeal, the Li Appellants do not challenge the dismissal of their derivative 

breach-of-contract claim against SPO I for lack of subject-matter jurisdiction. We 

21 On appeal, the Appellants do not challenge this declination of supplemental 

jurisdiction. 

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thus limit our analysis to the Cui Appellants’ challenge to the dismissal of their 

derivative breach-of-contract and declaratory-judgment claims against SPO and 

SPO I for lack of subject-matter jurisdiction.22 The Cui Appellants do not address the 

district court’s determination of CRCPS’s alignment or its citizenship. Instead, they 

focus on the diversity of citizenship between themselves and the SPO Defendants. 

Because the district court determined CRCPS and the Cui Appellants shared the same 

citizenship and therefore there was no complete diversity, the citizenship of SPO is 

not material to its holding that there was no diversity jurisdiction. See Strawbridge v. 

Curtiss, 7 U.S. (3 Cranch) 267 (1806). Because the Cui Appellants fail to dispute the 

alignment and citizenship of CRCPS, they have waived their challenge to the district 

court’s dismissal for lack of subject-matter jurisdiction. Krastev v. INS, 292 F.3d 

1268, 1280 (10th Cir. 2002) (“Issues not raised on appeal are deemed to be 

waived.”). Any such challenge would fail in any event. 

C. Leave to Amend the Complaint 

The Cui Appellants argue the district court should have granted their motion 

for leave to file a fourth amended complaint. “A district court should refuse leave to 

amend only upon a showing of undue delay, undue prejudice to the opposing party, 

bad faith or dilatory motive, failure to cure deficiencies by amendments previously 

22 In their reply brief, the Cui Appellants argue they alleged both direct and 

derivative claims that survived the motion to dismiss. This is incorrect. The district 

court dismissed the direct claims under Rule 12(b)(6) and left only the derivative 

claims. 

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allowed, or futility of amendment.” Wilkerson v. Shinseki, 606 F.3d 1256, 1267 

(10th Cir. 2010) (quotations and alterations omitted). “We ordinarily apply the 

abuse-of-discretion standard when reviewing a denial of leave to amend.” Moya v. 

Garcia, 895 F.3d 1229, 1239 (10th Cir. 2018). 

In a June 14, 2021 order,23 the district court denied the Cui Appellants’ motion 

for leave to amend. It reasoned that amendment would be futile based on (1) its 

dismissal of the Cui Appellants’ breach-of-fiduciary-duty and fraud claims with 

prejudice, (2) its refusal to exercise supplemental jurisdiction over the surviving state 

law claims, and (3) the Cui Appellants’ previous three amendments of their 

complaint. See Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir.2007) (a district 

court may deny a motion to amend a complaint if the amendment would be futile, and 

“[a] proposed amendment is futile if the complaint, as amended, would be subject to 

dismissal” (quotations omitted)). We view the request to amend differently. 

To the extent the Cui Appellants proposed to amend their complaint to state a 

breach-of-contract claim based on CRC I’s breach of its contractual fiduciary duty,24

as we explained above in our discussion of the Li Appellants’ fiduciary-duty claim, 

such a claim is not subject to the economic loss rule. In short, the proposed amended 

23 Issued the same day the court entered final judgment. 

24 Although on appeal the Cui Appellants focus on their fraud claim, they 

moved to amend to “clarify[] the Claims for Fraud; Breach of Fiduciary Duty; and 

Declaratory Relief,” and to plead “a Breach of Contract cause of action as an 

alternative to the Breach of Fiduciary Duty cause of action.” App., Vol. XIII 

at 3470; see also id. at 3477, 3482-3519. 

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complaint does not appear to be futile, and “[i]f a proposed amendment is not clearly

futile, then denial of leave to amend is improper.” Seale v. Peacock, 32 F.4th 1011, 

1029 (10th Cir. 2022) (quoting Wright & Miller, Federal Practice & Procedure 

§ 1487). We reverse the district court’s denial of the Cui Appellants’ request for 

leave to amend and remand for further consideration. 

D. Motion for Default Judgment 

The Li Appellants challenge the district court’s refusal to enter default 

judgment in their favor on their abandoned claim to remove CRC I as general partner 

of CRCPS. They initially included a count in their operative complaint seeking 

removal of CRC I as general partner. But they voluntarily dismissed this count. 

App., Vol. VIII at 2090. After CRC I filed a counterclaim seeking a declaratory 

judgment that its purported removal was improper, the Li Appellants moved to 

dismiss the counterclaim and “for [an] order declaring general partner removed 

instanter.” Id. at 2079. 

The district court denied the Li Appellants’ motion to dismiss the counterclaim 

and their request for a declaration stating that CRC I was properly removed as 

general partner. After this ruling, CRC I voluntarily dismissed its counterclaim. The 

Li Appellants then moved for entry of default judgment ordering the removal of 

CRC I as general partner. The court denied their motion during a hearing. See App., 

Vol. XIII at 3420-69.

The Li Appellants argue this denial was erroneous. They appear to suggest 

that CRC I’s voluntary dismissal amounted to a concession that its removal was 

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proper. But as Appellees point out, the Li Appellants had already dismissed their 

claim seeking removal of CRC I as general partner. The district court thus had no 

claims involving removal of CRC I before it, let alone a claim adjudicated in the Li 

Appellants’ favor. In short, when the Li Appellants moved for default judgment, 

there was no pending claim on which judgment could be entered. We therefore 

affirm. 

E. Attorney Fees 

The district court awarded attorney fees to the CRC Defendants under 

Colorado law and the PSLRA. It also awarded attorney fees to the SPO Defendants 

under the Loan Agreement, Colorado law (Mr. Knobel only), and the PSLRA. We 

vacate the award of attorney fees for the CRC Defendants under Colorado law and 

the awards of attorney fees for all Defendants under the PSLRA. We remand to the 

district court for further proceedings. 

“[A]lthough this appeal involves the review of an award of attorneys’ fees 

under state law, the standard of review under which we review an award of fees is a 

procedural matter controlled by federal precedent.” Xlear, Inc. v. Focus Nutrition, 

LLC, 893 F.3d 1227, 1233 (10th Cir. 2018). “We review the decision to award 

attorney fees, and the amount awarded, for abuse of discretion.” United Phosphorus, 

Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1232 (10th Cir. 2000). “A district 

court abuses its discretion if it commits legal error, relies on clearly erroneous factual 

findings, or issues a ruling without any rational evidentiary basis.” Xlear, Inc., 893 

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F.3d at 1233. “Whether a litigant is a ‘prevailing party’ is a legal question we review 

de novo.” Id.

Colorado Law 

Under Colorado law, if a court grants a motion to dismiss a tort action, the 

“defendant shall have judgment for his reasonable attorney fees in defending the 

action.” Colo. Rev. Stat. § 13-17-201(1). 

If a plaintiff has pled tort and non-tort claims, the court must determine 

“whether the essence of that party’s action was one in tort.” Gagne v. Gagne, 338 

P.3d 1152, 1167 (Colo. App. 2014). The court first assesses “whether the ‘essence of 

the action’ is tortious in nature (whether quantitatively by simple number of claims or 

based on a more qualitative view of the relative importance of the claims).” Id. 

at 1168 (quotations omitted). If this assessment fails to give a definitive answer, the 

court must then determine “whether tort claims were asserted to unlock additional 

remedies.” Id. (quotations omitted). 

If the court determines the essence of the action was tortious, then attorney 

fees are mandatory. See Luskin Daughters 1996 Tr. v. Young, 448 P.3d 982, 987 

(Colo. 2019). A court must also award attorney fees to a defendant even if claims 

remain live against a co-defendant. See Stauffer v. Stegemann, 165 P.3d 713, 718 

(Colo. App. 2006). But “the statute does not authorize recovery if a defendant 

obtains dismissal of some, but not all, of a plaintiff’s tort claims.” Colorado Special 

Districts Prop. & Liab. Pool v. Lyons, 277 P.3d 874, 885 (Colo. 2012). 

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a. Li Appellants 

Because we reverse the dismissal of the Li Appellants’ breach-of-fiduciaryduty claim, we vacate the attorney fee award for the CRC Defendants against the Li 

Appellants. As discussed, the district court misconstrued the breach-of-fiduciaryduty claim as a tort claim rather than as a contract claim, and Colorado law does not 

permit an award of attorney fees if some of a plaintiff’s claims remain live. Falcon 

Broadband, Inc. v. Banning Lewis Ranch Metro. Dist. No. 1, 474 P.3d 1231, 1244-45 

(Colo. App. 2018) (statute does not apply “if the court doesn’t dismiss all the tort 

claims against a certain defendant or if an action contains both tort and non-tort 

claims and the defendant obtains C.R.C.P 12(b) dismissal of only the tort claims” 

(quotations omitted)). Our reversal revives the breach-of-fiduciary-duty claim 

against CRC I. We therefore vacate the award of attorney fees for the CRC 

Defendants under Colorado law.25

25 This does not affect the attorney fee award for Mr. Knobel against the Li 

Appellants under Colorado law. As discussed above, the district court awarded 

Mr. Knobel attorney fees under Colorado law because the entire action was dismissed 

against him and the claims against him sounded in tort. Because the Li Appellants 

asserted their breach-of-fiduciary-duty claim against CRC I, not Mr. Knobel, our 

revival of that claim does not affect the award against him. 

In sum, (1) the fee award against the Li Appellants under Colorado law 

regarding the SPO Defendants was given only to Mr. Knobel and (2) our partial 

reversal of the breach-of-fiduciary-duty claim does not affect the award to him 

because that claim was not asserted against Mr. Knobel.

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b. Cui Appellants 

Similarly, because we reverse and remand on the Cui Appellants’ motion for 

leave to amend their complaint, we vacate the award of attorney fees under Colorado 

law. 

As discussed, Colorado law awards attorney fees for a tort action when the 

“action is dismissed on motion of the defendant.” Colo. Rev. Stat. § 13-17-201(1). 

But because we reverse the district court’s denial of the Cui Appellants’ proposed 

amendment, which included a breach-of-contract claim based on a breach of 

fiduciary duty, the district court must re-evaluate whether the statutory basis for the 

attorney fee award applies.26

Federal Law 

The PSLRA requires a court, “upon final adjudication of the action,” to make 

“specific findings regarding compliance by each party and each attorney representing 

any party with each requirement of Rule 11(b) of the Federal Rules of Civil 

Procedure as to any complaint, responsive pleading, or dispositive motion.” 

15 U.S.C. § 78u-4(c)(1). If the court finds that a party violated Rule 11(b), it “shall 

impose sanctions on such party or attorney.” 15 U.S.C. § 78u-4(c)(2). Unlike other 

26 It is unclear from the Cui Appellants’ briefing on appeal how they will 

amend their complaint. Because we do not know the specifics of their amended 

claim, the district court is best situated to revisit the award of attorney fees for Mr. 

Knobel and the CRC Defendants under Colorado law on remand. 

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sanctions provisions, the PSLRA imposes a presumption in favor of sanctions. Id. 

§ 78u-4(c)(3). 

After making its dismissal rulings and concluding that no claims were pending, 

the district court ordered the parties to address whether it should award attorney fees 

under the PSLRA. The court concluded that four of the Li Appellants’ five claims—

including their federal securities claim—were frivolous and thus warranted a 

sanctions award. 

As to the Cui Appellants, the court concluded that two of the five claims it 

adjudicated—including the federal securities claim—were frivolous. The court 

determined that the Cui Appellants’ claims against the CRC Defendants contained 

substantial defects and that the Cui Appellants failed to rebut the presumption in 

favor of sanctions. But it concluded the Cui Appellants’ claims against the SPO 

Defendants were not as defective, so it awarded lower sanctions. 

The court then ordered (1) the Li Appellants’ counsel to pay about $390,000 to 

the CRC Defendants and $244,000 to the SPO Defendants; and (2) the Cui 

Appellants’ counsel to pay about $140,000 to the CRC Defendants and $5,000 to the 

SPO Defendants. 

a. Li Appellants 

Because we reverse the district court’s dismissal of one of the Li Appellants’ 

claims, we vacate the PSLRA fee award. The PSLRA provides that, “[i]n any private 

action arising under” the securities statutes, the district court must award attorney 

fees “upon final adjudication of the action.” 15 U.S.C. § 78u-4(c)(1). The parties 

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have not briefed, and the district court did not address whether “final adjudication of 

the action” refers solely to federal securities-law claims or whether it refers to the 

entire action. If it refers to the latter, our reversal of the district court’s dismissal of 

the Li Appellants’ breach-of-fiduciary-duty claim means that adjudication of the 

action is not final.27 On remand, the district court must determine whether it should 

first resolve the Li Appellants’ surviving breach-of-fiduciary-duty claim before 

assessing attorney fees under the PSLRA.28

27 We note the case law understanding of 15 U.S.C. § 78u-4(c)(1) is unsettled. 

The Fourth Circuit has said, but only in dicta, that the PSLRA “applies to any action 

with a claim arising under Chapter 2B of Title 15 of the U.S. Code, 15 U.S.C. § 78a 

et seq.” Morris v. Wachovia Sec., Inc., 448 F.3d 268, 276 (4th Cir. 2006). Relatedly, 

district courts have attempted to address the meaning of “final adjudication.” See 

Blaser v. Bessemer Tr. Co., 2002 WL 31359015, at *3 (S.D.N.Y. 2002) (noting 

“there is little case law on its meaning”); Manchester Mgmt. Co., LLC v. Echo 

Therapeutics, Inc., 297 F. Supp. 3d 451, 465 (S.D.N.Y. 2018); Great Dynasty Int’l 

Fin. Holdings Ltd. v. Haiting Li, 2014 WL 3381416, at *5 (N.D. Cal. 2014).

28 The district court concluded that the breach-of-fiduciary-duty claim was 

frivolous, which is not correct in light of our reversal. We affirm the dismissal of the 

derivative federal securities-law claim because it did not allege harm to CRCPS, the 

limited partnership. But the district court may have awarded fees on a faulty basis 

because it seems to have broadly concluded that a derivative federal securities-law 

claim against a general partner would be a suit against the limited partnership itself 

and could not be maintained even if it alleged damage to CRCPS. App., Vol. XIV 

at 3823 (“It was not objectively reasonable for Li Plaintiffs to sue CRC I derivatively 

on behalf of CRCPS for alleged securities violations.”). 

The case law indicates that investors may pursue derivative federal securitieslaw claims against a corporate manager (here, the general partner, CRC I) for alleged 

harm to the corporation (here, the limited partnership, CRCPS). See Frankel v. 

Slotkin, 984 F.2d 1328, 1332-33 (2nd Cir. 1993) (plaintiff could maintain derivative 

federal securities-law claim against majority shareholder by showing damage to the 

corporation); Hill v. Vanderbilt Cap. Advisors, LLC, 834 F. Supp. 2d 1228, 1268-69 

(D.N.M. 2011) (other circuits have established that federal securities-law claims may 

be pursued derivatively). 

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b. Cui Appellants 

Because we reverse the district court’s order denying the Cui Appellants leave 

to amend their complaint, we vacate the district court’s PSLRA fee award. As with 

the award against the Li Appellants, the district court must determine whether “final 

adjudication of the action” refers solely to the Cui Appellants’ federal securities-law 

claim or whether it covers the entire complaint.29

III. CONCLUSION 

In sum, we 

(A) affirm the district court’s dismissal of Appellants’ claims under Federal 

Rule of Civil Procedure 12(b)(6) except for the Li Appellants’ claim for 

breach of fiduciary duty, which we affirm in part and reverse in part; 

(B) affirm dismissal of the Cui Appellants’ remaining state law claims for 

lack of subject-matter jurisdiction; 

(C) reverse the district court’s denial of the Cui Appellants’ motion to amend 

their complaint; 

(D) affirm the district court’s denial of the Li Appellants’ motion for default 

judgment; and 

(E) vacate the awards of attorney fees as discussed herein.30

29 As noted above, the Appellants do not challenge on appeal the awards of 

attorney fees to the SPO Defendants under the Loan Agreement. Appellees argue 

this moots Appellants’ challenges to the fees awarded to the SPO Defendants under 

Colorado law and the PSLRA. See Aplee. Br. at 63-64. The district court is in the 

best position to consider the relationship among the various bases for the fee awards 

and should address this mootness argument on remand. 

Nothing in this Order and Judgment should necessarily prevent the district 

court from revisiting whether it should award attorney fees under Colorado law or the 

PSLRA at the conclusion of proceedings on remand. 

30 We thus deny as moot the following motions addressing the district court’s 

orders regarding the attorney fee awards: (1) CRC I’s motion for leave to allow the 

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The following chart lists the issues presented on appeal and our dispositions: 

Appeal Issue Li Appellants Cui Appellants 

(A) Rule 12(b)(6) Dismissal of: 

 (1) Breach of fiduciary duty Affirmed in part 

Reversed in part 

Affirmed 

 (2) Federal securities fraud Affirmed Affirmed 

 (3) Colorado securities fraud Affirmed N/A 

 (4) Colorado common law fraud N/A Affirmed 

(B) Dismissal for Lack of 

Subject-Matter Jurisdiction 

N/A Affirmed 

(C) Denial of Motion to Amend N/A Reversed 

(D) Denial of Motion for Default 

Judgment 

Affirmed N/A 

(E) Attorney Fees 

 (1) Colorado Vacated as to the 

CRC Defendants 

Vacated 

 (2) PSLRA Vacated Vacated 

district court to correct the amended final judgment, Doc. 10870007; (2) the Li 

Appellants’ motion for affirmative relief striking the amended final judgment, Doc. 

10878163; and (3) the Li Appellants’ motion to strike the second amended final 

judgment, Doc. 10874725. 

We also deny the Li Appellants’ motion for appointment of a neutral appellate 

counsel for CRCPS, Doc. 10847355. The Li Appellants provide no legal basis for 

this request. 

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We remand to the district court for further proceedings consistent with this 

Order and Judgment.31

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge 

31 This court’s rulings on appeal revive the Li Appellants’ breach-of-fiduciaryduty claim and potentially revive certain of the Cui Appellants’ state law claims 

through amendment of their complaint. In either instance, the district court on 

remand will need to consider whether to exercise supplemental jurisdiction in light of 

the dismissal of the federal claims. 

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