Rumsey Land Company v. Resource Land Holdings
Citation944 F.3d 1259
Date Filed2019-12-20
Docket18-1452
Cited43 times
StatusPublished
Full Opinion (html_with_citations)
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 20, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
In re: RUMSEY LAND COMPANY,
LLC,
Debtor.
------------------------------
RUMSEY LAND COMPANY, LLC,
Plaintiff - Appellant,
No. 18-1452
v.
RESOURCE LAND HOLDINGS, LLC;
SORIN NATURAL RESOURCE
PARTNERS, LLC; PUEBLO BANK AND
TRUST COMPANY, LLC,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:16-CV-02117-CMA-SKC)
_________________________________
Ronald L. Wilcox, Wilcox Law Firm, LLC, Denver, Colorado for Plaintiff - Appellant.
David M. Rich, Minor & Brown, P.C., Denver, Colorado, and Sarah B. Wallace, Ballard
Spahr LLP, Denver, Colorado, (Andrew J. Petrie, Ballard Spahr LLP, Denver, Colorado,
with them on the brief) for Defendants - Appellees.
_________________________________
Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
This appeal stems from a dispute involving land sold at a bankruptcy auction.
Rumsey Land Company, LLC (âRumseyâ) owned a property subject to a first deed of
trust held by Pueblo Bank & Trust Company, LLC (âPBTâ). In 2010, Rumsey filed for
bankruptcy. Resource Land Holdings, LLC (âRLHâ)1 offered to purchase the property,
but the bankruptcy court did not approve the sale. Shortly thereafter, PBT purchased the
property at a bankruptcy auction. PBT then transferred the land to RLH.
In 2015, Rumsey discovered that during the bankruptcy proceedings, RLH had
entered a loan purchase agreement to purchase PBTâs interest in the property. The
agreement eventually led to litigation in state court between RLH and PBT, which
culminated with a settlement agreement allowing RLH to purchase Rumseyâs property
from PBT for $4.75 million.
Rumsey believed the loan agreement, lawsuit, and settlement influenced the price
at its bankruptcy auction. It initiated this adversarial proceeding in bankruptcy court
against RLH and PBT (collectively âDefendantsâ), alleging (1) fraudulent concealment in
violation of state law and (2) collusive bidding activities in violation of 11 U.S.C.
§ 363(n). The case was transferred to federal district court, which granted summary
1
RLH is a registered agent of the third defendant in this case, Sorin Natural
Resource Partners, LLC. For simplicity, the parties and the district court referred to
Sorin and RLH collectively as âRLH.â We do the same.
2
judgment to Defendants on both claims. Exercising jurisdiction under 28 U.S.C § 1291
and § 1294(1), we affirm.
On the fraudulent concealment claim, we affirm summary judgment for RLH on
the alternative ground that RLH was not a party to a business transaction with Rumsey
and therefore had no duty to disclose information. We affirm summary judgment for
PBT because Rumsey forfeited its arguments about PBTâs duty to disclose and has not
argued plain error on appeal.
On the § 363(n) collusive bidding claim, we distinguish between Rumseyâs
alternative requests (1) to avoid the bankruptcy sale and (2) for damages. As to the
former, we affirm summary judgment for Defendants on the alternative ground that the
claim was time-barred by the one-year limitations period in Federal Rule of Civil
Procedure 60(c)(1). As to damages, we affirm summary judgment because Rumsey
failed to demonstrate a genuine dispute of material fact as to whether Defendants
intended to control the sale price at the bankruptcy auction.
I. BACKGROUND
A. Factual Background
Rumsey, a Colorado-based limited liability company, owned real property in
Evans, Elizabeth, and Nederland, Colorado. In January 2010, it filed for bankruptcy in
the United States Bankruptcy Court for the District of Colorado. At the time it filed for
bankruptcy, Rumseyâs holdings included a property known as the Rumsey Farm (âthe
propertyâ or âthe landâ), which was encumbered by a first deed of trust held by PBT.
3
RLHâs Initial Attempts to Acquire the Property
In March 2010, RLH attempted to purchase the property from Rumsey. It
discussed with Rumsey the possibility of buying the PBT loan but ultimately offered to
purchase the property for $7,484,397.75.
In April 2010, Rumsey filed a motion to approve the sale with the bankruptcy
court. Because three creditors objected, the court denied the motion and instructed
Rumsey to market the property more broadly.
RLH and PBTâs Loan Purchase Agreement and Lawsuit
Because RLH could not acquire the property from Rumsey directly, it decided to
pursue the possibility of purchasing the debt Rumsey owed to PBT. On December 1,
2010, RLH signed a written loan purchase agreement (âthe loan purchase agreementâ or
âthe agreementâ) to purchase the debt from PBT for $4.93 million. The agreement
contained a confidentiality provision prohibiting disclosure of the agreement or its terms.
The parties did not disclose the agreement to Rumsey or to the bankruptcy court.
On February 1, 2011, PBT refused to close on the loan purchase agreement. On
March 15, RLH sued PBT to enforce the agreement. As explained below, this lawsuit
eventually settled. The parties did not inform Rumsey about the lawsuit.
Rumseyâs Bankruptcy Auction
In early March 2011, the bankruptcy court approved the sale and notice
procedures to auction the property. On March 31, 2011, RLH submitted a $4 million
4
stalking horse bid.2 The same day, PBT submitted a credit stalking horse bid, which did
not offer new money but agreed to reduce Rumseyâs debt by $5 million. Rumsey
selected PBTâs bid as the stalking horse.
Shortly after Rumsey selected PBT as the stalking horse bidder, RLHâs counsel
e-mailed PBT regarding the pending lawsuit with RLH. He noted that â[t]he indications
that RLH has received from [Rumseyâs] marketing agent are that RLH was the second
place contender to be the stalking horse and no other offers were really in the ball park.â
App. at 949. He then added,
[PBT] and [RLH] may turn out to be the only two horses in
this race. If that should come to pass, there may be some
avenues for a consensual resolution of the disputes between
our clients . . . . Naturally, collusive bidding is inappropriate
and Iâm not suggesting anything like that, but the bankruptcy
court might be a good forum for a global resolution.
Id. PBTâs counsel responded that it did ânot want to create the appearance or impression
of any sort of impropriety or collusive bidding to which . . . some other interested party
could object pursuant to Section 363(n) of the Bankruptcy Code.â Id. at 1019. It
therefore suggested that âuntil the auction and sale process is concluded, . . . it would be
2
âA âstalking horseâ contract is a first, favorable bid strategically solicited by the
bankrupt company to prevent low-ball offers.â In re WestPoint Stevens, Inc., 600 F.3d
231, 239 n.3 (2d Cir. 2010). âA stalking horse bidder . . . makes an initial bid to purchase the assets of a debtor. . . . Stalking horse bidders often contract to receive a âbreak-up-feeâ compensating it for its bidding activities should a higher bid ultimately emerge and win an eventual asset auction.â Brown Media Corp. v. K & L Gates, LLP,586 B.R. 508, 518
(E.D.N.Y. 2018).
5
unwise to engage in any dispute resolution or settlement discussions, of any nature,
which may involve the property to be sold at the auction or the underlying loan
documents held by [PBT].â Id.
On May 11, 2011, Rumsey auctioned the property. RLH did not participate in the
auction. Confluence Resource Holdings, LLC (âConfluenceâ) placed the winning bid.
On May 25, 2011, Rumsey submitted a Proposed Sale Order, which contained the
following representation:
The Debtor and each Successful Bidder and the Back-Up
Bidder have fully disclosed all consideration to be given by
each Successful Bidder and the Back-Up Bidder and all other
agreements or arrangements entered into by each Successful
Bidder and the Back-Up Bidder in connection with the sale of
the Assets.
Id. at 963. RLH and PBT both received copies of the Proposed Sale Order, but neither
disclosed their loan purchase agreement or lawsuit.
The bankruptcy court entered the Proposed Order on June 17, authorizing
Confluence as the successful bidder and PBT as the back-up bidder. In August,
Confluence announced it would not proceed with closing. As a result, Rumsey accepted
PBTâs back-up bid.
Defendantsâ Settlement Agreement
On September 13, 2011, RLH and PBT agreed to settle their lawsuit. As part of
their settlement, they agreed that after PBT acquired the property through the bankruptcy
sale, it would sell the property to RLH for $4.75 million. On September 20, the parties
entered a contract formalizing this agreement.
6
Sale to PBT and Later Transfer to RLH
On October 4, 2011, PBT moved the bankruptcy court to approve transfer of the
property from Rumsey to PBT. In the motion, PBT represented that the property was
âfree and clear of all liens, encumbrances, claims, and interests.â Id. at 1021. PBT
provided a non-exhaustive list of liens and encumbrances but did not disclose the loan
purchase agreement or settlement with RLH. The bankruptcy courtâs proposed
Supplemental Sale Order also did not mention the loan purchase agreement, and it
specified that â[t]he acquisition of the Assets is undertaken by [PBT] without collusion
and in good faith.â Id. at 1034. Both RLH and PBT received copies of the Order, which
the bankruptcy court entered on October 6, 2011, thereby transferring the property to
PBT. On October 13, PBT conveyed the property to RLH.
Discovery of Defendantsâ Loan Purchase Agreement and Settlement
PBT and RLH never disclosed their loan purchase agreement, lawsuit, or
settlement to Rumsey, and Rumsey did not learn of the agreement until 2015. Rumsey
stated that âthe [agreement] and subsequent efforts to enforce it had the effect of limiting
RLHâs bid to the amount agreed to by RLH and PBT,â and that it âwould have objected
to credit bidding as a part of the sale process if it had known of the [agreement].â Id. at
964.
* * * *
The following table summarizes the events described above.
7
Events Relating to Sale of The Property Events Relating to Loan Purchase Agreement
01/15/2010 Rumsey files for bankruptcy.
RLH offers to purchase the property
03/08/2010
for approximately $7.5 million.
Bankruptcy court denies Rumseyâs
09/03/2010
motion to approve sale to RLH.
RLH signs agreement to purchase
12/01/2010
debt from PBT for $4.93 million.
PBT refuses to close on loan
02/01/2011
purchase agreement.
Bankruptcy court approves sale and
03/02/2011 notice procedures for bankruptcy
auction of the property.
RLH sues PBT to enforce loan
03/15/2011
purchase agreement.
RLH and PBT submit stalking
03/31/2011 horse bids. Rumsey selects PBT as
the stalking horse.
Rumsey auctions the property.
05/11/2011
Confluence places winning bid.
Rumsey submits Proposed Sale
Order specifying parties have
05/25/2011
disclosed agreements related to the
property.
Bankruptcy court enters Proposed
Sale Order designating Confluence
06/17/2011
as winning bidder and PBT as
back-up bidder.
Confluence backs out of sale,
08/15/2011
leaving PBT as winning bidder.
RLH and PBT agree to settle
lawsuit; parties agree that PBT will
09/13/2011
transfer the property to RLH for
$4.75 million.
RLH and PBT enter contract
09/20/2011 formalizing settlement and sale
from PBT to RLH.
PBT files motion to transfer the
property from Rumsey to PBT. It
represents that property is free of
10/04/2011
liens and encumbrances and that
acquisition of assets was undertaken
without collusion.
Bankruptcy court enters
10/06/2011 Supplemental Sale Order
transferring the property to PBT.
10/13/2011 PBT transfers the property to RLH.
8
B. Procedural Background
Adversarial Proceeding Against RLH and PBT
In 2015, Rumsey initiated an adversarial proceeding against Defendants in
bankruptcy court. Its complaint alleged Defendants âentered into a secret collusive
agreement which had the effect of corrupting the bidding mechanism approved by the
Court.â Id. at 442. Specifically, Rumsey noted RLH initially offered to purchase
Rumsey Farm from it for approximately $7.5 million and later agreed to purchase PBTâs
loan for $4.9 million.3 Rumsey alleged that the loan purchase agreement between RLH
and PBT was â[a] âsecret dealâ [that] allowed [RLH] to acquire the Rumsey Farm for a
savings of $2.5 million based on the price that they originally bidâ and âdeprived
[Rumseyâs] creditors of . . . $2.5 million.â Id. at 443.
Bankruptcy Court Proceedings
The bankruptcy court re-opened Rumseyâs bankruptcy case, and Rumsey filed an
amended complaint asserting six causes of action: (1) fraud on the court (against
Defendants), (2) violation of 11 U.S.C. § 363(n)âs prohibition of collusive bidding
activities (against Defendants), (3) breach of contract (against PBT), (4) negligence
(against Defendants), (5) fraudulent concealment (against Defendants), and (6) breach of
the duty of good faith and fair dealing (against PBT). On the § 363(n) claim, Rumsey
3
As noted above, RLH acquired the property from PBT for $4.75 million after the
auction.
9
requested two alternative forms of relief: âthat the Bankruptcy Court avoid the saleâ or
â[i]n the alternative, . . . that PBT and RLH be required to pay damages in the amount by
which the value of the property sold exceeds the price at which such sale was
consummated . . . .â Id. at 519.
RLH and PBT filed separate motions to dismiss for failure to state a claim. The
bankruptcy court denied the motions, finding Rumsey had âalleged facts supporting a
conclusionâ that PBT and RLH âreached a secret understanding or agreement regarding
the sale of [Rumseyâs] Assets, which agreement improperly lowered the ultimate sale
price.â Id. at 689. The court also found Rumsey âalleged sufficient facts to support a
conclusion that the agreement between RLH and [PBT] controlled the bidding price for
the sale ofâ the property. Id. at 691.
District Court Proceedings
RLH filed a Motion to Withdraw Reference4 to the bankruptcy court, and the
proceedings were transferred to the United States District Court for the District of
Colorado. RLH then moved for summary judgment on claims 1, 2, 4, and 5, arguing that
4
A Motion to Withdraw Reference allows a party to a bankruptcy proceeding to
move the proceeding from bankruptcy court to federal district court. The Bankruptcy
Law Manual explains: âCongress provided in § 157(a) of Title 28 that each district court
could provide that any or all cases and any or all proceedings arising in, under, or related
to the case be âreferredâ to the bankruptcy judges in the district. . . . Section 157(d) then
provides that the district court may withdraw the reference of any case or proceeding, in
whole or in part, that has been previously referred. . . . The district court may, on a
discretionary basis, withdraw the reference . . . upon âtimelyâ motion of a party.â
1 Bankruptcy Law Manual § 2:11 (5th ed. 2019).
10
each was time-barred and that Rumsey â[could not] meet [its] burden to produce
evidence supporting any of [its] claims.â Id. at 734. PBT moved to join RLHâs motion
for summary judgment, which the court granted. PBT also moved for dismissal of claims
3 and 6 for breach of contract and breach of duty of good faith and fair dealing, arguing
those claims were âpredicated on Rumsey . . . being successful in proving [the other four
claims].â Id. at 952.
The district court first addressed RLHâs statute of limitations argument. The court
listed the relevant limitations periods for each of Rumseyâs claims, including the § 363(n)
claim. It stated that the § 363(n) claim was âgoverned by Federal Rule of Civil
Procedure 60(b)âs one-year limitations period.â5 Id. at 1481. It then suggested for all
claims, including the § 363(n) claim, âthere [was] a genuine dispute of material fact as to
when Rumseyâs causes of action accrued.â Id. at 1483. It thus denied RLHâs motion âto
the extent that [it sought] to dismiss Rumseyâs claims on the grounds of statutes of
limitations.â Id.6
5
This one-year limitations period is described in Federal Rule of Civil Procedure
60(c)(1). As we explain below, the limitations period governs motions brought under
Rule 60(b). Because of this, courts and litigants sometimes describe it as âRule 60(b)âs
one-year limitations period.â Here, we refer to the limitations period using its precise
location in Rule 60(c)(1).
6
As we explain later, this analysis was flawed in two ways. First, the district
court applied the Rule 60(c)(1) limitations period to Rumseyâs claim for damages. This
was incorrect because Rule 60(c)(1) does not apply when a § 363(n) plaintiff seeks only
damages. Second, the district court conducted an accrual analysis for the § 363(n) claim.
This was error because Rule 60(c)(1)âs one-year limitations period is absolute and runs
from the date of the entry of judgment.
11
The court then granted summary judgment on the merits as to all six of Rumseyâs
claims. The rulings on only twoâthe fraudulent concealment claim and the § 363(n)
claimâare challenged on appeal.
First, on the fraudulent concealment claim, the district court stated that â[t]here is
no general duty for all participants in market transactions to disclose material, nonpublic
information,â id. at 1486, and that a duty to disclose arises only if the parties have âa
fiduciary or other similar relation of trust and confidence,â id. at 1485. It granted
summary judgment for RLH because it found âRumsey [had] not offered evidence of a
relationship of trust and confidence between it and . . . RLH.â Id. at 1486. The court also
granted summary judgment for PBT because âRumsey focuse[d] exclusively on its
relationship with . . . RLHâ and did ânot proffer any argument about why . . . PBT in
particular owed it a duty to disclose.â Id. at 1488.
Second, on the § 363(n) claim, the court granted summary judgment for
Defendants because âRumsey [did] not set forth specific facts from which a rational trier
of fact could infer that . . . RLH and PBT entered into the Loan Purchase Agreement with
intent that the Agreement control the price.â Id. at 1492.
II. DISCUSSION
This appeal presents two issues: (1) whether the district court erred in granting
summary judgment for Defendants on Rumseyâs fraudulent concealment claim, and (2)
whether the district court erred in granting summary judgment for Defendants on
Rumseyâs § 363(n) claim. As to both issues, we present the standard of review for
12
summary judgment and the Tenth Circuitâs law on forfeiture. We then turn to the
fraudulent concealment and § 363(n) collusive bidding claims.
A. Background Law
Standard of Review
âWe review the grant or denial of summary judgment de novo, applying the same
standard of review as the district court.â S.E.C. v. Cochran, 214 F.3d 1261, 1264(10th Cir. 2000). âThe court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.â Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248-51
(1986). âThere is a genuine issue of material fact if a rational jury could find in favor of the nonmoving party on the evidence presented.â Fassbender v. Correct Care Sols., LLC,890 F.3d 875, 882
(10th Cir. 2018) (quotations omitted).
âThe movant bears the initial burden of making a prima facie demonstration of the
absence of a genuine issue of material fact . . . .â Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 670(10th Cir. 1998) (citing Celotex Corp. v. Catrett,477 U.S. 317, 323
(1986)). The movant may carry this burden âby âshowingââthat is, pointing out to the district courtâthat there is an absence of evidence to support the nonmoving partyâs case.â Celotex,477 U.S. at 325
. The burden then shifts to the nonmoving party to âset forth specific facts showing that there is a genuine issue for trial.â Anderson,477 U.S. at 256
.
13
When applying this standard, courts âview the evidence and draw all reasonable
inferences therefrom in the light most favorable to the party opposing summary
judgment.â Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th
Cir. 2000).
Forfeiture
âIt is the general rule . . . that a federal appellate court does not consider an issue
not passed upon below.â Singleton v. Wulff, 428 U.S. 106, 120(1976). Accordingly, âif the theory [a party urges on appeal] simply wasnât raised before the district court, we usually hold it forfeited.â Paycom Payroll, LLC v. Richison,758 F.3d 1198, 1203
(10th
Cir. 2014) (quotations omitted).
Our case law explains âwhat kind of specificity is required in the trial court in
order to preserve an issue for appeal.â Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 721 (10th Cir. 1993). Although â[p]leadings and motions in the trial court will be given a liberal reading,â Tele-Commcâns, Inc. v. Commâr.,104 F.3d 1229, 1233
(10th Cir. 1997),
we do not address âbald-faced new issue[s],â âtheor[ies] that [were] discussed in a vague
and ambiguous way,â or âissues that were raised and then abandoned pre-trial,â Lyons,
994 F.2d at 722.
We also do not address âarguments raised in the District Court in a perfunctory
and underdeveloped manner.â Tele-Commcâns, 104 F.3d at 1233(quoting Kensington Rock Island Ltd. Pâship v. Am. Eagle Historic Partners,921 F.2d 122
, 124-25 n.1 (7th
Cir. 1990) (alterations omitted)). â[V]ague, arguable references to a point in the district
14
court proceedings do not . . . preserve the issue on appeal.â Lyons, 994 F.2d at 721
(quotations omitted). âFleeting referencesâ to an argument are also insufficient.
Tele-Commcâns, 104 F.3d at 1233-34 (issue forfeited where brief to the tax court
âcontain[ed] only a single paragraph addressing the issue,â but â[o]n appeal, [that]
fleeting contention bec[ame] ten pages of argument, replete with examples and
citationsâ).
To urge reversal of an issue that was forfeited in district court, an appellant must
argue plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128(10th Cir. 2011). If an appellant does not explain how its forfeited arguments survive the plain error standard, it effectively waives those arguments on appeal. See McKissick v. Yuen,618 F.3d 1177, 1189
(10th Cir. 2010) (noting that âeven if [a partyâs] arguments were merely forfeited before the district court, [the] failure to explain . . . how they survive the plain error standard waives the arguments in this courtâ); see also United States v. Qualls,741 F. Appâx 592
, 596 (10th Cir. 2018) (unpublished) (holding that appellant waived a forfeited argument âbecause his briefing made no mention of the plain error standard of reviewâ); United States v. Herrera-Zamora,647 F. Appâx 855, 858-59
(10th Cir. 2016)
(unpublished) (â[Appellant] makes his two remaining arguments for the first time on
appeal. Because he does so without arguing for plain-error review, these arguments are
15
effectively waived on appeal.â).7 â[F]ailure to argue for plain error and its application on
appeal[] surely marks the end of the road for an argument . . . not first presented to the
district court.â Richison, 634 F.3d at 1131.
B. Fraudulent Concealment Claim
We affirm the grant of summary judgment on Rumseyâs fraudulent concealment
claim. As to RLH, the district court granted summary judgment because it found Rumsey
and RLH were not in a relationship of trust and confidence as described in the
Restatement (Second) of Torts § 551(2)(a). We affirm on the alternative ground that
RLH was not a party to a business transaction with Rumsey and therefore had no duty to
disclose under § 551(2). As to PBT, the district court granted summary judgment
because it found that Rumsey â[did] not proffer any argument about why . . . PBT in
particular owed it a duty to disclose.â App. at 1488. We affirm because Rumsey has
forfeited its arguments about PBT and has not argued plain error on appeal.
Legal Background
Under Colorado law,8 a plaintiff claiming fraudulent concealment must prove five
elements:
7
Although not precedential, we find the reasoning of the unpublished opinions
cited in this opinion instructive. See 10th Cir. R. 32.1 (âUnpublished decisions are not
precedential, but may be cited for their persuasive value.â); see also Fed. R. App. P. 32.1.
8
Rumseyâs fraudulent concealment claim is a state law tort claim. Accordingly,
we apply Colorado law. See Alpine Bank v. Hubbell, 555 F.3d 1097, 1109-12(10th Cir. 2009) (applying Colorado law to a state law fraudulent concealment claim where jurisdiction was based on bankruptcy law); In re ms55, Inc.,420 B.R. 806
, 820 n.6
16
(1) the concealment of a material existing fact that in equity
and good conscience the defendant should have disclosed; (2)
knowledge on the defendantâs part that such a fact was being
concealed; (3) ignorance of that fact on the plaintiffâs part; (4)
the intention that the concealment be acted upon; and (5)
action on the concealment resulting in damages.
Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs LLP, 420 P.3d 223, 234 (Colo.
2018).
To satisfy the first element, the âplaintiff must show that the defendant had a duty
to disclose material information.â Mallon Oil Co. v. Bowen/Edwards Assocs., Inc., 965
P.2d 105, 111(Colo. 1998). Colorado courts look to the Restatement (Second) of Torts § 551 to determine whether a party has a duty to disclose. See Level 3 Commcâns, LLC v. Liebert Corp.,535 F.3d 1146, 1163-64
(10th Cir. 2008); Mallon Oil,965 P.2d at 111
.
That section provides:
One who fails to disclose to another a fact that he knows may
justifiably induce the other to act or refrain from acting in a
business transaction is subject to the same liability to the
other as though he had represented the nonexistence of the
matter that he has failed to disclose, if, but only if, he is under
a duty to the other to exercise reasonable care to disclose the
matter in question.
Restatement (Second) of Torts § 551(1) (Am. Law. Inst. 1977). It then describes five
situations when a duty to disclose might arise:
(2) One party to a business transaction is under a duty to
exercise reasonable care to disclose to the other before the
transaction is consummated,
(Bankr. D. Colo. 2009) (discussing Tenth Circuit choice of law analysis for state law
claims where jurisdiction is based on bankruptcy law).
17
(a) matters known to him that the other is entitled to
know because of a fiduciary or other similar relation of
trust and confidence between them; and
(b) matters known to him that he knows to be
necessary to prevent his partial or ambiguous
statement of the facts from being misleading; and
(c) subsequently acquired information that he knows
will make untrue or misleading a previous
representation that when made was true or believed to
be so; and
(d) the falsity of a representation not made with the
expectation that it would be acted upon, if he
subsequently learns that the other is about to act in
reliance upon it in a transaction with him; and
(e) facts basic to the transaction, if he knows that the
other is about to enter into it under a mistake as to
them, and that the other, because of the relationship
between them, the customs of the trade or other
objective circumstances, would reasonably expect a
disclosure of those facts.
Restatement (Second) of Torts § 551(2)(a)-(e). Each subsection of § 551(2) gives rise to
an independent duty to disclose. See, e.g., Alpine Bank v. Hubbell, 555 F.3d 1097,
1109-12(10th Cir. 2009) (recognizing § 551(2)(a) as basis for a duty to disclose); Level 3 Commcâns,535 F.3d at 1163-64
(recognizing § 551(2)(b) as basis for a duty to disclose); Mallon Oil,965 P.2d at 111
(recognizing § 551(2)(e) as basis for a duty to disclose).
The disclosure duties described in § 551(2)(a)-(e) apply only to âpart[ies] to a
business transaction.â Restatement (Second) of Torts § 551(2). Our case law is in
accord. In cases where we have considered whether § 551(2) triggered a duty to disclose,
18
the parties have always been engaged in business transactions. See, e.g., Level 3
Commcâns, 535 F.3d at 1149, 1163-64(considering whether there was a duty to disclose between two parties who directly contracted for the sale and purchase of batteries)9; Berger v. Sec. Pac. Info. Sys., Inc.,795 P.2d 1380, 1382
(Colo. App. 1990) (considering whether there was a duty to disclose between employer and employee). And in at least one unpublished case, a Colorado district court stated it was âaware of no[] [cases] that [have] found a duty to disclose the terms of a contract to non-parties who may be affected by the agreement.â Spring Creek Expl. & Prod. Co., LLC v. Hess Bakken Inv. II, LLC, No. 14-CV-00134,2014 WL 4400764
, at *13 (D. Colo. Sept. 5, 2014) (unpublished).
Analysis
We analyze Rumseyâs fraudulent concealment claim as to each defendant, RLH
and PBT. We begin with the claim against RLH. We first consider whether Rumsey
forfeited its arguments against RLH by failing to present them to the district court. We
conclude Rumsey did not forfeit its § 551(2)(b) and (e) arguments about RLH because it
raised those arguments in its opposition to RLHâs motion for summary judgment. We
next consider whether the district court properly granted summary judgment for RLH on
9
Although contractual partners qualify as parties to a business transaction, a
contractual relationship is not required under § 551(2)(b). See, e.g., Church Mut. Ins. Co.
v. Coutu, No. 17-CV-00209, 2018 WL 1517022, at *4 (D. Colo. Mar. 28, 2018)
(âAlthough [Blackâs Law Dictionary] gives as an example [of a âpartyâ] âa party to the
contract,â the Court does not consider that to be the universe of parties who can take part
in a transaction [under § 551(2)(b)].â).
19
the fraudulent concealment claim. We affirm on the alternative ground that RLH was not
party to a business transaction and therefore had no duty to disclose under § 551(2).
As to Rumseyâs fraudulent concealment claim against PBT, we conclude that
Rumsey did not advance any specific arguments about PBTâs duty to disclose. Rumsey
thus forfeited its duty-to-disclose arguments about PBT in district court. Rumsey also
has not argued plain error on appeal. Its failure to do so effectively waives the fraudulent
concealment claim as to PBT in this court. We therefore affirm the district court without
addressing the merits of Rumseyâs fraudulent concealment claim against PBT.
a. Fraudulent concealment claim against RLH
Forfeiture analysis
Defendants argue Rumsey forfeited its arguments about RLHâs duties under
Restatement § 551(2)(b) and (e). See Aplee. Br. at 23 (âRumsey . . . cannot make new
arguments on appeal regarding RLH.â). We disagree.
In its opposition to RLHâs motion for summary judgment, Rumsey explicitly
argued RLH had a duty to disclose the loan purchase agreement. Rumsey quoted
§ 551(2)(b) and (e) in full. It also provided facts to support a duty of disclosure under
§ 551(2)(b) and (e).
For example, Rumsey:
ďˇ Identified specific, âclearly ambiguousâ statements that RLH made to
Rumseyâs broker. App. at 968.
ďˇ Explained how these statements could be interpreted in multiple ways and
argued that the statements were âmisleading in light of the fact that RLH
and PBT had [already] entered into the [loan purchase agreement].â Id.
20
ďˇ Argued RLH had âan affirmative dutyâ to correct misleading
representations made in the proposed sale orders submitted on May 25,
2011 and October 4, 2011. Id. at 970.
In addition, Rumsey argued RLH should have been aware that Rumsey âwould
reasonably expect disclosure of an agreement by RLH to purchase PBTâs loanâ because
knowledge of the purchase agreement âwas necessary to enable [Rumseyâs broker], in
conjunction with the debtor and objecting creditors, to determine how to proceed with an
auction.â Id. Rumsey thus alleged disclosure was required âin light of the relationship
between [the parties], the customs of the trade[,] and other objective circumstances.â Id.
Rumseyâs opposition to Defendantâs motion for summary judgment presented
more than âvague, arguable referencesâ to § 551(2)(b) and (e). Lyons, 994 F.2d at 721.
Instead, it âactually articulatedâ § 551(2)(b) and (e) arguments, Tele-Commcâns, 104 F.3d
at 1233, and â[gave] the basis for [those] argument[s]â to the district court, United States v. Immordino,534 F.2d 1378, 1381
(10th Cir. 1976). Accordingly, Rumsey did not
forfeit its § 551(2)(b) and (e) arguments about RLH.
b. Summary judgment for RLH
The district court granted summary judgment for RLH because it found no
relationship of trust and confidence giving rise to a duty to disclose under § 551(2)(a).
As discussed above, however, § 551(2)âs disclosure duties apply only to parties that have
entered into business transactions. Here, RLH was not a party to a business transaction
with Rumsey. Although RLH made an initial offer to purchase Rumseyâs land and later
placed an unsuccessful stalking horse bid on the property, RLH did not contract to buy
21
anything from Rumsey. See, e.g., Level 3 Commcâns, 535 F.3d at 1149, 1163-64(recognizing duty to disclose between two parties who directly contracted for the sale and purchase of batteries). It also never contracted to perform services for Rumsey, and it was not part of an employment relationship with Rumsey. See, e.g., Wood v. Houghton Mifflin Harcourt Publâg Co.,589 F. Supp. 2d 1230
(D. Colo. 2008) (recognizing duty to disclose arising from contract between photographer and publisher); Berger v. Sec. Pac. Info. Sys., Inc.,795 P.2d 1380, 1382
(Colo. App. 1990) (recognizing duty to disclose
between employer and employee). Rumsey identifies no other interaction with RLH that
would constitute a business transaction.
We conclude RLH was not party to a business transaction with Rumsey. RLH
was thus not subject to the disclosure duties in § 551(2). We affirm the district courtâs
summary judgment for RLH on this alternative ground.
c. Fraudulent concealment claim against PBT
Defendants argue Rumsey forfeited all arguments about PBT because â[i]n
responding to the motions for summary judgment, Rumsey . . . focused exclusively on
RLHâs duty . . . and it was only in its Opening Brief to this Court that Rumsey . . . for the
first time assert[ed] that [PBT] also had a duty to disclose.â Aplee. Br. at 29. We agree.
Although Rumsey preserved its arguments about RLHâs duty to disclose under
§ 551(2)(b) and (e), it forfeited any arguments about PBTâs disclosure duties. In its
opposition to RLHâs motion for summary judgment, Rumsey did not make any specific
allegations about PBTâs duty to disclose. Instead, it focused exclusively on RLH and
22
supported its arguments using facts specific to RLH. For example, Rumsey argued RLH
had a duty to correct misleading statements it made to Rumseyâs broker. But Rumsey did
not identify any situations where PBT similarly made false or misleading statements that
might have triggered a disclosure duty.
Because PBT joined RLHâs motion for summary judgment, Rumsey could have
advanced arguments in district court about both Defendants in its opposition brief. It did
not. It made no arguments about PBTâs duty to disclose. Any reference to PBTâs duty
was done only in âa vague and ambiguous way,â Lyons, 994 F.2d at 722, or âin a
perfunctory and underdeveloped manner,â Tele-Commâcns, 104 F.3d at 1233. Such references are not sufficient to preserve an issue for appellate review. Rumsey thus forfeited its arguments about PBT. Rumseyâs failure to explain now how these forfeited arguments âsurvive the plain error standard waives the arguments in this court.â McKissick,618 F.3d at 1189
.
Because Rumsey forfeited its arguments about PBT and has not argued plain error
on appeal, we affirm the district court without addressing the merits of Rumseyâs
fraudulent concealment claim against PBT. See United States v. Branch, 658 F. Appâx
375, 376 (10th Cir. 2016) (unpublished) (â[B]ecause [appellant] . . . fails to argue for
plain error review[,] . . . we decline to review his claims and affirm the district court.â).
C. Section 363(n) Collusive Bidding Claim
We also affirm the grant of summary judgment on Rumseyâs § 363(n) claim. We
first consider whether Rumseyâs § 363(n) claim was time-barred under Federal Rule of
23
Civil Procedure 60(c)(1). In its complaint, Rumsey requested two alternative forms of
relief: (1) avoidance of the bankruptcy sale, or (2) damages. We conclude its § 363(n)
claim was time-barred insofar as Rumsey sought to vacate the bankruptcy sale but was
not time-barred insofar as Rumsey sought damages. We then consider whether the
district court properly granted summary judgment for Defendants on the § 363(n)
damages claim. We affirm the district court because Rumsey did not set forth specific
facts to show that Defendants intended to control the sale price at the bankruptcy
auction.10
Legal Background
a. Section 363(n)
Title 11 U.S.C. § 363(n) provides that a âtrustee may avoid a [bankruptcy] sale . . .
if the sale price was controlled by an agreement among potential bidders at such sale.â11
10
In district court, Rumsey presented its argument in opposition to summary
judgment on its § 363(n) claim in a single, short paragraph. See App. at 974. Although
its argument was sparse, we give Rumseyâs â[p]leadings and motions in the trial court . . .
a liberal reading,â Tele-Commcâns, Inc. 104 F.3d at 1233, and conclude that Rumsey
sufficiently preserved its § 363(n) claim for appellate review. Defendants do not contend
otherwise on appeal.
11
On its face, § 363(n) applies only to bankruptcy trustees. But 11 U.S.C.
§ 1107(a) clarifies that, with a few exceptions, âa debtor in possession shall have all the rights . . . and powers, and shall perform all the functions and duties . . . of a trustee.â Section 1107(a) does not include § 363(n) in its list of exceptions. Thus, a debtor in possession may act as a § 363(n) plaintiff and has the same rights, powers, and duties as a trustee for § 363(n) proceedings. See, e.g., In re Sunnyside Timber, LLC,413 B.R. 352, 358-59
(Bankr. W.D. La. 2009) (entertaining § 363(n) action brought by Chapter 11 debtors, even though separate trustees had been appointed); In re N.Y. Trap Rock Corp.,42 F.3d 747
(2d Cir. 1994) (entertaining § 363(n) action brought by Chapter 11 debtors);
24
The section also allows a trustee to ârecover from a party to [a bankruptcy sale] any
amount by which the value of the property sold exceeds the price at which such sale was
consummated.â Id. Courts have divided this claim into âthree essential elementsâ: (1)
an agreement, (2) between potential bidders, (3) that controls the price at bidding. In re
Sunnyside Timber, LLC, 413 B.R. 352, 363(Bankr. W.D. La. 2009); see also In re Sanner,218 B.R. 941, 944
(Bankr. D. Ariz. 1998). Only the third element is at issue
here.
âCongress explained that § 363(n) is âdirected at collusive bidding on property,ââ
which âindicates that Congress intended in Section 363(n) to prohibit only agreements
that are intended to control a sale price, and not all agreements having the unintended
consequence of influencing a sale price.â In re N.Y. Trap Rock Corp., 42 F.3d 747, 752 (2nd Cir. 1994). âThe influence on the sale price must be an intended objective of the agreement, and not merely an unintended consequence, for the agreement among potential bidders to come within the prohibition of § 363(n).â Id.; see also In re Sunnyside Timber,413 B.R. at 363-64
(âSection 363(n) only forecloses those agreements whose purpose is to control the sale price resulting from a section 363 sale. . . . The determining factor is the intent or purpose of the agreement.â); Ramsay v. Vogel,970 F.2d 471, 474
(8th Cir. 1992).
see also 2 William L. Norton III, Bankruptcy Law and Practice § 44:36 (3d ed. July 2019
Update) (âCode § 363(n) provides a mechanism by which trustees or debtors-in-
possession can invalidate sales of assets tainted by collusion.â).
25
b. Limitations period for 363(n) claims
As discussed above, § 363(n) provides two remedies for collusive bidding: (1)
avoidance of the bankruptcy sale, or (2) damages. These remedies have different statutes
of limitations.
In general, courts construe § 363(n) avoidance claims as motions under Federal
Rule of Civil Procedure 60(b)(3), which permits courts to ârelieve a party . . . from a final
judgment, order, or proceedingâ for âfraud . . . , misrepresentation, or misconduct by an
opposing party.â Fed. R. Civ. P. 60(b)(3); see 2 Bankruptcy Desk Guide § 15:62 (2019)
(âAn action to avoid a sale order under § 363 is essentially a request to relieve a party
from a final order under Rule 60(b)(3) . . . .â); see also In re Sunnyside Timber, 413 B.R.
at 360-61(construing partyâs § 363(n) claim as a Rule 60(b)(3) motion); In re Clinton Street Food Corp.,254 B.R. 523, 529
(Bankr. S.D.N.Y. 2000) (same). Section 363(n) avoidance claims are therefore subject to the one-year limitations period provided in Federal Rule of Civil Procedure 60(c)(1). See Fed. R. Civ. P 60(c)(1) (stating that motions under 60(b)(1)-(3) must be brought âno more than a year after the entry of the judgment or order or the date of the proceedingâ); In re Intâl Nutronics, Inc.,28 F.3d 965, 968-69
(9th Cir. 1994) (trusteeâs § 363(n) claim to avoid sale barred by Rule 60(c)(1)); 2
Bankr. Desk Guide § 15:62 (âAn action to avoid a sale order under § 363(n) . . . is . . .
subject to the one-year limitation of Rule 60(c).â).
Rule 60(c)(1)âs limitations period is âabsolute.â Tool Box, Inc. v. Ogden City
Corp., 419 F.3d 1084, 1088(10th Cir. 2005); see also In re Clinton Street Food,254 B.R. 26 at 532
(one-year limitations period is âan absolute, outside limitâ). It is not subject to
tolling, and âthe concept of reasonable time cannot be used to extend the one-year limit.â
11 Charles Alan Wright and Arthur R. Miller, Federal Practice & Procedure § 2866 (3d
ed. 2019). Thus, â[a] motion under [60(b)(3)]ââand avoidance actions under § 363(n)â
âmust be denied as untimely if made more than one year after judgment regardless of
whether the delay was reasonable.â Id. (emphasis added).12
Courts do not apply Rule 60(c)âs one-year limitations period when a § 363(n)
plaintiff seeks damages rather than avoidance or vacatur of a bankruptcy sale. See, e.g.,
In re Am. Paper Mills of Vt., Inc., 322 B.R. 84, 88-90(Bankr. D. Vt. 2004) (declining to apply Rule 60(c)âs one-year limitations period where plaintiff sought âdamages under § 363(n), but [did] not seek to vacate the Sale Orderâ). Instead, courts apply the most analogous state statute of limitations. See In re Taylorcraft Aviation Corp.,163 B.R. 734, 738
(Bankr. M.D. Pa. 1993) (applying state statute of limitations rather than Rule
60(c)(1) because the trustee sought damages but â[was] not seeking to avoid an Order
approving the saleâ). This is because âthe linkage to Rule 60 breaks down when a
12
See also Tool Box, 419 F.3d at 1088(noting an âappeal does not toll or extend the one-year time limit of Rule 60(b)â); In re Clinton Street Food,254 B.R. at 532
(noting â[no] authority suggesting that ignorance of the claims tolls the period of limitations under Fed. R. Civ. P. 60(b)(3)â); Martins v. Charles Hayden Goodwill Inn Sch.,178 F.R.D. 4, 6
(D. Ma. 1997) (applying the one-year limitations period to bar plaintiffâs 60(b)(2) claim even though plaintiff could not have discovered evidence in time to move for a new trial); Gambocz v. Ellmyer,438 F.2d 915
(3d Cir. 1971) (applying
one-year limitations period even though plaintiff alleged counsel had not notified him of
the order dismissing his case).
27
plaintiff is asserting only a claim for damages under section 363(n).â In re Sunnyside
Timber, 413 B.R. at 362. As one court explained,
The section 363(n) cases that adopt the one-year time
limit of Rule 60 are avoidance cases where the plaintiff seeks
to modify or vacate a sale order. The rationale for applying
the one-year time limit of Rule 60 in this context is that the
avoidance remedy of section 363(n) is derived from the
power to vacate an order under Rule 60, and thus must be
subject to the limitations of that rule. Even if this analysis is
correct, the linkage to Rule 60 breaks down when a plaintiff
is asserting only a claim for damages under section 363(n).
A section 363(n) damages claim does not seek to vacate or
modify the courtâs order approving the sale.
Id.
Analysis
We first describe two errors the district court committed in analyzing Rumseyâs
§ 363(n) claim. We then consider whether the one-year limitations period in Rule
60(c)(1) barred the claim. We conclude that Rule 60(c)(1) governs the § 363(n) claim
insofar as Rumsey sought to avoid the bankruptcy sale. Rumseyâs request to avoid the
sale was thus time-barred. Rumseyâs alternative claim for damages, however, was
governed by Colorado state law and was not time-barred under Rule 60(c)(1).
Finally, we consider whether the district court properly granted summary
judgment for Defendants on the § 363(n) damages claim. We conclude that it did,
because Rumsey did not set forth specific facts in opposition to the summary judgment
motion to demonstrate that Defendants intended to control the sale price at the
bankruptcy auction.
28
a. District court errors
In granting summary judgment on Rumseyâs § 363(n) claim, the district court
committed two errors. First, the court applied Rule 60(c)(1)âs one-year limitations period
to Rumseyâs entire § 363(n) claim. But it did not acknowledge that Rumsey sought two
alternative forms of relief: (1) avoidance of the bankruptcy sale or (2) damages. Rule
60(c)(1) does not apply when a § 363(n) plaintiff seeks only damages, and because
Rumsey pled in the alternative, its § 363(n) damages request was, in effect, a request for
only damages. The district court thus should not have applied Rule 60(c)(1) to Rumseyâs
§ 363(n) damages claim. See In re Sunnyside Timber, 415 B.R. at 362; In re Am. Paper
Mills, 322 B.R. at 88-90; In re Taylorcraft Aviation,163 B.R. at 738
.
Second, the district court conducted an accrual analysis and determined there was
âa genuine dispute over a fact material to . . . the date the [§ 363(n)] cause[] of action
accrued.â App. at 1482. But as explained above, Rule 60(c)(1)âs limitations period is
âabsolute,â Tool Box, 419 at 1088, and runs from the date of the entry of judgment.
Because the district court determined that Rule 60(c)(1) applied, it should not have
performed an accrual analysis.
b. Timeliness
The district court incorrectly applied Rule 60(c)(1)âs one-year limitations period to
Rumseyâs entire § 363(n) claim. But Rumsey requested two alternative forms of relief:
(1) avoidance of the bankruptcy sale or (2) damages. See App. at 494 (âPlaintiffs
requests [sic] that the sale be reversed and that the Rumsey Farm be returned to the
29
bankruptcy estate. In the alternative[,] the Plaintiffs request that PBT and RLH be found
liable for damages . . . .â (emphasis added)). We address the timeliness of each request
for relief in turn. See McGlohon v. United States, 121 F. Appâx. 854, 855 (Fed. Cir.
2005) (unpublished) (conducting separate statute of limitations analysis for alternatively-
pled claims).
First, Rumsey sought to avoid the bankruptcy sale. This request was subject to
Rule 60(c)(1)âs one-year limitations period. See, e.g., In re Intâl Nutronics, 28 F.3d at
968-69 (trusteeâs claim seeking to avoid sale time-barred under Rule 60(c)(1)). The
limitations period began to run at the âentry of the judgment or order or the date of the
proceeding.â Fed. R. Civ. P. 60(c)(1). Rumsey brought its § 363(n) claim approximately
four years after the bankruptcy court signed the Order of Sale. Its request to avoid the
bankruptcy sale was thus untimely under Rule 60(c)(1). Insofar as Rumseyâs § 363(n)
claim sought to avoid the bankruptcy sale, we affirm the district court on the alternative
ground that the claim was time-barred.
Second, Rumsey alternatively requested damages. As discussed above, courts do
not apply Rule 60(c)(1)âs limitations period when a party seeks only damages. See In re
Sunnyside Timber, 413 B.R. at 362; In re Am. Paper Mills,322 B.R. at 88-90
; In re Taylorcraft Aviation,163 B.R. at 738-39
. To the extent Rumseyâs § 363(n) claim
requested damages, it was not subject to Rule 60(c)(1)âs one-year limitations period, but
was instead subject to the most closely analogous state statute of limitations. See In re
30
Am. Paper Mills, 322 B.R. at 90 (applying state law statute of limitations where § 363(n)
trustee sought only damages).
The district court did not say which statute of limitations should apply to
Rumseyâs § 363(n) claim, and it did not determine whether the claim was timely under
state law. Instead, the court granted summary judgment for Defendants because it found
no genuine dispute of material fact as to whether Defendants intended to control the sale
price at the bankruptcy auction. We likewise do not address the timeliness of Rumseyâs
§ 363(n) damages claim, because we choose to affirm on the same ground as the district
court.
c. Summary judgment
The district court said âRumsey [did] not set forth specific facts from which a
rational trier of fact could infer that Defendants . . . entered into the Loan Purchase
Agreement with intent that the Agreement control the price.â App. at 1492. We agree
and affirm the summary judgment on Rumseyâs § 363(n) claim for damages on this
ground.
To avoid summary judgment, the nonmoving party must âset forth specific facts
showing that there is a genuine issue for trial.â Anderson, 477 U.S. at 256. Rumsey did
not do so. In its opposition to Defendantsâ motion for summary judgment, Rumsey
presented only a single paragraph to argue why summary judgment was not appropriate
on the § 363(n) claim. This paragraph read, in full:
Rumsey Land has met its burden of establishing the
existence of an agreement between potential bidders that
31
controls the sale price. The very purpose of RLHâs lawsuit
against PBT was to establish its contractual right to have the
agreed upon amount of the [loan purchase agreement] control
the sale price as between potential bidders RLH and PBT. As
RLH alleged in its lawsuit [against PBT], absent the
[agreement] and the lawsuit to enforce it, RLH might have
had to make a cash bid that would have exceeded the amount
agreed to in the [agreement]. Because of the [agreement] and
the lawsuit to enforce it, RLH never had to exceed the amount
agreed to in the [agreement].
App. at 974 (citations omitted).
Aside from these general and conclusory allegations, Rumsey offered no specific
details to support its position. For example, the record contains communications between
RLH and PBT acknowledging that âcollusive bidding is inappropriate,â id. at 949, and
expressing the partiesâ mutual desire to avoid âthe appearance or impression of any sort
of impropriety,â id. at 1019. Rumsey provided no evidence to contradict these
communications or to show that, despite their caution, Defendants in fact intended to
control the sale price. Rumsey also did not provide evidence showing â[t]he influence on
the sale price [was] an intended objective of the agreement, and not merely an unintended
consequence.â In re N.Y. Trap Rock, 42 F.3d at 752 (emphasis added). Nor did it show
that the âpurpose of RLHâs lawsuit . . . was to establish its contractual right to . . . control
the sale price as between potential bidders RLH and PBT.â Id. Instead, Rumsey offered
only brief, vague, and general allegations, unsupported by facts or evidence. It thus
32
failed to carry its burden of âset[ting] forth specific facts showing that there is a genuine
issue for trial.â Anderson, 477 U.S. at 256.13
In district court, Rumsey did not identify evidence in the record to support its
position. Although the district court âmay âgo beyond the referenced portionsâ of the
plaintiffsâ evidentiary materials, â[it] is not required to do so.ââ Bird v. Regents of N.M.
State Univ., 619 F. Appâx 733, 740(10th Cir. 2015) (unpublished) (quoting Adler,144 F.3d at 672
). On appeal, we also âordinarily limit[] our review to the materials adequately brought to the attention of the district court by the parties.â Adler,144 F.3d at 671
. â[W]e, like the district courts, have a limited and neutral role in the adversarial process, and are wary of becoming advocates who comb the record of previously available evidence and make a partyâs case for it.âId. at 672
; see also SIL-FLO, Inc. v. SFHC, Inc.,917 F.2d 1507, 1513
(10th Cir. 1990) (a court of appeals âneed not sift
through the record to find . . . evidenceâ in the absence of citations in a partyâs brief
(quotations omitted)). If there was evidence to support Rumseyâs § 363(n) claim, it was
Rumseyâs responsibilityânot the courtâsâto identify it.
13
We conduct our summary judgment âreview from the perspective of the district
court at the time it made its ruling, ordinarily limiting our review to the materials
adequately brought to the attention of the district court by the parties.â Birch v. Polaris
Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). We note, however, that even on
appeal, Rumsey does not provide specific facts or evidence to support its § 363(n) claim.
In its opening brief, Rumsey discusses its § 363(n) allegations in three brief paragraphs,
which contain broad and conclusory allegations about âRLHâs and [PBTâs] specific
intent to control the price.â Aplt. Br. at 22. But Rumsey provides no specific facts or
evidence to show that RLH and PBT in fact acted with this intent.
33
Because Rumsey did not provide any facts or evidence to demonstrate an issue of
material fact on its § 363(n) claim, it failed to âset forth specific facts showing that there
is a genuine issue for trial.â Anderson, 477 U.S. at 256. The district court did not err in
granting summary judgment for Defendants on Rumseyâs § 363(n) claim for damages.
We affirm.
III. CONCLUSION
We affirm the district courtâs grant of summary judgment for Defendants.
34