                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      September 26, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JOHN ALEXANDER,

             Plaintiff-Appellant,

v.                                                         No. 12-1054
                                                 (D.C. No. 1:11-CV-02918-RPM)
KENNETH ADELBERG,                                           (D. Colo.)

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


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


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

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

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

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

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


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Specifically, the court held that Colo. Rev. Stat. § 7-90-913(b) was inapplicable to

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

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

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

proceeding after that court ordered dissolution under statutory authority for judicial

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

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

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

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

court summarily denied.

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

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

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

from liability.

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

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

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

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

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

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

plaintiff pleads factual content that allows the court to draw the reasonable inference


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that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

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

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

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

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

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

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

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

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

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

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

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

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

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


                                               Entered for the Court


                                               Wade Brorby
                                               Senior Circuit Judge




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