Weiszmann v. Kirkland and Ellis, Civ. A. No. 89-B-534.

• Decision Date: 09 March 1990
• Docket Number: Civ. A. No. 89-B-534.
• Citation: 732 F. Supp. 1540
• Parties: Ronald F. WEISZMANN, Plaintiff, v. KIRKLAND AND ELLIS, a partnership, et al., Defendants.
• Court: U.S. District Court — District of Colorado

732 F. Supp. 1540

Ronald F. WEISZMANN, Plaintiff, v. KIRKLAND AND ELLIS, a partnership, et al., Defendants.

Civ. A. No. 89-B-534.

United States District Court, D. Colorado.

March 9, 1990.

COPYRIGHT MATERIAL OMITTED

Ronald F. Weiszmann, Golden, Colo. and Madeira Beach, Fla., pro se.

Bruce Featherstone, Andrew J. Petrie and Erich Bethke, Kirkland & Ellis, Arthur H. Downey and John R. Sleeman, Jr., Downey & Douglas, P.C., James K. Green and Andrea B. Stutheit, Montgomery, Green, Jarvis, Kolodny & Markusson, and Martin D. Buckley and William D. Burding, Jr., Berenbaum & Weinshienk, P.C., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Plaintiff, Ronald F. Weiszmann (Weiszmann), an attorney licensed in Colorado, filed this action pro se under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961-1968 and 28 U.S.C. §§ 1331, 1332, 1334(b). The matters before me are: 1) defendants Oakbrook Corporation (Oakbrook) and Tom Klein's (collectively the Oakbrook defendants) motion to dismiss plaintiff Ronald F. Weiszmann's (Weiszmann) second, third, and eighth claims for relief and motion for attorneys fees; 2) defendants Kirkland and Ellis, Andrew J. Petrie, and Erich Bethke's (collectively the Kirkland defendants) motion to dismiss Weiszmann's first, second, third, sixth, and seventh claims for relief and motion for more definite statement regarding the eighth claim for relief, or alternatively, motion for more definite statement as to all of Weiszmann's claims for relief; 3) defendants Tesoro Financial Group, Inc. (Tesoro) and Americity Federal Savings Bank's (Americity) motion to dismiss Weiszmann's claims against them. Having reviewed the motions, the briefs filed in support and in opposition to them, the Complaint, and the applicable case law, I determine that oral argument would not assist me in rendering a decision on the pending issues. The motions will be granted in part and denied in part.

I. Facts.

Weiszmann, as the managing partner of 7 Jackson Building Partnership (7 Jackson), signed a note payable to Tesoro. When Weiszmann defaulted on the note, Kirkland and Ellis, on Tesoro's behalf, filed a suit to foreclose and collect on a guaranty against Weiszmann and 7 Jackson. The action was filed on February 4, 1988 in Jefferson County District Court and was removed to Federal District Court. On April 21, 1988, the Kirkland defendants also filed an involuntary bankruptcy petition against Weiszmann on Tesoro's behalf.

At this time and until June 1988, Weiszmann's wife was an Oakbrook employee. She was "the highest level Colorado representative". Kirkland and Ellis and Andrew J. Petrie represented Oakbrook in "legal matters". In April 1988, these legal matters were "of extremely serious concern" to Weiszmann's wife and "had her fearing for her life."

In January 1988, Weiszmann and his wife separated because of marital difficulties. One month later they attempted a reconciliation and in April 1988 they took a vacation.

In his complaint, Weiszmann asserts eight claims for relief. He alleges that he has suffered severe pain and mental anguish, humiliation, embarrassment, public ridicule, losses of personal and real property, and interference with his personal and professional life. Weiszmann seeks compensatory, special, and punitive damages, and statutory penalties for the RICO claims.

The defendants move to dismiss Weiszmann's claims for failure to state a claim for relief pursuant to Fed.R.Civ.P. 12(b)(6). The purpose of a Rule 12(b)(6) motion is to test the formal sufficiency of the claim for relief. Wooldridge Homes, Inc. v. Bronze Tree, Inc., 558 F.Supp. 1085, 1089 (D.Colo. 1983). In evaluating the sufficiency of the complaint, all well-pleaded facts, as distinguished from conclusory allegations, must be taken as true. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). All reasonable inferences must be liberally construed in plaintiff's favor. Id. "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). So long as the plaintiff may offer evidence to support a legally recognized claim for relief, the motion to dismiss should be denied. Id.

II. First Claim for Relief.

Weiszmann's first claim for relief against the Kirkland defendants is termed "Ethics Violations." Weiszmann alleges that the Kirkland defendants engaged in various unspecified "oppressive and threatening" acts and statements "calculated to coerce Weiszmann's payment" of an unidentified debt. These actions and statements allegedly constitute intentional interference with Weiszmann's marital relationship and violated Colorado Disciplinary Rules DR 1-102, DR 4-101(B)(2) and (B)(3), DR 5-105, DR 7-101(A)(3), 7-102(A)(8), and Colo.R.Civ.P. 8.

Disciplinary rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. See Code of Professional Responsibility (the Code). Responsibility for enforcing the Code lies with the Colorado Supreme Court. Colo.R.Civ.P. 241.1(b). Disciplinary rules are not designed to be a basis for civil liability and they do not create a private cause of action. Bickel v. Mackie, 447 F.Supp. 1376, 1383-84 (N.D. Iowa 1978), aff'd, 590 F.2d 341 (8th Cir. 1978); TEW v. Arky, Freed, Stearns, et al., P.A., 655 F.Supp. 1573, 1575 (S.D.Fla. 1987), aff'd, 846 F.2d 753 (11th Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 142, 102 L.Ed.2d 114 (1988). Nor does a violation of the Code constitute negligence per se. Miami International Realty Co. v. Paynter, 841 F.2d 348, 352 (10th Cir.1988).

Similarly, the Colorado Rules of Civil Procedure govern civil litigation in the Colorado state courts. Hence, the Colorado state courts enforce those rules. Violation of a rule of civil procedure does not create a private cause of action. Accordingly, Weiszmann's first claim for relief for ethics violations based upon the Kirkland defendants' alleged violations of State disciplinary rules and rules of civil procedure must be dismissed for failure to state a claim for relief.

III. Second and Third Claims for Relief.

In his second claim for relief, "statutory violations," Weiszmann asserts that the Kirkland and Oakbrook defendants' "oppressive and threatening" efforts to collect their client's debt, violated C.R.S. §§ 14-2-102 and 14-2-113 (the Uniform Marriage Act) and constitute negligent interference with marital relations. The third claim for relief, stated against these same defendants, alleges intentional interference with the Weiszmann's marital contractual relationship. Defendants contend that these claims should be dismissed because there is no private cause of action for violation of the Uniform Marriage Act and the claims are barred by section 13-20-202, C.R.S. (1987 Repl.Vol. 6A) (the heart balm statute). I agree.

Weiszmann relies on the following statutes:

§ 14-2-102. Purposes—rules of construction. (1) This part 1 shall be liberally construed and applied to promote its underlying purposes.

(2) Its underlying purposes are:

(a) To strengthen and preserve the integrity of marriage and to safeguard meaningful family relationships;

(b) To provide adequate procedures for the solemnization and registration of marriage.

§ 14-2-113. Violation—penalty. Except as provided in § 14-2-109(1), any person who knowingly violates any provision of this part (1) is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars.

These statutes neither expressly nor impliedly create a private cause of action. Furthermore, where, as here, a statute creates rights and duties unknown at common law and provides for a particular means of enforcement, the statutory remedy is exclusive. See Silverstein v. Sisters of Charity, 38 Colo.App. 286, 559 P.2d 716, 718 (1976).

Any allegation that violation of the Uniform Marriage Act constitutes negligence per se is without merit. Negligence per se serves to establish the existence of the defendants' breach of a legally cognizable duty owed to the plaintiff. Largo Corp. v. Crespin, 727 P.2d 1098, 1107 (Colo.1986). To recover under the doctrine of negligence per se, plaintiff must show that defendants violated the statutory standard and that the violation was a proximate cause of sustained injuries. Id. Before the statutory standard is used to prove negligence, however, a plaintiff must show that he is a member of the class the statute was intended to protect, and that the injuries he suffered were of the kind the statute was enacted to prevent. Id. The type of injury Weiszmann allegedly suffered is not the kind of injury the Uniform Marriage Act was enacted to prevent, and, as a matter of law, Weiszmann's second claim for relief must be dismissed. Weiszmann argues that his second and third claims for relief "emphasize existing rights which were not eliminated by the so called `Heartbalm' statutes." That statute provides that: "All civil causes of action for breach of promise to marry, alienation of affections, criminal conversation, and seduction are hereby abolished." Section 13-20-202, C.R.S. (1987 Repl.Vol. 6A). Interpreting this statute, the Colorado Supreme Court recently held that:

... We should not read the statute so broadly as to preclude any cause of action involving extramarital affairs, regardless of whether a claim for relief which is not included in section 13-20-202 is enumerated. In our view, the heart balm statute only precludes those causes of action specifically listed in the statute. As we held in Goldberg v. Musim, 162 Colo. 461, 427 P.2d 698 (1967), a plaintiff will not be able to mask one of the abolished actions behind a common law label. However, if the essence of the complaint is directed

...