Opinion
Civil Action 1:20-cv-01236-RM-SKC
12-13-2021
RAYMOND E. CLARK, and BETTYJUNE CLARK, Plaintiffs, v. HYATT HOTELS CORPORATION, et al., Defendants.
RECOMMENDATION RE: DEFENDANTS' MOTIONS TO DISMISS [DKTS. 139 & 146]
S. Kato Crews, United States Magistrate Judge
When Plaintiffs Raymond and Bettyjune Clark visited the Hyatt Place Boulder (Hotel), they were allegedly exposed to carbon monoxide due to a faulty boiler and ventilation system in the Hotel. [Dkt. 112] Based on their alleged injuries arising from the exposure, Plaintiffs filed this lawsuit naming several Hyatt entities as Defendants. [Id.] Hyatt Place Franchising has filed a motion to dismiss the claims against it based on Plaintiffs' purported failure to state a claim upon which relief could be granted. [Dkt. 139.] In addition, NF II Boulder Op CO, LLC, HP Boulder LLC, and Noble-Interstate Management Group, LLC (collectively “Hotel Defendants”) filed a partial motion to dismiss Plaintiffs' third and fourth causes of action for failure to state a claim. [Dkt. 146.]
The Court uses “[Dkt.]” to refer to specific docket entries in CM/ECF.
The Motion was also filed on behalf of Noble Investment Group and Interstate Hotels & Resorts, Inc. The Court, however, has already recommended these Defendants be dismissed for lack of personal jurisdiction. [Dkt. 255.]
Plaintiffs filed a Response in opposition to Hyatt Place's Motion. [Dkt. 80.]They also filed a Response to the Hotel Defendants' Motion; however, this Response purports to incorporate by reference portions of their Hyatt Place Response. [Dkt. 83.] But Plaintiffs did not request, nor were they given, permission to do so as required by Judge Moore's practice standards. To be sure, the Court has reviewed the Response to the Hotel Defendants' Motion, and given its structure and the “incorporated” arguments-which require the Court to cross-reference a separate brief made on behalf of a different party-it is entirely unusable in evaluating the merits of the Hotel Defendants' arguments. The Response to the Hotel Defendants' Motion, therefore, is STRICKEN and the Court has not considered it for this Recommendation.
Plaintiffs received permission from District Judge Raymond P. Moore to rely on their original response. [Dkt. 151.] Hyatt Place's reply can be found at Dkt. 95.
While the Court has not considered Plaintiffs' Response to the Hotel Defendants' Motion, the Court notes Hyatt Place's arguments alone warrant dismissal of the third and fourth claims in their entirety.
The Court has reviewed both Motions, the remaining related briefing, and applicable law. No. hearing is necessary. For the following reasons, the Court RECOMMENDS Hyatt Place's Motion be GRANTED IN PART and DENIED IN PART, and the Hotel Defendants' Motion be GRANTED.
STANDARD OF REVIEW
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). The Court accepts the well-pleaded facts as true and views the allegations in the light most favorable to the non-movants. Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010). But the Court is not “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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.” Id. at 678 (internal quotation marks omitted).
The Twombly/Iqbal pleading standard requires courts take a two-prong approach to evaluating the sufficiency of a complaint. Id. at 678-79. The first prong requires the court to identify which allegations “are not entitled to the assumption of truth” because, for example, they state legal conclusions or merely recite the elements of a claim. Id. at 678. The second prong requires the court to assume the truth of the well-pleaded factual allegations “and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. “Accordingly, in examining a complaint under Rule 12(b)(6), [courts] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). The standard is a liberal one, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.” Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
ANALYSIS
A. Colorado Premises Liability Act (claim one)
Hyatt Place seeks dismissal of Plaintiffs' premises liability claim arguing it is not a landowner as defined under the statute. Under the Act, the “definition of a ‘landowner' is broader than the term might suggest.” Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1265 (Colo.App. 2010); see also Colo. Rev. Stat. § 13-21-115 (1) (“‘landowner' includes, without limitation, an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property”). Looking to the four corners of the Second Amended Complaint, Plaintiffs allege Hyatt Place:
. had the authority to veto the Hotel's choice of management company [Dkt. 112 at ¶65];
. required the Hotel Defendants to follow a strict set of operating procedures [Id. at ¶69];
. had the right to, and did, conduct scheduled and unscheduled inspections to determine whether the facility met Hyatt standards, and (if necessary) to require the Hotel Defendants to perform repairs or maintenance to the Hotel [ Id. . at ¶¶70-71];
. controlled whether the Hotel boilers were properly serviced [Id. at ¶72];
. controlled the design of the Hotel, including the boilers, exhaust vents and pipes, and external vents and air intake [Id. at ¶73]; and
. controlled whether the Hotel installed carbon monoxide detectors in the boiler room and guest rooms [Id. at ¶74].
Accepting these facts as true and construing them in the light most favorable to Plaintiffs, the Court has little trouble concluding Plaintiffs have plausibly alleged Hyatt Place was a landowner under the Act. The foregoing allegations establish Hyatt Place had legal control over the conditions (boiler maintenance, building design, installation of alarms) on the property that form the basis of Plaintiffs' claims. Based on this straightforward conclusion, the Court declines to look beyond the Second Amended Complaint to consider Hyatt Place's attachments, which, at any rate, support arguments more appropriate for summary judgment motions. See Prager v. LaFaver, 108 F.3d 1185, 1189 (10th Cir. 1999) (a court may in its discretion decline to consider documents attached to a motion to dismiss even if it could properly do so). The Court recommends Hyatt Place's motion to dismiss the premises liability claim be denied.
Even assuming the attached franchise agreement is central to Plaintiffs' claim, when a court takes judicial notice of documents, those documents may only be considered to show their contents, not to prove the truth of the matters asserted therein. Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). In this instance, Hyatt Place seeks to use the franchise agreement for the truth asserted therein, to wit, it is not legally responsible for the conditions of the Hotel.
B. Negligence (claim two)
Hyatt Place argues Plaintiffs' negligence claim must be dismissed because the Colorado Premises Liability Act is Plaintiffs' exclusive remedy. [Dkt. 139 at pp.8-9.] In Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004), the Colorado Supreme Court concluded that the CPLA's “express, unambiguous language . . . evidences the [Colorado] General Assembly's intent to establish a comprehensive and exclusive specification of the duties landowners owe to those injured on their property.” 103 P.3d at 328. The statute was intended to completely “occupy the field and supersede the existing law in the area.” Id. “[T]he plain language preempts prior common law theories of liability, and establishes the statute as the sole codification of landowner duties in tort.” Id.
Plaintiffs contend they are permitted to assert a negligence claim in the alternative to their premises liability claim. Citing Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260 (Colo.App. 2010) and Andrade v. Johnson, 2016 COA 147, 409 P.3d 582, Plaintiffs argue Hyatt Place has not admitted it's a landowner, such that the CPLA applies, and until Hyatt Place's status is determined, they may pursue a negligence claim. [Dkt. 80 at pp.7-8.] Both cases are distinguishable.
In Wycoff, the plaintiff attended a church event called “Winterama 2005.” The church contracted with a third party to hold the event at a Colorado ranch. While participating in an activity, the plaintiff was seriously injured and brought negligence and premises liability claims against the church related to her injuries. In addressing the church's argument that it was not a landowner for purposes of the premises liability act, the Colorado Court of Appeals observed, even if the church was not a landowner, it would nevertheless have owed the plaintiff a duty of care. 251 P.3d at 1266. To be sure, the plaintiff (a minor) was a participant in a church-sponsored event; thus, the church owed her an additional common-law duty of care different from any duty created by statute. Id.
Similarly, in Andrade, the plaintiff-who was injured after slipping and falling on a public sidewalk-filed suit (asserting statutory and common law negligence claims) against the owner of the property adjoining the sidewalk. In that case, the plaintiff was able to maintain a negligence claim because a city ordinance created a separate duty for property owners to maintain the sidewalks abutting their properties. 409 P.3d at 591.
Based on the foregoing, to plead an alternative negligence claim, Plaintiffs must allege facts supporting a finding that Hyatt Place owed them a duty separate from those which landowners owe their entrants. But Plaintiffs have not done so. To the contrary, Plaintiffs' theory of negligence is based on the allegation Hyatt Place owns the Hotel. [Dkt. 112 at ¶153.] And the alleged negligent acts and omissions are those described in Plaintiffs' claim for premises liability, namely that Hyatt Place did not keep the premises in a safe condition for their invitees. [Id. at ¶149 (referencing ¶141(a)-(p)).] Accepting these allegations as true, Plaintiffs have plausibly alleged Hyatt Place is a landowner and Plaintiffs' may recover against Hyatt Place pursuant to the statute only and not under any other theory of negligence. Lombard v. Colorado Outdoor Educ. Ctr., Inc., 187 P.3d 565, 574 (Colo. 2008). Stated conversely, Plaintiffs have failed to allege facts to plausibly allege any common law duty separate and apart from Hyatt Place's statutory duty. Consequently, the Court recommends Plaintiffs' negligence claim against Hyatt Place be dismissed.
In their Amended Complaint, Plaintiffs allege Hyatt Place is an innkeeper, and citing Westin Operator, LLC v. Groh, 2015 CO 25, ¶32, 347 P.3d 606, 613, contend this gives rise to a duty to exercise reasonable care to protect them from harm. In Westin, the defendant hotel evicted the intoxicated plaintiff, who was then injured after leaving the premises. In determining whether the hotel owed the plaintiff a duty, in the context of a lawful eviction, the Colorado Supreme Court discussed the factors a court must consider in determining the existence and contours of a duty. Those factors are: (1) the risk involved in the defendant's conduct; (2) the foreseeability and likelihood of injury weighed against the social utility of the defendant's conduct; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant. Id. at 614. But, as previously discussed, Plaintiffs have not alleged any acts on the part of Hyatt Place that would implicate a duty separate and apart from their duties as alleged landowners. Thus, their allegation regarding Hyatt Place's status as an innkeeper is an undeveloped placeholder theory without factual allegations to support it.
The Hotel Defendants have not sought dismissal of the negligence claim against them.
C. Colorado Consumer Protection Act (claim three)
Plaintiffs allege Hyatt Place and the Hotel Defendants engaged in deceptive trade practices in violation of the Colorado Consumer Protection Act, Colo. Rev. Stat. § 6-1-105. [Dkt. 112 at ¶157.] They contend Defendants (1) represented that their services or property were of a particular standard or quality when they knew or should have known they were not, and (2) failed to disclose material information concerning their services or property which was known at the time of the advertisement. [Id. at ¶158(a), (b).]
The CCPA was “enacted to regulate commercial activities and practices, which because of their nature, may prove injurious, offensive, or dangerous to the public.” Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 146 (Colo. 2003). Specifically, the CCPA works to deter and punish businesses for consumer fraud. Id.
To prove a private cause of action under the CCPA, a plaintiff must show:
(1) the defendant engaged in an unfair or deceptive trade practice; (2) that the challenged practice occurred in the course of defendant's business, vocation or occupation; (3) that it significantly impacts the public as actual or potential consumers of the defendant's goods, services, or property; (4) that the plaintiff suffered the injury in fact to a legally protected interest; and (5) that the challenged practice caused the plaintiff's injury.HealthONE of Denver, Inc. v. UnitedHealth Grp. Inc., 805 F.Supp.2d 1115, 1120 (D. Colo. 2011) (citing Rhino Linings, 62 P.3d at 146-47). A plaintiff must satisfy all elements of the claim, or it fails as a matter of law. Id. (citing Mayhew v. Cherry Creek Mortgage Co., No. 09-cv-00219-PAB-CBS, 2010 WL 935674, at *14 (D. Colo. March 10, 2010)).
“In addition, a plaintiff must meet the heightened pleading requirements pursuant to Rule 9(b) to prove a deceptive or unfair trade practice.” Id. at 1120-21. This standard requires 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.” Koch v. Koch Indus., Inc., 203 F.3d 1202, 1236 (10th Cir. 2000) (citation omitted). With respect to claims based on a fraudulent omission, a plaintiff must identify “the particular information that should have been disclosed, the reason the information should have been disclosed, the person who should have disclosed it, and the approximate time or circumstances in which the information should have been disclosed.” Martinez v. Nash Finch Co., 886 F.Supp.2d 1212, 1216 (D. Colo. 2012) (citation omitted).
1. Misrepresentations
Plaintiffs' claims regarding affirmative misrepresentations are not pleaded with particularity. Plaintiffs neither allege specific false representations made by any of the Defendants, nor when or where the alleged representations occurred. Instead, Plaintiffs allege Defendants represented “expressly on its website and by implication, that the Hotel was safe for sleeping, spending considerable time, relaxing, working, and exercising.” [See Dkt. 112 at ¶158(c), (d).] But Plaintiffs allege no specific false statements, or when they were made, other than to generally reference Defendants' website. The lack of particularity here is further demonstrated by the fact that Plaintiffs have named seven separate Defendants in this claim but have provided no indication which Defendants' website(s) contained the allegedly false representations, to say nothing of any actual web addresses.
And even if the allegedly false representation was simply, “the Hotel is safe for sleeping, spending considerable time, relaxing, working, and exercising, ” the Court concludes it would not be actionable under the CCPA because “the statement [is] ‘extremely general' and not ‘a specific representation of fact subject to measure.'” Warner v. Ford Motor Co., No. 06-cv-02443-JLK-MEH, 2008 WL 4452338, at *8 (D. Colo. Sept. 30, 2008) (citing Park Rise Homeowners Association v. Resource Construction Co., 155 P.3d 427, 435-436. (Colo.App. 2006)); see also Koch v. Kaz USA, Inc., No. 09-cv-02976-LTB-BNB, 2011 WL 2610198, at *5 (D. Colo. July 1, 2011) (the statement “Safety Matters, ” taken in context, does not constitute a deceptive trade practice as a matter of law).
Moreover, Plaintiffs refer to Hyatt Place and the Hotel Defendants en masse. Their “failure to distinguish between [the Defendants] causes their allegations to fall short of the specificity requirements of Rule 9(b) because the identity of the party making false statements must be pled with particularity.” Carrado v. Daimler AG, No. 17-cv-3080-WJM-SKC, 2018 WL 4565562, at *5 (D. Colo. Sept. 24, 2018) (citing Koch, 203 F.3d at 1236). Consequently, the Court concludes Plaintiffs have failed to allege sufficient facts to support their CCPA claim on a theory of false representations.
2. Omissions
For their claim based on omissions, Plaintiffs allege Defendants knowingly concealed from the Hotel's guests that they were exposed to dangerous levels of carbon monoxide despite being instructed to do so by the fire department, and concealed they failed to maintain the Hotel's boilers or install required carbon monoxide alarms. [Dkt. 112 at ¶158(e)-(g).]
Plaintiffs also allege Defendants failed to disclose that they were not prepared to protect the health of their guests. [Dkt. 112 at ¶158 (h).] But this allegation is vague and seems subsumed within Defendants' alleged failures to disclose a lack of boiler maintenance or carbon monoxide alarms. In addition, Plaintiffs allege several failures sounding in negligence, such as failing to implement reasonable health and safety measures and failing to maintain the boiler. [Id. at ¶158(i)-(m).] To the extent these allegations are meant to be individually actionable under the CCPA, they must fail because they do not fall within the definitions of deceptive trade practices under the statute.
As to Defendants alleged failure to inform the Hotel's guests they were exposed to carbon monoxide, Plaintiffs have failed to establish this omission is actionable under the CCPA. Under the statute, a party engages in a deceptive trade practice when it “[f]ails to disclose material information concerning goods, services, or property which information was known at the time of an advertisement or sale if such failure to disclose such information was intended to induce the consumer to enter into a transaction.” Colo. Rev. Stat. § 6-1-105(1)(u). But here, there are no allegations Defendants omitted this information at the time of any advertisement or sale, and no allegations to plausibly establish the timing of Defendants' knowledge of carbon monoxide exposure at the time of some applicable advertisement or sale. Further, there are no allegations this omission was intended to induce any consumers into a transaction. To be sure, the guests entered into a transaction with the Hotel for lodging prior to the alleged omission regarding carbon monoxide exposure.
Plaintiffs' remaining allegations-the failure to disclose insufficient boiler maintenance or the lack of carbon monoxide detectors-are similarly deficient. While Plaintiffs reference the information that should have been disclosed, they do not explain which of the Defendants should have disclosed it nor the time or circumstances under which it should have been disclosed. Martinez, 886 F .Supp.2d at 1216.
Even assuming the above allegations were sufficient under the statute and the Rule 9 pleading standard, Plaintiffs have failed to plausibly allege a public impact. The relevant factors the Court must consider in determining “whether a challenged practice significantly impacts the public within the context of a CCPA claim” are: “(1) the number of consumers directly affected by the challenged practice, (2) the relative sophistication and bargaining power of the consumers affected by the challenged practice, and (3) evidence that the challenged practice has previously impacted other consumers or has the significant potential to do so in the future.” Rhino Linings, 62 P.3d at 149. Here, however, the Second Amended Complaint contains no allegations that Defendants (via their omissions) induced other consumers into patronizing the Hotel. Indeed, the pleading only states that Plaintiffs relied on Defendants' omissions. [Dkt. 112 at ¶161.] Thus, the Court concludes the “allegations are insufficient to state a claim because they are ‘bare bones' and ‘only sketch[ ] the elements of a CCPA offense.'” Van Rees v. Unleaded Software, Inc., 2016 CO 51, ¶ 26, 373 P.3d 603, 609 (quoting Crowe v. Tull, 126 P.3d 196, 211 (Colo. 2006)). Plaintiffs' CCPA claim should be dismissed.
D. Medical Monitoring (claim four)
In their fourth claim, Plaintiffs allege because of their exposure to carbon monoxide, they are now at a greater risk for latent diseases, including dementia. [Dkt. 112 at ¶¶167-69.] They contend all Defendants should be required to establish a medical monitoring program. [Id. at ¶173.] Hyatt Place and the Hotel Defendants contend Colorado courts have never recognized a claim for medical monitoring, and therefore, this Court should decline to do so. [Dkts. 139 at pp. 10-14; 146 at pp.11-13.] But the Court need not engage in this analysis because, even accepting arguendo a claim for medical monitoring is viable under Colorado jurisprudence, Plaintiffs' allegations are too conclusory to support such a claim.
The Court notes Defendants have not offered much in the way of argument as to why this Court should not follow District Judge Jackson's exquisitely researched and well-reasoned opinion in Bell v. 3M Co., 344 F.Supp.3d 1207 (D. Colo. 2018). In Bell, Judge Jackson undertook an extensive examination of the law in Colorado, the Tenth Circuit, and other circuits and jurisdictions, as well as Supreme Court precedent, to conclude Colorado would (in the right case) recognize a claim for medical monitoring. Id. at 1214-25.
The parties agree a claim for medical monitoring requires a plaintiff to establish
(1) the plaintiff has suffered a significant exposure to a hazardous substance through the tortious actions of the defendant; (2) as a proximate result of this exposure, the plaintiff suffers from an increased risk of contracting a serious latent disease; (3) that increased risk makes periodic diagnostic medical examinations reasonably necessary; and (4) monitoring and testing procedures exist which make the early detection and treatment of the disease possible and beneficial.Bell, 344 F.Supp.3d at 1225 (citing Cook v. Rockwell Int'l Corp., 755 F.Supp. 1468, 1471 (D. Colo. 1991)).
The Court concludes Plaintiffs have plausibly alleged significant exposure to carbon monoxide. But they have not satisfactorily pleaded that a monitoring procedure: (1) exists that makes early detection of disease possible; (2) is different from the monitoring normally recommended in the absence of exposure; and (3) is reasonably necessary according to contemporary scientific principles. Id. at 1226 (citing Redland Soccer Club v. Dep't of the Army, 696 A.2d 137, 145-46 (Pa. 1997)). Here, Plaintiffs first allege “early detection and treatment are medically necessary . . . for the myriad cognitive, affective, neurological and somatic effects associated with carbon monoxide poisoning.” [Dkt. 112 at ¶170.] This allegation is problematic because it does not specify any specific latent illnesses for which monitoring is required; but rather, it leaves the field of potential maladies open to the imagination. The only disease Plaintiffs specifically contemplate is dementia [Id. at ¶169], and therefore, the Court considers the remaining allegations only with regard to this specific illness.
The Court notes in Bell, the plaintiffs cited an EPA study for their contention they were at an increased risk of harm. 344 F.Supp.3d at 1225-26. Judge Jackson concluded that while the EPA study might ultimately be insufficient to support the plaintiffs' claim, it was enough to allege an increased risk. Here, Plaintiffs' allegation regarding their increased risk of developing dementia is just that, a simple statement that their risk is increased. [Id. at ¶86.] Without additional support, the Court is not persuaded such an allegation is anything more than conjecture.
Plaintiffs contend they require physical, rehabilitative, and neuropsychological clinical examination and evaluation; neuroradiological imaging and other diagnostic testing; and “other evaluation and treatment by medical specialists, as recommended after evaluation and consult by physical medicine & rehabilitation, neuropsychology, and neuroradiological providers.” [Id. at ¶171(a)-(d).] These allegations are also deficient because they are vague and conclusory, and they fail to identify any particular medical monitoring procedures that are reasonable and necessary to detect dementia. And, perhaps more importantly, the Hotel Defendants are correct Plaintiffs have not provided any facts that these alleged testing regimens would be able to distinguish between dementia caused by carbon monoxide exposure and dementia that would have manifested even without exposure. Like Judge Jackson, and Senior District Judge Babcock in Cook, the Court concludes “in a case of this magnitude, a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.” Bell, 344 F.Supp.3d at1227 (citing Cook, 755 F.Supp. at 1475). Consequently, the Court recommends Plaintiffs' claim for medical monitoring be dismissed.
Based on the foregoing, the Court RECOMMENDS Defendant Hyatt Place's Motion [Dkt. 139] be GRANTED IN PART and DENIED IN PART. The Court FURTHER RECOMMENDS Defendants NF II Boulder Op CO, LLC, HP Boulder LLC, and Noble-Interstate Management Group, LLC's Motion [Dkt. 146] be GRANTED.
Be advised the parties have 14 days after service of this recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within 14 days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).