ORDER

PHILIP A. BRIMMER, District Judge.

This matter is before the Court on the Recommendation of United States Magistrate Judge (the "Recommendation") [Docket No. 106]. The magistrate judge recommends that the Court grant plaintiff's motion for default judgment pursuant to Fed. R. Civ. P. 16(f) [Docket No. 96] against defendant Marvin Bruce Neer. The Recommendation states that objections to the Recommendation must be filed within fourteen days after its service on the parties. See 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on April 20, 2012. No party has objected to the Recommendation.

In the absence of an objection, the district court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) ("[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings"). In this matter, the Court will review the Recommendation to satisfy itself that there is "no clear error on the face of the record."1 Fed. R. Civ. P. 72(b), Advisory Committee Notes. Having engaged in that review, the Court will accept the recommendation that default judgment enter against Mr. Neer.

The Recommendation proceeded to address the "nature of the default judgment" that should enter. In its amended complaint, plaintiff summarized that it seeks

Docket No. 60 at 1-2. Plaintiff brings claims against Mr. Neer for breach of contract, fraudulent misrepresentation, fraudulent concealment, and civil theft.2 In a March 29, 2012 order, the Court granted plaintiff leave to elect its remedies and address the potential implications of Colorado's economic loss rule. In response, plaintiff elected to affirm the contract with Mr. Neer so as to proceed on its breach of contract claim. Plaintiff also seeks to proceed on its claims for fraudulent misrepresentation, fraudulent concealment, and civil theft, arguing that Colorado's economic loss rule does not preclude the claims under the circumstances presented here. The Recommendation agreed.

As the Court noted in its March 29 order, the Colorado Supreme Court held in Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256 (Colo. 2000), "that a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such breach absent an independent duty of care under tort law." Id. at 1264.3 To determine whether a separate tort action may proceed, courts must identify "the source of the duties of the parties." Id. at 1262. The Town of Alma court "recognized that certain common law claims that sound in tort and are expressly designed to remedy economic loss may exist independent of a breach of contract claim." Id. at 1263 (citing cases arising out of common law fraud and negligent misrepresentation) (emphasis added).4

The Court need not determine whether the economic loss rule bars plaintiff's fraudulent concealment and fraudulent misrepresentation claims. As the Recommendation notes, plaintiff seeks the difference between the contract price paid to Mr. Neer ($559,800) and the amount it received upon sale of the noncomplying engines ($157,250), or $402,550, as well as consequential damages of $60,000 on its breach of contract and fraud claims. Because plaintiff will recover these damages on its breach of contract claim, the Recommendation concluded that plaintiff may not recover them again on the separate fraud claims. Plaintiff does not object to this conclusion, and the Court finds "no clear error on the face of the record," Fed. R. Civ. P. 72(b), Advisory Committee Notes, in that regard.

Plaintiff, however, also seeks to recover treble damages along with costs and attorney's fees on its civil theft claim against Mr. Neer. See Colo. Rev. Stat. § 18-4-405; see Huffman v. Westmoreland Coal Co., 205 P.3d 501, 509 (Colo. App. 2009) (stating that the elements of a civil theft claim are as follows: "(1) defendant knowingly obtained control over his property without authorization and (2) defendant did so with the specific intent to permanently deprive him of the benefit of the property").5 Here, plaintiff's breach of contract and civil theft claim are "inextricably intertwined [in that] the latter could not be proven without first proving the former." Makoto USA, Inc. v. Russell, 250 P.3d 625, 629 (Colo. App. 2009). To be truly independent of the contract, the duty (1) "must arise from a source other than the relevant contract," and (2) "must not be a duty also imposed by the contract." Haynes Trane Service Agency, Inc. v. American Standard, Inc., 573 F.3d 947, 962 (10th Cir. 2009) (citations omitted) (interpreting Colorado economic loss rule).

Here, Mr. Neer's failure to produce the requisite engines in exchange for the contractually agreed-upon payment cannot support both plaintiff's breach of contract and civil theft claims. Cf. H & H Distributors, Inc. v. BBC Int'l, Inc., 812 P.2d 659, 662 (Colo. App. 1990) ("A claim for the tort of fraud cannot be predicated upon the mere nonperformance of a promise or contractual obligation or upon the failure to fulfill an agreement to do something at a future time."). In support of its breach of contract claim, plaintiff alleges that Mr. Neer was required to supply specific engines in exchange for its payment. Plaintiff's civil theft claim essentially alleges that he wrongfully retained plaintiff's payment despite his failure to supply the engines. This is merely a recasting of the breach of contract claim. See Makoto, 250 P.3d at 629 ("[E]conomic loss rule preclud[es] contract cases from being `recast as tort cases in order to escape the limitations that the law has placed on suits for breach of contract.'") (quoting Richard A. Posner, Common-Law Economic Torts: An Economic and Legal Analysis, 48 Ariz. L. Rev. 735, 745 (2006)).6

To the extent plaintiff argues that it was wrongfully induced into making the payment by Mr. Neer's false statements, it seeks to affirm the contract and, therefore, has sought to bind itself and Mr. Neer to the terms of the agreement. Cf. Makoto, 250 P.3d at 628 ("Plaintiff relies on Rhino Fund, LLLP v. Hutchins . . ., the only reported case to consider Colorado's economic loss rule and a civil theft claim. Rhino Fund held a civil theft claim was not barred by the economic loss rule, where: (1) the investment manager stole escrowed monies that he had no right to take for his personal benefit; and (2) the investor `ha[d] no contractual remedy' because the manager was not a party to the investment contract.") (citations omitted). Having done so, plaintiff fails to explain how it could establish its civil theft claim without first proving a breach of the contract or why it would be entitled to civil theft damages arising out of that breach.7 See Gross v. Silverberg, No. 10-cv-00687-REB-BNB, 2010 WL 5147594, at *4 (D. Colo. Dec. 13, 2010) ("Nothing . . . suggests that defendants obtained from plaintiffs anything other than the money that was to be invested in the properties or that defendants failed to return to plaintiffs anything other than the payments contemplated by the notes. This claim, thus, is not independent of the contract, because the source of the alleged duty is one also imposed by the contract."); see also Western Convenience Stores, Inc. v. Thielen, No. 09-cv-02626-LTB-BNB, 2011 WL 866755, at *7 (D. Colo. March 14, 2011). Therefore, the Court finds that plaintiff may not recover treble damages, costs or fees8 pursuant to Colorado's civil theft statute.

For the foregoing reasons, it is

ORDERED as follows:

1. The Recommendation of United States Magistrate Judge [Docket No. 106] is ACCEPTED in part.

2. Plaintiff's Motion for Default Judgment Pursuant to Fed. R. Civ. P. 16(f) [Docket No. 96] is GRANTED in part and DENIED in part.

3. Upon entry of final judgment in this case, default judgment shall be entered in favor of plaintiff and against defendant Marvin Bruce Neer in the amount of $462,550.

4. Plaintiff's claim for civil theft against defendant Marvin Bruce Neer is dismissed.

5. Defendant Marvin Bruce Neer shall be precluded from introducing any evidence in defense of plaintiff's claims of fraudulent conveyance and imposition of a constructive trust or equitable lien.