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Avicanna Inc. is a Canadian corporation with its principal place of business in Ontario. It contracted with St. J Distribution LLC, a Colorado company, and several of its members to purchase certain assets. The asset purchase agreement included a choice of law and forum selection clause in favor of the laws of the Province of Ontario and the federal laws of Canada. Avicanna sued the contractual counterparties and Laughing Dog Group, LLC, which was owned and/or managed by one or more members of St. J Distribution. Two of the defendants, St. J Distribution and Robinson, then filed cross-claims against the remaining defendants, Mewhinney, Garcia, and Laughing Dog Group (collectively, the Mewhinney defendants) for breach of contract. The Mewhinney defendants moved to dismiss both the complaint and cross-claims for failure to state a claim upon which relief may be granted. Neither motion mentioned the forum selection clause. But in their reply to support their motion to dismiss, the Mewhinney defendants argued the forum selection clause deprived the trial court of jurisdiction over the dispute. Because the forum selection argument was raised in a reply, the district court declined to consider it. But the court sua sponte later invited briefing on the issue, and it granted the motion to enforce the forum selection clause and dismissed the case without prejudice. On appeal, Avicanna argued that the forum selection clause was intended for its sole benefit and Avicanna was therefore entitled to unilaterally waive its protections and file suit in Colorado. A forum selection clause in a contract will be enforced unless the party seeking to avoid its effect proves that enforcement of the clause would be unfair or unreasonable. Avicanna did not argue that the clause would be unfair or unreasonable or that the clause was ambiguous. Rather, Avicanna asserted that it was entitled to unilaterally waive enforcement of the clause because it was the only party that was an Ontario resid
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Plaintiffs were formerly employed as truck drivers for JP Trucking, Inc. (JP Trucking). They filed a complaint alleging that JP Trucking failed to pay them time and a half as required by the Fair Labor Standards Act (FLSA) and the Colorado Minimum Wage Order No. 31 (Wage Order). Following a bench trial, the trial court found for plaintiffs and awarded them damages. JP Trucking appealed, and another Court of Appeals division concluded it could not resolve the appeal without further factual findings. On remand, the trial court found that plaintiffs were exempt from overtime under FLSA's Motor Carrier Act (MCA) exemption. However, the trial court also found that because plaintiffs either did not drive out of state or their out-of-state driving was de minimis, they were not "interstate drivers" under the Wage Order. The court awarded plaintiffs damages under the Wage Order along with reasonable fees and costs. On appeal, JP Trucking contended that the trial court interpreted "interstate drivers" in the Wage Order too narrowly. FLSA sets federal minimum wage and overtime requirements for certain employees nationwide, while the Wage Order sets the minimum wage and overtime pay requirements for Colorado employees who work in certain industries. The Wage Order provisions are largely patterned after FLSA, and the Wage Order exemption includes employees who are subject to the MCA exemption, which exempts from the foregoing requirements drivers who transport goods in interstate commerce. Here, the trial court's findings on limited remand established that plaintiffs are subject to the MCA exemption, and JP Trucking satisfied its burden of proving that it transported goods in interstate commerce. Accordingly, plaintiffs are exempted from overtime pay. The judgment was reversed and the case was remanded with directions to enter judgment in favor of JP Trucking and to vacate the damages award.
Claimant is a firefighter for the City and County of Denver (the City). In July 2013, he was diagnosed with cancer, and on July 24, 2013, he advised the City of his cancer diagnosis and asserted his belief that the melanoma was related to or caused by his work as a City firefighter. Claimant filed an application for hearing on October 6, 2017, seeking medical and temporary total disability benefits. The City admitted compensability, but asserted a statute of limitations defense, arguing that the claim was barred because claimant filed his application more than four years after learning of his melanoma and reporting it to the City. A panel of the Industrial Claim Appeals Office (Panel) agreed with the City, and the claim was dismissed as time barred. On appeal, claimant contended that the Panel misinterpreted the applicable statute of limitations, CRS § 8-43-103(2). He argued that the City had adequate notice of his intent to pursue compensation through the Division of Workers' Compensation's (Division) assignment of a claim number to the case, the City's filing of certain forms, and his filing of several documents. CRS § 8-43-103(2) requires a claimant seeking workers' compensation to file a "notice claiming compensation" within two years of discovering the work-related nature of the claimant's injuries, or within three years if the claimant can establish a reasonable excuse for late filing and the employer suffered no prejudice as a result. The Division's assignment of a claim number does not satisfy a claimant's obligation to notify the Division and the employer of his or her intent to seek compensation, and none of the documents claimant points to specifies that claimant was seeking compensation as that term is defined in CRS § 8-43-103. Based on claimant's admission that he knew in 2013 that his firefighting duties may have caused his melanoma, he needed to file his claim by 2015 to comply with the two-year statute of limitations, or by 2016 if he could establis
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