The URL can be used to link to this page

Home My WebLink About2020CV30580 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Colorado And Streetmediagroup, Llc - 047 - Defendant Street Media Group's Unopposed Motion To Strike Portions Of It's ReplyDISTRICT COURT, COUNTY OF LARIMER, STATE OF COLORADO Larimer County Justice Center 201 Laporte Avenue, Suite 100 Fort Collins, CO 80521-2762 Telephone: (970) 498-6100 ▲ COURT USE ONLY ▲ Plaintiff: THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, v. Defendants: BOARD OF COUNTY COMMISSIONERS OF LARIMER COUNTY, COLORADO; STREETMEDIAGROUP, LLC Attorneys for Defendant, StreetMediaGroup, LLC: Todd G. Messenger, Reg. No. 38783 Amanda C. Jokerst, Reg. No. 47241 FAIRFIELD AND WOODS, P.C. 1801 California Street, Suite 2600 Denver, CO 80202 Telephone: (303) 830-2400 Facsimile: (303) 830-1033 E-Mail: tmessenger@fwlaw.com; ajokerst@fwlaw.com Case Number: 2020CV030580 Division: 4B DEFENDANT STREETMEDIAGROUP, LLC’S UNOPPOSED MOTION TO STRIKE PORTIONS OF ITS REPLY IN SUPPORT OF MOTION TO DISMISS Defendant StreetMediaGroup, LLC (“StreetMedia”), through its undersigned counsel, Fairfield and Woods, P.C., respectfully submits this Unopposed Motion to Strike Portions of Its Reply in Support of its Motion to Dismiss (“Motion to Strike”), and in support thereof states a follows: Certificate of Conferral Pursuant to C.R.C.P. 121 § 1-15(8): Counsel for StreetMedia conferred with counsel for Plaintiff City of Fort Collins and counsel for Defendant Larimer County on the date of this Motion to Strike. Plaintiff City of Fort Collins and Defendant Larimer County DATE FILED: March 29, 2021 11:52 AM FILING ID: 18519E188E479 CASE NUMBER: 2020CV30580 -2- do not oppose the relief requested herein. 2. StreetMedia filed Defendant StreetMediaGroup, LLC’s Motion to Dismiss Plaintiff’s Complaint (“Motion”) on February 24, 2021. 3. Plaintiff, City of Fort Collins, timely filed its Plaintiff’s Response to Defendant StreetMediaGroup, LLC’s Motion to Dismiss Plaintiff’s Complaint (“Response”) on March 17, 2021. 4. StreetMedia timely filed its Reply In Support of Motion to Dismiss (“Reply”) on March 24, 2021. In subsection II.F. of the Reply, StreetMedia argued that Plaintiff failed to disclose that Stor-N-Lock Partners #15, LLC v. City of Thornton, No. 17CA0696, 2018 WL 2054320 (Colo. App. May 3, 2018) was an not selected for publication, and therefore has “ ‘No Value As Precedent.’” 5. On March 26, 2021, Plaintiff filed its Plaintiff’s Submission of Authority, accurately pointing out that Stor-N-Lock was not an unpublished case under the Colorado Rules of Appellate Procedure. 6. Undersigned counsel stands corrected. Undersigned counsel misread the header on the case as it is published in WestLaw: -3- 7. The above-pictured case header states only that the opinion had not yet been released in the permanent law reports. On re-examination, it does not say that the case is “Not Selected for Publication.” 8. Consequently, in the interest of professional comity in the course of a contentious case, StreetMedia emailed Mr. Ringel on March 26, 2021 and apologized. Further, in the interest of correcting the record and providing full candor to this honorable Court, StreetMedia moves to strike the following language (shown in red strikethrough text) from its own Reply: * * * F. Plaintiff Failed to Disclose that Stor-N-Lock Partners Has “No Value As Precedent.” Plaintiff leans on Stor-N-Lock Partners #15, LLC v. City of Thornton, No. 17CA0696, 2018 WL 2054320 (Colo. App. May 3, 2018). but fails to disclose to this Court that that case was not selected for publication. Cases that are not selected for publication “have no value as precedent.” Welby Gardens v. Adams County Bd. of Equalization, 71 P.3d 992, 999 (Colo. 2003). In fact, if this case were to reach the Court of Appeals, citation to Stor-N-Lock would be forbidden under the court’s “Policy Concerning Citation of Unpublished Opinions.”1 At the trial court level, the court may consider whether an unpublished decision provides any useful insight, but the court is also “free to disregard [unpublished decisions] entirely if it so chooses.” Patterson v. James, 454 P.3d 345, 353 (2018). As a matter of law, Plaintiff is wrong in suggesting that Stor-N-Lock (an 1 See Policy Concerning Citation of Unpublished Opinions. https://www.courts.state.co.us/Courts/Court_Of_Appeals/Forms_Policies.cfm -4- unpublished decision of the Colorado Court of Appeals) in any way qualifies DeVilbiss (a published Colorado Supreme Court decision). Moreover, the persuasive value of Stor-N-Lock, if any, works against the Plaintiff. In that case, Resolute (a co-defendant with the City of Thornton) argued that the plaintiff (Stor- N-Lock) should be required to post a bond because “the mere filing of the [C.R.C.P. 106(a)(4)] action effectively enjoins the defendant from using its property.” Stor- N-Lock, 2018 WL 2054320 at ¶35. The Court disagreed, holding that the: * * * 9. StreetMedia stands by its Reply with regard to all matters therein not specifically addressed herein. 10. Undersigned counsel has provided a copy of this Motion to Strike to StreetMedia. WHEREFORE, based on the foregoing, Defendant StreetMedia respectfully requests that this Court strike only the text shown in red strikethrough in Paragraph 8 of this Motion to Strike from StreetMedia’s Reply. Respectfully submitted this 29th day of March, 2021. FAIRFIELD AND WOODS, P.C. s/ Todd G. Messenger Todd G. Messenger, Reg. No. 38783 Amanda C. Jokerst, Reg. No. 47541 Attorneys for Defendant StreetMediaGroup, LLC -5- CERTIFICATE OF SERVICE I hereby certify that on this 29th day of March, 2021, I filed the foregoing with the Clerk of the Court using Colorado Courts E-Filing. I further certify that a copy of the foregoing was sent via Colorado Courts E-Filing to the following: Andrew D. Ringel, #24762 Hall & Evans, LLC 1001 Seventeenth St., Suite 300 Denver, CO 80202 Telephone: (303) 628-3300 Email: ringela@hallevans.com John R. Duval, #10185 Deputy City Attorney Claire Havelda, #36831 Assistant City Attorney 300 Laporte Ave. P.O. Box 500 Fort Collins, CO 80522 Telephone: (970) 221-6652 Email: jduval@fcgov.com chavelda@fcgov.com Jeannine S. Haag, #11995 Frank N. Haug, #41427 Larimer County Attorney’s Office P.O. Box 1606 Fort Collins, CO 80522 Telephone (970) 498-7450 Email: fhaug@larimer.org; jeanninehaag@larimer.org s/ Sharon Y. Meyer Sharon Y. Meyer