HomeMy WebLinkAbout2019-cv-901 - Surat v. City of Fort Collins, et al. - 150 - Minute Order Re Motion To Dismiss And Motion For Summary Judgment04/12/2021 150 ORDER. This case is before the Court sua sponte. Defendants Randall
Klamser and City of Fort Collins (jointly, "Defendants") have filed
Defendants' Motion to Dismiss Plaintiff's First Amended Complaint
[ECF 107] Pursuant to Fed. R. Civ. P. 12(b)6), seeking dismissal of all
claims in the First Amended Complaint 108 . Klamser also seeks
application of qualified immunity. (ECF No. 108 at 4.) In addition,
Defendants filed a Motion for Summary Judgment Pursuant to Fed. R.
Civ. P. 56, seeking summary judgment in their favor on all claims set
forth in the First Amended Complaint 118 . The Court acknowledges
that in the Motion for Summary Judgment, Defendants state that "Given
the timing of the applicable Case Management Order [sic], Defendants
filed this Motion for Summary Judgment even though the 2020 Motion
to Dismiss is still pending before the Court. This Motion for Summary
Judgment, however, is not intended to supersede any request for relief
set forth in the 2020 Motion to Dismiss. The arguments set forth in the
2020 Motion to Dismiss are, therefore, incorporated herein." (ECF No.
118 at 3.) However, the Motion for Summary Judgment raises the same
arguments made in the Motion to Dismiss but tailors these arguments to
the current phase of the litigation by including references to the record
developed during discovery, rather than simply relying on the allegations
in the First Amended Complaint. Because the Motion for Summary
Judgment incorporates the same arguments raised in the Motion to
Dismiss, the Court finds that the Motion to Dismiss is indeed superseded
and is therefore DENIED WITHOUT PREJUDICE AS MOOT. See
Drake v. City and Cnty. of Denver, 953 F. Supp. 1150, 1152 n.1 (D.
Colo. 1997) (holding that motions to dismiss were "subsumed by the
Motions for Summary Judgment and are denied as moot.") The Court
will resolve the substantive issues raised in the Motion to Dismiss when
it rules on Defendants' Motion for Summary Judgment. SO ORDERED
by Judge William J. Martinez on 4/12/2021. Text Only Entry(wjmlc1, )
(Entered: 04/12/2021)