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Home My WebLink About2023CV30276 - Higgins v. City of Fort Collins, et al. - 029 - Order Granting Leave To File Amended ComplaintPage1 of1 COURT,DISTRICT COUNTY, COLORADOLARIMER (FT COLLINS) Court Address: 201 LAPORTE AVENUE, SUITE 100, FORT COLLINS, CO, 80521 Plaintiff(s)CHRISTIAN HIGGINS v. Defendant(s)CITY OF FORT COLLINS et al. COURT USE ONLY Case Number:2023CV30276 Division:4C Courtroom: Order: Plaintiff's Motion for Leave to File First Amend Complaint The motion/proposed order attached hereto: GRANTED. The motion for leave to amend is GRANTED. Defendants shall file any responsive pleadings by July 13. The City of Fort Collins may either file an answer or reassert its motion to dismiss (including any changes necessitated by the amendments to the complaint). Should the City refile a motion to dismiss, the Plaintiff's response is due July 27. An optional reply is due August 3, 2023. Issue Date:6/29/2023 LAURIE KAZUE DEAN District Court Judge DATE FILED: June 29, 2023 3:50 PM CASE NUMBER: 2023CV30276 1 District Court, Larimer, Colorado 201 LaPorte Avenue, Ste 100 Fort Collins, CO 80521 Phone: (970) 498-6100 ↑ Court Use Only ↑ Christian Higgins Plaintiff, vs. City of Fort Collins, C&L Water Solutions, Inc., Sunbelt Rentals, Inc., Kodiak Field Services, LLC, and BCH Services, LLC Defendants Karl W. Hager #52710 VanMeveren Law Group, P.C. 123 N College Avenue, Suite 112 Fort Collins, CO 80524 Telephone (970) 495-9741 Fax (970) 495-6854 Email: khager@vanmeverenlaw.com Case No. 2023CV30276 Division: 4C MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT COMES NOW, Plaintiff, Christian Higgins, by and through undersigned counsel, VanMeveren Law Group, P.C., Karl W. Hager appearing, and moves for leave to file the attached Plaintiff’s First Amended Complaint (FAC). In support of this motion, Plaintiff states as follows: CERTIFICATE OF CONFERRAL Pursuant to C.R.C.P. 121 § 1-15.8, Plaintiff’s counsel has conferred with counsel for Defendants. Defendants did not provide a position regarding the First Amended Complaint. Although no new claims are asserted against the Defendants who have already filed Answers, Plaintiff assumes that Defendants oppose this motion. Attachment to Order - 2023CV30276 2 MOTION 1. This motion is filed pursuant to C.R.C.P. 15. 2. C.R.C.P. 15(a) states: A party may amend his pleading once as a matter of course at any time before a responsive pleading is filed …. Otherwise, a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. 3. It is axiomatic that a motion for leave to amend a complaint is within the trial court's discretion to grant a motion to amend a complaint, and leave to amend shall be freely given when justice so requires. H. W. Houston Construction Co. v. District Court, 632 P.2d 563 (Colo. 1981). 4. The rule prescribes a liberal policy of amendment and encourages the courts to look favorably on requests to amend. See Fladung v. Boulder Supreme Court of Colorado 438 P.2d 688 (1968), 5. Defendant City of Fort Collins (CITY) filed a Motion to Dismiss under C.R.C.P. 12(b)(1) on June 8, 2023 and did not file an Answer. 6. A motion to dismiss is not a “responsive pleading” under C.R.C.P. 15 (a). See, e.g., Renner v. Chilton, 351 P.2d 277, 277-78 (Colo. 1960) (court held that the language of Rule 15(a) is “unequivocal” and “expressly allows one amendment as a matter of right before the answer … ”). Defendant CITY has not filed a responsive pleading in this action. 7. A motion to dismiss cannot be granted without providing the plaintiff an opportunity to amend. See, e.g., Passe v. Mitchell, 423 P.2d 17, 17-18 (Colo. 1967). No Attachment to Order - 2023CV30276 3 responsive pleading has been filed in the instant case by Defendant CITY, and no final judgment should be entered in the absence of a showing of record that plaintiff waived the right to file an amended complaint, and elected to stand upon the allegations of the complaint to which the motion to dismiss was addressed), Sprott v. Roberts, 390 P.2d 465, 467 (Colo. 1964) (reversing dismissal and remanding with directions to allow plaintiff to file an amended complaint, stating "[a]s we view it the trial court could not enter its judgment of dismissal until [Plaintiff] had at least an opportunity to amend his complaint.") 8. Matters purely jurisdictional may be made the subject of amendment the same as other matters of substance. In Francisco v. Cascade Inv. Co. Court of Appeals of Colorado, 486 P.2d 447, 449 (Colo. App. 1971) the Colorado Supreme Court rejected “the City's argument that the complaint could not be amended because allegation of notice was ‘jurisdictional’ [as] without merit.” The court reasoned that “jurisdiction over the subject matter of an action is conferred by the authority which creates the court.” The court said that “the complaint is to establish by proper factual averment that the case is within the jurisdiction of the court.” A defect in allegations of fact upon which the court's jurisdiction depends can be cured or supplied by amendment. Citing American Universal Ins. Co. v. Sterling, 203 F.2d 159, 164 (3rd Cir. 1953). 9. In the instant case, the CITY moved to dismiss the Complaint under C.R.C.P. 12(b)(1) arguing that the CITY is immune under the Colorado Government Immunity Act C.G.I.A. section 24-10-106(d)(1)(I). The CITY argues that Plaintiff failed to Attachment to Order - 2023CV30276 4 “expressly” aver in her Complaint that the CITY waived immunity and failed “to refer to the C.G.I.A. whatsoever” (Defendant CITY’s Motion to Dismiss p. 4). 10. Plaintiff is seeking leave to amend to expressly address the CITY’s waiver of immunity under the C.G.I.A. A copy of Plaintiff’s First Amended Complaint is attached hereto as Exhibit A. No new claims of relief are being asserted. 11. Defendant CITY also argues that it did not waive immunity because the hose stretching across the street is not a dangerous condition that physically impedes the flow of traffic under the C.G.I.A. By the proposed Amended Complaint, Plaintiff specifically avers why the hose stretched across the street at night was in fact a dangerous condition that impedes the flow of traffic under the C.G.I.A. giving rise to waiver of immunity, in addition to other allegations of waiver of immunity under the C.G.I.A. 12. Defendant CITY also argues in its motion to dismiss that it did not proximately cause the dangerous condition. Here, Defendant CITY argues that it did not know of the condition. Defendant attached an email to its motion to dismiss demonstrating that its subcontractor Defendant Sunbelt Rentals, Inc. knew of the dangerous condition and did not tell the CITY. By the proposed amended complaint, Plaintiff avers that Defendant CITY’s duty to keep the streets safe is nondelegable, subcontractor negligence is imputed and that the CITY is charged with the knowledge of its subcontractor(s) in this case where the subcontractor may have created the dangerous condition. Attachment to Order - 2023CV30276 5 13. Finally, while Defendant CITY has not answered the complaint, all of the other Defendants have answered the complaint, necessitating leave of court to amend the complaint under C.R.C.P. 15. 14. Since Plaintiff brings this Motion early in the litigation before the case is at -issue and to specifically address alleged jurisdictional pleading defects with no new claims of relief being asserted, the proposed amended complaint will not prejudice the Defendants and granting leave to amend is appropriate and just. WHEREFORE, Plaintiff prays that this Court grant her Motion for Leave to File the attached Plaintiff’s First Amended Complaint and either (1) accepted Exhibit A hereto as the filed FAC or (2) order Plaintiff to file and serve her FAC within 5 days of the order on this Motion. Dated this 29th day of June 2023 VANMEVEREN LAW GROUP, P.C. _s/ Karl W. Hager_____________ Karl W. Hager - #52710 123 North College Avenue, Ste 112 Fort Collins, CO 80524 Telephone: (970) 495-9741 Facsimile: (970) 495-6854 Email: Khager@vanmeverenlaw.com Attachment to Order - 2023CV30276 6 CERTIFICATE OF ELECTRONIC FILING AND SERVICE I hereby certify that on June 29, 2023 the foregoing Motion for Leave to File First Amended Complaint was filed with the Court and served on all counsel of record via ICCES according to the Colorado Rules of Civil Procedure. /s/ Amy Selcke Amy Selcke Legal Assistant, VanMeveren Law Group, P.C. Attachment to Order - 2023CV30276