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Home My WebLink About2022CV30661 - Sanctuary Field Neighborhood Network, Et Al, V. Council Of The City Of Fort Collins - 026 - Order Deny Motion To StrikeDISTRICT COURT, LARIMER COUNTY, COLORADO Court Address: 201 La Porte Ave., Suite 100 Fort Collins, CO 80521 Plaintiffs: Sanctuary Field Neighborhood Network, a Colorado nonprofit corporation; and Miranda Spindel v. Defendants: City Council of the City of Fort Collins, Solitaire Homes East, LLC, and Solitaire Homes, LLC Andrew Pipes, #53233 Frascona, Joiner, Goodman and Greenstein, P.C. 4750 Table Mesa Drive Boulder, CO 80305 Phone Number: 303-494-3000 Fax #: 303-494-6309 E-mail: andrew@frascona.com  COURT USE ONLY _________________________ Case Number: 2022CV030661 Div. 5A Ctrm: MOTION TO STRIKE SOLITAIRE’S SUPPLEMENT TO ITS ANSWER BRIEF Plaintiffs Sanctuary Field Neighborhood Network, a Colorado nonprofit corporation (“SFNN”), and Miranda Spindel (“Miranda,” and together with SFNN, the “Plaintiffs”), by and through their undersigned attorney hereby submit this Motion to Strike Solitaire’s Supplement to its Answer Brief as follows: On October 4, 2022, Plaintiffs filed this action and subsequently filed their Opening Brief on January 30, 2023. On March 6, 2023, the Defendant and Intervenors filed their Answer Briefs, pursuant to C.R.C.P. 106(a)(4)(VII). Shortly thereafter, Plaintiffs filed their Reply Brief, which noted a discrepancy in a certain page that was referenced in the Defendant’s and Intervenors’ Answer Briefs but was not contained in the record. On April 1, 2023, Defendant filed an Unopposed Motion to Amend the Record, which was subsequently granted. Now, the Intervenors are attempting to supplement their Answer Brief, presumably under C.R.C.P. 15(d), without DENIED BY COURT 05/17/2023 STEPHEN JOHN JOUARD District Court Judge DATE FILED: May 17, 2023 3:01 PM CASE NUMBER: 2022CV30661 2 seeking leave from this Court or conferring with Plaintiffs, in violation of C.R.C.P. 121 § 1-15(8). As a result of the Intervenors’ refusal to adhere to the Rules of Civil Procedure, Plaintiffs respectfully request that this court strike the Intervenors’ improper Supplement to its Answer Brief (the “Supplement”). C.R.C.P. 12(f) permits a party to ask the court to strike any pleading, motion or other paper that is deemed redundant, immaterial, impertinent, or scandalous. C.R.C.P. 106(a)(4)(VII) provides the parties a timeline and process for filing briefs to the court. Therefore, any supplements thereto, which are not contained in Rule 106, is only permitted by right via a Rule of Civil Procedure or upon leave of this Court. Without more, the Supplement is not permitted by right under Rule 106 and thus, appears to constitute either an amended pleading under Rule 15(d) or a surreply. Regardless of the Supplement’s categorization, the Intervenor must seek leave from this Court. See C.R.C.P. 15(d) (“Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.”). See also Olson v. State Farm Mut. Auto. Ins. Co., 174 P.3d 849, 860 (Colo. App. 2007) (A trial court has discretion to deny the request for a surreply.); Giguere v. SJS Family Enterprises, Ltd., 155 P.3d 462, 471 (Colo. App. 2006) (Party’s can preserve their position by seeking leave to file a surreply.); C.A.R. 28.1(f) (“No further briefs may be filed except with leave of court.”). Therefore, the Supplement was filed without any procedural right or permission from this Court. Further, the Intervenors compounded their procedural defect by failing to confer or otherwise provide Plaintiff notice of the Supplement, in direct contradiction to C.R.C.P. 121 § 1- 3 15(8). Thus, the Intervenors’ procedural failures render the Supplement improper and Plaintiffs request that it be stricken from the record pursuant to C.R.C.P. 12(f). WHEREFORE, Plaintiffs respectfully request that this Court grant Plaintiffs’ motion and strike the Supplement along with any other relief as this Court deems just and proper under the circumstances. Dated: April 6, 2023. Respectfully submitted, Frascona, Joiner, Goodman and Greenstein, P.C. /s/ Andrew Pipes Andrew Pipes, Atty. Reg. No. 53233 4750 Table Mesa Drive Boulder, Colorado 80305-5500 (303) 494-3000 4 CERTIFICATE OF SERVICE The undersigned hereby certifies that on April 6, 2023, a true and correct copy of the foregoing MOTION TO STRIKE SOLITAIRE’S SUPPLEMENT TO ITS ANSWER BRIEF was served via Colorado Courts E-Filing on the parties as listed below: Attorneys for Defendant Corey Y. Hoffmann, No. 24920 Katharine J. Vera, No. 53995 Firm: Hoffmann, Parker, Wilson & Carberry, P.C. 511 16th Street, Suite 610 Denver, CO 80202 Phone: (303) 825-6444 E-mail: cyh@hpwclaw.com kjv@hpwclaw.com Attorneys for Proposed Intervenors, Solitaire Homes East, LLC and Solitaire Homes, LLC Ballard Spahr LLP Andrew J. Petrie Andrew Valencia 1225 17th St., Ste. 2300 Denver, CO 80202 (303) 292-2400 petriea@ballardspahr.com valenciaa@ballardspahr.com /s/ Scarlet Ramirez___________ Scarlet Ramirez, Paralegal