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Home My WebLink About2024CV202 - Reyes v. McDonalds Corp, et al - 1 - Documents (18)DISTRICT COURT, CITY AND COUNTY OF LARIMER, STATE OF COLORADO; 201 La Porte Avenue Ft. Collins, CO 80521 Plaintiff(s): Teresita Reyes; v. Defendant(s): McDonald’s Corp. IL – McDonald’s Store No. 11148; Local Franchise Owner Organization, Franchise MOD (09-25-2023); ▲COURT USE ONLY▲ Attorneys for Defendants Austin Barber and the City of Fort Collins Mark S. Ratner, #38517 HALL & EVANS, LLC 1001 17th Street, Suite 300 Denver, Colorado 80202 Telephone: (303) 628-3300 Case No.: 2024CV202 Division: 4C DEFENDANTS AUGUST BARBER AND THE CITY OF FORT COLLINS’ MOTION TO DISMISS AND MOTION TO QUASH SERVICE PURSUANT OF PLAINTIFF’S THIRD-PARTY COMPLAINT TO C.R.C.P. 12(b)(4) Defendants, August Barber and The City of Fort Collins, sued as “Fort Collins Police Services,” (collectively “Fort Collins Defendants”) submit the following as their Motion to Dismiss and Motion to Quash Service of Plaintiff’s Third Amended Complaint, pursuant to C.R.C.P. 12(b)(4): CONFERRAL Undesigned Counsel attempted to confer with pro se Plaintiff regarding the relief requested in this Motion, but did not receive a response. As the Fort Collins Defendants are seeking to dismiss the matter, it is assumed this Motion is opposed. DATE FILED December 30, 2024 4:14 PM FILING ID: 91CD44044B09F CASE NUMBER: 2024CV202 I. INTRODUCTION According to the allegations of the Third Amended Complaint, this matter generally arises out of pro se Plaintiff’s visit to a McDonalds restaurant, in Fort Collins, Colorado, on September 25, 2023, where she erroneously received whipped cream in her milkshake. As a result of the incident, the pro se Plaintiff is apparently attempting to set forth claims against the Defendants alleging a violation of various constitutional and statutory rights, and in particular against the Fort Collins Defendants pursuant to the 14th Amendment of the United States Constitution, as well as Title VI of the “Civil Rights Act” and “Title II” of the Americans with Disabilities Act. (See Pltfs. Cmp., at 3-6, referencing Officer Barber and the City of Fort Collins Police Services, attached hereto as Exhibit A)1. The Fort Collins Defendants seek dismissal of the Complaint, as pro se Plaintiff has not properly served either August Barber or the City of Fort Collins. II. ARGUMENT The City of Fort Collins is a municipality. See e.g. C.R.S. § 29-4-703(12.1) defining “Municipality” as “any city, including without limitation any city or city and county operating under a home rule or special legislative charter, or town within this state” and Watson v. Fort Collins, 86 Colo. 305, 306 (Colo. 1929) (“The defendant city of Fort Collins, was originally a municipal corporation, formed under our general municipal corporation statute. It is now what is commonly known in this state as a home rule city. It operates under a special charter, by the choice 1 As an initial note, Plaintiff sued “Fort Collins Police Services.” No such entity, however, is capable of being sued. See Reyes v. McDonalds, No. 24-1211 (September 24, 2024), at 7, ftnt. 5, referring to Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985). “(T)he police department ‘is not a separate suable entity’ under § 1983.”) of its inhabitants, who elected to function as a municipality under the twentieth amendment to the state Constitution.”) Officer Barber is employed with the City of Fort Collins, as a Senior Manager of Information Services for the Police Information Services Department (See Declaration of Lisa Robles, at ¶ 1, attached hereto as Exhibit B). Colorado Rule of Civil Procedure 4, provides the specific requirements for service of process on a municipality and its employees. The Rule states in pertinent part, “Personal service shall be as follows: Upon a natural person whose age is eighteen years or older by…leaving a copy thereof at…the person’s usual workplace, with the person’s supervisor, secretary, administrative assistant, bookkeeper, human resources representative or managing agent; or by delivering a copy to a person authorized by appointment or by law to receive service of process.” C.R.C.P. 4(e)(1). Additionally, the Rule provides for service “(u)pon a municipal corporation, by delivering a copy thereof to the mayor, city manager, clerk, or deputy clerk.” According to the Return of Service filed by pro se Plaintiff, service for both Officer Barber and “Fort Collins Police Services” was made by providing materials to Police Records Specialist, John Scott. (See Certified Statement of Service for both Officer Barber and Fort Collins Police Service, attached hereto as Exhibits C & D, respectively.) Mr. Scott, however, is neither Officer Barber’s supervisor, secretary, administrative assistant, bookkeeper, human resources representative, managing agent, nor appointed by law to receive service of process. (See Ex. B, at ¶ 5). Furthermore, Mr. Scott is not the mayor, city manager, clerk or deputy clerk, for the City of Fort Collins. (See Ex. B, at ¶ 6). Therefore, pro se Plaintiff has failed to comply with the applicable Rules regarding service of process and the matter as to the Fort Collins’ Defendants, should be dismissed. See e.g. Pioneer Astro Indus. V. Dist. Court in & for El Paso, 193 Colo. 409, 411, 412 (1977) (“The uncontradicted affidavit of Harold Arnsteen states that his wife, Joan Arnsteen, ‘is not now nor has she ever been, an officer, manager, general agent, registered agent, or any kind of agent’ for petitioner. Consequently, petitioner has not been properly served under C.R.C.P. 4(e)(5) and (f)(2).”) III. CONCLUSION WHEREFORE, Officer August Barber and the City of Fort Collins, Colorado, sued as Fort Collins Police Services, requests the Court grant its motion, dismiss Plaintiff’s claims against them, and for entry of any other relief deemed just. Respectfully submitted this 30th day of December 2024. s/ Mark S. Ratner Mark S. Ratner, #38517 of HALL & EVANS, LLC, Attorneys for Defendants August Barber and The City of Fort Collins, sued as Fort Collins Police Services CERTIFICATE OF SERVICE I hereby certify that on December 30, 2024, a true and correct copy of the foregoing DEFENDANTS AUGUST BARBER AND THE CITY OF FORT COLLINS’ MOTION TO DISMISS AND MOTION TO QUASH SERVICE PURSUANT OF PLAINTIFF’S THIRD-PARTY COMPLAINT TO C.R.C.P. 12(b)(4) was filed with the Court and served via Colorado Courts E-Filing to the following: Rachel E. Ryckman, #42054 Morgan S. Nance, #59294 White and Steele, P.C. Dominion Towers, North Tower 600 17th Street, Suite 600N Denver, CO 80202 Attorneys for Defendant McDonald’s Corp. IL, McDonald’s Store No. 11148, and Franchise MOD (09-25-2023) and was served by mailing via United States Postal Service to the following: Tersita Reyes 2805 Fairview Drive Fort Collins, CO 80524 (970) 488-9916 Pro-Se Plaintiff s/ Sarah Stefanick *In accordance with C.R.C.P. 121 § 1-26(7)-(9), a printed copy of this document with original signatures is being maintained by the filing party and will be made available for inspection by other parties or the court upon request.