HomeMy WebLinkAbout2018CV149 - Sutherland V. City Of Fort Collins, Steve Miller & Irene Josey - 130 - City Of Fort Collins Response To Plaintiff'sd Motion To Withdraw Fule 59 MotionDISTRICT COURT, LARIMER COUNTY,
COLORADO
Court Address: 201 La Porte Avenue
Fort Collins, CO 80521
Phone Number: (970) 494-3500
▲COURT USE ONLY▲
Plaintiff: ERIC SUTHERLAND, pro se
v.
Defendants: THE CITY OF FORT COLLINS, a home
rule municipality in the State of Colorado; STEVE
MILLER, in his capacity as the Larimer County
Assessor and all successors in this office; IRENE
JOSEY, in her capacity as the Larimer County
Treasurer and all successors to this office; and
Indispensable Parties: THE TIMNATH
DEVELOPMENT AUTHORITY, an Urban Renewal
Authority; and COMPASS MORTGAGE
CORPORATION, an Alabama company doing
business in Colorado.
Attorneys for Defendant City of Fort Collins:
John W. Mill (#22348)
Rosemary A. Loehr (#52559)
Sherman & Howard L.L.C.
633 17th Street, Suite 3000
Denver, CO 80202
Phone Number: (303) 297-2900
Email: jmill@shermanhoward.com
rloehr@shermanhoward.com
Carrie M. Daggett, #23316
John R. Duval, #10185
Fort Collins City Attorney’s Office
300 LaPorte Avenue
Fort Collins, CO 80522-0580
970-221-6520
cddaggett@fcgov.com, jduval@fcgov.com
Case No.: 2018CV149
Courtroom/Division: 5B
CITY OF FORT COLLINS’S RESPONSE TO PLAINTIFF’S MOTION TO
WITHDRAW PLAINTIFF’S RULE 59 MOTION
DATE FILED: May 7, 2019 4:44 PM
FILING ID: 45442E4AFF65E
CASE NUMBER: 2018CV149
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The Defendant City of Fort Collins (the “City”), by and through its counsel, respectfully
submits the following Response to Plaintiff’s Motion to Withdraw Plaintiff’s Rule 59 Motion.
I. The City does not object to the withdrawal of Mr. Sutherland’s Rule 59
Motion.
On May 2, 2019 Mr. Sutherland noticed counsel for the City of his intent to withdraw his
Motion for Amendment of Judgment Granting City of Fort Collins’ Motion for Attorneys’ Fees
and Bill of Costs Pursuant to C.R.C.P. 59 (“Rule 59 Motion”) (filed April 16, 2019) and requested
the City’s position. Counsel for the City responded the next day confirming that it did not object
to the withdrawal. The City still does not object to withdrawing the Rule 59 Motion. However,
Mr. Sutherland’s Motion to Withdraw appears to request the Court to (1) permit him to withdraw
the Rule 59 Motion and (2) to review and consider Mr. Sutherland’s arguments in the Rule 59
Motion. The City objects to Mr. Sutherland’s request that the Court review and consider the
arguments in his Rule 59 Motion.
II. This Court should not review or consider Mr. Sutherland’s arguments in the
withdrawn Rule 59 Motion.
As a matter of law, this Court should not consider arguments presented in a withdrawn
motion. See, e.g., Copar Pumice Co. v. Morris, 639 F.3d 1025, 1030 (10th Cir. 2011) (noting that
a withdrawn motion is treated "as though the motion had never been made" for purposes of
appeal”). In his Motion to Withdraw, rather than simply requesting to withdrawal the Rule 59
Motion, Mr. Sutherland asks this Court to entertain his post-trial “novel theory” of standing. This
Court has already rejected Mr. Sutherland’s attempts to present new arguments for the first time
in post-trial motions. See 04/19/19 Order Denying Motion to Vacate Order Granting Motion to
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Dismiss at p. 6. Mr. Sutherland’s newfound arguments for standing in his Rule 59 Motion and
Motion to Withdraw should be equally rejected.
This Court properly granted the City’s award of attorneys’ fees because Mr. Sutherland
initiated a lawsuit against the City even though he knew he had not suffered any injury. Mr.
Sutherland continually overlooks his lack of injury. Instead, he repeatedly states, in his Motion to
Withdraw, his Rule 59 Motion, and his Rule 60 Motions, that his case was erroneously dismissed
because the Court should have implied a private right of action. This argument, which Mr.
Sutherland present failed to timely present in his Complaint or the Motion to Dismiss briefing,
does not overcome his lack of standing.
What Mr. Sutherland refers to in his Motion to Withdraw as an abusive, rigid application
of settled law is the Court properly requiring that Mr. Sutherland demonstrate that he has suffered
an injury. An implied statutory cause of action is not the same as the constitutional requirement
of standing. Suffering an injury in fact is a constitutional requirement. Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992) (an injury in fact is an “irreducible constitutional minimum of standing”).
Even if Mr. Sutherland could point to some statutory authority for an implied cause of action,
whether through the Open Meetings Law, Declaratory Judgment Act, or the Parfrey test, he still
cannot demonstrate that he has suffered an injury.
This Motion, like all of Mr. Sutherland’s post-trial motions, attempts to resurrect his
Complaint by burdening the City with excessive motions that do nothing more than rehash
arguments this Court has repeatedly rejected. Mr. Sutherland has suffered no injury and “simply
referencing a statutory cause of action is insufficient to demonstrate an injury in fact.” Weisfield
v. City of Arvada, 2015 COA 43, ¶ 33; see also 5A Colo. Prac., Handbook on Civil Litigation §
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1:8 (2018 ed.) (“[E]ven if a statute ‘grants’ standing a plaintiff still must demonstrate an actual or
imminently threatened injury.”). The constitutional requirement of standing is not abrogated by
state statutes. See, e.g., Mt. Emmons Mining Co. v. Crested Butte, 690 P.2d 231, 240 (Colo. 1984)
(“A party seeking declaratory relief, however, must still demonstrate that the challenged statute or
ordinance will likely cause tangible detriment to conduct or activities that are presently occurring
or are likely to occur in the near future.”). Mr. Sutherland had no standing to bring his suit against
the City and the Court should not consider Mr. Sutherland’s arguments to the contrary.
Mr. Sutherland’s attempt to rehash the Court’s decisions to dismiss his Complaint and
award attorneys’ fees to the City is part-and-parcel of his frivolous litigation tactics in this case
that continue to burden the City and its taxpayers with attorneys’ fees and costs.
Dated this 7th day of May, 2019.
SHERMAN & HOWARD L.L.C.
s/ Rosemary A. Loehr
Rosemary A. Loehr (#52559)
John W. Mill (#22348)
Sherman & Howard L.L.C.
633 Seventeenth Street, Suite 3000
Denver, Colorado 80202
(303) 297-2900
rloehr@shermanhoward.com
jmill@shermanhoward.com
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CERTIFICATE OF SERVICE
I certify that on the 7th day of May, 2019, a true and correct copy of the foregoing CITY
OF FORT COLLINS’S RESPONSE TO PLAINTIFF’S MOTION TO WITHDRAW
PLAINTIFF’S RULE 59 MOTION was filed via Colorado Court’s E-Filing system, and was
served on the following:
Eric Sutherland, pro se
3520 Golden Currant Boulevard
Fort Collins, CO 80521
(By email and US Mail)
Eric R. Burris, Esq.
Cole J. Woodward, Esq.
Brownstein Hyatt Farber Schreck, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202
(By Colorado Court’s E-Filing)
/s/ Patricia A. Rendoff
Patricia A. Rendoff, Legal Secretary