HomeMy WebLinkAbout2020CV2192 - DONNA WALTER & MARK MILLIMAN V. GOVERNOR JARED POLIS, JEFFREY J. ZAYACH, TOM GONZALEZ, AND DARIN ATTEBERRY - 047 - ORDER DISMISSING CASE AS MOOT1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 1:20-cv-02192-RBJ
DONNA WALTER and
MARK MILLIMAN,
Plaintiffs,
v.
GOVERNOR JARED POLIS, in his official capacity as Governor of Colorado,
JEFFREY J. ZAYACH, in his official capacity as Executive Director, Boulder County Public
Health,
TOM GONZALEZ, in his official capacity as Director, Larimer County Dept. of Health and
Environment,
DARIN ATTEBERRY, in his official capacity as City Manager, City of Fort Collins,
Defendants.
ORDER
Plaintiffs, through counsel, filed this case July 25, 2020 against the Governor of
Colorado; officials of Boulder and Larimer Counties; and an official of the City of Fort Collins,
challenging their respective face covering orders (“mask mandates”) that were implemented
during the COVID-19 pandemic. They asserted that these requirements violated their
constitutional right of freedom of speech. On September 18, 2020 and September 21, 2020, in
compliance with this Court’s practice standards, defendants submitted letters requesting leave to
file motions to dismiss for failure to state a claim. ECF Nos. 18, 19, and 20. Plaintiffs did not
respond. The Court granted leave to file the motions. ECF No. 21.
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On October 29, 2020 defendants filed motions to dismiss. ECF Nos. 23, 24 and 25. On
November 13, 2020 plaintiff Milliman left a voice message with Chambers that plaintiffs’
counsel had been hospitalized with a life-threatening illness and requesting an unspecified
extension of the deadline to respond to the motions to dismiss. The Court extended the deadline
to December 11, 2020 based on the voice message and requested a joint status report from the
parties. See ECF No. 27. On December 10, 2020 defendants filed a status report in which they
informed the Court that they had been unable to contact plaintiffs’ counsel despite numerous
attempts. ECF No. 28. The Court then extended the due date again, this time to December 24,
2020. ECF No. 29. However, on the same day, the original extended due date, plaintiffs through
counsel filed a response to the motions. ECF No. 30. On January 11, 2021 defendants filed
replies. ECF Nos. 40-42.
Before the Court was able to address the motions to dismiss, however, defendant Polis
submitted another letter in which he sought leave to file another motion to dismiss. ECF No.
45. In this letter Polis informed the Court that the face-covering orders challenged by the
plaintiffs had been terminated or amended in accordance with guidance from the Centers for
Disease Control and Prevention. Since plaintiffs only sought prospective relief, defendant Polis
wished to move to dismiss on grounds of mootness. The letter stated that defense counsel had
attempted to contact plaintiffs’ counsel by emails and telephone to discuss their mootness claim,
but had run into a recording on counsel’s phone indicating that the user had blocked all incoming
calls. Id. I infer that there likewise was no response to defense counsel’s email.
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The Court issued an order requiring plaintiffs to show cause by June 14, 2021 as to why
this action should not be dismissed without prejudice as moot. ECF No. 46. No response was
filed. It appears to the Court that, since plaintiffs seek only prospective relief, the case has
become moot, and the Court no longer has subject matter jurisdiction. It also appears that the
plaintiffs might have lost interest in the case. In any event, the Court sees nothing to be gained
by requiring or permitting further motion practice in the circumstances. The Court sua sponte
dismisses this case without prejudice as moot. It necessarily follows that the pending motions to
dismiss, ECF Nos. 23-25, are also moot.
DATED this 16th day of June, 2021.
BY THE COURT:
___________________________________
R. Brooke Jackson
United States District Judge
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