HomeMy WebLinkAbout2022-cv-1983-SKC - Townley v. Fort Collins, et al - 046 - Reply Motion to DismissIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:22-CV-01983-SKC
MICHAEL PIPER TOWNLEY, ANNA KRUGER, and JOSHUA DeLEON;
Plaintiffs,
v.
BRIAN MALLORY, in his individual capacity;
ETHAN VanSICKLE, in his individual capacity;
DANIEL NETZEL, in his individual capacity;
JARED ROBERTSON, in his individual capacity;
JOE SCHILZ, in his individual capacity;
JASON HAFERMAN, in his individual capacity;
CHRISTOPHER YOUNG, in his individual capacity;
Defendants.
DEFENDANT DANIEL NETZEL’S REPLY IN SUPPORT OF MOTION TO DISMISS
PLAINTIFFS’ FIRST AMENDED COMPLAINT [ECF 20] PURSUANT TO FED. R. CIV.
P. 12(b)(6)
Defendant Daniel Netzel, by and through his undersigned counsel, Hall & Evans,
LLC, and pursuant to Fed.R.Civ.P. 12(b)(6), respectfully submits this Reply in Support of
Motion to Dismiss Plaintiffs’ First Amended Complaint [ECF 20] (“Complaint”), stating in
support as follows:
I. INTRODUCTION
It is clear from the face of the Complaint Plaintiffs failed to serve the summons and
within the applicable time-frame. The result is a failure to comply with the applicable
statute of limitations, and therefore dismissal is proper pursuant to Fed. R. Civ. P.
12(b)(6), as any claim against Officer Netzel has now been extinguished. See Glaser v.
City & Cty. of Denver, 2013 U.S. Dist. LEXIS 49536, at *20-21 n.6 (D. Colo. Apr. 5,
Case No. 1:22-cv-01983-SKC Document 46 filed 03/17/23 USDC Colorado pg 1 of 12
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2013); Glaser v. City & Cty. of Denver, 755 F. App'x 852, 854 (10th Cir. 2019), citing
Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980).
Although a good faith basis or a “permissive extension” might cure Plaintiffs’
failure, no such good faith or equitable reason exists in this matter. In particular, Plaintiffs
have consistently been aware Officer Netzel was not served prior to the 90-day tolling
provision set forth in Fed. R. Civ. P. 4(m). Yet, despite having multiple opportunities to
do so, Plaintiffs ultimately failed to address the matter until well-after expiration of both
the statute of limitations, and the Rule 4(m) tolling period. Plaintiffs’ excuse is to blame
opposing Counsel and Officer Netzel. The evidence, however, demonstrates an utter
lack of diligence on the part of Plaintiffs.
II. ARGUMENT
A. Plaintiffs cannot establish good cause for failing to serve Officer
Netzel
To overcome dismissal, Plaintiffs argue good cause exists to circumvent the
applicable statute of limitations and failure to serve Officer Netzel, because they
“attempted to serve Defendant Netzel throughout the 90-day period…” and “inquired into
the status of Defendant’s employment.” (ECF 43 at 5) (emphasis added). These are,
however, misleading and unsupported positions.
1. The applicable statute of limitations and tolling provision.
Plaintiffs filed their Initial Complaint on August 8, 2022, the day the statute of
limitations expired. In accordance with Rule 4, Plaintiffs had 90 days-or by November 6,
2022-to serve Officer Netzel, otherwise the tolling period provided for pursuant to Rule 4
would expire, and the applicable 2-year statute of limitations for both the federal and State
Case No. 1:22-cv-01983-SKC Document 46 filed 03/17/23 USDC Colorado pg 2 of 12
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law claims, would begin to run once, effectively barring Plaintiffs’ claims. Implicitly,
Plaintiffs’ and their Counsel were (or should have been) well-aware of this dilemma, and
do not argue otherwise in their Response. Furthermore, even if service could not be
properly effectuated within the 90 day time frame, at a minimum relief from the Court, or
at the very least from defense counsel, could have been sought. Nonetheless, Plaintiffs’
failed to seek any type of relief, and instead purportedly “worked behind the scenes” to
avoid dismissal. The evidence establishes otherwise, and Plaintiffs’ should not be
rewarded for a lack of diligence.
2. Plaintiffs’ were not diligent in trying to serve Officer Netzel.
Plaintiffs argue they attempted to serve Defendant Netzel “throughout” the 90-day
period, and in support, they provide nothing other than a self-serving and conclusory
affidavit from Plaintiffs’ Counsel, Milo Schwab, and a receipt for service of process. Both
are, however, insufficient to establish good cause.
a. Plaintiffs’ Counsel’s affidavit is insufficient to establish good
cause or equitable relief.
Absent from Mr. Schwab’s Affidavit, is any specific or concrete identification of
efforts to seek a waiver, other than an initial conversation with Counsel. Also missing is
any substantive information identifying efforts to locate Officer Netzel, and most
importantly serve him prior to expiration of the 90-day timeframe. Mr. Schwab fails to
offer any reason why an extension of time or even further conferral with defense counsel
was not undertaken.
Plaintiffs’ Counsel affirms a search for Officer Netzel’s current place of employment
and residential address was undertaken. However, no dates or specific identification of
Case No. 1:22-cv-01983-SKC Document 46 filed 03/17/23 USDC Colorado pg 3 of 12
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the efforts are set forth, and we are left to surmise such efforts were done within the 90-
day time frame. Plaintiff also attempts to impermissibly shift his burden with respect to
service onto defense counsel, although no citation supporting any such approach is
provided.
Mr. Schwab also heavily relies on an impermissible and baseless presumption
regarding the whereabouts of Officer Netzel, apparently arguing he was somehow
“hoodwinked” into thinking Officer Netzel was no longer employed as a Fort Collins Police
Officer. Plaintiffs’ Counsel argues “(b)ased on communications, I understood that Mr.
Netzel was no longer an employee of the Fort Collins Police Department.” (ECF 43 at ¶
8). No logical basis exists why Plaintiffs’ Counsel made such an assumption, specifically
because the representation was never made by anyone.
Mr. Schwab’s belief he was somehow mislead, is also belied by the written
correspondence with Defense Counsel. In particular, the pertinent email exchange
shows: (1) Defense Counsel did not have permission to waive service for Officer Netzel
(See ECF 43-2), and; (2) Defense Counsel did not have permission to represent Officer
Netzel. (ECF 43-4). Defense Counsel’s efforts with respect to representation, concern
communications with the City and are protected by the attorney-client privilege as well as
the work-product doctrine. Nonetheless, despite Mr. Schwab’s unsupported accusations,
the representations made to him were correct, and any inference to the contrary is
misplaced. As initially explained to Mr. Schwab, “(t)he status of accepting service and
representation may change with respect to the other officers.” (ECF 43-4 at 1). Indeed,
service was ultimately and expressly waived for the remaining Defendants, “except Netzle
Case No. 1:22-cv-01983-SKC Document 46 filed 03/17/23 USDC Colorado pg 4 of 12
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(sic).” (ECF 43-4 at 2). Certainly, an indication of representation and waiver of service
would have been provided to Mr. Schwab, had such information existed within the 90-day
time frame, as it had been for the other Defendants.1
b. The receipt for service of process fails to show any attempts during
the 90-day tolling period.
The receipt for service of process also fails to support Plaintiffs’ Counsel’s
contention “continuous efforts” were made during the 90-day period pursuant to Rule
4(m). In particular, the receipt from the process server identifies only one attempt at
service-January 20, 2023-the day process was effectuated. No other dates respecting
service attempts are identified, including “continuous efforts” to serve Officer Netzel. This
implies no other attempts were made, despite Plaintiffs’ contentions efforts were made
1 Permission to represent Officer Netzel, and to waive service, was received by
undersigned Counsel, but only at or subsequent to the expiration of the 90-day time
period. As Mr. Schwab and the Plaintiffs failed to request any extension of the summons,
or engage in any other efforts to extend the tolling period, the summons as well as the
applicable statute of limitations expired. Once representation was undertaken, there was
nothing for Officer Netzel to accept or waive, nor does there appear to be any authority
requiring a defendant to forego a statute of limitations defense, especially given the lack
of diligence by Plaintiffs. Plaintiffs’ statement that “Defense counsel could easily have
indicated…he represented Defendant Netzel and that Defendant Netzel was refusing to
accept service” (ECF 43 at 5), is just wrong and fails to comprehend a situation Mr.
Schwab was simply not privy to.
Case No. 1:22-cv-01983-SKC Document 46 filed 03/17/23 USDC Colorado pg 5 of 12
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“throughout” the 90-day period.
c. Multiple correspondence and pleadings served as a constant
reminder to Plaintiffs’ Counsel that Officer Netzel was not served.
The multiple correspondence between Counsel, and the pleadings filed in this
matter, belie Plaintiffs’ argument they were diligent in efforts to serve Officer Netzel.
During the 90-day tolling period, emails were exchanged on August 23 and September 8,
2022 (See ECF 43-2 to 43-4), and again on October 18, 2022 (See email re: conferral on
Motion for Extension of Time, attached hereto as Exhibit A), November 4 and November
6, 2022 (conferrals on Motion to Dismiss, attached hereto as Exhibits B & C). The emails
were sent on behalf of the Defendants, sans Officer Netzel, as either expressly or
implicitly discussed in the correspondence. The emails also provided continued
opportunities for Mr. Schwab to clarify any erroneous belief he had respecting Officer
Netzel’s employment or whereabouts. As argued above, however, at no point did
Plaintiffs ever confer on an extension of the time limit to serve Officer Netzel, especially
considering the approaching expiration of not only the tolling period, but the statute of
limitations as well. Furthermore, given the dismissal of the City in Plaintiffs’ amended
complaint, it could be inferred the Plaintiffs’ decided to forego a claim against Officer
Netzel, given their silence on the issues before them.
Further evidence supporting Plaintiffs’ lack of diligence, is the parties’ exchange of
additional email correspondence on December 11 and 12, 2022 (conferrals on Motion to
Dismiss Amended Complaint, attached hereto as Exhibits D & E), and again on January
9 and 11, 2023 (conferral regarding proposed scheduling order and other matters,
attached hereto Exhibits F, G & H). Although beyond the time for expiration of the 90-
Case No. 1:22-cv-01983-SKC Document 46 filed 03/17/23 USDC Colorado pg 6 of 12
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day tolling period, Mr. Schwab’s office still remained silent regarding Officer Netzel, or to
even request an extension of the tolling period.
Finally, on January 11, 2023, during the conferral on the proposed scheduling order,
Plaintiff’s Counsel inquired about Officer Netzel, and was told that Officer Netzel had
subsequently retained Hall & Evans to represent his interests (See ECF 43-5 at 1,
referencing past discussions between Mr. Ratner and Mr. Schwab). At the time of the
discussions, however, the summons and statute of limitations had long since expired and
Officer Netzel’s Counsel indicated any further pursuit would result in a motion to dismiss.
The lack of service and hence diligence on the Plaintiffs’ part, is also evident in the
pleadings. On October 1, 2022, the City of Fort Collins,2 Brian Mallory, Ethan Van Sickle,
Jared Robertson, and Christopher Young filed a Motion for Extension of Time. (ECF 13).
The Motion provided a factual recitation regarding service, and an indication Counsel was
appearing for these specific Defendants, which did not include Officer Netzel.
On November 7, 2022, Defendants Mallory and Robertson filed an Answer to
Plaintiff’s Complaint. The Answer indicated it was being filed on behalf of these
Defendants, which again did not include Officer Netzel because he had not been served
(ECF 17 at 1, ftnt. 1).
On December 12, 2022, Defendants Mallory and Robertson filed an Answer to
Plaintiffs’ Amended Complaint. As before, the Answer indicated it was being filed on
behalf of these Defendants, which did not include Officer Netzel because he had not been
served. (ECF 21 at 1, ftnt. 1; ECF 22 at 1).
2 The City is no longer a Defendant in this matter.
Case No. 1:22-cv-01983-SKC Document 46 filed 03/17/23 USDC Colorado pg 7 of 12
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Despite the passage of time, the multiple reminders Officer Netzel had not
appeared in this matter, and discussions with Counsel, Plaintiffs did not request anything
from the Court until January 11, 2023 (See summons request, ECF 28). The failure to
effectuate service is squarely on Plaintiffs’, and not because of the “conduct of Officer
Netzel” or his Attorney. No good cause is provided, and the Plaintiffs’ should not benefit
from their failure to pursue this matter properly and diligently.
d. No order to show cause was necessary.
Plaintiffs also argue “Defendant Netzel was served prior to any Order to Show
cause…” (ECF 43 at 5-6), or “notice” to the Plaintiffs (ECF 43 at 9). Rule 4(m) provides
in pertinent part, “(i)f a defendant is not served within 90 days after the complaint is filed,
the court-on motion or on its own after notice to the plaintiff-must dismiss the action…”
Fed. R. Civ. P. 4(m) (emphasis added). The Rule requires dismissal, either through the
filing of a motion or on the Court’s on accord. No requirement for an order to show cause
or notice is set forth in the Rule.
B. There is no permissive extension.
1. Permissive extension factors
The factors pertaining to a permissive extension, favor Officer Netzel. (See
Espinoza v. U.S., 52 F.3d 838 (10th Cir. 1995). The pertinent factors are the prejudice
to Officer Netzel, the statute of limitations, and the length of delay, as the complex
requirements of multiple service and the pro se status of a plaintiff, are not issues in this
matter. Id.
This matter has been on-going since Plaintiffs filed their initial complaint in August,
Case No. 1:22-cv-01983-SKC Document 46 filed 03/17/23 USDC Colorado pg 8 of 12
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2022. A scheduling order has been entered with respect to the remaining Defendants,
disclosures have been made. Perhaps, though, the issue of prejudice is best considered
with respect to the statute of limitations. The Plaintiffs have failed to establish good cause
for any mandatory extension of time under Rule 4, and to allow even a permissive joinder
would entirely circumvent the applicable statute of limitations and force Officer Netzel to
defense against claims which would otherwise be barred. As discussed above, this
matter goes beyond form versus substance, as Plaintiffs did nothing to pursue the claim
against Officer Netzel. Now, having realized their failures, Plaintiffs ask for a “do-over”,
or in essence retroactive application of an exception. See e.g. Johnson v. Spencer, 950
F.3d 680, 696 (10th Cir. 2020) (“(R)etroactivity in civil cases must be limited by the need
for finality; once suit is barred by… statutes of limitation…, a new rule cannot reopen the
door already closed.") citing James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,
541 (1991) (discussing applicability of a new rule to an otherwise closed matter).
Although we are not discussing a new rule under Fed. R. Civ. P 4(m), the same concept
applies. That is, Officer Netzel should be entitled to finality of a claim, which has long
since expired. Otherwise, the rules of procedure and statutes of limitations have no effect
on litigation, given the ability to circumvent both.
The length of delay should also be considered with respect to Officer Netzel’s
arguments against a finding of good faith. As argued before, Plaintiffs waited
approximately five-months before doing anything substantive with respect to service on
Officer Netzel, despite multiple opportunities to diligently address the matter.
Case No. 1:22-cv-01983-SKC Document 46 filed 03/17/23 USDC Colorado pg 9 of 12
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2. The factors in Raeth are not applicable here.
Plaintiffs’ citation to Raeth v. Bank One, 2008 WL 410596 (D. Colo. February 13,
2008) and Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992) is misplaced. In
Raeth, the court concluded it was not required to look at the factors enumerated in
Ehrenhaus. Raeth, 2008 WL 410596 at *9, ftnt. 4. As the Court in Raeth noted, a
determination from the record regarding whether the relevant statute of limitations had
run, could not be made, and therefore the Ehrenhaus factors were inappropriate. The
courts conclusion suggests the Ehrenhaus factors are to be used to provide direction
when a factual basis for application of the statute of limitations is unclear. Here, however,
the statute of limitations and Plaintiffs’ failure to serve the Complaint or comply with the
appliable rule in a timely and diligent manner, is plainly clear from the allegations of the
Complaint. Therefore, the Ehrenhaus factors should not be utilized.3
III. CONCLUSION
For the foregoing reasons, Officer Netzel requests this Court enter an Order
dismissing all claims against him, with prejudice, and granting all other and further relief
deemed just and proper.
Respectfully submitted this 16th day of March 2023.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Andrew D. Ringel, Esq.
Katherine N. Hoffman, Esq.
Hall & Evans, L.L.C.
3 It should also be noted the Raeth Court dismissed the matter utilizing the
Ehrenhaus factors, even though dismissal would bar refiling.
Case No. 1:22-cv-01983-SKC Document 46 filed 03/17/23 USDC Colorado pg 10 of 12
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1001 17th Street, Suite 300, Denver, CO 80202
303-628-3300 /Fax: 303-628-3368
ratnerm@hallevans.com
ringela@hallevans.com
hoffmank@hallevans.com
Attorneys for Defendants Brian Mallory,
Ethan VanSickle, Daniel Netzel, Jared
Robertson, Joe Schilz, and Christopher
Young
Case No. 1:22-cv-01983-SKC Document 46 filed 03/17/23 USDC Colorado pg 11 of 12
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 17th day of March 2023, a true and correct copy of the
foregoing DEFENDANT DANIEL NETZEL’S REPLY IN SUPPORT OF MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT [ECF 20] PURSUANT TO FED.
R. CIV. P. 12(b)(6) was filed with the Court via CM/ECF and served on the below-listed
party by email:
Edward Milo Schwab, Esq.
milo@ascendcounsel.co
s/ Sarah Stefanick
Case No. 1:22-cv-01983-SKC Document 46 filed 03/17/23 USDC Colorado pg 12 of 12
From:Ratner, Mark S.
To:Milo Schwab
Cc:Tamborello, Amber;Stefanick, Sarah;Nick List
Bcc:6139_99_CITY OF FORT COLLINS_Michael Piper Townley_ et al_ v_ The City of Fort Collins_ et al_ E_Mail
Subject:RE: Townley et al v. Fort Collins, et al.
Date:Tuesday, October 18, 2022 10:47:44 AM
Attachments:image001.png
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Thank you. I will file an unopposed Motion so at least the Court is aware.
Mark
Mark S. Ratner | Member
ratnerm@hallevans.com
Tel: 303-628-3337
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
COLORADO | MISSOURI | MONTANA | NEW MEXICO | UTAH | WYOMING
website | bio | LinkedIn
From: Milo Schwab <milo@ascendcounsel.co>
Sent: Tuesday, October 18, 2022 10:46 AM
To: Ratner, Mark S. <ratnerm@hallevans.com>
Cc: Tamborello, Amber <tamborelloa@hallevans.com>; Stefanick, Sarah
<stefanicks@hallevans.com>; Nick List <nick@ascendcounsel.co>
Subject: Re: Townley et al v. Fort Collins, et al.
**CAUTION: This email originated outside H&E. Please scrutinize all links and
attachments.**
Hi Mark, yeah, that's fine.
Milo
On Tue, Oct 18, 2022 at 9:33 AM Ratner, Mark S. <ratnerm@hallevans.com> wrote:
Good Morning, Milo and Nick. We just filed the Waivers of Service for Officers Haferman and
Schilz. I believe there responses are due on November 7, 2022. Given the length and complexity
of the Complaint, I would like to ask for an extension of time to file a Response on behalf of the
Case No. 1:22-cv-01983-SKC Document 46-1 filed 03/17/23 USDC Colorado pg 1 of 2
other Officers we waived service for, to November 7, 2022. That way, everything is filed at once.
Can you please let me know your position?
Best Regards,
Mark
Mark S. Ratner | Member
ratnerm@hallevans.com
Tel: 303-628-3337
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
COLORADO | MISSOURI | MONTANA | NEW MEXICO | UTAH | WYOMING
website | bio | LinkedIn
Confidentiality Notice: This e-mail and any files transmitted with it are confidential and intended solely for the named
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destroy all copies of the original message. Our spam protection may prevent any reply e-mail from being delivered. If I
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attachments are believed to be free of viruses and defects, but it is the responsibility of the recipient to ensure that it is
virus-free. The sender is not responsible for any loss or damage arising from its use.
--
E. Milo Schwab
Ascend Counsel, LLC
T: (303) 888-4407
2401 S Downing St. Denver CO, 80210
milo@ascendcounsel.co |www.ascendcounsel.co
Case No. 1:22-cv-01983-SKC Document 46-1 filed 03/17/23 USDC Colorado pg 2 of 2
From:Ratner, Mark S.
To:Milo Schwab
Cc:Nick List;Hoffman, Katherine N.
Subject:RE: Townley v. City of Fort Collins et al.
Date:Friday, November 4, 2022 1:00:02 PM
Attachments:image001.png
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No worries. My discussion was going to center around filing a motion to dismiss. There are a
number of Defendants where there are no allegations, only claims. In order to avoid wasted efforts,
and in case you want to file an amended complaint, I would suggest allowing an additional extension
to Monday the 14th? My guess is the Court will appreciate the efforts from both sides to discuss
before a Motion s filed. Thoughts?
Mark
Mark S. Ratner | Member
ratnerm@hallevans.com
Tel: 303-628-3337
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
COLORADO | MISSOURI | MONTANA | NEW MEXICO | UTAH | WYOMING
website | bio | LinkedIn
From: Milo Schwab <milo@ascendcounsel.co>
Sent: Friday, November 4, 2022 12:57 PM
To: Ratner, Mark S. <ratnerm@hallevans.com>
Cc: Nick List <nick@ascendcounsel.co>; Hoffman, Katherine N. <hoffmank@hallevans.com>
Subject: Re: Townley v. City of Fort Collins et al.
**CAUTION: This email originated outside H&E. Please scrutinize all links and
attachments.**
Hey Mark, sorry, just getting this. Unfortunately, I don't have time today or on Monday. I can do
Tuesday morning before 10 or between 11 and 2.
Let me know,
Thanks,
Case No. 1:22-cv-01983-SKC Document 46-2 filed 03/17/23 USDC Colorado pg 1 of 2
Milo
On Thu, Nov 3, 2022 at 1:05 PM Ratner, Mark S. <ratnerm@hallevans.com> wrote:
Good Afternoon, Milo and Nick. Do either of you have some time to discuss this matter?
Mark
Mark S. Ratner | Member
ratnerm@hallevans.com
Tel: 303-628-3337
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
COLORADO | MISSOURI | MONTANA | NEW MEXICO | UTAH | WYOMING
website | bio | LinkedIn
Confidentiality Notice: This e-mail and any files transmitted with it are confidential and intended solely for the named
addressee(s) of this message and may be subject to attorney-client privilege or work-product protection. If you are not the
named addressee, unauthorized use, disclosure or distribution is prohibited; please notify the sender by reply email and
destroy all copies of the original message. Our spam protection may prevent any reply e-mail from being delivered. If I
have not responded to your email within 48 hours, please contact our office at 303/628-3300. This e-mail and any
attachments are believed to be free of viruses and defects, but it is the responsibility of the recipient to ensure that it is
virus-free. The sender is not responsible for any loss or damage arising from its use.
--
E. Milo Schwab
Ascend Counsel, LLC
T: (303) 888-4407
2401 S Downing St. Denver CO, 80210
milo@ascendcounsel.co |www.ascendcounsel.co
Case No. 1:22-cv-01983-SKC Document 46-2 filed 03/17/23 USDC Colorado pg 2 of 2
From:Ratner, Mark S.
To:Milo Schwab
Cc:Nick List;Hoffman, Katherine N.;Ringel, Andrew D.
Bcc:6139_99_CITY OF FORT COLLINS_Michael Piper Townley_ et al_ v_ The City of Fort Collins_ et al_ E_Mail
Subject:RE: Townley v. City of Fort Collins et al.
Date:Sunday, November 6, 2022 11:58:09 AM
Attachments:image002.png
image003.png
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Milo, following-up on my email below, we are filing a Motion to Dismiss on behalf of the City of Fort
Collins, as well as Officers Van Sickle, Schliz, Haferman, and Young. In particular, there are no
allegations as to any wrongful conduct on behalf of the individual Officers, or specific allegations
addressing any purported conspiracy. In addition, there are no allegations respect any custom,
practice, policy, or procedure, with respect to the City. The Motion will also argue C.R.S. 13-21-131
is inapplicable to claims against a municipality.
If you would like to discuss, I can be reached at (773) 383-7704.
Best Regards,
Mark
Mark S. Ratner | Member
ratnerm@hallevans.com
Tel: 303-628-3337
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
COLORADO | MISSOURI | MONTANA | NEW MEXICO | UTAH | WYOMING
website | bio | LinkedIn
From: Ratner, Mark S. <ratnerm@hallevans.com>
Sent: Friday, November 4, 2022 1:00 PM
To: Milo Schwab <milo@ascendcounsel.co>
Cc: Nick List <nick@ascendcounsel.co>; Hoffman, Katherine N. <hoffmank@hallevans.com>
Subject: RE: Townley v. City of Fort Collins et al.
No worries. My discussion was going to center around filing a motion to dismiss. There are a
number of Defendants where there are no allegations, only claims. In order to avoid wasted efforts,
and in case you want to file an amended complaint, I would suggest allowing an additional extension
to Monday the 14th? My guess is the Court will appreciate the efforts from both sides to discuss
before a Motion s filed. Thoughts?
Case No. 1:22-cv-01983-SKC Document 46-3 filed 03/17/23 USDC Colorado pg 1 of 3
Mark
Mark S. Ratner | Member
ratnerm@hallevans.com
Tel: 303-628-3337
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
COLORADO | MISSOURI | MONTANA | NEW MEXICO | UTAH | WYOMING
website | bio | LinkedIn
From: Milo Schwab <milo@ascendcounsel.co>
Sent: Friday, November 4, 2022 12:57 PM
To: Ratner, Mark S. <ratnerm@hallevans.com>
Cc: Nick List <nick@ascendcounsel.co>; Hoffman, Katherine N. <hoffmank@hallevans.com>
Subject: Re: Townley v. City of Fort Collins et al.
**CAUTION: This email originated outside H&E. Please scrutinize all links and
attachments.**
Hey Mark, sorry, just getting this. Unfortunately, I don't have time today or on Monday. I can do
Tuesday morning before 10 or between 11 and 2.
Let me know,
Thanks,
Milo
On Thu, Nov 3, 2022 at 1:05 PM Ratner, Mark S. <ratnerm@hallevans.com> wrote:
Good Afternoon, Milo and Nick. Do either of you have some time to discuss this matter?
Mark
Mark S. Ratner | Member
ratnerm@hallevans.com
Tel: 303-628-3337
Case No. 1:22-cv-01983-SKC Document 46-3 filed 03/17/23 USDC Colorado pg 2 of 3
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
COLORADO | MISSOURI | MONTANA | NEW MEXICO | UTAH | WYOMING
website | bio | LinkedIn
Confidentiality Notice: This e-mail and any files transmitted with it are confidential and intended solely for the named
addressee(s) of this message and may be subject to attorney-client privilege or work-product protection. If you are not the
named addressee, unauthorized use, disclosure or distribution is prohibited; please notify the sender by reply email and
destroy all copies of the original message. Our spam protection may prevent any reply e-mail from being delivered. If I
have not responded to your email within 48 hours, please contact our office at 303/628-3300. This e-mail and any
attachments are believed to be free of viruses and defects, but it is the responsibility of the recipient to ensure that it is
virus-free. The sender is not responsible for any loss or damage arising from its use.
--
E. Milo Schwab
Ascend Counsel, LLC
T: (303) 888-4407
2401 S Downing St. Denver CO, 80210
milo@ascendcounsel.co |www.ascendcounsel.co
Case No. 1:22-cv-01983-SKC Document 46-3 filed 03/17/23 USDC Colorado pg 3 of 3
From:Ratner, Mark S.
To:Milo Schwab
Cc:Ringel, Andrew D.;Hoffman, Katherine N.;Spittell, Kaitlin I.
Bcc:6139_99_CITY OF FORT COLLINS_Michael Piper Townley_ et al_ v_ The City of Fort Collins_ et al_ E_Mail
Subject:Townley v. Mallory et al.
Date:Sunday, December 11, 2022 4:35:37 PM
Attachments:HELogo-600_1647bba9-82b6-4878-b39e-e05e65e25e7e.png
Good Afternoon, Milo.
After review of your Amended Complaint, we intend to file another Motion to Dismiss pursuant to
12(b)(6,) on behalf of Officers VanSickel, Schilz, Haferman, and Young. The basis for the Motion is
essentially as set forth in the previous Motion to Dismiss. In particular, despite the attempts at
adding modifying the Complaint, the additional allegations are still conclusory and therefore
improper.
I am available to discuss via telephone or Teams. Since our Response to the Amended Complaint is
due tomorrow, please let me know if would like to discuss. If tomorrow does not work, perhaps we
can entertain a motion for extension of time.
Best Regards,
Mark
Mark S. Ratner | Member
ratnerm@hallevans.com
Tel: 303-628-3337
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
COLORADO | MISSOURI | MONTANA | NEW MEXICO | UTAH | WYOMING
website | bio | LinkedIn
Case No. 1:22-cv-01983-SKC Document 46-4 filed 03/17/23 USDC Colorado pg 1 of 1
From:Ratner, Mark S.
To:Milo Schwab
Cc:Ringel, Andrew D.;Hoffman, Katherine N.;Spittell, Kaitlin I.;Nick List
Bcc:6139_99_CITY OF FORT COLLINS_Michael Piper Townley_ et al_ v_ The City of Fort Collins_ et al_ E_Mail
Subject:RE: Townley v. Mallory et al.
Date:Monday, December 12, 2022 11:15:05 AM
Attachments:image001.png
HELogo-600_1647bba9-82b6-4878-b39e-e05e65e25e7e.png
Good Morning, Milo. Following-up on the email below. Please let me know if you would like to
discuss. I can be reached at (773) 383-7704.
Mark
Mark S. Ratner | Member
ratnerm@hallevans.com
Tel: 303-628-3337
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
COLORADO | MISSOURI | MONTANA | NEW MEXICO | UTAH | WYOMING
website | bio | LinkedIn
From: Ratner, Mark S. <ratnerm@hallevans.com>
Sent: Sunday, December 11, 2022 4:36 PM
To: Milo Schwab <milo@ascendcounsel.co>
Cc: Ringel, Andrew D. <ringela@hallevans.com>; Hoffman, Katherine N.
<hoffmank@hallevans.com>; Spittell, Kaitlin I. <spittellk@hallevans.com>
Subject: Townley v. Mallory et al.
Good Afternoon, Milo.
After review of your Amended Complaint, we intend to file another Motion to Dismiss pursuant to
12(b)(6,) on behalf of Officers VanSickel, Schilz, Haferman, and Young. The basis for the Motion is
essentially as set forth in the previous Motion to Dismiss. In particular, despite the attempts at
adding modifying the Complaint, the additional allegations are still conclusory and therefore
improper.
I am available to discuss via telephone or Teams. Since our Response to the Amended Complaint is
due tomorrow, please let me know if would like to discuss. If tomorrow does not work, perhaps we
can entertain a motion for extension of time.
Best Regards,
Case No. 1:22-cv-01983-SKC Document 46-5 filed 03/17/23 USDC Colorado pg 1 of 2
Mark
Mark S. Ratner | Member
ratnerm@hallevans.com
Tel: 303-628-3337
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
COLORADO | MISSOURI | MONTANA | NEW MEXICO | UTAH | WYOMING
website | bio | LinkedIn
Case No. 1:22-cv-01983-SKC Document 46-5 filed 03/17/23 USDC Colorado pg 2 of 2
From:Ratner, Mark S.
To:Milo Schwab;Ringel, Andrew D.;Hoffman, Katherine N.;jonathan@kandf.com;julie@kandf.com;Lesar, Kristin;
Stefanick, Sarah;Nick List;alexandra@kandf.com;cc: Beth Ann Jackson;jody@kandf.com;Marion, Nicole;
Walker, Rebecca;Tamborello, Amber;Erkhart, Olivia
Subject:RE: Townley - Draft Proposed Scheduling Order
Date:Monday, January 9, 2023 1:43:17 PM
Attachments:HELogo-600_1647bba9-82b6-4878-b39e-e05e65e25e7e.png
Milo, the only time I have this week, is Wednesday morning.
Mark
Mark S. Ratner | Member
ratnerm@hallevans.com
Tel: 303-628-3337
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
COLORADO | MISSOURI | MONTANA | NEW MEXICO | UTAH | WYOMING
website | bio | LinkedIn
From: Milo Schwab <milo@ascendcounsel.co>
Sent: Monday, January 9, 2023 12:18 PM
To: Ringel, Andrew D. <ringela@hallevans.com>; Hoffman, Katherine N.
<hoffmank@hallevans.com>; Ratner, Mark S. <ratnerm@hallevans.com>; jonathan@kandf.com;
julie@kandf.com; Lesar, Kristin <lesark@hallevans.com>; Stefanick, Sarah
<stefanicks@hallevans.com>; Nick List <nick@ascendcounsel.co>; alexandra@kandf.com; cc: Beth
Ann Jackson <ejackson@kandf.com>; jody@kandf.com; Marion, Nicole <marionn@hallevans.com>;
Walker, Rebecca <walkerr@hallevans.com>; Tamborello, Amber <tamborelloa@hallevans.com>;
Erkhart, Olivia <erkharto@hallevans.com>
Subject: Townley - Draft Proposed Scheduling Order
**CAUTION: This email originated outside H&E. Please scrutinize all links and
attachments.**
Hey everyone, please find attached a draft Scheduling Order. I apologize for not getting this out
earlier.
What is everyone's availability for a call to go over this this week? I am generally available the rest of
the week.
Case No. 1:22-cv-01983-SKC Document 46-6 filed 03/17/23 USDC Colorado pg 1 of 2
Additionally, the magistrate consent is due on Thursday as well. Does anyone wish to withhold
consent in this case?
Thanks,
Milo
--
E. Milo Schwab
Ascend Counsel, LLC
T: (303) 888-4407
2401 S Downing St. Denver CO, 80210
milo@ascendcounsel.co |www.ascendcounsel.co
Case No. 1:22-cv-01983-SKC Document 46-6 filed 03/17/23 USDC Colorado pg 2 of 2
From:Ratner, Mark S.
To:Milo Schwab;Nick List
Cc:Ringel, Andrew D.;Hoffman, Katherine N.;jonathan@kandf.com;julie@kandf.com;alexandra@kandf.com;cc:
Beth Ann Jackson;jody@kandf.com;Tamborello, Amber;Lesar, Kristin
Bcc:6139_99_CITY OF FORT COLLINS_Michael Piper Townley_ et al_ v_ The City of Fort Collins_ et al_ E_Mail
Subject:RE: Townley - Draft Proposed Scheduling Order
Date:Wednesday, January 11, 2023 12:08:38 PM
Attachments:HELogo-600_1647bba9-82b6-4878-b39e-e05e65e25e7e.png
Draft Proposed Scheduling Order Fort Collins" Dfndts edits 01 11 23(10311174.1).docx
Good Afternoon, Milo. Attached, please find a draft proposed scheduling order, which includes
additions and changes from the Fort Collins Defendants as well as Defendant Haferman. Because
Counsel for Haferman is not available to discuss today, I have been asked to convey the message
that there may additional changes to the scheduling order after their discussions with you.
Please let me know when you would like to discuss. I am available now until 12:30. We can also
discuss on Thursday or Friday, but I do not have a specific time that I can be available.
Mark
Mark S. Ratner | Member
ratnerm@hallevans.com
Tel: 303-628-3337
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
COLORADO | MISSOURI | MONTANA | NEW MEXICO | UTAH | WYOMING
website | bio | LinkedIn
Confidentiality Notice: This e-mail and any files transmitted with it are confidential and intended solely for the named
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named addressee, unauthorized use, disclosure or distribution is prohibited; please notify the sender by reply email and
destroy all copies of the original message. Our spam protection may prevent any reply e-mail from being delivered. If I have
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From: Milo Schwab <milo@ascendcounsel.co>
Sent: Monday, January 9, 2023 12:18 PM
To: Ringel, Andrew D. <ringela@hallevans.com>; Hoffman, Katherine N.
<hoffmank@hallevans.com>; Ratner, Mark S. <ratnerm@hallevans.com>; jonathan@kandf.com;
julie@kandf.com; Lesar, Kristin <lesark@hallevans.com>; Stefanick, Sarah
<stefanicks@hallevans.com>; Nick List <nick@ascendcounsel.co>; alexandra@kandf.com; cc: Beth
Ann Jackson <ejackson@kandf.com>; jody@kandf.com; Marion, Nicole <marionn@hallevans.com>;
Walker, Rebecca <walkerr@hallevans.com>; Tamborello, Amber <tamborelloa@hallevans.com>;
Case No. 1:22-cv-01983-SKC Document 46-7 filed 03/17/23 USDC Colorado pg 1 of 2
Erkhart, Olivia <erkharto@hallevans.com>
Subject: Townley - Draft Proposed Scheduling Order
**CAUTION: This email originated outside H&E. Please scrutinize all links and
attachments.**
Hey everyone, please find attached a draft Scheduling Order. I apologize for not getting this out
earlier.
What is everyone's availability for a call to go over this this week? I am generally available the rest of
the week.
Additionally, the magistrate consent is due on Thursday as well. Does anyone wish to withhold
consent in this case?
Thanks,
Milo
--
E. Milo Schwab
Ascend Counsel, LLC
T: (303) 888-4407
2401 S Downing St. Denver CO, 80210
milo@ascendcounsel.co |www.ascendcounsel.co
Case No. 1:22-cv-01983-SKC Document 46-7 filed 03/17/23 USDC Colorado pg 2 of 2