HomeMy WebLinkAbout2023-cv-1342 - Cunningham V. City Of Fort Collins, Et Al. - 001 - Notice Of RemovalIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-1342
Jesse Cunningham,
Plaintiff.
v.
City of Fort Collins;
Jason Haferman;
Sergeant Allen Heaton; and
Corporal Redacted.
Defendants.
NOTICE OF REMOVAL
Defendants City of Fort Collins and Sergeant Allen Heaton, by and through their
undersigned counsel, Hall & Evans, LLC, hereby submits the following Notice of Removal
of the above-captioned action from Larimer County District Court, State of Colorado to
the United States District Court for the District of Colorado pursuant to 28 U.S.C. §§ 1331,
1441, and 1446, and Fed. R. Civ. P. 81(c), stating as follows:
I. INTRODUCTION
1. Plaintiff Jesse Cunningham (“Plaintiff”) initiated this lawsuit on May 3, 2023,
against the Defendants, in the Larimer County District Court, State of Colorado, captioned
Jesse Cunningham v. City of Fort Collins, Jason Haferman, Sergeant Allen Heaton, and
Corporal Redacted, Civil Action No. 2023CV30351, which is now pending in that court
(the “State Action”). See Exhibit A, Plaintiff’s Complaint and Jury Demand.
Case No. 1:23-cv-01342 Document 1 filed 05/26/23 USDC Colorado pg 1 of 5
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2. Plaintiff alleges he was wrongfully arrested on July 29, 2021, by Defendant
Jason Haferman. Ex. A, ¶¶ 51-104. Plaintiff further alleges the City of Fort Collins and
Sergeant Heaton failed to supervise and train Jason Haferman. Id. at ¶¶ 191 and 202-
210.
3. Plaintiff’s Complaint alleges the following claims: Against Defendant
Haferman: violation of C.R.S. § 13-21-131 – Arrest without Probable Cause. Id. at ¶¶
172-183; violation of C.R.S. § 13-21-131 – Violation of Due Process Malicious
Prosecution. Id. at ¶ ¶ 211-219; violation of 42.U.S.C. § 1983 – Malicious Prosecution.
Id. at ¶¶ 220-225; Against all Defendants: violation of 42 U.S.C. § 1983 - Unlawful Arrest
without Probable Cause – Individual, Failure-to- Supervise/Train, Unconstitutional
Pattern/Practice under Monell, Violation of Fourth Amendment Due Process. Id. at ¶¶
184-210.
II. COMPLIANCE WITH THE RULES
4. All procedural requirements related to the removal of this action have been
satisfied.
5. Defendants City of Fort Collins and Sergeant Allen Heaton waived service
on May 12, 2023. See Exhibit D, Acceptance of Service.
6. This Notice of Removal is filed within thirty (30) days of service of the
Plaintiff’s Complaint and Summons on Defendant and is timely under 28 U.S.C. §§ 1441
and 1446(b).
7. A copy of this Notice of Removal will be filed with the State Action and
served upon Plaintiff’s counsel.
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8. Pursuant to 28 U.S.C. § 1446(a) and D.C.Colo.LCiv.R. 81.1(b), copies of
the following process, pleadings, and orders that were served upon Defendants or filed
in the State Action are attached as follows:
Exhibit A Complaint
Exhibit B Civil Cover Sheet
Exhibit C Notice Judicial Civil Case Management
Exhibit D Affidavit of Service (Fort Collins & Sergeant Allen Heaton)
9. Pursuant to D.C.Colo.LCivR 81.1, Defendants state that no hearings are
pending, nor has any trial been set in the State Action.
10. Pursuant to Fed.R.Civ.P. 81(c), Defendants will present their defenses by
pleading at the time prescribed herein, and specifically reserves their rights to assert all
defenses, including those defenses under Fed.R.Civ.P. 12(b).
11. Defendants have complied with all of the requirements of 28 U.S.C. § 1446
and D.C.Colo.LCivR. 81.1.
12. The remaining Defendants – Jason Haferman and Corporal Redacted –
have not been served with Plaintiff’s Complaint. As a result, their consent to this removal
is not yet required. See 28 U.S.C. § 1446(b)(2)(A). Tate v. SNH CO Tenant LLC, 22-cv-
00827-MEH, 2022 U.S. Dist. LEXIS 126042 at *5-6 (D. Colo. July 15, 2022).
III. FEDERAL QUESTION
13. This case is removable pursuant to 28 U.S.C. § 1441(c)(1)(A) because
Plaintiff’s Complaint attempts a claim pursuant to 42 U.S.C. § 1983.Plaintiff’s Complaint
attempts a claim pursuant to 42 U.S.C. § 1983.
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WHEREFORE, Defendants City of Fort Collins and Sergeant Allen Heaton,
respectfully requests that the action now pending in the Larimer County District Court,
Case No. 2023CV30351, be removed therefrom to this Court and that all further
proceedings be heard in this Court.
Respectfully submitted this 26th day of May 2023.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300, Denver, CO 80202
303-628-3300 /Fax: 303-628-3368
ratnerm@hallevans.com
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 26th day of May 2023, a true and correct copy of the
foregoing NOTICE OF REMOVAL was filed with the Court via CM/ECF and served on
the below-listed party by email:
Sarah Schielke, Esq.
sarah@lifeandlibertylaw.com
s/ Sarah Stefanick
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