HomeMy WebLinkAbout2016CV1308 - FTN - FORT COLLINS V. CITY OF FORT COLLINS - 038 - DEFENDANT'S ANSWER AND JURY DEMANDIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01308-RBJ-KLM
FREE THE NIPPLE – FORT COLLINS,
BRITTIANY HOAGLAND,
SAMANTHA SIX,
Plaintiffs,
v.
CITY OF FORT COLLINS, COLORADO,
Defendant.
DEFENDANT’S ANSWER AND JURY DEMAND
Defendant City of Fort Collins, Colorado, through its attorneys, Andrew D. Ringel, Esq.,
Gillian Dale, Esq., and Christina S. Gunn, Esq., of Hall & Evans, LLC, and Carrie Mineart
Daggett, Esq., and John R. Duval, Esq., of the Fort Collins City Attorney’s Office, by way of
response to Plaintiffs’ Complaint, admits, denies, and avers as follows:
INTRODUCTION
1. Defendant denies the allegations contained in Paragraph 1.
2. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 2, and therefore denies the same.
3. With respect to the allegations contained in Paragraph 3, Defendant states the
terms of Section 17-142 speak for themselves, and denies any of the allegations of Paragraph 3
inconsistent therewith. Defendant denies all remaining allegations in Paragraph 3.
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4. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 4, and therefore denies the same.
5. Defendant admits the allegations contained in Paragraph 5 with respect to one or
more of Plaintiffs.
6. Defendant admits the allegations contained in Paragraph 6.
7. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 7, and therefore denies the same.
8. Defendant admits that on October 20, 2015, its City Council adopted on first
reading Ordinance No. 134, 2015, revising City Code Section 17-142, states that the terms of the
ordinance speak for themselves, and denies any of the allegations in Paragraph 8 inconsistent
therewith. Defendant denies all remaining allegations in Paragraph 8.
9. Defendant denies the allegations contained in Paragraph 9.
PARTIES
10. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 10, and therefore denies the same.
11. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 11, and therefore denies the same.
12. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 12, and therefore denies the same.
13. Defendant admits the allegations contained in Paragraph 13.
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JURISDICTION AND VENUE
14. Paragraph 14 consists of a description of the legal basis for Plaintiffs’ claims, to
which no response is required. To any extent Paragraph 14 can be read as containing any factual
allegations, they are denied.
15. Defendant admits that this Court possesses subject matter jurisdiction over this
matter.
16. Defendant admits venue is proper in this Court.
17. Defendant admits this Court possesses subject matter jurisdiction over this matter.
FACTS
18. With respect to the allegations contained in Paragraph 18, Defendant states the
terms of the prior version of Section 17-142 speak for themselves, and denies any of the
allegations of Paragraph 18 inconsistent therewith. Defendant denies all remaining allegations in
Paragraph 18.
19. Defendant denies that Section 17-142 is discriminatory. Defendant is without
sufficient information to form a belief as to the truth of the remaining allegations contained in
Paragraph 19, and therefore denies the same.
20. Defendant admits the allegations contained in Paragraph 20.
21. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 21, and therefore denies the same.
22. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 22, and therefore denies the same.
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23. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 23, and therefore denies the same.
24. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 24, and therefore denies the same.
25. Defendant admits its City Council considered various revisions to Section 17-142
at a meeting in October 2015. Defendant denies all remaining allegations in Paragraph 25.
26. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 26, and therefore denies the same. Defendant denies that its
justifications for Section 17-142’s different treatment of men’s and women’s breasts are
motivated by unlawful “sex stereotypes, double standards, hypocrisies, and the hyper-
sexualization . . . of women’s breasts.”
27. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 27, and therefore denies the same.
28. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 28, and therefore denies the same.
29. With respect to the allegations contained in Paragraph 29, Defendant states the
terms of Ordinance No. 134, 2015, speak for themselves, and deny any of the allegations of
Paragraph 29 inconsistent therewith.
30. With respect to the allegations contained in Paragraph 30, Defendant states the
terms of revised Section 17-142 speak for themselves, and denies any of the allegations of
Paragraph 30 inconsistent therewith. Defendant denies all remaining allegations in Paragraph 30.
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31. Defendant denies that Paragraph 31 describes the entirety of all reasons advanced
in support of the revised version of Section 17-142. Defendant denies all remaining allegations
contained in Paragraph 31.
32. Defendant objects to Paragraph 32 as vague and ambiguous and incapable of any
response, in that the “veiled references to religious morality” are not identified or explained.
Otherwise, the Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 32, and therefore denies the same.
33. With respect to the allegations contained in Paragraph 33, Defendant states the
terms of the referenced emails speak for themselves, and deny any of the allegations of
Paragraph 33 inconsistent therewith. Defendant denies all remaining allegations contained in
Paragraph 33.
34. With respect to the allegations contained in Paragraph 34, Defendant states the
terms of the referenced emails speak for themselves, and deny any of the allegations of
Paragraph 34 inconsistent therewith. Defendant denies all remaining allegations in Paragraph 34.
35. Defendant objects to Paragraph 35 on the ground that the source of the quoted
language is not identified and therefore cannot be verified. Defendant denies all remaining
allegations in Paragraph 35.
36. Defendant denies the allegations contained in Paragraph 36.
37. Defendant denies the allegations contained in Paragraph 37.
38. Defendant admits that its City Council enacted revised Section 17-142 at its
November 3, 2015, meeting, states that the terms of the revised ordinance speak for themselves,
and denies any of the allegations contained in Paragraph 38 in consistent therewith.
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39. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 39, and therefore denies the same.
40. With respect to the allegations contained in Paragraph 40, Defendant states the
terms of the revised ordinance speak for themselves, and deny any of the allegations of
Paragraph 40 inconsistent therewith. Defendant denies all remaining allegations in Paragraph 40.
41. Defendant is without sufficient information to form a belief as to the truth of the
allegations contained in Paragraph 41, and therefore denies the same.
42. Defendant admits the allegations contained in Paragraph 42.
CLAIM 1: FIRST AMENDMENT
43 to 48. Plaintiff’s First Claim has been dismissed, and as a result no response is
required to Paragraphs 43 to 48. To the extent a response is deemed required, all such allegations
are denied by Defendant.
CLAIM II: EQUAL PROTECTION
49. Defendant incorporates its responses to all other allegations in the Complaint.
50. With respect to the allegations contained in Paragraph 50, Defendant states the
terms of the Equal Protection Clause speak for themselves, and deny any of the allegations of
Paragraph 50 inconsistent therewith.
51. With respect to the allegations contained in Paragraph 51, Defendant states the
terms of Section 17-142 speak for themselves, and deny any of the allegations of Paragraph 51
inconsistent therewith.
52. Defendant denies the allegations contained in Paragraph 52.
53. Defendant denies the allegations contained in Paragraph 53.
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CLAIM III: EQUALITY OF SEXES
54. Defendant incorporates its responses to all other allegations in the Complaint.
55. With respect to the allegations contained in Paragraph 55, Defendant states the
terms of the Equal Rights Amendment speak for themselves, and deny any of the allegations of
Paragraph 55 inconsistent therewith.
56. With respect to the allegations contained in Paragraph 56, Defendant states the
terms of Section 17-142 speak for themselves, and deny any of the allegations of Paragraph 56
inconsistent therewith.
57. Defendant denies the allegations contained in Paragraph 57.
58. Defendant denies the allegations contained in Paragraph 58.
PRAYER FOR RELIEF
Defendant denies that Plaintiff is entitled to any of the relief requested in the Complaint.
GENERAL DENIAL
Defendant denies each and every allegation in the Plaintiffs’ Complaint not specifically
admitted herein.
DEFENSES AND AFFIRMATIVE DEFENSES
1. The Complaint describes no violation of any state or federal constitutional
provision.
2. Section 17-142’s gender distinction serves important governmental objectives and
is substantially related to achievement of those objectives.
3. Section 17-142’s gender distinction is not invidious, but rather realistically
reflects the fact that the sexes are not similarly situated in certain circumstances.
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4. Section 17-142’s gender distinction is not based on social stereotypes but instead
is premised on reasonable, genuine, and real physical and biological differences between the
sexes.
5. The City Council of the City of Fort Collins enactment of the revised version of
Section 17-142 was a legislative decision and therefore deliberate process principles and
privileges apply.
6. The statements or opinions of one member of the City Council of the City of Fort
Collins are not and cannot be attributed to the City Council as a whole when the City Council
makes a legislative decision.
7. Defendant reserves the right to assert additional defenses identified in the course
of discovery.
WHEREFORE, having responded to Plaintiffs’ Complaint, Defendant requests that the
Complaint be dismissed in its entirety, with prejudice, and that Defendant be awarded its fees
and costs incurred in defense of this matter.
JURY DEMAND
Pursuant to Fed. R. Civ. P. 38, Defendant hereby demands a trial by jury on all issues so
triable.
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Dated this 4th
day of November, 2016.
Respectfully submitted,
/s/ Gillian Dale
Andrew D. Ringel, Esq.
Gillian Dale, Esq.
Christina S. Gunn, Esq.
HALL & EVANS, L.L.C.
1001 Seventeenth Street, Suite 300
Denver, CO 80202-2052
Phone: 303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
daleg@hallevans.com
gunnc@hallevans.com
/s/ John Duval
Carrie Mineart Daggett, Esq.
John R. Duval, Esq.
Fort Collins City Attorney’s Office
300 LaPorte Avenue
Fort Collins, CO 80521
Phone: 970-221-6520
Fax: 970-221-6327
cdaggett@fcgov.com
jduval@fcgov.com
ATTORNEYS FOR DEFENDANT CITY OF
FORT COLLINS, COLORADO
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CERTIFICATE OF SERVICE (CM/ECF)
I HEREBY CERTIFY that on the 4th
day of November, 2016, I electronically filed the
foregoing DEFENDANT’S ANSWER AND JURY DEMAND with the Clerk of Court using
the CM/ECF system which will send notification of such filing to the following e-mail addresses:
David A. Lane, Esq.
dlane@kln-law.com
Andy McNulty, Esq.
amcnulty@kln-law.com
Jessica K. Peck, Esq.
jessica@jpdenver.com
/s/ Denise Gutierrez, Legal Assistant to
Gillian Dale
Hall & Evans, L.L.C.
Attorneys for Defendants
1001 Seventeenth Street, Suite 300
Denver, CO 80202-2052
Phone: 303-628-3300
Fax: 303-628-3368
daleg@hallevans.com
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