HomeMy WebLinkAbout2017CV01 - HOFFMAN & HUNT V. CITY OF FORT COLLINS, ET AL - 007 - PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT PURSUANT TO C.R.C.P. RULE 55 (A)FORT COLLINS MUNICIPAL COURT
215 N. Mason
Fort Collins, CO 80521
Phone (970) 2216800
Plaintiffs: Colleen Hoffman, Rick Hoffman, Ann Hunt
V.
Defendant: THE CITY COUNCIL OF THE CITY OF FORT
COLLINS, the governing body of a Colorado municipal
corporation; and THE ADMINISTRATION BRANCH OF THE
CITY OF FORT COLLINS, by and through its City Manager, A COURT USE ONLY
Darin Atteberry.
Case Number:
Parties without attorney
Colleen Hoffman, pro se 2017 crnL 01
1804 Wallenberg Drive
Fort Collins, CO 80526
(9701484 8723
cohoff@comcast.net
Rick Hoffman, pro se
1804 Wallenberg
Fort Collins, CO 80526
(970) 484 5154
rick-hoffman@comcastnet
Ann Hunt, pro se
1800 Wallenberg Drive
Fort Collins, CO 80526
(970) 484 5242
PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT PURSUANT TO C.&C.P. RULE 55(a) I
Plaintiffs, Colleen Hoffman, Rick Hoffman and Ann Hunt submit this Motion for
Default in the absence of an Answer by the Defendants.
As pro se litigants in this matter, the Plaintiffs herein use the plural pronouns (we, us,
our) to refer to themselves. Unless otherwise noted, all references to the Plaintiffs
in this pleading where a statement of position on any matter is made or inferred
indicate a jointly adopted position agreed to by all 3 individual plaintiffs.
INTRODUCTION
On March 20: ' , 2017 Plaintiff's served the Defendants with a summons and
complaint. See Exhibit A.
On April 136, 2017, this Court issued an Order that stated "This matter will
be stayed up to and including April 28t', 2017. The purpose of this stay was, as
stated in the Order, to allow the Fort Collins City Council to adopt rules for
litigating this matter. The need for rules and procedures for this and other civil
cases was stated in the Order to be without question.
On April 18', 2017, the Fort Collins City Council did adopt, on second
reading, Ordinance 52, which had the effect of adopting the Colorado Rules of
Civil Procedure into this municipal court. Pursuant to the Fort Collins City
Charter, Ordinances adopted by Council go into effect 10 days after adoption.
Thus, the C.R.C.P. became effective and binding in this matter on April 28th, 2017.
DEFENDANTS ARE IN DEFAULT AT THIS TIME
Rule 12(a)(1) of the Colorado Rules of Civil Procedure states:
A defendant shall file his answer or other response within 21 days
after the service of the summons and complaint.
There is absolutely nothing ambiguous or uncertain about the time requirements
for the filing of an answer. The service of the summons and complaint begins the
tolling of the time for an answer, and the answer must be filed within 21 days of
that event.
Pursuant to Ordinance 52 and the requirements of Article H section 7 of the
Fort Collins City Charter, the Colorado Rules of Civil Procedure became effective
on April 28t', 2017. There can be no question that the requirement of Rule
12(a)(1) was in effect on that day and that the plain and simple meaning of the
Rule was binding on this proceeding.
The plain and simple meaning of Rule 12(a)(1) required that an answer be
filed on that day the C.R.C.P. took effect, which was April 2e, 2017. There is no
other way for the Rule to be read. The summons and complaint had been served
39 days before April 28t'. 39 days is greater than 21 days and the Rule clearly
states that an answer be filed within 21 days.
In fact, the date that this court granted a stay upon motion by the defendant,
April 13, fell 23 days after service. 23 is a greater number than 21. However,
because the C.R.C.P. was not in effect on April 13t', it is reasonable to conclude
that the 21 day requirement of Rule 12(a)(1) was not in effect at that time and the
Defendants were not in default prior to the stay being issued.
N
As a practical matter, the Defendants had 39 days prior to the date that the
C.R.C.P. became effective and controlling in this matter to prepare and file an
answer. Because our complaint was actually filed and shared with the Defendants
on March 9t', the Defendants had 11 days in addition to the 39 days to consider
their answer.
In conference with the Defendants' attorney prior to filing this motion, the
Defendants have not offered any explanation of hardship or incapacity that has
prevented them from filing an answer. No other indication of hardship or
incapacity is evident. See Exhibit B.
Nonetheless, the Defendant has offered a statement that it still intends to file
an answer. However, the rationale that the Defendant has offered to explain why it
is not in default at this time is absolutely absurd as will be described in the
following paragraphs.
The Defendant holds that the tolling of the 21 days commencing upon
service was halted on the day that Defendants filed a Motion requesting the stay
that was granted on April 1 P. Yet, the Defendant"s Motion made no request
whatsoever to have the granting of a stay retroactively halt the tolling of time then
in effect. Certainly, such a request was within the capacity of the Defendants to
make. Indeed, the Defendants adequately considered the possibility that the
Motion would not be granted and did request that, in that event, the time for an
answer could be set by order of the court to occur 21 days after the date that
Ordinance 52 went into effect. See Defendants' Motion for Stay. However,
absolutely no conditions were considered or requested in the event that the Motion}
would be granted.
Similarly, the Order of this court granting the stay made no mention of any
alteration of time or other consideration that would have any bearing whatsoever
on the tolling of the time for an answer.
In defense of the absurd theory advanced by the Defendants, Kim Schutt,
counsel for Defendants, has explained that "typically" a stay is considered to be
retroactive to the date that it was requested of a court, regardless -of when a request
for a stay is granted. Ms. Schutt would be well advised to understand that
"typically" litigants provide some specificity when making requests of courts.
Such specificity "typically" includes descriptions of what the maker of a motion
wishes the court to Order when granting a motion. As a practical matter, it would
be atypical and impossibly corn -fusing for any order granted by any court to bring
retroactive effect to its terms and conditions unless such retroactive application is
specifically stated.
In further defense of what was already an absurd argument, Ms Schutt has
doubled down by stating that the tolling of time could be construed to commence
3
no sooner than the date that the C.R.C.P became effective, or April 28`h, and that
the Defendants may have up until 21 days after that date to file an answer. Of
course, if Ms. Schutt's fanciful interpretation of Rules were to be accepted, then
we truly could have 28 days from April 28`h in which to file a Rule 106 petition
with this court alleging abuse of discretion. To embellish her gambit, Ms. Schutt
has alleged gamesmanship on our part. We take exception to this characterization
and believe that it is more appropriately made upon Defendants.
Further argument to support the conclusion that the Defendants are in default
follows from examining how the time for an answer may have been tolled in the
hypothetical instance where the adoption of the C.R.C.P was made retroactive to
January 0, 2017. As this court noted in its Order granting the stay, such a request
was made of the Fort Collins City Council by the Defendants when Ordinance 52
was originally brought forward for legislative review and action. Of course,
Council elected no to include the retroactive application of the C.R.C.P upon
consideration of Ordinance 52 on first reading. However, there is no question
that, had Ordinance 52 been adopted as the Defendants had proposed, the intended
effectivity date of the adoption of -the C.R.C.P. would have required that an answer
be adopted on April 11th or 21 days after service of process was perfected. This
argument is hypothetical, but it does serve the purpose of demoas&ating that the
Defendants necessarily would have had the expectation of filing an answer much
earlier in the process than even the more lenient date of April 28 h required.
STANDARD OF REVIEW
A hierarchy of authority must be applied to facts that describe this
circumstance. In descending order, the authority for establishing procedures to
control litigation of this matter must be 1) the plenary legislative power of the City
of Fort Collins to prescribe rules of procedure, see Article VII of the Charter, 2) the
judicial authority of this court to prescribe procedure upon request of the parties for
good cause shown or sua sponte as required to preserve order and obtain right and
just resolution of disputes, 3) the Colorado Rules of Civil Procedure as they were
adopted effective April 28t', 2017, 4) stipulations as to procedure by agreement
amongst the parties subject to approval of this Court and review and authorization,
if requested, by Council.
When the facts of the present circumstance are presented within this
hierarchical framework, it becomes apparent that the Defendants' position that
"typically" orders of the court are retroactive does not even find a place of
authority.
Clearly, the Colorado Rules of Civil Procedure are provide the binding
authority in this matter.
4
ERRATA
There is no doubt that this case can be classified as atypical in that we
commenced this action into a court that had no rules whatsoever. As previously
expressed in our previous two pleadings before this court, we are proceeding in
good faith with an intense focus on the best interests of our community placed
above our own interests.
In light of these circumstances and with forethought to other proceedings,
we feel that it is prudent to depart slightly from the formal process of this Motion
to note the following statements made by Ms. Kim Schutt in conference prior to
this motion.
The City could also take the position that your summons was notbased in any then -
existing rules, and thus is invalid in the first instance.
And
..we believe any effort on your part to seek a default against the City prior to that time
will be without merit, and indeed frivolous and groundless.
Clearly, Ms. Schutt has opened the door to the possibility that the absence of
Rules in this court at the commencement of this action presents issues of
constitutional dimension. Since the City finds it appropriate to speculate that our
summons and the underlying claims for relief were invalid in the first instance, we
reserve the right to make precisely the same claim.
Nearly in the same breath, Ms. Schutt has introduced the threat of financial
judgment against us by stating that any Motion for Default will be considered
frivolous. We believe our Motion has been brought with good cause shown and is
far from frivolous. Nonetheless, the chilling effect of Ms. Schutt's words should
not escape the attention of this court.
ENTRY OF DEFAULT IS APPROPRIATE AND NECESSARY AT THIS TIlVih<
The Defendants are clearly in default. C.R.C.P. Rule 55(a) states:
Entry. When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these rules and -that fact is
made to appear by affidavit or otherwise, the clerk shall enter his default.
The fact that Defendants have failed to plead as provided by Rule 12(a)(1), which
has been duly adopted by the Fort Collins City Council, has been made to appear
by virtue of this Motion and the record of this proceeding.
Default in this matter is appropriate and necessary regardless of any subsequent
filing of an answer by Defendants, which may be filed before or after the filing of
this Motion.
5
WIEREFOR, we respectfully request that this court instruct the clerk to enter the
default for the Defendants in this matter and grant the affirmative relief prayed for
upon commencement of this action.
Respectfully submitted with verification this 12'hday of May, 2017.
Colleen Hoffmann Rick Hoffmann Ann Hunt
��i.� � TzGGI� lfD�fykGtrti �ia� �u�t
1804 Wallenberg Dr.
Ft. Collins, CO 80526
Address of Lead Plaintiff
0
I, Colleen Hoffman, being over the age of eighteen years and duly sworn, hereby attest
and swear 1) that I am a resident of the City of Fort Collins; 2) that I have prepared and
read the foregoing PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT PURSUANT TO
C.RC.P. RULE 55(a)and the facts stated therein and exhibits added in appendage
thereto are true and accurate to the best of my knowledge and belief; and 3) that I am
authorized to file this pleading on behalf of co -plaintiffs (tick Hoffman and Ann Hunt.
Colleen Hoffman
STATE OF COLORADO)
COUNTY OF LARIMER) SS.
Subscribed and sworn to before me this day of , 2017
by Colleen Hoffman.
My Commission expires:
Witness my and hand and official seal
Notary Public
Municipal Court, Fort Collins, Colorado
215 N. Mason, Fort Collins, Co 80521
In the County of l.arimer
Plaintiffs: Colleen Hoffman, Rick Hoffman, Ann Hunt
V.
RECEIVED
City Clerk's Office
RECEIVED
MAR 2 0 2011 K-kJ
Defendant: THE CITY COUNCIL OF THE CITY OF FORT
COLLINS, the governing body of a Colorado municipal
RT G�E�t���lll�T
corporation, and THE ADMINISTRATION BRANCH OF THE Case Number.
CITY OF FORT COLLINS, by and through its City Manager,
Darin Atteberry.
Division:
MUNICIPAL COURT CIVIL SUMMONS
TO THE ABOVE NAMED DEFENDANT: CITY COUNCIL OF THE CITY OF FORT COLLINS
YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court an answer or other
response to the attached Complaint and Request for Injunctive Relief. Your answer or other response is
not prescribed by any established rules for civil procedure and there appears to be no deadline for the
filing of such an answer, however, the Colorado Rules of Civil Procedure and the Colorado Rules of
County Court Procedure may provide guidance that is later deemed applicable to this matter or may
altematively be viewed as reasonable and prudent for the adjudication of this matter. Under these rules,
an answer or other response is required within 21 days of service of this summons.
IN THE EVENT that you fail to answer or respond to this summons, a default judgment may be entered
against you.
Dated: OLD( P
Cle of Court/Clerk
&VWA,0.' '�- —t
Sign;t#df Plaintiff
VV
Colleen Hoffman, Rick Hoffman, Ann Hunt
Flame of Plaintiff
Go` 1804Wallenberg, Fort Collins, CO 80526
Address of Plaintiff
(970) 484 8723
Plaintiffs Phone Number
A copy of the COMPLAINT AND REQUEST FOR INJUNCTIVE RELIEF must be served with this
Summons.
i_L f `AJ
��r�� 17
From: Colleen Hoffman lmailto:cohoff@comcast.netl
Sent: Wednesday, May 03, 2017 6:24 AM
To: X Schutt; jduval0fcgov.com
Cc: rick-hoffman0acomcast.net; 'Ann Hunt'
Subject: RE: Hoffman and Hunt v. City of Fort Collins Case No. 2017-CIWL01
Good morning Ms. Schutt,
In the absence of an "Answer to Complaint" within the 21 day period from lwarch 20, 2017, will you
be accepting of a Default Judgment against the City Council and the City Administration at this time?
From: K. Schutt fmailto:kschutt@wicklaw.coml
Sent: Wednesday, May 3, 2017 9:52 AM
To:'Colleen Hoffman' <cohoff@comcast.net>; iduval@fceov.com
Cc: rick-hoffman@comcast.net:'Ann Hunt' <arh4@comcast.net>
Subject: RE: Hoffman and Hunt v. City of Fort Collins Case No. 2017-CIVIL01
Good morning, Ms. Hoffman —
The court -ordered stay of proceedings suspends the 21-day period from running as of the time we filed
our motion seeking that stay. We filed that motion on March 27". Therefore, we have calculated the
City's deadline to file a responsive pleading to be May 12', which is 14 days after the stay ended as of
April 281h. Accordingly, the City would take the position that it is not in default, and intends to file its
responsive pleading by that deadline.
From: Colleen Hoffman fmailto:cohoff0comcast.netl
Sent: Thursday, May 04, 2017 6:26 AM
To: X Schutt; iduval@fcgov.com
Cc: rick-hoffman0comcast.net; 'Ann Hunt'
Subject: RE: Hoffman and Hunt v. City of Fort Collins Case No. 2017-CML01
Good Morning Ms. Schutt,
We are not accepting of your tolling of time to file an answer in this case.
The C.R.C.P. is presumed to be in effect at this time and the C.R.C.P. clearly states that an answer is
filed within 21 days of service. See C.R.C.P. Rule 12 (a) (1). It is reasonable to expect that the tolling of
time was halted during the stay. It is also reasonable to hold that in the absence of rules that existed
prior to April 28,2017, there was no fixed deadline for filing an answer. Even though 21 days had passed
since service by the time the stay was ordered, we would not allege that the deadline had lapsed prior
to the stay being effected.
However, there is no reasonable way to conclude, as you have, that the tolling of time for an answer
was halted by a retroactive order of the court to be effective in March. If you had-wis�ch a result,
you should have requested that the court grant such a result. There is no precedent that would allow
for an interpretation that an order of any court is retroactive to a prior date unless such condition is
clearly stated.
We do not wish to engage in selective application of the Rules that your client was responsible for
enacting and which we, with good cause, opposed. Our opposition was predicated, as you know, on the
desire to preclude situations such as this.
Y ta -,r & I T -�
fW 2
From: K. Schutt fmailto:kschutt@wicklaw.coml
Sent: Thursday, May 4, 201710:39 AM
To:'Colleen Hoffman' <cohoff@comcast.net>; iduval@fceov.com
Cc: rick-hoffman@comcast.net:'Ann Hunt' <arh4@comcast.net>
Subject: RE: Hoffman and Hunt v. City of Fort Collins Case No. 2017-CIVIL01
Dear Ms. Hoffman —
I do not agree with your reasoning here, as it appears to be contradictory. We believe we are
calculating the deadline in a reasonable way given how a stay of proceedings typically works. As noted
in my prior email, it essentially freezes the case as of the time the relief is sought, if granted (which it
was here). The City could certainly take the position that, since there were no applicable rules in effect
until April 28th (which you acknowledge below), that the 21 days did not even begin to run until that
time, so that our answer is not due until March 19ih. The City could also take the position that your
summons was not based in any then -existing rules, and thus is invalid in the first instance.
However, as I have made clear in all of my communications with you and in our filings with the Court, it
is the City's desire to have this case decided on its merits rather than getting caught up in technicalities
and gamesmanship around the rules, or lack thereof. I made that quite clear in my first phone call with
you as well. We would hope that would be the plaintiffs' goal here as well, if they truly seek a
meaningful review of the City Council's decision on their appeal.
Accordingly, we intend to proceed with having our responsive pleading filed by May 12", and we believe
any effort on your part to seek a default against the City prior to that time will be without merit, and
indeed frivolous and groundless.
Wick & Trautwein, LLC
(970)482-4011
http://w.vw.wicklaw.com/