HomeMy WebLinkAbout2016CV31096 - CITY OF FORT COLLINS, A COLORADO MUNICIPAL CORPORATION; AND POUDRE FIRE AUTHORITY, A COLORADO PUBLIC ENTITY V. KEITH GILMARTIN - 008 - UNOPPOSED MOTION FOR MORE DEFINITE STATEMENT1
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DISTRICT COURT, LARIMER COUNTY, COLORADO
Larimer County Justice Center
201 La Porte Avenue, Suite 100
Fort Collins, CO 80521
970-494-3500
▲ COURT USE ONLY ▲
Plaintiff:
POUDRE FIRE AUTHORITY, a Colorado public entity,
v.
Defendant:
KEITH GILMARTIN, an individual.
Attorneys for Plaintiff:
Kelley B. Duke, #35168
Benjamin J. Larson, #42540
IRELAND STAPLETON PRYOR & PASCOE, PC
717 17th
St. Suite 2800
Denver, Colorado 80202
Telephone: (303) 623-2700
Fax No.: (303) 623-2062
E-mail: kduke@irelandstapleton.com
blarson@irelandstapleton.com
Case No.: 2016CV31096
Ctrm: 3C
UNOPPOSED MOTION FOR MORE DEFINITE STATEMENT
PURSUANT TO C.R.C.P. 12(e)
Plaintiff Poudre Fire Authority ("PFA"), a Colorado public entity, by and through its
counsel, IRELAND STAPLETON PRYOR & PASCOE, PC, respectfully submits this Unopposed
Motion for More Definite Statement pursuant to C.R.C.P. 12(e) to Defendant/Counterclaim
Plaintiff Keith Gilmartin, and states as follows:
1. Certification of Conferral. Pursuant to C.R.C.P. 121 § 1-15(8), undersigned
counsel certifies that he conferred with Mr. Gilmartin by telephone regarding the relief requested
herein. Mr. Gilmartin indicated he does not oppose the Motion and would follow the Court's Order
to file a more definite statement of his Counterclaim.
DATE FILED: December 29, 2016 10:36 AM
FILING ID: B76CDA8699DC6
CASE NUMBER: 2016CV31096
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INTRODUCTION AND PROCEDURAL POSTURE
2. PFA filed its Complaint on November 18, 2016, alleging two claims for relief: (1)
trespass and (2) private nuisance. PFA's Complaint alleges generally that Mr. Gilmartin has
interfered, and continues to interfere, with an easement PFA uses for access to its training facility
located at 3400 West Vine Drive, Fort Collins, Colorado. PFA seeks injunctive relief from the
Court in the form of a permanent injunction enjoining Mr. Gilmartin from interfering with PFA's
rights under the easement.
3. Mr. Gilmartin filed his "Answer and Counterclaim to Complaint" on December
13, 2016. Mr. Gilmartin filed his "Amended Answer and Counterclaim to Complaint" on
December 22, 2016, which corrects a pagination issue with his original filing. In his Amended
Answer and Counterclaim to Complaint, Mr. Gilmartin denies most of the allegations raised in
the Complaint. For the purposes of this Motion, PFA accepts Mr. Gilmartin's Amended Answer
as containing general denials as to all of the allegations raised in the Complaint.
4. Mr. Gilmartin's Counterclaims, however, are impossible to decipher and have not
been stated sufficiently to enable PFA to properly prepare a responsive pleading.
LEGAL ARGUMENT
5. C.R.C.P. 8(a) requires that each "pleading which sets forth a claim for a relief
whether an original claim, counterclaim, cross-claim, or a third-party claim, shall contain . . . a
short and plain statement of the claim showing that the pleader is entitled to relief." The purpose
of a Complaint filed under Rule 8 is to provide the receiving party with "reasonable notice" of
the general nature of the matter presented. Vance v. St. Charles Mesa Water Ass'n, 460 P.2d 782,
783 (Colo. 1969); DiChellis v. Peterson Chiropractic Clinic, 630 P.2d 103, 105 (Colo. App.
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1981). While pro se pleadings are generally construed liberally, this principle has its limits
because "the Court cannot take on the responsibility of serving as the litigant's attorney in
constructing arguments and searching the record." Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).
6. Correspondingly, when a party has not sufficiently provided "reasonable notice"
of its claims to another party, C.R.C.P. 12(e) permits a party, before filing a responsive pleading,
to file a motion requiring a counterclaim plaintiff to make a more definite statement of his
counterclaim(s). Specifically, the Rule provides that a party "may file a motion for a statement
in separate counts or defenses or for a more definite statement of any matter that is not averred
with sufficient definiteness or particularity to enable the party properly to prepare a responsive
pleading. If the motion is granted and the order of the court is not obeyed within 14 days after
notice of the order or within such other time as the court may fix, the court may strike the
pleading to which the motion was directed or make such order as it deems just." C.R.C.P. 12(e).
7. Here, Mr. Gilmartin's Counterclaims consist of one separately enumerated
paragraph, which is largely unintelligible and which does not satisfy the requirement of a "short
and plain statement of the claim" showing that Mr. Gilmartin "is entitled to relief." See
Amended Answer and Counterclaim to Complaint, at p. 6, ¶ 1.
8. Specifically, the Counterclaim alleges as follows:
Defendant Counterclaims match titled asserted allegations as Plaintiff's.
Basis in denials, as elaborated for each in Defendant answers.
Here in, any unnamed violations of rights, including potential violation of
Constitutional rights, not elaborated may exist as sufficient facts were not
available upon filing of this Answer and Counterclaim. Related rights for
redress are not waived.
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Id.
9. PFA has not received "reasonable notice" of what specific "unnamed violations of
rights" occurred, or what specific "Constitutional rights" have been violated, particularly since
they are admittedly "not elaborated" in the Counterclaims.
10. By ordering a more definite statement, the Court will not only hold Mr. Gilmartin
to the notice pleading requirements under Rule 8(a), but it will also avoid the more severe
consequence of dismissal for failing to state a claim under Rule 12(b)(5).
11. A Proposed Order granting this Motion is submitted herewith.
WHEREFORE, Plaintiff/Counterclaim Defendant PFA respectfully requests that the
Court order Defendant/Counterclaim Plaintiff Mr. Gilmartin to file an Amended Counterclaim
containing a more definite statement of his counterclaims that comports with Rule 8(a) and
contains a "short and plain statement" of each claim showing that Mr. Gilmartin "is entitled to
relief."
Respectfully submitted this 29th day of December, 2016.
IRELAND STAPLETON PRYOR & PASCOE, PC
SIGNED ORIGINAL ON FILE AT THE OFFICE OF
IRELAND STAPLETON PRYOR & PASCOE, PC
/s/ Benjamin J. Larson
Kelley B. Duke, #35168
Benjamin J. Larson, #42540
Attorneys for Poudre Fire Authority
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CERTIFICATE OF SERVICE
I hereby certify that on this 29th day of December, 2016, a true and correct copy of the
foregoing UNOPPOSED MOTION FOR MORE DEFINITE STATEMENT PURSUANT
TO C.R.C.P. 12(e) was filed via CCEF and served via U.S. Postal Service, first class mail,
postage prepaid and addressed as follows:
Keith J. Gilmartin
3316 West Vine Drive
Ft. Collins, CO 80521
And served via email to:
keithgil2@gmail.com
SIGNED ORIGINAL ON FILE AT THE OFFICE OF
IRELAND STAPLETON PRYOR & PASCOE, PC
/s/ Barbara Biondolillo
Barbara Biondolillo