HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 040 - DEFENDANTS STEVE MILLER AND IRENE JOSEY'S MOTION TO DISMISS COMPLAINT1
Larimer County, Colorado, District Court
Larimer County Justice Center
201 La Porte Avenue, Suite 100
Fort Collins, Colorado 80521-2761
(970) 494-3500
Court Use Only
Plaintiff:
ERIC SUTHERLAND,
v.
Defendants:
THE CITY OF FORT COLLINS, a home rule municipality in
the State of Colorado; STEVE MILLER, in his capacity as the
Larimer County Assessor and all successors in this office;
IRENE JOSEY, in her capacity as the Larimer County
Treasurer and all successors to this office; and Indispensable
Parties: THE TIMNATH DEVELOPMENT AUTHORITY, an
Urban Renewal Authority; and COMPASS MORTGAGE
CORPORATION, an Alabama company doing business in
Colorado.
Jeannine Haag, Reg. No. 11995
David P. Ayraud, Reg. No. 28530
George H. Hass, Reg. No. 897
Larimer County Attorney’s Office
224 Canyon Ave., Suite 200
Post Office Box 1606
Fort Collins, Colorado 80522
Telephone (970) 498-7450
jeanninehaag@larimer.org
wressue@larimer.org
Case No. 18 CV 149
Courtroom 5B
DEFENDANTS STEVE MILLER AND IRENE JOSEY’S
MOTION TO DISMISS THE COMPLAINT
Defendants Steve Miller, in his capacity as the Larimer County Assessor, and Irene
Josey, in her capacity as the Larimer County Treasurer appear and move to dismiss the Plaintiff’s
Complaint for all claims made against these defendants, with prejudice, and without the
opportunity to amend.
DATE FILED: August 3, 2018 11:41 AM
FILING ID: 4D2F6A9D9E2DF
CASE NUMBER: 2018CV149
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I. Certificate of Compliance with C.R.C.P. 121 Section 1-15(8)
The undersigned certifies that he has conferred with Plaintiff via email communication
and explained the basis for this motion and requesting voluntary dismissal of the complaint. The
Plaintiff refused.
II. Introduction
Plaintiff began this litigation against Defendants Josey and Miller, together with the
Timnath Development Authority (TDA) challenging various actions in connection with urban
renewal debt issued by the TDA and repayment of that debt. Plaintiff seeks to enjoin the
collection and distribution of the taxes intended to service debt issued by TDA.
Plaintiff also stated some claims against the City of Fort Collins which do not pertain to
Miller or Josey.
On July 11, 2018, this Court granted the Motion to Dismiss Plaintiff’s claims against the
Timnath Development Authority and Compass Mortgage Corporation. A motion to dismiss the
claims against the City of Fort Collins is pending.
Plaintiff’s claims against Josey and Miller appear in the Complaint as follows:
SECOND CLAIM FOR RELIEF: With this claim, Plaintiff asks the court to issue an
injunction to Miller and Josey from collecting and disbursing property taxes associated with
Resolution 4 of the TDA. (attached as Exhibit B to Defendant Compass Mortgage’s Motion to
Dismiss filed June 5, 2018). See Complaint Paragraph 14.
THIRD CLAIM FOR RELIEF: While not naming Josey and Miller specifically, Plaintiff
seems to make some vague claim about an intergovernmental agreement that Plaintiff doesn’t
specifically identify, alleging that the unidentified agreement violates the “URA statutes” in an
unidentified way. This claim seems to be against “Larimer County”.
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SEVENTH CLAIM FOR RELIEF: This is a vague claim alleging the assessment of ag
(assumed to mean agricultural) land does not comply with the requirements of statute. Once
again, the plaintiff neither identifies the statute nor the violation.
These Defendants will not burden this motion with additional background information
except as specifically related to Defendants Josey and Miller. The Court’s attention is invited to
its July 11 Order for the basic facts of the case.
III. Standard of Review
The standard to be applied when considering a motion to dismiss was stated by the
Colorado Supreme Court in Warne v. Hall, 373 P.3d 588 (Colo. 2016) The Court quoted with
approval from Ashroft v. Iqbal, 556 U.S. 662, (2009):
[T]he factual allegations of the complaint must be enough to raise a right to relief
“above the speculative level,” and provide “plausible grounds to infer an
agreement,” . . . . the Court characterized that standard as being underlain by two
working principles: First, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions,” and
second, “only a complaint that states a plausible claim for relief survives a motion to
dismiss,” (Citations omitted)(p.591)
This plausibility standard is now the law in Colorado for reviewing motions to
dismiss a complaint. This court applied that standard in its July 11 Order.
IV. Argument
The Plaintiff’s Claims Are Moot. The Second Claim for Relief is based upon, and
derivative of, the alleged impropriety of TDA’s March 27, 2018 Resolution (Resolution 4)
authorizing the issuance of debt. Plaintiff requested the Court to Declare the debt unlawful. The
Court dismissed this claim with the July 11 Order. The claims against Josey and Miller have to
do with collecting the taxes necessary to repay the debt. The Court, having dismissed the
underlying claim regarding issuance of the debt because the Plaintiff lacked standing to make
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that claim, renders Plaintiff’s request for an injunction against collecting taxes to pay the debt,
moot.
The Supreme Court in Crowe v. Wheeler, 165 Colo. 289, 439 P.2d 50 (1968) described
mootness:
A case is moot when a judgment, if rendered will have no practical legal effect
upon an existing controversy, and we add that as we view the complaint and
petition, there is no justiciable controversy alleged as between the plaintiffs and
the defendants. (p. 295)
Plaintiff’s request to enjoin collecting and distributing the tax revenue is no longer
justiciable because that claim is derivative of the challenge to the underlying debt. The claim
seeking an injunction from collection of the tax falls along with the dismissal of Plaintiff’s
challenge to the debt itself.
Similarly, the Third and Seventh claims for relief are moot as they also seemingly allege
impropriety in the urban renewal process. The Third and Seventh claims also cannot exist as a
stand-alone claim.
Plaintiff’s claims do not meet the Standards of C.R.C.P. Rule 8: Josey and Miller
incorporate the Court’s prior ruling about sufficiency of the pleadings in its July 11, Order. In
addition to the Third and Seventh claims being moot, they should also be dismissed because they
don’t state a plausible claim. Those claims don’t describe statutory non-compliance in any
manner sufficient to answer.
Plaintiff has no standing: Miller and Josey incorporate the Court’s standing ruling of
July 11. The Plaintiff has no standing to enjoin the collection and distribution of the tax for all
the reasons the Court mentioned in the July 11, Order. The standing ruling applies to the
Second, Third and Seventh claims.
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To underscore the standing ruling, Plaintiff admits at paragraph 1 of his complaint that he
is not a resident of Timnath and does not allege being subject to the tax which he seeks to enjoin.
This is a fatal standing defect under the standing requirements the Court employed in its July 11,
Order.
V. The Doctrine of Futility requires dismissal of Plaintiff’s claims without
permission to amend the Complaint
Josey and Miller readily acknowledge that amendments to pleadings should be liberally
allowed in the interest of justice. However, the ability to amend a complaint has limits. Among
those limits is the doctrine of futility. The Colorado Appellate Courts have considered the
doctrine of futility often. Benton v. Adams, 56 P.3d 81 (Colo. 2002) the Supreme Court said:
Whether leave to amend should be allowed or not depends upon the facts and
circumstances. Grounds for trial court denial of a motion to amend pleadings
include undue delay, bad faith, dilatory motive, repeated failure to cure
deficiencies in the pleadings via prior amendments, undue prejudice to the
opposing party, and futility of amendment. (p. 86)
In Bristol Co, LP v. Osman, 190 P.3d 752 (Colo. App. 2007), the Court of Appeals said
this in particular about the doctrine of futility:
The doctrine of futility justifies denying the amendment when the
amendment would not survive a motion to dismiss, merely restates the
same facts as the original complaint, or reasserts a claim already dismissed
by the trial court. The trial court does not abuse its discretion when it
denies a motion to amend which is futile. However, the trial court should
allow amendment of the complaint when it will cure a deficiency that
otherwise would justify dismissal. (citations and internal quotes
omitted)(p. 759)
The Court dismissed Plaintiff’s claims challenging the TDA debt issuance because the
Plaintiff lacks standing to make that claim. The facts pertaining to Plaintiff’s standing are
established. Those facts cannot change with an amendment to the complaint. Any amendment to
the complaint will necessarily show again that Plaintiff has no standing and would require
another dismissal. Any amendment to the complaint would only amount to restating the same
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standing facts and lead to the same ruling rearguing the standing issue. This is a clear application
of the doctrine of futility. No amendment should be permitted.
VI. Requested Relief
The Defendants Josey and Miller request that the Second, Third, and Seventh claims for
relief be dismissed and that the court further order that the Plaintiff cannot amend the Complaint.
Dated: August 3, 2018
LARIMER COUNTY ATTORNEY’S OFFICE
By: s/George H. Hass
Jeannine S. Haag, Reg. No. 11995
George H. Hass, Reg. No. 897
Attorneys for Defendants Miller and Josey
224 Canyon Ave., Suite 200
Post Office Box 1606
Fort Collins, Colorado 80522
Telephone: (970) 498-7450
Facsimile: (970) 498-7430
jeanninehaag@larimer.org
ghass@larimer.org
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
DEFENDANTS STEVE MILLER AND IRENE JOSEY’S MOTION TO DISMISS THE
COMPLAINT was served on the following using the Colorado Courts E-Filing System or by
placing in the U.S. Mail, postage prepaid, on the 3
rd
day of August , 2018:
Eric Sutherland
3520 Golden Currant Boulevard
Fort Collins, CO 80521
Eric R. Burris
BROWNSTEIN HYATT FARBER SCHRECK, LLP
201 Third Street NW, Suite 1800
Albuquerque, NM 87102
eburris@bhfs.com
Cole J. Woodward
BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202-4432
cwoodward@bhfs.com
John W. Mill
Amanda Levin Milgrom
Sherman & Howard L.L.C.
633 17th Street, Suite 3000
Denver, CO 80202
jmill@shermanhoward.com
amilgrom@shermanhoward.com
Carrie M. Daggett
John R. Duval
Fort Collins City Attorney’s Office
P.O. Box 580
Fort Collins, CO 80522
cdaggett@fcgov.com
jduval@fcgov.com
s/Jennifer D. Infeld