HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 031 - CITY'S RESPONSE TO MOTION FOR CLARIFICATIONFORT COLLINS MUNICIPAL COURT
214 N. Mason
Fort Collins, CO 80521
Phone: (970) 221-6800
Plaintiffs: Eric Sutherland; and J&M Distributing
d/b/a Fort Collins Muffler and Automotive
V.
Defendants: THE CITY COUNCIL OF THE CITY OF
FORT COLLINS, the governing body of a Colorado COURT USE ONLY
municipal corporation; and THE ADMINISTRATION
BRANCH OF THE CITY OF FORT COLLINS, by and
through its City Manager, Darin Atteberry.
Intervenor: NEXT CHAPTER PROPERTIES, LLC,
an Illinois Limited Liability Company.
Kimberly B. Schutt, #25947 Case Number:
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3 2018-CIVILOI
P.O. Box 2166, Fort Collins, CO 80522
Phone Number: (970) 482-4011
E-mail: kschutt@wicklaw.com
FAX Number: (970) 482-8929
CITY'S RESPONSE TO PLAINTIFFS' MOTION FOR CLARIFICATION
COMES NOW the City of Fort Collins ("the City"), on behalf of the City Council of the
City of Fort Collins and the improperly named "Administration Branch of the City of Fort
Collins," through its counsel, Kimberly B. Schutt of Wick & Trautwein, LLC, and respectfully
submits the following response to the Plaintiffs' Motion for Clarification filed Wednesday,
November 21, 2018:
1. On Wednesday, November 21, 2018, the Municipal Court Clerk served on the
parties an Amended Scheduling Order, indicating the Court was "working assiduously" on a
ruling and would now do so no later than Tuesday, November 26, 2018. The Order indicated the
Plaintiffs' failure to make any citations to the extensive record had expanded the time needed for
the Court to review and rule on the issues in this case.
2. Plaintiff Eric Sutherland immediately sent an email to counsel for the parties, as
well as the Court Clerk, taking issue with the Court's order and seeking counsel's position on
proposed motion for clarification. Less than two hours later, without giving any meaningful time
for Counsel to respond, Plaintiff Sutherland filed a motion taking issue with the Court's
statement that it is "working assiduously" on a ruling. The motion asserted the Court "should
not even be working at all" and asked the Court clarify why review of the record was even
necessary. The motion, not supported by any citations to the rules of procedure or other
supporting legal authority, consisted largely of accusations against the City of Fort Collins.
3. Suffice it to say the City defendants strongly dispute the accusations made by
Plaintiffs. Notwithstanding those assertions, however, the Plaintiffs' position that no record was
required in this matter is directly contrary to the well -accepted standard of review employed in
an action under C.R.C.P. 106(a)(4), the rule pursuant to which the Plaintiffs specifically sought
relief here. Indeed, C.R.C.P. 106(a)(4)(I) expressly states that the Court's review of the issues in
such an action "shall be limited to a determination of whether the body or officer has exceeded
its jurisdiction or abused its discretion, based on the evidence in the record before the defendant
body or officer [emphasis added]. Since the Plaintiffs failed to fulfill their obligation to provide
a record for that purpose, the City was forced to do so in order for this Court to conduct a
meaningful review on the merits, pursuant to the applicable standard.
4. It is an understatement to say that the Plaintiffs' motion for clarification is
inappropriate and not helpful to resolving the issues they have raised in this case. It is truly
frivolous and groundless, and has once again unnecessarily expanded these proceedings and
wasted valuable time and resources of all involved.
WHEREFORE, the City defendants respectfully request the Court strike the motion and
consider appropriate sanctions against the Plaintiffs for having unnecessarily expanded the scope
of these proceedings.
DATED this 23RD day of November, 2018.
Respectfully submitted,
WICK & TRAUTWEIN, LLC
By:
Kimbe ly B. Schutt, 5947
Attorneys for the De endants
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing CITY'S
RESPONSE TO THE PLAINTIFFS' MOTION FOR CLARIFICATION via email to the
addresses listed below, this 23rd day of November, 2018, on the following:
Eric Sutherland
3520 Golden Currant
Fort Collins, CO 80521
Via email to sutherix@yahoo_com
Brian Dwyer
J&M Distributing, dba Fort Collins Muffler and Automotive
2001 S. College Avenue
Fort Collins, CO 80525 bdwyerl199@gmail.com
Jeffrey Cullers
Herms & Herrera, LLC
3600 S. College Avenue, Ste. 204
Fort Collins, CO 80525
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