HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 110 - CITY'S RESPONSE TO PLAINTIFF'S MOTION TO VACATE ORDER GRANTING MOTION TO DISMISSDISTRICT COURT, LARIMER COUNTY,
COLORADO
Court Address: 201 La Porte Avenue
Fort Collins, CO 80521
Phone Number: (970) 494-3500
▲COURT USE ONLY▲
Plaintiff: ERIC SUTHERLAND, pro se
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.
Attorneys for Defendant City of Fort Collins:
John W. Mill (#22348)
Rosemary A. Loehr (#52559)
Sherman & Howard L.L.C.
633 17th Street, Suite 3000
Denver, CO 80202
Phone Number: (303) 297-2900
Email: jmill@shermanhoward.com
rloehr@shermanhoward.com
Carrie M. Daggett, #23316
John R. Duval, #10185
Fort Collins City Attorney’s Office
300 LaPorte Avenue
Fort Collins, CO 80522-0580
970-221-6520
cddaggett@fcgov.com, jduval@fcgov.com
Case No.: 2018CV149
Courtroom/Division: 5B
CITY OF FORT COLLINS’S RESPONSE TO PLAINTIFF’S MOTION TO VACATE
ORDER GRANTING MOTION TO DISMISS PURSUANT TO RULE 60(b)
DATE FILED: March 27, 2019 2:18 PM
FILING ID: 67AF606749877
CASE NUMBER: 2018CV149
2
The Defendant City of Fort Collins (the “City”), by and through its counsel, respectfully
submits the following Response to Plaintiff’s Motion to Vacate Pursuant to Rule 60(b).
INTRODUCTION
Plaintiff, Eric Sutherland, seeks to re-litigate his case under the guise of a Rule 60(b)
motion by asking this Court to vacate its dismissal and rewrite his Complaint to include a cause of
action under Colorado’s Open Meetings Law.
1
Mr. Sutherland provides no basis, in law or fact,
to vacate the Court’s September 5, 2018 Order dismissing all of his claims against the City.
Motions to vacate are not granted absent “clear, strong, and satisfactory proof.” Colo. Dep't of
Pub. Health & Env't v. Caulk, 969 P.2d 804, 809 (Colo. App. 1998). In fact, during the City’s
cross-examination of Mr. Sutherland at the March 15, 2019 hearing on attorneys’ fees,
Mr. Sutherland admitted that the Open Meetings Law is not mentioned in his Complaint.
2
And
yet, Mr. Sutherland requests that this Court apply the “reset” button on his litigation and afford
him the opportunity to assert another frivolous claim against the City at the expense of the City’s
taxpayers. The Court should deny Mr. Sutherland’s unsubstantiated Motion.
FACTS AND PROCEDURAL HISTORY
Mr. Sutherland filed his Complaint in this matter in April of 2018. In his Complaint,
Mr. Sutherland alleged that he had standing to bring his claims against the City because his electric
utility payments would “undoubtedly be increased by the repayment of unlawfully authorized
debt.” See, Compl, at ¶ 8. This Court rejected Mr. Sutherland’s alleged basis for standing in its
1 Part 4 in Article 6 of Title 24 of the Colorado Revised Statutes.
2 The City has not obtained a recording or transcript of the March 15, 2019 hearing. But, the City believes its
references to the testimony in the hearing in this Response are accurate and, of course, this Court presided over that
testimony.
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dismissal order, stating that “the injury complained of here is speculative at best” and too remote
in time. See, Ord. Grant. Mot. to Dismiss, at p. 3. Now, in his Motion, Mr. Sutherland asks the
Court to ignore the basis for standing articulated in his Complaint and to instead vacate its
dismissal order and rewrite the Complaint to allege a cause of action under the Open Meetings
Law.
ARGUMENT
Mr. Sutherland cannot demonstrate excusable neglect. See Buckmiller v. Safeway Stores,
Inc., 727 P.2d 1112, 1116 (Colo. 1986). This alone requires the Court to deny the Motion to
Vacate. Id. To achieve relief under Rule 60(b) for excusable neglect, Mr. Sutherland must
demonstrate that: (1) his neglect was excusable; (2) he has a meritorious claim or defense to the
judgment; and (3) relief is consistent with considerations of equity. Id. Failure to satisfy any of
these three factors is sufficient to deny relief. Id.
I. Mr. Sutherland’s neglect was not excusable.
Mr. Sutherland’s conduct was certainly neglectful, but not excusable. The Colorado
Supreme Court has stated that excusable neglect typically involves “unforeseen occurrences such
as personal tragedy, illness, family death, destruction of files, and other similar situations.”
Farmers Ins. Grp. v. Dist. Court of Second Judicial Dist., 507 P.2d 865, 867 (Colo. 1973). None
of these situations apply to Mr. Sutherland. Mr. Sutherland has not even attempted to show that
his neglect was excusable – even though it is his burden to do so. Guynn v. State Farm Mut. Auto
Ins. Co., 725 P.2d 1162, 1163 (Colo. App. 1986) (“The party seeking relief has the burden of
establishing the grounds for relief from judgment by clear, strong, and satisfactory proof.”).
Instead, he merely states that he became aware of the alleged applicability of the Open Meetings
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Law sometime in mid-November (two months after the Court dismissed his claims against the
City). See Mot. to Vacate, at p. 4. But failure to conduct sufficient independent research is not
excusable neglect. See Colo. Dep't of Pub. Health & Env't v. Caulk, 969 P.2d 804, 810 (Colo.
App. 1998) (“Perhaps Defendants should have hired counsel or conducted independent research.
In any event, the Court finds that Defendants' actions constitute neglect, but not excusable
neglect.”). Rather, the failure to properly research a claim and a resulting dismissal is entirely
predictable. Mr. Sutherland’s conduct is nothing more than carelessness, for which Rule 60(b)
provides no relief.
The Court can reject Mr. Sutherland’s Motion on this basis alone. See Plaisted v. Colo.
Springs Sch. Dist. No. 11, 702 P.2d 761, 763 (Colo. App. 1985) (“[T]he finding of no excusable
neglect is sufficient to sustain the judgment.”). But even if the Court continues the inquiry, the
remaining factors necessary to obtain relief under Rule 60(b) are equally inapplicable to
Mr. Sutherland.
II. Mr. Sutherland does not have a meritorious claim.
Mr. Sutherland’s claims were dismissed on the merits. This is not a situation where a
sympathetic defendant failed to respond to a lawsuit and suffered a default judgment even though
he could meritoriously defend the claims. Mr. Sutherland is the one who filed this lawsuit and had
every opportunity to choose his claims and legal theories. Also, the motion to dismiss his
Complaint was fully briefed by him and the City and the Court’s order dismissing his case
contained specific, thorough, well-reasoned analysis for dismissal. But according to
Mr. Sutherland, relief is nonetheless required because of the Court’s “errant view of standing.”
See Mot. to Vacate, at p. 2. The Court did not misapply the law of standing. But even if it did,
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that is not a proper basis for Rule 60(b) relief. Colorado courts have repeatedly held that Rule
60(b) relief is not justified by “erroneous application of the law.” SR Condos., Ltd. Liab. Co. v.
K.C. Constr., Inc., 176 P.3d 866, 870 (Colo. Ct. App. 2007); see also People v. R.L.C., 47 P.3d
327, 330 (Colo. 2002) (“A court's power to modify or vacate a final judgment is limited, even if
aspects of that final judgment are erroneous.”); King v. Everett, 775 P.2d 65, 67 (Colo. App. 1989)
(same).
In any event, Mr. Sutherland has no valid, meritorious claim under the Open Meetings
Law. Mr. Sutherland’s Complaint does not mention the Open Meetings Law, C.R.S. §§ 24-6-401,
et. seq. Because Mr. Sutherland cannot rely on the face of his allegations, he instead argues that
paragraphs thirty-five through thirty-seven of his complaint should have been read as a cause of
action under the Colorado Open Meetings Law. These paragraphs collectively allege that
Ordinance No. 003, authorizing approximately $150 million dollars in broadband revenue bonds,
is invalid because certain aspects of the Ordinance’s passage failed to comply with the City Charter
and City Code. These allegations do not relate to the Opens Meetings Law. The Open Meetings
Law grants standing when public bodies conduct public business in secret. See Doe v. Colo. Dep't
of Pub. Health & Env't, No. 16CA2011, 2018 Colo. App. LEXIS 1077, at *13 (Ct. App. July 26,
2018) (finding standing where a public board adopted a policy in secret). This is the very purpose
of the Open Meetings Law, to ensure that “the formation of public policy is public business and
may not be conducted in secret.” C.R.S. § 24-6-401.
But Mr. Sutherland does not allege that the meeting was conducted in secret nor does he
allege any issue with the meeting’s notice, minutes, recording, or any other actionable allegation
under the Open Meetings Law. Indeed, Mr. Sutherland cannot allege that the meeting was
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conducted in secret because he attended the meeting in question on April 3, 2018. See Exhibit A,
Meeting Minutes, at p. 1 (“Eric Sutherland stated these meetings do not meet City Charter
requirements.”). Further, during the March 15, 2019 hearing, Mr. Sutherland admitted that he
attended the hearing on April 3, 2018 of the City Council and the Electric Utility Enterprise Board
and agreed that he “clearly had notice” of the meeting in response to the City’s cross examination
questions. Mr. Sutherland simply alleges – without any supporting facts or argument – that he has
an actionable claim under the Open Meetings Law. This argument is not enough to resurrect his
dismissed complaint: “simply referencing a statutory cause of action is insufficient to demonstrate
an injury in fact.” Weisfield v. City of Arvada, 2015 COA 43, ¶ 33. The statutory grant of standing
does not relieve Mr. Sutherland of the obligation to demonstrate how the Open Meetings Law was
allegedly violated. See id. cf. 5A Colo. Prac., Handbook on Civil Litigation § 1:8 (2018 ed.)
(“[E]ven if a statute ‘grants’ standing” a plaintiff still must “demonstrate an actual or imminently
threatened injury.”) Mr. Sutherland’s position that the mechanics of passing a certain ordinance
were improper cannot reasonably be read as a distinct statutory cause of action under the Open
Meetings Law. Therefore, Mr. Sutherland’s alleged cause of action under the Open Meetings Law
is meritless.
III. Equity favors denying Plaintiff’s Motion to Vacate.
No reasonable equitable theory supports vacating the Court’s dismissal of Mr. Sutherland’s
claims. His Motion to Vacate is just part-and-parcel of his excessive motions practice
3
to attempt
to resurrect his failed claims against the City. When determining whether to set aside a dismissal
3
A litigation strategy which included attempts to appeal, correct the record, and receive a determination of law – all
of which failed.
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order, courts consider: (1) the promptness of the moving party, (2) detrimental reliance from the
opposing party, and (3) prejudice to the opposing party. See Taylor v. HCA-HealthONE LLC,
2018 COA 29, ¶ 66. None of these considerations favor Mr. Sutherland. For example,
Mr. Sutherland was not prompt in seeking his Motion; rather, he waited six months until the
eleventh-hour deadline to file a Rule 60(b) motion. See id. (where the moving party filed her Rule
60(b) motion on the same day as the dismissal order).
Further, the City has relied on the finality of the dismissal order – the City has already filed
a motion for an award of attorneys’ fees based on the frivolousness of Mr. Sutherland’s claims and
the City has, at Mr. Sutherland’s request, participated in a hearing on the award of fees. The City
has answered all other motions Mr. Sutherland has submitted in this matter and the taxpayers
should not have to continue bearing the burden of Mr. Sutherland’s frivolous attack on the
credibility of these proceedings. People v. R.L.C., 47 P.3d 327, 330 (Colo. 2002) (“If judgments
could easily be set aside, public confidence in the courts would be undermined.”).
Mr. Sutherland’s failure to include in his Complaint a claim for an alleged violation of the Open
Meetings Law (which he knew or should have known of at the time) is not grounds to vacate the
Court’s Order dismissing all of Mr. Sutherland’s claims against the City. Accordingly, his Motion
should be denied.
CONCLUSION
For the foregoing reasons, the City requests that this Court deny Mr. Sutherland’s Motion
to Vacate.
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Dated this 27
th
day of March, 2019.
CERTIFICATE OF SERVICE
I certify that on the 27
th
day of March, 2019, a true and correct copy of the foregoing CITY
OF FORT COLLINS’S RESPONSE TO PLAINTIFF’S MOTION TO VACATE ORDER
GRANTING MOTION TO DISMISS PURSUANT TO RULE 60(b) was filed via Colorado
Court’s E-Filing system, and was served on the following:
Eric Sutherland, pro se
3520 Golden Currant Boulevard
Fort Collins, CO 80521
(By email and US Mail)
Eric R. Burris, Esq.
Cole J. Woodward, Esq.
Brownstein Hyatt Farber Schreck, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202
(By Colorado Court’s E-Filing)
/s/ Patricia A. Rendoff
Patricia A. Rendoff, Legal Secretary
SHERMAN & HOWARD L.L.C.
s/ Rosemary A. Loehr
Rosemary A. Loehr (#52559)
John W. Mill (#22348)
Sherman & Howard L.L.C.
633 Seventeenth Street, Suite 3000
Denver, Colorado 80202
(303) 297-2900
rloehr@shermanhoward.com
jmill@shermanhoward.com