HomeMy WebLinkAbout2020CV115 - STACY LYNNE V. NOAH BEALS AND THE CITY OF FORT COLLINS - 013 - DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT1
DISTRICT COURT, LARIMER COUNTY, COLORADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 498-6100
Plaintiff: STACY LYNNE
v.
Defendants:
NOAH BEALS, CITY OF FORT COLLINS
COURT USE ONLY
Andrew W. Callahan, #52421
WICK & TRAUTWEIN, LLC
P.O. Box 2166
Fort Collins, CO 80522
Phone: (970) 482-4011
Email: acallahan@wicklaw.com
Case Number: 2020 CV 115
Courtroom: 3B
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
COMES NOW, Defendant Noah Beals, by and through his counsel, Wick & Trautwein,
LLC, and for his Motion to Dismiss Plaintiff’s Amended Complaint, states as follows:
Introduction
Defendant Noah Beals is an employee of the City of Fort Collins (the “City”). This lawsuit
arises out of allegations that Defendant Noah Beals defamed Plaintiff Stacy Lynne in a series of
communications with local business owners. This is the second time Plaintiff has brought these
claims against Mr. Beals in Larimer County District Court. The first case (2018 CV 220) was
dismissed for lack of subject matter jurisdiction by the Honorable Stephen J. Jouard on April 3,
2019, under the doctrine of sovereign immunity. In this new lawsuit, Plaintiff brings identical
claims arising out of the same allegedly defamatory statements made by Mr. Beals. The result
should likewise be the same, and this matter should be dismissed.
DATE FILED: April 7, 2020 5:03 PM
FILING ID: 8C4B59A0A54C4
CASE NUMBER: 2020CV115
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Dismissal of this case is appropriate for three reasons. First, Plaintiff should be precluded
from bringing this second lawsuit under the doctrine of claim preclusion because this matter has
been fully litigated and resolved in favor of Defendant in the first filed case. Second, Plaintiff’s
claims are still barred by the doctrine of governmental immunity as set forth in the Colorado
Governmental Immunity Act (CGIA), which required this matter be dismissed pursuant to Rule
12(b)(1) for lack of subject matter jurisdiction. Third, this matter should be dismissed pursuant to
the one-year statute of limitations for libel and slander because Plaintiff’s first lawsuit conclusively
demonstrates that Plaintiff’s claim for defamation accrued more than one year before filing the
instant lawsuit.
Rule 121 Certification: Undersigned counsel conferred with Plaintiff via email regarding
this motion to dismiss. Plaintiff opposes the motion.
Factual Background
The following facts are taken from Plaintiff’s Amended Complaint. Mr. Beals is an
employee of the City, who conducted public meetings related to a municipal code revision. ¶ 12.
During a meeting on February 1, 2018, Beals provided electronic “clickers” which recorded the
audience’s reactions to the various proposals, with the intent to report the results to the Fort Collins
City Council. ¶¶17, 22. Plaintiff attended this meeting and then contacted various businesses to
inform them that code revision meetings had occurred and that voting had taken place. ¶ 15. In
response to inquiries from various businesses, Mr. Beals stated that “no votes were taken.” ¶ 16.
In addition, in an email to two members of the Fort Collins Chamber of Commerce, Mr. Beals
stated: “There is someone not with the city contacting business owners. We want to be sure any
info you get is correct, so please reach out if [you] have any questions.” (Complaint, Ex. 2).
Plaintiff also references Exhibit 10 as evidence that Mr. Beals told members of the public that
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Plaintiff was on a “misinformation campaign.” However, Exhibit 10 is actually a text message to
Mr. Beals from Jeremy Call, who was a defendant in Plaintiff’s first lawsuit regarding these
statements. Plaintiff does not identify any other written statements made by Mr. Beals referencing
Plaintiff or the meetings at issue.
Procedural History of the First Lawsuit
Plaintiff filed her first lawsuit arising out of the alleged defamatory statements made by
Mr. Beals on December 4, 2018, in Larimer County. See Stacy Lynne v. Noah Beals and Jeremy
Call, 2018 CV 220. Mr. Call settled with Plaintiff and was dismissed. Mr. Beals filed a motion
to dismiss for lack of subject matter jurisdiction on basis that Mr. Beals was immune as a public
employee under the CGIA, C.R.S. §24-10-118(2)(a). After the matter was fully briefed, Judge
Stephen Jouard entered an Order on April 3, 2019, granting Mr. Beals’ motion and dismissing the
claim for lack of subject matter jurisdiction. A copy of that Order is attached hereto as Exhibit 1.
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Plaintiff initially filed a notice of appeal, but subsequently filed a motion to dismiss her appeal.
On December 19, 2019, the Court of Appeals granted Plaintiff’s motion and dismissed the appeal
with prejudice. See 2019 CA 1346.
ARGUMENT
I. Plaintiff’s claim should be dismissed under the doctrine of claim preclusion.
Claim preclusion is the doctrine that prevents parties from perpetually relitigating the same
conflict in multiple subsequent lawsuits. “The goal of the doctrine is to promote judicial economy
by barring a claim litigated in a prior proceeding from being litigated again in a second
proceeding.” Foster v. Plock, 394 P.3d 1119, 1122 (Colo. 2017). “[C]laim preclusion bars a claim
1 The Court’s Order is attached hereto for convenience. “It is clearly both convenient and permissible for
courts to recognize their own records, often in the same or related cases, as establishing that various
proceedings or actions have already taken place”. Doyle v. People, 343 P.3d 961, 965 (Colo. 2015)
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in a current proceeding if four elements are met: (1) the judgment in the prior proceeding was final;
(2) the prior and current proceeding involved identical subject matter; (3) the prior and current
proceeding involved identical claims for relief; and (4) the parties to both proceedings were
identical or in privity with one another. Id. “The best and most accurate test as to whether a former
judgment is a bar in subsequent proceedings ... is whether the same evidence would sustain both,
and if it would the two actions are the same, and this is true, although the two actions are different
in form.” Id. at 1127, quoting Farmers High Line Canal and Reservoir Co. v. City of Golden, 975
P.2d 189, 203 (Colo. 1999). “Thus, identity of subject matter can be evaluated by determining
whether the same evidence would be used to prove the claims, even if the actions are different.”
Id.
Here, the identities of the parties are identical, as the first lawsuit was between Plaintiff
and Defendant. Moreover, the subject matter is identical. In her first lawsuit, Plaintiff asserted a
claim for defamation against Mr. Beals arising out of the exact same statements Mr. Beals
allegedly made about “votes” taken at the public meetings. (See Order, Exhibit 1). The only
question remaining is whether Judge Jouard’s Order dismissing the case for lack of subject matter
jurisdiction under the CGIA is a final judgment satisfying the first element.
The Court’s order dismissing Plaintiff’s first case under the CGIA was a final judgment
because C.R.S. Section 24-10-118(2.5) provides that when a public employee raises by motion the
issue of sovereign immunity, the trial court is to decide the issue and the court’s decision “shall be
a final judgment” subject to an interlocutory appeal, which appeal the Plaintiff initially pursued,
but later voluntarily dismissed. Martinez v. Estate of Bleck, 379 P.3d 315, 322 (Colo. 2016) (“trial
courts must resolve all issues pertaining to sovereign immunity prior to trial, including factual
issues, regardless of whether those issues pertain to jurisdiction.”) Thus, the CGIA clearly intends
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for a trial court’s determination on the issue of sovereign immunity to be an issue fully litigated
on the merits and a final judgment, subject only to appeal.
In ruling on Mr. Beals’s motion to dismiss the Plaintiff’s defamation claim in the first case
on the basis of sovereign immunity under the CGIA, Judge Jouard provided the following analysis:
In this case, none of the waiver provisions in C.R.S. § 24-10-106(1) are applicable, and
neither party argues otherwise. Therefore, this Court does not have subject matter
jurisdiction under the CGIA unless Defendant Beals’ actions were willful and wanton and
Plaintiff has adequately alleged in the Complaint the factual basis to support a claim that
the speaker’s words were spoken with a conscious disregard of the probability that the
words would result in injury to 5 Plaintiff. C.R.S. § 24-10-118(2)(a). The burden is on
Plaintiff to prove jurisdiction. [Cite omitted].
. . . .
Based on the evidence before the Court, the Court finds that Plaintiff’s allegations do not
sufficiently allege willful and wanton conduct. Because Plaintiff has not met the minimum
pleading requirement, the Court finds that it does not have subject matter jurisdiction over
Plaintiff’s claim. Therefore, the Court grants Defendant’s motion to dismiss for lack of
subject matter jurisdiction because Plaintiff has not sufficiently pled that Defendant’s
actions were willful and wanton. Plaintiff’s claims are therefore dismissed, without
prejudice.
The Court clearly followed C.R.S. Section 24-10-118(2.5) in the first case by fully
considering and deciding the sovereign immunity issue. Plaintiff could have requested leave to
file an amended complaint since the Court dismissed her claim without prejudice, but she did not.
Instead, she chose to file an appeal. On her own motion, that appeal was then dismissed with
prejudice. (See Mandate, 2019 CA 1346).
Plaintiff has therefore already had a full and fair chance to litigate the merits of her claim
against Mr. Beals. She should not be provided a second bite at the apple. This Court is entitled to
take judicial notice of the prior proceedings, and the fact that Plaintiff’s first lawsuit was dismissed
on the merits. Defendant therefore moves pursuant to Rule 12(b)(5) for this court to enter an Order
dismissing the case with prejudice pursuant to the doctrine of claim preclusion.
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II. Plaintiff’s claim should be dismissed pursuant to Rule 12(b)(1) because her new
Amended Complaint still fails to allege a factual basis that Mr. Beal’s actions were
willful and wanton.
According to the CGIA, “a public entity shall be immune from liability in all claims for
injury which lie in tort or could lie in tort . . .,” except as otherwise provided in the CGIA. C.R.S.
§ 24-10-106(1). This immunity also extends to an employee of a public entity. See C.R.S. § 24-
10-118. In that regard, section 24-10-118(2)(a) states in pertinent part as follows:
A public employee shall be immune from liability in any claim for injury … which
lies in tort or could lie in tort regardless of whether that may be the type of action
or the form of relief chosen by a claimant and which arises out of an act or omission
of such employee occurring during the performance of his duties and within the
scope of his employment unless the act or omission causing such injury was willful
and wanton; except that no such immunity may be asserted in an action for injuries
resulting from the circumstances specified in section 24-10-106(1).
Further, C.R.S. Section 24-10-118(2.5) goes on to state that, when “a public employee
raises the issue of sovereign immunity prior to or after the commencement of discovery, the court
shall suspend discovery; except that any discovery necessary to decide the issue of sovereign
immunity shall be allowed to proceed, and the court shall decide such issue on motion.” [Emphasis
added].
In deciding these sovereign immunity issues on motion, it is important to note the Court is
not to determine such issues according to the summary judgment standards of C.R.C.P. 56. Jarvis
By & Through Jarvis v. Deyoe, 892 P.2d 398, 401–02 (Colo. App. 1994); Trinity Broadcasting of
Denver, Inc. v. City of Westminster, 848 P.2d 916, 924-25 (Colo. 1993). Nor is it to give the
plaintiff the benefit of all reasonable doubts, as it would in reviewing a complaint for failure to
state a claim under Rule 12(b)(5). Id., at 925. Rather, under Rule 12(b)(1), the Court is “free to
weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id. Further,
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the burden of proving subject matter jurisdiction is on the party bringing the action against the
public entity or employee. Delk v. City of Grand Junction, 958 P.2d 532, 533 (Colo. App. 1998).
Plaintiff alleges that Mr. Beals is a public employee (which he does not dispute), and she
alleges a claim for defamation that is undisputedly considered a tort under common law. See,
Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994). Thus, Plaintiff’s Amended Complaint
must be dismissed unless she has alleged a specific factual basis for a finding of willful and wanton
conduct, as required under C.R.S. §§ 24-10-110(5)(a) and 24-10-118(2)(a).
A complaint cannot merely assert that a public employee’s acts or omissions were willful
and wanton. L.J. v. Carricato, 413 P.3d 1280, 1288 (Colo. App. 2018). At a minimum, the
complaint must allege “specific facts to support a reasonable inference that the employee was
consciously aware that his or her acts or omissions created danger or risk to the safety of others,
and that he or she acted, or failed to act, without regard to the danger or risk.” Id. (emphasis added).
In Martinez v. Estate of Bleck, the Colorado Supreme Court reviewed three different
definitions of willful and wanton conduct. 379 P.3d 315, 322-23 (Colo. 2016). The Court declined
to choose a single definition, but reasoned that they all share a common feature - a conscious
disregard of danger to others. Id. at 323. “Willful and wanton conduct is not merely negligent;
instead, it must exhibit a conscious disregard for the danger.” Id.
The Supreme Court’s articulation of this test contemplates a public employee’s conscious
disregard for danger or risk to one’s health or safety, not the type of harm to reputation caused by
an alleged defamation. This is consistent with the exceptions to immunity for a public entity found
in C.R.S. §24-10-106(1), all of which embody some act by a public entity or employee that creates
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a danger or risk to a person’s health or safety.
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This interpretation is also consistent with the
definition of “dangerous condition” found in C.R.S. §24-10-103(1.3), which defines it to mean
“either a physical condition of a facility or the use thereof that constitutes an unreasonable risk to
the health or safety of the public…” [Emphasis added].
Here, in order to carry her burden of demonstrating subject matter jurisdiction, Plaintiff
must allege that Mr. Beals made defamatory statements about Plaintiff, and that Mr. Beals knew
his statements were false, knew that those statements created a danger or risk to the health or safety
of others, and consciously disregarded that risk. Plaintiff’s allegations do not meet that high
burden.
Plaintiff states that “Exhibit 1 sets forth specific facts to support a reasonable inference that
Noah Beals was consciously aware that his actions (knowing false statements to third parties)
created risk to Stacy Lynne.” (Am. Complaint, ¶16(a)). Exhibit 1 is a picture of the meeting where
the alleged votes took place. It contains no statements by Mr. Beals. The only actual statements
by Mr. Beals identified in the Amended Complaint are (1) an allegation that Mr. Beals told
business members that no votes were taken at the meeting (¶15), and; (2) an email by Mr. Beals
attached as Exhibit 2. The email states: “There is someone not with the city contacting business
owners. We want to be sure any info you get is correct, so please reach out if [you] have any
questions.” Plaintiff repeatedly invokes the phrase “misinformation campaign,” but then goes on
to allege that it was Jeremy Call, not Noah Beals, that accused Plaintiff of engaging in a
misinformation campaign. ¶ 22.
Plaintiff does not identify any statements made by Mr. Beals directly about Plaintiff. Nor
2
For example, operation of a motor vehicle, a dangerous condition of a public building, a
dangerous condition caused by accumulation of snow and ice, etc. C.R.S. §24-10-106.
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does she identify any statements by Mr. Beals in which he asserts to others that Plaintiff is lying.
The only statements she identifies from Mr. Beals appear to be about whether or not “votes” were
taken at a public meeting. Plaintiff does not allege that Mr. Beals was aware that that by stating
no “votes” occurred at the meeting, he was creating a danger or risk to the safety of Plaintiff and
consciously disregarded that risk.
The Court may resolve this issue as a matter of law on the pleadings given Plaintiff’s
inability to allege sufficient facts to sustain a claim of willful and wanton conduct under the
applicable standard. The Court is not required to hold an evidentiary hearing or allow discovery
where, as here, there are no facts in dispute as to jurisdiction that warrants such proceedings. Finnie
v. Jefferson County Sch. Dist. R-1, 79 P.3d 1253, 1260 (Colo. 2003); Tidwell v. City and County
of Denver, 83 P.3d 75, 86 (Colo. 2003). Plaintiff has not met her burden of demonstrating willful
and wanton conduct, and the Amended Complaint should be dismissed pursuant to Rule 12(b)(1)
for lack of subject matter jurisdiction.
III. Plaintiff’s Amended Complaint is barred by the one-year statute of limitations set
forth in C.R.S. §13-80-103.
C.R.S. §13-80-103 states in relevant part: “The following civil actions, regardless of the
theory upon which suit is brought, or against whom suit is brought, shall be commenced within
one year after the cause of action accrues, and not thereafter: (a) The following tort actions:…
libel, and slander.” (emphasis added). Moreover, “a claim for relief based upon injury to reputation
is now considered to accrue on the date both the injury and its cause are known or should have
been known by the exercise of reasonable diligence.” Taylor v. Goldsmith, 870 P.2d 1264, 1265
(Colo. App. 1994), citing C.R.S. §13–80–108(1).
Plaintiff filed her first lawsuit alleging defamation against Mr. Beals on December 4, 2018.
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See 2018 CV 220. Thus, it is conclusively established that she was aware of the alleged injury to
her reputation by that date. She filed the instant lawsuit on February 14, 2020. More than one
year has passed since she filed the first lawsuit. This Court may take judicial notice of the date on
which the prior lawsuit was filed. “It is clearly both convenient and permissible for courts to
recognize their own records, often in the same or related cases, as establishing that various
proceedings or actions have already taken place”. Doyle v. People, 343 P.3d 961, 965 (Colo.
2015). It is therefore appropriate to dismiss this lawsuit pursuant to Rule 12(b)(5) based on the
applicable statute of limitations.
CONCLUSION
WHEREFORE, Defendant Noah Beals respectfully requests that this Court enter an order
dismissing Plaintiff’s Amended Complaint pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction under the CGIA, or in the alternative, pursuant to Rule 12(b)(5) under the doctrine of
claim preclusion and for failure to commence this action within the applicable statute of
limitations. Defendant further requests that he be awarded his reasonable attorney’s fees for
defense of this action pursuant to both C.R.S. § 24-10-110(5)(a)(c) and C.R.S. §13-17-201.
Defendant Beals can submit an affidavit of attorney’s fees incurred in defense of this action within
15 days of any order granting the dismissal with prejudice and awarding his fees.
Respectfully submitted this 7
th
day of April, 2020.
WICK & TRAUTWEIN, LLC
By: s/Andrew W. Callahan
Andrew W. Callahan, #52421
Attorneys for Defendants
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CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT was
filed via the Colorado Courts E-Filing System and served this 7
th
day of April, 2020, on the
following:
Stacy Lynne
305 West Magnolia Street #282
Fort Collins, CO 80521
Served via email to stacy_lynne@comcast.net & U.S. Mail.
s/ Jody L. Minch
[The original certificate of electronic filing signed by Jody L. Minch is on file at Wick &
Trautwein, LLC)