Direct Marketing Association, The v. Huber

Filing 30

NOTICE re 14 MOTION to Dismiss Plaintiff's First Amended Complaint (Partial Withdrawl of Motion to Dismiss) by Defendant Roxy Huber (Scoville, Stephanie)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-01546-REB-CBS
THE DIRECT MARKETING ASSOCIATION,
Plaintiff,
v.
ROXY HUBER, in her capacity as Executive Director,
COLORADO DEPARTMENT OF REVENUE,
Defendant.
DEFENDANT’S NOTICE OF PARTIAL WITHDRAWL OF MOTION TO DISMISS
Defendant, Roxy Huber, in her official capacity as the Executive Director of the
Colorado Department of Revenue, (“Director” or “Department”), through the Colorado
Attorney General’s Office, respectfully notifies the Court that Defendant withdraws the
portion of her Motion to Dismiss contesting Plaintiff’s standing to assert violations of the
Commerce Clause. Defendant does not withdraw the remainder of her Motion to
Dismiss. As grounds therefore, Defendant states as follows:
1.

Plaintiff brings this suit challenging the constitutionality of a new

Colorado statute. Plaintiff challenges the Act’s constitutionality under the Commerce
Clause, the First Amendment, and on a variety of theories under the Fifth and
Fourteenth Amendments.
2.

Defendant moved to dismiss Plaintiff’s Complaint in full [Dkt #14].

Defendant’s Motion to Dismiss was based on Plaintiff’s lack of standing to assert
claims either on behalf of its members or on behalf of its members’ customers.

Defendant’s Motion to Dismiss also contended that Plaintiff failed to state a claim as to
all claims for relief other than those under the Commerce Clause.
3.

Counsel for Defendant conferred extensively with counsel for Plaintiff over

the last several weeks in an effort to resolve a number of outstanding issues, one of
which was Defendant’s objection to Plaintiff’s standing to assert violations of the
Commerce Clause.
4.

The parties resolved Defendant’s objections to Plaintiff’s assertion of

standing as to its claims under the Commerce Clause. Plaintiff agreed to provide a sworn
declaration from an individual with personal knowledge in order to establish that at least
one member of the DMA is subject to the notice and reporting requirements of the Act and
Regulations.
5.

Upon receipt of such a declaration, Defendant agreed not to contest the

DMA’s standing to assert its Commerce Clause claims and to file a motion withdrawing that
portion of her pending Motion to Dismiss.
6.

Defendant reserves her right to contest the Plaintiff’s associational standing

as to any remaining claims, as well as to contest Plaintiff’s jus tertii standing.
7.

Defendant, therefore, withdraws that portion of her Motion to Dismiss

contesting Plaintiff’s standing to assert claims under the Commerce Clause. See
Defendant’s Motion to Dismiss, pp.6-10. Defendant, however, does not withdraw this
argument as to Plaintiff’s remaining claims and does not withdraw the remainder of her
Motion to Dismiss.
Respectfully submitted this 16th day of September, 2010.

2

JOHN W. SUTHERS
Attorney General

s/ Stephanie Lindquist Scoville
STEPHANIE LINDQUIST SCOVILLE*
Senior Assistant Attorney General
Civil Litigation and Employment Law Section
Telephone: [phone]
FAX: [phone]
E-Mail: [e-mail]
JACK M. WESOKY*
Senior Assistant Attorney General
KAREN M. MCGOVERN*
Assistant Attorney General
Revenue, Business and Licensing
Telephone: [phone] (Wesoky)
Telephone: [phone] (McGovern)
Fax: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
*Counsel of Record
Attorneys for Defendant
1525 Sherman Street, 7th Floor
Denver, Colorado 80203
*Counsel of Record

3

CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that on the 16th day of September, 2010, a copy of the
foregoing DEFENDANT’S NOTICE OF PARTIAL WITHDRAWAL OF MOTION TO
DISMISS was, in addition to being electronically filed with the Clerk of the Court using the
CM/ECF system, sent to the following e-mail addresses via the CM/ECF system:
[e-mail]
[e-mail]
s/ Stephanie Lindquist Scoville

4