OneSource Commercial Property Services, Inc. et al v. City and County of Denver et al

Filing 124

ORDER Denying as moot 49 Defendant City, Duran, and Greenes Motion to Dismiss; Denying as moot 52 Defendant Hendersons Motion to Dismiss; granting 91 Plaintiffs Motion for Leave to Supplement Responses to Defendants Motions to Dismiss, by Judge William J. Martinez on 2/28/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-02273-WJM-KLM
ONESOURCE COMMERCIAL PROPERTY SERVICES, INC., a Colorado corporation,
and
AFFORDABLE SWEEPING, INC., a Colorado corporation,
Plaintiffs,
v.
CITY AND COUNTY OF DENVER, a municipal corporation,
APRIL HENDERSON,
CALVIN BLACK,
KEN GREENE, and
XAVIER DURAN,
Defendants.

ORDER DENYING AS MOOT DEFENDANTS’ MOTIONS TO DISMISS

Plaintiffs OneSource Commercial Property Services, Inc. (“OneSource”) and
Affordable Sweeping, Inc. (“Affordable Sweeping”) bring this action against Defendants
City and County of Denver (“City”), April Henderson, Calvin Black, Ken Greene, and
Xavier Duran (collectively “Defendants”) alleging violations of 42 U.S.C. §§ 1981 and
1983, as well as Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (Am.
Compl. (ECF No. 42).)
The operative complaint in this case is Plaintiffs’ Amended Complaint, filed
November 22, 2010. (ECF No. 42.) On December 14, 2010, Defendants City, Greene,
and Duran filed a Motion to Dismiss arguing that Plaintiffs’ claims were barred by
statutes of limitation and that Plaintiffs’ Amended Complaint failed to state a claim upon

which relief can be granted. (ECF No. 49.) The same day, Defendant April Henderson
filed a Motion to Dismiss also arguing that Plaintiffs’ claims against her were barred by
the applicable statute of limitations. (ECF No. 52.)
The Court has not yet addressed these Motions to Dismiss and this case has
proceeded through discovery. All of the parties that moved to dismiss Plaintiffs’ claims
have now also filed motions for summary judgment. The Motion for Summary
Judgment filed by the City, Duran, and Greene states that they “incorporate by
reference their Motion to Dismiss.” (ECF No. 117 at 1 n.1.) Henderson’s Motion for
Summary Judgment provides that “[t]he arguments previously made in Document No.
52 [the Motion to Dismiss] and the additional briefing is incorporated herein”. (ECF No.
119 at 2.)
Because the parties have now filed Motions for Summary Judgment that
incorporate the same arguments raised by the Motions to Dismiss, the Court deems the
Motions to Dismiss moot. See Drake v. City and Cty. of Denver, 953 F.Supp. 1150,
1152 n.1 (D. Colo. 1997) (holding that motions to dismiss were “subsumed by the
Motions for Summary Judgment and are denied as moot.”); Neff v. Coleco Indus., Inc.,
760 F.Supp. 864, 865 n.1 (D. Kan. 1991) (same).
Plaintiffs have filed a Motion for Leave to Supplement Responses to Defendants’
Motions to Dismiss. (ECF No. 91.) For good cause shown, the Court grants this
Motion and will consider the additional authority cited by Plaintiffs when ruling on the
statute of limitations issue in conjunction with the Motions for Summary Judgment.
Accordingly, the Court ORDERS as follows:
1.

Defendant City, Duran, and Greene’s Motion to Dismiss (ECF No. 49) is DENIED
-2-

WITHOUT PREJUDICE AS MOOT;
2.

Defendant Henderson’s Motion to Dismiss (ECF No. 52) is DENIED WITHOUT
PREJUDICE AS MOOT;

3.

Plaintiffs’ Motion for Leave to Supplement Responses to Defendants’ Motions to
Dismiss (ECF No. 91) is GRANTED; and

4.

The Court will resolve the issues raised in the Motions to Dismiss and the
supplemental authority cited by Plaintiffs when it rules on the parties’ respective
Motions for Summary Judgment.
Dated this 28th day of February, 2012.

BY THE COURT:

William J. Martínez
United States District Judge

-3-