Anderson v. Cherry Creek North Business Improvement District et al

Filing 8

ORDER re 4 OF DISMISSAL PURSUANT TO FED.R.CIV.P. 12(b)(6) AND 12(b)(1). First, third and ninth claims for relief are dismissed under Fed.R.Civ.P. 12(b)(6) and the remaining claims are dismissed, without prejudice, under Fed.R.Civ.P. 12(b)(1). The Clerk will enter judgment accordingly, by Judge Richard P. Matsch on 12/14/2011.(rpmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 11-cv-01702-RPM
MARIE ANDERSON,
Plaintiff,
v.
CHERRY CREEK NORTH BUSINESS IMPROVEMENT DISTRICT and
JULIE BENDER, CHERRY CREEK NORTH BUSINESS IMPROVEMENT DISTRICT
PRESIDENT AND CEO,
Defendants.
_____________________________________________________________________
ORDER OF DISMISSAL PURSUANT TO FED.R.CIV.P. 12(b)(6) AND 12(b)(1)
_____________________________________________________________________
In the first amended complaint, filed September 8, 2011, Marie Anderson alleges
jurisdiction under 28 U.S.C. § 1331 and § 1343 for claims one, three, and nine and
supplemental jurisdiction under 28 U.S.C. § 1367 for claims alleging violations of
Colorado law in claims two, three, four, five, six, seven, and eight.
The defendants filed a motion to dismiss all claims on November 7, 2011, to
which the plaintiff responded on November 28, 2011, and the defendants’ replied on
December 12, 2011.
Claims one and three of the amended complaint are brought under the Age
Discrimination in Employment Act. The plaintiff failed to allege that the Cherry Creek
North Business Improvement District had twenty or more employees during the relevant
time as required for coverage of the ADEA, 29 U.S.C. § 630(b). That is a fatal defect.
The ninth claim for relief requests a remedy under 42 U.S.C. § 1983 for a denial of due
process but fails to allege the existence of a property right protectable under the

Constitution. Because of these defects, the first, third and ninth claims for relief fail to
state claims and are dismissed.
Because the claims made under the federal question jurisdiction are dismissed,
the state law claims will not be addressed under supplemental jurisdiction and will be
dismissed without prejudice.
Upon the foregoing, it is
ORDERED that the first, third and ninth claims for relief are dismissed under
Fed.R.Civ.P. 12(b)(6) and it is
FURTHER ORDERED that the remaining claims are dismissed, without
prejudice, under Fed.R.Civ.P. 12(b)(1). The Clerk will enter judgment accordingly.
DATED: December 14, 2011
BY THE COURT:
s/Richard P. Matsch
__________________________
Richard P. Matsch, Senior Judge

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