Rampone v. City and County of Denver, The et al

Filing 53

ORDER denying without prejudice as moot 18 Defendants Motion to Dismiss. By Judge William J. Martinez on 2/23/2015.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-0728-WJM-NYW
CLAY HAMADY RAMPONE,
Plaintiff,
v.
CITY AND COUNTY OF DENVER, a Colorado municipal corporation,
IAN CULVERHOUSE, in his individual and official capacity,
JESSE REMBERT, in his individual and official capacity,
DAVE COLAIZZI, in his individual and official capacity,
MIKE CODY, in his individual and official capacity, and
JOHN BURBACH, in his individual and official capacity

Defendants.

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AS SUPERSEDED BY
DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff Clay Hamady Rampone brings this action against Defendants City and
County of Denver, Ian Culverhouse, Jesse Rembert, Dave Colaizzi, Mike Cody, and
John Burbach (“Defendants”) alleging violations of 42 U.S.C. §§ 1983 and 1985, as well
as various state law claims. (Compl. (ECF No. 3).)
This action was removed from Denver District Court on March 11, 2014. (ECF
No. 1.) On April 28, 2014, Defendants filed a Motion to Dismiss seeking dismissal of
claims 2-6 (all but the excessive force claim) on the grounds that certain claims were
barred by Heck v. Humphrey, that Plaintiff was collaterally estopped from bringing
certain claims, and that Plaintiff’s Complaint failed to state a claim upon which relief
could be granted. (ECF No. 18.)

The Court has not yet addressed this Motion to Dismiss, and the case has
proceeded through discovery. (See ECF Nos. 28 (setting discovery deadline at October
10, 2014) & 37 (extending discovery deadline to November 9, 2014). On December 24,
2014, Defendants filed a Motion for Partial Summary Judgment. (ECF No. 45.) The
Motion for Partial Summary Judgment raises all of the same arguments made in the
Motion to Dismiss, but tailors these arguments to the current phase of the litigation by
including references to the record developed during discovery, rather than simply
relying on the allegations in the Complaint. (Compare ECF Nos. 18 & 45.)
Because Defendants have now filed a summary judgment motion that
incorporates the same arguments raised in the Motion to Dismiss, the Court finds that
the Motion to Dismiss is superseded, and should be denied as moot. See Drake v. City
& Cnty. 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).
Accordingly, the Court ORDERS as follows:
1.

Defendants’ Motion to Dismiss (ECF No. 18) is DENIED WITHOUT PREJUDICE
AS MOOT due to the fact that it has been superseded by Defendants’ Motion for
Partial Summary Judgment; and

2.

The Court will resolve the substantive issues raised in the Motion to Dismiss
when it rules on Defendants’ Motion for Partial Summary Judgment.

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Dated this 23rd day of February, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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