Anthony v. City and County of Denver

Filing 167

ORDER granting 109 Motion to Dismiss, denying 131 Motion to reconsider, and adopting 133 and 160 Reports and Recommendations. Judgment shall enter in favor of Defendants and against Plaintiff. Entered by Judge Raymond P. Moore on 3/11/2019. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 16-cv-01223-RM-NYW
THOMAS R. ANTHONY,
Plaintiff,
v.
CITY AND COUNTY OF DENVER, a Colorado home rule municipality; and
ANTHONY SANDOVAL, Denver zoning technician, in his official capacity,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
In this case, Plaintiff brings just compensation claims against Defendants related to
property he previously owned, which is the subject of eminent domain proceedings in Colorado
state court. Two separate motions are presently before the Court on separate recommendations
from Magistrate Judge Nina Y. Wang. One is Defendants’ Motion to Dismiss Second Amended
Complaint Pursuant to Fed. R. Civ. P. 12(B)(1) and (6). (ECF No. 110.) The Recommendation
of United States Magistrate Judge is to grant the motion to dismiss. (ECF No. 133.) The other
is Plaintiff’s Motion to File Replacement Second Amended and Supplemented Complaint and
Reconsider Order of Sept. 29, 2017 In Part. (ECF No. 131.) The Recommendation of United
States Magistrate Judge is to deny Plaintiff’s motion to reconsider and motion for leave to file
an amended complaint. (ECF No. 160.) Plaintiff objects to both recommendations (ECF Nos.
138, 161); the Defendants responded to each objection (ECF Nos. 145, 164).1

1

Plaintiff also filed a Reply on Objections to Magistrate’s Recommendations of 6/28/18. (ECF No. 149.) Fed. R.
Civ. P. 72(b) does not provide for replies in objecting to a magistrate judge’s recommendations. Nonetheless, as no
party has objected to the filing of the reply, and it does not raise new issues, the Court will not strike it in this
instance.

For the following reasons, the Court OVERRULES Plaintiff’s objections, ADOPTS the
recommendations, DENIES Plaintiff’s motion to reconsider and request for leave to file an
amended complaint, and GRANTS Defendants’ motion to dismiss.
I.

BACKGROUND
The parties do not object to the factual or procedural background discussed in the

recommendations. Accordingly, the Court adopts and incorporates the factual and procedural
background included within the recommendations as if set forth herein. To put the Court’s
analysis in context, a brief summary follows.2
When Plaintiff filed his initial complaint on May 23, 2016, he owned property at 5001
National Western Drive, Denver, Colorado (the “Property”), located next to the National
Western Stock Show’s property. The Property was used as his personal residence and place of
business. In November 2015, a tax issue was passed to fund the National Western Center
Project—a multimillion dollar expansion of the National Western Center, which is located near
Plaintiff’s Property (the “Project”). Subsequently, the City of Denver notified Plaintiff it
intended to acquire his Property through condemnation proceedings.
Plaintiff alleges that Defendants engaged in various wrongful actions to devalue and
acquire his Property for a deflated amount through eminent domain. After Plaintiff initiated this
lawsuit (May 23, 2016) but before filing his Second Amended Complaint (January 26, 2018), the
City filed a Petition in Condemnation in the District Court, City and County of Denver, State of
Colorado on November 10, 2016, to acquire Plaintiff’s Property, titled City & County of Denver
v. Anthony, Case No. 2016CV34153 (the “Condemnation Proceeding”). (See ECF Nos. 73-1;

2

Any additional information or allegations necessary to the resolution of the objections will be set forth below.

2

73-2; 73-3; 75, 109-10.)3 Plaintiff then entered into a Stipulation for Immediate Possession (the
“Stipulation”), allowing the City to acquire possession of the Property; therefore, the sole
remaining issue in the state Condemnation Proceeding was the amount of just compensation for
the Property taken. (See ECF Nos. 71 at ¶1; 75; 73-3.) On July 31, 2017, a final order was
entered in the Condemnation Proceeding which identified the amount of compensation Plaintiff
would be paid for the taken Property.4 (ECF No. 109-10 at 3.) On November 16, 2017, Plaintiff
filed a Notice of Appeal, appealing the final order in the Condemnation Proceeding to the
Colorado Court of Appeals. (Id. at 1.) No decision from the Colorado Court of Appeals has
been issued. The Court now turns to the applicable legal standards and motions at issue in this
case.
II.

LEGAL STANDARDS
A.

Review of the Magistrate Judge’s Recommendation

When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule
of Civil Procedure 72(b)(3) requires the district court judge to “determine de novo any part of the
magistrate judge’s [recommendation] that has been properly objected to.” In conducting its
review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3). An objection is proper if it is filed within fourteen days of the magistrate judge’s

3

In addition to what the parties have filed in this case, “Federal Rule of Evidence 201 authorizes a federal court to
take judicial notice of adjudicative facts at any stage of the proceedings, and in the absence of a request of a party.”
Zimomra v. Alamo Rent-A-Car, Inc., 111 F.3d 1495, 1503 (10th Cir. 1997). This includes, but is not limited to, the
court’s “own records and files, and facts which are part of its public records,” St. Louis Baptist Temple, Inc., v.
F.D.I.C., 605 F.2d 1169, 1172 (10th Cir. 1979); and “proceedings in other courts, both within and without the
federal judicial system, if those proceedings have a direct relation to matters at issue,” id. at 1172. “[G]enerally, that
which may be judicially noticed need not be pleaded.” Id. at 1172.
4

It appears that the final order was entered pursuant to a Proposed Certificate of Ascertainment and Assessment and
Report of Commissioners filed by the City and County of Denver which valued the property taken at $1,875,000.00.
(ECF No. 109-12.)

3

recommendations and specific enough to enable the “district judge to focus attention on those
issues—factual and legal—that are at the heart of the parties’ dispute.” United States v. 2121
East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147
(1985)). The district judge need not, however, consider arguments not raised before the
magistrate judge. United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this
circuit, theories raised for the first time in objections to the magistrate judge’s report are deemed
waived.”).
In the absence of a timely and specific objection, “the district court may review a
magistrate’s report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165,
1167 (10th Cir. 1991); see also Fed. R. Civ. P. 72 Advisory Committee’s Note (“When no timely
objection is filed, the court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.”). And, where a claim is dismissed on two or
more independent grounds, the plaintiff must contest each of those grounds. See Lebahn v. Nat’l
Farmers Union Unif. Pension Plan, 828 F.3d 1180, 1188 (10th Cir. 2016). If the plaintiff fails to
do so, the court may affirm on the ground which the plaintiff failed to challenge. Id.
B.

Motions to Dismiss
1. Fed. R. Civ. P. 12(b)(1)

Motions to dismiss under Rule 12(b)(1) are, generally, either a facial attack on the
complaint’s allegations as to the existence of subject matter jurisdiction or a factual attack which
goes beyond the allegations and challenges the facts on which subject matter jurisdiction is
based. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). A facial attack
challenging the sufficiency of the complaint requires the court to accept the allegations of the
complaint as true. Stuart, 271 F.3d at 1225; Holt v. United States, 46 F.3d 1000, 1002 (10th

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Cir.1995) (internal citation omitted). A factual attack affords the district court “‘wide discretion
to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed
jurisdictional facts.’” Stuart, 271 F.3d at 1225 (quoting Holt, 46 F.3d at 1003). Such reference
to evidence outside the pleadings does not convert the Rule 12(b)(1) motion to a Rule 56 motion
for summary judgment. Stuart, 271 F.3d at 1225.
2. Fed. R. Civ. P. 12(b)(6)
In evaluating a motion to dismiss under Rule 12(b)(6), a court must accept as true all
well-pleaded factual allegations in the complaint, view those allegations in the light most
favorable to the plaintiff, and draw all reasonable inferences in the plaintiff’s favor. Brokers’
Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135–36 (10th Cir. 2014); Mink
v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). Conclusory allegations are insufficient. See Cory
v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). Instead, in the complaint, the plaintiff
must allege a “plausible” entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555–556 (2007). A complaint warrants dismissal if it fails “in toto to render plaintiffs’
entitlement to relief plausible.” Twombly, 550 U.S. at 569 n.14 (italics in original). “In
determining the plausibility of a claim, we look to the elements of the particular cause of action,
keeping in mind that the Rule 12(b)(6) standard does not require a plaintiff to set forth a prima
facie case for each element.” Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 878 (10th Cir.
2017) (citation, internal quotation marks, and alteration omitted).
C.

Motions to Amend a Scheduling Order

“After a scheduling order deadline, a party seeking leave to amend must demonstrate
(1) good cause for seeking modification under Fed. R. Civ. P. 16(b)(4), and (2) satisfaction of the
[Fed. R. Civ. P.] 15(a) standard.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass’n, 771 F.3d

5

1230, 1240 (10th Cir. 2014). Good cause under Fed.R.Civ.P. 16(b)(4) (“Rule 16”) may be met if
a plaintiff learns new information from discovery. However, “[i]f the plaintiff knew of the
underlying conduct but simply failed to raise [his claims] … the claims are barred.” Id.
D.

Plaintiff’s Pro Se Status

Plaintiff proceeds pro se so the Court must liberally construe his pleadings. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). The Court, however, cannot act as advocate for Plaintiff,
who must still comply with the fundamental requirements of the Federal Rules of Civil
Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
III.

ANALYSIS
The Court first addresses Plaintiff’s motion for leave to amend the Scheduling Order and

file a pleading titled Replacement Second Amended and Supplement Complaint (“RSASC”)
because its resolution affects whether the other motions remain at issue.
A.

Plaintiff’s Motion to Amend and Reconsider (ECF No. 131)
1. Motion to Amend

As an initial matter, the Court agrees with the Recommendation’s5 conclusion that
Plaintiff seeks to amend, not supplement, his pleadings. (ECF No. 160 at 7-8.) Plaintiff’s
objection states that he seeks “to supplement with claims arising from Denver’s misconduct
during the condemnation proceeding in 2017” and argues that, therefore, Rule 15(d) applies.
(ECF No. 161 at 5.) But the pleading to be “supplemented”—Plaintiff’s Second Amended
Complaint—was filed on January 26, 2018, meaning all the “2017 misconduct” that Plaintiff
references occurred before the Second Amended Complaint was filed. (ECF No. 108.)

5

All refences to “the Recommendation” in this Section III.A are to the Magistrate Judge’s September 4, 2018
recommendation docketed at ECF No. 160.

6

Therefore, Plaintiff does not set “out any transaction, occurrence, or event that happened after
the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d) (emphasis added).
Next, the Court addresses whether Plaintiff has established good cause for modifying the
Scheduling Order. The Scheduling Order in this case set January 26, 2018 as the deadline for
amending pleadings—Plaintiff, through his attorneys, filed the Second Amended Complaint on
that date. (ECF No. 113 at 5.) But on June 20, 2018, Plaintiff requested leave to file a
subsequent, third amended complaint, because his former attorneys “did not consult” him and
“failed[ed] to study the [Court’s prior] order—and the case” before filing the Second Amended
Complaint. (ECF No. 131 at 2.) The Recommendation concludes that Plaintiff fails to establish
the required good cause for modifying the scheduling order to allow amendment of his pleadings
and recommends denying the request. (ECF No. 160 at 7-12.) Plaintiff objects that the
Recommendation erred by elevating the Scheduling Order deadline above the adjudication of his
claims. (ECF No. 161 at 11.) Plaintiff’s objection, just like the underlying motion, points to his
former attorneys’ “unpermitted filing” of the Second Amended Complaint as good cause to
support the out-of-time filing. (ECF No. 161 at 13-16.) Plaintiff also takes issue with the
Recommendation’s statement that Plaintiff filed the instant motion more than two years after this
case was initiated—he argues that much of the two-year delay in this case is attributable to the
Court, not him. (Id. at 13, 15.) Defendants respond that Plaintiff is bound by his prior counsel’s
actions and that the untimeliness of his request, standing alone, justifies denying modification of
the Scheduling Order deadline to allow leave to amend. (ECF No. 164 at 5, 6-7.) The Court
agrees with the Recommendation that Plaintiff fails to establish good cause under Rule 16.
First, as the Recommendation explained, the focus of Rule 16’s good cause standard is on
the diligence of the party seeking leave to modify the scheduling order. (ECF No. 160 at 8-9.)

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Plaintiff’s proffered justification—that his prior counsel filed the operative complaint in this
matter without his permission—explains why he seeks to file a third amended complaint, but
fails to provide good cause for the delay in seeking to amend his pleadings five months after the
Scheduling Order’s deadline passed. In a similar vein, Plaintiff’s objection states that he fired
his attorneys within three months after they filed the Second Amended Complaint. (ECF No.
161 at 14.) That may be true. But assuming Plaintiff disagreed with counsel’s decision to file
the Second Amended Complaint (or that it was filed without his permission), he still offers no
reason why he waited three months to terminate the attorney-client relationship. Or why, after
terminating the relationship, he waited two more months to “reinstate his previous complaint”—
at no point during these five months did Plaintiff or his counsel file anything with the Court. In
short, Plaintiff offers no reason for the temporal delay, only his motivations for filing the
amended pleading, which is disagreement with the claims (or lack of claims) asserted in the
Second Amended Complaint. Plaintiff cites no authority to support that disagreement with a
pleading filed by former counsel constitutes good cause for altering a court-ordered deadline
which all parties agreed to.
Second, the Court agrees that Plaintiff “voluntarily chose [his] attorney as his
representative in the action, and he cannot now avoid the consequences of the acts or omissions
of this freely selected agent.” Link v. Wabash R. Co., 370 U.S. 626, 633-34 (1962). As the
Court sees it, Plaintiff’s real disagreement is with the Second Amended Complaint, not the
Scheduling Order deadline. But his counsel’s decision to “allege this, not that” does not
establish good cause for amending the deadlines set forth in the Scheduling Order. Accordingly,

8

Plaintiff’s objection is overruled and the Court agrees good cause does not exist for amending
the Scheduling Order.6
2. Motion to Reconsider
The second part of Plaintiff’s motion, which often overlaps with the request for leave to
amend, asks this Court to reconsider its September 29, 2017 order (ECF No. 93) dismissing
certain claims alleged in the Corrected First Amended Complaint. (ECF No. 131 at 2-8.) The
Recommendation found no reason to revisit the Court’s previous dismissal and recommends
denial of the motion for reconsideration. (ECF No. 160 at 3-7.) Plaintiff’s objection clarifies
that his “motion for reconsideration” is really a request to reinstate the dismissed claims because
they are now ripe and not mooted by the Stipulation. (ECF No. 161 at 7-8.) Defendants assert
that the Recommendation and the Court’s prior order applied the correct legal standards,
resulting in no justification for departing from those conclusions. (ECF No. 164 at 3-4.) The
Court agrees with the Recommendation.
“The Federal Rules of Civil Procedure recognize no motion for reconsideration.”
Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir. 1995) (quotation and internal quotation marks
omitted). But “the court retains the power to alter rulings until final judgment is entered on a
cause.” Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir.
1980) (citing Fed. R. Civ. P. 54(b)). Such motions may not “merely advance[] new arguments”
or provide “supporting facts which were available at the time of the original motion, [a]bsent
extraordinary circumstances.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). A motion for reconsideration must “present matter that is material and of such

6

The Court will not address Rule 15 as Plaintiff fails in the first instance to establish good cause under Rule 16.
Gorsuch, Ltd., B.C., 771 F.3d at 1240.

9

importance that it would likely alter the outcome.” Aldrich Enterprises, Inc. v. United States,
938 F.2d 1134, 1143 (10th Cir. 1991).
“Grounds warranting a motion to reconsider include (1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error
or prevent manifest injustice.” Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc.,
693 F.3d 1195, 1212 (10th Cir. 2012). “A motion for reconsideration is appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law, [but i]t is not
appropriate to revisit issues already addressed or advance arguments that could have been raised
in prior briefing.” Servants of the Paraclete, 204 F.3d at 1012; see also Matasantos Comm.
Corp. v. Applebee’s Int’l, Inc., 245 F.3d 1203, 1209 n.2 (10th Cir. 2001) (finding that party
waived theory on motion for reconsideration that was not raised in original motion because a
“motion for reconsideration is not, however, an opportunity for the losing party to raise new
arguments that could have been presented originally.”).
First, as Plaintiff clarifies, he moves the Court to revive or reinstate previously pled
claims. A motion to reconsider does not accomplish such a goal and Plaintiff has merely used a
different label to accomplish his ultimate goal—to file an amended complaint. But Plaintiff is
mistaken. In this case, the Second Amended Complaint is the operative pleading because it has
superseded the Corrected First Amended Complaint. The Court’s September 29, 2017 order
addressed claims and challenges to the Corrected First Amended Complaint. Because the
Corrected First Amended Complaint is no longer the operative pleading, reconsideration of the
Court’s prior order relating to a stale pleading is moot.
Second, Plaintiff fails to identify a change in controlling law, new evidence that was
previously unavailable, or any clear error. Plaintiff cites his unilateral disavowing of the

10

Stipulation (“I declared it terminated”) as grounds for reconsideration of the Court’s prior
dismissal order. (ECF No. 161 at 8-9.) Plaintiff could also declare himself to be Governor of the
State of Colorado, but such a proclamation does not make it legally so—the same applies to the
Stipulation. And even if Plaintiff is currently seeking to void the Stipulation, the fact remains
that the Property has been condemned, is no longer in Plaintiff’s possession, and the final order
in the Condemnation Proceeding is under appellate review by the Colorado Court of Appeals.
None of the foregoing supplies the Court with reason to reconsider its prior order. Therefore, the
objection is overruled.
The Court now turns to Defendants’ motion to dismiss Plaintiff’s Second Amended
Complaint, which remains the operative pleading.
B.

Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint

Plaintiff’s Second Amended Complaint alleges two claims for relief: (1) a 42 U.S.C. §
1983 claim based on alleged violations of the Fifth and Fourteenth Amendment to the United
States Constitution; and (2) inverse condemnation against the City and County of Denver. (ECF
No. 108 at ¶¶ 38-47.) The Recommendation7 concludes the first claim should be dismissed
without prejudice as unripe because the state-court condemnation proceedings are not final.
(ECF No. 133 at 8-11.) With respect to the second claim for inverse condemnation, the
Recommendation finds the claim should be dismissed without prejudice as unripe to the extent it
seeks relief under the Fifth Amendment to the United States Constitution. (Id. at 11-12.) And
because the Recommendation finds that all other claims should be dismissed, it concludes that
supplemental jurisdiction should not be exercised over Plaintiff’s inverse condemnation claim to
the extent it is based on Colorado law. (Id. at 12-13.) Finally, as to Plaintiff’s attempt to allege a

7

All refences to “the Recommendation” in this Section III.B are to the Magistrate Judge’s June 28, 2018
recommendation docketed at ECF No. 133.

11

conspiracy claim under section 1983, the Recommendation finds that the complaint fails to plead
an agreement between the Defendants to deprive Plaintiff of his constitutional rights. (Id. at 1315.) Plaintiff’s objections to each recommendation will be discussed in turn, although not in the
order presented by Plaintiff.
1. Is the Recommendation mooted by Plaintiff’s filing of an “amended complaint?”
No. Plaintiff argues that the Recommendation is moot because he has sought leave to file
the RSASC, which contains allegations of “a different injury altogether.” (ECF No. 138 at 4-5.)
As discussed above, Plaintiff’s request to modify the Scheduling Order to amend his pleadings
lacks the required good cause. Therefore, the Second Amended Complaint remains the operative
pleading and this objection is overruled.
2. Does the pending appeal of the state-court condemnation proceeding’s final order
affect its finality for purposes of Plaintiff’s just compensation claims?
Yes. The Recommendation submits that Plaintiff’s appeal of the state-court
condemnation award means that the State has not reached a final determination, making his
takings claims in this Court unripe. (ECF No. 133 at 10.) Plaintiff contends that “the filing of an
appeal has no effect on finality of the judgment, indeed, the prerequisite for the filing of any
appeal is a final judgment.” (ECF No. 138 at 5 (citing Kempter v. Hurd, 713 P.2d 1274 (Colo.
1986).) Defendants counter that Plaintiff misconstrues the finality of judgments with the
ripeness doctrine. (ECF No. 145 at 4.) The Court agrees with the Recommendation.
The conclusion that Plaintiff’s takings claims are unripe flows from Williamson Cty.
Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). There, the
Supreme Court held that “a property owner has not suffered a violation of the Just Compensation
Clause until the owner has unsuccessfully attempted to obtain just compensation through the
procedures provided by the State for obtaining such compensation[.]” Id. at 195. Such a claim is
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not ripe until the State “has arrived at a final, definitive position[.]” Id. at 191. Here, Colorado
Revised Statute Section 38-1-110 provides for appellate review of a just compensation
determination, which Plaintiff has invoked. Because Plaintiff is still availing himself of
procedures provided by the State to obtain just compensation, the State has not arrived at a final
and definitive position, making the takings claims unripe for determination in this Court.
Therefore, this objection is overruled.
3. Does the Second Amended Complaint plausibly allege a conspiracy claim?
No. Plaintiff’s objection focuses on allegations in the RSASC to argue that he has
sufficiently pled a claim for conspiracy. (ECF NO. 138 at 7.) But as discussed above, the
RSASC is not the operative complaint—accordingly, the entire premise of the objection and
Plaintiff’s reliance on the RSASC is misplaced. Even so, the Court agrees with the
Recommendation’s conclusion that Plaintiff “fails to plead a plausible § 1983 conspiracy claim.”
(ECF No. 133 at 14.) Moreover, because the allegations establish nothing more than Defendant
Sandoval acting in his official capacity “as a technician with the Denver Zoning Department,”
there is no reason to depart from the “general rule that officers, directors or employees of a
corporation, acting in their official capacities on behalf of the corporation, cannot conspire with
the corporation.” Wegerer v. First Commodity Corp. of Bos., 744 F.2d 719, 724 (10th Cir.
1984).8 Therefore, the Court overrules this objection.

8

As discussed below, the Court recognizes that the County of Denver is a “body corporate and politic” and,
therefore, does not squarely fit the definition of a “corporation.” However, the Court discerns no meaningful
difference, in this case, between “body corporate” and “corporation.” Thus, the general rule that an employee of a
corporation, acting in his official capacity on behalf of the corporation, cannot conspire with the corporation applies
with equal force to an employee of a county which has been organized as a body corporate.

13

4. Will the Court exercise supplemental jurisdiction over Plaintiff’s state-law inverse
condemnation claim?
No, the Court declines to exercise supplemental jurisdiction. The Recommendation
concludes that in light of dismissing Plaintiff’s entire first claim for relief as well as any inverse
condemnation claim based on the Fifth Amendment to the U.S. Constitution, there is no
jurisdictional basis (independent or supplemental) for the Court to adjudicate the sole remaining
inverse condemnation claim based on state law. (ECF No. 133 at 12-13.) Plaintiff asserts two
challenges: one, that such a conclusion contravenes the Court’s September 29, 2017 order; and
two, that the “magistrate’s conclusion that diversity is required to invest the court with
supplemental jurisdiction over a state law claim is moreover, clearly wrong.” (ECF No. 138 at
3-4.) Defendants agree there is no diversity jurisdiction and, therefore, no basis for the Court to
hear Plaintiff’s remaining state-law inverse condemnation claim. (ECF No. 145 at 5.) The Court
agrees with the Recommendation.
“There is no question that a State is not a ‘citizen’ for purposes of the diversity
jurisdiction.” Moor v. Alameda Cty., 411 U.S. 693, 717 (1973). However, political subdivisions
designated as a “body politic and corporate,” such as counties, are citizens of their respective
States. Id. at 718. Colorado Revised Statutes Section 30-11-101 states that “[e]ach organized
county within the state shall be a body corporate and politic[.]” As such, both Plaintiff and
Defendants are, at most, citizens of the State of Colorado, meaning the parties lack diversity.
Accordingly, there is no diversity jurisdiction and all claims based on federal law have been
dismissed as discussed above.
A district court has discretion to decline to exercise supplemental jurisdiction over a state
law claim if the “district court has dismissed all claims over which it has original jurisdiction.”
28 U.S.C. § 1367(c)(3); see also Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151,
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1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the court may, and usually
should, decline to exercise jurisdiction over any remaining state claims.”). The Court declines to
exercise supplemental jurisdiction. Therefore, Plaintiff’s objection is overruled.
IV.

CONCLUSION
Based on the foregoing and a de novo review of the portions of the recommendations to

which Plaintiff objected, the Court:
(1)

OVERRULES Plaintiff’s objections (ECF Nos. 138, 161) to the recommendations

(ECF Nos. 133, 160);
(2)

AFFIRMS and ADOPTS the Magistrate Judge’s recommendations (ECF Nos.

133, 160);
(3)

GRANTS Defendants’ motion to dismiss as follows:
a.

DISMISSES WITHOUT PREJUDICE Plaintiff’s takings claims as unripe;

b.

DISMISSES WITHOUT PREJUDICE Plaintiff’s condemnation claim

based on federal law as unripe;
c.

DISMISSES WITH PREJUDICE Plaintiff’s section 1983 conspiracy

claim for failing to plead an agreement; and

15

d.

DISMISSES WITHOUT PREJUDICE Plaintiff’s inverse condemnation

claim based on Colorado state law as the Court declines to exercise supplemental
jurisdiction.
(4)

ORDERS the Clerk to enter judgment as provided in this order and the Court’s

September 29, 2017 order at ECF No. 93 and close this case.
IT IS SO ORDERED.
DATED this 11th day of March, 2019.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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