Anthony v. City and County of Denver

Filing 173

ORDER That the Motion to Alter or Amend (ECF No. 171 ) is granted in part and denied in part as stated herein; That the Final Judgment (ECF No. 168 ) is hereby VACATED; That on or before February 28, 2020, Defendants shall file any opening brief and, on or before March 20, 2020, Plaintiff may file any response brief on the question of issue and claim preclusion. Both briefs are limited to 20 pages, exclusive of the certificate of service, and shall be limited to the issue as stated above . Any additional arguments or issues, e.g., amendment of the complaint, will be stricken and will not be considered. No reply shall be allowed except as ordered by the Court; and That the case is STAYED pending a determination of whether the claims are nonetheless subject to dismissal based on preclusion as previously raised in Defendants' Motion to Dismiss (ECF No. 109 ), by Judge Raymond P. Moore on 2/7/2020.(evana, )

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,
vs.
CITY AND COUNTY OF DENVER, a Colorado home rule municipality, and
ANTHONY SANDOVAL,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on Plaintiff’s “Motion to Alter or Amend the Judgment,
and for New Trial” (the “Motion”) (ECF No. 171) filed under Fed. R. Civ. P. 59(b) and (e),
arguing the two claims which were dismissed as unripe are now ripe and he “must be granted the
right to amend and supplement”1 his complaint. Defendants have filed a response (ECF No.
172); Plaintiff filed no reply. Upon consideration of the Motion, the court record, and the
applicable law, and being otherwise fully advised, the Court finds and orders as follows.
I.

BACKGROUND
The parties are familiar with the lengthy history which precedes this Order, so it will only

be briefly discussed here.

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ECF No. 171, p. 2.

This action stems from the parties’ dispute over the condemnation of a building then
owned by Plaintiff. During the pendency of the case before this court, state condemnation
proceedings were had, an award was made, and an appeal was filed by Plaintiff before the
Colorado Court of Appeals. As relevant to the challenges Plaintiff raises in the Motion, the
Court accepted and adopted two recommendations made by the Magistrate Judge resulting in the
dismissal of Plaintiff’s claims and judgment for Defendants.
First, the Court denied Plaintiff leave to file another amended or a supplemental
complaint. Next, the Court dismissed without prejudice Plaintiff’s first and second claims (the
Takings Claim and Inverse Condemnation Claim (based on the Fifth Amendment)2) as unripe
because the state court condemnation proceedings were not final, relying on Williamson County
Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Finally,
the Court declined to exercise supplemental jurisdiction over Plaintiff’s Inverse Condemnation
Claim based on the Colorado Constitution because the Court had dismissed all claims over which
it had original jurisdiction. (ECF No. 167.) Plaintiff’s Motion followed.
II.

LEGAL STANDARD
A. Plaintiff’s Pro Se Status
The Court construes Plaintiff’s filings liberally because he proceeds pro se. See Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Nonetheless, the Court does not serve as
Plaintiff’s advocate, see Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009), and he is
required to follow the same procedural rules as counseled parties. See Yang v. Archuleta, 525
F.3d 925, 927 n.1 (10th Cir. 2008) (“Pro se status ‘does not excuse the obligation of any litigant

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As defined the Recommendation (ECF No. 133, p. 7).
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to comply with the fundamental requirements of the Federal Rules of Civil and Appellate
Procedure.’” (citation omitted)).
B. Motion to Alter or Amend
Plaintiff cites to Rule 59(b) and Rule 59(e) as support for his Motion but, as Defendants
argue, Rule 59(b) governs motions for a new trial and is, therefore, inapplicable. Accordingly,
the Court examines Plaintiff’s Motion under Rule 59(e).
Rule 59(e) allows a district court to alter or amend a judgment. “‘Grounds warranting a
[Rule 59(e)] 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) (brackets in original) (quoting Servants of the Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000)). “A motion for reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the controlling law, [but it] 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 party waived theory that
was not raised in original motion because a “motion for reconsideration is not…an opportunity
for the losing party to raise new arguments that could have been presented originally”).
III.

ANALYSIS
Plaintiff argues (1) his claim is now ripe because the Colorado Court of Appeals has

affirmed the Denver District Court’s decision and denied his request for a rehearing; and (2) it
was “clear error,” “arbitrary and capricious,” and “contrary to law” to deny him leave to

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amend/supplement his complaint further. Defendants’ response raises three arguments. First,
Defendants contend, Plaintiff’s claims are still not ripe because the mandate has not issued and
he can still petition for certiorari. Second, Defendants argue that even if the mandate were to
issue, Plaintiff’s claims would be precluded by the issuance of a final decision as raised in
Defendants’ Motion to Dismiss. Finally, as to Plaintiff’s amendment/supplementation of the
complaint, Defendants assert Plaintiff is simply making the same arguments again. The Court
starts with the amendment issue.
Motion to Amend. The Court agrees that Plaintiff’s arguments about why he should be
allowed to amend or supplement his complaint were either previously considered and rejected or
could have been raised and were not. For example, Plaintiff complains again about his
dissatisfaction with the attorneys who were representing him; complaints which the Court found
insufficient. Similarly, Plaintiff’s argument about the deadline to amend fares no better, even if
considered.
Plaintiff argues here the deadline to amend (January 26, 2018) had already passed by the
time the Scheduling Order was issued (February 21, 2018), thus denying him the ability to
amend. But, Plaintiff omits significant facts. Specifically, the January 26, 2018 deadline was set
on December 15, 2017 during the scheduling conference/status conference and was to be
included in the proposed Scheduling Order. (ECF No. 104.) Indeed, on January 26, 2018,
Plaintiff (through counsel) did amend – he filed his Second Amended Complaint. (ECF No.
108.) And, the proposed Scheduling Order submitted on February 14, 2018 by Plaintiff’s
counsel set forth the previously agreed upon and ordered January 26, 2018 deadline. (ECF No.
111.) On this record, the fact the Magistrate Judge signed the Scheduling Order after the January

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26, 2018 deadline is of no moment; this fails to show any amendment was improperly denied.
Thus, Plaintiff’s Motion on this basis is DENIED.
Ripeness of Two Federal Claims.
The parties’ arguments on the two dismissed claims based on ripeness hinge on two
factors: the status of Plaintiff’s appeal of the state court condemnation proceeding and the
application of Williamson County. Those factors, however, have changed since the filing of the
Motion and Defendants’ response. First, the Court takes judicial notice that on August 19, 2019,
the Colorado Supreme Court denied Plaintiff’s petition for writ of certiorari. Anthony v. City and
County of Denver, No. 19SC312, 2019 WL 3934633 (Colo. Aug. 19, 2019). Second, in Knick v.
Township of Scott, 139 S. Ct. 2162, 2179 (2019), the United States Supreme Court overruled the
state-litigation requirement of Williamson County. In overruling Williamson County, the
Supreme Court held “[a] property owner may bring a takings claim under § 1983 upon the taking
of his property without just compensation by a local government.” Id. Thus, “because the
violation is complete at the time of the taking, pursuit of a remedy in federal court need not await
any subsequent state action.” Id. at 2177. Accordingly, Plaintiff’s two federal claims are ripe.
On this basis, the Court grants the Motion, vacates the judgment, and reinstates these two claims.
Supplemental Jurisdiction over State Law Inverse Condemnation Claim.
The Court had declined to exercise jurisdiction over the remaining state law claim upon
the dismissal of the two federal claims. Upon the reinstatement of the two federal claims, the
Court finds the state law claim should be reinstated as well. Thus, the Motion is granted as to
this claim. But, the Court’s inquiry does not end here.

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Defendants’ Other Arguments.
In their Motion to Dismiss, Defendants raised additional arguments which the Magistrate
Judge did not – and did not need to – decide in light of the recommended dismissals.
Defendants’ response to the Motion argues that, even if the claims became ripe, they would
nonetheless be precluded by the issuance of a final decision as asserted in their Motion to
Dismiss. Defendants are apparently relying on their argument of claim and issue preclusion set
forth in Section A.1 of their Motion to Dismiss. (ECF No. 109, pp. 10-11.) In light of the
subsequent events, e.g., the conclusion of the state court proceeding, which transpired after the
filing of the Motion to Dismiss, the Court finds supplementation of that argument is required
before the Court can evaluate its merits. Accordingly, the Court will allow further briefing on
this issue to determine whether Plaintiff’s takings and inverse condemnation claims are
nonetheless barred.
IV.

CONCLUSION
Based on the foregoing, the Court ORDERS as follows:
(1) That the Motion to Alter or Amend (ECF No. 171) is granted in part and denied in
part as stated herein;
(2) That the Final Judgment (ECF No. 168) is hereby VACATED;
(3) That on or before February 28, 2020, Defendants shall file any opening brief and, on
or before March 20, 2020, Plaintiff may file any response brief on the question of
issue and claim preclusion. Both briefs are limited to 20 pages, exclusive of the
certificate of service, and shall be limited to the issue as stated above. Any additional

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arguments or issues, e.g., amendment of the complaint, will be stricken and will not
be considered. No reply shall be allowed except as ordered by the Court; and
(4) That the case is STAYED pending a determination of whether the claims are
nonetheless subject to dismissal based on preclusion as previously raised in
Defendants’ Motion to Dismiss (ECF No. 109).
DATED this 7th day of February, 2020.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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