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Case 1:12-cv-02252-RPM Document 18 Filed 11/19/12 USDC Colorado Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 12-cv-02252-RPM KASEL ASSOCIATES INDUSTRIES, INC., and RAYMOND J. KASEL, Plaintiffs, v. CITY AND COUNTY OF DENVER, JUDY MONTERO, STEPHANIE SYNER, DOUGLAS LINKHART, GARY J. LASSWELL, SHARON BROWN, EMILY VONSWEARINGEN, MICHAEL ENSINGER, and UNKNOWN EMPLOYEES AND AGENTS OF THE CITY AND COUNTY OF DENVER, Defendants.

CITY DEFENDANTS MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT (ECF #5)

Defendants, Gary Lasswell, in his individual and official capacity, Douglas Linkhart, in his individual and official capacity, Judy Montero, in her individual and official capacity, Ben Siller, in his individual and official capacity, Stephanie Syner, in her individual and official capacity (collectively the Individually Named City Defendants), and the City and County of Denver (with the Individually Named City Defendants, collectively the City Defendants), by and through their attorney, Joseph Rivera, Assistant City Attorney for the City and County of Denver, submit this Motion to Dismiss Plaintiffs Amended Complaint (ECF #5). In support thereof, Defendants state as follows:

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INTRODUCTION The various Claims for Relief advanced by Plaintiffs Amended Complaint share a single premise: the named Defendants have caused Plaintiffs to suffer a deprivation of their right to use 3315 Walnut Street to the full extent of the propertys I-2 zoning classification. However, this premise is false. First, Plaintiffs right to use 3315 Walnut Street to manufacture pet treats has not been harmed or diminished and continues unabated to this day. Second, 3315 Walnut Street has not been classified under the I-2 zoning classification since June of 2010, when it was changed to I-MX-3, a zoning classification which continues to allow the use of the land to manufacture pet treats. Plaintiffs First, Second, Third, Fourth, Fifth, and Ninth Claims for Relief are not justiciable. Because Plaintiffs right to use 3315 Walnut Street to manufacture pet treats has not been harmed or threatened, Plaintiffs lack standing for these claims, and the claims are not ripe for judicial intervention. This Court lacks subject matter jurisdiction for Plaintiffs Sixth, Seventh, and Eighth Claims for Relief because they are not based on the Constitution or a federal statute. This Court must strike Plaintiffs First, Second, Third, Fourth, Fifth, and Ninth Claims for Relief for failure to state a claim because of Plaintiffs reliance on an outdated and incorrect information. Because 3315 Walnut Street has not been classified under the I-2 zoning classification since June of 2010, the statute of limitations has run on any claim premised on any alleged change in the subject propertys zoning classification.

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FACTS AND ALLEGATIONS RELATING TO THE CITY DEFENDANTS 1. In 2008 the Denver City Council enacted D.R.M.C. 4-10(b)(2) (hereinafter the Odor

Ordinance). See Exhibit #1 and Plaintiffs Amended Complaint 37. 2. In June of 2010, the Denver City Council enacted a new zoning code and zoning map.

See Exhibit #2 (Enacting Ordinance). All changes to the zoning code must be heard and approved by the Denver City Council. See Exhibit #3 (Affidavit). 3. The implementation of the new zoning code changed the zoning classification of 3315

Walnut from I-2 to I-MX-3. See Exhibit #3 (Affidavit). 4. The manufacture of food products for animals was an allowable use of the property under

the I-2 classification, and remained an allowable use under the new I-MX-3 designation. See Exhibit #3 (Affidavit). 5. Section 1.1.3.3 of the new zoning code provides that all approved uses for land remain

subject to the most restrictive applicable statute or ordinance. See Exhibits #3 and #4 (Denver Zoning Code 1.1.3.3)1. 6. On April 18, 2012, Ben Siller, an Individually Named City Defendant, and Investigator

for the Denver Environmental Health Department, personally served Plaintiffs with a citation for violating the Odor Ordinance. See Exhibit #5 and Plaintiffs Amended Complaint 46. 7. Plaintiffs, through counsel, filed a motion appealing the Odor Ordinance citation, and the

matter was scheduled for a hearing on June 14, 2012. See Exhibit #6 and Plaintiffs Amended Complaint 47-50.

The Denver Zoning Code is not available on Municode. It is available at the following web address: http://www.denvergov.org/cpd/CommunityPlanningandDevelopment/Zoning/DenverZoningCode/tabid/432507/Def ault.aspx.

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8.

On June 28, 2012, the Hearings Office, the Honorable David E. Ramirez, issued Findings

of Fact, Conclusions of Law and Recommended Decision upholding the citation for violating the Odor Ordinance See Exhibit 7. 9. Plaintiffs, through counsel, filed a motion appealing the findings and recommended

decision of the Hearing Officer to the Board of Environmental Health. See Exhibit #8. 10. Neither Plaintiff, nor his counsel, appeared at the appeal before the Board of

Environmental Health, and the Board of Environmental Health accepted the Hearing Officers findings and recommendations and upheld the Odor Ordinance citation. See Exhibit #9. STANDARD OF REVIEW Courts analyze a plaintiffs complaint rigorously under motions to dismiss for lack of subject matter jurisdiction and view the complaint deferentially under motions to dismiss for failure to state a claim upon which relief can be granted. The court applies a rigorous standard of review when presented with a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Raccoon Recovery, LLC v. Navoi Mining & Metallurgical Kominat, 244 F.Supp.2d 1130, 1136 (D. Colo. 2002) (citing Consumers Gas & Oil, Inc. v. Farmland Indus. Inc.,815 F.Supp. 1403, 1408 (D. Colo.1992). The determination of subject matter jurisdiction is a threshold question of law. Raccoon Recovery, 244 F.Supp. at 1136. As courts of limited jurisdiction, federal courts may only adjudicate cases that the Constitution and Congress have granted them authority to hear. See U.S. Const. Art. III, 2; Morris v. City of Hobart, 39 F.3d 1105, 1110 (10th Cir.1994), cert. denied, 514 U.S. 1109 (1995); Raccoon Recovery, 244 F.Supp. at 1136.

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Motions to dismiss pursuant to Rule 12(b)(1) may take two forms. Raccoon Recovery, 244 F.Supp. at 1136 (citing Amoco Production Co. v. Aspen Group, 8 F.Supp.2d 1249, 1251 (D.Colo.1998)). First, a party may attack the facial sufficiency of the complaint and the court must accept the allegations of the complaint as true. Id. Second, a party may attack the factual assertions regarding subject matter jurisdiction through affidavits and other documents. A court reviewing its jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) has wide discretion to allow affidavits, other documents and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). Id. (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995)). Courts view complaints deferentially when presented with a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. A court reviewing the sufficiency of a complaint presumes all of a plaintiffs factual allegations are true and construes them in the light most favorable to the plaintiff. Lower Ark. Valley Water Conservancy Dist. v. United States, et. al., 578 F. Supp. 2d 1315, 1322 (D. Colo. 2008) (citing Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007)). The courts function on a Fed. R. Civ. P. 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted. Lower Ark. Valley Water Conservancy Dist., 578 F. Supp. 2d at 1322 (citing Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003)). ARGUMENT City Defendants Fed. R. Civ. P. 12(b)(1) Motion to Dismiss for Lack of Jurisdiction 1.) Plaintiffs First, Second, Third, Fourth, Fifth, and Ninth Claims for Relief Are Not Justiciable 5

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Plaintiffs allege that the single application of the Odor Ordinance resulted in a taking of Plaintiffs property (First, Second, Fourth and Fifth Claim), without due process (Third Claim), seek injunctive relief (Ninth Claim). However, Plaintiffs right to use their land to manufacture pet treats has not been harmed or diminished and continues unabated. As such, Plaintiffs lack standing for their First, Second, Third, Fourth, Fifth, and Ninth Claims for Relief and these claims are not ripe for judicial intervention. As an Article III court, the jurisdiction of this Court is limited by the Constitution to cases and controversies and, as such, at the first instance the Court must determine whether a justiciable dispute actually exists. Morgan v. McCotter, 365 F.3d 882, 887 (10th Cir. 2004) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984) and citing Warth v. Seldin, 422 U.S. 490, 498 (1975)). The primary concerns regarding justiciability focus on the twin questions of (a) whether a plaintiff has standing to maintain the action and (b) whether the case is ripe for judicial review. Id. Where there exists a question regarding whether a plaintiff has yet sustained an injury in fact caused by defendants, there may be substantial overlap between the issue of standing and ripeness. Id. In assessing whether Plaintiffs have standing or a ripe claim, the Court is not limited to the four corners of Plaintiffs Complaint. Fed R. Civ. P. 12(b)(1) attacks the existence of jurisdiction rather than the allegations of the complaint. A party challenging a federal court's jurisdiction need not accept the factual allegations of the complaint as true. Instead, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction is based. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001); Raccoon Recovery, 244 F.Supp. at 1136. 6

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a.)

Plaintiffs Lack Standing

Plaintiffs cannot establish any of the three requirements for standing for their First, Second, Third, Fourth, Fifth, and Ninth Claims for Relief. To establish standing, plaintiffs must show injury-in-fact, causation, and redressability. Lower Ark. Valley Water Conservancy Dist., 578 F. Supp. 2d at 1323 (D. Colo. 2008) (citing Lujan v. Defenders of Wildlife, et. al., 504 U.S. 555, 560-61 (1992). First, the plaintiff must have suffered an injury-in-fact, an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Id. Second, there must be a causal connection between the injury and the defendants conduct; the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court. Id. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. I.) Plaintiffs Cannot Show an Injury-in-Fact

The Plaintiffs receipt of a single citation for violation of the Odor Ordinance did not change any rights associated with Plaintiffs zoning classification. To establish an injury-in-fact, plaintiff must show something more than simply a deprivation in the abstract. Loving v. Boren, 133 F.3d 771, 773 (10th Cir. 1998) (plaintiff showed no actual harm because failed to show any attempt to access information that was denied). Here, Plaintiffs were able to use their land to manufacture dog treats when its zoning classification was I-2, and are free to continue to use their land for this purpose under the present I-MX-3 designation. Exhibit #3 (Affidavit). Because Plaintiffs did not suffer any new injury or incur any new responsibility after the Denver City Council passed the Odor Ordinance, Plaintiffs allegations of a due process 7

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violation are not sufficient to establish an injury-in-fact. A due process claim must be accompanied by an actual injury. Morgan v. McCotter, 365 F.3d at 887-88; Rector v. City and County of Denver, 348 F.3d 935, 943-44 (10th Cir. 2003) (the Constitution does not protect procedure for procedures sake). A plaintiff must show that due process protections would have alleviated a harm. Morgan v. McCotter, 365 F.3d at 888. Plaintiffs Complaint alleges that the Odor Ordinance is a new requirement which resulted in a regulatory taking without due process. However, Plaintiffs previous I-2 and present I-MX-3 zoning classifications were, and are, expressly subject to all other applicable ordinances enacted by the Denver City Council. See Exhibit #3 (Affidavit); Exhibit #4 (Section 1.1.3.3 of Denver Zoning Code); Exhibit #10 (D.R.M.C. 59-20 applicable to Denvers previous zoning code). To determine whether denial of due process constitutes an injury-in-fact, one must ask whether, assuming the truth and validity of all of a plaintiffs factual allegations and legal theories, the due process protections would have alleviated any harm. Morgan v. McCotter, 365 F.3d at 888. Here, additional due process would not have alleviated any harm because the Odor Ordinance does not impose a new requirement or otherwise diminish Plaintiffs use of their land. Even though making food products for animals was, and is, an approved use of Plaintiffs land, all zoning standards remain subject to all other ordinances. II.) Plaintiffs Cannot Establish Causation

Two factors prevent Plaintiffs from establishing causation. First, because Plaintiffs cannot show an injury-in-fact, Plaintiffs cannot meet the causation requirement. Second, City Defendants are legally powerless to change Plaintiffs zoning classification. A harm is not traceable to a defendants conduct where that defendant is legally powerless to 8

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effect any deprivations of a plaintiffs property interest. Morgan v. McCotter, 365 F.3d at 88990. In Morgan, the court declined to find causation where a corrections officer was dismissed from his management position, but retained all of the rights and privileges afforded to him as a state employee. Id. Here, likewise, there are two, independent statutory schemes at play. The Denver City Council alone has the power to approve or deny changes in allowable uses of Plaintiffs property via the zoning process, and did not. Exhibit #3 (Affidavit). And, the issuance of an Odor Ordinance citation does not impact Plaintiffs zoning classification. Exhibit #3 (Affidavit). Consequently, no harm is to Plaintiffs zoning classification is traceable to the City Defendants. III.) Plaintiffs Cannot Establish Redressability

Plaintiffs cannot show that their alleged injury will likely be redressed by a favorable a favorable decision. First, because Plaintiffs cannot show an injury-in-fact, Plaintiffs cannot meet the redressability requirement. Second, as discussed above, the statutory schemes for zoning and the Odor Ordinance are completely independent. As such, any decision from this Court regarding the Odor Ordinance will not impact Plaintiffs zoning classification. b.) Plaintiffs Cannot Establish Ripeness

Like standing, the ripeness inquiry asks whether the challenged harm has been sufficiently realized at the time of trial. The ripeness issue, however, focuses not on whether the plaintiff was in fact harmed, but rather whether the harm asserted has matured sufficiently to warrant judicial intervention. Morgan v. McCotter, 365 F.3d at 890 (quoting Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975)).

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The determination of whether the issues presented by a case are ripe for review requires evaluation of (1) the fitness of the issues for judicial decision and (2) the hardship to the parties caused by withholding judicial consideration. Morgan v. McCotter, 365 F.3d at 890 (citing Abbott Labs v. Gardner, 387 U.S. 136, 149 (1967), revd on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977)). The application of the fitness standard focuses on whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all. Morgan v. McCotter, 365 F.3d at 890 (quoting New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995)). The hardship inquiry assesses whether the challenged action creates a direct and immediate dilemma for the parties. Id. Here, Plaintiffs cannot satisfy the (1) fitness standard or the (2) hardship standard. First, Plaintiffs cannot satisfy the fitness standard because they have not shown any actual or imminent effort by the Denver City Council to alter Plaintiffs zoning classification or otherwise modify their rights of use for their land. As such, Plaintiffs concerns regarding any impairment of their right to manufacture food products on their land remain purely theoretical. Second, Plaintiffs cannot meet the hardship requirement. Plaintiffs cannot show that they would suffer any undue hardship where the alleged controversy is allowed to more develop more fully before relying on the merits. As discussed above, Plaintiffs have suffered no concrete harm. As such, postponing decision on Plaintiffs Complaint until Plaintiffs have suffered some concrete harm cannot itself constitute an independent harm to Plaintiffs. Morgan v. McCotter, 365 F.3d at 891. 2.) Plaintiffs Sixth, Seventh, and Eighth Claims for Relief Do Not Have a Basis Under the Constitution or Any Federal Statute

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This Court does not have subject-matter jurisdiction to hear Plaintiffs civil conspiracy (Sixth Claim), defamation (Seventh Claim), or abuse of process claim (Eighth Claim). Federal courts are courts of limited jurisdiction; they must have a statutory basis for their jurisdiction. Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994). There are two statutory bases for federal subject-matter jurisdiction: diversity jurisdiction under 28 U.S.C. 1332 and federal question jurisdiction under 28 U.S.C. 1331. Under 28 U.S.C. 1331, federal district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Here, Plaintiffs cannot establish diversity jurisdiction, and the civil conspiracy, defamation and abuse of process claims do not arise from the Constitution, laws, or treaties of the United States. City Defendants Fed. R. Civ. P. 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted 1.) Plaintiffs Failed to State a Claim Upon Which Relief May Be Granted Fed. R. Civ. P. 12(b)(6) allows a defendant to move for dismissal for failure to state a claim upon which relief can be granted. The courts function on a Fed. R. Civ. P. 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted. Lower Ark. Valley Water Conservancy Dist. v. United States, et. al., 578 F. at 1322 (citing Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003)). A court reviewing the sufficiency of a complaint presumes all of a plaintiffs factual allegations are true and construes them in the light most favorable to plaintiff. id. (citing Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007)). 11

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This Court must strike Plaintiffs First, Second, Third, Fourth, Fifth, and Ninth Claims for Relief for failure to state a claim because of Plaintiffs reliance on an outdated and incorrect information. The statute of limitations for a deprivation of property claim under section 1983 is two years. Onyx Properties LLC v. Bd. of County Commrs, No. 10-cv-1482 (LTB-KLM), 11cv-2321 (RPM-MJW), 2012 WL 2121419, at *3-4 (D. Colo. June 12, 2012). Because the 3315 Walnut Street has not been classified under the I-2 zoning classification since June of 2010, the statute of limitations has run on any claim premised on any alleged change in the subject propertys zoning classification. WHEREFORE, the City Defendants respectfully request this Court dismiss Plaintiffs First, Second, Third, Fourth, Fifth, and Ninth Claims for Relief pursuant to Rule 12(b)(1) for lack of jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and dismiss Plaintiffs Sixth, Seventh and Eight Claims for Relief because they do not arise out of the Constitution or federal statutes. Dated this 19th day of November, 2012. Respectfully submitted,

s/ Joseph Rivera Joseph Rivera Assistant City Attorney City Attorneys Office, Litigation Section 201 W. Colfax Avenue, Dept. 1108 Denver, CO 80202-5332 (720) 913-3100 joseph.rivera@denvergov.org; and dlefiling.litigation@denvergov.org Attorney for City Defendants

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CERTIFICATE OF SERVICE I hereby certify that on the 19th day of November, 2012, I electronically filed the foregoing CITY DEFENDANTS MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT (ECF #5) with the Clerk of the Court using the CM/ECF system and served on the following email address: Richard O. Campbell dcampbell@ckbrlaw.com Randall J. Paulsen randy@armitagelaw.com

s/David L. Washington David L. Washington, Paralegal Denver City Attorneys Office

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