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Grider v. City & County of Denver

United States District Court, D. Colorado

July 25, 2013

ALLEN GRIDER; GLENN BELCHER; and VALERIE PILTZ, Plaintiffs,
v.
CITY AND COUNTY OF DENVER; and CITY OF AURORA, Defendants

Page 1263

For Allen Grider, Glenn Belcher, Valerie Piltz, Plaintiffs: Jay Wayne Swearingen, Jennifer Reba Edwards, Kimberly I. Danielson, Animal Law Center, The, Wheat Ridge, CO.

For City of Aurora, Defendant: Jonathan Marshall Abramson, Nancy Cornish Rodgers, Richard P. Kissinger, Kissinger & Fellman, P.C., Denver, CO.

For City and County of Denver, Defendant: Scott James Bowman, Denver City Attorney's Office-West Colfax Avenue, Denver, CO; Wendy J. Shea, Denver City Attorney's Office, Denver, CO.

OPINION

Page 1264

OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Honorable Marcia S. Krieger, Chief United States District Judge.

THIS MATTER comes before the Court on two motions to dismiss: (1) Defendant City and County of Denver's Motion to Dismiss for Lack of Subject Matter Jurisdiction (#137), and (2) Defendant City of Aurora's Motion to Dismiss Plaintiff Belcher's

Page 1265

and Plaintiff Piltz's Claims for Lack of Subject Matter Jurisdiction (#140). The Plaintiffs filed a combined Response (#161), and the Defendants each filed a Reply (## 163, 164).

I. Background

As alleged in the Amended Complaint (#85) and detailed in previous orders, both Denver and Aurora ban the possession of pit bull dogs.[1] The Plaintiffs, Allen Grider, Glenn Belcher, and Valerie Piltz, each claim to be a disabled individual protected by the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and to use a pit bull as a service animal to assist with the tasks of daily living.

As a result of ruling on earlier motions, see Order at Dkt. # 100, this action has only one legal claim -- for a failure to accommodate in violation of the ADA and 28 C.F.R. § 35.130(b)(7), in that the Defendants refused to modify their ordinances as necessary to accommodate the Plaintiffs' disabilities. In reality, however, there are six claims -- each Plaintiff asserts a claim against each Defendant. The Plaintiffs seek both damages and injunctive relief in the form of modification of the Defendants' ordinances.

The Defendants now challenge the Plaintiffs' standing to assert their claims. The City of Denver argues that none of the named Plaintiffs have standing to seek either retrospective or prospective relief against it. The City of Aurora makes the same argument with regard to Plaintiffs Belcher and Piltz.[2] The Defendants contend that because the Plaintiffs have not sufficiently alleged their standing, their claims must be dismissed under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.

II. Standard of Review

When evaluating a plaintiff's standing at the pleading stage of the litigation, the Court " must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). At the same time, the Court may allow the plaintiff to supply affidavits that further particularize allegations of fact deemed supportive of the plaintiff's standing. Id . The Court construes statements made in such affidavits in the light most favorable to the plaintiff. Southern Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013). At the pleading stage, " general factual allegations of injury resulting from the defendant's conduct may suffice," for on a motion to dismiss, the Court presumes that " general allegations embrace those specific facts that are necessary to support the claim." Id . (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). ...


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