RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MICHAEL E. HEGARTY, Magistrate Judge.
Before the Court are (1) Colorado Springs Defendants' Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) [filed September 11, 2013; docket #18], (2) Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) filed by Defendants Town of Green Mountain Falls, Town of Monument, City of Woodland Park, and City of Fountain [filed October 3, 2013; docket #31], and (3) Defendant El Paso County's Motion to Dismiss Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) [filed October 15, 2013; docket #35] (collectively, "the motions to dismiss"). The motions to dismiss have been referred to this Court for recommendation. (Dockets ##19, 32, 36.)
The Court set a November 29, 2013 deadline for Plaintiff Dennis Sladek to respond to the motions to dismiss. Sladek filed a "Motion for 10 Day Extension of Time to File Response to Various Motions to Dismiss" on November 27, 2013 [docket #43]. The Court denied that motion without prejudice for failure to comply with D.C. Colo. LCivR 7.1A [docket #46]. Without filing another motion for an extension of time, Sladek filed a response on December 10, 2013. Sladek filed a Motion to File Response to Motions to Dismiss Out of Time on December 18, 2013 [docket #51], which the Court denied for failure to establish excusable neglect in accordance with Fed.R.Civ.P. 6(b)(1)(B) and struck the response to the motions to dismiss.
Based upon the record herein and for the reasons that follow, the Court RECOMMENDS that Defendants' motions be GRANTED.
Sladek initiated this lawsuit on July 26, 2013 in El Paso County District Court [docket #1]. The City of Colorado Springs, The City of Colorado Springs Council, and Stephen Bach (the "Colorado Springs Defendants") removed the state action to federal court on August 13, 2013 [docket #1]. The claims arise from Sladek's opposition to ordinances that prohibit the operation of recreational marijuana dispensaries.
In the 2012 general election, Colorado voters approved Colorado Constitutional Amendment 64, an amendment that decriminalizes the growth, possession and consumption of small amounts of marijuana by individuals. Amendment 64 also establishes a regulatory framework for the licensing of commercial marijuana cultivation and sales operations. Colo. Const. Art. XVIII §16. Amendment 64 provides that "[a] locality may prohibit the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, or retail marijuana stores through the enactment of an ordinance or through an initiated or referred measure..." Colo. Const. Art. XVIII §16(5)(f). The Defendants passed ordinances prohibiting the operation of recreational marijuana shops.
Sladek seeks to open a legal recreational marijuana dispensary. He claims that the ordinances prohibiting the operation of recreational marijuana shops are unconstitutional, and that the Defendants have violated his constitutional rights and committed negligence.
All of the Defendants have filed motions to dismiss. Because Palmer Lake's ordinance has been repealed, its motion raises somewhat different arguments; thus, the Court addresses that motion in a separate recommendation. The present motions argue that Sladek's claims should be dismissed because (1) he lacks standing, (2) he fails to state claims upon which relief can be granted, (3) the Defendants are entitled to absolute legislative immunity; (4) the Colorado Governmental Immunity Act (CGIA), C.R.S. § 24-10-101 et seq., bars Sladek's negligence claim, and (5) Mayor Stephen Bach is entitled to qualified immunity.
I. Dismissal under Fed.R.Civ.P. 12(b)(1)
Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of subject matter jurisdiction." Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere [conclusory] allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso, 495 F.2d at 909. Accordingly, Plaintiff in this case bears the burden of establishing that this Court has jurisdiction to hear his claims.
Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).
First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.
Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.
Id. at 1002-03 (citations omitted). The present motion launches a facial attack on this Court's subject matter jurisdiction; therefore, the Court will accept the ...