United States District Court, D. Colorado
PHILIP A. BRIMMER United States District Judge
This matter comes before the Court on the Motion for Costs, Attorneys’ Fees, and Stay Under Fed.R.Civ.P. 41(d) [Docket No. 11] filed by defendant Stadium Management Company, LLC (“SMC”). The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
A. The Alleged Constitutional Deprivations
This case concerns two incidents in January 2014 in which plaintiff was ordered to remove his Winnebago from a parking lot of Sports Authority Field in Denver, Colorado. See generally Docket No. 33 at 4-6, ¶¶ 17-29. On January 12, 2014, plaintiff Moore, former plaintiff Raynard Hugee, and a number of individuals who are not parties to this action were “tailgating” from plaintiff’s Winnebago in parking lot C of Sports Authority Field in anticipation of the Denver Broncos’ playoff game against the San Diego Chargers. Docket No. 33 at 4, ¶ 17. The phrase “Cannabis University” was emblazoned on the Winnebago’s driver and passenger sides. Id. at 5, ¶ 19. Before the football game started, agents of SMC and the Denver Police Department, including defendants Sherwood and Velasquez, ordered the Winnebago’s occupants to either immediately cover the word “cannabis” on the vehicle or remove the vehicle from Sports Authority Field property. Id. ¶ 23.
On January 19, 2014, plaintiff once again sought to park his Winnebago in parking lot C, but had covered both areas on the vehicle that displayed the phrase “Cannabis University.” Id. at 6, ¶ 26. Agents of SMC and the Denver Police Department, including defendants Lopez and Thomas, however, demanded that the Winnebago immediately leave Sports Authority Field property. Id. ¶ 27.
During both the January 12 and January 19 incidents, SMC’s agents and the Denver police defendants stated that their reason for banning the Winnebago was that all commercial activity is prohibited on stadium property. Id. at 7, ¶ 32. Plaintiff alleges that this ban on commercial activity is selectively enforced and that “a wide variety of other, non-cannabis-related political and commercial speech and expressive images” was permitted on stadium property, including in parking lot C. Id. ¶ 33.
Michelle LaMay, who was originally a plaintiff in this action, see Docket No. 1, is the dean and chief executive officer of Cannabis University. Docket No. 33 at 5, ¶ 21. Ms. LaMay consented to the use of the phrase on plaintiff’s Winnebago. Id.
B. Procedural History
Several different parties have filed several different complaints related to the January 2014 incidents at Sports Authority Field. The instant motion concerns the actions of plaintiff and other parties at the state court level. See generally Docket No. 11. On January 30, Ms. LaMay and Cannabis University filed suit against the stadium defendants in the District Court for the City and County of Denver, Colorado. Docket No. 11-1 at 2 (the “state court action”). The complaint brought claims for relief for unconstitutional restraint on free speech. Id. at 3. Ms. LaMay, who is not an attorney, signed the complaint on behalf of both herself and Cannabis University. Id. at 4. The stadium defendants moved to dismiss Ms. LaMay’s complaint, arguing, inter alia, that Cannabis University, a corporate entity, could not be represented pro se. Id. at 14. On February 27, 2014, Ms. LaMay filed a document titled “Motion for Declaratory Judgement in a Special Matter, ” in which she asked the state court to allow her to “act as advocate for her business” and sought to withdraw herself as a party. Id. at 39-40. On March 6, 2014, Ms. LaMay filed an amended complaint naming Cannabis University as the sole plaintiff. Id. at 43. Again, Cannabis University was represented only by Ms. LaMay. In the amended complaint, Cannabis University alleged claims for business disparagement and violation of Colo. Rev. Stat. § 35-31-101. Id. at 45-47. On March 19, 2014, the state court accepted the amended complaint, dismissed Ms. LaMay as an individual plaintiff, and required a licensed attorney to enter an appearance on behalf of Cannabis University, indicating that failure to obtain counsel may result in dismissal of the lawsuit. Id. at 70, 72. On April 2, 2014, the stadium defendants moved to dismiss plaintiff’s amended complaint. See Id. at 80.
Counsel for plaintiff entered appearances in the state court action on April 22, 2014. Id. at 74, 77. On June 5, 2014, the parties to the state court action appeared f or a status conference. See Id. at 108. At the status conference, the state court ordered plaintiff’s counsel to file a motion to amend the complaint on or before July 10, 2014. Id. at 109.
On July 3, 2014, plaintiff’s counsel filed a second amended complaint (the “proposed second amended complaint”), which is substantially similar to the operative complaint in this action. Docket No. 11-1 at 113. The proposed second amended complaint was filed on behalf of Ms. LaMay, Mr. Hugee, and plaintiff (the “putative plaintiffs”). Id. The stadium defendants argued that the plaintiffs filed the complaint without having sought leave to do so and added parties who had not moved to intervene. Id. at 130. On September 16, 2014, the state court denied the plaintiffs’ motion to amend, noting that, in the proposed second amended complaint, “[t]he only plaintiff to the original complaint has been dropped from this action and three completely new parties were added.” Id. at 137. The state court stated that the proposed second amended complaint “is not an Amended complaint; it is an entirely new, different lawsuit. If the new Plaintiffs wish to pursue these new claims, that should be done in a separate lawsuit, not here.” Id. (emphasis in original). In addition to denying the putative plaintiffs’ motion to file the proposed second amended complaint, the state court ordered Cannabis University to respond to the stadium defendants’ pending motion to dismiss within seven days of the order. Id. at 138.
On September 23, 2014, Cannabis University filed an “Unopposed Motion to Voluntarily Dismiss All Claims Against All Defendants Without Prejudice.” Docket No. 11-1 at 140. The motion noted that, because the state court did not accept the proposed second amended complaint, Cannabis University was the only party “that is in a position to move to voluntarily dismiss all of its claims, ” but stated that, “to ensure no unresolved matters remain in this case, Michelle LaMay, Reynard Hugee, and Frederick Moore also seek to voluntarily dismiss all claims raised in the complaints and proposed complaints” filed in the state court action “without prejudice.” Id. at 141, ¶¶ 5-6. In correspondence between the parties before Cannabis University filed its motion, plaintiff’s counsel opined that Mr. Hugee and plaintiff’s inclusion in the motion for voluntary dismissal was unnecessary, but offered to include them if the stadium defendants wished. Docket No. 18-2 at 7. The stadium defendants’ counsel responded that his understanding “was [that the voluntary dismissal] would include Messrs. Hugee and Moore as well.” Id.
Plaintiff, Mr. Hugee, and Ms. LaMay initiated this lawsuit on March 6, 2015. Docket No. 1. On March 26, 2015, the stadium defendants filed the instant motion for attorneys’ fees, costs, and a stay. Docket No. 11. On April 2, 2015, plaintiff’s counsel notified the stadium defendants’ counsel that Ms. LaMay intended to file a motion to dismiss her claims against all defendants with prejudice. Docket No. 18-3 at 1. Plaintiff’s counsel opined that, after the dismissal of Ms. LaMay, the stadium defendants’ Rule 41(d) motion would be moot, as no remaining plaintiff was ever a party to the state court action. Id. at 1-2. ...