Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 12CA1112.
In his action under 42 U.S.C. § 1983, the plaintiff alleged that his Fourth Amendment rights were violated when he was bitten by a K--9 police dog. His claim was dismissed after he failed to respond to a motion to dismiss. Thereafter, he filed a motion to set aside the judgment under C.R.C.P. 60(b)(1), asserting that his failure to respond was caused by excusable neglect. The trial court denied the Rule 60(b)(1) motion, and the court of appeals affirmed, concluding that the plaintiff failed to demonstrate that he had alleged a meritorious claim or defense, the second factor to be considered under Rule 60(b)(1). The court of appeals reasoned that the plaintiff failed to allege an intentional seizure by the government as required under Brower v. Cty. of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). More specifically, the appeals court reasoned that an intentional seizure occurs when an officer releases a K--9 into a particular " space," and the plaintiff is bitten within that space. The supreme court now affirms, but on narrower grounds, rejecting the court's " space" analysis, and instead finding that the allegation regarding an intentional seizure in the plaintiff's complaint amounts to a legal conclusion, which is insufficient to allege a meritorious claim under Rule 60(b)(1).
Attorneys for Petitioner: Rathod Mohamedbhai LLC, Matthew J. Cron, Arash Jahanian, Qusair Mohamedbhai, Denver, CO; The Law Offices of Sandomire & Schwartz, Andrew Sandomire, Eric V. Field, Denver, CO.
Attorneys for Respondents: Douglas County Attorney's Office, Kelly Dunnaway, Castle Rock, CO.
JUSTICE HOOD dissents, and JUSTICE MÁRQUEZ joins in the dissent. JUSTICE GABRIEL does not participate.
[¶1] Petitioner Fabian Sebastian filed an action under 42 U.S.C. § 1983 (2014) against respondents Douglas County, Colorado, the Douglas County Sheriff's Office, Douglas County Sheriff David A. Weaver, and Sheriff's Deputy Greg A. Black (" the County" ), alleging that his Fourth Amendment right to be free from unreasonable seizures was violated when he was attacked by a K--9 police dog. More specifically, he alleged that an intentional seizure occurred when the dog, released by the deputy to seize two suspects who had fled a vehicle and climbed over a fence, ran back to the vehicle and attacked him while he was sitting with his hands up in the back seat.
[¶2] After Sebastian failed to respond to the County's motion to dismiss within the time limit, the trial court dismissed his claim. Sebastian then moved to set aside the judgment under C.R.C.P. 60(b)(1), alleging excusable neglect. Under Goodman Assocs., LLC v. Mountain Properties, LLC, a trial court must consider three factors when determining whether to grant a Rule 60(b)(1) motion for excusable neglect: " (1) whether the neglect that resulted in entry of judgment by default was excusable; (2) whether the moving party has alleged a meritorious claim or defense; and (3) whether relief from the challenged order would be consistent with considerations of equity." 222 P.3d 310, 319 (Colo. 2010) (citing Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1116 (Colo. 1986)). The trial court denied Sebastian's motion on the ground that he had failed to demonstrate excusable neglect under the first factor.
[¶3] In the initial appeal of the case, the court of appeals determined that although the trial court properly concluded that there was no excusable neglect under the first factor, it had failed to conduct a full three-factor analysis under Goodman; accordingly, the appellate court reversed and remanded the case for such an analysis. On remand, the trial court once again denied the motion, determining that Sebastian failed to demonstrate a meritorious claim under the second factor, and failed to show that the equities weighed in his favor under the third factor. This time the court of appeals affirmed the trial court, reiterating its earlier conclusion that Sebastian failed to show excusable neglect under the first factor, and further concluding that the trial court properly determined that Sebastian failed to plead a meritorious claim.
[¶4] Relevant here, the appellate court concluded that Sebastian failed to plead an intentional seizure as required by Brower v. Cty. of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). The court held that while an intentional seizure occurs when a K--9 is released and attacks anyone in the surrounding " space," Sebastian was not in that " space" because the K--9 had to turn around and run back to the vehicle. Sebastian v. Douglas Cty., 2013 COA 132, ¶ 28, P.3d . The court concluded that because Sebastian failed to meet the first and second Goodman factors, the trial court properly denied his Rule 60(b)(1) motion. Id. at ¶ 36. We granted Sebastian's certiorari petition to consider the court of appeals' conclusion that he did not allege a meritorious claim.
[¶5] We affirm the court of appeals, but on narrower grounds. We decline to adopt the appellate court's " space" analysis, and instead hold that Sebastian failed to allege a meritorious claim because his allegations regarding an intentional seizure consist of only legal conclusions. We remand this ...