United States District Court, D. Colorado
THOMAS R. ANTHONY, Plaintiff,
CITY AND COUNTY OF DENVER, a Colorado home rule municipality; and ANTHONY SANDOVAL, Denver zoning technician, in his official capacity, Defendants.
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
case, Plaintiff brings just compensation claims against
Defendants related to property he previously owned, which is
the subject of eminent domain proceedings in Colorado state
court. Two separate motions are presently before the Court on
separate recommendations from Magistrate Judge Nina Y. Wang.
One is Defendants' Motion to Dismiss Second
Amended Complaint Pursuant to Fed.R.Civ.P. 12(B)(1)
and (6). (ECF No. 110.) The Recommendation
of United States Magistrate Judge is to
grant the motion to dismiss. (ECF No. 133.)
The other is Plaintiff's Motion to File Replacement
Second Amended and Supplemented Complaint and
Reconsider Order of Sept. 29, 2017 In Part. (ECF No.
131.) The Recommendation of United States
Magistrate Judge is to deny
Plaintiff's motion to reconsider and motion for leave to
file an amended complaint. (ECF No. 160.) Plaintiff objects
to both recommendations (ECF Nos. 138, 161); the Defendants
responded to each objection (ECF Nos. 145,
following reasons, the Court OVERRULES Plaintiff's
objections, ADOPTS the recommendations, DENIES
Plaintiff's motion to reconsider and request for leave to
file an amended complaint, and GRANTS Defendants' motion
parties do not object to the factual or procedural background
discussed in the recommendations. Accordingly, the Court
adopts and incorporates the factual and procedural background
included within the recommendations as if set forth herein.
To put the Court's analysis in context, a brief summary
Plaintiff filed his initial complaint on May 23, 2016, he
owned property at 5001 National Western Drive, Denver,
Colorado (the “Property”), located next to the
National Western Stock Show's property. The Property was
used as his personal residence and place of business. In
November 2015, a tax issue was passed to fund the National
Western Center Project-a multimillion dollar expansion of the
National Western Center, which is located near
Plaintiff's Property (the “Project”).
Subsequently, the City of Denver notified Plaintiff it
intended to acquire his Property through condemnation
alleges that Defendants engaged in various wrongful actions
to devalue and acquire his Property for a deflated amount
through eminent domain. After Plaintiff initiated this
lawsuit (May 23, 2016) but before filing his Second Amended
Complaint (January 26, 2018), the City filed a Petition in
Condemnation in the District Court, City and County of
Denver, State of Colorado on November 10, 2016, to acquire
Plaintiff's Property, titled City & County of
Denver v. Anthony, No. 2016CV34153 (the
“Condemnation Proceeding”). (See ECF
Nos. 73-1; 73-2; 73-3; 75, 109-10.) Plaintiff then entered into
a Stipulation for Immediate Possession (the
“Stipulation”), allowing the City to acquire
possession of the Property; therefore, the sole remaining
issue in the state Condemnation Proceeding was the amount of
just compensation for the Property taken. (See ECF
Nos. 71 at ¶1; 75; 73-3.) On July 31, 2017, a final
order was entered in the Condemnation Proceeding which
identified the amount of compensation Plaintiff would be paid
for the taken Property. (ECF No. 109-10 at 3.) On November 16,
2017, Plaintiff filed a Notice of Appeal, appealing the final
order in the Condemnation Proceeding to the Colorado Court of
Appeals. (Id. at 1.) No. decision from the Colorado
Court of Appeals has been issued. The Court now turns to the
applicable legal standards and motions at issue in this case.
Review of the Magistrate Judge's Recommendation
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires the
district court judge to “determine de novo any part of
the magistrate judge's [recommendation] that has been
properly objected to.” In conducting its review,
“[t]he district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.”
Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed
within fourteen days of the magistrate judge's
recommendations and specific enough to enable the
“district judge to focus attention on those
issues-factual and legal-that are at the heart of the
parties' dispute.” United States v. 2121 East
30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996)
(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)).
The district judge need not, however, consider arguments not
raised before the magistrate judge. United States v.
Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)
(“In this circuit, theories raised for the first time
in objections to the magistrate judge's report are deemed
absence of a timely and specific objection, “the
district court may review a magistrate's report under any
standard it deems appropriate.” Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see
also Fed. R. Civ. P. 72 Advisory Committee's Note
(“When no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation.”).
And, where a claim is dismissed on two or more independent
grounds, the plaintiff must contest each of those grounds.
See Lebahn v. Nat'l Farmers Union Unif. Pension
Plan, 828 F.3d 1180, 1188 (10th Cir. 2016). If the
plaintiff fails to do so, the court may affirm on the ground
which the plaintiff failed to challenge. Id.
Motions to Dismiss
to dismiss under Rule 12(b)(1) are, generally, either a
facial attack on the complaint's allegations as to the
existence of subject matter jurisdiction or a factual attack
which goes beyond the allegations and challenges the facts on
which subject matter jurisdiction is based. Stuart v.
Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir.
2001). A facial attack challenging the sufficiency of the
complaint requires the court to accept the allegations of the
complaint as true. Stuart, 271 F.3d at 1225;
Holt v. United States, 46 F.3d 1000, 1002 (10th
Cir.1995) (internal citation omitted). A factual attack
affords the district court “‘wide discretion to
allow affidavits, other documents, and a limited evidentiary
hearing to resolve disputed jurisdictional facts.'”
Stuart, 271 F.3d at 1225 (quoting Holt, 46
F.3d at 1003). Such reference to evidence outside the
pleadings does not convert the Rule 12(b)(1) motion to a Rule
56 motion for summary judgment. Stuart, 271 F.3d at
evaluating a motion to dismiss under Rule 12(b)(6), a court
must accept as true all well-pleaded factual allegations in
the complaint, view those allegations in the light most
favorable to the plaintiff, and draw all reasonable
inferences in the plaintiff's favor. Brokers'
Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d
1125, 1135-36 (10th Cir. 2014); Mink v. Knox, 613
F.3d 995, 1000 (10th Cir. 2010). Conclusory allegations are
insufficient. See Cory v. Allstate Ins., 583 F.3d
1240, 1244 (10th Cir. 2009). Instead, in the complaint, the
plaintiff must allege a “plausible” entitlement
to relief. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-556 (2007). A complaint warrants dismissal if it
fails “in toto to render plaintiffs'
entitlement to relief plausible.” Twombly, 550
U.S. at 569 n.14 (italics in original). “In determining
the plausibility of a claim, we look to the elements of the
particular cause of action, keeping in mind that the Rule
12(b)(6) standard does not require a plaintiff to set forth a
prima facie case for each element.” Safe Streets
Alliance v. Hickenlooper, 859 F.3d 865, 878 (10th Cir.
2017) (citation, internal quotation marks, and alteration
Motions to Amend a Scheduling Order
“After a scheduling order deadline, a party seeking
leave to amend must demonstrate (1) good cause for seeking
modification under Fed.R.Civ.P. 16(b)(4), and (2)
satisfaction of the [Fed. R. Civ. P.] 15(a) standard.”
Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank
Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014). Good
cause under Fed.R.Civ.P. 16(b)(4) (“Rule 16”) may
be met if a plaintiff learns new information from discovery.
However, “[i]f the plaintiff knew of the underlying
conduct but simply failed to raise [his claims] … the
claims are barred.” Id.
Plaintiff's Pro Se Status
Plaintiff proceeds pro se so the Court must
liberally construe his pleadings. Haines v. Kerner,
404 U.S. 519, 520-21 (1972). The Court, however, cannot act
as advocate for Plaintiff, who must still comply with the
fundamental requirements of the Federal Rules of ...