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Kee v. Town of Mountain Village

United States District Court, D. Colorado

December 11, 2019



          Nina Y. Wang United States Magistrate Judge

         This matter comes before this court on Defendants Town of Mountain Village (the “Town”) and Kimberly Montgomery's (“Ms. Montgomery” and collectively, “Defendants”) Motion to Dismiss Plaintiff's First Amended Complaint (“Motion to Dismiss”) [#26, filed September 30, 2019], and Plaintiff James Randy Kee's (“Plaintiff” or “Mr. Kee”) Motion to Amend/Correct/Modify First Amended Complaint (“Motion to Amend”), [#33, filed October 25, 2019]. The undersigned considers the Motions pursuant to 28 U.S.C. § 636(c) and the Order of Reference dated August 7, 2019, [#22]. This court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, having reviewed the Motions, associated briefing, and applicable case law, this court GRANTS the Defendants' Motion to Dismiss in its entirety and DENIES Plaintiff's Motion to Amend.


         The court draws the following facts from the First Amended Complaint [#14] and presumes they are true for purposes of the instant Motions. Mr. Kee was hired as a Building Official with the Town of Mountain Village in May 2012. [#14 at ¶ 6]. In this role, Mr. Kee was responsible for ensuring the Town's adherence to applicable building codes for all building projects undertaken by the Town. [Id.]. Mr. Kee's ability to perform his responsibilities as Building Official was supported by his extensive background in construction and building regulations, as well as his knowledge of the codes and zoning variances applicable to the Town of Mountain Village building projects he oversaw. [Id.].

         In 2017, the Town hired a new Planning Director, Michelle Haynes (“Ms. Haynes”). [Id. at ¶ 8]. Mr. Kee noticed a “distinct change in how the building department was managed” after Ms. Haynes was hired, and Ms. Haynes began to question Mr. Kee's aptitude as Building Official. [Id.]. Ms. Haynes also requested that Mr. Kee apply building codes other than those adopted by the Town, notwithstanding the fact that the projects she asked Mr. Kee to apply new building codes to were managed by the Town. [Id.].

         Subsequently, Mr. Kee respectfully but firmly stated concerns to both Ms. Haynes and other managers in the Planning Department regarding the impropriety of applying new building codes to Town projects. [Id. at ¶ 9]. Among his concerns were violations of existing building codes that created a “serious hazard to the safety and wellbeing of the citizens and visitors of the Town.” [Id.]. Mr. Kee was reprimanded by Ms. Haynes for “not being a team player” when he continued to request that the Town adhere to its own building codes. [Id. at ¶ 10]. She also publicly ridiculed Mr. Kee during meetings. [Id.].

         While it was not his responsibility to do so as Building Official, Mr. Kee raised concerns to management when he felt that Town building projects contained flaws that would cause waste for the community. [Id.]. Mr. Kee was met with hostility when he voiced these concerns to management. [Id.].

         On December 20, 2018, Mr. Kee received his first poor evaluation from the Town. [Id. at ¶ 12]. Ms. Haynes completed the evaluation and indicated that Mr. Kee “was not being a team player and was causing negativity in the department as a result.” [Id.]. Because he disagreed with some of the statements made in Ms. Haynes's evaluation of him, Mr. Kee requested a review of the evaluation. [Id.].

         On January 2, 2019, the Town's Human Resources Department held a meeting with Mr. Kee, wherein he was asked to sign a Resignation Agreement. [Id. at ¶ 13]. Per the terms of the proposed Resignation Agreement, Mr. Kee was offered an opportunity to agree to resign from his position as Building Official in exchange for three months of continued employment. [Id.]. Mr. Kee was warned that, should he elect not to sign the Resignation Agreement, he would be terminated. [Id.]. Mr. Kee did not sign the Resignation Agreement. [Id.].

         Shortly thereafter, Mr. Kee filed a termination grievance with the Town Manager, Kimberly Montgomery. [Id.]. In a written response to Mr. Kee's grievance, Ms. Montgomery explained that Mr. Kee was not able to file a grievance for a resignation. [Id.]. Mr. Kee replied by letter that he had not resigned from his position. [Id.]. That same day, Mr. Kee was escorted from the building by security and provided his final paycheck. [Id.].

         Mr. Kee was later approached by members of the local building community who communicated “knowledge that [Mr. Kee] had been escorted out of the building and terminated from his position.” [Id. at ¶ 15]. Consequently, Mr. Kee has been forced to defend himself to members of the local building community regarding the manner of his removal as Building Official for the Town, and has struggled to obtain employment. [Id.].


         Believing the Town's conduct (1) violated Colorado statutory whistleblower protections, and (2) constituted deprivations of his property and liberty interests in contravention of 42 U.S.C. § 1983, Mr. Kee filed a Complaint in the San Miguel County District Court on May 16, 2019, naming only the Town as a Defendant. See [#1, #5]. The Town subsequently removed the case to the United States District Court for the District of Colorado on the basis of federal question jurisdiction. [#1]. On June 24, 2019, the Town filed a Motion to Dismiss for Failure to State a Claim. [#11]. In Response, Mr. Kee filed his First Amended Complaint as a matter of right, [#14], thereby mooting without prejudice the Town's pending Motion to Dismiss, see [#16]. Ms. Montgomery was added as a Defendant in Mr. Kee's First Amended Complaint. [#14]. In his First Amended Complaint, Mr. Kee asserts a claim for violation of 42 U.S.C. § 1983 against the Town for denying him his property interest in his position “without any hearing despite multiple requests for the actions being taken to be reviewed by management” (“Count I”), [id. at ¶¶ 16-26]; against all Defendants for deprivation of his liberty interest in violation of 42 U.S.C. § 1983 (“Count II”), [ ¶¶ 27-30]; and for violation of Colo. Rev. Stat. § 24-114-102 against all Defendants (“Count III”), [id. at ¶¶ 31-33].

         Defendants filed the instant Motion to Dismiss for Failure to State a Claim on September 30, 2019. [#26]. Plaintiff filed his Response to the Motion to Dismiss on October 25, 2019. [#32]. That same day, Plaintiff filed the instant Motion to Amend/Correct/Modify First Amended Complaint. [#33]. Defendants filed both their Reply to the instant Motion to Dismiss and their Response to the instant Motion to Amend on November 15, 2019. [#36; #37]. Plaintiff filed his Reply to the Motion to Amend on November 22, 2019. [#38]. Thus, both the Motion to Dismiss and Motion to Amend are fully briefed. Because both the Motion to Dismiss and the Motion to Amend are ripe, I consider the Parties' arguments below.


         I. Fed.R.Civ.P. 12(b)(6)

         A court may dismiss a complaint for “failure to state a claim upon which relief can be granted” under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (internal quotation marks omitted). A plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in a complaint, ” and that the allegations must be sufficient to nudge a plaintiff's claim(s) “across the line from conceivable to plausible.”).

         II. Fed.R.Civ.P. 15

         Rule 15(a) of the Federal Rules of Civil Procedure governs motions to amend when (as here) the moving party seeks leave to amend its pleadings on or before the deadline for joinder of parties and amendment of pleadings set by the Scheduling Order. See Fernandez v. Bridgestone/Firestone, Inc., 105 F.Supp.2d 1194, 1195 (D. Colo. 2000) (explaining that the movant need not demonstrate good cause under Rule 16(b) under such circumstances). Rule 15(a)(2) provides that leave to amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a)(2). “Indeed, Rule 15(a)'s purpose is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.” Warnick v. Cooley, 895 F.3d 746, 754-55 (10th Cir. 2018) (internal quotation marks omitted). But the court may refuse leave to amend upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment. See Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Whether to allow amendment is within the trial court's discretion. Burks v. Oklahoma Publ'g Co., 81 F.3d 975, 978-79 (10th Cir. 1996).

         Futility of amendments under Rule 15. Courts, in their discretion, may deny leave to amend upon a determination that such amendment would be futile. See Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir. 1993). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013) (internal quotation marks omitted). While courts sometimes decline to consider futility in favor of a subsequent motion to dismiss, Gen. Steel Domestic Sales, LLC v. Steelwise, LLC, No. 07-CV-01145-DME-KMT, 2008 WL 2520423, at *4 (D. Colo. Jun. 20, 2008) (suggesting that a “futility argument seems to place the cart before the horse, ” and is better suited for a Rule 12(b)(6) motion), this court finds that it is more efficient in this case to consider the Parties' arguments in the context of this instant motion instead of awaiting another round of motions practice. “If a party opposes a motion to amend [...] on the grounds of futility, the court applies the same standard to its determination of the motion that governs a motion to dismiss under Fed.R.Civ.P. 12(b)(6).” JDK LLC v. Hodge, No. 15-CV-00494-NYW, 2015 WL 5766466, at *2 (D. Colo. Oct. 2, 2015) (citation and internal quotation marks omitted) (ellipsis added).


         I. Count I -- § 1983 Property Interest

         A. Motion to Dismiss

         Plaintiff claims that the Town committed a § 1983 violation by allegedly denying Plaintiff due process before depriving him of a property interest, presumably under the Fourteenth Amendment.[1] “[A] municipality can only be liable under § 1983 if its unconstitutional policy or custom caused the plaintiff's constitutional deprivation.” Custinger v. City of Derby, 591 Fed. App'x 689, 691 (10th Cir. 2015) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 694 (1978)). In other words, to succeed on a § 1983 claim against a municipality, a plaintiff must show (1) a predicate constitutional deprivation, (2) a municipal policy or custom, and (3) causation. See id.

         The Town moves to dismiss Count I for a variety of reasons, including for failure to allege municipal liability under Monell and its progeny and for failure to allege a cognizable constitutional deprivation. [#26]. This court first considers the sufficiency of Plaintiff's Complaint as it relates to the underlying alleged constitutional deprivation, i.e. whether Mr. Kee states a cognizable claim that the Defendants unconstitutionally deprived him of a property interest in his continued employment. Because I conclude that ...

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