United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge
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.
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.
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.].
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.
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.].
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.].
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.].
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.].
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.].
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”), [id.at ¶¶
27-30]; and for violation of Colo. Rev. Stat. §
24-114-102 against all Defendants (“Count III”),
[id. at ¶¶ 31-33].
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.
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
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.
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)
Count I -- § 1983 Property Interest
Motion to Dismiss
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. “[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.
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 ...