Case 1:13-cv WJM-BNB Document 178 Filed 11/07/14 USDC Colorado Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:13-cv WJM-BNB Document 178 Filed 11/07/14 USDC Colorado Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:13-CV WJM-BNB KEIFER JOHNSON, Plaintiff, vs. WESTERN STATE COLORADO UNIVERSITY, BRAD BACA, individually and in his official capacity as President of Western State Colorado University, GARY PIERSON, individually and in his official capacity as Vice President For Student Affairs & Dean of Students, SARA PHILLIPS, individually and in her official capacity as Title IX Coordinator, and CHRIS LUEKENGA, individually and in his official capacity as Associate Vice President For Student Affairs, SUZY COYKENDALL, individually and in her official capacity as an employee of Western State. Defendants. DEFENDANTS 12(B)(1) MOTION TO DISMISS PLAINTIFF S SOLE REMAINING CLAIM FOR MOOTNESS Defendants Western State Colorado University, Brad Baca, Gary Pierson, Sara Phillips, and Chris Lukenga, by and through the Colorado Attorney General s Office, submit the following Motion to Dismiss Plaintiff s sole remaining claim for

2 Case 1:13-cv WJM-BNB Document 178 Filed 11/07/14 USDC Colorado Page 2 of 7 injunctive relief in Plaintiff s Third Amended Complaint and Jury Demand for lack of subject matter jurisdiction pursuant to F.R.C.P. 12(b)(1). Statement Concerning Conversion Pursuant to WJM Revised Practice Standards, Part III.D.3. This motion, filed pursuant to F.R.C.P. 12(b)(1), constitutes a factual attack on the court s jurisdiction, in which the court has wide discretion to review matters outside the pleadings to resolve jurisdictional facts. Holt v. United States, 46 F.3d 1000, (10th Cir. 1995) (internal citations omitted). A factual attack as to subject matter jurisdiction challenges the facts upon which subject matter jurisdiction depends and in reviewing such a challenge, the Court has discretion to consider documents outside complaint, and need not convert the motion to a Rule 56 motion for summary judgment. Id. at Statement Concerning Conferral. The undersigned conferred with counsel for Plaintiff via regarding the substance of this motion and Defendants intent to request dismissal of his sole remaining claim for lack of subject matter jurisdiction. During the parties conferral prior to filing their Joint Status Report, Defendants requested Plaintiff explain what, specifically, he sought to have expunged from his record. Plaintiff did not provide additional information beyond what he alleged in the paragraph 293 of the Third Amended Complaint ( Plaintiff is entitled to injunctive relief that requires Western State expunge his official student file with the Office of Student Affairs at Western State regarding all information related to the First Disciplinary Proceeding. ). The undersigned then provided 2

3 Case 1:13-cv WJM-BNB Document 178 Filed 11/07/14 USDC Colorado Page 3 of 7 Plaintiff s counsel with the attached Declarations from Gary Pierson and Chad Robinson, explained that neither Plaintiff s official student file in the Office of Student Affairs, nor his official academic transcript contain information concerning the First Disciplinary Proceeding and requested that Plaintiff voluntarily dismiss his remaining claim for relief. Plaintiff did not respond. On November 6, 2014, the undersigned again Plaintiff s counsel and provided him with a draft of this motion, and the attached Declarations. Plaintiff did not respond. Counsel for Defendant Coykendall has authorized the undersigned to state that Defendant Coykendall joins in the relief requested in this motion. On October 24, 2014, this Court entered an order granting in part Defendants motions to dismiss, and dismissed eleven of the twelve claims for relief asserted in Plaintiff s Third Amendment Complaint. As to Plaintiff s sole remaining claim for violation of his First Amendment rights, the Court found that Plaintiff s request for monetary damages and retrospective declaratory relief are barred by the Eleventh Amendment, but that his request for injunctive relief in the form of expungement of his record falls within the Ex parte Young exception. On page 22 and 26 of the Court s Order of October 24, 2014, the Court found that This case shall proceed only as to Plaintiff s 1983 First Amendment claim (Claim 5) in so far as it seeks prospective injunctive relief in the form of expungement of the First Disciplinary Proceeding from Plaintiff s official academic record. 3

4 Case 1:13-cv WJM-BNB Document 178 Filed 11/07/14 USDC Colorado Page 4 of 7 The Court may dismiss an action for lack of subject-matter jurisdiction at any point during the course of the litigation. Here, even if Plaintiff could successfully prove the merits of his First Amendment claim, there is no relief for the Court to grant, because there is no record of the First Disciplinary Proceeding in Plaintiff s official file. Thus, Plaintiff s sole remaining request for relief is moot, and must be dismissed for lack of subject matter jurisdiction. Pursuant to Rule 12(h)(3), if the court determines at any time that it lacks subject-matter jurisdiction, it must dismiss the action. Federal courts may only adjudicate live controversies. U.S. Const. Art. III, 2, cl. 1. To retain jurisdiction under Article III, an actual case and controversy must remain extant throughout the case. Alvarez v. Smith, 558 U.S. 87, 130 S.Ct. 576, 580 (2009). A case becomes moot when a favorable decision will not afford plaintiff the relief sought. McAlpine v. Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999); see also, United States v. Dominguez-Carmona, 166 F.3d 1052, 1055 (10th Cir. 1999). Here, Plaintiff has had the ability and the right to access his official student file at any time prior to or during the pendency of this litigation, per the Family Educational Rights and Privacy Act of 1974, or FERPA, 20 USC 1232g. Neither Plaintiff s official academic transcript nor his official student file in the Office of Student Affairs ever contained any mention of or information related to the First Disciplinary Proceeding. See Exhibit A, Declaration of G. Pierson, 2, 4. In addition, Western s internal, electronic file on its Campus-Adjudications site no 4

5 Case 1:13-cv WJM-BNB Document 178 Filed 11/07/14 USDC Colorado Page 5 of 7 longer contains documents or information relating to the First Disciplinary Proceeding. See Exhibit A, 11, Exhibit B, Declaration of C. Robinson, 3-6. Following the First Disciplinary Proceeding on August 28, 2013, Plaintiff received one year of probation. That year of probation ended this past August, See Exhibit A, 10. Western considers past misconduct in determining sanctions with respect to additional conduct violations only if the past misconduct occurs within the same academic year. See Exhibit A, 9. It is Western s practice that once a probationary period has ended, a student is presumptively returned to good standing. Thus, as of August, 2014, Plaintiff has presumptively returned to good standing. See Exhibit A, Because the discipline Plaintiff received in connection with the First Disciplinary Proceeding was imposed during the prior academic year, it will not be considered in determining any sanction against Plaintiff even in the event of a future code violation, and Western has no further need for any records related to the First Disciplinary Proceeding. See Exhibit A, 10, 11. Based on the foregoing, the sole remaining claim in this case is moot. Even if Plaintiff were to prevail on his claim for violation of his First Amendment rights in connection with the First Disciplinary Proceeding, this Court would be without jurisdiction to afford him his sole remaining request for relief. WHEREFORE, the Defendants respectfully request that this Court dismiss Plaintiff s sole remaining claim (Claim 5) for prospective injunctive relief in the form 5

6 Case 1:13-cv WJM-BNB Document 178 Filed 11/07/14 USDC Colorado Page 6 of 7 of expungement of the First Disciplinary Proceeding from Plaintiff s official academic record, and for such other and further relief as it deems necessary and proper. Respectfully submitted this 7 th day of November, JOHN W. SUTHERS Attorney General s/ Michelle Merz-Hutchinson Michelle Merz-Hutchinson* First Assistant Attorney General Jonathan P. Fero* Assistant Solicitor General Amy Colony* Senior Assistant Attorney General Kimberly C.J. Spiering* Assistant Attorney General *Counsel of Record Attorneys for State Defendants 1300 Broadway, 10 th Floor Denver, Colorado Telephone: FAX: michelle.merz-hutchinson@state.co.us 6

7 Case 1:13-cv WJM-BNB Document 178 Filed 11/07/14 USDC Colorado Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that on November 7, 2014, I served a true and complete copy of the foregoing DEFENDANTS 12(b)(1) MOTION TO DISMISS PLAINTIFF S SOLE REMAINING CLAIM FOR MOOTNESS upon all counsel of record listed below via the CM/ECF system for the United States District Court for the District of Colorado: Party Counsel of Record Counsel s Address Service Method Plaintiff Gregory R. Stross gstross@strosslegal.com ECF Defendant Susan Coykendall Interested Party AG and OG Mark Scott Ratner Thomas John Lyons ratnerm@hallevans.com lyonst@hallevans.com ECF Sarah Anne Croog scrooge@gdhlaw.com ECF /s/michelle Merz-Hutchinson 7

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