Case 1:12-cv CMA-MJW Document 39 Filed 05/22/12 USDC Colorado Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:12-cv CMA-MJW Document 39 Filed 05/22/12 USDC Colorado Page 1 of 8 Civil Action No.: 12-cv CMA-MJW IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CITIZEN CENTER, a Colorado nonprofit corporation, v. Plaintiff, SCOTT GESSLER, in his official capacity as Colorado Secretary of State, SHEILA REINER, in her official capacity as Mesa County Clerk & Recorder, SCOTT DOYLE, in his official capacity as Larimer County Clerk & Recorder, PAM ANDERSON, in her official capacity as Jefferson County Clerk & Recorder, HILLARY HALL, in her official capacity as Boulder County Clerk & Recorder, JOYCE RENO, in her official capacity as Chaffee County Clerk & Recorder, TEAK SIMONTON, in her official capacity as Eagle County Clerk & Recorder, Defendants. STIPULATED MOTION TO DENY PENDING MOTIONS TO DISMISS AS MOOT AND FOR LEAVE TO FILE EXCESS PAGES IN CONNECTION WITH DEFENDANT CLERKS NEW MOTION The parties respectfully request this Court to deny the Secretary s Rule 12(b)(1) Motion to Dismiss and the County Clerks Joint Motion to Dismiss as moot and to grant both sides the same leave previously granted to file excess pages in connection with a new joint Rule 12 motion by the six Defendant Clerk and Recorders directed at the First Amended Complaint. As grounds therefor, the parties state as follows: CONFERRAL D.C.COLO.LCivR 7.1A. Certification: Counsel for Plaintiff Citizen Center conferred with counsel acting as liaison for the six Defendant County Clerk and

2 Case 1:12-cv CMA-MJW Document 39 Filed 05/22/12 USDC Colorado Page 2 of 8 Recorders and with counsel for Defendant Secretary of State Gessler. All parties join in requesting the relief sought by this motion. ARGUMENT 1. Plaintiff Citizen Center filed its Complaint for Declaratory and Injunctive Relief in this matter on February 13, (Doc. #1.) 2. On March 13, 2012, this Court granted all Defendants an extension of time to and including April 16, 2012, to file their answer or other responsive pleading to the complaint. (Doc. #11.) 3. On April 16, 2012, this Court granted the six Defendant County Clerk and Recorders leave collectively to file one motion to dismiss of up to thirty-five pages in length. (Doc. #29.) 4. The six Defendant County Clerk and Recorders electronically filed and served their County Clerks Joint Motion to Dismiss on April 16, (Doc. #30.) 5. Defendant Gessler electronically filed and served his Secretary s Rule 12(b)(1) Motion to Dismiss on April 16, (Doc. #31.) 6. On May 2, 2012, this Court granted Plaintiff Citizen Center leave to file a response to the County Clerks Joint Motion to Dismiss of up to thirty-five pages in length. (Doc. #34.) 7. On May 8, 2012, this Court granted Plaintiff Citizen Center an extension of time to and including May 29, 2012, to respond to both pending motions to dismiss. (Doc. #36.) 2

3 Case 1:12-cv CMA-MJW Document 39 Filed 05/22/12 USDC Colorado Page 3 of 8 8. On May 10, 2012, Plaintiff Citizen Center electronically filed and served its First Amended Complaint for Declaratory and Injunctive Relief (the First Amended Complaint ) as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1)(B). (Doc. #37.) 9. The First Amended Complaint contains 170 allegations in thirty-eight pages, whereas the original complaint contained ninety-eight allegations in twenty-four pages. Compare Doc. #37 with Doc. # Defendants motions under Rule 12 directed at the First Amended Complaint are due on June 4, See D.C.COLO.LCivR 7.1C., 5.6A.; ECF-Civ. 5.7.F.; Fed. R. Civ. P. 6(d). 11. Plaintiff s response to any Rule 12 motions filed on June 4, 2012, will be due on June 28, See D.C.COLO.LCivR 7.1C., 5.6A.; ECF-Civ. 5.7.F.; Fed. R. Civ. P. 6(d). STIPULATED REQUEST TO DENY PENDING RULE 12 MOTIONS AS MOOT 12. An amended complaint moots a pending motion to dismiss. See, e.g., Carbajal v. Seventh Judicial Dist., 2011 WL , *1 (D. Colo. Feb. 10, 2011); Nagim v. Equifax Info. Services, LLC, 2010 WL , at *1 (D. Colo. May 14, 2010) ( a motion to dismiss which is responsive to a superceded complaint is moot ); Strich v. United States, 2010 WL 14826, at *1 (D. Colo. Jan. 11, 2010) (unpublished) ( The filing of an amended complaint moots a motion to dismiss directed at the complaint that is supplanted and superseded. ); Gotfredson v. Larsen LP, 432 F.Supp.2d 1163, 1172 (D. Colo. 2006) (noting that defendants' motions to dismiss were technically moot because they are directed at a pleading that is no longer operative ); see also AJB Properties, 3

4 Case 1:12-cv CMA-MJW Document 39 Filed 05/22/12 USDC Colorado Page 4 of 8 Ltd. v. Zarda Bar-B-Q of Lenexa, LLC, 2009 WL , at *1 (D. Kan. Apr. 28, 2009) (finding that amended complaint superseded original complaint and accordingly, defendant's motion to dismiss the original complaint is denied as moot ); cf. Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) ( an amended complaint supercedes an original complaint and renders the original complaint without legal effect ). 13. Because the First Amended Complaint supersedes the original complaint and renders it without legal effect, the Defendants will file new motions to dismiss that are directed at the First Amended Complaint, which is now the Plaintiff s operative pleading. 14. Because the Defendants pending motions to dismiss, which are directed at the original complaint, have been rendered moot by Plaintiff s filing of the First Amended Complaint, Plaintiff now seeks to be relieved with certainty of its obligation to respond to those pending motions. 15. Accordingly, both sides now request this Court to deny the two pending motions to dismiss as moot and to vacate Citizen Center s deadline of May 29, 2012, for filing its responses. STIPULATED REQUEST BY BOTH SIDES FOR LEAVE TO FILE EXCESS PAGES IN CONNECTION WITH A NEW JOINT MOTION BY THE DEFENDANT COUNTY CLERKS 16. Pursuant to CMA Civ. Practice Standards III.A.1., all motions (except for summary judgment motions) shall not exceed fifteen pages in length. 17. The six Defendant County Clerk and Recorders intend to file a new collective motion to dismiss directed at the First Amended Complaint. 4

5 Case 1:12-cv CMA-MJW Document 39 Filed 05/22/12 USDC Colorado Page 5 of This Court previously allowed the six Defendant Clerks to file a single motion to dismiss of up to thirty-five pages. (Doc. #29.) 19. For the same reasons set out in their original motion for leave to file a single collective motion of excess length, (Doc #28, at 2), the six Defendant County Clerk and Recorders respectfully request that the Court again grant them leave to exceed the Court s fifteen-page limit and allow the Clerks to collectively file one joint motion to dismiss the First Amended Complaint that is up to thirty-five pages in length. 20. This Court previously allowed Plaintiff Citizen Center to file a response to the Clerks overlength motion of up to thirty-five pages. (Doc. #34.) 21. In order to adequately respond to a new overlength motion as requested by the Clerks, Plaintiff respectfully requests that the Court also again grant Citizen Center leave to exceed the fifteen-page limit and to file a brief that is up to thirty-five pages long in response to the Clerks new joint motion directed at the First Amended Complaint. WHEREFORE the parties respectfully request this Court to deny the pending motions to dismiss directed at the original complaint as moot and to grant both sides the same length accommodations that were previously granted, but in connection with a new joint motion by the six Defendant Clerks directed at the First Amended Complaint. Dated: May 22nd, 2012 Respectfully submitted, s/ Robert A. McGuire Robert A. McGuire ROBERT A. MCGUIRE, ATTORNEY AT LAW, LLC 1624 Market Street, Suite 202 5

6 Case 1:12-cv CMA-MJW Document 39 Filed 05/22/12 USDC Colorado Page 6 of 8 Denver, Colorado Telephone: (303) ram@lawram.com Attorney for Plaintiff Citizen Center ELLEN G. WAKEMAN JEFFERSON COUNTY ATTORNEY s/ Writer Mott Writer Mott, #33148 David R. Wunderlich, # Jefferson County Pkwy, Ste Golden, Colorado wmott@jeffco.us dwunderl@jeffco.us Attorneys for Defendant Pam Anderson BRYAN R. TREU EAGLE COUNTY ATTORNEY s/ Bryan R. Treu Bryan R. Treu 500 Broadway Eagle, Colorado bryan.treu@eaglecounty.us Attorneys for Defendant Teak Simonton HALL & EVANS, LLC s/ Thomas J. Lyons Thomas J. Lyons 1125 Seventeenth Street, Ste. 600 Denver, Colorado lyonst@hallevans.com Attorneys for Defendant Teak Simonton JENNIFER A. DAVIS CHAFFEE COUNTY ATTORNEY s/ Jennifer A. Davis Jennifer A. Davis 104 Crestone Ave. Salida, Colorado jdavis@chaffeecounty.org 6

7 Case 1:12-cv CMA-MJW Document 39 Filed 05/22/12 USDC Colorado Page 7 of 8 Attorney for Defendant Joyce Reno MAURICE LYLE DECHANT MESA COUNTY ATTORNEY s/ Maurice Lyle Dechant Maurice Lyle Dechant David Frankel Andrea Nina Atencio P.O. Box 20, Grand Junction, Colorado Lyle.dechant@mesacounty.us nina.atencio@mesacounty.us david.frankel@mesacounty.us Attorneys for Defendant Sheila Reiner GEORGE J. HASS LARIMER COUNTY ATTORNEY s/ David P. Ayraud David P. Ayraud William G. Ressue Assistant County Attorneys 224 Canyon Aave., Ste. 200 Ft. Collins, Colorado dayraud@larimer.org wressue@larimer.org Attorneys for Defendant Scott Doyle BEN PEARLMAN BOULDER COUNTY ATTORNEY s/ David Hughes David Hughes Deputy County Attorney 1325 Pearl St. Boulder, Colorado Telephone: dhughes@bouldercounty.org Attorney for Defendant Hillary Hall 7

8 Case 1:12-cv CMA-MJW Document 39 Filed 05/22/12 USDC Colorado Page 8 of 8 CERTIFICATE OF SERVICE I hereby certify that on May 22, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following addresses: david@hshh.com,jennifer@hshh.com gutierrezd@hallevans.com btidd@chaffeecounty.org mcatty@mesacounty.us dhughes@bouldercounty.org cwilliams@bouldercounty.org kcoxriede@bouldercounty.org suzanne.staiert@sos.state.co.us scott.gessler@sos.state.co.us pam.ponder@state.co.us mandisc@hallevans.com witts@hallevans.com leeann.morrill@state.co.us dhokanso@jeffco.us ghass@larimer.org jpettus@larimer.org btotten@larimer.org bryan.treu@eaglecounty.us, daleg@hallevans.com jdavis@chaffeecounty.org lyle.dechant@mesacounty.us david.frankel@mesacounty.us jhamilton@bouldercounty.org kgnelson@bouldercounty.org maurie.knaizer@state.co.us dana.williams@sos.state.co.us debbie.bendell@state.co.us lyonst@hallevans.com cmecf@hallevans.com wilsonm@hallevans.com wmott@jeffco.us wressue@larimer.org tstillwell@larimer.org jeanninehaag@larimer.org krittwager@larimer.org and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non participant s name: Andrea Nina Atencio (mail) Mesa County Attorney's Office P.O. Box 20, Grand Junction, CO s/ Robert A. McGuire Robert A. McGuire Attorney for Plaintiff Citizen Center Robert A. McGuire, Attorney at Law, LLC 1624 Market Street, Suite 202 Denver, Colorado Telephone: (303) ram@lawram.com 8

9 Case 1:12-cv CMA-MJW Document 39-1 Filed 05/22/12 USDC Colorado Page 1 of 3 Civil Action No.: 12-cv CMA-MJW IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CITIZEN CENTER, a Colorado nonprofit corporation, v. Plaintiff, SCOTT GESSLER, in his official capacity as Colorado Secretary of State, SHEILA REINER, in her official capacity as Mesa County Clerk & Recorder, SCOTT DOYLE, in his official capacity as Larimer County Clerk & Recorder, PAM ANDERSON, in her official capacity as Jefferson County Clerk & Recorder, HILLARY HALL, in her official capacity as Boulder County Clerk & Recorder, JOYCE RENO, in her official capacity as Chaffee County Clerk & Recorder, TEAK SIMONTON, in her official capacity as Eagle County Clerk & Recorder, Defendants. ORDER GRANTING STIPULATED MOTION TO DENY PENDING MOTIONS TO DISMISS AS MOOT THIS MATTER having come before the Court upon the Stipulated Motion To Deny Pending Motions To Dismiss As Moot And For Leave To File Excess Pages In Connection With Defendant Clerks New Motion, and THE COURT being fully advised in the premises, IT IS HEREBY ORDERED that the Motion is GRANTED. Accordingly, IT IS FURTHER ORDERED that the Secretary s Rule 12(b)(1) Motion to Dismiss and the County Clerks Joint Motion to Dismiss are both DENIED as moot. No response by Plaintiff to these motions shall be necessary.

10 Case 1:12-cv CMA-MJW Document 39-1 Filed 05/22/12 USDC Colorado Page 2 of 3 IT IS FURTHER ORDERED that all new motions by Defendants to dismiss the First Amended Complaint shall be due on June 4, 2012, and Plaintiff s responses to all such motions shall be due on June 28, IT IS FURTHER ORDERED that the Defendant Clerk and Recorders may collectively file one Joint Motion to Dismiss NO MORE THAN 35 PAGES IN LENGTH. IT IS FURTHER ORDERED that Citizen Center is permitted to file a response NO MORE THAN 35 PAGES IN LENGTH, in response to any Joint Motion to Dismiss filed by Defendant Clerk and Recorders. DONE IN COURT this day of May, BY THE COURT: U.S. District Court Judge/Magistrate 2

11 Case 1:12-cv CMA-MJW Document 39-1 Filed 05/22/12 USDC Colorado Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on May 22, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following addresses: david@hshh.com,jennifer@hshh.com gutierrezd@hallevans.com btidd@chaffeecounty.org mcatty@mesacounty.us dhughes@bouldercounty.org cwilliams@bouldercounty.org kcoxriede@bouldercounty.org suzanne.staiert@sos.state.co.us scott.gessler@sos.state.co.us pam.ponder@state.co.us mandisc@hallevans.com witts@hallevans.com leeann.morrill@state.co.us dhokanso@jeffco.us ghass@larimer.org jpettus@larimer.org btotten@larimer.org bryan.treu@eaglecounty.us, daleg@hallevans.com jdavis@chaffeecounty.org lyle.dechant@mesacounty.us david.frankel@mesacounty.us jhamilton@bouldercounty.org kgnelson@bouldercounty.org maurie.knaizer@state.co.us dana.williams@sos.state.co.us debbie.bendell@state.co.us lyonst@hallevans.com cmecf@hallevans.com wilsonm@hallevans.com wmott@jeffco.us wressue@larimer.org tstillwell@larimer.org jeanninehaag@larimer.org krittwager@larimer.org and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the nonparticipant s name: Andrea Nina Atencio (mail) Mesa County Attorney's Office P.O. Box 20, Grand Junction, CO s/ Robert A. McGuire Robert A. McGuire Attorney for Plaintiff Citizen Center Robert A. McGuire, Attorney at Law, LLC 1624 Market Street, Suite 202 Denver, Colorado Telephone: (303) ram@lawram.com 3