Case 1:14-cv LTB-MJW Document 39 Filed 10/16/14 USDC Colorado Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:14-cv LTB-MJW Document 39 Filed 10/16/14 USDC Colorado Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 14-cv LTB PARKER EXCAVATING, INC., a Colorado Corporation, v. Plaintiff, LAFARGE WEST, INC., a Delaware Corporation, MARTIN MARIETTA MATERIALS, INC., a North Carolina Corporation, NICK GUERRA, ALF RANDALL, in his individual capacity, and ROBERT SCHMIDT, in his individual capacity, Defendants. REPLY IN THE MATTER OF RANDALL AND SCHMIDT S MOTION TO DISMISS Defendants, ALF RANDALL and ROBERT SCHMIDT (the County Defendnats ), in their individual capacities, by and through their counsel, Jonathan A. Cross and Sean J. Lane, of CROSS LIECHTY LANE PC, hereby reply in the Matter of their Motion to Dismiss, as follows: I. REPLY AND ARGUMENT A. Plaintiff s claim against Randall and Schmidt pursuant to Section 1981 is invalid, given the majority opinion in Jett v. Dallas Independent School District, 491 U.S. 701, 109 S.Ct (1989). Plaintiff asserts that the issue of whether state actors, performing state functions, are subject to suit directly under 42 U.S.C represents an area of law untread by the Federal Courts. This is not the case. As the County Defendants stated in their Motion to Dismiss, this is not an issue that has been addressed by the 10th Circuit. However, the U.S. Supreme Court

2 Case 1:14-cv LTB-MJW Document 39 Filed 10/16/14 USDC Colorado Page 2 of 7 addresses the issue in Jett v. Dallas Independent School District, 491 U.S. 701, , 109 S.Ct (1989). Further, as Defendants previously stated, other circuits have addressed this issue. See Oden v. Oktibbeha County, Mississippi, 246 F.3d 458 (5th Cir. 2001); see Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir. 2000); see Dennis v. County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir. 1995); Cerrato v. San Francisco Community College Dist., 26 F.3d 969 (9th Cir. 1994); Williams v. Little Rock Mun. Water Works, 21 F.3d 218 (8th Cir. 1994). Plaintiff s claims against Randall and Schmidt appear to be brought against them for alleged discriminatory actions taken while acting in their respective roles as Pueblo County Public Works employees. If Plaintiff intends to bring this suit against Randall and Schmidt for actions that they allegedly took (or failed to take) in their roles as County employees, then Jett clearly applies. However, Plaintiff seems to have the intent to ride two horses in this case, and endeavors to bring claims against Randall and Schmidt for their activities as government employees, conducted under state law (i.e. allegedly using their authority to preclude Plaintiff s employees from meetings, etc.). However, Plaintiff then argues that the claims brought against the County Defendants are brought against them solely as private individuals. Plaintiff s two theories cannot simultaneously exist. Plaintiff accuses Randall and Schmidt of using their power as County employees to interfere with the contract Plaintiff had with Lafarge and, later, Martin Marietta. This allegation is clearly directed against them in their roles as County employees. Based upon Plaintiff s allegations within the Amended Complaint, and the holding in Jett, Plaintiff s claims brought solely under Section 1981 should fail. M:\Open Cases\Pueblo-Parker Excavating\_Pleadings USDC\Motion to Dismiss-Reply.DOC 2

3 Case 1:14-cv LTB-MJW Document 39 Filed 10/16/14 USDC Colorado Page 3 of 7 B. Plaintiff s claims brought under 42 U.S.C through 42 U.S.C are not actionable, as the 2-year statute of limitations for a Section 1983 action applies to those claims. Plaintiff drafted its Amended Complaint to specifically include claims brought against Randall and Schmidt in their roles as County officials. None of Plaintiff s claims appear to be directed against Randall and Schmidt in their capacity as private individuals. In fact, the claims appear to be brought only for actions the County Defendants allegedly took in their roles as Pueblo Public Works Officials. The Supreme Court has noted that the express cause of action for damages created by 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in Section 1981 by state governmental units. Jett, 491 U.S. at 733, 109 S.Ct. at 2722; see Brown v. GSA, 425 U.S. 820, 96 S.Ct (1976). Therefore, as stated by the Supreme Court and contrary to Plaintiff s position, the only avenue by which relief may be granted against a state actor for violations alleged against them which occurred under color of state law is through bringing a 42 U.S.C claim alleging violations of 42 U.S.C Plaintiff appears to recognize that, as that is precisely how it brought two of the claims against Randall and one of the claims against Schmidt. As the claim itself is brought under Section 1983, it follows that it must be brought under the statute of limitations that is applicable to Section See Delatorre v. Minner, 238 F.Supp.2d 1280 (D.Kansas 2002). Of course, Colorado law provides a two-year statute of limitations for actions brought pursuant to Whitington v. Sokol, 491 F.Supp.2d 1012, (D.Colo. 2007); C.R.S (g). Plaintiff argues that the modification of Section 1981 through the addition of subsection (c) has effectively overruled the Jett decision, thereby allowing a direct cause of action under 3

4 Case 1:14-cv LTB-MJW Document 39 Filed 10/16/14 USDC Colorado Page 4 of 7 Section 1981 against state actors who are acting under color of state law. The 10 th Circuit has not spoken directly on this issue. It is notable that they have not spoken on this issue, as there have been several published District Court opinions regarding this situation from within the 10 th Circuit. There are those District Courts within the 10 th Circuit, and other Circuit Courts of Appeal that have directly addressed this issue, and have held that a plaintiff must bring a claim under Section 1983 in order to gain relief provided by Section 1981 against a state actor. Dockery v. Unified School District, No. 231, 38 F.Supp.2d 1234, 1241 (D.Kan 2005); see Stewart v. Bd. Of Comm rs for Shawnee County, Kan, 216 F.R.D. 662, 663 (D.Kan 2003); Burns v. Bd. Of Comm rs of County of Jackson, 197 F.Supp.2d 1278, 1296 (D.Kan 2002); Oden v. Oktibbeha County, Mississippi, 246 F.3d 458 (5th Cir. 2001) (cert. denied); see Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir. 2000). As the relief sought is predicated upon the filing of a Section 1983 claim, such claim must be brought under the appropriate statute of limitations. Whitington v. Sokol, 491 F.Supp.2d 1012, (D.Colo. 2007); C.R.S (g). Plaintiff s claims were first brought against Randall and Schmidt on May 30, Plaintiff alleges that they were aware of alleged discrimination as early as July 12, At that point they knew, or should have known, of their alleged harms, as discussed in more detail in the Motion to Dismiss. Therefore, Plaintiff s claims brought against Randall and Schmidt under Section 1983 for harms alleged under Section 1981 should be dismissed. M:\Open Cases\Pueblo-Parker Excavating\_Pleadings USDC\Motion to Dismiss-Reply.DOC 4

5 Case 1:14-cv LTB-MJW Document 39 Filed 10/16/14 USDC Colorado Page 5 of 7 C. With respect to Plaintiff s allegations that the claims brought against Randall and Schmidt are brought against them as private actors, Plaintiff has failed to state a claim for which relief may be granted by this Court. If Plaintiff s claims are brought solely against Randall and Schmidt for the activities as private individuals, then the County Defendants position is that Plaintiff s allegations against them in their private capacity are insufficient, and those claims should be dismissed. Plaintiff s Amended Complaint brings claims against Randall and Schmidt for actions they specifically took in their roles as state actors acting under color of state law. The Amended Complaint does not describe the behavior of private individuals, but alleges discriminatory behavior on the part of Randall and Schmidt in their duties as employees of the Pueblo County Department of Public Works. To the extent that Plaintiff claims to pursue allegations against Randall and Schmidt in their capacity as private citizens, the County Defendants argue that those allegations, if any, are insufficient to support a claim against them as private citizens. II. CONCLUSION For the above-stated reasons, and those reasons stated in the Motion to Dismiss, Plaintiff has failed to state claims for which relief can be granted with respect to its three claims against Defendant Randall and its two claims against Defendant Schmidt. WHEREFORE, Plaintiff s First Amended Complaint and Jury Demand should be dismissed in its entirety as it applies to Defendants Randall and Schmidt. 5

6 Case 1:14-cv LTB-MJW Document 39 Filed 10/16/14 USDC Colorado Page 6 of 7 Respectfully submitted this October 16, CROSS LIECHTY LANE PC By: s/ Sean J. Lane Jonathan A. Cross Sean J. Lane 7100 E. Belleview Ave., Suite G-11 Greenwood Village, Colorado Tel: (303) s: jcross@crossliechty.com slane@crossliechty.com ATTORNEYS FOR DEFENDANTS RANDALL & SCHMIDT M:\Open Cases\Pueblo-Parker Excavating\_Pleadings USDC\Motion to Dismiss-Reply.DOC 6

7 Case 1:14-cv LTB-MJW Document 39 Filed 10/16/14 USDC Colorado Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that on this October 16, 2014, a true and correct copy of the above and foregoing REPLY IN THE MATTER OF RANDALL AND SCHMIDT S MOTION TO DISMISS was, unless otherwise indicated, filed electronically with the Court who provides notice to the following: Elliot D. Fladen, Esq. SCHLUETER, MAHONEY & ROSS, P.C th Street, Suite 2200 Denver, Colorado Attorneys for Plaintiff Larry S. McClung, Esq. Kristin Anderson George, Esq. William T. O Connell, III, Esq. WELLS, ANDERSON & RACE, LLC 1700 Broadway, Suite 1020 Denver, CO Attorneys for Lafarge West, Inc. Richard B. Benenson, Esq. Jonathan G. Pray, Esq. Kathryn A. Barrett, Esq. BROWNSTEIN HYATT FARBER SCHRECK, LLP 410 Seventeenth St., Suite 2200 Denver, Colorado Attorneys for Martin Marietta & Guerra Adam P. O Brien, Esq. WELLS, ANDERSON & RACE, LLC 1700 Broadway, Suite 1020 Denver, CO Attorneys for Fidelity & Deposit Company of Maryland A Duly Signed Original is on File at the Offices of Cross Liechty Lane PC s/ Linda L. DeVico 7