MOTION TO STRIKE, IN PART; FOR MORE DEFINITE STATEMENT AND TO DISMISS, IN PART, FOR LACK OF RIPENESS

Similar documents
ANSWER TO AMENDED COMPLAINT

Plaintiff. The State Board of the Great Outdoors Colorado Trust Fund, Defendant. COURT USE ONLY Case No.

INTRODUCTION JURISDICTION VENUE

MOTION FOR TELEPHONE TESTIMONY OF W. SCOTT ROCKEFELLER WITH REQUEST FOR EXPEDITED RULING

PARTIALLY-UNOPPOSED MOTION TO INTERVENE

PLAINTIFF S REPLY TO DEFENDANT S AFFIRMATIVE DEFENSES PURSUANT TO COLO. R. CIV. P. 7(a)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Defendant: PROGRESSIVE CASUALTY INSURANCE COMPANY COURT USE ONLY Counsel for Plaintiff: Marc R. Levy, #11372

DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO 1437 Bannock Street, Denver, Colorado 80202

INTERVENOR-DEFENDANT COLORADO COMMON CAUSE S MOTION FOR LEAVE TO FILE SECOND AMENDED COUNTERCLAIM

Denver, Colorado 80202

MOTION TO DISMISS COLORADO OIL AND GAS ASSOCIATION S AND AMERICAN PETROLEUM INSTITUTE S JOINT COMPLAINT

COMPLAINT FOR DECLARATORY JUDGMENT

PLAINTIFFS-APPELLANTS:

Plaintiffs Board of County Commissioners of Boulder County, Colorado and the City of Lafayette allege as follows:

ANSWER AND COUNTERCLAIM OF DEFENDANTS PINE TREE HOMES, LLC AND SANTIAGO JOHN JONES

INDIVIDUAL, COLLECTIVE, AND CLASS ACTION COMPLAINT

COMPLAINT (With Application for Show Cause Order)

ORDER TO ISSUE LICENSE

DISTRICT COURT, PUEBLO COUNTY STATE OF COLORADO Court Address: 320 West 10th Street Pueblo, Colorado 81003

STATE DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED CLASS ACTION COMPLAINT

2018COA99. No. 17CA1635, Moore v CDOC Civil Procedure Correctional Facility Quasi-Judicial Hearing Review; Criminal Law Parole

Case 1:05-cv REB-CBS Document 34 Filed 12/09/2005 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO. Court Address: 1437 Bannock Street Denver, CO 80202

Case 2:17-cv Document 1 Filed 03/17/17 Page 1 of 13 PageID #: 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

ORDER RE DEFENDANT S RENEWED MOTION TO DISMISS

BEFORE THE DIVISION OF ADMINISTRATIVE HEARINGS ON BEHALF OF THE SECRETARY OF STATE

ORDER RE: DEFENDANT S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

DEFENDANT RTD S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

People v. Crews, 05PDJ049. March 6, Attorney Regulation. Following a sanctions hearing, the Presiding Disciplinary Judge disbarred Respondent

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS. Division VI Opinion by: JUDGE CARPARELLI Webb and J. Jones, JJ., concur

St. James Place Condominium Association, a Colorado nonprofit corporation, JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Order: Order Regarding Motion to Dismiss for Failure to State a Claim

Case 1:17-cv TSC Document 13 Filed 09/08/17 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MEDIA INTERVENOR RESPONDENTS MOTION TO INTERVENE TO BE HEARD IN RESPONSE TO PETITION

Case 1:08-cv RPM Document 12 Filed 01/16/09 USDC Colorado Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

MOTION FOR ATTORNEY S FEES AND COSTS FROM CITY OF FORT COLLINS

This matter comes before the Court on a motion for partial summary judgment and preliminary injunction and cross motion for partial summary judgment.

People v. Evanson. 08PDJ082. August 4, Attorney Regulation. Following a default sanctions hearing pursuant to C.R.C.P (b), the Presiding

FILED: NEW YORK COUNTY CLERK 08/08/ :26 PM INDEX NO /2015 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/08/2016

DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO 1437 Bannock Street Denver, CO 80202

District Court, Water Division 1, State of Colorado The Honorable Todd Taylor Case No.: 15CW3026

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

Case 2:11-cv CDJ Document 12 Filed 02/27/12 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Comes now the Defendant, by and through counsel, and submits its response to Plaintiff s Motion for Preliminary Mandatory Injunction.

Case 1:08-cv RLY-TAB Document 19 Filed 12/23/2008 Page 1 of 4

District Court, Adams County, State of Colorado

09SC697, Citizens for Responsible Growth v. RCI Development Partners, Inc.: Land Use Applications - Rule 106(a)(4) Time For Review - Final Decision

Defendants Final Motion for Enlargement of Time. The Marion County Election Board and Marion County Voter Registration Board

COLORADO COURT OF APPEALS 2012 COA 6. Farm Deals, LLLP, Farms of Hasty, LLLP, Kindone, LLLP, and Vanman, LLLP,

Case 1:17-cv Document 1 Filed 01/23/17 Page 1 of 11

CLASS ACTION COMPLAINT AND JURY DEMAND

DEFENDANT S CRCP 12(B)(5) MOTION TO DISMISS PLAINTIFFS COMPLAINT. The Colorado Oil and Gas Conservation Commission ( Commission ), by and through

In The Supreme Court of the United States

2018COA126. No. 17CA0741, Marchant v. Boulder Community Health Creditors and Debtors Hospital Liens Lien for Hospital Care

SUPREME COURT STATE OF COLORADO

COMPLAINT FOR JUDICIAL REVIEW OF AGENCY ACTION

COLORADO COURT OF APPEALS

No. 07SA340, People v. Carbajal, - Deferred Judgment Statute Trial Courts Authority to Extend Deferred Judgment Habeas Corpus C.A.R.

DEFENDANT CITY OF FORT COLLINS MOTION FOR STAY PENDING APPEAL

Complaint for Declaratory and Injunctive Relief

DISTRICT COURT, LARIMER COUNTY, COLORADO. 201 La Porte Avenue, Suite 100 Fort Collins, CO Phone: (970) Plaintiff:

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO UNOPPOSED MOTION TO WITHDRAW AS COUNSEL

FILED: NEW YORK COUNTY CLERK 12/14/ :34 PM INDEX NO /2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/14/2016

[PROPOSED] ORDER. LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, et al., Petitioners, COMMONWEALTH OF

Case 1:18-cv MSK-NYW Document 36 Filed 09/27/18 USDC Colorado Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case 1:12-cv PAB-KMT Document 43 Filed 03/27/14 USDC Colorado Page 1 of 6

Order: Stipulated (Between Defendant KONE Inc. and Plaintiff) Motion for a Continuance of Trial (also filed on behalf of Plaintiff)

DEFENDANT BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF. PARK ( Park County ) by its attorneys Hayes, Phillips, Hoffmann & Carberry, P.C.

SUBSTITUTION OF COUNSEL AND MOTION TO CONTINUE

IN THE COURT OF APPEAL

DISTRICT COURT CITY & COUNTY OF DENVER, COLORADO 1437 Bannock Street Denver, Colorado Plaintiff Appellee: SECURITY CAPITAL FUNDING CORP.

RESPONDENT MOTHER'S MOTION IN LIMINE REGARDING OTHER ACTS EVIDENCE

APPLICATION FOR CERTIFICATION TO PRACTICE PENDING ADMISSION PURSUANT TO C.R.C.P

Appellees: COURT USE ONLY. Case Number:

DISTRICT COURT, DENVER COUNTY STATE OF COLORADO 1437 Bannock Street, Room 256 Denver, CO (720)

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS. Division IV Opinion by: JUDGE WEBB Terry and Sternberg*, JJ., concur. Announced: May 1, 2008

Case 1:12-cv MGC Document 155 Entered on FLSD Docket 02/13/2013 Page 1 of 8

People v. Michael Scott Collins. 14PDJ042. December 2, 2014.

Rule 23 Class, Plaintiff, Plaintiffs, COURT USE ONLY v. COURT USE ONLY v. Defendant. Div: Ctrm:

REPORT, DECISION AND IMPOSITION OF SANCTIONS

CASE 0:12-cv RHK-JSM Document 9 Filed 02/01/13 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

Plaintiffs, through their attorneys Montgomery Little & Soran, P.C., in response to

COGA S RESPONSE IN OPPOSITION TO MOTION TO INTERVENE

ORDER AFFIRMED IN PART, VACATED IN PART. Division II Opinion by: JUDGE TERRY Rothenberg and Loeb, JJ., concur. Announced: February 22, 2007

ORDER RE: DEFENDANTS ROBIN HONSEY S AND COMMUNITY BOUND, LLC S MOTION TO DISMISS

Case 0:10-cv KMM Document 1 Entered on FLSD Docket 08/10/2010 Page 1 of 7

NOTICE OF APPEAL. Plaintiff-Appellant John Cox, by and through his attorneys of record,

Roger T. Castle 1888 Sherman Street, Suite 415 Denver, CO DEFENDANT S MOTION TO COMPEL

IN UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Case 5:13-cv EFM-DJW Document 126 Filed 01/02/14 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

APPLICATION FOR CERTIFICATION JUDGE ADVOCATE PURSUANT TO C.R.C.P

Upon consideration of the Report of Hearing Master Pursuant to C.R.C.P.

Case No.: 2018SA RESPONDENTS ANSWER BRIEF. COLORADO SUPREME COURT 2 East 14th Avenue Denver, Colorado 80203

ORDER ON DEFENDANT LIVWELL S MOTION TO DISMISS

COLORADO COURT OF APPEALS. West Colorado Motors, LLC, d/b/a Autonation Buick GMC Park Meadows,

Upon consideration of the Petition for Injunction, the Order to Show Cause

In the United States District Court for the District of Colorado

DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO City and County Building 1437 Bannock Street, Room 256 Denver, Colorado 80202

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

Transcription:

DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO 1437 Bannock Street Denver, CO 80202 LESLIE TAYLOR, Plaintiff, v. COLORADO DEPARTMENT OF HEALTH CARE, POLICY and FINANCING, and SUE BIRCH, in her official capacity as Executive Director, COLORADO DEPARTMENT OF HEALTH CARE, POLICY AND FINANCING, Defendants. JOHN W. SUTHERS, Attorney General JOAN E. Smith, Assistant Attorney General* 1525 Sherman Street, 7 th Floor 303-866-5660 Registration Number: 34605 *Counsel of Record COURT USE ONLY CASE NO: 2011 CV 59 Division: 209 Robert S. Hyatt MOTION TO STRIKE, IN PART; FOR MORE DEFINITE STATEMENT AND TO DISMISS, IN PART, FOR LACK OF RIPENESS The undersigned counsel of record for Sue Birch, in her official capacity and Colorado Department of Health Care, Policy and Financing (Department) hereby submits its Motion to Dismiss for Lack of Standing, or, in the alternative for Judgment on the Pleadings, or in the alternative, Motion to Dismiss for Failure to State a Claim in the complaint for judicial review. As grounds therefore, the Department states as follows: C.R.C.P. 121 1-15(8) The undersigned counsel confirms that she attempted to confer with counsel for Taylor but was unable to determine his position.

1. Plaintiff, Leslie Taylor (Taylor) has filed a request for judicial review of a final agency decision pursuant to 24-4-106, C.R.S. Complaint 9. The Final Agency Decision is subject to judicial review according to the procedural limitations set forth in the APA, (C.R.S. 24-4-106). Judicial review conducted by a district court is limited to the record compiled by the agency. C.R.C.P. Rule 24-4-106. Stream v. Heckers, 519 P.2d 336, 337 (1974); Board of County Commr s v. Simmons, 494 P.2d 85, 87 (1972). I. Taylor s C.R.C.P. 106(a)(4) claim should be stricken because the State Administrative Procedures Act provides a plain, speedy and adequate remedy. 2. Taylor s Complaint opens with the statement that [t]his is an action pursuant to C.R.S. 24-4-106 and C.R.C.P. 106(a)(4) for judicial review of a Final Agency Decision Under C.R.C.P. 106 (a)(4), relief may be obtained in the district court by appropriate action under the practice prescribed in the Colorado Rules of Civil Procedure: (4) Where any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law 3. Taylor fails to alleged that either the agency or the ALJ exceeded its jurisdiction or abused its discretion, but even if she had done, under this rule, she may not request relief under Rule 106 when a plain, speedy and adequate remedy is otherwise provided under the State Administrative Procedures Act(the Act.) C.R.S. 24-4-101 et seq. Taylor has a sufficient opportunity to protect her legal rights in the judicial review process set forth in the Act. 4. Numerous cases uphold the principle that, by its terms, C.R.C.P. 106(a)(4) is available as a remedy only in the absence of any other plain, speedy and adequate remedy. In Meyer v. Department of Revenue, Motor Vehicle Division, 143 P.3d 1181, the Court of Appeals stated that although C.R.C.P. 106 (a)(4) provides for judicial review of an agency action, it did not apply when, by statute, the review process was governed by the Act, which provided a plain, speedy and adequate remedy. Id at 1186. The Medicaid Act requires that appeals of Department actions be conducted pursuant to the Act. C.R.S. 25.5-1-107. This demonstrates a strong legislative policy that challenges to the Department s decisions are subject to the judicial review proceedings under the Act. In this case, Taylor s issue appears to be ALJ s exclusion of certain evidence. Complaint, paragraph 8. This is precisely the type error that falls squarely within the parameters of the Act. When the allegations of error in her complaint are required by statute to be reviewed under the Act and it affords Taylor a plain, speedy and adequate remedy she can not justify resort to C.R.C.P. 106 (a) (4). 2

II. Taylor s description of alleged error upon with she bases her appeal is not averred with sufficient definiteness or particularity. 5. Taylor s Complaint states that her appeal is an action for judicial review of a Final Agency Decision reversing the ALJ s Initial Decision determining that the Department s sanctioning of an improper change in the amount of funds Appellant had available to pay her attendants was inadequate. Complaint for Judicial Review, Introduction. A more definite statement of the alleged error is required before the department can formulate a responsive argument. Obviously, this language is unclear and the Department is unable to respond to it unless and until Taylor provides a more definite statement pursuant to Rule 12 (e). 6. Nor is the remainder of her complaint any clearer. Put simply, the Department has no way of knowing why she thinks the final agency decision was in error. Taylor s statement of the facts sheds little light on her specific averment(s) of error except that she alleges she should have been allowed to adduce evidence barred by the ALJ at hearing. Her Claim for Relief is equally obscure, as it states on one hand that judicial review is not necessary, yet goes on to state, in a sentence fragment judicial review of the ALJ s decision not to allow additional evidence of appellant s changed needs at the time of hearing. Put simply, the Department has no way of knowing what error Taylor is alleging in her Complaint. III. Any of Taylor s averments regarding a hypothetical future action by the Department should be dismissed because the issue is not yet ripe. 7. Finally, under Taylor s Factual and Procedural History and her prayer for relief, Taylor suggests that the 2009 assessment is moot unless the Department takes some adverse action against appellant. Her Claim for Relief states, in part, if the Department intends to take some adverse action against Appellant in the future for allegedly over-spending her allocation amount Taylor is attempting to persuade this court to consider and rule upon a hypothetical future action by the Department. In the instant case, this court lacks jurisdiction to enter any orders regarding the Department s potential future action because that issue is not yet ripe. Ripeness tests whether the issue is real, immediate, and fit for adjudication. Board of Directors, Metro Wastewater Reclamation District v. National Union Fire Insurance Company of Pittsburgh, PA, 105 P.3d 653,656 (2005), citing Beauprez v. Avalos, 42 P.3d 652, 648 (Colo.2002). Courts should refuse to consider uncertain or contingent future matters that suppose speculative injury that may never occur. Id, citing Stell v. Boulder County Dep t of Soc. Servs., 92 P.3d 910, 914 (Colo.2004). This court should refuse to consider any argument regarding a hypothetical action in the future by the Department. 8. Taylor s Factual and Procedural History also includes the statement that, at the time of hearing, another assessment had been conducted and the amount of Appellant s July 2009 allocation amount was essentially mooted. Actually, this assertion is based on a faulty legal theory that the August 2010 assessment would be retroactive. Under the Medicaid 3

Program, assessments are conducted to determine a recipient s needs on the date the assessment is performed and have only a prospective effect. In fact, until this case is concluded, the correct allocation amount for 2009 remains undetermined. It is not possible to calculate whether or not Taylor s spending was in excess of the amount allocated to her until the proper allocation amount is fixed by conclusion of this legal proceeding. Upon conclusion of this case, if the Department does find that Taylor s spending exceeded the amount allocated, and if the Department does take adverse action against her for overspending, Taylor may avail herself of her appeal rights to contest that adverse action at that time. WHEREFORE, the Department respectfully requests that the court STRIKE Taylor s reference to C.R.C.P. 106 (a) (4) action and ORDER Taylor to amend the Complaint to set forth a more definite statement of the alleged error and relief requested, and DISMISS any portion of the Complaint regarding future adverse action by the Department against Taylor for overspending. Respectfully submitted this 2nd day of May, 2011. JOHN W. SUTHERS Attorney General /s/ Joan E. Smith JOAN E. SMITH, 34605* Assistant Attorney General Health Care Unit State Services Section 1525 Sherman Street, 7 th Floor Telephone: (303) 866-5279 FAX: (303) 866-5671 *Counsel of Record 4

CERTIFICATE OF SERVICE This is to certify that I have duly served the within MOTION TO STRIKE, IN PART; FOR MORE DEFINITE STATEMENT AND TO DISMISS, IN PART, FOR LACK OF RIPENESS upon all parties herein by regular Lexis Nexis File and Serve, this 2nd day of May, 2011, addressed as follows: Andrew Montoya, Esq. Kevin W. Williams, Esq. Colorado Cross-Disability Coalition 655 Broadway #775 /s/ Connie Risser Connie Risser 5