Vdare Found. v. City of Colo. Springs
| Decision Date | 27 March 2020 |
| Docket Number | Civil Action No. 18-cv-03305-CMA-KMT |
| Citation | 449 F.Supp.3d 1032 |
| Parties | VDARE FOUNDATION, Plaintiff, v. CITY OF COLORADO SPRINGS, and John Suthers, Defendants. |
| Court | U.S. District Court — District of Colorado |
Randy Blair Corporon, Randy B. Corporon P.C., Aurora, CO, for Plaintiff.
William Erik Lamphere, Colorado Springs City Attorney's Office-South Nevada, Colorado Springs, CO, for Defendants.
ORDER ADOPTING THE RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE KATHLEEN M. TAFOYA
This matter is before the Court on review of the Recommendation by United States Magistrate Judge Kathleen M. Tafoya (Doc. # 35), wherein she recommends that this Court grant Defendants City of Colorado Springs and John Suthers' (collectively, the "Defendants") Motion to Dismiss First Amended Complaint (Doc. # 24). On February 12, 2020, Plaintiff VDARE Foundation ("VDARE") filed an Objection to the Recommendation. (Doc. # 36.) Defendants responded to the Objection on March 4, 2020 (Doc. # 39). For the following reasons, VDARE's objections are overruled and the Court affirms and adopts the Recommendation.
Magistrate Judge Tafoya provided a thorough recitation of the factual and procedural background in this case. The Recommendation is incorporated herein by reference, see 28 U.S.C. § 636(b)(1)(B) ; Fed. R. Civ. P. 72(b), and the facts will be repeated only to the extent necessary to address Plaintiff's objections.
VDARE is a non-profit educational organization whose mission is to educate on two main issues: (1) "the unsustainability of current U.S. immigration policy[,]" and (2) "whether the U.S. can survive as a nation-state." (Doc. # 13 at 2, ¶ 2.) On or about March 31, 2017, VDARE reserved the Cheyenne Mountain Resort (the "Cheyenne Resort") for a conference event (the "Conference"). (Id. at 4, ¶ 11.) VDARE alleges that Cheyenne Resort was "fully aware of VDARE and its mission, as well as the potential for media attention and possible protests arising from the Conference." (Id .)
Nearly five months later, on August 14, 2017, Defendants, through Mayor Suthers, issued the following public statement:
, or sexual orientation to be secure and protected from fear, intimidation, harassment and physical harm.
(Id. at 4, ¶ 12) (the "Statement"). The next day, Cheyenne Resort announced that it would not host the Conference and cancelled its contract with VDARE. (Id. at 5, ¶ 14.) Sometime after Cheyenne Resort cancelled the Conference, VDARE alleges that Mayor Suthers "publicly expressed satisfaction that the Conference had been cancelled." (Id. )
VDARE alleges that Defendants' Statement that Colorado Springs "will not provide any support or resources to this event" constitutes a "refusal to provide city services, including police protection, for the Conference due to, among other things, its controversial subject matter, VDARE's controversial viewpoints and published content in opposition to current immigration policies, which Defendants termed "hate speech[.]" (Id. at 5, ¶ 13.) Further, VDARE asserts that Defendants "either knew or should have known" that the Conference "might give rise to protests or unrest by those who may not agree with VDARE's purpose, viewpoints or statements[,]" and, as such, Defendants' Statement, "given the obvious and foreseeable need for municipal police and fire services, had the effect of depriving VDARE of its First Amendment rights, chilling its speech on matters of public concern, and depriving VDARE and potential attendees of the conference from communicating on important national issues ...." (Id. at 6, ¶ 17.) As a result, VDARE alleges that Defendants' Statement in conjunction with Cheyenne Resort's cancellation of the Conference give rise to constitutional and common law tort claims. See (id. at 6–18).
On March 22, 2019, VDARE filed its Amended Complaint in which it asserts three claims for relief against Defendants: (1) violation of VDARE's First Amendment freedom of speech and association rights and the Equal Protection Clause under 42 U.S.C. § 1983 ; (2) First Amendment retaliation; and (3) intentional interference with a contract. (Id. )
On April 17, 2019, Defendants filed a Motion to Dismiss the First Amended Complaint (Doc. # 24) arguing that VDARE failed to state a claim as to its First Amendment, Equal Protection Clause ("EPC"), and retaliation claims under Federal Rule of Civil Procedure 12(b)(6), and that the Colorado Governmental Immunity Act ("CGIA") bars VDARE's tort claim. (Id. at 5–14.) VDARE responded to Defendants' Motion to Dismiss on May 24, 2019, and contends that it set forth plausible claims. (Doc. # 32 at 1–2.) Specifically, VDARE posits that it adequately pleaded state action by alleging that it was Defendants' Statement itself that caused Cheyenne Resort to cancel the Conference, which formed the basis of its First Amendment and retaliation claims. (Id. at 3–6.) Moreover, VDARE suggests that its tort claim against Mayor Suthers survives under the CGIA because it pleaded sufficient factual allegations showing that Mayor Suthers' made the Statement in a "willful and wanton" manner as he "knew" that his conduct "violated Plaintiff's First Amendment rights and placed the rights and safety of conference-goers and the Resort's patrons and employees at serious risk." (Id. at 19.) VDARE did not address its EPC claim. On June 6, 2019, Defendants replied and reiterated that VDARE's omission of factual allegations in support of elements necessary to establish First Amendment and retaliation claims and conclusory allegations about Mayor Suthers' willful and wanton conduct require this Court to dismiss Amended Complaint. (Doc. # 33.)
As discussed in greater detail below, Magistrate Judge Tafoya issued her Recommendation that the Court grant Defendants' Motion to Dismiss on January 29, 2020. (Doc. # 35.) The Magistrate Judge recommended that the Court grant Defendants' Motion to Dismiss as to VDARE's First Amendment claim because, under the Tenth Circuit's nexus test, VDARE failed to allege facts showing that Cheyenne Resort's cancellation of the Conference can be "attributed to the [D]efendants[.]" (Id. at 8, 9–11.) Because state action was not adequately pleaded, Magistrate Judge Tafoya determined that VDARE did not sufficiently plead violations of its First Amendment rights. (Id. 5–8.) Given that VDARE did not adequately plead a constitutional violation, the Magistrate Judge concluded that Mayor Suthers was entitled to qualified immunity. (Id. at 10–11.) Moreover, she determined that VDARE's retaliation claim should be dismissed because VDARE failed to adequately plead the third element of that claim. (Id. at 9–10.) She also agreed with Defendants that VDARE's EPC claim should be dismissed for failure to state a claim based on VDARE's failure "to allege any facts to support its contention that it was denied equal protection rights." (Id. at 9.) Because the Magistrate Judge recommended dismissal of VDARE's federal claims, she further recommended that this Court decline to exercise jurisdiction over VDARE's tortious interference claim. (Id. at 11–12.)
On February 12, 2020, VDARE filed an Objection1 to the Recommendation as to all three claims, although VDARE did not address the EPC claim. (Doc. # 36.) Because VDARE argues that the Magistrate Judge erred with respect to its First Amendment and retaliation claims, it also asserts that the Court need not decline to consider the state law claim. (Id. at 16.) Defendants responded to VDARE's Objection on March 4, 2020. (Doc. # 39.) For the following reasons, the Court adopts the Recommendation.
When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge "determine de novo any part of the magistrate judge's [recommended] disposition that has been properly objected to." An objection is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known As 2121 East 30th Street , 73 F.3d 1057, 1059 (10th Cir. 1996). In conducting its review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).
When there are no objections filed to a magistrate judge's recommendation, Summers v. Utah , 927 F.2d 1165, 1167 (10th Cir. 1991).
Rule 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1201 ...
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