DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO
1437 Bannock Street, Room 256
Denver, Colorado 80202










COURT USE ONLY

_________________________

Case Number: 14CV032366

Courtroom/Division:

Plaintiff(s): Damian Stone

v.

Defendant(s): Denver Parks and Recreation District d/b/a
Denver Parks and Recreation and Lauri Dannemiller,
Executive Director, Individually

Attorneys for Defendant

D. Scott Martinez
City Attorney

Patrick A. Wheeler, Reg. #14358
Nathan J. Lucero, Reg. #33908
Denver City Attorneys Office
Assistant City Attorneys
Municipal Operations
201 West Colfax Avenue, Dept. 1207
Denver, CO 80202-5332
Telephone: (720) 913-3275
Facsimile: (720) 913-3180
E-mail: patrick.wheeler@denvergov.org
E-mail: nathan.lucero@denvergov.org

DEFENDANTS MOTION TO DISMISS



The City and County of Denver and Lauri Dannemiller, Executive Director of the Denver
Department of Parks and Recreation (hereinafter Denver), submits this Motion to Dismiss
pursuant to CRCP Rules 12(b)(1) & (5), on the grounds that the Court lacks subject matter
jurisdiction and that the complaint fails to state a claimupon which relief can be granted. As
grounds for the motion, Denver states the following:

C.R.C.P. 121 Certification. The undersigned Assistant City Attorney certifies that
he has, in accordance with C.R.C.P. 121, 1-15(8), attempted to confer in good faith with
Plaintiff Damian Stone about this motion. Four telephone messages were left on Plaintiffs
DATE FILED: July 2, 2014 3:06 PM
FILING ID: 625A9419BDC4F
CASE NUMBER: 2014CV32366
2

business phone morning and afternoon over two days noting the purpose of the call. No return
call was made by Plaintiff. It is assumed that Plaintiff intends to oppose this motion.

INTRODUCTION

Plaintiff came to Washington Park the early morning of May 24, 2014, and set up nets
and started playing volleyball. He was informed by a Park Ranger that, starting at 10 a.m., he
would have to obtain a permit, which would be provided at no cost and on site, to play volleyball
in a designated area within Washington Park. Plaintiff refused. Because he continued to play
volleyball without a permit in an area not designated for volleyball after 10 a.m., he was issued
an administrative citation by a Park Ranger, a redacted copy of which is attached to Plaintiffs
Complaint as Exhibit 3.

The citation was issued in accordance with an Emergency Rule for Active Recreation
Restrictions and Permit Requirements for Washington Park adopted by the Executive Director
of the Denver Department of Parks and Recreation on May 23, 2014, a copy of which is attached
as Exhibit 4 to the Plaintiffs Complaint (Emergency Rule). As stated in paragraph 4 of the
Emergency Rule, the Emergency Rule can be enforced under section 39-4, Denver Revised
Municipal Code (DRMC), which provides, in its entirety:

It shall be unlawful for any person, other than authorized personnel, to engage in
any use of or activities in any area of part of any park, parkway, mountain park or
other recreational facility in violation of any directive issued by the manager
restricting or prohibiting such use or activities.

Plaintiff violated both of the requirements in the Emergency Rule that a permit be
obtained prior to engaging in the park activity of playing volleyball and the prohibition against
playing volleyball in an area designated for volleyball play. In accordance with Administrative
Citations Rules and Regulations duly adopted by the Executive Director of the Denver
Department of Parks and Recreation, Plaintiff was issued the administrative citation which
imposed a fine of $100 for violation of section 39-4, DRMC. No other action was taken to
prevent Plaintiff fromplaying without a permit in an undesignated area.

Plaintiff claims that Lauri Dannemiller (the Executive Director of the Denver Department
of Parks and Recreation) adopted the Emergency Rule without legal authority and then illegally
enforced it against Plaintiff. Plaintiffs claims have absolutely no basis in the law and should be
dismissed for the various reasons stated below.

STANDARD OF REVIEW

C.R.C.P. 12(b)(1)

A question of whether the Court has subject matter jurisdiction is properly addressed in a CRCP
12(b)(1) motion to dismiss. Henderson v. City & County of Denver, 300 P.3d 977, 980 (Colo.
3

App. 2012)(citing Swieckowski v. City of Fort Collins, 934 P.2d 1380, 138384 (Colo.1997)).
The issue of subject matter jurisdiction may be properly raised at any time. Currier 3 v.
Sutherland, 218 P.3d 709, 714 (Colo. 2009)(citing C.R.C.P. 12(h)(3); Triebelhorn v. Turzanski,
370 P.2d 757, 759 (1962)).
C.R.C.P. 12(b)(5)

The purpose of a motion to dismiss brought under CRCP 12(b)(5) is to test the
sufficiency of the complaints factual allegations and claims for relief. Public Service Co. of
Colorado v. Van Wyk, 27 P.3d 377, 384 (Colo. 2001); Barton v. Law Offices of John McKendree,
126 P.3d 313, 314 (Colo. App. 2005). It is proper to grant a Motion to Dismiss under C.R.C.P.
12(b)(5) when the factual allegations made by the non-moving party cannot, as a matter of law,
support a claimfor relief. Lobato v. State, 218 P.3d 358, 367 (Colo. 2009) (citing Van Wyk, P.2d
at 382). When evaluating a motion to dismiss a complaint, the Court must consider the facts as
alleged, taking themas true, and viewing themin the light most favorable to the non-moving
party. See Walker v. Van Laningham, 148 P.3d 391, 397 (Colo. App. 2006). While the Court
must accept all averments of material fact as true, the Court is not required to accept legal
conclusions as true, even where they are couched as factual allegations. See Western Innovations,
Inc. v. Sonitrol Corp., 187 P.3d 1155, 1157-58 (Colo. App. 2008) (holding trial court properly
granted motion to dismiss defendants negligence claims because undisputed facts established
defendants did not owe any duty to defendants) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-56 (2007)); Criminal Justice Reform Coalition v. Ortiz, 121 P.3d 288, 294-295 (Colo.
App. 2005)). Further, a complaint may be dismissed if the substantive law does not support the
claims asserted. Id. (citations omitted).

ARGUMENT

I. THE EXECUTIVE DIRECTOR OF THE DENVER DEPARTMENT OF PARKS AND
RECREATION HAS LEGAL AUTHORITY TO ADOPT AND ENFORCE THE
EMERGENCY RULE AND DID LEGALLY ENFORCE AGAINST THE PLAINTIFF.

The Denver Department of Parks and Recreation (DPR) and its Executive Director
(previously referred to as the Manager) has been vested with the following powers and duties
under sub-section 2.4.4(A) of the Denver City Charter:

Park and other recreational facilities. Management, operation and control of all
facilities, either within or without the territorial limits of the City and County,
owned by the City and County for park and recreational purposes, including the
right to make reasonable charges, subject to ordinance approval, for the use of any
special facility or activity and management and control of the operation, care,
repair and maintenance of all structures in which and all land on which those
facilities are located and operated. At the request of the Department, Council shall
provide, by ordinance, for the enforcement of the rules and regulations of the
Department.
4


A copy of Part 4 of Article II of the City Charter, including sub-section 2.4.4(A), establishing the
power and duties of the Executive Director of DPR, is attached as Exhibit A.

With respect to regulating public use of parks, the Executive Director has exercised these
broad Charter powers and duties by adopting rules governing public activities, uses and behavior
in parks, parkways, mountain parks, recreational facilities, and other public facilities under the
auspices of DPR, the latest and pertinent rules being the Park Use Rules and Regulations
adopted by the Executive Director on May 11, 2012 (Park Use Rules), a copy of which are
attached as Exhibit B.

As noted on the last page of the Park Use Rules, these Park Use Rules were adopted in
accordance with section 39-2, DRMC, regarding the adoption of rules. Contrary to Plaintiffs
assertion in paragraph 17 of the Complaint, sections 2-92 through 2-96, DRMC, are not
applicable because the Parks Use Rules are excluded under section 2-91(3), DRMC, since they
were adopted by a rule-making procedure [ ] provided . . . by specific ordinance, namely
section 39-2, DRMC. A copy of section 2-91(3), DRMC, is attached as Exhibit 7 to Plaintiffs
Complaint and a copy of section 39-2, DRMC, is attached as Exhibit 5 to Plaintiffs Complaint.

Section 39-2(g), DRMC, allows for the Executive Director to adopt Emergency Rules
without complying with the notice and hearing requirements of section 39-2, DRMC. The
language of section 39-2(g), DRMC, is contained in Exhibit 5 to Plaintiffs Complaint. The
enforcement of Emergency Rules is authorized through section 39-4, DRMC, which is quoted, in
full, in the Introduction.

Further specifications on the adoption, notification and compliance requirements under
these Emergency Rules, or directives, are spelled out in section 2.0 of the Park Use Rules.
Section 2.3 of the Park Use Rules states: Uses or activities restricted or prohibited by a
Directive and for which Directive Notice has been duly provided will not be allowed in
contravention of the Directive. Among other means, section 2.2 allows for Directive Notice to
be directly provided by verbal communication or written notice fromDPR staff or an
Enforcement Official (as defined in 20.4 below) to members of the public who are in violation of
the Directive. An Enforcement Official as defined in section 20.4 includes a Park Ranger.

As evidenced on its face, the Emergency Rule in question complied with all of the
requirements of section 39-2 and 39-4, DRMC, as well as section 2.0 of the Park Use Rules, and
is lawfully adopted and fully enforceable.

Nevertheless, Plaintiff argues, in paragraphs 14 through 17 of the Complaint, that the
defined phrase TeamSports Activity, with an exception for casual or spontaneous (pick-up)
games, creates a limitation on the Executive Directors authority to regulate his volleyball
game. Nothing could be further fromthe truth. A close read of section 39-16(a), DRMC, a copy
of which is included in Exhibit 4 to the Plaintiffs Complaint, does not in any way limit the
authority of the Executive Director to require permits or to designate areas for casual or
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spontaneous (pick-up) games. It only prescribes that TeamSport Activities, as defined in
section 14.1 of the Park Use Rules, must be played on or in facilities intended or designated for
such activities.

More importantly, section 39-16(a), DRMC, cannot be construed to be a limitation or
restriction on the authority of the Executive Director, as the Plaintiff asserts. The last sentence of
section 2.4.4(a) of the City Charter quoted above specifically recognizes that the Executive
Director has Charter authority to set rules and regulations and that the role of the City Council is
to adopt ordinances for the purpose of enforcing those rules and regulations. These enforcement
ordinances have been enacted and are contained in Sections 39-1 through 39-24, DRMC, a copy
of which is attached as Exhibit C.

This limited purpose of these ordinances is reflected in section 39-1, DRMC, a copy of
which is part of Exhibit C. Section 39-1(a), DRMC, re-states a good portion of section 2.4.4(a)
of the City Charter and offers examples of how the Charter authority of the Executive Director
may be exercised. Section 39-1(b), DRMC, establishes that the rules and regulations may be
enforced as provided in that provision. Section 39-1(c), DRMC, establishes the authority of the
Executive Director to pursue enforcement by means of administrative citations adopted in
accordance with ordinance, which the Executive Director has done. (Administrative citations
will be discussed further below). See also Articles B and C of Part I of the Park Use Rules
(Exhibit B).

Beyond what is stated in section 39-16(a), DRMC, and as analyzed above, the City
Council has expressly established the authority of the Executive Director to adopt Emergency
Rules under section 39-2(g), DRMC, and to enforce these Emergency Rules under section 39-4,
DRMC. These provisions would override any other provisions to the contrary, even though there
is nothing to the contrary stated in section 39-16(a), DRMC, with respect to the Emergency Rule.

For these reasons, the Plaintiff has failed to state a claimfor which relief may be granted
with respect to his allegations that the Executive Director of DPR acted without legal authority
and illegally issued a citation to him. Declaratory judgment and injunctive relief, as requested by
Plaintiff in paragraph 6 of the Complaint, are not warranted.

II. THE EXECUTIVE DIRECTOR OF THE DENVER DEPARTMENT OF PARKS AND
RECREATION HAS NOT ENGAGED IN A QUASI-JUDICIAL ACTION SUBJECT TO
REVIEW UNDER CRCP 106(a)(4).

In paragraph 5 of the Complaint, Plaintiff seeks relief under CRCP 106(a)(4) certiorari
review applicable to 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. The action taken by
the Executive Director in adopting an Emergency Rule was purely, and indeed quintessentially,
an administrative act not a quasi-judicial act as such act is described Part I above.

6

A district court has subject matter jurisdiction to consider a complaint under CRCP
106(a)(4) only when the action challenged is quasi-judicial. SeePrairie Dog Advocates v. City of
Lakewood, 20 P.3d 1203, 1207 (Colo.App. 2000)(citing Toland v. Strohl, 364 P.2d 588 (1961)).
Whether an action is quasi-judicial or administrative depends on the nature of the governmental
decision and the process by which it is reached. Bourgeron v. City & County of Denver, 159 P.3d
701, 705 (Colo. Ct. App. 2006)(citing Cherry Hills Resort Development Co. v. City of Cherry
Hills Village, 757 P.2d 622 (Colo. 1988)).
When the decision is likely to affect the rights and duties of specific individuals and is
reached through the application of preexisting legal standards or policy considerations to present
or past facts developed at a hearing, the agency is generally acting in a quasi-judicial capacity.
Id. (citing Cherry Hills Resort Development Co. v. City of Cherry Hills Village, supra; Verrier v.
Colo. Dep't of Corr., 77 P.3d 875 (Colo.App.2003)). Acts that are necessary to carry out existing
legislative policies and purposes or that are properly characterized as executive are deemed to be
administrative. Id. (citing Bonacci v. City of Aurora, 642 P.2d 4 (Colo. 1982); City of Aurora v.
Zwedlinger, 571 P.2d 1074 (Colo. 1977)). Quasi-judicial decision making, as its name
connotes, bears similarities to the adjudicatory function performed by courts. Widder v. Durango
Sch. Dist. No. 9-R, 85 P.3d 518, 527 (Colo. 2004)(citing Cherry Hills, at 625-626).

Executive acts are deemed to be administrative rather than quasi-judicial, and are not
subject to review under CRCP 106(a)(4). Bourgeron, at 705 (citing Bonacci v. City of Aurora,
642 P.2d 4 (Colo.1982); City of Aurora v. Zwerdlinger, 571 P.2d 1074 (Colo. 1977)).
[D]ecisions that require careful study and specialized expertise, as well as discretionary
judgment, generally are administrative in nature. Vagneur v. City of Aspen, 295 P.3d 493, 507
(Colo. 2013).
The Colorado Court of Appeals has denied plaintiffs review under CRCP 106(a)(4) on
various occasions on the basis that the actions challenged were administrative rather than quasi-
judicial. See e.g., Walsenburg Sand & Gravel Co., Inc. v. City Council of Walsenburg, 160 P.3d
297 (Colo.App. 2007) (holding that selling real estate was not a quasi-judicial act); Prairie Dog
Advocates v. City of Lakewood, 20 P.3d 1203 (Colo. App. 2000) (holding that extermination of
prairie dogs in a city park was administrative); Chellsen v. Pena, 857 P.2d 472 (Colo.App.1992)
(holding that dismissal of six firefighters at the end of their probationary period was
administrative); Miller v. Collier, 878 P.2d 141 (Colo. App. 1992) (holding denial of applications
for concealed weapons permits were administrative).

In the situation at hand, the action of the Executive Director in adopting and enforcing an
Emergency Rule cannot be viewed as anything other than an administrative action giving effect
to a rule of general applicability in accordance with the authority granted by the City Charter and
Ordinances. The Emergency Rule is broadly applicable to anyone seeking to play volleyball in
Washington Park, and not to Plaintiff specifically. There is no legal requirement for an
adjudicatory hearing process in adopting the Emergency Rule and, consequently, no record of
decision for a court to review.

7

There is likewise no requirement for such a process before issuing an administrative
citation. No aspect of the enforcement action arises to the level of a quasi-judicial action, and
there is plain, speedy and adequate remedy otherwise provided by law under the administrative
citation process analyzed in Part III below.

No subject-matter jurisdiction lies under CRCP 106(a)(4) for a certiorari review of the
Executive Directors adoption or enforcement of the Emergency Rule.

III. PLAINTIFF HAS FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES UNDER
THE ADMINISTRATIVE CITATION RULES AND REGULATIONS.

As noted in the Introduction above, Plaintiff was issued an administrative citation for
violation of section 39-4, DRMC. The issuance and the right of appeal of an administrative
citation are subject to the Administrative Citations Rules and Regulations adopted by the
Executive Director on May 11, 2012, a copy of which is attached as Exhibit D.

On page 2 of the Administrative Citation-Notice of Violation issued to Plaintiff, a copy
of which is attached as Exhibit 3 to Plaintiffs Complaint (Citation), the Citation summarizes,
in plain English, the administrative process for paying the civil penalty noted on the Citation and
the right to appeal the Citation. Said Citation instructed Plaintiff when and to whompayment of
the $100 civil fine is due unless a proper appeal is taken. The Citation goes on to state:

You have the right to request a hearing to review issuance of the Administrative
Citation by filing a Petition with the Manager of Parks and Recreation along with
payment to the Manager of Finance of a nonrefundable $25.00 filing fee as
specified in the [Administrative Citation] Rules and Regulations Governing
Hearings. A petition must be received by the Manager of Parks and Recreation
within fifteen (15) days after service of the Citation.

Payment may be made at a website noted on the Citation, or the process for appeal under the
Administrative Citation Rules and Regulations is also provided on the same website.

Should a recipient of the citation fail to pay the administrative fine or fail to timely appeal
the citation, then (as noted on the Citation) a late fee and interest is assessed and the matter may
eventually be turned over to a collection agency. Contrary to Plaintiffs assertions in paragraphs
20 and 30 of the Complaint, the Citation does not threaten himwith criminal arrest or criminal
prosecution. In issuing administrative citations, the Park Rangers have no such criminal
enforcement authority.

Plaintiff failed to pay the fine and failed to file an appeal by the deadline date of June 9,
2014. Instead, Plaintiff brought this civil action on June 15, 2014, seeking to circumvent the
appeal process. Plaintiff has failed to exhaust his administrative remedies. The doctrine of
exhaustion of administrative remedies requires parties in a civil action to pursue available
8

administrative remedies before seeking judicial review. Janssen v. Denver Career Svcs. Bd., 998
P.2d 9, 11 (Colo.App. 1999), citing State v. Goldens Concrete Co., 962 P.2d 919 (Colo. 1998).

If Plaintiff had completed his administrative remedies process under the Administrative
Citations Rules and Regulations, he would have be in a legal position to bring an appeal under
CRCP 106(a)(4) certiorari review as specified in Section VI.D. of the Administrative Rules and
Regulations. Having decided not to exhaust his administrative remedies, Plaintiff has failed to
state a claimfor which relief may be granted with respect to his obligation to pay the $100 fine.

IV. THE GOVERNMENTAL IMMUNITY ACT BARS PLAINTIFFS DAMAGE CLAIMS.

In paragraph 45 of the Complaint, Plaintiff asserts a variety of damage claims against the
Defendants. These claims are barred by the Colorado Governmental Immunity Act, sections 24-
10-101 et seq., C.R.S. (CGIA).

Under section 24-10-109(1), C.R.S., the CGIA requires that any person claiming to have
suffered an injury by a public entity to file a written notice of the injury with the public entity.
Plaintiff has filed no such notice with Denver or Lauri Dannemiller. Section 24-10-109(6),
C.R.S., prohibits the commencement of any action by a person claiming to have suffered an
injury until either the public entity denies the submitted claimor ninety days have passed,
whichever occurs first. Denver and Lauri Dannemiller cannot deny a claimit has not received
and, as noted above, less than a month passed since the date the Citation was issued to Plaintiff
and the date Plaintiff filed this legal action. Compliance with the provisions of this section [24-
10-109, C.R.S.] shall be a jurisdictional prerequisite to any action brought under the provisions
of this article [CGIA], and failure of compliance shall forever bar any such action. Section 24-
10-109(1), C.R.S.

Plaintiffs failure to comply with section 24-10-109(1), C.R.S., results in there being no
subject-matter jurisdiction over the damage claims asserted by Plaintiff. See Mesa County Valley
School District No. 51 v. Kelsey, 8 P.3d 1200, 1204-05 (Colo. 2000).

V. PLAINTIFF STATES NO CLAIM UNDER EQUAL PROTECTION AND DUE PROCESS
THAT ENTITLES HIM TO ANY RELIEF.

On page 4 and paragraph 35 of the Complaint, Plaintiff asserts that he has been deprived
of constitutional rights under the Equal Protection and Due Process clauses of the United States
Constitution. The arguments presented in the preceding Parts I through IV of this Motion clearly
establish that DPR and its Executive Director acted well within their legal authority and that
Plaintiff failed to comply with the requirements of that law that may have afforded himan
opportunity to challenge the Citation issued to him.

Just as a matter of common sense, requiring a person to obtain a permit, at no cost and
provided on site, to play volleyball and requiring the volleyball play to be in a designated part of
a park cannot remotely rise to the level of a deprivation of a constitutional right. Volleyball
9

players are not a protected class under the Equal Protection clause, and Plaintiff was not denied
any Due Process right to participate in the formulation of the rules and regulations that impact
all of our lives, (paragraph 26 of the Complaint) because, as noted above, there is no legal right
to a hearing on the adoption of the Emergency Rule.

In addition, Plaintiffs Equal Protection and Due Process claims are nothing more than
weak and unsubstantiated allegations. Requiring Plaintiff to support his claims by adequate
operative allegations is consistent with concern of judicial economy and efficiency. In Bell
Atlantic Corp. v Twombly, 550 U.S 544 (2007), the United States Supreme Court recognized that
to withstand a motion to dismiss for failure to state a claim, a complaint must allege sufficient
facts such that a claimis plausible based on the face of the complaint, as opposed to merely
creating a suspicion [of] a legally cognizable right of action based on the assumption that all
the allegations in the complaint are true. Bell Atlantic Corp., at 555. In requiring more than legal
conclusions and a formulaic recitation of the elements of a cause of action, the Supreme Court
recognized that to allow otherwise a wholly conclusory statement of claimwould survive a
motion to dismiss whenever the pleadings left open the possibility the plaintiff might later
establish some set of [undisclosed] facts' to support recovery. Bell Atlantic Corp., at 561. In so
ruling, the Court expressed its concerns about imposing costs on defendants, recognizing that
the threat of discovery expense will push cost conscious defendants to settle even anemic
cases. Bell Atlantic Corp., at 559. Plaintiffs constitutional claims are so thin that they do not
even rise to the level of formulaic recitation of the elements of a cause of action or a wholly
conclusory statement of claim, and therefore do not satisfy basic notice pleading requirements.
Camp Bird Colorado, Inc. v. Board of County Commissioners of County of Ouray, 215 P.3d
1277, 1282 (Colo.App. 2009)(citing Command Communications, Inc. v. Fritz Co., Inc., 36 P.3d
182, 187 (Colo.App. 2001).

In the caption to the Complaint, Plaintiff names Lauri Dannemiller, Executive Director,
Individually, but does not do the same in paragraph 3 of the Complaint. Naming her
individually is presumably based on the Equal Protection and Due Process claims, even though
Plaintiff does not assert a claimunder 42 U.S.C. 1983 or state any claims specifically against
her. Seeing how there has been no denial of, or a viable claimfor, a constitutionally protected
right, Lauri Dannemiller should be dismissed fromthis action in her individual capacity.

Plaintiff has stated no legal basis, and there is simply no legal basis, for asserting a
constitutional claimunder the factual circumstances of this case. The Equal Protection and Due
Process claims should be dismissed for failure to state a claimfor which relief may be granted.

JURISDICTION OVER THE DEFENDANTS

Should any portion of the Complaint survive after the court rules on the Motion to
Dismiss above, Denver would observe that Plaintiff has named as a Defendant, in his caption to
the Complaint, Denver Parks and Recreation District d/b/a Denver Parks and Recreation. No
such entity exists. Even if Plaintiff had managed to name the Department of Parks and
10

Recreation as a defendant, the Department of Parks and Recreation and the Executive Director
are not proper parties to a legal action.

Under Section 1 of Article XX, the Colorado Constitution makes it clear that the only
proper party to action is the City and County of Denver. The pertinent language fromthat
constitutional provision reads:

The municipal corporation known as the city of Denver and all municipal
corporations and that part of the quasi-municipal corporation known as the county
of Arapahoe, in the state of Colorado, included within the exterior boundaries of
the said city of Denver as the same shall be bounded when this amendment takes
effect, are hereby consolidated and are hereby declared to a single body politic
and corporate, by the name of the City and County of Denver . . . [and] by that
name may sue and defend, plead and be impleaded, in all courts and places, and in
all matters and proceedings.

The need to name the City and County of Denver and to serve the Mayor is further
accentuated in the Denver City Charter. Section 2.2.1 of the Charter provides: There shall be,
and hereby is created the office of Mayor. The Mayor shall be the chief executive; the Mayor
shall possess, have and exercise, all the executive and administrative powers granted to the City
and County of Denver by Article XX of the Constitution of the State of Colorado, and all
executive and administrative powers contained in the Charter of the City and County of Denver,
and otherwise existing by operation of law. Section 2.2.3 of the Charter goes on to establish that
[t]he Mayor shall be the chief executive and enforce all laws and ordinances. With respect to
litigation, section 2.2.4 of the Charter requires: All legal process against the City and County
shall be served upon the Mayor or acting Mayor.

The service requirement is supported by CRCP 4(e)(6) which requires that service of
summons and complaints upon a municipal corporation be made to the Mayor or the Clerk.
Plaintiff has failed to properly name in this action the City and County of Denver, which is an
indispensable party under the State Constitution, the City Charter and CRCP 19(a), or to serve
the Mayor or the Clerk as required by the State Constitution, the City Charter and CRCP 4(e)(6).

ATTORNEYS FEES

In light of the overwhelming legal deficiencies of Plaintiffs claims in the Complaint,
Denver believes that the award of attorneys fees to Denver is warranted under section 13-17-
102, C.R.S. The Plaintiffs claims are frivolous and groundless. Denver should be entitled, for
the benefit of the taxpayers, to recover fromPlaintiff the reasonable value of attorneys time for
preparing this Motion to Dismiss.

11


WHEREFORE, Denver prays that this action be dismissed with prejudice and that
attorneys fees be awarded to Denver for the costs of preparing this Motion to Dismiss.


OFFICE OF THE CITY ATTORNEY
CITY AND COUNTY OF DENVER


_/s/_ Patrick A. Wheeler __________________
Patrick A. Wheeler
Nathan J. Lucero
Assistant City Attorneys
Attorney for the Defendants


In accordance with C.R.C.P. 1211-26(7), a printed copy of this document with original
signatures is being maintained by the filing party and will be made available for inspection by
other parties or the Court upon request.


ADDRESS OF DEFENDANT:

Denver Parks and Recreation
Lauri Dannemiller
201 West Colfax Avenue, Dept. 601
Denver, Colorado 80202



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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing DEFENDANTS MOTION TO
DISMISS was delivered this 2
nd
day of July, 2014, electronically by ICCES via E-Service to the
following:


The Law Office of Damian Stone, P.C.,
Damian S. Stone, Esq.
3570 E. 12
th
Ave., Suite 200
Denver, CO 80206




_/s/_Carmelita Martinez _______________
Carmelita Martinez
City Attorneys Office
Case No: 14CV032366


In accordance with C.R.C.P. 1211-26(7), a printed copy of this document with original
signatures is being maintained by the filing party and will be made available for inspection by
other parties or the Court upon request.