Willmeng Offer of Judgement and Original Complaint

Case 1:19-cv-00150-CMA-SKC Document 19 Filed 03/05/19 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No. 19-cv-150-CMA-SKC
CLIFTON WILLMENG,
Plaintiff,
v.
CITY OF LAFAYETTE, COLORADO;

CHRISTINE BERG, in her individual capacity,
Defendants.
PLAINTIFF’S NOTICE OF ACCEPTANCE OF

DEFENDANTS’ OFFER OF JUDGMENT
Pursuant to Rule 68(a) of the Federal Rules of Civil Procedure, Plaintiff Clifton
Willmeng, by and through his counsel, hereby accepts and provides notice that he has accepted
Defendants’ Offer of Judgment Pursuant to Fed.R.Civ.P. 68, proffered by Defendants on
February 20, 2019, and attached hereto as Exhibit 1. Plaintiff respectfully requests that this
Court enter judgment in his favor.
Respectfully submitted this 5th day of March 2019.
KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty
___________________________
Andy McNulty
Tania Valdez
Killmer, Lane & Newman, LLC
1543 Champa Street, Suite 400
Denver, Colorado 80202
(303) 571-1000
(303) 571-1001 fax
amcnulty@kln-law.com
tvaldez@kln-law.com
1
Case 1:19-cv-00150-CMA-SKC Document 19 Filed 03/05/19 USDC Colorado Page 2 of 2
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on March 5, 2019, I filed the foregoing via CM/ECF, and the
CM/ECF system will send notification to the following:
Kevin Chen
Michiko Brown
Davis Graham & Stubbs
1550 17th Street, Suite 500
Denver, CO 80202
303.892.7229
303.893.1379 fax
kevin.chen@dgslaw.com
Miko.Brown@dgslaw.com
Counsel for Defendants
s/ Jesse Askeland
_________________________
Jesse Askeland
2
Case 1:19-cv-00150-CMA-SKC Document 19-1 Filed 03/05/19 USDC Colorado Page 1 of 3

Civil Action No. 1:19-cv-00150-CMA
CLIFTON WILLMENG,
Plaintiff,
v.
CITY OF LAFAYETTE, COLORADO; and

Defendants.
DEFENDANTS’ OFFER OF JUDGMENT PURSUANT TO

FEDERAL RULE OF CIVIL PROCEDURE 68
Pursuant to Federal Rule of Civil Procedure 68, Defendants City of Lafayette and
Christine Berg (collectively, “Defendants”), by and through their undersigned counsel, hereby
submit the following Offer of Judgment (the “Offer”):
1. Judgment may be entered jointly against Defendants and in favor of Plaintiff
Clifton Willmeng (“Plaintiff”) in the total amount of $5,000.00 (five thousand dollars), plus
reasonable attorney’s fees and costs accrued to date as determined pursuant to 42 U.S.C. §1988
and Federal Rule of Civil Procedure 54(d).
2. This judgment shall be in full satisfaction of all federal and state law claims or
rights that the Plaintiff may have to damages, or any other form of relief, against Defendants
arising out of the acts alleged in the Complaint.
3. If not timely accepted within 14 days, the Offer shall be deemed withdrawn
pursuant to the provisions of Federal Rule of Civil Procedure 68.
4549476.2
Dated: February 20, 2019
s/Michiko Brown
Michiko Brown
Kevin Chen
DAVIS GRAHAM & STUBBS LLP
1550 17th Street, Suite 500
Denver, Colorado, 80202
Telephone: 303.892.9400
Facsimile: 303.893.1379
Email: miko.brown@dgslaw.com
Email: kevin.chen@dgslaw.com
Attorneys for Defendants
-2-
CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of February, 2019, I caused the foregoing Offer of
Judgement to be delivered via email and US mail, addressed as follows:
Darold W. Killmer
Andrew McNulty
Tania Valdez
Killmer, Lane & Newman, LLP
Denver, CO 80202
(303) 571-1000
(303) 571-1001
dkillmer@kln-law.com
tvaldez@kln-law.com
s/Bernadette Marquez
Bernadette Marquez
-3-
Case 1:19-cv-00150-RPM Document 1 Filed 01/17/19 USDC Colorado Page 1 of 21

Civil Action No. ______
CLIFTON WILLMENG,
Plaintiff,
v.
CITY OF LAFAYETTE, COLORADO;

Defendants.
COMPLAINT
Plaintiff Clifton Willmeng, by and through his attorneys Darold W. Killmer, Andrew
McNulty, and Tania Valdez of KILLMER, LANE & NEWMAN, LLP, respectfully allege for his
Complaint as follows:
INTRODUCTION
1. In 2018, social media platforms, like Facebook, provide “perhaps the most
powerful mechanisms available to a private citizen to make his or her voice heard.” Packingham
v. North Carolina, 137 S. Ct. 1730, 1737 (2017). Facebook allows any person with an internet
connection to “become a town crier with a voice that resonates farther than it could from any
soapbox.” Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997). Defendant
Christine Berg, Mayor and City Councilperson for Lafayette, has misused this powerful tool to
stifle the voice of those who are critical of her.
2. Plaintiff Clifton Willmeng is a concerned citizen who has posted comments
critical of Defendant Berg on her Facebook page. For that, Defendant Berg removed his
1
comments and blocked him from posting any further messages. Defendant Berg’s practice of
stifling Mr. Willmeng’s valid criticism of her is unconstitutional, and this suit seeks to end it.
JURISDICTION AND VENUE
3. This action arises under the Constitution and laws of the United States and is
brought pursuant to 42 U.S.C. § 1983. Jurisdiction is conferred on this Court pursuant to 28
U.S.C. § 1331.
4. Jurisdiction supporting Plaintiff’s claim for attorney fees and costs is conferred by
42 U.S.C. § 1988.
5. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391(b). All
of the events alleged herein occurred within the State of Colorado, and all of the parties were
residents of the State at the time of the events giving rise to this Complaint.
PARTIES
6. At all times relevant to this complaint, Plaintiff Clifton Willmeng was a citizen of
the United States of America and a resident of the State of Colorado.
7. At all times relevant to this Complaint, Defendant City of Lafayette, Colorado
(“Lafayette”) was a Colorado municipal corporation.
8. At all times relevant to this Complaint, Defendant Christine Berg was a citizen of
the United States and a resident of the State of Colorado. At all relevant times, Defendant Berg
was acting within the scope of her official duties and employment and under color of state law in
her capacity as a City Councilmember and Mayor for Lafayette.
FACTUAL ALLEGATIONS
Plaintiff Clifton Willmeng is a well-known, outspoken activist against fracking, and

resident of Lafayette, who has been critical of Defendant Berg.
2
9. Plaintiff Cliff Willmeng is a father of two, a husband, and registered nurse who
lives and works in Lafayette. Mr. Willmeng moved to Lafayette eight years ago to raise a family
in a place that is safe for people and children and that would allow a healthy and secure
upbringing. One year after moving to Lafayette, Mr. Willmeng learned about the massive oil
shale that exists under much of the northern front range when he read in the local paper about a
protest taking place in his neighboring town of Erie, Colorado against hydraulic fracturing in that
community.
10. The protest Mr. Willmeng learned of was being conducted by the parents of
students at Red Hawk Elementary School. At that time, Encana Corporation was planning to drill
a well pad adjacent to the school for purposes of conducting hydraulic fracturing operations. Mr.
Willmeng felt that the parents were reasonably concerned for the safety of their children.
11. Hydraulic fracturing, or “fracking,” is the process of injecting liquid at high
pressure into subterrean rocks so as to force open existing fissure and extract oil or gas.
12. Mr. Willmeng’s concerns about fracking extend beyond his community. Mr.
Willmeng believes that the proliferation of fracking effects all of Colorado’s citizens negatively.
13. And Mr. Willmeng’s concerns about fracking are based in scientific evidence.
Last year, a study by the Colorado Department of Public Health and Environment found that
within 500 feet of some fracking wells in Colorado there were increased air concentrations of
benzene, acetaldehyde and formaldehyde. The study found that those increased concentrations
also carried with them increased cancer risks.
14. Fracking has also been associated with increased seismic activity. Research has
shown a demonstrable link between wastewater injection, a process that’s used to dispose of
waste fluids from fracking, and the incidence of earthquakes in a region. One study in particular
3
has shown that there is a direct correlation between the depth of wastewater injection sites in a
region and the magnitude of earthquakes in that region.
15. Moreover, fracking uses huge amounts of water, which must be transported to the
fracking site, at significant environmental cost. Preliminary studies have demonstrated that there
is a risk that carcinogenic chemicals used during the fracking process may escape and
contaminate groundwater around the fracking site.
16. Mr. Willmeng has also seen the tangible consequences of allowing fracking in
Colorado. In April 2017, a home in Firestone, Colorado exploded, killing two men and seriously
injuring one woman. The explosion was caused by a gas leak from a fracking well, owned by
Anadarko Petroleum Corporation, that was less than two hundred feet away from the home.
17. Eventually, Mr. Willmeng discovered that drilling operations were moving
toward Lafayette. Mr. Willmeng, along with many other people within the community, began
organizing to prevent oil and gas drilling in Lafayette. Since that time, Mr. Willmeng has
regularly seen reports of fires, explosions, spills, release of toxic chemical emissions, pipeline
leaks and ruptures, flaring, and hazardous material vehicle accidents and/or spills associated with
fracking in his community. Mr. Willmeng truly believes, and has seen evidence that, oil and gas
drilling is a life and death threat to his children, the local environment, the global climate, and
every person in the area.
18. Mr. Willmeng, in coordination with many other concerned citizens, has been
compelled to engage in political life as a result of the threats posed by oil and gas expansion in
Colorado. Mr. Willmeng has, in coordination with many other concerned citizens, attended city
council meetings, created local and state ballot initiatives, organized educational forums, and
attempted to make his and his community’s concerns known to government in every imaginable
4
way. Mr. Willmeng is one of the founders of East Boulder County United, a group that advocates
against oil and gas expansion in Boulder county and neighboring counties (including Weld and
Adams counties).
19. Mr. Willmeng is also an outspoken critic of Defendant Berg, who is the Mayor of
Lafayette. Defendant Berg, while saying that she is concerned about the dangers of oil and gas
expansion in Colorado, has been taking actions that advance the oil and gas industry’s agenda in
Lafayette. Mr. Willmeng has been an outspoken critic of Defendant Berg and her history of
saying one thing while doing another.
20. Mr. Willmeng noticed that, as early as 2012, Defendant Berg established herself
as a figure that opposed democratic decision making on municipal oil and gas matters by
refusing to allow a ban on fracking in Lafayette onto the 2013 ballot.
21. Defendant Berg also worked to ensure that a ban that was passed by voters was
never implemented through a number of actions, including supporting a motion to disallow the
group who had initially petitioned to have the fracking ban placed on the ballot from intervening
to defend the ban. The ban was eventually struck down after a challenge by the oil and gas
industry, while the City of Lafayette government, including Defendant Berg, who didn’t support
the ban was half-heartedly defending it in court.
22. Defendant Berg works for the Environmental Defense Fund, an organization that
promotes market-based drilling solutions and pro-fossil fuel politicians.
Mr. Willmeng turns to Facebook to better advocate against fracking and speak out against
Defendant Berg’s complicity with the oil and gas industry.
23. Mr. Willmeng found that when he sent emails to his representatives his concerns
were at times outright ignored or met with evasive answers. Because of this, Mr. Willmeng
moved onto social media, including Facebook, to interact with local officials. Mr. Willmeng
5
noticed that on social media the discussion was transparent, recorded, and progressed in real
time. Mr. Willmeng truly believes that social media remains the most efficient expression of
political debate and discussion on the issue of the expansion of oil and gas expansion in
Colorado.
24. Mr. Willmeng began commenting on the Facebook page of Defendant Berg
because he found it to be one of the most effective ways of both communicating directly with
Defendant Berg and with other Lafayette constituents of Defendant Berg.
Facebook is a public forum in which political speech is engaged in, disseminated, and
debated.
25. Facebook is a social media platform with more than 2.23 billion monthly active
users, as of June 30, 2018. In the United States, approximately two-thirds of adults are Facebook
users. Facebook allows its users to publish messages of any length (or publish Facebook
“posts”), to republish other users’ posts, and to respond to (or “comment on”) other users’ posts.
Speech on Facebook ranges from birthday wishes to heartfelt reconnections to political
discourse. Particularly relevant to this lawsuit is the amount of speech by, to, and about the
government at all levels that occurs on Facebook on a daily basis.
26. Facebook users are those with an account that has been created on the platform. A
Facebook user’s “profile” includes the user’s name, a description of themselves, biographical
information, work history, and other web pages maintained by the user. A Facebook “profile” is
a personal account on Facebook.
27. In contrast, a Facebook “page” is a user account created by a public figure. Many
public officials create Facebook user “pages” that represent their official capacity as a
government, or public, official. These pages are called “Community or Public Figure” pages and
6
differ from personal Facebook user profiles in appearance and content. Facebook users who
maintain “pages” often describe their official position on their page.
28. By default, Facebook profiles and pages are visible to everyone with internet
access. Although non-users can view users’ Facebook webpages, they cannot interact with users
on the Facebook platform without an account.
29. A Facebook user’s webpage displays all posts generated by the user, with the
most recent posts appearing at the top of the page. This display is known as a user’s “timeline.”
When a user posts on Facebook, the user’s timeline immediately updates to include that post.
Anyone who can view a user’s public Facebook page can see the user’s timeline.
30. A user can post on their own timeline, or on another user’s timeline. Facebook
posts can include photographs, videos, and links. Users can post links to news articles.
31. By default, any Facebook user can comment on any other user’s posts or timeline.
Any Facebook user can also reply to another user’s comment on a third user’s post. The
collection of replies and replies-to-replies is sometimes referred to as a “comment thread.”
Facebook’s comment threads are a large part of why it is a social media platform. Comment
threads reflect multiple overlapping conversations among and across a group of users.
32. Facebook users are able to post and comment on Facebook public figure pages
freely, unless they are “banned.”
33. Defendant Berg maintains an official Facebook page. On the “Home” section of
her official Facebook page, Defendant Berg describes herself as “Lafayette Mayor Christine
Berg” on her page. Defendant Berg presents her page to the public as one she operates in her
official capacity rather than her personal capacity. Defendant Berg’s page is generally accessible
to the public at large without regard to political affiliation or any other limiting criteria. Any
7
member of the public can view her posts. Any Facebook user who wants to follow Defendant
Berg’s page can do so and her page has 464 followers. Any Facebook user can also comment on
Defendant Berg’s post or post on her timeline, unless they have been blocked. Defendant Berg
uses her page to promote official government business and she uses to account to directly
communicate with her constituents in her official capacity as both a City Councilperson and
Mayor of Lafayette.
34. Below is a screenshot of the “Home” section of Defendant Berg’s official
Facebook page:
35. Defendant Berg’s official Facebook page also has an “About” section. In the
“About” section, Defendant Berg lists herself as the Mayor of Lafayette. She lists her contact
information as her official email address and phone number. Defendant Berg also notes that her
8
official Facebook page is a place where she will post Lafayette community information and
updates, and allow for community comments.
36. Below is a screenshot of the “About” section of Defendant Berg’s official
Facebook page:
37. The comment threads associated with the posts on Defendant Berg’s Facebook
page are important forums for discussion and debate about government policy. Her page
functions as a digital town hall in which Defendant Berg communicates official Lafayette news
9
and information to the public, and members of the public comment on that news and information
to both respond to Defendant Berg and to exchange views with other members of the public.
38. Below are screenshots of posts that appeared on the timeline associated with
Defendant Berg’s official Facebook page, providing information to members of the public and
asking for public engagement:
10
11
39. Defendant Berg’s Facebook page is controlled completely by her in her official
capacity as City Councilperson and Mayor of Lafayette. Defendant Berg controls who can
comment on her timeline and who may comment on her posts.
40. By default, Facebook profiles and pages are visible to everyone with internet
access. Although non-users can view users’ Facebook webpages, they cannot interact with users
on the Facebook platform without an account.
12
41. By default, any Facebook user can comment on any other user’s posts or timeline.
Any Facebook user can also reply to another user’s comment on a third user’s post. The
collection of replies and replies-to-replies is sometimes referred to as a “comment thread.”
Facebook’s comment threads are a large part of why it is a social media platform. Comment
threads reflect multiple overlapping conversations among and across a group of users. Defendant
Berg interacts with her constituents on her official Facebook page.
42. While Facebook profiles can be “protected” by users, which results in limits on
who can see the user’s timeline and who can search for their posts, Facebook pages cannot be
limited in this way. Facebook pages are inherently open to the public.
43. Users and creators of Facebook’s pages, however, can “ban” individuals. When a
user with a Facebook page “bans” an individual, that individual can no longer comment on the
user’s Facebook page.
44. If the banned user attempts to comment on a Facebook page that she or he has
been banned from, she or he will only be given the opportunity to share the post and not be
allowed to comment on the post. Banned users also cannot see other users’ comments on a post.
45. Below is a screenshot of what a user encounters when they are banned from
commenting on Defendant Berg’s Facebook page:
13
46. Users and creators of Facebook’s pages also have the ability to delete other users’
posts on their timeline and other users’ comments on their posts.
Defendant Berg blocked Mr. Willmeng from her Facebook page and removed his
comments.
47. Mr. Willmeng is a Facebook user who has been blocked by Defendant Berg from
commenting on her Facebook page because he posted messages that were critical of her.
Defendant’s blocking of Mr. Willmeng prevents him from commenting on Defendant’s posts,
viewing comment threads associated with those posts, and from participating in comment
threads.
14
48. In March 2017, Mr. Willmeng commented on a number of posts that Defendant
Berg made on her Facebook page. Mr. Willmeng’s comments were in support of the Lafayette
Climate Bill of Rights, which would have banned fracking in Lafayette. There posts were critical
of Defendant Berg, who had been obfuscating her position on the Lafayette Climate Bill of
Rights and, later, would move to stop the citizens of Lafayette from intervening to defend the
Lafayette Climate Bill of Rights from legal attack by the oil and gas industry.
49. At the time, Mr. Willmeng was a well-known anti-fracking activist in Lafayette.
He is the leader of the group East Boulder County United, which often demonstrates against
fracking in Boulder County, including in Lafayette. Defendant Berg knows that Mr. Willmeng
was, and is still, a well-known anti-fracking activist.
50. Because of Mr. Willmeng’s comments on her Facebook page, along with his
advocacy and speech against fracking in other forums, Defendant Berg blocked him from
commenting on her Facebook page and deleted the comments he had posted on her timeline.
51. Defendant Berg blocked Mr. Willmeng, and deleted his comment, in retaliation
for his comments on her posts. Particularly, Defendant Berg retaliated against Mr. Willmeng
because he posted comments and posts that were anti-fracking and critical of her position on the
issue of fracking. Her retaliatory actions were premised on Mr. Willmeng’s political opposition
to her views on fracking and his criticism of her on this issue.
52. Mr. Willmeng can no longer comment on posts of Defenant Berg’s Facebook
page. He can no longer interact with other users in comment threads. Each new Facebook post by
Defendant Berg represents another discussion Mr. Willmeng is foreclosed from participating in.
53. Defendant Berg’s blocking of Mr. Willmeng, and the deletion of his comments
and posts, was viewpoint-based. The blocking of Mr. Willmeng imposes an unconstitutional
15
restriction on his participation in a designated public forum and his right to petition the
government for redress of grievances.
STATEMENT OF CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF
42 U.S.C. § 1983 – First Amendment
Free Speech
(Plaintiff Against All Defendants)
54. Plaintiff hereby incorporates all other paragraphs of this Complaint as if fully set
forth herein.
55. At all times relevant to this Complaint, Defendant Berg was acting under the color
of law.
56. Plaintiff was engaged in First Amendment-protected speech in his commenting on
Defendant Berg’s official Facebook page.
57. Plaintiff’s speech was on a matter of public concern and did not violate any law.
58. By banning Plaintiff from her official Facebook page, and deleting his comments,
Defendant Berg prevented Plaintiff from exercising his First Amendment rights, including his
right to speak freely.
59. Defendant Berg’s banning of Plaintiff from commenting on posts on her official
Facebook page, and the deletion of her comments, was a viewpoint-based restriction on speech.
60. Defendant Berg’s official Facebook page is a designated public forum.
61. Defendant Berg’s conduct violated clearly established rights belonging to Plaintiff
of which reasonable persons in Defendant Berg’s position knew or should have known.
Viewpoint-based prior restraint on speech has been widely known as being unconstitutional for
more than eight decades. See Near v. Minnesota, 283 U.S. 697 (1931).
16
62. Defendant Berg engaged in this conduct intentionally, knowingly, willfully,
wantonly, maliciously, and in reckless disregard of Plaintiff’s constitutional rights.
63. Defendant Berg, as Mayor and City Councilmember, is a final policymaker for
Lafayette, and her actions in this matter has the effect of Lafayette custom, policy, and practice.
64. Defendant Lafayette’s customs, policies, and/or practices were the moving force
behind Defendant Berg’s violation of Plaintiff’s constitutional rights.
65. Defendant Berg’s actions and/or omissions caused, directly and proximately,
Plaintiff to suffer damages. The acts and inactions of Defendant Berg caused Plaintiff damages
in that they were prevented from speaking freely on a matter of public concerns, among other
injuries, damages, and losses.
SECOND CLAIM FOR RELIEF

Right to Petition the Government
forth herein.
of law.
68. Plaintiff was engaged in First Amendment-protected petitioning in his
commenting on Defendant Berg’s official Facebook page.
69. Plaintiff’s petitioning was on a matter of public concern and did not violate any
law.
70. By banning Plaintiff from her official Facebook page, and deleting his comments,
Defendant Berg prevented Plaintiff from exercising his First Amendment rights, including his
right to petition the government for redress of grievances.
17
71. Defendant Berg’s banning of Plaintiff from commenting on posts on her official
Facebook page and the deletion of his comments was a viewpoint-based restriction on his right
to petition.
of which reasonable persons in Defendant’s position knew or should have known.
74. Defendant Berg, as Mayor Pro Tem and City Councilmember, is a final
policymaker for Lafayette, and her actions in this matter has the effect of Lafayette custom,
policy, and practice.
in that they were prevented from petitioning his government for redress of his grievances, among
other injuries, damages, and losses.
THIRD CLAIM FOR RELIEF

Retaliation
forth herein.
of law.
18
79. Plaintiff was engaged in First Amendment-protected speech and petitioning in his
80. Plaintiff’s speech was on a matter of public concern and did not violate any law.
81. Defendant Berg responded to Plaintiff’s First Amendment-protected activity with
retaliation, including but not limited to deleting his comments and banning him from
82. Defendant Berg’s retaliatory actions were substantially motivated by Plaintiff’s
exercise of his First Amendment rights.
83. By banning Plaintiff and deleting his comments, Defendant Berg sought to punish
Plaintiff for exercising his First Amendment rights, to silence his future speech, to stop him from
petitioning, and to restrict his freedom of expression, along with the future speech and expression
of others. Defendant Berg’s retaliatory actions would chill a person of ordinary firmness from
engaging in First Amendment-protected activity.
of which reasonable persons in Defendant Berg’s position knew or should have known.
Viewpoint-based prior restraint on speech has been widely known as being unconstitutional for
more than eight decades. See Near v. Minnesota, 283 U.S. 697 (1931). Retaliation against an
individual based on his First-Amendment-protected speech has been clearly established in the
Tenth Circuit for almost two decades. Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000).
85. Defendant Berg, as Mayor and City Councilmember, is a final policymaker for
Lafayette, and her actions in this matter have the effect of Lafayette custom, policy, and practice.
19
in that they were prevented from petitioning his government for redress of his grievances and
were prevented from speaking freely on a matter of public concerns, among other injuries,
damages, and losses.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully request that this Court enter judgment in his favor
and against Defendants, and award them all relief as allowed by law and equity, including, but
not limited to the following:
a. Declaratory relief and injunctive relief 1;
b. Compensatory damages as allowed by law, including, but not limited to those for
past and future pecuniary and non-pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, medical bills, and other
non-pecuniary losses;
c. Punitive damages for all claims as allowed by law in an amount to be determined
at trial;
d. Pre-judgment and post-judgment interest at the highest lawful rate;
1
Plaintiff would seek immediate injunctive relief, but Defendant Berg’s imminent resignation is
an intervening event that causes Plaintiff to simply seek injunctive relief through the normal
course of litigation. See Anthony Hahn, Lafayette Mayor Christine Berg resigning at month’s
end, BOULDER DAILY CAMERA, available at: http://www.dailycamera.com/lafayette-
news/ci_32387564/lafayette-mayor-christine-berg-resigning-at-months-
end?fbclid=IwAR2rpY9KTaWOuwoFWHGDVRfNHlr6F4kyZmv5JAsH6qLOYHP-
5wWCMLPm8rE.
20
e. Attorney’s fees and costs; and
f. Such further relief as justice requires.
DATED this 17th day of January 2019.
s/ Andy McNulty
____________________________________
Darold W. Killmer
Andy McNulty
Tania Valdez
Denver, CO 80202
(303) 571-1000
(303) 571-1001
dkillmer@kln-law.com
tvaldez@kln-law.com
ATTORNEYS FOR PLAINTIFF
21

Willmeng Offer of Judgement and Original Complaint

Încărcat de

Informații document

Titlu original

Drepturi de autor

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Willmeng Offer of Judgement and Original Complaint

Încărcat de

Drepturi de autor:

Case 1:19-cv-00150-CMA-SKC Document 19 Filed 03/05/19 USDC Colorado Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

Civil Action No. 19-cv-150-CMA-SKC

CITY OF LAFAYETTE, COLORADO;

PLAINTIFF’S NOTICE OF ACCEPTANCE OF

Defendants’ Offer of Judgment Pursuant to Fed.R.Civ.P. 68, proffered by Defendants on

Court enter judgment in his favor.

Respectfully submitted this 5th day of March 2019.

KILLMER, LANE & NEWMAN, LLP

Attorneys for Plaintiff

Counsel for Defendants

KILLMER, LANE & NEWMAN, LLP

IN THE UNITED STATES DISTRICT COURT

Civil Action No. 1:19-cv-00150-CMA

CITY OF LAFAYETTE, COLORADO; and

DEFENDANTS’ OFFER OF JUDGMENT PURSUANT TO

submit the following Offer of Judgment (the “Offer”):

1. Judgment may be entered jointly against Defendants and in favor of Plaintiff

and Federal Rule of Civil Procedure 54(d).

arising out of the acts alleged in the Complaint.

pursuant to the provisions of Federal Rule of Civil Procedure 68.

Dated: February 20, 2019

Attorneys for Defendants

Judgement to be delivered via email and US mail, addressed as follows:

IN THE UNITED STATES DISTRICT COURT

Civil Action No. ______

CITY OF LAFAYETTE, COLORADO;

stifle the voice of those who are critical of her.

2. Plaintiff Clifton Willmeng is a concerned citizen who has posted comments

JURISDICTION AND VENUE

brought pursuant to 42 U.S.C. § 1983. Jurisdiction is conferred on this Court pursuant to 28

5. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391(b). All

the United States of America and a resident of the State of Colorado.

7. At all times relevant to this Complaint, Defendant City of Lafayette, Colorado

(“Lafayette”) was a Colorado municipal corporation.

her capacity as a City Councilmember and Mayor for Lafayette.

Plaintiff Clifton Willmeng is a well-known, outspoken activist against fracking, and

11. Hydraulic fracturing, or “fracking,” is the process of injecting liquid at high

also carried with them increased cancer risks.

region and the magnitude of earthquakes in that region.

contaminate groundwater around the fracking site.

every person in the area.

saying one thing while doing another.

refusing to allow a ban on fracking in Lafayette onto the 2013 ballot.

the ban was half-heartedly defending it in court.

promotes market-based drilling solutions and pro-fossil fuel politicians.

Defendant Berg and with other Lafayette constituents of Defendant Berg.

Speech on Facebook ranges from birthday wishes to heartfelt reconnections to political

government at all levels that occurs on Facebook on a daily basis.

a personal account on Facebook.

maintain “pages” often describe their official position on their page.

on the Facebook platform without an account.

collection of replies and replies-to-replies is sometimes referred to as a “comment thread.”

freely, unless they are “banned.”

34. Below is a screenshot of the “Home” section of Defendant Berg’s official

updates, and allow for community comments.

36. Below is a screenshot of the “About” section of Defendant Berg’s official

asking for public engagement:

comment on her timeline and who may comment on her posts.

on the Facebook platform without an account.

collection of replies and replies-to-replies is sometimes referred to as a “comment thread.”

Berg interacts with her constituents on her official Facebook page.

user’s Facebook page.

commenting on Defendant Berg’s Facebook page:

posts on their timeline and other users’ comments on their posts.

was, and is still, a well-known anti-fracking activist.