FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 5, 2020 _________________________________ Christopher M. Wolpert Clerk of Court LYNN EUGENE SCOTT,
Plaintiff - Appellee,
v. No. 19-1464 (D.C. No. 1:18-CV-00610-WJM-SKC) STEVENSON CARY; CITY OF (D. Colo.) AURORA,
Defendants - Appellants,
and
JOHN DOE, Stevenson Cary’s Supervisor at Aurora Police Department,
Defendant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HARTZ, McHUGH, and EID, Circuit Judges. _________________________________
Plaintiff Lynn Scott brought suit against the City of Aurora, Aurora police
officer Stevenson Cary, and John Doe (Cary’s supervisor) alleging liability under
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. federal civil-rights statutes and Colorado law. Defendants Aurora and Cary filed a
motion to dismiss which, among other things, argued that they were entitled to
sovereign immunity on the state-law claims because Plaintiff failed to comply with a
pre-suit notice requirement in the Colorado Governmental Immunities Act (CGIA).
The district court declined to dismiss the state-law claims on that ground and
Defendants appeal. We affirm.
I. Background
Under the CGIA, “[a]ny person claiming to have suffered an injury by a public
entity or by an employee thereof . . . shall file a written notice as provided in this
section within one hundred eighty-two days after the date of the discovery of the
injury . . . .” Colo. Rev. Stat. § 24-10-109(1). In a case involving a public entity
other than the state, “the notice shall be filed with the governing body of the public
entity[,] . . . the attorney representing the public entity,” id. § 24-10-109(3)(a), or “a
public entity’s agent listed in the inventory of local governmental entities pursuant
to [Colo. Rev. Stat. §] 24-32-116,” id. § 24-10-109(3)(b).
Plaintiff’s complaint alleged that “[p]ursuant to C.R.S. 24-10-109 the Plaintiff
has mail [sic] an intent to sue to Aurora City Saftey [sic] Office on or around March
15, 2017.” Aplt. App. at 21. 1 Defendants did not challenge the timeliness of the
notice but the propriety of whom was served. In support of their motion to dismiss,
they submitted evidence that purportedly shows that the Aurora City Attorney is
1 Plaintiff’s complaint substantially repeated this allegation for each state-law claim. See Aplt. App. at 22–25. 2 Aurora’s listed agent for CGIA notices, and they asserted that Aurora does not have a
safety office.
II. Discussion
A. Appellate Jurisdiction
Because the district court has not entered a final judgment, we first assure
ourselves of our jurisdiction over this interlocutory appeal. Our precedent supports
jurisdiction. “[P]ursuant to the federal collateral order doctrine, we have subject
matter jurisdiction to hear appeals of orders denying motions to dismiss where the
motions are based on state-law immunity from suit.” Sawyers v. Norton, 962 F.3d
1270, 1287 (10th Cir. 2020) (brackets and internal quotation marks omitted); see
Aspen Orthopaedics, 353 F.3d at 837.
B. Propriety of Dismissal
We begin our analysis by noting that the issue before us is not one of subject-
matter jurisdiction. Although Colorado considers the timeliness of notice under the
CGIA to be a jurisdictional matter, see Univ. of Colo. v. Booth, 78 P.3d 1098, 1100
(Colo. 2003), the service defect alleged by Defendants is not, see Finnie v. Jefferson
Cty. Sch. Dist. R-1, 79 P.3d 1253, 1256 (Colo. 2003) (“[S]ection 24-10-109(3)
[provides] a statutory defense to claims rather than creating a jurisdictional
prerequisite to suit.”). We therefore need not consider whether we would be bound
by a state-court view that an issue is jurisdictional. Cf. Odom v. Penske Truck
Leasing Co., 893 F.3d 739, 742 (10th Cir. 2018) (“[W]hen a state proscribes its own
courts’ jurisdiction over particular subject matter, it does not divest the authority of
3 federal courts within its borders. This is because, as an axiom of our federal system,
Congress alone defines the lower federal courts’ subject-matter jurisdiction.”).
Therefore, contrary to Defendants’ suggestion, Federal Rule of Civil
Procedure 12(b)(1), which concerns challenges to subject-matter jurisdiction, was not
in play on this issue. Defendants cite Martinez v. Estate of Bleck, 379 P.3d 315, 322
(Colo. 2016), for the proposition that Colorado requires courts to decide the issue of
sovereign immunity on motion before trial. But state procedural law ordinarily does
not govern proceedings in federal court; and in any event there are adequate federal
procedures for disposing of immunity issues before trial without reliance on Rule
12(b)(1).
We therefore agree with the district court that the proper framework for
addressing Defendants’ motion was under Federal Rule of Civil Procedure 12(b)(6).
And our precedents establish that Plaintiff’s complaint survives the motion.
Under Colorado law an alleged failure to send a CGIA notice to the correct
location gives rise to an affirmative defense. See Univ. of Colo., 78 P.3d at 1100 (An
alleged “failure to file the notice of claim with the appropriate officer or entity under
section 24-10-109(3) gives rise to an affirmative defense.”). And in federal court a
complaint need not anticipate and address an affirmative defense. See Fernandez v.
Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018) (“A plaintiff need not
anticipate in the complaint an affirmative defense that may be raised by the
defendant; it is the defendant’s burden to plead an affirmative defense.”). A court
should “dismiss a claim on the pleadings based on an affirmative defense only when
4 the complaint itself admits all the elements of the affirmative defense by alleging the
factual basis for those elements.” Id.; see Xechem, Inc. v. Bristol-Myers Squibb Co.,
372 F.3d 899, 901 (7th Cir. 2004) (“Only when the plaintiff pleads itself out of
court—that is, admits all the ingredients of an impenetrable defense—may a
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 5, 2020 _________________________________ Christopher M. Wolpert Clerk of Court LYNN EUGENE SCOTT,
Plaintiff - Appellee,
v. No. 19-1464 (D.C. No. 1:18-CV-00610-WJM-SKC) STEVENSON CARY; CITY OF (D. Colo.) AURORA,
Defendants - Appellants,
and
JOHN DOE, Stevenson Cary’s Supervisor at Aurora Police Department,
Defendant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HARTZ, McHUGH, and EID, Circuit Judges. _________________________________
Plaintiff Lynn Scott brought suit against the City of Aurora, Aurora police
officer Stevenson Cary, and John Doe (Cary’s supervisor) alleging liability under
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. federal civil-rights statutes and Colorado law. Defendants Aurora and Cary filed a
motion to dismiss which, among other things, argued that they were entitled to
sovereign immunity on the state-law claims because Plaintiff failed to comply with a
pre-suit notice requirement in the Colorado Governmental Immunities Act (CGIA).
The district court declined to dismiss the state-law claims on that ground and
Defendants appeal. We affirm.
I. Background
Under the CGIA, “[a]ny person claiming to have suffered an injury by a public
entity or by an employee thereof . . . shall file a written notice as provided in this
section within one hundred eighty-two days after the date of the discovery of the
injury . . . .” Colo. Rev. Stat. § 24-10-109(1). In a case involving a public entity
other than the state, “the notice shall be filed with the governing body of the public
entity[,] . . . the attorney representing the public entity,” id. § 24-10-109(3)(a), or “a
public entity’s agent listed in the inventory of local governmental entities pursuant
to [Colo. Rev. Stat. §] 24-32-116,” id. § 24-10-109(3)(b).
Plaintiff’s complaint alleged that “[p]ursuant to C.R.S. 24-10-109 the Plaintiff
has mail [sic] an intent to sue to Aurora City Saftey [sic] Office on or around March
15, 2017.” Aplt. App. at 21. 1 Defendants did not challenge the timeliness of the
notice but the propriety of whom was served. In support of their motion to dismiss,
they submitted evidence that purportedly shows that the Aurora City Attorney is
1 Plaintiff’s complaint substantially repeated this allegation for each state-law claim. See Aplt. App. at 22–25. 2 Aurora’s listed agent for CGIA notices, and they asserted that Aurora does not have a
safety office.
II. Discussion
A. Appellate Jurisdiction
Because the district court has not entered a final judgment, we first assure
ourselves of our jurisdiction over this interlocutory appeal. Our precedent supports
jurisdiction. “[P]ursuant to the federal collateral order doctrine, we have subject
matter jurisdiction to hear appeals of orders denying motions to dismiss where the
motions are based on state-law immunity from suit.” Sawyers v. Norton, 962 F.3d
1270, 1287 (10th Cir. 2020) (brackets and internal quotation marks omitted); see
Aspen Orthopaedics, 353 F.3d at 837.
B. Propriety of Dismissal
We begin our analysis by noting that the issue before us is not one of subject-
matter jurisdiction. Although Colorado considers the timeliness of notice under the
CGIA to be a jurisdictional matter, see Univ. of Colo. v. Booth, 78 P.3d 1098, 1100
(Colo. 2003), the service defect alleged by Defendants is not, see Finnie v. Jefferson
Cty. Sch. Dist. R-1, 79 P.3d 1253, 1256 (Colo. 2003) (“[S]ection 24-10-109(3)
[provides] a statutory defense to claims rather than creating a jurisdictional
prerequisite to suit.”). We therefore need not consider whether we would be bound
by a state-court view that an issue is jurisdictional. Cf. Odom v. Penske Truck
Leasing Co., 893 F.3d 739, 742 (10th Cir. 2018) (“[W]hen a state proscribes its own
courts’ jurisdiction over particular subject matter, it does not divest the authority of
3 federal courts within its borders. This is because, as an axiom of our federal system,
Congress alone defines the lower federal courts’ subject-matter jurisdiction.”).
Therefore, contrary to Defendants’ suggestion, Federal Rule of Civil
Procedure 12(b)(1), which concerns challenges to subject-matter jurisdiction, was not
in play on this issue. Defendants cite Martinez v. Estate of Bleck, 379 P.3d 315, 322
(Colo. 2016), for the proposition that Colorado requires courts to decide the issue of
sovereign immunity on motion before trial. But state procedural law ordinarily does
not govern proceedings in federal court; and in any event there are adequate federal
procedures for disposing of immunity issues before trial without reliance on Rule
12(b)(1).
We therefore agree with the district court that the proper framework for
addressing Defendants’ motion was under Federal Rule of Civil Procedure 12(b)(6).
And our precedents establish that Plaintiff’s complaint survives the motion.
Under Colorado law an alleged failure to send a CGIA notice to the correct
location gives rise to an affirmative defense. See Univ. of Colo., 78 P.3d at 1100 (An
alleged “failure to file the notice of claim with the appropriate officer or entity under
section 24-10-109(3) gives rise to an affirmative defense.”). And in federal court a
complaint need not anticipate and address an affirmative defense. See Fernandez v.
Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018) (“A plaintiff need not
anticipate in the complaint an affirmative defense that may be raised by the
defendant; it is the defendant’s burden to plead an affirmative defense.”). A court
should “dismiss a claim on the pleadings based on an affirmative defense only when
4 the complaint itself admits all the elements of the affirmative defense by alleging the
factual basis for those elements.” Id.; see Xechem, Inc. v. Bristol-Myers Squibb Co.,
372 F.3d 899, 901 (7th Cir. 2004) (“Only when the plaintiff pleads itself out of
court—that is, admits all the ingredients of an impenetrable defense—may a
complaint that otherwise states a claim be dismissed under Rule 12(b)(6).”).
We recognize that under Colorado law “a plaintiff must plead compliance with
the CGIA’s notice provisions.” Aspen Orthopaedics & Sports Med., LLC v. Aspen
Valley Hosp. Dist., 353 F.3d 832, 840 (10th Cir. 2003). But even if Colorado law
governs pleading in federal court (which we need not resolve), we have held that the
pleading need not provide details. “Generally, an allegation such as the following
would suffice: ‘Plaintiff fully complied with the provisions of
Colo.Rev.Stat. section 24-10-109.’” Id. at 841. Plaintiff’s complaint sufficed
because it alleged compliance with the notice provision of the CGIA by stating that
he mailed notice of his intent to sue “[p]ursuant to C.R.S. 24-10-109.” Aplt. App. at
21; see also id. at 22–25.
Defendants contend that the allegation is insufficient because the complaint
specified that Plaintiff mailed the notice to the Aurora Safety Office, which does not
exist. But the nonexistence of that office does not appear on the face of the
complaint. And we cannot say with certainty that the recipient of the notice was not
authorized to accept service, particularly in light of the view of the Colorado
Supreme Court that in some circumstances a plaintiff can comply with
§ 24-10-109(3) by sending notice to a party not expressly contemplated by the
5 statute. See Finnie, 79 P.3d at 1258 (courts should “consider principles of agency
and equity, the purposes of the statute, and concerns of protecting plaintiffs from
misrepresentations by governmental entities” on a “case-by-case” basis to determine
whether a notice sent to a party not listed in the statute complies).
III. Conclusion
We affirm the district court’s order denying Defendants’ motion to dismiss the
state-law claims and remand for further proceedings.
Entered for the Court
Harris L Hartz Circuit Judge