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026 Order re COB's Motion To Strike Public Utilities Commissions Motion To DismissPage1 of1 COURT,DISTRICT COUNTY, COLORADOBOULDER Court Address: 1777 Sixth Street P.O. Box 4249, Boulder, CO, 80306-4249 Petitioner(s)THE CITY OF BOULDER v. Respondent(s)PUBLIC SERVICE COMPANY OF COLORADO et al. COURT USE ONLY Case Number:2019CV30637 Division:5 Courtroom: Order: Motion To Strike Public Utilities Commissions Motion To Dismiss Pursuant To C.R.C.P. 12(b)(1) Or In The Alternative Stay Proceeding Pending Final PUC Decision The motion/proposed order attached hereto: MOOT. Issue Date:9/4/2019 THOMAS FRANCIS MULVAHILL District Court Judge DATE FILED: September 4, 2019 2:45 PM CASE NUMBER: 2019CV30637 DISTRICT COURT, BOULDER COUNTY, COLORADO Boulder County Justice Center 1777 6th Street Boulder, Colorado 80302 Petitioner: THE CITY OF BOULDER, a Colorado Home Rule City, v. Respondents: PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY, MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder County. Attorneys for Petitioner, City of Boulder: Attorney Name: Donald M. Ostrander, No. 12458 Richard F. Rodriguez, No. 25105 Hamre, Rodriguez, Ostrander & Dingess, PC Address: 3600 S. Yosemite Street, Suite 500 Denver, Colorado 80237 Phone Number: 303.779.0200 Fax Number: 303.779.3662 Email: dostrander@hrodlaw.com rrodriguez@hrodlaw.com Attorney Name: Office of the Boulder City Attorney Thomas A. Carr, No. 42170, City Attorney Kathleen E. Haddock, No. 16011, Senior Counsel Address: P.O. Box 791 Boulder, CO 80306 Phone Number: 303.441.3020 Fax Number: 303.441.3859 Email: carrt@bouldercolorado.gov haddockk@bouldercolorado.gov  COURT USE ONLY  Case No. 2019CV030637 Division: 5 MOTION TO STRIKE PUBLIC UTILITIES COMMISSION’S MOTION TO DISMISS PURSUANT TO C.R.C.P. 12(b)(1) OR IN THE ALTERNATIVE STAY PROCEEDING PENDING FINAL PUC DECISION Attachment to Order - 2019CV30637 2 Petitioner the City of Boulder (“Boulder”), by and through counsel, submits this Motion to Strike (“Motion to Strike”) the non-party Public Utilities Commission’s Motion to Dismiss Per C.R.C.P. 12(b)(1) or in the Alternative Stay Proceeding Pending Final PUC Decision (“Motion to Dismiss”). As grounds, Boulder states as follows: CERTIFICATE REGARDING CONFERRAL Per Rule 121, Boulder’s counsel avers that he or she has conferred with opposing counsel regarding this Motion to Strike. Counsel for the non-party the Public Utilities Commission (“PUC”) opposes this Motion to Strike. Counsel for respondent Public Service Company of Colorado d/b/a Xcel Energy (“Xcel”) opposes this Motion to Strike. Counsel for respondent Paul Weissman, Treasurer of Boulder County, takes no position on the Motion to Strike. I. BACKGROUND AND SUMMARY OF ARGUMENT On June 28, 2019, Boulder filed a Petition in Condemnation and by statute named all parties with an interest “of record” and filed its First Amended Petition on July 22, 2019. Since the PUC has no recorded interest in the property interests that Boulder seeks to condemn, the PUC was not named and joined in this proceeding, as the statute contemplates. Nevertheless, on August 8, 2019, the PUC filed a Motion to Intervene. Boulder will file or has filed a response in opposition to the PUC’s Motion to Intervene. Also on August 8, 2019, the PUC filed a Motion to Dismiss that essentially repeats arguments made by respondent and landowner Xcel in Xcel’s motion to dismiss to which the City has responded. As shown below, the Court should strike the PUC’s Motion to Dismiss for at least three reasons. First, the PUC lacks standing to file the Motion to Dismiss as it is not yet a party to the proceeding. Second, the PUC’s Motion to Dismiss is not a “pleading” as contemplated by Attachment to Order - 2019CV30637 3 applicable rules and, is therefore, immaterial and impertinent. Third, the PUC’s Motion to Dismiss is redundant of Xcel’s motion to dismiss and otherwise additionally immaterial. Accordingly, the Court should strike the PUC’s Motion to Dismiss. II. ARGUMENT Per C.R.C.P. 12, upon motion filed by a party within 21 days after the service of any pleading, motion, or other paper, the Court “may order any redundant, immaterial, impertinent, or scandalous matter stricken from any pleading, motion, or other paper.” C.R.C.P. 12(f). For the reasons below, the Court should strike the PUC’s Motion under C.R.C.P. 12(f). A. The PUC lacks standing to file a Motion to Dismiss. As noted above, while the PUC has filed a motion to intervene in this proceeding, that motion is disputed and has not yet been ruled upon. Unless and until the Court orders that the PUC may intervene in this action, the PUC is not a party to this proceeding and it lacks standing to file a motion. A C.R.C.P. 12(b)(1) motion to dismiss may be filed only by a party to a proceeding. See Brannan Sand & Gravel Co., Inc. v. F.D.I.C., 928 P.2d 1337, 1344 (Colo. App. 1996) (“A party may challenge the court’s subject matter jurisdiction by moving to dismiss pursuant to C.R.C.P. 12(b)(1).”) (emphasis added), rev’d on other grounds sub nom. City of Westminster v. Brannan Sand & Gravel Co., Inc., 940 P.2d 393 (Colo. 1997). While the PUC has filed a motion to intervene, it is not yet a party to this action. Colorado’s Rule 12(b) is patterned after Rule 12(b) of the Federal Rules of Civil Procedure. Bd. of County Comm’rs v. Dist. Ct. of County of Teller, 472 P.2d 128 (Colo. 1970). When a Colorado Rule of Civil Procedure is modeled on a Federal Rule of Civil Procedure, courts should Attachment to Order - 2019CV30637 4 look to federal authority for guidance in construing the Colorado rules. Antero Res. Corp. v. Strudley, 347 P.3d 149, 154 (Colo. 2015). Federal courts hold that non-parties do not have standing to file dispositive motions to dismiss. See, e.g., Mastercard Int’l Inc. v. Visa Int’l Serv. Assoc., Inc., 471 F.3d 377, 382 (2d Cir. 2006) (“non-party to the underlying action, should have not been allowed to file a motion to dismiss”); PFIP, LLC v. Aspen Total Fitness Centereach, LLC, No. 06-CV-108-JD, 2006 WL 1644623, at *2 (D.N.H. June 7, 2006) (“[the movants]” are not parties in this action. Therefore, they lack standing to file a motion to dismiss…”); Dail v. City of Goldsboro, No. 5:10-CV-00451- BO, 2011 WL 2293904, * at 1 (E.D.N.C. June 9, 2006) (non-parties have “no standing to file pleadings or motions in this lawsuit.”). In sum, since the PUC indisputably is not a party to this proceeding, it lacks standing to file the Motion to Dismiss. And since the PUC lacks standing to file the Motion to Dismiss, the Motion to Dismiss is logically immaterial and impertinent within the meaning of C.R.C.P. 12(f). See Contogeorge v. Spyrou, 7 F.R.D. 223, 227 (S.D. N.Y. 1946) (matter is impertinent if it is irrelevant and does not pertain to the controversy or proceeding before the court). Thus, it should be stricken. B. PUC’s Motion to Dismiss is not a proper pleading as contemplated under C.R.C.P. 24(c). In its Motion to Intervene, the PUC attempts to justify the filing of its Motion to Dismiss by arguing that the filing is “in compliance with C.R.C.P. 24(c).” This is incorrect. Per C.R.C.P. 24, a person filing a motion to intervene “shall state the grounds therefor and [the motion to intervene] shall be accompanied by a pleading set forth the claim or defense for which intervention is sought.” C.R.C.P. 24(c) (emphasis added). A motion to dismiss is not a Attachment to Order - 2019CV30637 5 “pleading.” In re Marriage of Junge, 415 P.3d 884, 887 (Colo. App. 2019) (“A motion is not a pleading.”); see also C.R.C.P. 7(a) (defining “pleadings” as a “complaint and answer, a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person was not an original party summoned under the provisions of Rule 14; a third-party answer, if a third-party complaint is served; and there may be a reply to an affirmative defense.”) and C.R.C.P. 7(b) (defining “motions and other papers”).1 The formal requirements of C.R.C.P. 24 require the filing of a pleading and the filing of a motion does not satisfy the requirements of the rule. Capitol Indus. Bank v. Strain, 442 P.2d 187, 188 (Colo. 1968) (“[T]he filing of a motion to intervene, alone, is not sufficient. The positive requirement of the Colorado Rules of Civil Procedure is that a pleading must also be filed. Parties litigant have a right to rely upon the rules as written. It is the duty of trial courts, as well as our duty, to enforce them when timely objection is made by a party to litigation.”). Thus, on its face, the PUC’s Motion to Dismiss does not qualify as a proper pleading that is required to accompany a motion to intervene. Even assuming for the sake of argument that the PUC’s Motion to Dismiss could qualify as a “pleading,” the Court still should strike the Motion to Dismiss because it fails to satisfy other language within the intervention rule. The rule requires the non-party “set forth the claim or defense for which intervention is sought.” C.R.C.P. 24(f). The PUC’s Motion to Dismiss does not set forth a “claim” or “defense” to Boulder’s First Amended Petition in Condemnation in the manner required under applicable rules. See C.R.C.P. 8(a) (setting forth how a “claim” is properly 1 The Colorado Rules of Civil Procedure apply to eminent domain proceedings. Aldrich v. Dist. Ct., 714 P.2d 1321, 1323 (Colo. 1986). Attachment to Order - 2019CV30637 6 set forth) and C.R.C.P 8(b) (setting forth how a “defense” is properly set forth). Rather, the Motion to Dismiss merely restates legal arguments that were raised by Xcel in Xcel’s motion to dismiss. In sum, the PUC’s Motion to Dismiss on its face fails to qualify as a pleading. Even if it did qualify as a pleading, the pleading is defective because it fails to set forth the claim or defense for which intervention is sought, as the rules require. Accordingly, the PUC’s Motion to Dismiss is immaterial and impertinent within the meaning of C.R.C.P. 12(f). C. PUC’s Motion to Dismiss is redundant and impertinent. In its Motion to Dismiss, the PUC’s arguments set forth nearly identical language as Xcel’s C.R.C.P. 12(b)(1) motion to dismiss (“Xcel’s motion to dismiss”) for lack of subject matter jurisdiction. Indeed, the PUC’s arguments in support of its Motion to Dismiss are largely duplicative of Xcel’s arguments in its motion to dismiss. For example, the PUC argues (1) issue preclusion bars the condemnation action and (2) Boulder must obtain PUC approval as a precondition to condemnation. PUC’s Motion to Dismiss at 5. These are the precise arguments that Xcel makes to support Xcel’s motion to dismiss. See Xcel’s motion to dismiss at 10-11 (issue preclusion) and 14 (PUC approval is precondition). Furthermore, the PUC relies on the same documents that Xcel relies upon in support of its motion to dismiss. For example, the PUC refers to Judge LaBuda’s January 14, 2015 Decision and the PUC Decision No. C17-0750 as decisions that allegedly preclude the filing of the condemnation action. PUC’s Motion to Dismiss at 5-6. These are the precise decisions that Xcel relies upon to support its motion to dismiss. See Xcel’s motion to dismiss at 5-6 (Judge LaBuda’s January 14, Attachment to Order - 2019CV30637 7 2015 Decision, which Xcel refers to as the “Final Opinion”) and 7-8 (PUC Decision No. C17-0750, which Xcel refers to as the “Third Application Order”). Finally, the PUC’s supporting rationale is identical to the supporting rationale Xcel relies upon in support of its motion to dismiss. For example, the PUC refers to several “following minimum outstanding issues” for resolution the PUC, including the approval of Exhibit 5A, approval of Exhibit 5B, and issues regarding the assets inside substations. PUC’s Motion to Dismiss at 7-9. These are the precise supporting rationales that Xcel relies upon to support its motion to dismiss. See Xcel’s motion to dismiss at 15-16 (“Ultimately, it is critical to resolve the many outstanding regulatory issues pending before the PUC prior to condemnation…”) Finally, the PUC claims that dismissal is appropriate because it must resolve remaining issues raised by IBM, which intervened in the PUC proceedings. Motion to Dismiss at 11. But the PUC fails to cite any legal authority that allows it to intervene to allegedly protect a third party’s rights. In any event, IBM has already filed a Motion to Intervene in this case. The Court can and should address IBM’s interests through IBM’s direct arguments and anticipated paperwork, not PUC’s indirect and inappropriate efforts. Alternatively, the PUC “requests” the Court stay this proceeding “pending a final PUC decision approving the designation of assets for transfer.” Motion to Dismiss at 3 and 12. The PUC’s request fails to incorporate any supporting legal authority. Accordingly, the Court should deem the motion abandoned as to the PUC’s request. C.R.C.P. 121 § 1-15(3) (noting effect of failure to file legal authority in a motion). Attachment to Order - 2019CV30637 8 III. CONCLUSION For the above reasons, Boulder respectfully requests the Court strike the PUC’s Motion to Dismiss and grant Boulder such further and other relief as deemed just, necessary, or appropriate. A proposed Order is filed along with this Motion to Strike. Respectfully submitted this 29th day of August 2019. BOULDER CITY ATTORNEY’S OFFICE Thomas A. Carr, No. 42170, City Attorney Kathleen E. Haddock, No.16011, Senior Counsel HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. /S/ RICHARD F. RODRIGUEZ’S DULY SIGNED PHYSICAL COPY OF THIS DOCUMENT IS ON FILE AT THE OFFICE OF HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. PURSUANT TO CRCP RULE 121, SECTION 1-26(9) By: Donald M. Ostrander, No. 12458 Richard F. Rodriguez, No. 25105 ATTORNEYS FOR PETITIONER Attachment to Order - 2019CV30637 9 CERTIFICATE OF DELIVERY I hereby certify that on the 29th day of August, 2019, a true and correct copy of the foregoing MOTION TO STRIKE PUBLIC UTILITIES COMMISSION’S MOTION TO DISMISS PURSUANT TO C.R.C.P. 12(b)(1) OR IN THE ALTERNATIVE STAY PROCEEDING PENDING FINAL PUC DECISION AND PROPOSED ORDER GRANTING MOTION TO STRIKE PUBLIC UTILITIES COMMISSION’S MOTION TO DISMISS PURSUANT TO C.R.C.P. 12(b)(1) OR IN THE ALTERNATIVE STAY PROCEEDING PENDING FINAL PUC DECISION was sent via Colorado Courts E-Filing or sent via e-mail or placed in the United States mail, first class, postage prepaid, and properly addressed to the following: John R. Sperber Sarah M. Kellner Brandee L. Caswell Matthew Dumont Clark Katharine M. Gray Sean J. Metherell FAEGRE BAKER DANIELS LLP 1144 Fifteenth Street, Suite 3400 Denver, Colorado 80202 jack.sperber@faegreBD.com sarah.kellner@faegreBD.com brandee.caswell@faegreBD.com matthew.clark@faegreBD.com katharine.gray@faegreBD.com sean.metherell@faegreBD.com Attorneys for Public Service Company of Colorado Olivia D. Lucas Boulder County Attorney’s Office P.O. Box 471 Boulder, CO 80306 olucas@bouldercounty.org Respondent Paul Weissmann, in His Official Capacity As Treasurer Of Boulder County Philip J. Weiser Paul C. Gomez Ruth M. Harper Attorney General’s Office 1300 Broadway, 6th Floor Denver, CO 80203 Paul.gomez@coag.gov Ruth.harper@coag.gov Respondent Proposed Intervenor The Colorado Public Utilities Commission MORGAN GUARANTY TRUST COMPANY OF NEW YORK Registered Agent: CT Corporation 4400 Easton Commons Columbus, OH 43219 HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. /s/ Lori A. Argo By: Attachment to Order - 2019CV30637