Case 1:12-cv-02252-RPM Document 23 Filed 12/10/12 USDC Colorado Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 12-cv-02252-RPM KASEL ASSOCIATES INDUSTRIES, INC. and RAYMOND J. KASEL, Plaintiffs, v. CITY AND COUNTY OF DENVER, et al.

Defendants. ______________________________________________________________________________ PLAINTIFFS RESPONSE TO THE CITY DEFENDANTS MOTION TO DISMISS Plaintiffs Kasel Associates Industries, Inc. and Raymond J. Kasel (collectively, Plaintiffs) by their attorneys, Campbell Killin Brittan & Ray, LLC, submit the following Response in Opposition to the Motion to Dismiss Plaintiffs Amended Complaint (Motion) (ECF #18) filed by Defendant the City and County of Denver and Defendants Judy Montero, Stephanie Syner, Douglas Linkhart, Gary Lasswell, and Benjamin Siller, in their respective individual and official capacities (collectively, the City Defendants). I. INTRODUCTION Death of a thousand cuts is an ancient phrase used to describe a slow death by the torture of many small wounds, none lethal in itself, but fatal in their cumulative effect. This torture was a form of execution in ancient China, reserved for the most heinous crime. This phrase illustrates the treatment received by the Plaintiffs from the City Defendants over the past twenty years. While no single inspection, investigation, administrative or judicial hearing instigated by

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the City Defendants caused Plaintiffs irreparable damage, the cumulative effect of the City Defendants actions has deprived Plaintiffs of their right to freely operate their business pursuant to applicable zoning standards without enduring constant unwarranted harassment and penalty. Plaintiffs allege that the City Defendants, in conspiracy with Defendants Sharon Brown, Emily vonSwearingen and Michael Ensminger (the RiNo Defendants), have been trying to force them to curtail or end manufacturing in the district for years in order to enhance the value of the RiNo Defendants property and allow for additional residential development. Now that the City Defendants, in partnership with the RiNo Defendants, have successfully utilized D.R.M.C. 410(b)(2) (the Odor Ordinance) to penalize Plaintiffs, without proof of any wrongdoing, there is nothing to prevent them from continuing to do so. At least in the past, although it was unfair, expensive, time-consuming and distracting, Plaintiffs could defend themselves from the City Defendants attacks by establishing their compliance with all applicable noise and odor emission levels and that the unfounded complaints were improperly based on inapplicable residential or commercial standards. Under the Odor Ordinance, Plaintiffs have no means of defending themselves. A citation issued pursuant to this ordinance is deemed valid as long as the Department of Environmental Health (DEH) receives five complaints within a twelve hour period, regardless of whether the complaints are wholly manufactured. In fact, Plaintiffs were cited for violating the Odor Ordinance during a time period when Kasel Industries factory ovens were not even in operation. See Exhibit A hereto at 4 and 5 and Exhibit A-1. Thus, the power granted to the City under the Odor Ordinance is akin to permitting issuance of a traffic citation to a recipient whose car is parked in his garage. The result of the City Defendants utilization of the Odor Ordinance to cite Plaintiffs is a chilling effect on Plaintiffs right to freely operate their business. The gist of the City Defendants Motion is that the Court lacks subject matter jurisdiction because Plaintiffs claims are not justiciable. The City Defendants contend Plaintiffs do not have 2

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standing and their claims are not ripe because they have not suffered a deprivation of their right to use 3315 Walnut Street to the full extent of the propertys zoning classification. (ECF #18, at p.2). In advancing this argument, the City Defendants, either purposefully or erroneously, misrepresent the crux of Plaintiffs Amended Complaint.1 The property right at issue in the Amended Complaint is not Plaintiffs right to actual physical use of their property to the full extent of its zoning classification, but rather their right to do so freely, without being subjected to constant unwarranted inspections, investigations, and manufactured administrative and judicial proceedings prosecuted by the City Defendants in partnership with the RiNo Defendants. (ECF #5 at 51). While it is true Plaintiffs continue to use their property to manufacture pet treats, they are not able to do so without facing repeated administrative proceedings and the imposition of penalties of up to $2,000 per citation by the City Defendants for unsubstantiated odor complaints made by the RiNo Defendants. The two additional contentions in the City Defendants Motion (i) that the Court lacks subject matter jurisdiction over Plaintiffs civil conspiracy, defamation, abuse of process and injunctive relief claims because they are not based on the Constitution or federal statute (ECF #18, at p. 2) and (ii) that Plaintiffs constitutional and injunctive relief claims must be stricken because the zoning classification for 3315 Walnut Street was changed to I-MX- 3 in 2010 and the statute of limitations has run on any claim premised on an alleged change in the zoning classification for Plaintiffs property (ECF #18, at p. 2) -- are equally unfounded. First, the Court has supplemental jurisdiction over Plaintiffs state law based claims for civil conspiracy, defamation, abuse of process and injunctive relief, pursuant to 28 U.S.C. 1367(a), because the claims are so related to claims within the Courts original jurisdiction they form part of the same case or controversy. Second, although Plaintiffs never received prior notice of the Citys 2010 change to the zoning classification for their property, Plaintiffs constitutional and injunctive relief claims are not
1

Although they were not necessarily required to do so, perhaps if the City Defendants had met and conferred with Plaintiffs prior to the filing of their Motion any confusion on this issue would have been resolved.

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premised on this change and the City Defendants apparently concede that the 2010 change from I-2 to I-MX-3 did not change the odor emission standards applicable to Plaintiffs. (ECF#18, at pp. 2, 3 at 4, 6, 7) As such, the City Defendants statute of limitations argument based on a 2010 change in the zoning classification for the district is a complete red herring. As alleged in the Amended Complaint, the cumulative effect of the City Defendants unfair conduct toward Plaintiffs, including their most recent conspiracy with the RiNo Defendants to improperly use the facially unconstitutional Odor Ordinance to accomplish a coercive goal, and their defamation of Plaintiffs reputation as a means of generating support for their combined efforts, has been a deprivation of Plaintiffs civil rights. By their Amended Complaint, Plaintiffs seek compensation for these unlawful acts and to end the constant harassment so that they may quietly enjoy the use of their property as zoned. Plaintiffs are entitled to be treated fairly by the City Defendants in the same manner they presumably treat other property owners when they are not trying to surreptitiously oust them from their location to benefit the private interests of neighboring residents and developers. II. SUMMARY OF CLAIMS FOR RELIEF AGAINST THE CITY DEFENDANTS A. First Claim for Relief - Monell Claim

Pursuant to Monell v. Department of Social Services, 436 U.S. 658, (1978), Plaintiffs allege that the deprivation of their constitutional rights to equal protection, due process and freedom from unlawful takings and ex post facto laws, occurred as a result of implementation and execution of the policies, customs, or usages of the City and County of Denver. (ECF #5 at 56). B. Second Claim for Relief Equal Protection

Plaintiffs Second Claim for Relief alleges that Kasel Industries, although not a member of a protected class, has been singled out by the City Defendants for discriminatory treatment on an irrational and wholly arbitrary basis. (ECF #5 at 61 - 64). 4

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C.

Third Claim for Relief Due Process

As their Third Claim for Relief, Plaintiffs allege that, by unfairly penalizing Kasel Industries without substantiating the existence of odor emission violations and arbitrarily denying Plaintiffs their right to freely operate their business subject to the applicable odor emission standards, the City Defendants, acting under the color of law, and without adequate justification for their actions, deprived Plaintiffs of their respective vested property rights, without procedural and substantive due process as guaranteed by the Fourteenth Amendment. (ECF #5 at 68-69). Plaintiffs also allege that the Odor Ordinance, as enacted and enforced by the City Defendants, is facially unconstitutional. (ECF #18-1). Plaintiffs further allege that the Odor Ordinance is unconstitutional as applied to Kasel Industries. (ECF #5 at 69). D. Fourth Claim for Relief Deprivation of the Right to Be Free from Ex Post Facto Laws as Provided Under Article I, section 10 of the Constitution,

Plaintiffs allege the Odor Ordinance retroactively alters the standards applicable to Kasel Industries business activities and creates a new obligation by making it subject to punishment based on an additional, immeasurable, and indecipherable standard of five odor complaints in violation of the Constitutional prohibition against retrospective legislation. (ECF #5 at 73-74). E. Fifth Claim for Relief Unlawful taking in Violation of the Fifth Amendment

Plaintiffs allege that, by unfairly and unreasonably holding Kasel Industries to the arbitrary standard of having violated odor emission standards when the DEH receives five odor complaints within a twelve hour period - whether these complaints are verifiable or not - the City Defendants, acting under the color of law, deprived Plaintiffs of their respective vested property right to operate their business subject to the zoning classification for the district in which Kasel Industries is located without penalty. This amounts to an illegal regulatory taking without just compensation for the sole benefit of the private interests of the RiNo Defendants and other similarly situated private individuals in violation of the Takings Clause of the Fifth Amendment. (ECF #5 at 78). 5

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F.

Sixth Claim for Relief Civil Conspiracy

Plaintiffs allege that, as established by email communications by and between the City Defendants and the RiNo Defendants, the Defendants entered into an unlawful plan to manufacture and register unsubstantiated and false odor complaints in order that Kasel Industries would be found in violation of the Odor Ordinance and that this plan included the defamation of both Kasel, individually, and Kasel Industries as a business. (Exhibit A-2 and ECF #5 at 82-85). G. Seventh Claim for Relief Defamation

Plaintiffs allege the City Defendants and the RiNo Defendants defamed them by posting fliers describing Plaintiffs as pig ear manufacturers, which is false as Plaintiffs products at the time of the complaints were manufactured from fresh chicken, and labeling Kasel as an unethical businessman with a reckless disregard for his neighbors. (Exhibit A-3 and ECF #5 at 94-96). H. Eighth Claim for Relief Abuse of Process

Plaintiffs allege that the City Defendants and the RiNo Defendants improperly utilized the procedural tools, including the Odor Ordinance and DEHs administrative process, with the ulterior motive of having Plaintiffs penalized regardless of wrongdoing and the ultimate coercive goal of forcing Plaintiffs out of the district. (ECF #5 at 104-108). I. Ninth Claim for Relief Injunctive Relief

Plaintiffs seek to enjoin the City Defendants and the RiNo Defendants from continuing their defamatory campaign against them, including their solicitation of odor complaints from neighboring property owners and the City Defendants from repeatedly conducting unwarranted and harassing investigations and inspections of Plaintiffs factory. (ECF #5 at 112-119). III. LEGAL STANDARD The City Defendants have moved to dismiss all of Plaintiffs claims for relief, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction. They also moved to strike Plaintiffs 6

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First, Second, Third, Fourth, Fifth and Ninth Claims for relief pursuant to Fed.R.Civ.P. 12(b)(6). Because resolution of the jurisdictional question presented by the City Defendants is necessarily intertwined with the merits of the case, the Court is required to convert the City Defendants Rule 12(b)(1) motion into a Rule 12(b)(6) or Rule 56 summary judgment motion. Marxmiller v. Board of County Com'rs of Boulder County, 2012 WL 4049840, *1 (D.Colo), citing Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995). Relying on Holt, the Marxmiller Court recently described the standard of review for a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) as follows: Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion. However, a court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case. The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case. Id., citing Holt, 46 F.3d at 1003 (emphasis added). As explained in Martinez v. Napolitano, 2012 WL 1044621, *1 (D.Colo.), citing Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir.2000), the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.2 In this case, the City Defendants Rule 12(b)(1) motion is premised on their argument that

In cases where the jurisdictional issue depends on a statute wholly separate from the statute that provides the substantive claim, it is easy to see that the merits are not intertwined with the jurisdictional issue. Pringle, 208 F.3d at 1223, n. 2. In Holt, for example, the jurisdictional issue depended on the Flood Control Act of 1928, 33 U.S.C. 702c, while the underlying claim arose under the FTCA. Id.

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the Court lacks subject matter jurisdiction because the Plaintiffs have not been harmed. (ECF # 18, at p.2). In furtherance of this argument, the City Defendants have submitted an affidavit3, and other documents. (ECF #18-1 to ECF #18-10). However, resolution of the issue of the

existence of Plaintiffs injuries necessarily requires resolution of an aspect of Plaintiffs substantive claims. As such, the Court is required to convert the City Defendants Rule 12(b)(1) motion into a Rule 12(b)(6) or Rule 56 summary judgment motion. Marxmiller, 2012 WL 4049840, *1 (D.Colo). The standard of review for a Rule 12(b)(6) motion is that the Court must accept all the well pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff. David v. City & County of Denver, 101 F. 3d 1344 (10th Cir. 1990). Consistent with Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the Court must decide "whether the complaint contains `enough facts to state a claim to relief that is plausible on its face.'" A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Peiker Acoustic, Inc. v. Patrick Kennedy, 2010 WL 4977870 at *1 (D.Colo. 2010). In evaluating a Rule 12(b)(6) motion, the court may consider not only the Amended Complaint itself, but also documents incorporated therein by reference. Telllabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1180 (10th Cir. 2007).4 The Rule 56 summary judgment standard of review requires the Court to determine whether there is any genuine disputed issue of material fact and whether the moving party is entitled to

Plaintiffs are contemporaneously filing herewith Plaintiffs Evidentiary Objection to the Affidavit of Mike OFlarrety in Support of the City Defendants Motion to Dismiss.
4

Although the emails by and between the City Defendants and the RiNo Defendants were not attached to the Amended Complaint, they are referenced therein and their authenticity is not in dispute. As such, the Court may consider these emails substantiating Plaintiffs claims, as part of Plaintiffs allegations against the RiNo Defendants. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007) (internal quotation omitted). See Exhibit A-2.

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judgment as a matter of law. Pringle, 208 F.3d at 1223, citing McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.1998); Ciempa v. Ward, 150 Fed.Appx. 905, 907 (10th Cir.(2005) (Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.) Under Rule 56(f) a court may deny summary judgment or order a continuance when the nonmovant submits an affidavit averring that it possesses insufficient facts to oppose a summary judgment motion. Hackworth v. Progressive Casualty Ins. Co., 468 F.3d 722, 732 (10th Cir. 2006). The crux of Rule 56(f) is that summary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, n. 5 (1986). IV. LEGAL ARGUMENT Despite the City Defendants contentions to the contrary, Plaintiffs constitutional claims are not premised on a single application of the Citys Odor ordinance or on a change to the zoning classification for Plaintiffs property. The claims asserted by Plaintiffs in their Amended Complaint are based on injuries caused by the cumulative effect of years of harassment by the City Defendants and the RiNo Defendants which most recently culminated in the issuance of a citation to Plaintiffs, pursuant to the Odor Ordinance, based on wholly manufactured odor complaints. Rather than a single sweeping zoning change, the Odor Ordinance, as the latest in a long line particularized and antagonistic acts toward Plaintiffs, is an effort to take away, by legal process, defamation and intimidation, enough of the property rights afforded by the official zoning to make Kasel Industries production of dog treats unprofitable financially and emotionally. These actions have deprived Plaintiffs of their cognizable right to operate their business pursuant to applicable odor emissions without fear of being penalized for doing so. 9

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A.

Plaintiffs Claims against the City Defendants Are Justiciable

In determining whether a dispute, as framed by the parties, presents a justiciable controversy, courts focus on the twin questions of whether a plaintiff has standing to maintain action and whether the case is ripe for judicial review. Morally v. Marabella Partners, LLC, 2006 WL 2038388, *2 (D.Colo.) 1. Plaintiffs Have Standing to Assert Their Claims against the City Defendants

Plaintiffs meet all three requirements of Article III standing. First, they have suffered an injury-in-fact. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, (1992). Second, Plaintiffs injury is traceable to the challenged action of the City Defendants and the RiNo Defendants, rather than some third party not before the court. Id. And, third, a favorable decision by this Court will redress Plaintiffs injury. Id. As set forth above, Plaintiffs have undoubtedly been injured by the City Defendants invasion of a legally protected interest. Id. at 561. The legally protected interest that has been harmed by the conduct of the City Defendants is Plaintiffs right to use their property to the full extent of the propertys zoning classification without being subject to the constant unwarranted inspections, investigations, citation, and administrative and judicial proceedings. (ECF #5 at 51). Over the years, Kasel Industries has incurred lost production costs, lost profits and defense expenses, in an amount estimated to be over one million dollars, as a result of these unwarranted inspections, investigations and administrative and judicial proceedings. See Exhibit A at 7. Most recently, Plaintiffs have been fined and had to defend themselves before an administrative tribunal in connection with the Odor Ordinance citation. (ECF #18-5 to 18-9). The City

Defendants actions constitute an invasion of Plaintiffs particularized right to freely use their property to operate their business pursuant to applicable standards without penalty -- a right which is akin to an individuals right to the quiet enjoyment of their property. 10

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Additionally, as alleged in detail in the Amended Complaint (ECF#5, at 23-50) and further substantiated by email communications between the City Defendants and RiNo Defendants (Exhibit A-2), Plaintiffs injuries are the direct result of the actions of the City Defendants. Most recently, Plaintiffs citation under the Odor Ordinance is directly attributable the conspiracy entered between the City Defendants and the RiNo Defendants to improperly solicit unfounded odor complaints. (ECF #5 at 38-45 and Exhibit A-2). In order to utilize this latest weapon in the attack on Plaintiffs, the City needed the RiNo Defendants to both file unsubstantiated complaints and solicit at least two others to do so (using defamatory statements to generate support). Further, as enacted and enforced by the City Defendants, the Odor Ordinance is facially unconstitutional. The ordinance will always lead to constitutionally impermissible results and never lead to permissible ones because it permits the deprivation of property rights without any requirement for substantiation of the legitimacy of the basis for the nuisance complaint. (ECF #5 at 69 and ECF#18-1). The Odor Ordinance is also unconstitutional as applied to Kasel

Industries, because it allowed the City Defendants to penalize Kasel Industries without having to prove that Kasel Industries violated applicable objective odor emissions standards The enactment of the Odor Ordinance also constitutes a regulatory taking because the City Defendants have used it to take away Plaintiffs right to freely operate their business for the direct private benefit of the RiNo Defendants and similarly situated private individuals, including developers interested in converting Plaintiffs property for residential use. (ECF #5 at 79). Finally, if the Court were to find the City Defendants liable on Plaintiffs various claims, Plaintiffs injuries can be redressed though compensatory damages and injunctive relief. Plaintiffs can recover for the costs, damage to reputation and lost profits they have suffered. Further a determination by the Court that the Odor Ordinance is unconstitutional would prohibit the City

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Defendants and the RiNo Defendants from continuing to utilize it in the future to harass Plaintiffs and serve as a deterrent against future similar activity The City Defendants position on the issue of Plaintiffs injuries evidences their thousand cuts approach to dealing with the Plaintiffs. The City Defendants contend that Plaintiffs cannot show an injury in fact because they are still permitted to manufacture dog treats at their factory despite the 2010 change in the zoning classification for the district (ECF #18 at p. 2). Under the City Defendants view, as long as their individual acts of harassment have not caused Plaintiffs to shut down their business, no damage has been done. However, as the City Defendants point out in their brief, the zoning that permits the manufacture is subject to subject to the most restrictive applicable statute or ordinance, meaning, one supposes, whatever arbitrary restrictions the City wishes to impose. (ECF#18, at p.3). The City Defendants disregard the cumulative damage caused by their historic mistreatment of Plaintiffs, including the direct and indirect costs associated with lost production, with continually defending against the barrage of attacks pursued under color of law and otherwise, the harm to Ray Kasels reputation, the chilling effect on Plaintiffs use of their property due to having to constantly be on guard against the next attack, and the recent injuries caused by their use of the Odor Ordinance to penalize Plaintiffs without any evidence of wrongdoing, which include both a monetary penalty and the cost of defending against the citation. The City Defendants further argument that Plaintiffs injuries are not traceable to the challenged action of the City Defendants because the City Defendants are legally powerless to change Plaintiffs zoning classification (ECF #18, at p 8) is equally misguided. To repeat, Plaintiffs are not alleging they were injured by a de jure change to their zoning classification. By unfairly penalizing Kasel Industries for unsubstantiated complaints the City Defendants arbitrarily denied Plaintiffs their right to operate within the parameters of the applicable zoning classification. In essence, the City Defendants have taken away with one hand (the Odor Ordinance and its 12

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conspiracy to generate unfounded complaints to enforce it) the ability of the Plaintiffs to use, enjoy and profit from what the City Defendants ostensibly have permitted with the other through the industrial zoning classification. In doing so, the City Defendants have deprived Plaintiffs of their rights to due process. (ECF #5 at 68). In this one instance, due process should have afforded Plaintiffs the opportunity to prove they could not have been guilty of any wrongdoing by establishing the factorys ovens were not even in use at the time when the alleged odor complaints were registered. See Exhibit A at 4 and 5; Exhibit A-1. That opportunity was denied, and, except for this lawsuit, there is nothing preventing the City Defendants, with the cooperation of the RiNO Defendants, from denying that opportunity again, repeatedly, in the future. 2. Plaintiffs Claims against the City Defendants Are Ripe for Judicial Review

The [r]ipeness doctrine addresses a timing question: when in time is it appropriate for a court to take up the asserted claim. Entek GRB, LLC v. Stull Ranches, LLC., 2012 WL 4478808, *2, (D.Colo.), citing ACORN v. City of Tulsa, Okla., 835 F.2d 735, 738 (10th Cir.1987). Courts employ a two-factor test to determine whether an issue is ripe. First, the Court evaluates the fitness of the issue for judicial resolution, and second, the hardship to the parties of withholding judicial consideration. New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995). In determining whether an issue is fit for judicial review, the central focus is on whether the case involves uncertain or contingent future events that may not occur as anticipated, or at all. Id. In assessing the hardship to the parties of withholding a ruling, the Court must determine if the challenged actions or allegations create a direct and immediate dilemma for the parties. Id Plaintiffs claims against the City Defendants are without a doubt ripe for review. The dispute between Plaintiffs and the City Defendants is not hypothetical, nor does it hinge on uncertain future events. The City Defendants have deprived Plaintiffs of their property rights for years and, the most recent citation issued by the City Defendants pursuant to the Odor Ordinance 13

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has been upheld by the Board of Environmental Health. (ECF 18-9). The injury to Plaintiffs has been inflicted and there are no contingent future events that would potentially nullify Plaintiffs claims. The only unknown aspect of this case is whether the City Defendants, in alliance with the RiNo Defendants, will be allowed to continue their ongoing harassment of the Plaintiffs and eventually succeed in their goal of forcing Plaintiffs to cease manufacturing. The issues are ripe, and resolution now is essential to protect Plaintiffs rights. B. The Court Has Supplemental Jurisdiction over Plaintiffs Non-Federal Claims.

Under 28 U.S.C. 1367(a), in any civil action where the district courts have original jurisdiction, the courts can have supplemental jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article 111 of the United States Constitution. The exercise of supplemental jurisdiction promotes fairness and judicial economy, and complements the liberal joinder rules of the Federal Rules of Civil Procedure. See Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute-A Constitutional And Statutory Analysis, 24 h z . ST. L.J. 849, 864 (1992). In this case, the Court has original jurisdiction, pursuant to 42 U.S.C. 1983, over Plaintiffs claims to challenge the unconstitutional acts, policies, practices, and/or customs of the City Defendants which have deprived Plaintiffs of their right to equal protection and due process, as provided by the Fourteenth Amendment, and their right to be free from an unlawful taking of their vested property rights for private use, prohibited by the Fifth Amendment, and their right under Article 1, Section 10 of the Constitutional to be free from ex post facto laws. The Court also has original jurisdiction over Plaintiffs Ninth Claim for Relief pursuant to F.R.C.P. 65. Plaintiffs pendant state law claims for civil conspiracy, defamation, abuse of process, and injunctive relief are based on the exact same set of facts and are wholly related to Plaintiffs federal claims. Therefore, because Plaintiffs First, Second, Third, Fourth, Fifth and Ninth 14

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Claims for Relief are within the Courts original jurisdiction, the Court may exercise supplemental jurisdiction over Plaintiffs Sixth, Seventh and Eighth Claims for Relief even absent an independent basis for subject matter jurisdiction over these claims. C. Plaintiffs Claims Are Not Premised on the 2010 Change to the Zoning Classification Applicable to Plaintiffs Property.

The City Defendants also move, pursuant to Rule 12(b)(6), to strike Plaintiffs First, Second, Third, Fourth, Fifth and Ninth Claims for Relief on the grounds that these claims fail to state a claim for relief because they are based on outdated and incorrect information in light of the fact that the Denver City Council enacted a new zoning code in June 2010 and the classification for Plaintiffs property was changed from I-2 to I-MX-3. (ECF #18, at p.12). The City Defendants further contend that the statute of limitations has run on any claim premised on any alleged change in the subject propertys zoning classification. Id. Again, the City Defendants either purposefully or mistakenly misunderstand Plaintiffs position. Although Plaintiffs never received notice of the 2010 changes to zoning classification for their property, providentially Plaintiffs First, Second, Third, Fourth, Fifth and Ninth Claims for Relief are not premised on, or dependent in any way on, these changes. The City Defendants

statute of limitations argument is a complete red herring because, as alleged in the Amended Complaint, Plaintiffs do not find fault with their own zoning classification. Plaintiffs complaints arise from the fact that the RiNo Defendants, with the aid and approval of the City, illegally moved into the district and then, despite having agreed to assume the burden of mitigating any odor issues, joined in alliance with the City Defendants to try to force Plaintiffs to comply with noise and odor emissions standards applicable to residential and commercial uses. Then, when the alliances efforts proved unsuccessful, because Plaintiffs were, at all times, using their property within the permissible parameters of the districts industrial zoning classification, the City Defendants and the RiNo Defendants conspired to improperly utilize the arbitrary five complaints standard in the 15

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Citys Odor Ordinance to penalize Plaintiffs. If, contrary to their assertions in their Motion, the City Defendants and the RiNo Defendants would simply permit Plaintiffs to operate within the zoning restrictions applicable to their property, without constant unwarranted harassment and fear of prosecution for odor violations even when the ovens are not operating, this matter would not be before the Court. V. CONCLUSION Plaintiffs conducted their manufacturing operations without discord up until the time the City allowed the RiNo Defendants to illegally move into the industrial zoned area. The City then created the present conflict by not holding the RiNo Defendants to their commitment to mitigate any odor issues, but instead favoring the RiNo Defendants interests over Plaintiffs by unfairly requiring Plaintiffs to meet inapplicable odor emission standards and then forcing Plaintiffs to incur the expense of defending themselves against the imposition of these inapplicable standards. By their conduct, the City Defendants caused Plaintiffs injuries and yet they now disingenuously ask the Court to dismiss Plaintiffs claims because they do not believe they have caused Plaintiffs any harm. When this Court considers the true allegations contained in Plaintiffs Amended Complaint, rather than the City Defendants intentional or unintentional misinterpretation of these allegations, and the facts available at this juncture of the proceedings which underlie these allegations, it must summarily deny the City Defendants Motion to Dismiss the Amended Complaint because Plaintiffs have stated plausible claims for relief against the City Defendants for deprivation of their constitutional rights to equal protection, due process and to be free from unlawful takings of their property and ex post facto laws, as well for unlawful civil conspiracy, defamation, abuse of process, and for injunctive relief.

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If the Court is not inclined, for any reason to deny the City Defendants Motion to Dismiss, Plaintiffs request, pursuant to Rule 56(f), that the Court order a continuance to allow Plaintiffs an opportunity to conduct discovery essential to their opposition to the motion. See Exhibit B hereto. Genuine disputed issues of material fact exist in this case and it would be premature for the Court to grant the City Defendants judgment as a matter of law before allowing Plaintiffs the opportunity to conduct discovery with regard to certain facts essential to Plaintiffs opposition to the City Defendants Motion to Dismiss the Amended Complaint. This case has only recently become at issue. Id. There has been no discovery conducted to date. Id. Significantly, there is a substantial amount of evidence related to Plaintiffs claims against the City Defendants which is exclusively within the control of the City Defendants. Id. Plaintiffs should be given sufficient time to conduct discovery as to these relevant facts. Specifically, Plaintiffs need additional time to serve written discovery including, interrogatories, request for admission and requests for production of documents on the City Defendants, as well as time to take the depositions of the individual City Defendants, including Judy Montero, Douglas Linkhart, Stephanie Syner, Gary Lasswell and Benjamin Siller, as well as the depositions other percipient witnesses. For all of the above reason, Plaintiffs respectfully request that the Court deny the City Defendants Motion to Dismiss the Amended Complaint. Respectfully submitted this 10th day of December, 2012.
CAMPBELL KILLIN BRITTAN & RAY, LLC

By: s/ Richard O. Campbell Richard O. Campbell, #3257 Phillip Parrott, # 11828 Margaret R. Pflueger, #39780 ATTORNEYS FOR PLAINTIFFS KASEL ASSOCIATES INDUSTRIES, INC. and RAY KASEL

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CERTIFICATE OF SERVICE I hereby certify that on December 10, 2012, a true and correct copy of the foregoing PLAINTIFFS RESPONSE TO THE CITY DEFENDANTS MOTION TO DISMISS THE AMENDED COMPLAINTwas electronically filed and served using the CM/ECF system which will send notification of such filing to the following: Joseph Rivera Assistant City Attorney Litigation Section Denver City Attorney's Office 201 West Colfax Avenue, Dept. 1108 Denver, CO 80202 And via email to: Randall Paulsen Paulsen & Armitage, LLC 8704 Yates Dr. Suite #100 Westminster CO, 80031 And via U.S. mail to: Emily vonSwearingen 3377 Blake Street, #209 Denver, CO 80205 Michael Ensminger 3377 Blake Street, #208 Denver, CO 80205

s/Bridget Duggan Bridget Duggan, Paralegal

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