Kelso v. RICKENBAUGH CADILLAC CO.
2011 Colo. App. LEXIS 1395
| Colo. Ct. App. | 2011Background
- Kelso received a 2008 EEOC right-to-sue notice for Title VII claims against Rickenbaugh.
- Kelso filed a first Title VII action in Denver District Court on 9/15/2008 within 90 days of the notice.
- A district court delay-reduction order required Kelso to set trial within 30 days after case issue; the case became at issue 12/15/2008.
- Kelso failed to set for trial; the district court dismissed the first case without prejudice on 2/17/2009; Kelso did not appeal.
- Kelso sought to reinstate in 10/2009 and again in 12/2009; both motions were denied (11/4/2009 and 2/4/2010) without timely appeal.
- Kelso filed a second, separate complaint on 3/15/2010 (case 10CV2139) alleging the same Title VII claims; Rickenbaugh moved to dismiss with prejudice on 5/13/2010; the district court granted the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second case was timely under relation back. | Kelso argues the second filing relates back to the first complaint. | Rickenbaugh contends the second filing is a new action, not an amendment, so relation back does not apply. | Second filing did not relate back; timely filing not established. |
| Whether the second case can be an independent equitable action. | Kelso contends the second suit seeks independent equitable relief from the first dismissal. | Rickenbaugh argues independent equitable relief does not apply since the second filing asserts the same Title VII claim. | No independent equitable action; not authorized given lack of proper pleading and remedy. |
| Whether the first dismissal violated C.R.C.P. 121 and required refiled action. | Kelso asserts procedural defects in the first dismissal justify refiling. | Rickenbaugh maintains timely appellate relief was available and not pursued. | Not reviewable; improper as independent equitable action and relation back issues control. |
| Whether policy favoring merits over delay warrants relief. | Kelso emphasizes merits-based resolution should prevail over procedural dismissal. | Rickenbaugh emphasizes finality and procedural rules to prevent endless refiling. | Policy considerations do not overcome timely and properly pleaded dismissal rules. |
Key Cases Cited
- Forbes v. Goldenhersh, 899 P.2d 246 (Colo.App.1994) (persuasive on relation back when pleading in same action (Colorado rule resembles federal))
- O'Donnell v. Vencor Inc., 466 F.3d 1104 (9th Cir.2006) (relation back does not apply to new separate complaint)
- Bailey v. N. Indiana Pub. Serv. Co., 910 F.2d 406 (7th Cir.1990) (relation back limited to amended pleadings in same action)
- Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992 (8th Cir.1989) (second complaint cannot be treated as amendment to dismissed suit)
- Mishkin v. Young, 198 P.3d 1269 (Colo.App.2008) (adequate appellate remedy available; independent equitable action not appropriate)
- Atlas Constr. Co. v. Dist. Court, 197 Colo. 66, 589 P.2d 953 (1979) (independent equitable action sustained to correct prior judgment)
- Wyler/Pebble Creek Ranch v. Colo. Bd. of Assessment Appeals, 883 P.2d 597 (Colo.App.1994) (appeals and relief standards in administrative contexts)
- Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402 (Colo.App.2004) (appellate review can affirm on alternative grounds)