Opinion
Civil Action No. 11-cv-01761-RPM.
September 19, 2011
ORDER ON MOTIONS
In the First Amended Complaint, filed July 10, 2011, the plaintiff alleges a claim for retaliation under Title VII of the Civil Rights Act of 1964, as amended, in the first claim for relief; a violation of 42 U.S.C. § 1981 in the second claim for relief against the School District and a violation of that statutory provision against Patrick Sanchez in the third claim for relief. On August 11, 2011, the defendants filed a pleading designated Motion to Dismiss or in the Alternative Motion to Stay Litigation, attached exhibits reflecting adjudicative proceedings before the Colorado Civil Rights Commission and a notice of appeal to the Colorado Court of Appeals by the School District, seeking review of a final order ruling in favor of Carlos Bassatt that the District engaged in retaliation in violation of the Colorado anti-discrimination statute. Strangely, the motion to dismiss asserts that the plaintiff's claims in this case are barred by collateral estoppel and alternatively, asks for a stay of this action pending resolution of the appeal. The plaintiff responded to the defendants' motion by moving to strike it or consider it a motion for summary judgment. The defendants replied on September 15, 2011.
These pleadings by the defendants are procedurally irregular. A collateral estoppel is a form of res judicata which is an affirmative defense under Fed.R.Civ.P. 8(c). It is now
ORDERED that the defendants' Motion to Dismiss or in the Alternative Motion to Stay Litigation is denied; the plaintiff's motion to strike or to construe the motion to dismiss as a motion for summary judgment is moot and it is
ORDERED that the defendants will answer the amended complaint by October 10, 2011.