Case 1:18-cv-00467-RBJ Document 37 Filed 10/18/18 USDC Colorado Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson

Civil Action No 18-cv-00467-RBJ

SAMUEL K. GILES,

Plaintiff,
v.

ALTO PARTNERS, LLLP,

Defendant.

ORDER on MOTION TO DISMISS

Samuel K. Giles rents an apartment in the Terrace Gardens Apartments which is owned

by the Adams County Housing Authority (“ACHA”). ACHA provides subsidized housing for

qualified residents of Adams County. In October 2017 ACHA informed the residents that they

might be displaced by further development of the site for additional housing. However, they

could apply to relocate to a new development called Alto Apartments and avoid any

displacement in the future.

Mr. Giles applied and designated unit #215 as his unit of choice, but his application was

not accepted. The general partner of the new development, Alto Partners, LLLP, advised him

that the documentation he submitted concerning his income was insufficient to establish that he

was qualified to transfer to the new facility. 1 Claiming that this was a pretext for discrimination,

Mr. Giles, an African-American gentleman, filed this lawsuit on February 26, 2018, seeking to

prevent the defendant from leasing or selling unit #215 to anyone other than himself. In his

1
In a second lawsuit, discussed infra, Mr. Giles alleges that ACHA is the sole member of Alto GP, LLC,
which in turn is the general partner of the Alto Partners, LLLP, which owns the Alto Apartments
development. ECF No. 20-5 at ¶10.
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Amended Verified Complaint he asserts seven claims for relief: (1)-(4) violation of the Fair

Housing Act of 1968, brought under Title VIII of the Civil Rights Act of 1968; (5) breach of

contract; (6) breach of the covenant of good faith and fair dealing; and (7) unlawful and unfair

housing practices under Colo. Rev. Stat. § 24-34-502. ECF No.8.

INJUNCTION HEARING

Mr. Giles filed a motion for a temporary restraining order and a preliminary injunction. I

declined to hear the matter ex parte but scheduled a hearing after the defendant was served.

Defense counsel representing both Alto Partners and the ACHA appeared together with Zach

Guerin and Sylvia Anderson of the ACHA, now doing business as Unison Housing Partners.

Mr. Giles appeared on his own behalf.

I was under the misimpression that Mr. Giles’ concern was that he was about to be

evicted from his apartment. However, Mr. Guerin informed the Court that nothing will happen

in the next five to eight years. Transcript, ECF No. 15, at 5. Mr. Giles indicated that the urgency

is not fear of eviction but that the Alto Apartments building is filling up. Mr. Guerin assured the

Court that Mr. Giles will be a welcome resident at the new community, noting that he has been

an excellent tenant who always has paid his rent on time and follows the rules and policies.

However, his application has not yet been accepted because he has not established that he meets

the minimum income requirements for a unit in the new building. Id. at 8-9.

Mr. Guerin explained that although the new apartment building provides affordable

housing, the rent is higher than at the Terrace Garden Apartments. The rent at the new building

is $1,134 a month or $13,608 a year. Therefore, all applicants must show that they have income

of at least 2.5 times their rent, i.e., at least $34,020. Mr. Giles, who is self-employed as a

consultant to small businesses on intellectual property issues, submitted some documentation,

but it did not show that he met the income requirement. Id. at 8-10. He informed the Court that

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he had not yet done his taxes, but “I’m anticipating about $30,000.” Id. at 11. By his own

statement, then, he did not qualify for an apartment in the new building. A further complication

is that the specific unit Mr. Giles wants had been offered to a family of four, which was qualified

and ready to move in. Mr. Guerin assured the Court that when Mr. Giles qualifies financially

ACHA will be happy to approve an application from him. Id. at 14-16.

Mr. Giles argued that ACHA has not followed proper authorities and guidelines for

determination of income. He agreed, however, with the Court’s comment that “[t]hat’s a

different lawsuit than the one you filed.” Id. at 16. In response to the Court’s question about

racial discrimination, Mr. Giles indicated that he had learned about discrimination in

employment and housing, and “what I’ve learned is that there’s many times pretext.” Id. The

Court pointed out that he has been a tenant in an ACHA apartment for years, is viewed as a

model customer, and will be approved if he shows qualifying income. Id. at 16-17. In response

to a question from the Court, Mr. Guerin indicted that at least 20% of the units in the new

building have been rented to African-American individuals. “It’s a melting pot there, Your

Honor.” Id. at 17. At that point it was obvious to me that there was no basis for a temporary

restraining order or a preliminary injunction at that time and the “hearing” was concluded.

SECOND AND THIRD LAWSUITS

On March 21, 2018, just six days after this Court denied the motion for a temporary

restraining order and preliminary injunction, Mr. Giles filed another suit in this district. Giles v.

Adams County Housing Authority, No. 18-cv-00677. As in this case Mr. Giles sought

declaratory and injunctive relief, including a temporary restraining order and a preliminary

injunction, to prevent the ACHA from leasing or selling unit 215 in the Alto Apartments to

anyone other than him. He asserted the same seven claims for relief. ECF Nos. 20-5 and 20-6.

The case was assigned by the Clerk’s Office to me. On April 6, 2018 Mr. Giles filed a notice of

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voluntary dismissal of the case without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(1).

ECF No. 20-7.

Mr. Giles filed a third lawsuit against ACHA, this time in the Adams County District

Court. See ECF No. 20-8. He sought the same equitable relief, including a temporary

restraining order and preliminary injunction precluding ACHA from leasing or selling unit 215

to anyone but him. ECF No. 20-9. It is different in that it omits the claims for violation of the

Fair Housing Act of 1968 and instead asserts additional claims of unlawful and unfair housing

practices contrary to Colo. Rev. Stat. § 24-34-502. Id. at 6-12. However, on April 9, 2018 Mr.

Giles filed a notice of voluntary dismissal of this third lawsuit without prejudice pursuant to

Colo. R. Civ. P. 41(a)(1)(A). ECF No. 20-10.

MOTION TO DISMISS

Defendant moves to dismiss for failure to state a claim upon which relief can be granted

pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 20. Unlike the typical Rule 12(b)(6) motion,

however, this motion is based on Mr. Giles’ dismissals of his second and third lawsuit and the

“two dismissal rule.”

Rule 41(a)(1) of the Colorado Rules of Civil Procedure provides that dismissal of a

lawsuit upon the filing of a notice of dismissal “is without prejudice, except that a notice of

dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once

previously dismissed in any court an action based on or including the same claim.” 2 Defendant

asserts that Mr. Giles was engaged in forum shopping. Specifically, to the rule, defendant argues

that because Mr. Giles’ Adams County action was based on the same substantive claims as his

second federal action, and he voluntarily dismissed both cases, the Adams County dismissal

became an adjudication upon the merits, which in turn bars further prosecution of the present

2
Federal Rule 41(a)(1) contains the same language.
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case due to claim preclusion. ECF No. 20 at 4-8. In response Mr. Giles denies that he was

engaged in forum shopping and offers explanations as to why he filed (but not why he

voluntarily dismissed) his second and third lawsuits. ECF No. 27 at 3.

I conclude that I need not determine evaluate Mr. Giles’ motives because the

“adjudication on the merits” does not have the effect defendant would have me give it. In

support of its position defendant cites Sieverding v. Colo. Bar Ass’n, No. 02-cv-1950-EWN-

OES, 2003 WL 22400218 (D. Colo. Oct. 14, 2003), aff’d 126 F. App’x 457 (10th Cir. 2005)

(unpublished). Plaintiffs voluntarily dismissed the same case twice. Citing Rule 41(a) and

finding that the second dismissal was an adjudication on the merits, the magistrate judge

concluded, “[t]he result of plaintiffs’ ‘second bite of the apple’ was to forever preclude them

from ever bringing the same claims again in any court.” Id. at *14.

Significantly, Sieverding did not involve an effort to use an “adjudication upon the

merits” to bar a previous lawsuit that was still pending when the second and third lawsuits were

filed and dismissed. Defendant does not cite any case involving facts like the present case, nor

have I found any such case. That does not mean that the defendant’s position is wrong. But two

cases cited by Mr. Giles in his response, while not directly on point, persuade me that the present

case need not be dismissed because of claim preclusion.

In Styskal v. Weld County Board of County Commissioners, 365 F.3d 855 (10th Cir.

2004) the district court dismissed plaintiff’s state law claims with prejudice for lack of

supplemental jurisdiction. On appeal plaintiff argued that the dismissal should have been

without prejudice so that she could pursue the claims in state court. The Tenth Circuit

determined that the distinction was “beside the point” because “whether claim preclusion

prevents a state lawsuit will depend upon the basis of the federal court’s dismissal, not the

nomenclature employed by the federal court to describe the dismissal.” Id. at 859.

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Notably, in getting to that result, the court discussed the Supreme Court’s decision in

Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001). There the question was

whether a California federal court’s dismissal of the plaintiff’s claim on statute of limitations

grounds barred plaintiff’s identical claim filed in Maryland state court. The defendant argued

that the federal court’s dismissal operated as an “adjudication upon the merits” under Federal

Rule 41(b). The Court did not disagree. However, it noted that the phrase “adjudication upon

the merits” “has come to be applied to some judgments . . . that do not pass upon the substantive

merits of a claim,” and that “it is no longer true that a judgment ‘on the merits’ is necessarily a

judgment entitled to claim-preclusive effect.” Id. at 502, 503. Thus, per the Tenth Circuit, “the

phrase ‘adjudication upon the merits’ in Rule 41(b) does not mean that the judgment must result

in claim preclusion.” Styskal, 365 F.3d at 858.

Those cases cast doubt on the proposition that an “adjudication upon the merits” under

the two-dismissal rule necessarily has claim preclusion effect, particularly where an

“adjudication upon the merits” under Rule 41(a)(1) in state court is claimed to require the

dismissal of a federal court suit that was already pending when the state court suit was filed and

dismissed. In sum, I am not convinced that in that circumstance the “adjudication upon the

merits” requires this Court to dismiss the present case.

ORDER

For the foregoing reasons, defendant’s motion to dismiss, ECF No. 20, is DENIED.

BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge