Aspen Orthopaedics & Sports Medicine, LLC v. Aspen Valley Hospital District

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 22 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ASPEN ORTHOPAEDICS & SPORTS
MEDICINE, LLC, a Colorado limited
liability corporation; GARY BRAZINA,
M.D.;STEVEN NADLER, M.D.,

Plaintiffs - Appellees,
No. 02-1022
v.

ASPEN VALLEY HOSPITAL DISTRICT, a
Colorado corporation,

Defendant - Appellant,

and

ORTHOPEDIC ASSOCIATES OF ASPEN
AND GLENWOOD SPRINGS, P.C., a
Colorado professional corporation; JOHN
FREEMAN, M.D.,individually and as Chief
Executive Officer and owner and member of
Orthopedic Associates of Aspen and
Glenwood Springs, P.C.; ROBERT
HUNTER, M.D.; THOMAS PEVNY, M.D.;
MARK PURNELL, M.D., individually and
as owners and members of Orthopedic
Associates of Aspen and Glenwood Springs,
P.C.;ASPEN EMERGENCY MEDICINE,
P.C., a Colorado professional corporation;
JOHN “BUD” GLISSMAN, M.D.,
individually, as Chief Executive Officer, as
an owner and member of Aspen Emergency
Medicine, P.C. and as Director of the
Emergency Department at Aspen Valley
 Hospital; J. STEVENS AYERS, D.O.;
MARION BERG, M.D.;CHRISTOPHER
MARINEZ, M.D., individually and as
owners and members of Aspen Emergency
Medicine, P.C.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D. Ct. No. 99-S-1763)

Katherine Taylor Eubank (Daniel M. Fowler, with her on the briefs), Fowler,
Schimberg, & Flanagan, P.C., Denver, Colorado, appearing for Appellant.

Brian E. Bates, Antonio Bates Bernard Professional Corporation, Denver,
Colorado (Sander N. Karp and Julie C. Berquist, Leavenworth & Karp, P.C.,
Denver, Colorado, and Thomas P. McMahon, Powers Phillips, P.C., Denver,
Colorado, with him on the brief), appearing for Appellee.

Before TACHA, Chief Circuit Judge, ANDERSON, and BRISCOE, Circuit
Judges.

TACHA, Chief Circuit Judge.

Defendant-Appellant Aspen Valley Hospital District (“the Hospital”) brings

this interlocutory appeal of the district court’s denial of its claim that the

Colorado Governmental Immunity Act grants it immunity from suit. We consider

two issues on appeal. First, do we have subject matter jurisdiction to hear

interlocutory appeals from the denial of immunity from suit when state law

-2-
creates the immunity? Second, did the district court correctly hold that the

Colorado Governmental Immunity Act does not provide the Hospital with

immunity from suit? We hold that this Court has subject matter jurisdiction to

hear the appeal and we REVERSE in part and REMAND in part, pursuant to the

notice provisions of the Colorado Governmental Immunity Act.

I. Background

This case comes to us from a motion to dismiss. The facts as stated in the

Amended Complaint follow. 1 Doctors Brazina and Nadler relocated to the Aspen,

Colorado area in 1996 to establish an orthopedic practice. At that time, only two

emergency medical facilities existed in the Aspen area: the Hospital, which is a

governmental entity of the State of Colorado, and the Snowmass Clinic, which is

privately owned by Orthopedic Associates and Aspen Emergency Medicine, P.C.

Orthopedic Associates, a defendant in the case below but not before us on appeal,

was the sole provider of orthopedic services in Aspen prior to the Plaintiffs’

arrival. Aspen Emergency Medicine, P.C., again a defendant in the case below

but not before us on appeal, has an exclusive contract with the Hospital to run the

Hospital’s emergency room and to make patient referrals.

1
Plaintiff-Appellees are Dr. Gary Brazina and Dr. Stephen Nadler, both
orthopedic surgeons, and their company, Aspen Orthopaedics & Sports Medicine,
LLC. We refer to all three Appellees as “the Plaintiffs,” and to “Doctor Brazina,”
“Doctor Nadler” and “A.O.S.M.” when we reference the Appellees individually.

-3-
 Resistance emerged to the opening of the Plaintiffs’ practice in the summer

of 1996. For example, a member of Orthopedic Associates stated at that time that

the Plaintiffs would “‘starve’ in the Aspen area and . . . ‘never’ get referrals from

the Emergency Department . . . at the Hospital.” In the fall of 1996, Doctors

Brazina and Nadler sought staff privileges at the Hospital, which it only granted

after an unduly extensive credentialing process.

After Doctors Brazina and Nadler obtained credentials, the Plaintiffs sought

to obtain orthopedic referrals from the Snowmass Clinic and the Hospital.

Because Orthopedic Associates partially owned the Snowmass Clinic, it refused to

make referrals to the Plaintiffs. The Hospital’s internal policy mandated that it

refer patients to the orthopedic surgeon on-call. Nevertheless, the Aspen

Emergency Medicine, P.C., doctors, who ran the Hospital’s emergency room,

referred all patients to Orthopedic Associates. On an unspecified date, A.O.S.M.

registered a complaint with the Hospital regarding this failure to refer patients.

In the winter or early spring of 1997, the Hospital, using public funds,

opened a new facility, the Midvalley Medical Center. The Plaintiffs attempted to

rent space in this new facility, but the Hospital signed an exclusive lease with

Orthopedics Associates and granted it management rights over the surgery center

at the new facility. As manager of the Midvalley Medical Center, Orthopedics

Associates refused to grant Doctor Nadler staff privileges. On April 29, 1997,

-4-
“A.O.S.M. presented the issue of its exclusion from the [Midvalley Medical

Center] to the Board of [the Hospital].”

The Plaintiffs subsequently filed a twenty-one count complaint alleging

violations of the Sherman Act, state antitrust laws, breach of contract, and tort

claims. The district court acquired subject matter jurisdiction over the Sherman

Act claims pursuant to 28 U.S.C. § 1337 and took supplemental jurisdiction over

the state law claims pursuant to 28 U.S.C. § 1367.

Of interest to this interlocutory appeal, the Plaintiffs brought three tort

claims against the Hospital. Count XIII alleges that the Hospital was negligent in

not enforcing its patient referral policy. Count XVI alleges the Hospital was

negligent in subjecting Doctors Brazina and Nadler to an overly burdensome

credentialing process. And Count XVIII alleges that the Hospital tortiously

interfered with prospective business relationships between the Plaintiffs and

orthopedic patients. 2

The Hospital filed a motion to dismiss on several grounds, which was

referred to a magistrate judge. At issue here, the Hospital argued that, with

regard to the three tort claims, it was immune from suit pursuant to the Colorado

Governmental Immunity Act (“CGIA”). See Colo. Rev. Stat. § 24-10-101 et seq.

2
Presumably, Count XVIII references the Hospital’s failure to lease space
at the Midvalley Medical Center as well as its failure to refer patients from the
emergency room of the Hospital, but this is unclear.

-5-
The magistrate judge recommended denial of the Hospital’s motion because the

CGIA waived immunity for the claims alleged by the Plaintiffs. Upon de novo

review, the district court agreed with the magistrate judge’s analysis and denied

the Hospital’s motion to dismiss. This interlocutory appeal followed.

II. Discussion

A. Standard Of Review

“The court’s function on a Rule 12(b)(6) motion is not to weigh potential

evidence that the parties might present at trial, but to assess whether the

plaintiff’s complaint alone is legally sufficient to state a claim for which relief

may be granted.” Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226,

1236 (10th Cir. 1999) (quotation omitted). We accept all well-pleaded factual

allegations in the complaint as true and view them in the light most favorable to

the nonmoving party. Id. Since legal sufficiency is a question of law, we review

the district court’s disposition of a Rule 12(b)(6) motion de novo. Id.

B. Subject Matter Jurisdiction Over Interlocutory Appeals Challenging The

Denial Of State Law Created Immunity From Suit

We find that we have subject matter jurisdiction to hear the Hospital’s

appeal from the district court’s denial of its state-law immunity from suit. This

conclusion derives from a combination of the teachings of Erie Railroad Co. v.

Tompkins, 304 U.S. 64 (1938), and the collateral order doctrine. Thus, “while

-6-
state law governs the applicability of immunity to state law claims, federal law

determines the appealability of the district court's order . . . .” Sheth v. Webster,

145 F.3d 1231, 1236 (11th Cir. 1998) (citations and internal quotations omitted).

Every circuit to address this issue, either in pendent or diversity jurisdiction,

applies the same analysis used in Sheth. See, e.g., Napolitano v. Flynn, 949 F.2d

617, 621 (2nd Cir. 1991); Brown v. Grabowski, 922 F.2d 1097, 1106-07 (3rd Cir.

1990); Gray-Hopkins v. Prince George's County, Maryland, 309 F.3d 224, 231-32

(4th Cir. 2002); Sorey v. Kellett, 849 F.2d 960, 961-62 (5th Cir. 1988); Marrical

v. Detroit News, Inc., 805 F.2d 169, 172-74 (6th Cir. 1986). Although this Court

has yet to adopt formally the reasoning employed in these cases, we have

implicitly applied this analysis in our previous decisions. See, e.g., Decker v.

IHC Hosp., Inc., 982 F.2d 433, 435-37 (10th Cir. 1992) (applying this analysis to

question of immunity under Utah law). We make our holding explicit in this case

and adopt the reasoning of the other circuits.

Applying this analysis in the instant case is straightforward. Pursuant to

the federal collateral order doctrine, we have subject matter jurisdiction to hear

“appeals of orders denying motions to dismiss where the motions are based on

immunity from suit.” Decker, 982 F.2d at 435. State law governs the scope of

the immunity at issue (i.e., whether the immunity is ‘immunity from suit’ or

merely ‘immunity from liability’). See Gray-Hopkins, 309 F.3d at 231 (“We must

-7-
look to substantive state law . . . in determining the nature and scope of a claimed

immunity.”). The CGIA, as applied to governmental entities such as the Hospital,

offers immunity from suit. Padilla v. School Dist. No. 1, 25 P.3d 1176, 1180

(Colo. 2001) (en banc) (absent a statutory exception the “CGIA establishes

immunity from suit for public entities”). Because the CGIA grants the Hospital

immunity from suit, we have subject matter jurisdiction to hear this appeal

pursuant to the federal collateral order doctrine.

The Plaintiffs’ objections to this conclusion are unpersuasive. First, the

Plaintiffs argue that hearing this interlocutory appeal would allow a Colorado

statute to define this Court’s subject matter jurisdiction. We disagree. As the

Erie analysis above illustrates, federal, not state, law controls the appealability of

the district court’s order. Sheth, 145 F.3d at 1237 (“[F]ederal law determines the

appealability of the district court's order denying summary judgment.”) (internal

quotations omitted). The question of appealability, not that of the substantive

immunity law, controls our subject matter jurisdiction. See Crumpacker v.

Kansas, 338 F.3d 1163, 1167 (10th Cir. 2003) (“While this court typically has

jurisdiction only over final decisions of the district court, it may consider appeals

of interlocutory orders falling within the collateral order doctrine.”).

Next, the Plaintiffs argue that hearing this appeal would serve no purpose

because their antitrust claims for injunctive relief remain viable below. We have

-8-
previously rejected this same argument. DeVargas v. Mason & Hanger-Silas

Mason Co., Inc., 844 F.2d 714, 718 (10th Cir. 1988) (“We therefore adopt the

majority view and hold that a pending claim for injunctive relief does not bar our

jurisdiction over an interlocutory appeal of a denial of a defense of qualified

immunity to a damages claim.”). The DeVargas court rejected this argument, in

part, because adopting it would allow plaintiffs in every action to elude

interlocutory review of the denial of immunity from suit simply by including

claims for injunctive relief. Id. That rationale applies equally here.

Finally, the Plaintiffs argue that Walton v. State, 968 P.2d 636 (Colo.

1998), establishes that the Hospital may fully vindicate its immunity rights on

appeal after a final order. Contrary to the Plaintiffs’ suggestion, Walton stands

only for the proposition that a public entity may waive its right to an interlocutory

appeal––nothing more. Id. at 641 (“Significantly, the legislature provided that the

trial court's CGIA ruling is ‘subject to interlocutory appeal,’ not that the right to

file an interlocutory appeal must be exercised to preserve the CGIA issue in the

case.”) (citations omitted). The Colorado Supreme Court’s failure to support the

Plaintiffs’ contention is not surprising, as immunity from suit is “an entitlement

not to stand trial or face the other burdens of litigation[.]” Mitchell v. Forsyth,

472 U.S. 511, 526 (1985).

-9-
C. Compliance With The Notice Provisions Of The Colorado Governmental

Immunity Act

The notice provisions of the CGIA apply when federal courts hear Colorado

tort claims under supplemental jurisdiction. 3 Renalde v. City & County of Denver,

Colo., 807 F. Supp. 668, 675 (D. Colo. 1992) (holding that Colorado tort claims

brought by private plaintiff under pendent jurisdiction are subject to the notice

provisions of the CGIA as a jurisdictional prerequisite to suit). Although the

parties and the district court failed to address the issue, we consider sua sponte

whether the Plaintiffs complied with the CGIA notice provisions, codified at

Colo. Rev. Stat. section 24-10-109, and whether factual issues of compliance

remain outstanding. Brock v. Nyland, 955 P.2d 1037, 1043 (Colo. 1998) (holding

that the court may raise failure to comply with the CGIA notice provisions sua

sponte).

1. The Provisions of Section 24-10-109(1)

Sub-section one of the CGIA notice provision reads:

Any person claiming to have suffered an injury by a public entity . . . ,
whether or not by a willful and wanton act or omission, shall file a
written notice as provided in this section within one hundred eighty

3
In King v. United States, 301 F.3d 1270, 1277 (10th Cir. 2002), we held
that the CGIA notice provisions do not apply to federal common law claims
brought by the United States. King is inapposite here for two reasons. First, the
United States is not the plaintiff, or even a party. Second, the Plaintiffs bring
state law tort claims, not federal common law claims.

-10-
 days after the date of the discovery of the injury, regardless of
whether the person then knew all of the elements of a claim or of a
cause of action for such injury. Compliance with the provisions of this
section shall be a jurisdictional prerequisite to any action brought
under the provisions of this article, and failure of compliance shall
forever bar any such action. Colo. Rev. Stat. § 24-10-109(1).

Accordingly, “[t]he CGIA[, section 24-10-109(1),] requires that

anyone who has a claim against . . . [a state entity] must file a written notice of

the claim within one hundred eighty days after the date of the discovery of the

injury, regardless of whether the person then knew all of the elements of a claim

or of a cause of action for such injury.” Gallagher v. Bd. of Trs. for Univ. of N.

Colo., 54 P.3d 386, 390-91 (Colo. 2002) (internal quotations omitted).

The Colorado Supreme Court has determined that written notice is provided

pursuant to Section 24-10-109(1) only when that written notice contains a demand

for monetary damages.

“[W]e interpret the term ‘written notice’ in section 24-10-109(1) to
mean written notice of a claim, we hold that any documents on which
a plaintiff relies to satisfy the requirements of section 24-10-109(1)
necessarily must assert a claim by including a request or demand that
the defendant public entity or employee pay the plaintiff an award of
monetary damages. . . . [Indeed,] the request for payment of
monetary damages is what shows that a document is a notice of a
claim under section 24-10-109(1).” Mesa County Valley School Dist.
No. 51 v. Kelsey, 8 P.3d 1200, 1205 (Colo. 2000) (emphasis added).

Thus, if the Plaintiffs failed to submit a written demand for monetary

damages within 180 days after they discovered, or should have discovered, their

-11-
injury, this omission operates as a jurisdictional bar to the lawsuit. 4

Colorado courts strictly construe section 24-10-109(1) and consistently hold

that “[c]omplying with the notice of claim [as set forth in section 24-10-109(1)] is

a jurisdictional prerequisite to suit.” Gallagher, 54 P.3d at 391; see also Renalde,

807 F. Supp. at 675 (“Such notice is a jurisdictional prerequisite to maintaining a

state law action . . . .”). Furthermore, Colorado courts describe section 24-10-

109(1) as a non-claim statute, “meaning that failure to comply with the 180-day

period is an absolute bar to suit.” Gallagher, 54 P.3d at 393 (citations omitted).

Thus, section 24-10-109(1) is “not subject to equitable defenses such as waiver,

tolling, or estoppel[;]” and plaintiffs cannot use the continuing violation doctrine

to remedy an untimely filing of notice. Id. In addition, each plaintiff must give

4
The Colorado Supreme Court has held that sections 24-10-109(3) and 24-
10-109(6) are not jurisdictional requirements, but rather create affirmative
defenses. Brock v. Nyland, 955 P.2d 1037 (Colo. 1998) (holding that section 24-
10-109(3) is an affirmative defense); Regional Trans. Dist. v. Lopez, 916 P.2d
1187, 1193 (Colo. 1996) (holding that section 24-10-109(6) is an affirmative
defense). In these cases, the Colorado Supreme Court also stated that only the
provisions of section 24-10-109(1) are jurisdictional. See, e.g., Brock, 955 P.2d
at 1043. We note, however, that the Colorado Supreme Court has never expressly
held that section 24-10-109(2) is not jurisdictional. We also note that the
Colorado Court of Appeals described the Colorado Supreme Court’s statements in
Brock and Lopez, that only section 24-10-109(1) raises a jurisdictional bar, as
dicta. Bresciani v. Hargan, 968 P.2d 153, 156-58 (Colo. Ct. App. 1998) (holding
that section 24-10-109(2) is jurisdictional when applied in conjunction with
section 24-10-118(1)(a)). Although the provisions of section 24-10-109(2) seem
applicable in this case, we limit our reliance to the indisputably jurisdictional
provisions of section 24-10-109(1). See Gallagher, 54 P.3d at 391-93.

-12-
separate notice of her claim to the state entity. DeForrest v. City of Cherry Hills

Village, 72 P.3d 384, 386-87 (Colo. Ct. App. 2002).

2. Pleading Compliance with Section 24-10-109(1)

In addition to construing its terms strictly, Colorado courts consistently

hold that a plaintiff must plead compliance with the CGIA’s notice provisions in

the complaint to avoid dismissal. See Kratzer v. Colorado Intergovernmental

Risk Share Agency, 18 P.3d 766, 769 (Colo. Ct. App. 2000) (“[A] claimant must

allege in his or her complaint that the claimant has complied with the

jurisdictional prerequisite of filing of a notice of claim.”) (citations omitted);

Deason v. Lewis, 706 P.2d 1283, 1286 (Colo. Ct. App. 1985) (“plaintiff failed to

plead compliance with the notice provision, and thus, his tort claims under the

[C]GIA were insufficient”); Jones v. Northeast Durango Water Dist., 622 P.2d

92, 94 (Colo. Ct. App. 1980) (holding that because plaintiff failed to plead

compliance with the CGIA notice provisions “[t]hese claims were . . . subject to

dismissal at any stage of the proceedings”); John W. Grund et al., 7A West's

Colorado Practice Series, Personal Injury Practice--Torts and Insurance § 28.24

(West Pub. 2000 & Supp. 2003) (“Because compliance with the notice

requirement is jurisdictional, the plaintiff must allege compliance in the

complaint, and lack of compliance may be raised at any time by the defendant or

-13-
the court.”). 5

In the context of a motion to dismiss, pleading compliance with the notice

provisions of the CGIA is de facto jurisdictional. “The court’s function on a Rule

12(b)(6) motion is not to weigh potential evidence that the parties might present

at trial[.]” Sutton, 173 F.3d at 1236 (quotation omitted and emphasis added).

Rather, the ‘facts’ in the case are limited to the well-pleaded allegations in the

complaint. See Swoboda v. Dubach, 992 F.2d 286, 290 (10th Cir. 1993) (“In

determining whether a plaintiff has stated a claim, the district court may not look

to . . . any other pleading outside the complaint itself . . . .”). When a plaintiff

fails to plead compliance with the CGIA, and a court addresses the case in the

context of a motion to dismiss, the court must accept as a matter of ‘fact’ that the

plaintiff failed to comply with the notice provisions. This lack of compliance,

5
Although the Colorado Supreme Court has not passed on this issue, the
Colorado Court of Appeals has addressed it several times. “While not binding on
this court, ‘decisions by a state's intermediate appellate courts provide evidence
of how the state’s highest court would rule on the issue, and we can consider
them as such.’” Craven v. Univ. of Colo. Hosp. Auth., 260 F.3d 1218, 1231 (10th
Cir. 2001) (quoting Stauth v. Nat'l Union Fire Ins. Co., 236 F.3d 1260, 1267
(10th Cir. 2001)); see also West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940)
(“Where an intermediate appellate state court rests its considered judgment upon
the rule of law which it announces, that is a datum for ascertaining state law
which is not to be disregarded by a federal court unless it is convinced by other
persuasive data that the highest court of the state would decide otherwise.”). As
we find no indicia that the Colorado Supreme Court would apply a contrary rule,
we follow the Colorado Court of Appeals on the need to plead compliance with
Colo. Rev. Stat. section 24-10-109.

-14-
then, is a jurisdictional issue. 6

D. The Sufficiency of the Amended Complaint

The Plaintiffs fail to allege compliance with the CGIA notice provisions.

Generally, an allegation such as the following would suffice: ‘Plaintiff fully

complied with the provisions of Colo. Rev. Stat. section 24-10-109.’ Here, we

are not presented with such a succinct allegation of compliance. Instead, in an

effort to give the Amended Complaint the most liberal reading, we forage through

the Amended Complaint for allegations of compliance with section 24-10-109(1).

See Sutton , 173 F.3d at 1236 . Given this standard, in the Amended Complaint we

find that the Plaintiffs pleaded that A.O.S.M. twice presented grievances to the

Hospital. First, paragraph 69 of the Amended Complaint alleges that “A.O.S.M. .

. . . challenged such [non-referral] practices as improper . . . bringing them to the

attention . . . of the Hospital defendants.” 7 Second, paragraph 89 of the Amended

6
Cf. Gallagher, 54 P.3d at 391 (compliance with CGIA notice requirement
is a jurisdictional issue); Stephen A. Hess, 5A West's Colorado Practice Series,
Handbook On Civil Litigation § 1180 (West Pub. 2000 & Supp. 2003) (“The rules
concerning pleading and the litigation of claims from which the [state]
government may be immune . . . begin with the simple rule that the plaintiff bears
the burden of establishing subject matter jurisdiction under the governmental
immunity statute. Thus, the plaintiff must allege facts sufficient to vest the trial
court with jurisdiction, and that includes averments that the claimant has
complied with the jurisdictional prerequisite of filing of a [CGIA] notice of
claim.”) (citing Sereff v. Waldman, 30 P.3d 754 (Colo. Ct. App.2000) and
Kratzer, 18 P.3d 766 (Colo. Ct. App. 2000)).
7
The Plaintiffs fail to allege a specific date for this complaint to the
(continued...)

-15-
Complaint alleges that “on April 29, 1997, . . . A.O.S.M. presented the issue of its

exclusion from the [Midvalley Medical Center] to the Board of [the Hospital], . . .

but to no avail.” We find these allegations insufficient.

1. Doctors Brazina and Nadler’s Failure To Plead CGIA Compliance

Although we read the Amended Complaint in the light most favorable to

the Plaintiffs, the Plaintiffs fail to plead that all three Plaintiffs filed individual

notices of claims against the Hospital. Here, the Amended Complaint only

alleges that A.O.S.M., not Doctors Brazina and Nadler, filed complaints with the

Hospital. Thus, Doctors Brazina and Nadler fail to allege that they filed a written

notice with the Hospital demanding monetary damages within 180 days of

discovery of, or when they should have discovered, their injuries as required by

section 24-10-109(1). See Gallagher, 54 P.3d at 391; Kelsey, 8 P.3d at 1204-05.

Doctors Brazina and Nadler’s role as the principals of A.O.S.M. has no

bearing on this analysis. In DeForrest, the Colorado Court of Appeals faced a

similar issue. In that case, the plaintiff sought to recover from a state entity for

the wrongful death of his wife both in his individual capacity and as executor of

his wife’s estate. Id. at 386. The husband, however, only filed CGIA notice in

his individual capacity. Id. at 387. The Colorado court barred the claim on

(...continued)
7

Hospital.

-16-
behalf of the estate for failure to comply with the CGIA notice provisions, even

though the executor of the wife’s estate was also the plaintiff who properly filed

CGIA notice in his individual capacity. Id. (“Here, only one notice of claim, by

husband individually, was served on the governmental entities . . . . We conclude

that any action by wife's estate for damages is barred for failure to give the

requisite notice pursuant to the [C]GIA.”).

The DeForrest decision compels a similar result here. Although Doctors

Brazina and Nadler are identifiable with A.O.S.M., all three Plaintiffs are distinct

legal entities who, pursuant to DeForrest, must have provided separate notices of

their claims against the Hospital. Id.

Turning to the appropriate response to this failure to plead compliance, we

find Doctors Brazina and Nadler’s claims to be unlike those presented in

Gallagher, 54 P.3d 386 (Colo. 2002), where the Colorado Supreme Court

remanded the CGIA notice issue to the trial court for an evidentiary hearing. In

Gallagher , a factual dispute existed as to whether the plaintiff filed timely notice.

Id. at 389. Here, there is no factual dispute; rather, the Plaintiffs fail to plead that

Doctors Brazina and Nadler complied with the CGIA notice provisions at all.

When faced with situations in which a plaintiff fails to plead compliance

with the CGIA, Colorado courts have taken two courses of actions. First, if the

plaintiff fails to plead compliance and cannot cure this defect, Colorado courts

-17-
dismiss the claims with prejudice. See, e.g. , Jones , 622 P.2d at 94. 8
If the

plaintiff fails to plead compliance but later proves compliance at trial prior to the

raising of an objection to the sufficiency of the compliant, Colorado courts,

pursuant to Colo. R. Civ. P. 15(b), 9
treat the CGIA notice issues “as if they had

been raised in the complaint.” Morgan v. Board of Water Works of Pueblo , 837

P.2d 300, 302 (Colo. Ct. App. 1992).

Here, unlike in Jones , it is not clear from the record whether Doctors

Brazina and Nadler can cure their deficient pleading by amendment. Also, unlike

8
Although the Colorado Court of Appeals decided Jones and Deason, 706
P.2d 1283 (Colo. Ct. App. 1985), prior to the 1986 amendments to the CGIA,
these cases remain good law. The 1986 amendments made only two changes to
section 24-10-109(1): (a) rendering the subsection jurisdictional and (b) requiring
strict, instead of substantial, compliance with its provisions. See Gardner v. City
and County of Denver, 671 F. Supp. 713, 714 (D. Colo. 1987) (“In 1986 the
section was re-enacted expressly creating a jurisdictional prerequisite to any
action brought under the provisions of the article.”); Brock, 955 P.2d at 1042
(“the 1986 amendments to section 24-10-109 . . . culminated in the addition of the
jurisdictional prerequisite language to subsection 24-10-109(1)”); Colo. Sess.
Laws, H.B. 1196, p. 877 § 9 (1986) (containing both the 1986 amendments and
the pre-amended statute). Thus, if failure to plead compliance with section 24-
10-109(1) provided pre-amendment grounds for dismissal, when the subsection
was not jurisdictional and merely required substantial compliance, Jones and
Deason’s interpretation remains sound under the stricter, amended subsection.
Finally, although Morgan, 837 P.2d 300 (Colo. Ct. App. 1992) , declined to follow
Jones and Deason, as we explain, this holding was based on Colo. R. Civ. P.
15(b), which is not at issue in this appeal. See also Kratzer, 18 P.3d at 769
(citing Jones and Deason as good law).
9
Colo. R. Civ. P. 15(b), which is identical to the federal rule, states: “When
issues not raised by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the
pleadings.”

-18-
Morgan , Doctors Brazina and Nadler have not proved compliance with the CGIA

at trial. Given these circumstances, we find that a Colorado court would dismiss

their claims without prejudice. If the Plaintiffs believe that they can cure their

insufficient Amended Complaint, they can move for leave to file a second

amended complaint and plead compliance with the CGIA notice provisions. See

Fed. R. Civ. P. 15(a) (“[L]eave [to amend the complaint] shall be freely given

when justice so requires.”). Therefore, Doctors Brazina and Nadler’s Counts XII,

XVI and XVIII should be dismissed without prejudice.

2. Factual Issue as to A.O.S.M.’s CGIA Compliance

It is unclear from the face of the Amended Complaint whether A.O.S.M. in

fact complied with section 24-10-109(1). Nevertheless, we read the Plaintiffs’

Amended Complaint liberally. See Sutton , 173 F.3d at 1236 . Given this standard,

we find that a factual issue exists as to whether A.O.S.M. provided the Hospital

with written notice demanding monetary damages within 180 days of discovering

its alleged tort injuries.

A.O.S.M. alleges that it twice filed grievances with the Hospital. The first

grievance presented to the Hospital, as alleged in paragraph 69 of the Amended

Complaint, fails to include a date or even a rough time frame of when A.O.S.M.

filed this protest. This allegation, then, provides no basis for determining when it

gave notice and if the notice was timely. Gallagher, 54 P.3d at 391. Moreover,

-19-
A.O.S.M. does not allege that this first grievance, or the second, contained a

demand for monetary damages. See Kelsey, 8 P.3d at 1204-05.

The Plaintiffs do include a date, April 29, 1997, for A.O.S.M.’s second

grievance to the Hospital. Nevertheless, it is unclear, based merely upon the

Amended Complaint, if the April 29, 1997, grievance was timely. In paragraphs

12, 54, and 55 of the Amended Complaint, the Plaintiffs allege that they first

knew of their purported injuries in the summer of 1996. In paragraphs 56, 57, 63,

and 76 of the Amended Complaint, however, the Plaintiffs allege that they first

knew of their purported injuries in the fall of 1996 or late 1996. If the scope of

A.O.S.M.’s injuries are limited to the failure to lease space at the Midvalley

Medical Center or injuries occurring in late 1996, this second grievance may well

constitute timely notice. On the other hand, if the scope of A.O.S.M.’s injuries

include those dating back to the summer or early fall of 1996, it may not be

timely. The Amended Complaint itself does not resolve this issue.

This set of circumstances differs from those presented by Doctor Brazina

and Nadler’s claims. As to the Doctors’ claims, the Amended Complaint contains

no allegations that written notices were filed at all. Thus, there can be no factual

issue as to whether a non-alleged notice contained a demand for monetary

damages or timely filed. A.O.S.M.’s claims, on the other hand, do allege that

written notice was filed. We find that these allegations of filed written notice

-20-
sufficiently raise a factual question as to whether these notices contained a

monetary demand and were timely. Therefore, unlike the claims brought by

Doctors Brazina and Nadler, Colorado law requires us to remand A.O.S.M.’s tort

claims to the district court. Gallagher, 54 P.3d at 392 (factual issues of

compliance with section 24-10-109(1) are for the trial court to determine on

remand). On remand, the district court shall hold an evidentiary hearing to

determine whether A.O.S.M. filed notice 180 days after it discovered, or should

have discovered, its injuries and whether the notice contained a demand for

monetary damages. See Gallagher, 54 P.3d at 392; Kelsey, 8 P.3d at 1204-05.

III. Conclusion

For the forgoing reasons, we REVERSE with instructions for the district

court to dismiss Counts XIII, XVI and XVIII of the Amended Complaint without

prejudice, as they relate to Doctors Brazina and Nadler, and REMAND Counts

XIII, XVI and XVIII, as they relate to A.O.S.M.,for a factual determination of

whether it gave timely notice that demanded monetary damages.

-21-
No. 02-1022, Aspen Orthopaedics v. Aspen Valley Hosp. Dist.

BRISCOE, Circuit Judge, concurring and dissenting:

I concur in Parts I, II(A), and II(B) of the majority opinion. I dissent,

however, from Part II(C) of the majority opinion which dismisses sua sponte Drs.

Brazina's and Nadler's three state law tort claims brought against the Hospital.

My concerns are twofold. First, I do not agree that under Colorado law failure to

plead compliance with the CGIA’s notice requirements is a jurisdictional bar.

Second, prior to dismissal for failure to comply with the CGIA’s notice

requirements, Colorado courts uniformly favor allowing a plaintiff the

opportunity to establish that he has complied with the CGIA. In stark contrast,

the rule adopted by the majority has the dual effect of mandating dismissal of

claims on pleading technicalities and denying plaintiffs the opportunity to present

evidence addressing whether they have complied with the CGIA.

I.

In Part II(A), the majority correctly holds that we have subject matter

jurisdiction to hear the Hospital’s interlocutory appeal. 1 I will expand somewhat

on the analysis that supports that conclusion.

1
The parties have filed jurisdictional briefs in response to our show cause
order directing the parties to address (1) whether the district court’s December 12,
2001, order denying the Hospital’s motion to dismiss based on CGIA was a final
appealable decision under 28 U.S.C. § 1291, or any recognized exception to the
final judgment rule, and (2) whether a state statute, Colo. Rev. Stat. § 24-10-108,
may define a federal appellate court’s jurisdiction.
 Plaintiffs contend this court lacks jurisdiction to hear the interlocutory

appeal because the order from which the Hospital appeals is not a final decision

under 28 U.S.C. § 1291, nor does it meet any statutory or common law exception

to the final judgment rule. Resolution of this issue is complicated by the fact that

the CGIA includes its own reference to “final judgments” in Colo. Rev. Stat. §§

24-10-108 and 24-10-118(2.5), which provide that orders denying motions to

dismiss complaints on sovereign immunity grounds are final judgments for

purposes of taking interlocutory appeals. 2 See Walton v. Colorado, 968 P.2d 636,

640 (Colo. 1998) (explaining purpose of language is to facilitate interlocutory

2
Colo. Rev. Stat. § 24-10-108 states:
Except as provided in sections 24-10-104 to 24-10-106,
sovereign immunity shall be a bar to any action against a public
entity for injury which lies in tort or could lie in tort regardless of
whether that may be the type of action or the form of relief chosen by
a claimant. If a public entity raises the issue of sovereign immunity
prior to or after the commencement of discovery, the court shall
suspend discovery, except any discovery necessary to decide the
issue of sovereign immunity, and shall decide such issue on motion.
The court’s decision on such motion shall be a final judgment and
shall be subject to interlocutory appeal.

Similarly, Colo. Rev. Stat. § 24-10-118(2.5) states:
If a public employee raises the issue of sovereign immunity
prior to or after the commencement of discovery, the court shall
suspend discovery; except that any discovery necessary to decide the
issue of sovereign immunity shall be allowed to proceed, and the
court shall decide such issue on motion. The court’s decision on
such motion shall be a final judgment and shall be subject to
interlocutory appeal.

-2-
appeals involving issues of sovereign immunity). The state law and federal law

which apply here provide different rules for determining whether this appeal can

proceed. As a federal court sitting in diversity, the doctrine of Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938), dictates that state substantive law should apply,

Hanna v. Plumer, 380 U.S. 460, 466-68 (1965), but that federal procedural rules

will nevertheless control the analysis. This principle requires that federal law

should determine whether the Hospital fulfilled the requirements of the collateral

order doctrine, a common law exception to the final judgment rule. 3 See Budinich

v. Becton Dickinson & Co., 486 U.S. 196 (1988) (holding in a diversity case

federal law determines appealability under collateral order doctrine); see also

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949) (recognizing

“small class” of decisions are excepted from final judgment rule and establishing

collateral order doctrine). In order to satisfy the collateral order doctrine, the

Hospital must meet three requirements: (1) the order must conclusively determine

the disputed question; (2) the order must resolve an important issue completely

separate from the merits of the action; and (3) the order must be effectively

unreviewable on appeal from a final judgment. See Pindus v. Fleming Cos., 146

3
It is clear the district court order is not a final decision as defined in §
1291. As plaintiffs also correctly note, the “District Court did not expressly
certify its decision pursuant to either 28 U.S.C. § 1292(b) or Fed. R. Civ. P.
54(b).” Aple. Br. at 10. The Hospital does not contest this statement and does
not assert jurisdiction under this statutory exception.

-3-
F.3d 1224, 1226 (10th Cir. 1998) (citing Coopers & Lybrand v. Livesay, 427 U.S.

463, 468 (1978)). Here, both sides agree that the first two requirements are met.

Our focus is therefore on the third requirement.

This court has interpreted the third requirement to mean that “where rights

will not be irretrievably lost in the absence of an immediate appeal, collateral

review is not available.” In re Magic Circle Energy Corp., 889 F.2d 950, 954

(10th Cir. 1989). Therefore, the Hospital will only succeed in availing itself of

this court’s jurisdiction if the district court order deprived it of a right “that is

essentially destroyed if its vindication must be postponed until trial is completed.”

Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 499 (1989). To determine whether

allowing an interlocutory appeal will irreparably deprive the Hospital of a right,

this court must ascertain the precise contours of the Hospital’s immunity under

Colorado state law. See, e.g., Gray-Hopkins v. Prince George’s County, 309 F.3d

224, 231 (4th Cir. 2002) (applying federal procedural law to determine whether

collateral order doctrine is applicable to interlocutory appeal regarding immunity,

but then referring to state law to ascertain scope of sovereign immunity under

state law); In re City of Philadelphia Litig., 49 F.3d 945, 957 (3d Cir. 1995)

(same); Sorey v. Kellett, 849 F.2d 960, 962 (5th Cir. 1988) (same); Marrical v.

Detroit News, Inc., 805 F.2d 169, 172 (6th Cir. 1986) (same). As this court

previously explained in Decker v. IHC Hosps., Inc., 982 F.2d 433, 435 (10th Cir.

-4-
1992), there is a determinative distinction in assessing, as a matter of federal

procedural law, which sovereign immunity cases are ripe for interlocutory appeal

under the third requirement of the collateral order doctrine. On the one hand,

where “the basis of the motion to dismiss is not an immunity from suit . . . an

order denying the motion is not immediately appealable.” Id. In contrast, if the

“essence of the claimed right is a right not to stand trial,” an interlocutory appeal

is appropriate. Id. at 436 (internal quotations omitted). 4

Here, the Colorado General Assembly has explicitly created a right to be

free from all suits and not merely immune from liability. See Colo. Rev. Stat. §

24-10-108. The Colorado General Assembly has therefore established sovereign

immunity for public entities from all suits. Consequently, by applying these facts

to the third requirement of the federal collateral order doctrine, it is clear that the

substantive right under state law to be immune from suits will be “irretrievably

lost in the absence of an immediate appeal.” Magic Circle, 889 F.2d at 954.

II.

I disagree, however, with the sua sponte dismissal of Drs. Brazina’s and

4
As the Hospital artfully contends, this distinction comports with the third
requirement – an interlocutory appeal is only needed to protect a right insofar as
that entitlement is the right to be free from all litigation; not allowing an
interlocutory appeal in that instance will subject that party to litigation. But, if
the right is simply to be free from liability, then proceeding to trial will not itself
violate that right and requirement three will not be met.

-5-
Nadler’s (the doctors) tort claims for failure to plead compliance with the CGIA’s

notice requirements. 5

In accordance with this court’s “independent duty to inquire into its

jurisdiction over a dispute,” Phelps v. Hamilton, 122 F.3d 1309, 1315-16 (10th

Cir. 1997), we have examined the pleadings to determine whether the plaintiffs

have complied with section 24-10-109(1) of the CGIA which bars a claimant from

filing suit unless he previously has provided the defendant public entity with

written notice of his claim. Relying on a trilogy of Colorado Court of Appeals

decisions, the majority concludes that “Colorado courts consistently hold that a

plaintiff must plead compliance with the CGIA’s notice provisions in the

complaint to avoid dismissal.” Maj. Op. at 13 (emphasis added). See Kratzer v.

Colorado Intergovernmental Risk Share Agency, 18 P.3d 766 (Colo. Ct. App.

2000); Deason v. Lewis, 706 P.2d 1283 (Colo. Ct. App. 1985); Jones v. Northeast

Durango Water Dist., 622 P.2d 92 (Colo. Ct. App. 1980). The majority further

states that pleading compliance with the CGIA is “de facto jurisdictional” when

addressed by the court “[i]n the context of a motion to dismiss,” Maj. Op. at 14,

5
I concur in the majority’s ultimate holding as it relates to A.O.S.M.
Although I do not conclude that Colorado requires a plaintiff to plead compliance
with the CGIA as a jurisdictional prerequisite to suit, I do agree the correct
outcome as regards A.O.S.M.’s claims in Counts VIII, XV, and XVIII is to
remand for a factual determination addressing A.O.S.M.’s compliance with the
CGIA.

-6-
and therefore examines only the complaint for an allegation of notice compliance.

Finding that the doctors did not satisfy this heightened pleading requirement, the

majority concludes Colorado law requires dismissal of their claims.

The procedural context of the case at bar differs significantly from Kratzer,

Deason, and Jones. In each of those cases, the defendant had filed a motion to

dismiss before the trial court alleging the plaintiff had not filed a notice of claim

prior to bringing suit as required by section 24-10-109. In the present case, no

motion to dismiss for failure to comply with the CGIA notice requirements has

been filed, nor has there been any fact finding by the district court on this

question. Therefore, unlike Kratzer, Deason, and Jones, the doctors here have not

had the opportunity to show compliance “[i]n the context of a motion to dismiss.”

Maj. Op. at 14.

The fact of compliance with the CGIA notice requirements, rather than the

pleading of compliance was determinative in Kratzer, Deason, and Jones. Any

statement in those cases concerning a plaintiff’s failure to plead compliance with

the CGIA provisions was made only after determining the plaintiff had not

provided notice based on the evidence presented to the trial court. See Kratzer,

18 P.3d at 769 (finding “it is undisputed that no notice of claim was served on

defendants”); Deason, 706 P.2d at 1286 (“Plaintiff admits that notice was not

filed within 180 days of discovery of his cause of action.”); Jones, 622 P.2d at 94

-7-
(noting “it is admitted that plaintiff did not file the required notice”). This

conclusion is borne out by the ruling in Morgan v. Board of Water Works of

Pueblo, 837 P.2d 300 (Colo. Ct. App. 1992), which affirmed the trial court’s

denial of a motion for judgment notwithstanding the verdict in which the Board

asserted plaintiffs failed to plead and prove compliance with the notice provisions

of the CGIA. The Colorado Court of Appeals concluded that although plaintiffs

had failed to plead compliance, the record developed at trial established the

plaintiffs’ compliance. The court rejected the Board’s argument that Deason or

Jones required a different result. The court in Morgan stated where the

underlying evidence shows compliance, it is improper “to treat plaintiffs’ failure

to plead such compliance as a jurisdictional bar.” Id. at 302. 6

Colorado courts have repeatedly held that because the inquiry into

“[w]hether a claimant has satisfied the [jurisdictional] requirements of section 24-

6
In distinguishing Morgan, the majority concludes it is not bound by the
decision because the Colorado Court of Appeals applied Colo. R. Civ. P. 15(b) to
reach its conclusion. Maj. Op. at 18 n.8. I am not persuaded by this distinction.
First, as the majority notes, Colo. R. Civ. P. 15(b) has an identical federal
counterpart which also states: “When issues not raised by the pleadings are tried
by express or implied consent of the parties, they shall be treated in all respects as
if they had been raised in the pleadings.” Fed. R. Civ. P. 15(b). To the extent the
Colorado procedural rule decides this question of Colorado law, the fact that there
is an identical federal rule should weigh heavily in favor of an identical outcome.
Second, by relying on Colo. R. Civ. P. 15(b) in the context of deciding whether
failure to plead CGIA compliance was jurisdictional, the Colorado Court of
Appeals held that such failure was plainly not jurisdictional.

-8-
10-109(1) presents a mixed question of law and fact,” Mesa County Valley Sch.

Dist. No. 51 v. Kelsey, 8 P.3d 1200, 1204 (Colo. 2000), it is the trial court’s task

to analyze whether the CGIA notice requirements have been met. Further, only

after that inquiry is complete and only after the court determines that the plaintiff

did not comply with the CGIA are claims dismissed for failure to plead CGIA

compliance.

The proper course here is to remand the case to the district court for an

evidentiary hearing on whether Drs. Brazina and Nadler provided proper notice as

required by section 24-10-109(1). See Gallagher v. Bd. of Tr., 54 P.3d 386, 388

(Colo. 2002) (remanding to trial court to “hold a pre-trial hearing to resolve fact

questions” regarding notice compliance); see also Mesa Valley, 8 P.3d 1204

(noting “[w]hen determining whether a plaintiff has complied with the

requirements of section 24-10-109(1), the relevant facts include but are not

necessarily limited to the persons, dates, and documents associated with the

plaintiff’s’s alleged injury and filing of written notice”). The majority states that

a remand is improper because, although in Gallagher a factual dispute existed

necessitating the remand, “Here, there is no factual dispute.” Maj. Op. at 17. 7

However, the majority thereafter also notes that “it is not clear from the record

7
I would submit we do not know if there is a factual dispute in the present
case because the question of notice compliance is being raised for the first time
on appeal.

-9-
whether Doctors Brazina and Nadler can cure their deficient pleading.” Id. at 18

(emphasis added). As these conflicting statements suggest, this court cannot

determine on the record before us whether the doctors have complied with the

notice requirements.

I would remand to the district court on Counts XIII, XVI, and XVIII as they

relate to Drs. Brazina and Nadler for a factual determination of whether they gave

timely notice as the CGIA requires.

-10-