* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 29 1997 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANA CHAVEZ and HECTOR CHAVEZ, individually and as parents and next friends, minor child Rebecca Chavez, Plaintiffs-Appellants,

v. ACADEMY SCHOOL DISTRICT 20; MARY THURMAN, in her official capacity; SAMMYE WHEELER, in her official capacity; LARRY STRUBEL, in his official capacity; TAMMI R. HARTBAUER, in her official and individual capacity, Defendants-Appellees. No. 96-1360 (D.C. No. 96-M-582) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, HENRY and BRISCOE, Circuit Judges.-2-

Plaintiffs appeal the dismissal with prejudice of their 42 U.S.C. § 1983 and pendent state law claims. We affirm with respect t o the section 1983 claims, but vacate the district court’s order to dismiss with p rejudice the state law claims. We remand for dismissal of the state law claims without prejudice. Plaintiffs Ana and Hector Chavez (the Chavezes) bro ught this suit, individually and on behalf of their minor daughter, Rebecca, against the Academy School District No. 20 and several school officials in their official capacities, including Ms. Tammi Hartbauer, Rebecca’s language arts instructor. Ms. Hartbauer was also sued in her individual capacity. The Chavezes alleged a variety of Constitutional and state law claims aris ing out of a dispute over Rebecca’s class schedule. The facts are fully set out in the district court’s opinion, Chavez v. Academy Sch. Dist. No. 20 , No. 96-M-582 (D. Colo. July 3, 1996), and we will not repeat them here. The Chavezes originally filed this action in Colora do State Court. The defendants removed to federal court and filed a mot ion to dismiss the section 1983 claims for failure to state a claim on which r elief could be granted, and a motion to dismiss the state law claims for lack of subject matter jurisdiction. In ruling on the motions, the district court first considered the Chavezes’ section 1983 constitutional claims. We review the district court’s grant of a-3-

motion to dismiss de novo. Lafoy v. HMO Colorado , 988 F.2d 97, 98 (10th Cir. 1993). The district court held that “[b]ecause the Chavezes do not have a constitutional right to control their daughter’s ed ucation by selecting particular teachers and methods of instruction, I conclude the y have not stated a claim upon which relief can be granted.” Chavez , No. 96-M-582, slip op. at 2. The court then determined that Rebecca’s class reassignments did not amount to a suspension, expulsion or denial of admission under Colorado statutes, id. at 9, and concluded that no claim of constitutional dimen sion had been raised on Rebecca’s behalf. We have thoroughly reviewed the record in light of defendants’ claims, and we conclude the district co urt did not err in dismissing with prejudice the section 1983 claims. We therefo re affirm the district court in this respect substantially for the reasons set out in its opinion. The district court next considered the pendent stat e law claims. CarnegieMellon Univ. v. Cohill , 484 U.S. 343, 350 n.7 (1988) (district court may consider pendent state law claims after dismissal of federal claims). Defendants asserted that the Chavezes failed to comply with the notice provisions of the Colorado Governmental Immunity Act (CGIA), and that the Chav ezes’ state law claims were therefore barred. C OLO
. REV
. S TAT
. §§ 24-10-109(1) and 118(1)(a). Under section 109(1),-4-

an individual seeking recourse against a public ent ity . . . must notify that entity of any claims against it within 180 day s of discovery of the injury. An action cannot be commenced by the c laimant until the public entity has denied the claim or until ninety days have elapsed from the filing of the notice. Regional Transp. Dist. v. Lopez , 916 P.2d 1187, 1188 (Colo. 1996). The CGIA applies to school districts, individual schools, an d all employees of such entities when acting within the scope of their employment. C OLO
. REV
. S TAT
. §§ 24-10- 102, 103(4)(a), and (5). Timely notice is a “juris dictional prerequisite to any action . . . and failure of compliance shall foreve r bar any such action.” Id. at § 109(1); id. at § 118(1)(a). Since the Chavezes filed their co mplaint before providing defendants notice of their claims, defend ants argue the Chavezes’ state law claims are jurisdictionally barred and must be dismissed for lack of subject matter jurisdiction. The Chavezes respond that their state claims agains t Ms. Hartbauer were brought against her individually for acts outside the scope of her employment, and therefore there was no obligation to satisfy the te rms of the CGIA as to those claims. Moreover, even if the claims against Ms. H artbauer are subject to the CGIA, as they concede their claims against the othe r defendants are, they claim they did provide timely notice to defendants after the complaint was filed. Relying on Lopez , they assert that notice received after the compla int creates only a statutory rather than a jurisdictional defect whi ch should not bar their claims.-5-

See Lopez , 916 P.2d at 1192 (filing complaint aftertimely notice, but before expiration of ninety-day “cooling off” period, cons titutes a statutory rather than jurisdictional bar to claim which can be cured by r efiling complaint after dismissal without prejudice). The district court determined as a matter of law th at Ms. Hartbauer was at all relevant times acting within the scope of her e mployment and that the claims against her were subject to the notice requirements of the CGIA. Chavez , No. 96- M-582, slip op. at 16-17. The court then observed that the “notice” provision of the CGIA is meant to provide prompt notice of potential liability to governmental entities. Id. at 14. Notice which is presented after the filing of a lawsuit, as in this case, does not serve that purpose and cannot s atisfy the statutory requirements. Id. Neither was the Chavezes’ complaint a “premature” filing, as described by the Colorado Supreme Court in Lopez . Id. at 15. That case applied only to failure to comply with the ninety-day waiti ng period, not the 180-day notice period. Since noncompliance with the “notic e” provision is a jurisdictional bar, the district court concluded that the Chavezes ’ complaint must be dismissed with prejudice. Id. at 14-15; Lopez , 916 P.2d at 1190 (“Failure to strictly comply with the 180-day notice requirement results in dism issal of the action.”). Although we find the district court’s thorough anal ysis of the CGIA’s notice provision logical, the statute could be inte rpreted differently. The Lopez1 Because we vacate the district court’s dismissal wi th prejudice of the state

claims, we do not consider the merits of whether Ms . Hartbauer was at all relevant times acting within the scope of her emplo yment. -6- case did not squarely address the issue of filing b efore timely notice, and arguably its analysis of premature filing after notice couldbe applied to the case at bar. Extension of Lopez to this situation requires a novel interpretation of state law. Although a district court may exercise pendent juri sdiction over state law claims, TV Communications Network, Inc. v. Turner Network T elevision, Inc. , 964 F.2d 1022, 1028 (10th Cir. 1992), where the federal clai ms have been dismissed before trial, “the balance of factors to be considered und er the pendent jurisdiction doctrine--judicial economy, convenience, fairness, and comity--will point toward declining to exercise jurisdiction over the remaini ng state law claims,” Cohill , 484 U.S. at 350 n.7. “Declining pendent jurisdicti on is appropriate when the court needs a ‘surerfooted’ analysis of state law i n an area of particular importance to a state.” Sullivan v. Scoular Grain Co. , 930 F.2d 798, 803 (10th Cir. 1991). The CGIA is an important area of state law on which we lack unequivocal guidance from Colorado state courts. W e are persuaded that plaintiffs should be allowed to test theories regar ding possible bars to their state law claims in Colorado state court, where they file d this action initially. 1 Accordingly, we affirm the dismissal with prejudice of the Chavezes’ section 1983 claims, but vacate the district court’ s order dismissing with-7-

prejudice their state law claims and remand for the district court to dismiss the state law claims without prejudice. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge