UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

LYNN EUGENE SCOTT, 

 Plaintiff - Appellee, 

v. 

STEVENSON CARY; CITY OF 

AURORA, 

 Defendants - Appellants, 

and 

JOHN DOE, Stevenson Cary’s Supervisor 

at Aurora Police Department, 

 Defendant.

No. 19-1464 

(D.C. No. 1:18-CV-00610-WJM-SKC) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, McHUGH, and EID, Circuit Judges. 

_________________________________ 

Plaintiff Lynn Scott brought suit against the City of Aurora, Aurora police 

officer Stevenson Cary, and John Doe (Cary’s supervisor) alleging liability under 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

October 5, 2020

Christopher M. Wolpert

Clerk of Court
2 

federal civil-rights statutes and Colorado law. Defendants Aurora and Cary filed a 

motion to dismiss which, among other things, argued that they were entitled to 

sovereign immunity on the state-law claims because Plaintiff failed to comply with a 

pre-suit notice requirement in the Colorado Governmental Immunities Act (CGIA). 

The district court declined to dismiss the state-law claims on that ground and 

Defendants appeal. We affirm.

I. Background 

Under the CGIA, “[a]ny person claiming to have suffered an injury by a public 

entity or by an employee thereof . . . shall file a written notice as provided in this 

section within one hundred eighty-two days after the date of the discovery of the

injury . . . .” Colo. Rev. Stat. § 24-10-109(1). In a case involving a public entity 

other than the state, “the notice shall be filed with the governing body of the public 

entity[,] . . . the attorney representing the public entity,” id. § 24-10-109(3)(a), or “a 

public entity’s agent listed in the inventory of local governmental entities pursuant 

to [Colo. Rev. Stat. §] 24-32-116,” id. § 24-10-109(3)(b). 

Plaintiff’s complaint alleged that “[p]ursuant to C.R.S. 24-10-109 the Plaintiff 

has mail [sic] an intent to sue to Aurora City Saftey [sic] Office on or around March 

15, 2017.” Aplt. App. at 21.

1

 Defendants did not challenge the timeliness of the 

notice but the propriety of whom was served. In support of their motion to dismiss,

they submitted evidence that purportedly shows that the Aurora City Attorney is 

1 Plaintiff’s complaint substantially repeated this allegation for each state-law 

claim. See Aplt. App. at 22–25.
3 

Aurora’s listed agent for CGIA notices, and they asserted that Aurora does not have a 

safety office. 

II. Discussion 

A. Appellate Jurisdiction

Because the district court has not entered a final judgment, we first assure 

ourselves of our jurisdiction over this interlocutory appeal. Our precedent supports 

jurisdiction. “[P]ursuant 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 state-law immunity from suit.” Sawyers v. Norton, 962 F.3d 

1270, 1287 (10th Cir. 2020) (brackets and internal quotation marks omitted); see

Aspen Orthopaedics, 353 F.3d at 837. 

B. Propriety of Dismissal 

We begin our analysis by noting that the issue before us is not one of subjectmatter jurisdiction. Although Colorado considers the timeliness of notice under the 

CGIA to be a jurisdictional matter, see Univ. of Colo. v. Booth, 78 P.3d 1098, 1100 

(Colo. 2003), the service defect alleged by Defendants is not, see Finnie v. Jefferson 

Cty. Sch. Dist. R-1, 79 P.3d 1253, 1256 (Colo. 2003) (“[S]ection 24-10-109(3) 

[provides] a statutory defense to claims rather than creating a jurisdictional 

prerequisite to suit.”). We therefore need not consider whether we would be bound 

by a state-court view that an issue is jurisdictional. Cf. Odom v. Penske Truck 

Leasing Co., 893 F.3d 739, 742 (10th Cir. 2018) (“[W]hen a state proscribes its own 

courts’ jurisdiction over particular subject matter, it does not divest the authority of 
4 

federal courts within its borders. This is because, as an axiom of our federal system, 

Congress alone defines the lower federal courts’ subject-matter jurisdiction.”). 

Therefore, contrary to Defendants’ suggestion, Federal Rule of Civil 

Procedure 12(b)(1), which concerns challenges to subject-matter jurisdiction, was not 

in play on this issue. Defendants cite Martinez v. Estate of Bleck, 379 P.3d 315, 322 

(Colo. 2016), for the proposition that Colorado requires courts to decide the issue of 

sovereign immunity on motion before trial. But state procedural law ordinarily does 

not govern proceedings in federal court; and in any event there are adequate federal 

procedures for disposing of immunity issues before trial without reliance on Rule 

12(b)(1).

We therefore agree with the district court that the proper framework for 

addressing Defendants’ motion was under Federal Rule of Civil Procedure 12(b)(6). 

And our precedents establish that Plaintiff’s complaint survives the motion. 

Under Colorado law an alleged failure to send a CGIA notice to the correct 

location gives rise to an affirmative defense. See Univ. of Colo., 78 P.3d at 1100 (An 

alleged “failure to file the notice of claim with the appropriate officer or entity under 

section 24-10-109(3) gives rise to an affirmative defense.”). And in federal court a 

complaint need not anticipate and address an affirmative defense. See Fernandez v. 

Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018) (“A plaintiff need not 

anticipate in the complaint an affirmative defense that may be raised by the 

defendant; it is the defendant’s burden to plead an affirmative defense.”). A court 

should “dismiss a claim on the pleadings based on an affirmative defense only when 
5 

the complaint itself admits all the elements of the affirmative defense by alleging the 

factual basis for those elements.” Id.; see Xechem, Inc. v. Bristol-Myers Squibb Co., 

372 F.3d 899, 901 (7th Cir. 2004) (“Only when the plaintiff pleads itself out of 

court—that is, admits all the ingredients of an impenetrable defense—may a 

complaint that otherwise states a claim be dismissed under Rule 12(b)(6).”).

We recognize that under Colorado law “a plaintiff must plead compliance with 

the CGIA’s notice provisions.” Aspen Orthopaedics & Sports Med., LLC v. Aspen 

Valley Hosp. Dist., 353 F.3d 832, 840 (10th Cir. 2003). But even if Colorado law 

governs pleading in federal court (which we need not resolve), we have held that the 

pleading need not provide details. “Generally, an allegation such as the following 

would suffice: ‘Plaintiff fully complied with the provisions of 

Colo.Rev.Stat. section 24-10-109.’” Id. at 841. Plaintiff’s complaint sufficed 

because it alleged compliance with the notice provision of the CGIA by stating that 

he mailed notice of his intent to sue “[p]ursuant to C.R.S. 24-10-109.” Aplt. App. at 

21; see also id. at 22–25. 

Defendants contend that the allegation is insufficient because the complaint 

specified that Plaintiff mailed the notice to the Aurora Safety Office, which does not 

exist. But the nonexistence of that office does not appear on the face of the 

complaint. And we cannot say with certainty that the recipient of the notice was not 

authorized to accept service, particularly in light of the view of the Colorado 

Supreme Court that in some circumstances a plaintiff can comply with

§ 24-10-109(3) by sending notice to a party not expressly contemplated by the 
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statute. See Finnie, 79 P.3d at 1258 (courts should “consider principles of agency 

and equity, the purposes of the statute, and concerns of protecting plaintiffs from 

misrepresentations by governmental entities” on a “case-by-case” basis to determine 

whether a notice sent to a party not listed in the statute complies). 

III. Conclusion 

We affirm the district court’s order denying Defendants’ motion to dismiss the 

state-law claims and remand for further proceedings. 

Entered for the Court 

Harris L Hartz 

Circuit Judge