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ARAPAHOE COUNTY DISTRICT COURT Address: 7325 S. Potomac Street, Centennial, CO 80112 Plaintiff(s): BRANDON COATS v.

Defendant(s): THE DEFENDANT L.L.C. COURT USE ONLY Attorney for Plaintiff Michael D. Evans, Atty. Reg. #39407 Benson & Case, LLP 1660 So. Albion Street, Suite 1100 Denver, Colorado 80222 Phone Number: (303) 757-8300 FAX Number: (303) 753-0444 E-mail: michael@bensoncase.com

Case No.: Division:

2011CV1464 309

RESPONSE TO DEFENDANTS C.R.C.P. 12(b)(5) MOTION TO DISMISS The plaintiff Brandon Coats, Mr. Coats, who has filed a claim for relief under Colorado Revised Statutes 24-34-402.5, attempts to respond to the new facts, new evidence, inaccurate statements, and self-generated arguments set forth by DISH Network, the defendant it its motion to dismiss under C.R.C.P. 12(b)(5). THE DEFENDANTS MOTION MUST FAIL UNDER C.R.C.P. 12(b)(5) I. Legal Standards of Review 12(b)(5)

1. A motion to dismiss under C.R.C.P. 12(b)(5) is determined solely from the allegations stated in the complaint. For purposes of the motion, those allegations must be taken as true and viewed in the light most favorable to the plaintiff. Denver Post Corp. v. Ritter, 255 P.3d 1083 (Colo. 2011); Burke v. Greene, 963 P.2d 1119 (Colo. App. 1998); Dorman v. Petrol Aspen Inc., 914 P.2d 909 (Colo. 1996); National Camera, Inc. v. Sanchez, 832 P.2d 960 (Colo. App. 1991). 2. Motions to dismiss are viewed with disfavor. Denver Post Corp. v. Ritter, 255 P.3d 1083 (Colo. 2011); Bly v. Story, 241 P.3d 529, 533 (Colo. 2010); Smith v. Mills, 225 P.2d 483 (Colo. 1950). A motion to dismiss under C.R.C.P. 12(b)(5) should be granted only if it appears beyond doubt that the plaintiff included no set of facts in support of the claim, which if proven at trial would entitle him to relief. Burke v. Greene, 963 P.2d 1119 (Colo. App. 1998). 3. A motion to dismiss under C.R.C.P. 12(b)(5) raises only issues of law, it is not proper to raise issues of fact. A movant wishing to raise issues of fact may do so by filing an Answer. Page 1 of 20

4. A motion to dismiss under C.R.C.P. 12(b)(5) is not an effective challenge to a Complaint. Defenses that should be set up affirmatively in the Answer cannot be used by the defendant to support the motion to dismiss. 5. Claims that may have merit if ambiguities are resolved in favor of the claimant should be presented to the fact finder for resolution. Dorman v. Petrol Aspen Inc., 914 P.2d 909 (Colo. 1996). Plaintiff has demanded a jury. II. Defendants Arguments That Are Not Contained In Plaintiffs Complaint

6. The defendant raised for the first time in its motion an at-will employment theory, which is truly an affirmative defense that should have been raised in an answer. Def. Mtn. to Dismiss pgs. 1, 7-8. Although Mr. Coats does not contest his at-will status with the defendant, the reason he was terminated by the defendant was specified and is not in dispute. Employers cannot fire any employee for any reason as defendant suggests, especially when those reasons have been identified, reduced to writing (see Exhibit 4), and violative of C.R.S. 2434-402.5. Thus, defendants at-will employment argument must fail for the following reasons: 1) it is not part of plaintiffs complaint; 2) the defendant has raised this issue for the first time in a C.R.C.P. 12(b)(5) motion; 3) the defendant has identified a specific reason for Mr. Coats termination. 7. The defendant raised for the first time in its motion federal substantive law through the Controlled Substances Act, CSA, which is truly an affirmative defense that should have been raised in an answer. Def. Mtn. to Dismiss pgs. 2-7. Mr. Coats complaint is based only upon state claims involving state substantive law, not federal law. Claims that may have merit if ambiguities are resolved in favor of the claimant should be presented to the fact finder for resolution. Dorman v. Petrol Aspen Inc., 914 P.2d 909 (Colo. 1996). Thus, defendants federal law argument must fail for the following reasons: 1) it is not part of plaintiffs state law complaint; 2) the defendant has raised this issue for the first time in a C.R.C.P. 12(b)(5) motion; and 3) ambiguities are resolved in favor of the claimant should be presented to the fact finder for resolution. 8. The defendant raised for the first time in its motion that employers would be required to accommodate employees who engage in medical marijuana use at the work place. Def. Mtn. to Dismiss pgs. 7-11. Mr. Coats has never plead, requested, or even insinuated that employers should be required to accommodate medical marijuana use at the work place. This case only addresses what employers may or may not legally do to employees about the use of medical marijuana after work, off company property in the context of C.R.S. 24-34402.5. See also dissent in Beinor v. Indus. Claim Appeals Office, ___ P.3d ___ 2011, (addressing the terms medical use as it applies to in the work place). Thus, defendants accommodation argument must fail for the following reasons: 1) it is not part or remotely relevant to plaintiffs complaint; 2) the defendant has raised this issue for the first time in a C.R.C.P. 12(b)(5) motion.

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9. The defendant for the first time advances a public policy argument that this Courts failure to dismiss, at this juncture without the presentation of any evidence, would lead to havoc and substantial disruption within corporations and companies. Def. Mtn. to Dismiss pgs. 2, 1113. Mr. Coats has never insinuated or averred that employers should lose their ability to regulate or control the work place environment within a reasonable manner. This case only addresses what employers may or may not legally do to employees about the use of medical marijuana after work, off company property in the context of C.R.S. 24-34-402.5. Thus, defendants public policy must fail for the following reasons: 1) it is not part of plaintiffs complaint; 2) the defendant has raised this issue for the first time in a C.R.C.P. 12(b)(5) motion. DISPELLING THE DEFENDANTS CLAIMS 10. The defendant incorrectly claims that Mr. Coats denies or fails to recognize that marijuana is currently illegal under federal law. Def. Mtn. to Dismiss pgs.2-4. Contrary to that assertion, Mr. Coats has always acknowledged that the use of marijuana is deemed illegal pursuant to the Controlled Substances Act, CSA, and in fact was responsible for providing the defendant with the actual citation, 21 U.S.C. 801 et. seq. It was the defendant who claimed that Mr. Coats ignored this issue. The defendant also incorrectly claims that Mr. Coats is arguing that Colorado abrogated, super-ceded, and / or pre-empted federal law through passing Colo. Const. Art. 18, 14. Def. Mtn. to Dismiss pgs.3-5. Mr. Coats never made this argument in his complaint. It was the defendant who suggested these legal theories. As addressed in further detail later, Mr. Coats will explain how a Colorado state law may co-exist with a federal law. 11. The defendant incorrectly summarizes and completely misstates Mr. Coats complaint regarding what Colo. Const. Art. 18, 14 conveys. Def. Mtn. to Dismiss pg.2, a-c; pgs.4, 6-7. As addressed in further detail later, a patients use of medical marijuana in Colorado is not a specifically enumerated, legally sanctioned activity. Mr. Coats has never claimed that it is. It was the defendant who claimed marijuana was legalized. The plaintiff has averred twice, and purposefully, in his complaint, that medical marijuana use is a legally permissible activity in the State of Colorado subject to the provisions of Colorado's Constitution Article 18, Section 14. Complaint pg.2, 12; pg.5, 50. He also provided the citation to the affirmative defense provision of Colo. Const. Art. 18, 14(2)(a) to the defendant, as well as Sec. 14(4)(a), [a] patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition. Mr. Coats will explain the differences between legalized activity and permissible activity in more detail later, including addressing the dissent opinion in Beinor v. Indus. Claim Appeals Office, ___ P.3d ___ 2011, (A patients medical use of marijuana, within [certain listed] limits, is lawful). 12. The defendant incorrectly asserts that Mr. Coats is advocating that employers completely lose their ability to discharge any at-will employee for being under the influence of marijuana. Def. Mtn. to Dismiss pgs.1, 7-8. Mr. Coats never made this argument in his complaint. It is the defendant that came up with this theory. Mr. Coats has averred that he was not under the influence and that the presence of THC in his system was not dispositive Page 3 of 20

of being under the influence. Complaint pgs. 3, 29, 5, 54. Mr. Coats also averred that throughout three (3) years of employment, he received average to above average performance reviews by The defendant throughout his term of employment and was never accused of or disciplined by The defendant for being under the influence of marijuana at work, using marijuana during working hours, or using marijuana on company property. Complaint pg.5, 54-56. In fact, Mr. Coats would actually advocate the opposite of what defendant claims - that employees who are impaired by being under the influence of any controlled substance or alcohol in the work place can be terminated by the employer. 13. The defendant incorrectly asserts that Mr. Coats is advocating employers be required to accommodate employees who engage in medical marijuana use at the work place. Def. Mtn. to Dismiss pgs. 7-11. Mr. Coats has never plead, requested, or even insinuated that employers should be required to accommodate medical marijuana use at the work place. In fact, Mr. Coats provided defendants with the citation under Colo. Const. Art. 18, 14(10)(b) where it states exactly the opposite. It was the defendant who suggested this accommodation. This case only addresses what employers may or may not legally do to employees about the use of medical marijuana after work, off company property in the context of C.R.S. 24-34-402.5. Mr. Coats will explain the differences after work, off property activities in more detail later, including addressing the dissent opinion in Beinor v. Indus. Claim Appeals Office, ___ P.3d ___ 2011, (addressing the terms medical use as it applies to in the work place). 14. The defendant repeatedly cites C.R.S. 23-34-402.5 throughout its motion, perhaps incorrectly. This article deals with state universities and colleges, and no such subsection exists. Mr. Coats sole cause of action against the defendant is based on C.R.S. 24-34402.5, as plead in the complaint. STATEMENT OF FACTS I. Uncontested Facts

15. Between 2007 and 2010, the defendant employed Mr. Coats as a full time, at-will employee. Complaint pg.2, 9-10; Def. Mtn. to Dismiss pgs.1-3. 16. Mr. Coats job title throughout this entire period was customer service representative, which meant answering phone calls. Complaint pg.2, 9; Def. Mtn. to Dismiss pg.2, 1. 17. Mr. Coats is, and was at all relevant times, a licensed medical marijuana patient as contemplated under the laws of the State of Colorado, including Colo. Const. Art. 18, 14. Mr. Coats possessed a valid Colorado physicians recommendation for the use of medical marijuana, as well as all the appropriate documentation and forms permitting its use. Complaint pg.2, 14-15; Def. Mtn. to Dismiss pg.2, 2. 18. The use of marijuana, for any purpose, is, and was at all relevant times, considered to be an illegal act under federal law, specifically 21 U.S.C. 801 et. seq.

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19. Mr. Coats only used medical marijuana in the privacy of his own home. He never used or possessed it during work hours or anywhere at the defendants place of business. Complaint pg.2, 16-17; Def. Mtn. to Dismiss pg.3, 3. 20. The results of Mr. Coats involuntary drug test for the defendant May 21, 2010 were accurate and revealed the presence of tetrahydrocannabinol, THC. THC is found in marijuana. Complaint pg.3, 21-28; Def. Mtn. to Dismiss pg.3, 5. 21. Coats was terminated on June 7, 2010 by the defendant for testing positive for THC, which was logically a result of his use of medical marijuana while in the privacy of his own home. Complaint pg.4, 39-41; Exhibit 4 attached to Complaint; Def. Mtn. to Dismiss pg.3, 6. 22. The mere presence of THC in Mr. Coats' system is not dispositive of Mr. Coats being under the influence and no standard exists in Colorado for determining the level at which a user becomes under the influence or intoxicated. Complaint pgs. 3, 29, 5, 54. Def. Mtn. to Dismiss pg. 11. 23. This is a case of first impression and there is no substantive binding law on point in the State of Colorado. Def. Mtn. to Dismiss pg.9. 24. Allowing employees who use medical marijuana to be completely unregulated probably would have negative effects on companies and corporations. Def. Mtn. to Dismiss pgs. 2, 11-13. (But Mr. Coats is not advocating free reign to medical marijuana patients, but rather a more balanced approach as argued below.) II. Facts Likely To Be Uncontested

25. The defendant is, and was at all relevant times, a Colorado corporation. Complaint pg.1, 2; Colorado Secretary of States Business Records and Affidavit of Service executed at 9601 S. Meridian Blvd, Englewood, Colorado. 26. The place of defendants employment was at all relevant times located in Colorado. Complaint, pg.1, 3. 27. Mr. Coats is, and was at all relevant times, a Colorado citizen. Complaint, pg.1, 4. ARGUMENT Legal v. Not Illegal or Permissive 28. As stated above, the defendant incorrectly summarizes and completely misstates Mr. Coats complaint regarding what Colo. Const. Art. 18, 14 conveys. Def. Mtn. to Dismiss pg.2, ac; pgs.4, 6-7. It was the defendant who claimed marijuana was legalized, even though Mr. Coats identified the affirmative defense and permissive use citations of Colo. Const. Art. 18, 14(2)(a) and (4)(a) to the defendant originally.

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29. As plead in the complaint, medical marijuana use is a legally permissible activity in the State of Colorado subject to the provisions of Colorados Constitution Article 18, Section 14. The State of Colorado passed the constitutional amendment in 2000 for people in Mr. Coats condition who have an enumerated debilitating condition and a licensed physician recommending its use. 30. The Colorado constitutional amendment provides for two things: 1) an affirmative defense under (2)(a); and 2) permissive use for licensed patients under (4)(a). Although a patients use of medical marijuana in Colorado is not a specifically enumerated, legally sanctioned activity, neither is driving a vehicle, or defending yourself and / or your home. 31. First, the affirmative defense provided to patients who use medical marijuana under Sec. 14(2)(a) reads as follows: Except as otherwise provided in subsections (5) [use of marijuana endangering health, well-being, or in plain view to general public], (6) [under 18 years of age], and (8) [fraud] of this section, a patient or primary care-giver charged with a violation of the state's criminal laws related to the patient's medical use of marijuana will be deemed to have established an affirmative defense to such allegation where: (I) The patient was previously diagnosed by a physician as having a debilitating medical condition; (II) The patient was advised by his or her physician, in the context of a bona fide physician-patient relationship, that the patient might benefit from the medical use of marijuana in connection with a debilitating medical condition; and (III) The patient and his or her primary caregiver were collectively in possession of amounts of marijuana only as permitted under this section. (emphasis added). 32. To understand how an affirmative defense works, it is necessary to understand what a crime is. Criminal behavior in Colorado is provided for in Title 18 of the Colorado Revised Statutes. Pursuant to C.R.S. 18-1-104(1), [t]he terms "offense" and "crime" are synonymous and mean a violation of, or conduct defined by, any state statute for which a fine or imprisonment may be imposed. C.R.S. 18-1-103(1) states Title 18 govern[s] the construction of and punishment for any offense defined in any statute of this state, whether in this title or elsewhereas well as the construction and application of any defense to a prosecution for such an offense. Possession of marijuana, or other controlled substances is provided for in C.R.S. 18-18 et. seq. Finally, C.R.S. 18-1-102(a) states the purpose of the criminal code (Title 18), is to define offenses, define offenses, to define adequately the act and mental state which constitute each offense, to place limitations upon the condemnation of conduct as criminal when it is without fault, and to give fair warning to all persons concerning the nature of the conduct prohibited and the penalties authorized upon conviction. Subsection (d) of the same statute protects against arbitrary or oppressive treatment of persons accused or convicted of offenses. 33. If an affirmative defense to a crime exists by way of statute or common law, the governing body is recognizing, implicitly, that the conduct is not criminal. See C.R.S. 18-18-406.3. Even the defendant admits that affirmative defenses are complete defenses to a Page 6 of 20

crimemeaning no crime has been committed. Def. Mtn. to Dismiss pgs.6-7. The opposite of criminally culpable behavior logically must be legally permissible behavior. 34. One of the affirmative defenses available in Colorado is called legal justification. Blacks defines justification as Just, lawful excuse or reason for acting or failing to act. Blacks Sixth Edition. 35. Legal justification is explained poignantly in People v. Reed, 932 P.2d 842 (Colo. App. 1996), which holds that lawful possession of marihuana under 18-18-406(10) is an affirmative defense to charges of unlawful possession with intent to distribute marihuana and unlawful possession of eight or more ounces of marihuana. The provision provides a legal justification to what would otherwise be criminally culpable behavior. The defendant doesnt even cite binding authority for what an affirmative defense is in Colorado, citing only 2nd and 9th Circuit Appellate cases. Def. Mtn. to Dismiss pgs. 6-7. 36. The second provision of the amendment is found under Colo. Const. Art. 18, 14(4)(a), [a] patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition. The defendant ignored this provision in its motion. In any case, this is an additional, textual example medical marijuana use being a legally permissible activity in the State of Colorado. See also dissent in Beinor v. Indus. Claim Appeals Office, ___ P.3d ___ 2011, (A patients medical use of marijuana, within [certain listed] limits, is lawful). 37. In conclusion, medical marijuana use is a legally permissible activity in the State of Colorado subject to the provisions of Colorados Constitution Article 18, Section 14. What Conduct Does a Colorado Statute Cover? 38. Mr. Coats complaint is based entirely upon state claims involving state substantive law, not federal law. 39. The defendant argues, without any support, that the State of Colorado envisioned C.R.S. 24-34-402.5 to cover both state and federal law to include the Controlled Substances Act, CSA. Def. Mtn. to Dismiss pgs. 2-7. 40. When construing a statute, courts effectuate the intent of the General Assembly; courts look to the plain meaning of the statutory language and consider it within the context of the statute as a whole. Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011). Courts construe the entire statutory scheme to give consistent, harmonious, and sensible effect to all parts. Id. Courts give effect to words and phrases in a statute according to their plain and ordinary meaning. Id. If the statutory language is clear, courts apply it. Id. If the statutory language is ambiguous, courts may use other tools of statutory interpretation to determine the General Assembly's intent. Id. Courts avoid statutory interpretations that would lead to an absurd result. Id. See also Bly v. Story, 241 P.3d 529, 533 (Colo. 2010).

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41. First, the defendant has provided no example where a Colorado court has ever held that a Colorado statute was interpreted to incorporate provisions of federal statutes or federal case law. 42. In support of its argument, the defendant even suggests this Court would have to improperly add the words under Colorado state law if the plain language of 24-34-402.5 did not cover both state and federal law. Def. Mtn. to Dismiss pg.6. Ironically, it is actually the defendants theory that would require the additional words of under federal and state law to the existing statutory language. 43. State laws are made by state legislatures to govern and control state actions. They are then interpreted by state courts. This is especially obvious in the context of Article 34 of Title 24, which is dedicated to the Colorado Department of Regulatory Agencies. This is a state agency. 44. The subsection cited under this article for a state agency is titled Employment Practices and specifically defines the types of discriminatory or unfair employment practices by the State of Colorado and to be enforced by the state agency or state courts. 45. The specific statute plead in the complaint reads as follows: It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction: (a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or (b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest. (2) (a) Notwithstanding any other provisions of this article, the sole remedy for any person claiming to be aggrieved by a discriminatory or unfair employment practice as defined in this section shall be as follows: He or she may bring a civil action for damages in any district court of competent jurisdiction and may sue for all wages and benefits that would have been due him or her up to and including the date of the judgment had the discriminatory or unfair employment practice not occurred; except that nothing in this section shall be construed to relieve the person from the obligation to mitigate his or her damages. (b) (I) If the prevailing party in the civil action is the plaintiff, the court shall award the plaintiff court costs and a reasonable attorney fee[s]. (II) This paragraph (b) shall not apply to an employee of a business that has or had fifteen or fewer employees during each of twenty or more calendar work weeks in the current or preceding calendar year. C.R.S. 24-34-402.5. 46. In contrast, the federal agency in charge of employment practices is the Equal Employment Opportunity Commission (EEOC), which regulates and enforces a body of federal substantive law addressing discrimination in the work place, including: the Americans with Disabilities Act 1991 (ADA Title I and Title V), the Civil Rights Act of 1964 (Title VII), the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967 (ADEA), the Page 8 of 20

Equal Pay Act of 1963 (EPA), the Genetic Information Nondiscrimination Act of 2008 (GINA Title II). 47. Because the EEOC, exclusive of any state agency, can regulate and enforce employment practices in both state and federal arenas, construing a state statute to purport to enforce a federal law is illogical and impossible. 48. An even more basic a concept is the State of Colorado, in no way shape or form, can prosecute individuals for violations of any federal law. Nor does the federal government need the State of Colorado to supplement or interpret its own substantive law. There is a federal legislature and federal courts for that purpose. In People v. Tilehkooh, 7 Cal. Rptr. 3d 226 (Cali. App. 2003), the court found that California courts "long ago recognized that state courts do not enforce the federal criminal statutes." The same Court also stated "the federal criminal law is cognizable as such only in the federal courts." In People v. Kelly, 38 Cal. 145 (CA 1869), it was determined that "State tribunals have no power to punish crimes against the laws of the United States as such. The same act may, in some instances, be an offense against the laws of both, and it is only an offense against the State laws that it can be punished by the State, in any event." 49. What makes this case more problematic for the defendant is it is a Colorado corporation, incorporated and doing business under the laws of this state, and not under the laws of the federal government. As such, it is not allowed to sit and selectively choose what Colorado laws it will follow and what laws it will ignore under the guise of furthering some federal objective. Whether it agrees with Colorado law or not, the defendant is beholden to it. 50. In conclusion, Mr. Coats complaint is based entirely upon state claims involving state substantive law, not federal law. Federal Law v. State Law Medical marijuana as a purely intra-state activity 51. Medical marijuana is a purely intra-state activity, which does not have a direct or indirect impact on inter-state commerce, which would trigger the interstate commerce clause of the United States Constitution Article I, Section 8. There are numerous examples to support this averment regardless of the ruling in Gonzales v. Raich, 545 US 1 (2005). 52. In 2010, Colorado enacted Colo. Rev. Stat. 12-43.3 et. seq. to regulate medical marijuana businesses. This legislative body requires the following intra-state activities: a. No medical marijuana commercial business can be transacted in Colorado without a license first being issued by the State of Colorado. b. Second, no medical marijuana commercial business licensed in the state can be transacted with businesses outside the State of Colorado. See C.R.S. 12-43.3-402(4); 403.

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c. A licensed Colorado medical marijuana business may either: 1) grow its own marijuana within the State in a pre-approved, licensed location; or 2) it may buy marijuana from another licensed Colorado business. d. Third, pursuant to C.R.S. 12-43.3-307(XIII), any person who has not been a resident of Colorado for at least two (2) years prior to the date of applying for a state issued commercial license cannot operate a medical marijuana commercial business. e. Any person who is not a resident of Colorado cannot be an owner, manager, or even an employee of a medical marijuana commercial business. See C.R.S. 12-43.3310(6). f. Even out of state financial assistance is restricted unless the source is licensed by the State of Colorado, having met all the licensing requirements aforementioned. See C.R.S. 12-43.3-313(3). g. Fourth, medical marijuana personal use cannot occur without a license first being issued by the State of Colorado. See Colo. Const. Art. 18. Sec. 14(1)(g); (3)(c). h. Residency within the state is required on both the user and commercial sides of medical marijuana. i. A patient must be a resident of the State of Colorado before being approved for and receive a state-issued license. See Colo. Const. Art. 18. Sec. 14(3)(b). j. Any physician approving or recommending the use of medical marijuana to a patient must have a license to practice medicine issued by the State of Colorado. See Colo. Const. Art. 18. Sec. 14(1)(e); (3)(c). States assertion of police powers 53. Colorado has expressly asserted the powers that were reserved to the states by the United States Constitution 10th Amendment, specifically the police powers, including general health and welfare. In 2010, the State of Colorado enacted Colo. Rev. Stat. 12-43.3 et. seq. to regulate medical marijuana businesses. This legislation falls under Title 12, and is designated as Health Care. 54. Pursuant to C.R.S. 12-43.3-102(1), the legislative declaration expressly states, [t]he General Assembly hereby declares that this Article shall be deemed an exercise of the police powers of the state for the protection of the economic and social welfare and the health, peace, and morals of this State. 55. Colorado has recognized broad power of general assembly in area of police power. Police power relates to public physical, mental, and financial safety. People ex rel. Dunbar v. Gym of America, Inc., 177 Colo. 97, 493 P.2d 660 (1972). 56. Police powers are, from the point of view of state courts, also restricted by state constitutions. The concept of police power is used by federal courts which do not have jurisdiction to interpret state constitutions: from the point of view of federal constitutional law, states have general police powers except where restricted by the federal Constitution. "Congress cannot compel the States to enact or enforce a federal regulatory program." See Printz v. United States, 521 US 898, 935, 117 S Ct 2365, 138 L Ed 2d 914 (1997) (so stating); New York v. United States, 505 US 144, 162, 112 S Ct 2408, 120 L Ed 2d 120 (1992) (stating that "the Page 10 of 20

Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress's instructions"). 57. Police power is inherent attribute of sovereignty with which the state is endowed for the protection and general welfare of its citizens. The constitution presupposes the existence of the police power and is to be construed with reference to that fact. In re Interrogatories of Governor, 97 Colo. 587, 52 P.2d 663 (1935). The Controlled Substance Act Does Not Preempt State Law 58. Under the Supremacy Clause, Art. 4, Clause 2, Congress has the power to preempt state law. The Federal Controlled Substances Act, 21 USC 801 et seq., prohibits the manufacture, distribution, dispensation, and possession of marijuana even when state law authorizes its use to treat medical conditions. See also Gonzales v. Raich, 545 US 1, 29, 125 S Ct 2195, 162 L Ed 2d 1 (2005); see United States v. Oakland Cannabis Buyers' Cooperative, 532 US 483 (2001) (holding that there is no medical necessity exception to the federal prohibition against manufacturing and distributing marijuana). In the past, many courts have held that the Controlled Substance Act (Controlled Substances Act) preempted state law. 59. However, in 2010, the California Court of Appeals ruled that the Controlled Substances Act did not preempt state law. Qualified Patients Assn v. City of Anaheim, 187 Cal. App. 4th 734, (Cal. App. 2010). Federal law will not preempt state law unless state law mandates conduct prohibited by federal law or prevents enforcement of a federal law. Id. at 757. 60. The State of Colorado enacted Colo. Rev. Stat. 12-43.3 et. seq. to regulate medical marijuana. The regulation of medicine and criminal drug charges is within state police powers. Qualified Patients Assn., 187 Cal. App. at 757. 61. However, federal law will still preempt state law if there is a conflict between the two laws and compliance of both is impossible. Id. at 758. Further, federal law will preempt state law when the state law acts as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress. Id. However, there is no conflict simply because Congress chose to prohibit the possession of a drug while the state has decided otherwise. Id. at 759. . . . [A] citys compliance with state law in the exercise of its regulatory, licensing, zoning or other power with respect to the operation of medical marijuana dispensaries that meet state law requirements would not violate conflicting federal law. Id. The Controlled Substances Acts goal is not to regulate the medical field, it is to fight recreational drug use. Id. at 760. (See Gonzales v. Oregon, 546 U.S. 243, 272-73 (2006). 62. The Colorado Constitution, Art. 18. Sec. 14, creates both a permissive use and an exemption from state criminal prosecution instead of requiring the use of medical marijuana. Therefore, Colorados Medical Marijuana Act and constitutional amendment permit the compliance of the Controlled Substances Act.

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63. In an analogous case, the U.S. Supreme Court held that the Controlled Substances Act does not preempt state law when it comes to physician-assisted suicide. Gonzales v. Oregon, 546 U.S. 243, 244 (2006). There, the state allowed physicians to use a drug regulated by the Controlled Substances Act. Id. Under the Controlled Substances Act, prescribing a drug for the purpose of death is unlawful and not considered an acceptable medical use. Id. However, under state law, physicians were permitted to provide the drug at the patients request. Id. at 252. The patient was required to have been diagnosed with an incurable disease which would reasonably have caused death within six months. Id. Furthermore, the Court noted that at the time the Controlled Substances Act was drafted in 1971, the regulation could not have been justified as indicative of some intent the Attorney General had during the time of creation. Id. at 258. The 1984 amendments to the Controlled Substances Act allowed the Attorney General to register physicians based on public interest. Id. The Court held the Attorney General was not authorized to create rules making it unlawful to any medical treatment which is considered lawful under state law. Id. at 259. The structure of the Controlled Substances Act conveys unwillingness to cede medical judgments to an executive official who lacks medical expertise. Id. Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally. The silence is understandable given the structure and limitations of federalism, which allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons. Gonzales, 546 U.S. at 270. 64. Here, as noted in Gonzales, Congress intent when creating the Controlled Substances Act was not to ban medical marijuana for medical purposes. Rather, its main objective was to ban recreational use. The known effects of medical marijuana did not occur until after the Controlled Substances Act was created. Colorados Medical Marijuana Act does not contradict the Controlled Substances Act. 65. Colorados goal is still to ban the recreational use of marijuana. However, the state has learned of the positive effects of using medical marijuana and therefore, has allowed its use under strict restrictions and regulations. Similar to California, Colorados goals of allowing medical marijuana use, does not prevent the enforcement of federal law. Therefore, the Controlled Substances Act does not preempt Colorados Medical Marijuana Act nor the constitutional amendment. Distinguishing Emerald Steel v. Bureau of Labor 66. In April of 2010, the Oregon Supreme Court narrowly held that, in the context of an employers duty to engage in meaningful discussions and accommodate an employees disabilities, the Federal Controlled Substances Act, (21 U.S.C. 801 et. seq.), impliedly preempted Oregon state law, (O.R.S. 475.306(1)), which exempted persons using medical marijuana from state criminal prosecution, and the employer did not have to accommodate the medical marijuana employee under the Supremacy Clause of the United States Constitution, Art. VI, Sec. 1.

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67. Besides the difference in jurisdictions, Brandon Coats case can be distinguished from Emerald Steel in many ways. First, Mr. Coats position with the defendant does not create an occupational safety issue, nor was it a dangerous activity. The steel mill worker at Emerald operated heavy machinery, which could make him a hazard and liability for the company if engaging in drug use. It should be noted, however, that neither Emerald Steel, nor the defendant, felt either of their respective employees were in any way under the influence while at work, and each received acceptable performance reviews despite the presence of THC detected in their systems during drug tests. In addition, neither employee engaged in the use of medical marijuana while on-duty or on-site. 68. Second, the State of Colorado has both a constitutional provision, as well as a statutory scheme, that regulates and legalizes medical marijuana. The defendant is a Colorado corporation with its principal place of business in Englewood, Colorado. Colorado law has a very strong influence in this case. 69. Third, Mr. Coats is bringing only state claims against The defendant, and the state claims dealing with disabilities and handicaps do not state, as did the Oregon statute, that they must be interpreted consistently with the ADA federal statute. Mr. Coats is not saying that his employer needs to reasonably accommodate his disability or have a meaningful interactive process. Rather, because Mr. Coats is legally permitted to use and possess medical marijuana in Colorado, he cannot then be fired for any legal conduct that occurs off-duty and off-site pursuant to statute. 70. Fourth, the Oregon Supreme Court did not address or analyze what effect, if any, a purely intra-state activity would have on the inter-state commerce clause of Art. 1, Sec. 8, and Congress ability to enact or enforce a federal law in the states. Employers Right To Control An Employees Conduct Always? The Protections of 24-34-402.5 71. As stated above, the defendant incorrectly asserts that plaintiffs are advocating employers be required to accommodate employees who engage in medical marijuana use at the work place. Def. Mtn. to Dismiss pgs. 7-11. The defendant even starts out Coats may argue, then proceeds on a rant about smoking being permitted in hotel rooms, firefighters under the influence while running into a burning building, and doctors operating while smoking a joint. 72. Mr. Coats has never plead, requested, or even insinuated that employers should be required to accommodate medical marijuana use at the work place. In fact, Mr. Coats provided defendants with the citation under Colo. Const. Art. 18, 14(10(b) where it states exactly the opposite. See also dissent opinion in Beinor v. Indus. Claim Appeals Office, ___ P.3d ___ 2011, (addressing the terms medical use as it applies to in the work place). 73. This case only addresses what employers may or may not legally do to employees about the use of medical marijuana after work, off company property in the context of C.R.S. 24-34402.5. As defendant admits, there is no binding law in Colorado on point to address this issue. Def. Mtn. to Dismiss pg.9. Page 13 of 20

74. Colo. Const. Art. 18. Sec. 14(10)(b) is silent on what employers may or may not do about the use of medical marijuana after work or off of company property. However, that silence must also be considered in light of the fact that both the federal and Colorado constitutions have several fundamental guarantees of privacy and protection for what someone may do within their own home. Those guarantees apply to both law enforcement and employers. 75. Additionally, Colo. Const. Art. 18, Sec. 14(2)(e) provides for a protected property interest for medical marijuana users against law enforcement, including a possibility to seek redress through civil damages: Any property interest that is possessed, owned, or used in connection with the medical use of marijuana or acts incidental to such use, shall not be harmed, neglected, injured, or destroyed while in the possession of state or local law enforcement officials where such property has been seized in connection with the claimed medical use of marijuana. Any such property interest shall not be forfeited under any provision of state law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense or entry of a plea of guilty to such offense. 76. Although employers are not required to accommodate medical marijuana use under Colo. Const. Article 18, Section 14, they also cannot punish an employee for legal off-duty, offpremises conduct pursuant to Colo. Rev. Stat. 24-34-402.5(1): It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction: (a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or (b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest. (2) (a) Notwithstanding any other provisions of this article, the sole remedy for any person claiming to be aggrieved by a discriminatory or unfair employment practice as defined in this section shall be as follows: He or she may bring a civil action for damages in any district court of competent jurisdiction and may sue for all wages and benefits that would have been due him or her up to and including the date of the judgment had the discriminatory or unfair employment practice not occurred; except that nothing in this section shall be construed to relieve the person from the obligation to mitigate his or her damages. (b) (I) If the prevailing party in the civil action is the plaintiff, the court shall award the plaintiff court costs and a reasonable attorney fee[s]. (II) This paragraph (b) shall not apply to an employee of a business that has or had fifteen or fewer employees during each of twenty or more calendar work weeks in the current or preceding calendar year. (emphasis added). 77. Section 24-34-402.5(1) applies to any and all lawful off-duty conduct. Watson v. Public Service Co. of Colo., 207 P.3d 860, 865 (Colo. 2008). Examples of off-duty conduct include taking proscription drugs. Unspecified lawful activities, 4 Emp. Discrim. Coord. Analysis of Page 14 of 20

State Law 9:11. This statute was first proposed by the tobacco lobby to protect the rights of smokers. Id. at 8. (Referencing, Jessica Jackson, Colorados Lifestyle Discrimination Statute: A Vast and Muddled Expansion of Traditional Employment Law, 67 U. Colo. L.Rev. 143 n. 5 (1996)). 78. The statute provides employers two exceptions: if the activity 1) relates to a bona fide occupation requirement or it is reasonably related to employment activities and responsibilities of the employee; or 2) if it is necessary to avoid a conflict of interest or appearance of a conflict with any responsibilities of an employer. In Marsh v. Delta Airlines, Inc., the Colorado District Court held that the conflict of interest exception was probably crafted to allow employers to require certain high profile members of their staff from foregoing involvement in activities that would call into question their competence. 952 F. Supp. 1458, 1463 (Colo. 1997). There, an employee drafted a letter criticizing the company, which a local newspaper published. Id. The court rejected the companys argument that the conflict of interest exception applied because the employee was not a high profiled member of their staff. Id. Further, the court rejected the companys argument that the letter resulted in a conflict of interest or an appearance of a conflict between the company and the employee. Id. at 1464. A conflict of interest relates to one of the employees duties being in disregard to another duty or the employee being in a fiduciary relationship that relates to matters of personal gain or interest. Id. The court held that although it was against company policy for the employee to make a photocopy of the letter using a company machine, the employee drafted the letter at home and off-duty. Id. However, the court granted the companys motion for summary judgment on the ground that the employee had an implied duty of loyalty under the first exception, subsection 1(a). Id. 79. This case is distinguishable from Marsh because Mr. Coats did not violate his implied duty of loyalty to the company. Mr. Coats was a committed and loyal employee for three consecutive years with satisfactory reviews. In addition, the second exception to the rule does not apply because there was no conflict of interest. Mr. Coats was one of hundreds of Customer Service Representative employees, not a high profiled member of The defendants staff. Distinguishing Beinor v. Indus. Claim Appeals Office 80. In Beinor, the plaintiff did not plead or elect to proceed under any claim involving C.R.S. 24-34-402.5 for conduct after work hours, off company property. The Court of Appeals specifically held that it was not deciding whether the amendment limits an employer from discharging an employee for using medical marijuana. Therefore, this case is not on point. 81. The plaintiff, Beinor, sought unemployment benefits through his employer under C.R.S. 873-108(5)(e)(IX.5) after being terminated for testing positive for marijuana use, which was purportedly in violation of an employers drug policy. The Court held that it was proper to deny him unemployment benefits, focusing on the fact that there was a zero-tolerance drug policy in force and effect at the time of the plaintiffs termination.

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82. The holding in Beinor should be construed narrowly as to the plaintiffs denial of unemployment benefits under C.R.S. 8-73-108(5)(e)(IX.5) for a violation of C.R.S. 1222-303(7) and / or an employers employment contract, rather than being interpreted as affording the employer the right to be able to control an employees legally permissible conduct in his own home, after work hours and off company property. A broader holding would necessarily implicate Fourth Amendment issues. 83. The defendant has not submitted, nor is there any evidence in the pleadings or its motion of its policies and practices regarding the use of controlled substances. Even if such a policy was presented to this Court, it would not help resolve the issue of whether an employer may control an employees legally permissible conduct after work and off company property and in context of C.R.S. 24-34-402.5. 84. If this Court applied the same logic in Beinor to this case, then arguably an employer could prohibit for virtually anything with the employee through a contract and not worry about violating C.R.S. 24-34-402.5. A Coors employee could be contractually required not to drink a Budweiser beer, even on the weekends, and even while watching a football game in his own home. Or even more to the point, an employer could contractually require their employees to refrain from drinking alcohol at all, anytime, anywhere. Theoretically, there could be all kinds of policies and procedures popping up from employers that circumvent the statutory restrictions placed on them by the legislature under the guise of a contract. 85. Assuming that these types of prohibitive contracts existed, surely they would have to be rationally related to achieving some legitimate objective. In Beinor, it is fair to assume that the zero-tolerance policy was designed to avoid intoxicated employees from coming into work and causing accidents, getting hurt, or making mistakes. 86. Unfortunately, a zero-tolerance policy does not adequately the complexities of how marijuana works in the human body, and the Court of Appeals did not deal with the factual issues averred in this case that the mere presence of THC in an employees system is not dispositive of that employee being under the influence. In Beinor the hearing officer declined to consider claimants statements because no expert addressed the meaning of the results or the effects due to the reported level of marijuana. Because evidence as to the effect on the amount of marijuana detected in claimant was neither offered nor considered below, we may not address these contentions here. 87. In conclusion, the Court will have to decide for the first time whether employers may or may not legally do to employees about the use of medical marijuana after work, off company property in the context of C.R.S. 24-34-402.5. Under The Influence or Not? 88. As plead in his complaint, and therefore taken as true in the light most favorable to the plaintiff, The mere presence of THC in Mr. Coats' system is not dispositive of Mr. Coats being under the influence. Complaint pgs. 3, 29, 5, 54. If allowed, plaintiff would present substantial medical evidence in support of this averment. Page 16 of 20

89. Even absent this medical evidence, plaintiff averred that throughout three (3) years of employment, Mr. Coats received average to above average performance reviews by The defendant throughout his term of employment. He was even complimented on his job performance by Ms. Jennifer Bellmire, (Bellmire), of DISH human resources. Mr. Coats was never accused of or disciplined by the defendant for being under the influence of marijuana at work, using marijuana during working hours, or using marijuana on company property. Complaint pg.5, 54-56. 90. It is interesting to see the defendant trying to handle these two damaging points to its case, and eventually - contradict itself. On one hand, the defendant argues that there is no way to tell is someone is under the influence of marijuana. On the other hand, the defendant argues that marijuana severely impairs an employees ability to function and even attaches supposed medical evidence. 91. Addressing the first argument, the defendants having been caught between a rock and a hard place, seem to embrace and admit the fact that plaintiff received satisfactory performance reviews and was never suspected of being under the influence of marijuana at work. They then quickly follow up with the convenient and improbable excuse, [n]or could he; no standard exists in Colorado for determining the level at which a user becomes under the influence or intoxicated and it is not possible to say whether Coats was, or was not under the influence or intoxicated. Def. Mtn. to Dismiss pg.11. Mr. Coats, if permitted, would be able to introduce medical evidence in direct opposition of that claim that testing could, in fact, determine the level of intoxication and being under the influence. 92. Nonetheless, the defendant quickly dispenses with this first argument in exchange for a much more provocative one the medical science. Numerous medical authorities have identified problems associated with the use of marijuana states the defendant as it attaches exhibits. Def. Mtn. to Dismiss pg. 12. That untested claim is followed, and apparently corroborated by a list symptoms frequently seen in medical marijuana use which includes: increased health problems; frequent sick days; compromised ability to learn and remember; diminishing intellectual, social, and job performance skills; increased accidents, absences, etc. The defendant neglected to include the medical evidence that shows similar symptoms in employees who smoke tobacco, who are overweight or eat unhealthy foods, etc. 93. Defendants second, and untested argument of medical science even if considered accurate and not contradictory - is quickly diffused where the facts averred in this case show that Mr. Coats received satisfactory performance reviews over a three (3) year period and was never suspected of being under the influence of marijuana at work. Complaint pg.5, 54-56. 94. In conclusion, Mr. Coats believes one of the key issues to be tried in this case to the fact finder, not previously addressed in Beinor, is whether the mere presence of THC in Mr. Coats' system is dispositive of Mr. Coats being under the influence. For that reason alone, Defendants C.R.C.P. 12(b)(5) motion to dismiss must fail.

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Public Policy For Whom? 95. As stated above the defendant attempts to garner sympathy to advance the public policy argument that this Courts failure to dismiss, at this juncture without the presentation of any evidence, would strip an employer right to discharge employees who are under the influence of marijuana and lead to havoc and substantial disruption within companies and corporations. Def. Mtn. to Dismiss pgs. 2, 11-13. The defendant also throws in the fact that it would be financially affected if it did not receive government contracts because it did not comply with the Drug-Free Work Place. Def. Mtn. to Dismiss pg. 12. 96. Mr. Coats acknowledges that allowing employees who use medical marijuana to be completely unregulated probably would have negative effects on companies and corporations in Colorado. But Mr. Coats is not advocating free reign to medical marijuana patients. 97. It is not an all or nothing situation as the defendant suggests. Employees and employers have rights and interests that need to be taken into account. 98. Therefore, if the Court is going to entertain this public policy argument, Mr. Coats takes the position that rationally related laws or regulations that achieve a balance in a patients right to receive medical treatment with an employers interest in sobriety in the work place are the fair solution to this problem. 99. Examples of such regulation could be occupational restrictions on the type of work performed (hazardous activities v. desk jobs); increased performance evaluations and monitoring; and enhanced drug testing which detects levels of THC and looks for signs of immediate use such as smell, or immediate impairment such as eye response and speech. Many employees currently take prescription medication that all have some impact on their mental and physical functioning at the work place. 100. The defendant has failed to present any evidence or quantify what effect, if any, it would have on companies and corporations. It also has failed to recognize the flip side of its havoc and disruption argument for the human work force. 101. Mr. Coats, through data collected by the Colorado Department for Public Health (available for judicial notice pursuant to C.R.E. 201), provides the real life statistics of the people, the patients who are employees, who would be affected by a ruling: a. Over one hundred twenty seven thousand, eight hundred sixteen (127,816) Colorado citizens who are medical marijuana patients and registered with the Colorado Department of Public Health would likely face termination or become unemployable. That is roughly the size of two Mile High Stadiums. i. Of that total, eleven thousand four hundred thirteen (11,413) would be residents of Arapahoe County. Page 18 of 20

b. The average age of a patient is forty-one (41) years old, which means not only that they are contributing members of society, but also likely to be supporting spouses and / or children. c. One thousand, one hundred (1,100) licensed medical physicians in the State of Colorado have recommended marijuana to one or more of these patients. i. Severe pain accounts for ninety-four (94%) percent of all reported conditions; muscle spasms account for the second-most reported condition at nineteen (19%) percent. Medical marijuana Registry Program Update July 31, 2011 by CDPHE. 102. Both parties have compelling arguments, which is why this Court refuse to handle this matter as the defendant suggests as an all or nothing situation. This Court has the ability to balance and make a fair and rational decision that affects all parties involved. C.R.C.P. 12(b)(5) v. C.R.C.P. 56 103. The defendant has committed this motion to C.R.C.P. 12(b)(5). However, defendant has included numerous exhibits, arguments, and facts that are far beyond the scope or contemplation of the averments and law contained in plaintiffs complaint. 104. A defendant presenting factual matters outside the pleadings by way of affidavit or otherwise, and are not excluded by the Court, coverts the motion into summary judgment pursuant to C.R.C.P. 56. Cheyenne Mountain School Dist. V. Thompson, 861 P. 2d 711 (Colo. 1993). 105. Plaintiff requests that the Court exclude all evidence and arguments that are advanced by the defendant outside of the pleadings. 106. In the alternative, should the Court treat this motion as a C.R.C.P. 56 motion for summary judgment, then plaintiff requests leave of this Court to supplement this motion with extrinsic evidence and affidavits in support of his position. Pursuant to C.R.C.P. (12)(b), [a]ll parties shall be given reasonable opportunity to present all material made pertinent to such a motion. 107. In any event, the Court should not enter summary judgment in favor of the defendant pursuant to C.R.C.P. 56 because genuine issues of material fact exist. Both parties have admitted that Mr. Coats only used medical marijuana in the privacy of his own home and never used or possessed it during work hours or anywhere at the defendants place of business. Complaint pg.2, 16-17; Def. Mtn. to Dismiss pg.3, 3. The plaintiff has averred the mere presence of THC in Mr. Coats' system is not dispositive of Mr. Coats being under the influence. Complaint pgs. 3, 29, 5, 54. The defendant has admitted both in writing and in the motion the basis Mr. Coats was terminated. Exhibit 4 of Complaint; Def. Mtn. to

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Dismiss pg.3, 6. Further, the defendant has admitted that it is not possible to say whether Coats was, or was not under the influence or intoxicated. Def. Mtn. to Dismiss pg. 11. Respectfully submitted October 6, 2011. BENSON & CASE, LLP

/s/ Michael D. Evans Michael D. Evans, # 39407 Attorney for Plaintiff CERTIFICATE OF SERVICE Case #: 2011CV1464 Coats v. DISH I hereby certify that on this 7th day October 2011 a true and correct copy of the foregoing RESPONSE TO DEFENDANTS C.R.C.P. 12(b)(5) MOTION TO DISMISS were filed and served as follows: XX LEXIS NEXIS FILE & SERVE XX EMAIL Clerk of the Arapahoe County District Court 1100 Judicial Center Dr., Brighton CO 80601 Attorney Richard Barkley Barkley Martinez, PC 14426 E. Evans Ave. Aurora, CO 80014 303-597-4000 barkley@barmarlaw.com /s/Michael Evans Michael Evans

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