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

                                                                        MAY 29 1997
                 UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                   TENTH CIRCUIT                             Clerk




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

          Plaintiffs-Appellants,

 v.
                                                       No. 96-1360
                                                   (D.C. No. 96-M-582)
 ACADEMY SCHOOL DISTRICT 20;
                                                       (Colorado)
 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.




                          ORDER AND JUDGMENT *


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




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiffs appeal the dismissal with prejudice of their 42 U.S.C. § 1983 and

pendent state law claims. We affirm with respect to the section 1983 claims, but

vacate the district court’s order to dismiss with prejudice the state law claims.

We remand for dismissal of the state law claims without prejudice.

      Plaintiffs Ana and Hector Chavez (the Chavezes) brought 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 arising 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 Colorado State Court. The

defendants removed to federal court and filed a motion to dismiss the section

1983 claims for failure to state a claim on which relief 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


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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 education by selecting particular

teachers and methods of instruction, I conclude they 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 dimension had been raised on

Rebecca’s behalf. We have thoroughly reviewed the record in light of

defendants’ claims, and we conclude the district court did not err in dismissing

with prejudice the section 1983 claims. We therefore affirm the district court in

this respect substantially for the reasons set out in its opinion.

      The district court next considered the pendent state law claims. Carnegie-

Mellon 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 Chavezes’ state law claims

were therefore barred. C OLO . R EV . S TAT . §§ 24-10-109(1) and 118(1)(a). Under

section 109(1),




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      an individual seeking recourse against a public entity . . . must notify
      that entity of any claims against it within 180 days of discovery of
      the injury. An action cannot be commenced by the claimant 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, and all employees of such entities

when acting within the scope of their employment. C OLO . R EV . S TAT . §§ 24-10-

102, 103(4)(a), and (5). Timely notice is a “jurisdictional prerequisite to any

action . . . and failure of compliance shall forever bar any such action.” Id. at §

109(1); id. at § 118(1)(a). Since the Chavezes filed their complaint before

providing defendants notice of their claims, defendants 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 against Ms. Hartbauer were

brought against her individually for acts outside the scope of her employment, and

therefore there was no obligation to satisfy the terms of the CGIA as to those

claims. Moreover, even if the claims against Ms. Hartbauer are subject to the

CGIA, as they concede their claims against the other 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 complaint creates only

a statutory rather than a jurisdictional defect which should not bar their claims.


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See Lopez, 916 P.2d at 1192 (filing complaint after timely notice, but before

expiration of ninety-day “cooling off” period, constitutes a statutory rather than

jurisdictional bar to claim which can be cured by refiling complaint after

dismissal without prejudice).

      The district court determined as a matter of law that Ms. Hartbauer was at

all relevant times acting within the scope of her employment 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 satisfy 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 waiting period, not the 180-day

notice period. Since noncompliance with the “notice” 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 dismissal of the action.”).

      Although we find the district court’s thorough analysis of the CGIA’s

notice provision logical, the statute could be interpreted differently. The Lopez


                                          -5-
case did not squarely address the issue of filing before timely notice, and arguably

its analysis of premature filing after notice could be 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 jurisdiction over state law claims,

TV Communications Network, Inc. v. Turner Network Television, Inc., 964 F.2d

1022, 1028 (10th Cir. 1992), where the federal claims have been dismissed before

trial, “the balance of factors to be considered under the pendent jurisdiction

doctrine--judicial economy, convenience, fairness, and comity--will point toward

declining to exercise jurisdiction over the remaining state law claims,” Cohill,

484 U.S. at 350 n.7. “Declining pendent jurisdiction is appropriate when the

court needs a ‘surerfooted’ analysis of state law in 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. We are persuaded that

plaintiffs should be allowed to test theories regarding possible bars to their state

law claims in Colorado state court, where they filed 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


      1
       Because we vacate the district court’s dismissal with 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 employment.

                                          -6-
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




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