Free range grandmother and sometime activist to the homeless Regan Benson was in a celebratory mood Friday night after receiving news that the countersuit by Englewood City Manager Shawn Lewis and Englewood City Attorney Tamara Niles in her federal civil rights lawsuit against the City of Englewood, Colorado, was dismissed without prejudice.
Benson is suing the city after being temporarily trespassed from the Englewood Civic Center last year. She appealed the trespassing and prevailed then filed a federal civil rights lawsuit against the city.
The YouTuber was recently again trespassed from the venue for using a recording device while making public comment at an Englewood City Council meeting. She is again appealing the trespass.
Lewis and Niles counter sued Benson, stating that she made comments essentially insinuating that the pair were having an affair.
Benson wrote:
Englewood, Co~
Gertie lays it out again.
Shawn (city manager ) and Tamara (city attorney) just got their ludicrous counter lawsuit dismissed.
These two are off the rails. They must be guilty of something. What do you suppose that is?
I’ve never seen anything like this but yes they tried to say that I said they were having an affair, as a way to counter sue me for my 1983 claim where they have blatantly violated my rights.
It’s already been ruled that my lawsuit proceeds
It gets worse. They just arrested me AGAIN a couple weeks ago while I was at the podium giving public comment, during a city council meeting. This is arrest #3 while we’re in federal court in the middle of a lawsuit for violating my free speech rights and drumming up two other arrests.
Voters aren’t the brightest in Englewood.
The actual ruling by United States Magistrate Judge Kathyrn A. Starnella stated the following:
Contrary to Defendants’ assertions, the defamation counterclaim will require distinct evidence and witnesses from Plaintiff’s retaliation claims. Plaintiff’s retaliation claims focus on her protected speech activities in 2024. To prove her claims, Plaintiff will require witnesses who observed those activities, evidence of the timing and circumstances of any adverse actions, and proof that her protected speech motivated the alleged retaliation. See generally Pl. Am. Compl. [#36]. Defendants’ counterclaim, however, would focus on Plaintiff’s “cornhole” comment in her May 19, 2025 YouTube video. To prove their claim, Defendants will require evidence of the statement, its veracity, Plaintiff’s knowledge of its veracity (or lack thereof), and damages for “injury to reputation, embarrassment, humiliation, or mental anguish.” See Defs.’ Am. Countercl. [#59] at 6. The fact that the counterclaim involves the same parties and has a tangential relation to the underlying retaliation claim is not sufficient to confer supplemental jurisdiction. See Schaeffer, 2020 WL 7043867, at *21; Walker, 803 F. Supp. 2d at 1324. Additionally, Defendants’ counterclaim has no bearing on the strength of Plaintiff’s retaliation claims, and the underlying factual and legal theories are not sufficiently intertwined, unlike the claims in Ott, 2019 WL 10252743, at *3. See also OL Priv. Couns., LLC v. Olson, No. 2:21-cv-00455, 2022 WL 617033, at *5 (D. Utah Feb. 10, 2022) (declining to exercise supplemental jurisdiction where claims turned on different facts and different evidence), report and recommendation adopted, 2022 WL 613293 (D. Utah Mar. 2, 2022). Rather, the two claims are “separated in time, space, and origin,” as the alleged defamatory statement took place at least one year after any alleged retaliation. Walker, 803 F. Supp. 2d at 1325; Schaeffer, 2020 WL 7043867, at *21; see also Vox Mktg. Grp. v. Prodigy Promos, 556 F. Supp. 3d 1280, 1290 (D. Utah 2021) (finding that defendant’s counterclaim did not arise from a common nucleus of operative fact where it had only a loose connection to the underlying claim and arose out of actions that took place after the underlying claim).
Defendants further contend that the “conduct underlying Plaintiff’s claims . . . support[s] the ‘actual malice’ element of Defendants’ counterclaims.” Defs.’ Suppl. Br. [#91] at 3. The actual malice element of a defamation claim requires the claimant to prove that the speaker communicated with “actual knowledge that [their statement] was false or with reckless disregard for whether it was true.” Rosenblum v. Budd, 538 P.3d 354, 365 (Colo. App. 2023) (internal quotation marks and citation omitted). The Court doubts that the conduct and facts underlying Plaintiff’s retaliation lawsuit would be relevant in determining whether Plaintiff had actual knowledge that her statement concerning Defendants Niles and Lewis’s affair was false, or that she at least acted with reckless disregard to the falsity of her statement.
In sum, Defendants’ counterclaim and Plaintiff’s First Amendment retaliation claim do not derive from a common nucleus of operative facts. Thus, the Court lacks supplemental jurisdiction over Defendants’ counterclaim pursuant to 28 U.S.C. § 1367(a).
For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Motion [#69] be GRANTED for the reasons outlined in Plaintiff’s Supplemental Brief [#93] and that Defendants Niles and Lewis’s counterclaim be dismissed without prejudice for lack of subject matter jurisdiction. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (“[A] dismissal for lack of jurisdiction should be entered without prejudice.”).
Benson’s lawsuit is expected to go to trial later this year.
This is a breaking news story.
