Colorado Motion to Dismiss

Introduction

Key Things to Know

1. 1

   Colorado's pre-answer challenge to a complaint is a motion to dismiss under C.R.C.P. 12(b). The rule allows the enumerated defenses to be made, at the pleader's option, by separate motion filed on or before the date the answer is due under C.R.C.P. 12(a).

2. 2

   C.R.C.P. 12(b) lists six grounds with Colorado's distinctive numbering: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; (4) insufficiency of service of process; (5) failure to state a claim upon which relief can be granted; and (6) failure to join a party under C.R.C.P. 19. Note that failure to state a claim is 12(b)(5) here, not the federal 12(b)(6).

3. 3

   A 12(b) motion is filed in place of the answer within the same window: 21 days after the summons and complaint are served, or 35 days if you were served outside Colorado or by publication, under C.R.C.P. 12(a). Filing the motion stands in place of the answer within that window.

4. 4

   If the court denies the motion to dismiss, the case proceeds and you answer on the schedule the court sets. On a 12(b)(5) motion, if matters outside the pleading are presented to and not excluded by the court, the motion is treated as one for summary judgment and disposed of under C.R.C.P. 56.

5. 5

   Colorado's duty-to-confer rule, C.R.C.P. 121 Section 1-15(8), generally requires moving counsel to confer with opposing counsel before filing a motion and to include a good-faith conferral certification. The treatment of a motion to dismiss is unsettled: the official committee comment to that subsection names a motion to dismiss as one where conferring would not be appropriate, so confer unless your motion is one the rule exempts, and check the current rule and include a certification stating whether and why no conference was held.

6. 6

   The most common ground is failure to state a claim upon which relief can be granted, which Colorado numbers as 12(b)(5). Under C.R.C.P. 121 Section 1-15(1), a motion involving a contested issue of law is supported by legal authority incorporated into the motion itself and is not filed with a separate brief.

7. 7

   You file the motion to dismiss with the clerk of the trial court named in the summons: County Court for civil claims up to $25,000, or District Court for claims over $25,000. Under C.R.C.P. 121 Section 1-15(10), each motion is accompanied by a proposed order submitted in editable format.

Colorado Requirements for Motion to Dismiss

• File within 21 days of service (35 if served out of state)

  A C.R.C.P. 12(b) motion to dismiss is filed in place of the answer within the C.R.C.P. 12(a) window: 21 days after the summons and complaint are served, or 35 days if you were served outside Colorado or by publication. Filing the motion stands in place of the answer within that window.

• File the motion in place of an answer

  C.R.C.P. 12(b) allows the enumerated defenses to be made, at the pleader's option, by separate motion filed on or before the date the answer or reply is due under C.R.C.P. 12(a). The motion is filed instead of an answer.

• Identify the grounds under C.R.C.P. 12(b)

  Select from the six grounds in C.R.C.P. 12(b): (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) insufficiency of process; (4) insufficiency of service of process; (5) failure to state a claim upon which relief can be granted; (6) failure to join a party under C.R.C.P. 19.

• Use Colorado's 12(b)(5) numbering for failure to state a claim

  Colorado numbers failure to state a claim as 12(b)(5), not the federal 12(b)(6), and subject-matter jurisdiction as 12(b)(1). On a 12(b)(5) motion, if matters outside the pleading are presented to and not excluded by the court, the motion is treated as one for summary judgment under C.R.C.P. 56.

• Incorporate legal authority into the motion, no separate brief

  Under C.R.C.P. 121 Section 1-15(1), a motion involving a contested issue of law is supported by a recitation of legal authority incorporated into the motion itself and is not filed with a separate brief. Motions and briefs are double-spaced except footnotes and quotations.

• Observe the C.R.C.P. 121 Section 1-15 page limits

  A motion to dismiss under 12(b)(5) and its responsive brief are limited to 15 pages (not more than 4,000 words), with reply briefs to 10 pages (not more than 2,500 words). A motion under 12(b)(1) or (2) gets 25 pages (not more than 6,500 words), with reply to 15 pages (not more than 4,000 words). Limits exclude the caption, signature block, certificate of service, and attachments.

• Address the duty to confer for your motion

  C.R.C.P. 121 Section 1-15(8) generally requires moving counsel to confer with opposing counsel before filing a motion and to include a good-faith conferral certification, but the official committee comment names a motion to dismiss as one where conferring would not be appropriate. The treatment of a motion to dismiss is unsettled, so confer unless your motion is one the rule exempts, check the current rule, and include a certification stating whether and why no conference was held.

• File in the correct court and submit a proposed order

  File with the clerk of the trial court named in the summons: County Court for civil claims up to $25,000, or District Court for claims over $25,000. Under C.R.C.P. 121 Section 1-15(10), each motion is accompanied by a proposed order submitted in editable format, and you serve the motion on all parties and file a certificate of service.