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Colorado Motion to Dismiss

In Colorado you move to dismiss under C.R.C.P. 12(b) within 21 days, 35 if served out of state.

Introduction

In Colorado you challenge a complaint before answering by filing a motion to dismiss under C.R.C.P. 12(b). The rule patterns after the federal Rule 12(b) but uses Colorado's own numbering of the grounds. It lists six enumerated defenses: lack of jurisdiction over the subject matter, lack of jurisdiction over the person, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, and failure to join a party under C.R.C.P. 19. The numbering surprises practitioners who expect the federal frame: in Colorado, failure to state a claim is 12(b)(5), not 12(b)(6), and subject-matter jurisdiction is 12(b)(1). C.R.C.P. 12(b) lets you raise these defenses by separate motion filed on or before the date the answer is due, so the motion stands 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. Motion practice runs through C.R.C.P. 121 Section 1-15, which sets page limits keyed to the subsection and requires a proposed order. Missing the response window risks a default judgment. DocDraft drafts a Colorado-formatted motion to dismiss from your facts, with attorney review available before you file.

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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.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

DISTRICT COURT, [COUNTY] COUNTY, COLORADO [or COUNTY COURT, [COUNTY] COUNTY, COLORADO] [Court Address]

Plaintiff: [PLAINTIFF NAME]

v.

Defendant: [DEFENDANT NAME]

Case Number: [CASE NUMBER] Division: [DIVISION] Courtroom: [COURTROOM]

MOTION TO DISMISS UNDER C.R.C.P. 12(b)

Defendant [DEFENDANT NAME], pursuant to C.R.C.P. 12(b), respectfully moves the Court to dismiss the Complaint and states as follows:

GROUNDS

  1. This motion is filed on or before the date the answer is due under C.R.C.P. 12(a) and is made in place of an answer.

  2. The Complaint should be dismissed on the following ground(s) enumerated in C.R.C.P. 12(b):

    [Select the applicable ground(s):] ( ) (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. ( ) (6) Failure to join a party under C.R.C.P. 19.

LEGAL AUTHORITY

Pursuant to C.R.C.P. 121 Section 1-15(1), the legal authority supporting this motion is incorporated below and is not filed as a separate brief.

I. INTRODUCTION This motion challenges the Complaint under C.R.C.P. 12(b). [State which ground(s) apply and why.]

II. STATEMENT OF RELEVANT FACTS [Summarize the allegations of the Complaint as relevant to the ground(s) raised.]

III. ARGUMENT [State the legal basis for each ground. For a motion under 12(b)(5), explain why the Complaint fails to state a claim upon which relief can be granted. Note that if matters outside the pleading are presented and not excluded, a 12(b)(5) motion is treated as one for summary judgment under C.R.C.P. 56.]

CERTIFICATION OF CONFERRAL

C.R.C.P. 121 Section 1-15(8) addresses the duty to confer before filing a motion. [State whether a conference was held and, if not, the basis for not conferring. Confirm the current operative text of Section 1-15(8) and whether it exempts a motion to dismiss before filing.]

CONCLUSION AND REQUEST FOR RELIEF

WHEREFORE, Defendant respectfully requests that the Court dismiss the Complaint and grant such other relief as the Court deems just and proper.

Dated: [DATE]

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [Address] [Telephone] [Email] Attorney for Defendant / Self-Represented Defendant

[A proposed order in editable format is submitted with this motion pursuant to C.R.C.P. 121 Section 1-15(10).]

CERTIFICATE OF SERVICE

I certify that on [DATE] I served a true and correct copy of the foregoing MOTION TO DISMISS on all parties of record by [method of service] in accordance with Colorado law.

[NAME OF PERSON SERVING]

[Page limits under C.R.C.P. 121 Section 1-15: a motion under 12(b)(5) is limited to 15 pages (not more than 4,000 words); a motion under 12(b)(1) or (2) is limited to 25 pages (not more than 6,500 words). Check your court's local rules for filing and formatting requirements.]

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.

Frequently Asked Questions

In Colorado you file a motion to dismiss under C.R.C.P. 12(b) in place of an answer. You state the enumerated grounds, incorporate your legal authority into the motion itself under C.R.C.P. 121 Section 1-15(1) rather than filing a separate brief, attach a proposed order in editable format, and file with the clerk of the District Court or County Court named in the summons.

A 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. C.R.C.P. 12(b) allows the listed defenses to be raised by separate motion filed on or before the date the answer is due.

C.R.C.P. 12(b), applied in Colorado's District Court, lets a defendant raise defenses by motion rather than in the answer. The threshold objections challenge the court's reach or the mechanics of suit: jurisdiction over the subject matter or the person, and insufficiency of process or its service. The merits ground, failure to state a claim upon which relief can be granted, carries Colorado's own numbering of 12(b)(5) rather than the federal 12(b)(6). Failure to join a party under C.R.C.P. 19 is also available.

It is unsettled. 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. 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.

If the court denies the motion, the case proceeds and you answer on the schedule the court sets. On a 12(b)(5) motion for failure to state a claim, 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 instead.

You file with the clerk of the trial court named in the summons. Civil claims up to $25,000 are filed in County Court, and claims over $25,000 are filed in District Court. Small Claims Court, with a $7,500 cap, uses its own simplified procedure rather than C.R.C.P. 12 motion practice.