Motion to Dismiss

IN THE DISTRICT COURT, [________________________________] COUNTY, COLORADO

DEFENDANT'S MOTION TO DISMISS

(Pursuant to C.R.C.P. 12(b))

INTRODUCTION

Defendant [________________________________] ("Defendant"), by and through undersigned counsel, respectfully moves this Court pursuant to Colorado Rule of Civil Procedure 12(b) for an Order dismissing the Complaint filed by Plaintiff [________________________________] ("Plaintiff") in its entirety, with prejudice. This Motion is supported by the Memorandum of Law set forth herein.

GROUNDS FOR DISMISSAL

Defendant moves to dismiss on the following grounds (check all that apply):

☐ Ground 1 – Lack of Subject Matter Jurisdiction [C.R.C.P. 12(b)(1)]
The Court lacks jurisdiction over the subject matter of this action because [________________________________].

☐ Ground 2 – Lack of Personal Jurisdiction [C.R.C.P. 12(b)(2)]
The Court lacks jurisdiction over the person of Defendant because Defendant does not have sufficient minimum contacts with Colorado to satisfy constitutional due process. [________________________________].

☐ Ground 3 – Insufficiency of Process [C.R.C.P. 12(b)(3)]
The process (i.e., the summons itself) issued in this matter is insufficient because [________________________________].

☐ Ground 4 – Insufficiency of Service of Process [C.R.C.P. 12(b)(4)]
The manner or method by which process was served on Defendant did not comply with C.R.C.P. 4 because [________________________________].

☐ Ground 5 – Failure to State a Claim [C.R.C.P. 12(b)(5)]
The Complaint fails to state a claim upon which relief can be granted. The factual allegations in the Complaint, accepted as true, do not plausibly give rise to a claim for relief under Colorado law.

Note: Colorado's motion to dismiss for failure to state a claim is brought under C.R.C.P. 12(b)(5), not 12(b)(6) as in federal and most state practice. This is because C.R.C.P. 12(b) enumerates only six defenses — (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, and (6) failure to join a party under C.R.C.P. 19 — one fewer than the seven grounds listed in FRCP 12(b), because Colorado's rule does NOT list improper venue as a Rule 12(b) ground at all (venue is addressed separately under C.R.C.P. 98). Insufficiency of process (defects in the summons/complaint itself) is a separate ground, C.R.C.P. 12(b)(3), from insufficiency of service of process (defects in how service was accomplished), C.R.C.P. 12(b)(4).

☐ Ground 6 – Failure to Join Indispensable Party [C.R.C.P. 12(b)(6) / C.R.C.P. 19]
Plaintiff has failed to join [________________________________], an indispensable party whose joinder is required under C.R.C.P. 19 because [________________________________].

☐ Ground 7 – Improper Venue [C.R.C.P. 98 — NOT a C.R.C.P. 12(b) ground]
Venue is improper in [________________________________] County. Proper venue lies in [________________________________] County pursuant to C.R.C.P. 98(c) and/or C.R.S. § [________________________________]. Note: Unlike federal practice, Colorado does not treat improper venue as a Rule 12(b) defense. A challenge to venue is brought as a motion for change of venue under C.R.C.P. 98(f), not as a Rule 12(b) motion to dismiss, though it is frequently filed and briefed together with a Rule 12(b) motion for administrative convenience.

☐ Ground 8 – Statute of Limitations
Plaintiff's claims are barred by the applicable statute of limitations under C.R.S. § [________________________________], which provides a [____]-year limitations period. The cause of action accrued on or about [__/__/____], and this action was not filed until [__/__/____].

☐ Ground 9 – Res Judicata / Claim Preclusion
Plaintiff's claims are barred by res judicata based on a prior final judgment on the merits entered in Case No. [________________________________] on [__/__/____].

☐ Ground 10 – Collateral Estoppel / Issue Preclusion
Issues material to Plaintiff's claims were previously litigated and decided adversely to Plaintiff in Case No. [________________________________].

☐ Ground 11 – Lack of Standing
Plaintiff lacks standing to bring this action because [________________________________].

☐ Ground 12 – Colorado Governmental Immunity Act
Defendant is immune from suit pursuant to the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et seq., because [________________________________].

☐ Ground 13 – Colorado Anti-SLAPP / C.R.S. § 13-20-1101
Plaintiff's claims arise from Defendant's exercise of constitutional rights in connection with a public issue and are subject to dismissal under Colorado's Anti-SLAPP statute, C.R.S. § 13-20-1101. Note: this is a distinct "special motion to dismiss" under § 13-20-1101, not a C.R.C.P. 12(b) motion, and must be filed within 63 days after service of the Complaint (§ 13-20-1101(5)) unless the court allows a later filing.

☐ Ground 14 – Other
[________________________________].

CERTIFICATE OF CONFERRAL

Pursuant to C.R.C.P. 121, § 1-15(8), undersigned counsel certifies that on [__/__/____], counsel conferred (or made a good-faith effort to confer) with counsel for Plaintiff regarding the relief requested in this Motion. [State the outcome — e.g., "Plaintiff opposes this Motion." / "Plaintiff's counsel could not be reached after [____] good-faith attempts on [dates] and is presumed to oppose."] Note: whether a conferral certificate is required for a Rule 12(b) motion to dismiss is unsettled in practice — some judicial officers treat a dispositive legal-sufficiency motion as exempt from the duty to confer since conferral cannot resolve a purely legal argument, while C.R.C.P. 121 § 1-15(8) does not itself list motions to dismiss as exempt. Confirm the presiding judge's practice standards; if no conference is held, state the reason in this certificate.

PROCEDURAL BACKGROUND

1. On or about [__/__/____], Plaintiff filed the Complaint in [________________________________] County District Court.

2. Defendant was purportedly served with the Summons and Complaint on [__/__/____].

3. Under C.R.C.P. 12(a)(1), Defendant's answer is generally due within 21 days after service of the Summons and Complaint, except when another rule or statute provides otherwise. A separate motion asserting a defense listed in C.R.C.P. 12(b) must be filed on or before the date the answer is due.

4. This Motion is timely filed before Defendant's answer deadline of [__/__/____].

5. [Additional relevant procedural history:]
   [________________________________]

MEMORANDUM OF LAW

I. INTRODUCTION

[Provide a brief summary of the argument for dismissal.]

[________________________________]
[________________________________]

II. LEGAL STANDARD

A. Standard Under C.R.C.P. 12(b)(5) — Failure to State a Claim

In Colorado, a motion to dismiss for failure to state a claim is brought under C.R.C.P. 12(b)(5) (unlike federal practice, which uses Rule 12(b)(6)). This motion tests the legal sufficiency of the complaint. Warne v. Hall, 2016 CO 50, 373 P.3d 588.

When ruling on a C.R.C.P. 12(b)(5) motion, the court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences in the plaintiff's favor, but the court does not assume the truth of conclusory legal allegations. Warne v. Hall, 2016 CO 50, ¶¶ 9, 24, 373 P.3d 588.

In Warne v. Hall, the Colorado Supreme Court adopted a plausibility standard for evaluating motions to dismiss under C.R.C.P. 12(b)(5). The court must determine "whether, with charity toward the plaintiff's version of events, the complaint alleges a plausible claim for relief." 2016 CO 50, ¶ 9. A complaint must contain enough facts to raise a right to relief above the speculative level.

Colorado follows notice pleading under C.R.C.P. 8(a), requiring only "a short and plain statement of the claim showing that the pleader is entitled to relief." However, as clarified in Warne, the complaint must state a plausible (not merely conceivable) claim for relief — similar to the federal Twombly/Iqbal standard. Id. ¶¶ 9–18.

The court may not consider matters outside the pleadings on a 12(b)(5) motion without converting it to a motion for summary judgment under C.R.C.P. 56. However, the court may consider exhibits attached to the complaint and documents incorporated by reference.

B. Standard Under C.R.C.P. 12(b)(1) — Subject Matter Jurisdiction

The court may consider matters outside the pleadings without converting the motion when resolving a jurisdictional challenge under C.R.C.P. 12(b)(1). The plaintiff bears the burden of establishing subject matter jurisdiction. Subject matter jurisdiction defects may be raised at any time.

C. Standard Under C.R.C.P. 12(b)(2) — Personal Jurisdiction

The plaintiff bears the burden of establishing a prima facie showing of personal jurisdiction over a non-resident defendant. Colorado's long-arm statute, C.R.S. § 13-1-124, extends jurisdiction to the maximum extent permitted by the United States Constitution. D&D Fuller CATV Constr., Inc. v. Pace, 780 P.2d 520 (Colo. 1989).

III. ARGUMENT

A. [SUBJECT MATTER JURISDICTION — complete if applicable]

This Court lacks subject matter jurisdiction because [________________________________].

Colorado District Courts are trial courts of record with general jurisdiction under Colo. Const. art. VI, § 9(1), having original jurisdiction in all civil, probate, and criminal cases except as otherwise provided, and are organized into judicial districts under C.R.S. § 13-5-101. That general jurisdiction is nonetheless subject to specific limitations. Specifically, [________________________________].

[Cite and apply applicable statute or constitutional provision.] [Case citation].

The Court is without authority to adjudicate this matter, and the Complaint must be dismissed pursuant to C.R.C.P. 12(b)(1).

B. [PERSONAL JURISDICTION — complete if applicable]

Defendant lacks sufficient minimum contacts with Colorado to satisfy the constitutional requirements for personal jurisdiction.

Defendant is [a non-resident individual / a corporation incorporated in / an entity organized in] [________________________________] with its principal place of business in [________________________________].

Under C.R.S. § 13-1-124 (Colorado long-arm statute), a non-resident is subject to personal jurisdiction in Colorado only if the non-resident:

• Transacts any business in Colorado;
• Commits a tort in Colorado;
• Owns, uses, or possesses real property in Colorado;
• Contracts to insure persons, property, or risks in Colorado; or
• Has some other constitutionally sufficient contact with Colorado.

None of these bases is satisfied here because:

1. Defendant does not transact business in Colorado.
2. The acts giving rise to Plaintiff's claims occurred in [________________________________], not Colorado.
3. Defendant does not own property in Colorado.

Because Defendant lacks the minimum contacts with Colorado necessary for personal jurisdiction, this action must be dismissed pursuant to C.R.C.P. 12(b)(2). International Shoe Co. v. Washington, 326 U.S. 310 (1945).

C. [IMPROPER VENUE — complete if applicable]

Venue is improper in [________________________________] County. Note: Colorado does not list improper venue among the C.R.C.P. 12(b) defenses; venue is governed by C.R.C.P. 98, and a challenge to venue is properly raised as a motion for change of venue under C.R.C.P. 98(f), not as a Rule 12(b) ground. Under C.R.C.P. 98(c)(1), an action is generally tried in the county where a defendant resides, where the plaintiff resides when service is made on the defendant in that county, or (for a nonresident defendant) any county where the defendant is found or the county designated in the complaint; other subsections of Rule 98 govern real-property, statutory-penalty, and consumer-contract actions. Under C.R.C.P. 98(c) (or the applicable subsection) or C.R.S. § [________________________________] (statutory venue provision, if any), the proper venue for this type of action is [________________________________] County because:

The action should be transferred to [________________________________] County pursuant to C.R.C.P. 98(f)(1) (improper county) or C.R.C.P. 98(f)(2) (convenience of witnesses and the interests of justice).

D. [INSUFFICIENCY OF PROCESS / SERVICE — complete if applicable]

Plaintiff failed to comply with the service of process requirements of C.R.C.P. 4. The specific deficiencies are:

☐ The summons did not comply with C.R.C.P. 4(b) in that [________________________________].

☐ Service was not made within 63 days (nine weeks) after the Complaint was filed, as required by C.R.C.P. 4(m).

☐ Service was not made on a proper person or in a proper manner. Specifically, [________________________________].

☐ Other: [________________________________].

Proper service is a prerequisite to the Court's jurisdiction over Defendant's person. This action must be dismissed pursuant to C.R.C.P. 12(b)(3) (insufficiency of process) and/or 12(b)(4) (insufficiency of service of process), as applicable.

E. [FAILURE TO STATE A CLAIM — complete if applicable]

The Complaint fails to state a plausible claim for relief under the standard of Warne v. Hall, 2016 CO 50, and must be dismissed pursuant to C.R.C.P. 12(b)(5).

Count [____]: [Name of Cause of Action]

To state a claim for [cause of action] under Colorado law, Plaintiff must plausibly allege: (1) [element]; (2) [element]; (3) [element]; and (4) [element]. [Citation], [____] P.[____] [____] (Colo. [____]).

The Complaint fails to state a plausible claim because:

1. [Element not alleged]: The Complaint does not allege [________________________________]. Without this allegation, the claim is legally insufficient. The Complaint's statement that "[direct quote]" is a mere legal conclusion that does not satisfy the plausibility standard of Warne. 2016 CO 50, ¶ 9.

2. [Element inadequately alleged]: The Complaint alleges only [________________________________], which is insufficient to plausibly establish [element]. The factual allegations in the Complaint are [speculative / conclusory / inconsistent with the claim] because [________________________________].

3. [Other deficiency]: [________________________________].

[Repeat for each count.]

The Complaint's deficiencies raise Plaintiff's claims no higher than the speculative level. Dismissal under C.R.C.P. 12(b)(5) is therefore required.

F. [STATUTE OF LIMITATIONS — complete if applicable]

Plaintiff's claims are barred by the statute of limitations under C.R.S. § [________________________________], which provides a [____]-year limitations period for [type of claim].

The cause of action accrued on [__/__/____] when [describe accrual event]. See [Colorado accrual case]. The limitations period expired on [__/__/____]. Plaintiff did not file this action until [__/__/____], which is [____] days / months after the expiration.

No tolling doctrine applies because:

☐ The discovery rule does not apply because Plaintiff knew or reasonably should have known of the claim by [__/__/____]. [Citation].

☐ The minority / disability tolling provision under C.R.S. § 13-81-103 does not apply because [________________________________].

☐ No other tolling provision saves the claim because [________________________________].

All claims are time-barred and must be dismissed with prejudice.

G. [COLORADO GOVERNMENTAL IMMUNITY ACT — complete if applicable]

Defendant is a [public entity / public employee] within the meaning of the Colorado Governmental Immunity Act ("CGIA"), C.R.S. § 24-10-103. The CGIA provides that public entities and employees are immune from civil liability in tort actions unless the action falls within one of the specific exceptions enumerated in C.R.S. § 24-10-106.

Plaintiff's claims [do not fall within any exception / fall outside the exception] because [________________________________].

Compliance with the notice requirements of C.R.S. § 24-10-109 is also a jurisdictional prerequisite. [Plaintiff failed to provide timely notice / Plaintiff provided defective notice] because [________________________________].

This action must be dismissed pursuant to C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction. Tidwell v. City & Cnty. of Denver, 83 P.3d 75 (Colo. 2004).

IV. CONCLUSION

For the foregoing reasons, Defendant [________________________________] respectfully requests that this Court:

1. Grant this Motion to Dismiss in its entirety;

2. Dismiss Plaintiff's Complaint [with / without] prejudice;

3. ☐ Transfer this action to [________________________________] County where venue is proper;

4. Award Defendant its reasonable attorney's fees pursuant to C.R.S. § [________________________________] and/or applicable law; and

5. Grant such other and further relief as this Court deems just and proper.

REQUEST FOR ORAL ARGUMENT

☐ Defendant requests oral argument on this Motion pursuant to C.R.C.P. 121, § 1-15(4).

☐ Defendant does not request oral argument and submits this matter on the briefs.

Estimated argument time: [____] minutes per side.

PRAYER FOR RELIEF

WHEREFORE, Defendant [________________________________] respectfully prays for an Order granting this Motion to Dismiss, dismissing Plaintiff's Complaint with prejudice, and awarding Defendant its costs, attorney's fees, and such other relief as this Court deems appropriate.

Respectfully submitted,

Dated: [__/__/____]

[________________________________]
[________________________________] (Colo. Atty. Reg. No. [________________________________])
[________________________________]
[________________________________]
[________________________________], Colorado [____]
Telephone: ([____]) [____]-[____]
Facsimile: ([____]) [____]-[____]
Email: [________________________________]
Attorney for Defendant [________________________________]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served a true and correct copy of the foregoing DEFENDANT'S MOTION TO DISMISS upon counsel of record for Plaintiff as follows:

[________________________________]
[________________________________]
[________________________________]
[________________________________]

☐ Colorado Courts E-Filing (eFiling.courts.state.co.us) — the e-filing system will electronically serve all registered users.

☐ U.S. Mail, First Class, postage prepaid.

☐ Hand Delivery.

☐ Electronic Mail (with consent): [________________________________]

☐ Facsimile: ([____]) [____]-[____]

[________________________________]
[Print Name / Signature]

FILING NOTES AND INSTRUCTIONS

Filing Deadline: Under C.R.C.P. 12(b), a separate Rule 12(b) motion must be filed on or before the answer deadline. Under C.R.C.P. 12(a)(1), Defendant generally must answer within 21 days after service of the Summons and Complaint, except when another rule or statute provides otherwise. If the court denies the motion or postpones its disposition until trial, the responsive pleading is generally due within 14 days after notice of the court's action. C.R.C.P. 12(a)(1)(A). A response to an amended pleading is governed by C.R.C.P. 15(a), unless the court orders otherwise.

Critical Colorado Distinction — C.R.C.P. 12(b)(5) vs. 12(b)(6): In Colorado, failure to state a claim is brought under C.R.C.P. 12(b)(5), NOT 12(b)(6). Do not cite Rule 12(b)(6) in Colorado state court practice.

Plausibility Standard: Colorado adopted the federal Twombly/Iqbal plausibility standard in Warne v. Hall, 2016 CO 50, 373 P.3d 588. Bare legal conclusions and formulaic recitations of elements are insufficient.

Page Limits (C.R.C.P. 121, § 1-15(1)(a)):

• Motions under C.R.C.P. 12(b)(1) or 12(b)(2) or 56: 25 pages for motion and response briefs; 15 pages for reply briefs.
• All other motions (including C.R.C.P. 12(b)(3), 12(b)(4), 12(b)(5), and 12(b)(6)): 15 pages for motion and response briefs; 10 pages for reply briefs.
• Pages do not count: case caption, signature block, certificate of service, and attachments.
• Court approval is required to exceed these limits.

Response Deadline: The opposing party has 21 days after the filing of the Motion to respond (or 14 days if the Motion is filed 42 days or less before the trial date). C.R.C.P. 121, § 1-15(1)(b).

Reply Deadline: The moving party may file a reply within 7 days after service of the responsive brief (or 14 days for a motion under C.R.C.P. 56). C.R.C.P. 121, § 1-15(1)(c).

Effect on Answer Deadline: Filing a permitted C.R.C.P. 12 motion alters the responsive-pleading deadline. If the motion is denied or its disposition is postponed until trial, the answer is generally due within 14 days after notice of the court's action. C.R.C.P. 12(a)(1)(A).

E-Filing: Colorado state courts require e-filing through the Colorado Courts E-Filing system at https://www.courts.state.co.us/. Verify current e-filing requirements for your specific district.

Colorado Governmental Immunity: If the defendant is a public entity or employee, the CGIA (C.R.S. § 24-10-101 et seq.) immunity analysis is treated as a subject matter jurisdiction issue (C.R.C.P. 12(b)(1)), not a 12(b)(5) issue. File separately if needed.

Waiver: Under C.R.C.P. 12(h)(1), the defenses of lack of personal jurisdiction (12(b)(2)), insufficiency of process (12(b)(3)), and insufficiency of service of process (12(b)(4)) are waived if omitted from the first Rule 12 motion or the answer. Colorado's C.R.C.P. 12(b) does not list improper venue as a Rule 12(b) ground at all — a venue objection is governed by C.R.C.P. 98, not C.R.C.P. 12(h). Subject matter jurisdiction (12(b)(1)) and failure to state a claim (12(b)(5)) are not waivable and may be raised at any time.

Sources and References:

• Colorado Courts E-Filing: https://www.coloradojudicial.gov/
• Colorado Rules of Civil Procedure (official, current): https://www.coloradojudicial.gov/courts/rules-and-regulations
• Colorado Revised Statutes: https://leg.colorado.gov/
• Warne v. Hall, 2016 CO 50, 373 P.3d 588: https://www.coloradojudicial.gov/ (Colorado Supreme Court opinions archive)