Motion to Dismiss

IN THE DISTRICT COURT, [________________________________] COUNTY, COLORADO

[________________________________],
Plaintiff,

v.

[________________________________],
Defendant.

Court Use Only:
Case No.: [________________________________]
Div.: [____] Ctrm.: [____]

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 – Improper Venue [C.R.C.P. 12(b)(3)]
Venue is improper in [________________________________] County. Proper venue lies in [________________________________] County pursuant to C.R.S. § [________________________________].

☐ Ground 4 – Insufficiency of Process [C.R.C.P. 12(b)(4)]
The process issued in this matter is insufficient 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. Insufficiency of process is C.R.C.P. 12(b)(4); insufficiency of service of process is addressed as part of the 12(b)(4) analysis or as a separate service deficiency under C.R.C.P. 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 – 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 8 – 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 9 – Collateral Estoppel / Issue Preclusion
Issues material to Plaintiff's claims were previously litigated and decided adversely to Plaintiff in Case No. [________________________________].

☐ Ground 10 – Lack of Standing
Plaintiff lacks standing to bring this action because [________________________________].

☐ Ground 11 – 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 12 – 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.

☐ Ground 13 – Other
[________________________________].

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 due within 21 days after service of the Summons and Complaint. However, C.R.C.P. 12(b) provides that a motion asserting any of the enumerated defenses must be made before pleading.

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 factual allegations in the complaint as true and draws all reasonable inferences in the plaintiff's favor. Whitley v. BP, P.L.C., 838 F.3d 523 (2016). However, the court does not assume the truth of conclusory legal allegations.

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 courts of general jurisdiction under C.R.S. § 13-6-104 (county courts) / § 13-4-102 (court of appeals) / § 13-3-101 (district courts), but jurisdiction is subject to 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. Under C.R.S. § 13-6-103 (county court venue) or C.R.S. § [________________________________] (district court venue), the proper venue for this type of action is [________________________________] County because:

The action should be dismissed or transferred to [________________________________] County pursuant to C.R.C.P. 12(b)(3).

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 after the action was commenced, 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)(4) and/or 12(b)(5).

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, § 1-16.

☐ 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), this Motion must be filed before the answer deadline. Under C.R.C.P. 12(a)(1), Defendant must answer within 21 days after service of the Summons and Complaint (or within 21 days after service of an amended complaint to which the defendant is required to respond; or within 21 days after denial of certain motions).

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, § 1-22):

• 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)(5)): 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 to respond to this Motion (C.R.C.P. 121, § 1-22).

Reply Deadline: The moving party may file a reply within 14 days after service of the response. C.R.C.P. 121, § 1-22.

Tolling Effect: Service of a C.R.C.P. 12(b) motion tolls the obligation to file an answer. If the motion is denied, the answer is due within 14 days after notice of the court's ruling, or within such other time as the court directs. C.R.C.P. 12(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), defenses of personal jurisdiction (12(b)(2)), improper venue (12(b)(3)), and insufficiency of process (12(b)(4)) are waived if not raised in the first Rule 12 motion or the answer. 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.courts.state.co.us/
• C.R.C.P. Rule 12: https://checkerboard.co/DCP/CRCP_Rule_12_Defenses_and_Objections.pdf
• Colorado Revised Statutes: https://leg.colorado.gov/
• Warne v. Hall, 2016 CO 50: https://www.courts.state.co.us/