State Court Motion to Dismiss

DEFENDANT'S MOTION TO DISMISS

(State of Colorado — District Court)

TABLE OF CONTENTS

1. Caption
2. Certificate of Conferral
3. Notice of Motion and Hearing
4. Motion to Dismiss

5. Memorandum of Law in Support
   5.1 Introduction
   5.2 Procedural Posture
   5.3 Legal Standards
   5.4 Argument

6. Request for Oral Argument

7. Conclusion and Relief Requested
8. Certificate of Service
9. Exhibit A — Proposed Order

1. CAPTION

DISTRICT COURT, [________________] COUNTY, COLORADO
[Courthouse Address]
[City, State ZIP]

[PLAINTIFF NAME], Plaintiff,

v. — Case No. [________________]

[DEFENDANT NAME], Defendant.

Division: [________________]
Courtroom: [________________]

DEFENDANT'S MOTION TO DISMISS
(Pursuant to Colo. R. Civ. P. 12(b))

Hearing Date: [________________]
Hearing Time: [________________]
Judge: Hon. [________________]

2. CERTIFICATE OF CONFERRAL

Pursuant to C.R.C.P. 121 § 1-15(8), undersigned counsel certifies that on [Date], counsel conferred with counsel for Plaintiff regarding the relief requested herein. [Summarize outcome — e.g., "Plaintiff opposes this motion." / "Plaintiff's counsel was unavailable after three good-faith attempts to confer on [dates]."]

3. NOTICE OF MOTION AND HEARING

TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that on [Hearing Date] at [Hearing Time], or as soon thereafter as the matter may be heard, in [Courtroom] of the above-entitled court, located at [Courthouse Address, City, Colorado], before the Honorable [Judge Name], Defendant [Defendant Name] ("Defendant") will, and hereby does, move this Court for an order dismissing the [Complaint / Amended Complaint] (the "Complaint") filed by Plaintiff [Plaintiff Name] ("Plaintiff") pursuant to Colo. R. Civ. P. 12(b), on the following grounds:

1. Lack of subject-matter jurisdiction (Rule 12(b)(1));
2. Lack of personal jurisdiction (Rule 12(b)(2));
3. Improper venue (Rule 12(b)(3));
4. Insufficiency of process (Rule 12(b)(4));
5. Failure to state a claim upon which relief can be granted (Rule 12(b)(5)); and/or
6. Failure to join an indispensable party (Rule 12(b)(7)).

The motion is based on this Notice, the accompanying Memorandum of Law, the pleadings and records on file in this action, and any further evidence or argument that may be presented at or before the hearing.

DATED: [________________]

Respectfully submitted,

[FIRM NAME]

By: ______________________________
[ATTORNEY NAME]
[COLORADO BAR NO. ________________]
[FIRM ADDRESS]
[CITY, STATE ZIP]
[TELEPHONE] | [EMAIL]
Attorneys for Defendant [Defendant Name]

4. MOTION TO DISMISS

Defendant [Defendant Name] ("Defendant"), by and through undersigned counsel, respectfully moves this Court pursuant to Colo. R. Civ. P. 12(b)([________________]) for an order dismissing the [Complaint / Amended Complaint] (the "Complaint") filed by Plaintiff [Plaintiff Name] ("Plaintiff"). In support of this Motion, Defendant relies upon the accompanying Memorandum of Law filed herewith.

5. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS

5.1 Introduction

Defendant [Defendant Name] respectfully moves this Court to dismiss the Complaint filed by Plaintiff [Plaintiff Name] under Colo. R. Civ. P. 12(b)([________________]) because [concise summary of fatal defect(s) in the pleading].

5.2 Procedural Posture

1. The Complaint was filed on [Date].
2. Defendant was served on [Date].
3. No responsive pleading has yet been filed; this Motion is therefore timely under C.R.C.P. 12(a).

5.3 Legal Standards

A. Rule 12(b) Dismissal

Under Colo. R. Civ. P. 12(b), a complaint may be dismissed for, inter alia, lack of subject-matter jurisdiction (12(b)(1)), lack of personal jurisdiction (12(b)(2)), or failure to state a claim upon which relief can be granted (12(b)(5)).

B. Rule 12(b)(1) — Lack of Subject-Matter Jurisdiction

The burden rests with Plaintiff to establish that the Court has subject-matter jurisdiction. The Court may consider facts outside the pleadings. Evidentiary findings are reviewed for clear error; legal conclusions are reviewed de novo.

C. Rule 12(b)(2) — Lack of Personal Jurisdiction

Plaintiff bears the burden of establishing personal jurisdiction. Colorado's long-arm statute, § 13-1-124, C.R.S., sets forth specific bases for personal jurisdiction over nonresidents. The exercise of jurisdiction must also comport with due process.

D. Rule 12(b)(5) — Failure to State a Claim

At the motion-to-dismiss stage, the Court accepts well-pleaded factual allegations as true but need not accept legal conclusions or conclusory statements. A plaintiff must plead facts that, if true, plausibly entitle it to relief.

5.4 Argument

A. [First Ground for Dismissal — e.g., The Court Lacks Subject-Matter Jurisdiction (Rule 12(b)(1))]

1. [Explain jurisdictional bar — e.g., exclusive federal jurisdiction, statutory exhaustion requirements, amount-in-controversy threshold not met, governmental immunity under the Colorado Governmental Immunity Act, § 24-10-101 et seq., C.R.S., etc.]
2. Because jurisdiction is lacking, dismissal is mandatory.

B. [Second Ground for Dismissal — e.g., The Court Lacks Personal Jurisdiction (Rule 12(b)(2))]

1. [Describe why Colorado's long-arm statute, § 13-1-124, C.R.S., is not satisfied.]
2. [Explain due-process deficiency — no purposeful availment, no minimum contacts, etc.]
3. In the absence of personal jurisdiction, the action must be dismissed or, at minimum, transferred.

C. [Third Ground for Dismissal — e.g., Failure to State a Claim (Rule 12(b)(5))]

1. [Count I — identify pleading deficiency]
   a. Element 1: [________________]
   b. Element 2: [________________]
   c. Element 3: [________________]

2. [Repeat for each count]

3. Because Plaintiff has not alleged facts that, if true, would establish the essential elements of any claim, dismissal is warranted.

6. REQUEST FOR ORAL ARGUMENT

Pursuant to C.R.C.P. 121 § 1-15(4), Defendant requests oral argument on this Motion. Oral presentation will aid the Court because [brief explanation — e.g., "the jurisdictional issues involve complex statutory interpretation"]. If the Court declines to hear oral argument, Defendant requests ruling on the written submissions.

7. CONCLUSION AND RELIEF REQUESTED

WHEREFORE, Defendant [Defendant Name] respectfully requests that this Court:

1. Grant this Motion;
2. Dismiss Plaintiff's Complaint [with prejudice / without prejudice]; and
3. Award such other and further relief as the Court deems just and proper.

8. CERTIFICATE OF SERVICE

I hereby certify that on [Date], a true and correct copy of the foregoing Defendant's Motion to Dismiss was filed with the Court via Colorado Courts E-Filing and served on the following:

[Opposing Counsel Name]
[Firm Name]
[Address]
[City, State ZIP]
[Email]

via [CCEF / email / mail]

______________________________
[Attorney Name]
[Colorado Bar No. ________________]

EXHIBIT A — PROPOSED ORDER

(Separate Document — C.R.C.P. 121 § 1-20)

DISTRICT COURT, [________________] COUNTY, COLORADO

[PLAINTIFF NAME], Plaintiff,

v. — Case No. [________________]

[DEFENDANT NAME], Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

The Court, having reviewed Defendant's Motion to Dismiss, any response and reply, and being fully advised, hereby ORDERS as follows:

1. Defendant's Motion is GRANTED.
2. Plaintiff's Complaint is DISMISSED [WITH PREJUDICE / WITHOUT PREJUDICE].
3. Each party shall bear its own fees and costs [unless otherwise ordered].

SO ORDERED this ______ day of ________________, 20____.

______________________________
District Court Judge