Chapter 2 - § 2.2 PROCEDURES IN STATE DISTRICT COURT

• Jurisdiction: Colorado

§ 2.2 Procedures in State District Court

C.R.C.P. 3 sets out how a lawsuit is commenced in Colorado state district courts. According to this rule, a civil lawsuit is commenced (1) when a complaint is filed, or (2) by service of a summons and complaint on the defendant.⁶

Although the most common way to begin an action is by the filing of a complaint, a lawsuit may also be initiated by serving the summons and an unfiled complaint on a defendant, as long as the complaint is filed within 10 days of the service.⁷ If the complaint is not filed within 10 days after service, the service is void, and the court may award the defendant a sum to compensate the defendant for reasonable expenses and inconvenience, including attorney fees. However, a defendant who files a responsive pleading or motion to the late filed complaint waives the 10-day filing requirement, unless it expressly reserves its right to challenge the issue.⁸ Additionally, the court does not acquire jurisdiction of the case if the complaint is not filed in the required time period.⁹

When bringing an action against a defendant, a plaintiff must show both subject matter jurisdiction and personal jurisdiction over the defendant.¹⁰ A court has jurisdiction over the subject matter of a complaint by virtue of various means such as by statute, physical location, amount in controversy, or agreement in a contract or other document. "Subject matter jurisdiction concerns the authority of the court to decide a particular matter."¹¹ A Colorado court has personal jurisdiction over a person who has engaged in any of the conduct enumerated in Colorado's "long arm statute," C.R.S. § 13-1-124, and this statute has been interpreted by the Colorado Supreme Court to extend the personal jurisdiction of Colorado's courts to their maximum permissible limits under the United States and Colorado constitutions.¹² For example, a Colorado state district court will generally have personal jurisdiction over Colorado residents, over companies that do business in Colorado, over persons who own property in Colorado (with respect to that property only) who drive motor vehicles in Colorado, and over persons who have other significant contacts with Colorado. The traditional test for whether a court has personal jurisdiction over a defendant is known as the International Shoe "minimum contacts" test. The International Shoe test allows personal jurisdiction when personal jurisdiction over the defendant "does not offend 'traditional notions of substantial justice and fair play.'"¹³

Sometimes a defendant, either explicitly or tacitly, has agreed to submit to the jurisdiction of a court that would not otherwise have jurisdiction over him or her. Jurisdiction can be acquired when a defendant has signed a contract agreeing to waive objections to personal jurisdiction and to submit to the jurisdiction of a Colorado court even if the minimum contacts test is not otherwise met.¹⁴ Additionally, C.R.S. § 13-1-124 specifically provides that an agreement to arbitrate in Colorado subjects a person to jurisdiction in this state.¹⁵ However, even when a court has both subject matter jurisdiction over the controversy and personal jurisdiction over a defendant, the court cannot exercise jurisdiction over a defendant unless valid service of process has been effected on the defendant. Service of process is the notification to a defendant that a plaintiff is seeking to have a court "exercise personal jurisdiction over the defendant."¹⁶ Notice of the proceedings and the opportunity to defend oneself in those proceedings, with sufficient particularity, is a due process requirement under the United States Constitution.¹⁷ Service of process is generally accomplished by service on the defendant of a summons and complaint, although service by publication or by special order of the court may not require service of the complaint with the summons. In the case of a special order of the court allowing personal service of the summons without the complaint, the order allowing such service must be served with the summons. Also, in most cases in district court, a Civil Case Cover Sheet must be served on all other parties with the initial pleadings.¹⁹ Failure to file the cover sheet is not a jurisdictional defect.²⁰

§ 2.2.1 Summons

A summons is the document that gives notice to a defendant that it has been sued, which court the action is in, and when and how the defendant must respond to the complaint. The summons is the document that, once properly served on a defendant, allows the court to obtain jurisdiction over the defendant.²¹ A summons must either be signed and issued by the clerk of the court, or signed and issued by the attorney representing the plaintiff.²² Failure to have either the clerk of court or the attorney sign the summons renders the summons ineffective.²³ The summons must contain the name, address, and registration number of the plaintiff's attorney, or if the plaintiff is filing without an attorney, the name and address of the plaintiff. The summons must be directed to the defendant. The summons must contain the name and location of the court in which the complaint is being brought, the names of the all of the parties, the time by which the defendant must respond, and the notification that failure to respond or appear may result in a default judgment being entered against it.²⁴ The absence of satisfaction of any of these requirements can cause the summons to be ineffective. See Form 2-1: Summons—District Court (JDF 600).

A copy of the complaint must be served with the summons, unless the service is by publication or the court has entered an order allowing service of the summons without a copy of the complaint.²⁵ Otherwise, service of a summons without a complaint is not valid service. Service of a copy of the summons instead of the original is sufficient.²⁶ If a summons is served by publication, the summons must state the relief or amount of damages demanded.²⁷ See Form 2-2: Summons for Service by Publication (JDF Form 1.1).

If a summons is served without a copy of the complaint by court order, a copy of the court's order must be served along with the summons.²⁸ Likewise, a complaint must be accompanied by a summons for service to be effective.²⁹ The purpose of serving a copy of the complaint with the summons is to let the defendant know the particulars of why it is being sued in order to allow it to prepare its defense.³⁰ The circumstances under which a plaintiff would seek a court order to serve a summons without a copy of the complaint are difficult to imagine.

The issue of whether service was defective—and thus, whether the court lacks jurisdiction over a defendant—should be raised by a defendant in a Rule 12(b)(1) motion, generally entitled a "Motion to Quash Service of Process" or "Motion to Dismiss for Insufficiency of Service." Rule 12(b)(1) motions are discussed more fully in Chapter 3. A defendant must file his or her motion to quash service or motion to dismiss for insufficiency of service before filing any other response to the summons and complaint, or the issue of defective service will be waived, and the defendant will not be allowed to raise the issue later.³¹ Even entering an appearance without objecting to the service of process and personal jurisdiction waives the issue of whether service of process was properly effected.³² A plaintiff facing a motion to quash service should assert the waiver by the defendant in his or her response to the motion, if the facts indicate such a waiver. Additionally, if there are defects in the service that can be corrected by amendment, the plaintiff should act quickly to effect an amendment. If there are contested issues of fact, the court must hold an evidentiary hearing and decide the question based on a preponderance of the evidence.³³ If the defendant files a motion to quash, the burden is on the plaintiff to establish all facts establishing jurisdiction, including that service was proper.³⁴

Personal Service Within Colorado

The approved methods of personal service in Colorado are set out in C.R.C.P. 4(e). Service of process, i.e., the service of the summons and complaint by actual hand delivery of the papers, can be done by any person 18 years of age or older, so long as that person is not a party to the action.³⁵ Service of process cannot be done by an attorney of a party, but arguably may be done by an employee of an attorney of a party, so long as they are not counsel of record and not an interested party.³⁶

According to C.R.C.P. 4(e)(1), service on natural persons who are over the age of 18 can be effected by: (1) delivering a copy of summons and complaint to the defendant or to someone at his or her actual home ("usual place of abode") with a family member who is 18 or older; (2) delivering a copy of the summons and complaint to the defendant; or (3) delivering a copy of the summons and complaint to the defendant's secretary, administrative assistant, bookkeeper, or managing agent at the defendant's usual workplace. The process server should be able to describe how he or she determined the identity of the defendant or the defendant's relationship to the person served, and if necessary, include that information in the affidavit of service or any filing subsequently determined to be necessary.³⁷

Service on natural persons under 18 but who are at least 13 can be made by delivering a copy to the person and another copy to the person's parent or guardian. If the parent or guardian is not in Colorado, then the additional copy must be delivered to the person "in whose care or control" the minor is, or with the person with whom the minor lives or is employed.³⁸

Service on minors under the age of 13 is sufficient if made on a parent or guardian alone. However, if there is no parent or guardian in Colorado, then service can be made by delivering a copy of the summons and complaint to the person who has the "care or control" of the minor.³⁹

If a...