Chapter 3 - § 3.4 MOTIONS TO DISMISS

• Jurisdiction: Colorado

§ 3.4 Motions to Dismiss

A defendant can assert any of the Rule 12(b) defenses either in a responsive pleading, such as an answer, or by way of a motion to dismiss. These defenses include: (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; and (6) failure to join an indispensable party. All other defenses are to be asserted in a responsive pleading.⁴

Whether to assert a Rule 12(b) defense in a motion to dismiss or in a responsive pleading such as an answer is a strategic decision for the defendant to consider. Asserting the Rule 12(b) defenses in an answer will preserve them, but the case will proceed and become "at issue" earlier than if the defenses were raised before the answer was filed. And in many cases, no responsive pleading will be necessary if the motion to dismiss is successful, so a defendant may not want to engage in the responsive process until the court has ruled on the Rule 12(b) motion. If the court denies the motion, the defendant must respond to the claim within ten days after receiving notice of the court's order.⁵

Like challenges to personal jurisdiction, challenges based on insufficiency of process or insufficiency of service of process must be made at the outset of the case, either in a motion or in a responsive pleading, such as an answer, or the defense will be waived.⁶

§ 3.4.1 Challenging Service

Generally, the first question to ask when served with a complaint is whether service of process was properly effected. If not, counsel for the defendant may want to file a motion to quash service. Although nothing in the Colorado Rules of Civil Procedure actually mentions motions to quash service, Colorado case law routinely addresses such motions in connection with objections to service of process.⁷ Technically, these motions are probably motions to dismiss pursuant to C.R.C.P. 12(b)(3) (insufficiency of process) or C.R.C.P. 12(b)(4) (insufficiency of service of process), depending on the nature of the objection. Motions to quash service for failure to comply with C.R.C.P. 4 requirements are used when the service of process was improper and when, in the absence of a motion informing the court that service was improper, the court would expect a party to respond to the complaint. A motion to quash can be based on any defects in the service requirements set out in C.R.C.P. 4.

The attorney and client should decide together whether to file a motion to quash service, after considering such factors as expense and case strategy. Sometimes a defendant may wish simply to accept the service even though it was improper, if it is inevitable that he or she will eventually be properly served. This allows the defendant to avoid the expense of legal fees and costs involved in the preparation and litigation of a motion to quash. In other cases, simply contacting the plaintiff's attorney and asking that the service be properly made may be the client's preferred strategy.

Special Appearance vs. General Appearance

To avoid "entering an appearance" and waiving objections to jurisdiction or service, attorneys used to qualify their appearance in motions to quash service as a "special appearance," made for the limited purpose of contesting service instead of making a "general appearance" in the case. Now the distinction between a special and general appearance has been eliminated (although attorneys and courts still routinely mention them in briefs and opinions), and there is no such thing as a special appearance under the Colorado Rules of Civil Procedure.⁸ However, if the motion to quash service is filed before any responsive pleading, objections to jurisdiction or service are not waived, unless the party has waived any objections to jurisdiction or service by also requesting affirmative relief from the court.⁹

§ 3.4.2 Challenging Subject Matter Jurisdiction

While defendants usually challenge subject matter jurisdiction in a motion to dismiss, or in the answer to the complaint, courts can, and must, dismiss a case at any time if it appears that subject matter jurisdiction is lacking.¹⁰ A defendant does not waive this defense by not asserting it in a motion before filing the answer, or in the answer; rather, this defense can be raised at any time, including at trial or on appeal.

A court lacks subject matter jurisdiction when it lacks the power to hear and decide a particular kind of case. A court has subject matter jurisdiction if "the claim is the type that the court has been empowered to determine."¹¹ Whether a court has subject matter jurisdiction can be a disputed issue of fact that may need to be determined by way of an evidentiary hearing.¹² According to C.R.C.P. 12(d), Rule 12(b) defenses must be determined at a hearing prior to trial at the request of any party, although the court may defer the hearing and decision until trial. If, however, the issue of jurisdiction can be determined on the pleadings, the trial court may do so without a hearing.¹³ The plaintiff bears the burden of proof on the issue of the court's subject matter jurisdiction.¹⁴

Instances in which a court may lack subject matter jurisdiction include:

• When a binding arbitration agreement exists that deprives the court of jurisdiction. In these cases, a party wishing to enforce the arbitration agreement will file a motion to dismiss the complaint because a binding arbitration clause divests the court of jurisdiction. In the alternative, the party may file a motion to compel arbitration.
• When claims are barred by the Colorado Governmental Immunity Act,¹⁵ either because the government has not waived its immunity or because the proper notice was not given.¹⁶
• When claims are preempted by a federal statute, such as the Federal Aviation Administration Authorization Act.

§ 3.4.3 Challenging Personal Jurisdiction

A Colorado court lacks personal jurisdiction over a defendant if the defendant has no ties to Colorado sufficient to allow jurisdiction over the defendant through application of Colorado's long-arm statute.¹⁷ Colorado's long-arm statute confers personal jurisdiction of Colorado courts over a defendant who has committed certain acts related to those causes of action, including:

(1) Engaging in any act enumerated in this section by any person, whether or not a resident of the state of Colorado, either in person or by an agent, submits such person and, if a natural person, such person's personal representative to the jurisdiction of the courts of this state concerning any cause of action arising from:
(a) The transaction of any business within this state;
(b) The commission of a tortious act within this state;
(c) The ownership, use, or possession of any real property situated in this state;
(d) Contracting to insure any person, property, or risk residing or located within this state at the time of contracting;
(e) The maintenance of a matrimonial domicile within this state with respect to all issues relating to obligations for support to children and spouse in any action for dissolution of marriage, legal separation, declaration of invalidity of marriage, or support of children if one of the parties of the marriage continues without interruption to be domiciled within the state;
(f) The engaging of sexual intercourse in this state as to an action brought under article 4 or article 6 of title 19, C.R.S., with respect to a child who may have been conceived by that act of intercourse, as set forth in [the] verified petition; or
(g) The entering into of an agreement pursuant to part 2 or 5 of article 22 of this title.¹⁸

A defendant who wishes to challenge the court's personal jurisdiction over it must do so either: (1) in a motion to dismiss for lack personal jurisdiction, before...