Monday, November 29, 2010

Motions to Dismiss

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is an overview of filing motions to dismiss in Colorado and Federal courts--where the governing rules and procedures are similar, these checklists will focus on motions in Colorado state court and will not significant differences for filings in Federal court.  As each of the following checklists are completed, I will link to them from the text below.
C.R.C.P. 12(b) provides the legal basis for motions to dismiss.  A motion to dismiss may be filed for several reasons, and against several types of claims--each with their own checklist below.
Motion to Dismiss Checklists
- Rule 12(b)(1) - Motion to Dismiss for Lack of Subject Matter Jurisdiction
- Rule 12(b)(2) - Motion to Dismiss for Lack of Personal Jurisdiction
- Rule 12(b)(3) & (4) - Motion to Dismiss due to Insufficiency of Process or Insufficiency of Service
- Rule 12(b)(5) - Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted
- Rule 12(b)(6) - Motion to Dismiss for Failure to Join a Party Under Rule 19
- Special Considerations:  Motion to Dismiss Counterclaim or Crossclaim
Other Related Motions:
- Rule 12(e) Motion for More Definite Statement
- Rule 12(f) Motion to Strike
- Motion for Judgment on the Pleadings

Best Practices

- In Colorado, if a motion to dismiss is granted that dismisses the entirety of an action brought by one party containing claims in tort, then an award of attorneys' fees is mandatory pursuant to C.R.S. § 13-17-201.  An award of attorneys fees is mandatory whenever all claims by one part against another are dismissed, even if other claims remain unresolved.  See Stauffer v. Stegemann, 165 P.3d 719 (Colo. App. 2006).
- Always consider the value of dismissing certain claims--for example, even if a complaint's lone tort claim is vulnerable to a motion to dismiss, is it more valuable to keep the claim alive for purposes of insurance coverage issues?
- In responding to a Motion to Dismiss, consider whether it is wiser to voluntarily dismiss the claims without prejudice to avoid a mandatory award of attorneys fees, fix the deficiencies in the complaint highlighted by the motion to dismiss, and refile.  Always consider statute of limitation issues and other potential bars to re-filing.
- While most courts will write their own order addressing a motion to dismiss, it is still wise to file a simple and direct proposed order with the motion (or response in opposition).
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit for more information.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

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