BRILLIANT. BOLD. EFFECTIVE.
Responding to a Motion to Dismiss Alleging Failure to State a Claim upon Which Relief Can Be Granted
In Denver and Colorado courts, once a lawsuit has been initiated by the filing of the Complaint, which alleges claims against a defendant, that defendant has certain options in how to respond to those claims. Generally speaking, the defendant can either answer those claims in an appropriately labeled pleading called an Answer, whereby the defendant responds to each paragraph of the Complaint either admitting or denying the allegations; or the defendant can attack the Complaint for insufficiency, usually by a motion to dismiss. See C.R.C.P. 8; C.R.C.P. 12.
In essence, filing a motion to dismiss alleges there is some sort of critical deficiency with the Complaint, the claims alleged in the Complaint, or the actual procedure of how the lawsuit was initiated and, correspondingly, requests that specific claims alleged or the entire lawsuit be dismissed. A successful motion to dismiss allows the defendant an opportunity to have the lawsuit dismissed essentially before it has begun, i.e., before the defendant has to Answer the alleged claims and before discovery has been initiated. Typically, motions to dismiss are filed under Colorado Rule of Civil Procedure (“C.R.C.P.”) 12.
Under C.R.C.P. 12(b), there are six main bases to file a motion to dismiss. Those bases are:
(1) lack of jurisdiction over the subject matter
(2) lack of jurisdiction over the person
(3) insufficiency of process
(4) insufficiency of service of process
(5) failure to state a claim upon which relief can be granted
(6) failure to join an indispensable party
One of the most frequent bases alleged in a motion to dismiss is C.R.C.P. 12(b)(5), failure to state a claim upon which relief can be granted. Put simply, a motion requesting dismissal based on failure to state a claim is alleging that under no circumstances could the claim for relief be granted against the defending party. This may be because there is no legal relationship between the defendant and the plaintiff that would give rise to the claim for relief, e.g., if the plaintiff alleges negligence and there is no duty the defendant owed to the plaintiff. It may be because there is no set of facts that would entitle the plaintiff to the relief requested, e.g., if the plaintiff alleges breach of contract and there is no set of facts that could show the plaintiff and defendant had a contact. Or, it could be if the law requires specific allegations to be made for a claim for relief and those allegations are not made, e.g., a fraud claim requires specific allegations as to what actions constituted fraud is as opposed to just generally alleging fraud.
If a motion to dismiss based on failure to state a claim is filed by the defendant, the plaintiff has a couple of options. The two main options are simply responding to the motion to dismiss by arguing that the claims attacked do sufficiently allege a claim for relief, or, alternatively, the plaintiff may amend the complaint to cure any deficiencies.
Amending the Complaint to Cure any Deficiencies
C.R.C.P. 15(a) permits plaintiffs to amend their Complaint under three circumstances: once as a matter or right before a responsive pleading is filed, i.e., an Answer; with the permission of the court; or by written consent of the adverse party. Here, since this discussion is in the context of responding to a motion to dismiss, which is not a responsive pleading within the meaning of the rules, the plaintiff may respond to the motion to dismiss by amending the complaint as a matter of right, i.e, without permission from the court or from the parties. Fladung v. City of Boulder, 165 Colo. 244, 438 P.2d 688 (1968) (where the defendant merely files a motion to dismiss for failure to state a claim without an answer, plaintiff then would be entitled to amend his complaint as a matter of right).
If the plaintiff chooses to amend the Complaint as opposed to simply responding to the motion to dismiss, the amended Complaint completely replaces the original complaint and the amended complaint becomes the pleading to which the defendant must now respond to. However, if the plaintiff chooses to go this route, amendment by right is only permitted once, subsequent amended Complaints can only be done with the permission of the court or of the parties. C.R.C.P. 15(a). Accordingly, the plaintiff should make sure to address all deficiencies alleged in the motion to dismiss in amending the Complaint because if the deficiencies are not sufficiently addressed, the defendant may file another motion to dismiss and the plaintiff no longer can amend the Complaint by right and risks dismissal of the claims by the Court.
One thing the plaintiff should be aware of is that if the defendant files an Answer, i.e., a responsive pleading, at the same time as a motion to dismiss. If the defendant does this, the plaintiff no longer has the right to amend the Complaint as of right since a responsive pleading has been filed. C.R.C.P. 15(a); Fladung v. City of Boulder, 165 Colo. 244, 438 P.2d 688 (1968). Accordingly, in these circumstances the plaintiff must obtain permission from either the court or the adverse party to amend the complaint.