2020 COA 21
Colo. Ct. App.2020Background
- DIA Brewing (Brewing) sued after losing a bid to operate concessions at Denver International Airport, alleging bid‑rigging, bribery/COCCA predicates, tortious interference, and conspiracy against the winning bidder and affiliates.
- Defendants moved to dismiss under C.R.C.P. 12(b)(1) (lack of standing) and 12(b)(5)/9(b) (failure to plead fraud with particularity); the district court granted dismissal in June but the orders did not state whether dismissal was with or without prejudice.
- Brewing did not move under C.R.C.P. 59/60 or appeal the June orders; instead, the day before the appeal deadline it filed an amended complaint, asserting a right to amend as a matter of course under C.R.C.P. 15(a).
- The district court (November order) refused to accept the amended complaint, ruling the June dismissals were final judgments that cut off the Rule 15(a) right and, alternatively, that the amendment would be futile.
- The court of appeals (majority) reversed: it held the June orders were not final judgments because Brewing could have cured defects by amendment, so Brewing retained the Rule 15(a) right and the futility doctrine did not apply to an as‑of‑right amended complaint; the case was remanded for responses under C.R.C.P. 12.
- A dissent would have held the June orders final (particularly because they were 12(b)(1) standing dismissals that relied on evidence outside the complaint) and would have affirmed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were the June dismissal orders final, appealable judgments? | June orders were not final because they were (effectively) without prejudice and Brewing could cure defects by amendment. | June orders were final because they disposed of the entire action (standing dismissal) and left nothing for the court to do. | Majority: Not final—dismissals were amenable to cure by amendment; dissent: final. |
| Did Brewing retain an absolute right to amend as a matter of course under C.R.C.P. 15(a) after the June orders? | Yes—no responsive pleading had been filed and no final judgment was entered, so Rule 15(a) applied. | No—if a final, appealable judgment was entered the Rule 15(a) right is lost. | Majority: Yes—because June orders were nonfinal; dissent: No. |
| Could the district court reject the amended complaint under the futility doctrine when the amendment was filed as a matter of course? | Futility review cannot be applied to an amendment filed as of right; the court lacks discretion to deny an as‑of‑right amendment on futility grounds. | Futility is a valid reason to deny leave to amend and supports striking unmeritorious amendments. | Held: Futility inapplicable to an as‑of‑right amendment; district court erred. |
| Does it matter that the dismissal was under Rule 12(b)(1) (standing) rather than 12(b)(5) for finality/amendment analysis? | Substance matters less than whether the complaint can be saved; 12(b)(1) dismissals are not categorically final if cure by amendment is possible. | Yes—12(b)(1) often requires consideration of evidence outside the complaint and can yield final jurisdictional determinations. | Majority: Inconsequential for the core rule—focus on whether the action can be saved by amendment; dissent: distinction dispositive here. |
Key Cases Cited
- Passe v. Mitchell, 423 P.2d 17 (Colo. 1967) (a plaintiff may amend after dismissal so long as no responsive pleading has been filed and there is no waiver)
- Renner v. Chilton, 351 P.2d 277 (Colo. 1960) (Rule 15(a) permits amendment before answer; dismissal without leave does not automatically cut off that right)
- Wistrand v. Leach Realty Co., 364 P.2d 396 (Colo. 1961) (dismissal without prejudice does not bar filing an amended complaint or bringing a new action)
- Wilcox v. Reconditioned Office Sys., 881 P.2d 398 (Colo. App. 1994) (entry of a final judgment cuts off the Rule 15(a) right to amend)
- Harris v. Reg’l Transp. Dist., 155 P.3d 583 (Colo. App. 2006) (reiterates that final, appealable judgment extinguishes the absolute right to amend)
- Tool Box v. Ogden City Corp., 419 F.3d 1084 (10th Cir. 2005) (federal precedent recognizing that an absolute right to amend is lost on entry of final judgment)
- Moya v. Schollenbarger, 465 F.3d 444 (10th Cir. 2006) (an order dismissing the complaint is ordinarily nonfinal if amendment would save the action)