478 P.3d 1264
Colo.2021Background
- Denver issued an RFP for concessions at Denver International Airport; MCE-DIA was awarded the contract and DIA Brewing finished fourth.
- DIA Brewing sued MCE-DIA and related parties alleging bid‑rigging, bribery, civil conspiracy, tortious interference, and COCCA violations; it sought millions in lost profits.
- MCE‑DIA moved to dismiss under C.R.C.P. 12(b)(1) for lack of standing and for failure to plead fraud with particularity; the district court granted dismissal, labeled it "without prejudice," but closed the case.
- About six weeks later DIA Brewing filed a First Amended Complaint without moving for relief from judgment (Rule 59/60) or for leave under Rule 15(a); MCE‑DIA moved to strike as untimely and futile.
- The district court struck the amended complaint as improper and futile; the court of appeals reversed (majority), holding dismissal was not final and DIA Brewing retained a Rule 15(a) right; this Court granted certiorari.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a final judgment cuts off a plaintiff's right to amend as a matter of course under C.R.C.P. 15(a) | Rule 15(a) allows one amendment as of course before a responsive pleading; a motion to dismiss is not a responsive pleading, so DIA could amend. | Allowing amendment after a final judgment would render Rules 59 and 60 meaningless; a final judgment should bar amendment as of course. | Final judgment cuts off the Rule 15(a) right to amend as a matter of course; plaintiff must obtain relief under Rule 59/60 and leave or defendant's written consent. |
| Whether the district court's dismissal (labeled "without prejudice") was a final judgment that cut off the right to amend | The dismissal was not final because it was without prejudice and could be cured; plaintiff should be allowed to amend. | The dismissal for lack of subject‑matter jurisdiction left nothing for the court to do; it was final despite the "without prejudice" label. | The dismissal for lack of standing was final in substance and thus cut off DIA Brewing's right to amend as of course. |
| Whether the proffered First Amended Complaint was futile (standing and Rule 9(b) particularity) | The amended complaint plausibly alleged injury (lost bid costs and lost profits) and detailed the who/what/when/where/how of the alleged fraud (bribes, score manipulation, destroyed scoresheets). | The amended pleading still failed to establish standing (published rankings showed DIA fourth) and did not plead fraud with the required particularity. | The Supreme Court held the amended complaint was not futile: it adequately alleged injury in fact for standing and pleaded fraud with sufficient particularity under C.R.C.P. 9(b). |
Key Cases Cited
- Mason v. Farm Credit of S. Colo., 419 P.3d 975 (Colo. 2018) (de novo review of rule interpretation; apply statutory‑style construction to civil rules)
- Pineda‑Liberato v. People, 403 P.3d 160 (Colo. 2017) (read procedural rules harmoniously; avoid rendering other rules superfluous)
- DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187 (Colo. 2013) (rules construed liberally to secure just, speedy, inexpensive determination)
- Gandy v. Williams, 461 P.3d 575 (Colo. App. 2019) (noting that entry of judgment on a motion to dismiss can terminate the ‘‘as of course’’ amendment right)
- Wilcox v. Reconditioned Off. Sys. of Colo., Inc., 881 P.2d 398 (Colo. App. 1994) (once final judgment has entered before a responsive pleading, amendment as of course is lost absent vacatur under Rule 59/60)
- Brody v. Bock, 897 P.2d 769 (Colo. 1995) (substance and objective intent controls finality determination over labels like "without prejudice")
- Free Air Corp. v. FCC, 130 F.3d 447 (D.C. Cir. 1997) (disappointed bidders have standing to challenge unlawful procurement processes)
- State Farm Mut. Auto. Ins. Co. v. Parrish, 899 P.2d 285 (Colo. App. 1994) (C.R.C.P. 9(b) requires alleging who, what, when, where, and how of fraud)