United States District Court, D. Colorado
Michael E. Hegarty United States Magistrate Judge
the Court is (former) Defendant City of Littleton's
(“Defendant”) Motion for Attorney's Fees and
Costs [filed February 28, 2019; ECF No. 242].
Defendant contends that, based on the Court's grant of
its dispositive motion, it is entitled to awards of
attorney's fees and costs. Although the Plaintiff
apparently informed the Defendant that she opposed the
motion, she filed no response nor other written objection.
For the reasons that follow, the Court will deny the motion.
brings its request for an award of attorney's fees
pursuant to Colo. Rev. Stat. § 13-17-201, which
“provides for a reasonable award of attorney fees
‘[i]n all actions brought as a result of a death or an
injury to person or property occasioned by the tort of any
other person, where any such action is dismissed on motion of
the defendant prior to trial under [C.R.C.P.]
12(b).'”Robinson v. Colo. State Lottery
Div., 179 P.3d 998, 1009 (Colo. 2008). In addition,
Defendant seeks an award of costs pursuant to Colo. Rev.
Stat. § 13-16-113(2), which is identical to §
13-17-201, except that it permits a “judgment for
costs” for Rule 12(b) dismissals of tort actions.
Awards under these statutes are mandatory if the statutory
criteria are met. Crandall v. City of Denver, 238
P.3d 659, 665 (Colo. 2010) (“the express statutory
language of sections 13-16-113(2) and 13-17-201 mandate
awards of costs and attorney fees to the defendant in the
event that a plaintiff's tort action is dismissed
pre-trial on a C.R.C.P. 12(b) motion to dismiss”). In
this case, Plaintiff brought three claims against Defendant,
a state law claim for negligence and two federal law claims
for violations of the Americans with Disabilities Act
(“ADA”) and Section 504 of the Rehabilitation Act
of 1973 (“Rehab Act”). Defendant contends that it
is entitled to recovery of its attorney's fees and costs
for defending the negligence claim, which Defendant argues
was dismissed by this Court pursuant to “Rule
12(b).” Mot. 2, 4.
13-17-201 provides in relevant part: “This section
shall not apply if a motion under rule 12(b) of the Colorado
rules of civil procedure is treated as a motion for summary
judgment and disposed of as provided in rule 56 of the
Colorado rules of civil procedure.” Colo. Rev. Stat.
§ 13-17-201. Here, Defendant filed its combined motion
on June 28, 2018 stating in a footnote, “The City moves
for summary judgment on the Plaintiff's federal claims
and moves to dismiss the Plaintiff's state law claim as
the City asserts its sovereign immunity from that claim under
the Colorado Governmental Immunity Act [‘CGIA']
which presents a jurisdictional issue reviewed under
Fed.R.Civ.P. 12(b)(1).” Mot. 2, ECF No. 137. Defendant
cited to no legal standards under Rule 12(b)(1) in its
combined motion but, instead, asserted, “The City is
entitled to dismissal or summary judgment on
Plaintiff's claims as a matter of law.”
Id. (emphasis added). The Court proceeded to treat
Defendant's motion as a Rule 56 motion for summary
judgment and dismissed Plaintiff's negligence claim
finding, “Plaintiff has not raised any genuine disputes
as to issues of material fact regarding the City's actual
knowledge of dangerous conditions or accidents, incidents, or
injuries in this area” and “Plaintiff has not
raised any disputed genuine issues of material fact as to
whether the City should have known the sidewalk was
dangerous, ” and concluding that Plaintiff failed to
meet her burden to demonstrate Defendant waived its sovereign
immunity under the CGIA. Order 14-15, ECF No. 201.
Court's treatment of Defendant's motion pursuant to
Rule 56 was proper, given that Defendant filed Answers
(complete, not partial) to the operative pleadings, both
before and after filing the combined motion. See
Answer to First Amended Complaint, ECF No. 25 and
Answer to Second Amended Complaint, ECF No. 179. Thus, to the
extent the Defendant sought dismissal pursuant to Rule 12 in
its combined motion, such request was not proper under
subsection (b) and would have been required to be treated
under subsection (c) as a motion for judgment on the
had the Court dismissed the claims against Defendant pursuant
to Rule 12, an award of attorney's fees under Colo. Rev.
Stat. § 13-17-201 and an award of costs under Colo. Rev.
Stat. § 13-16-113(2) are not proper when a case is
dismissed pursuant to Rule 12(c). See BSLNI, Inc. v. Russ
T. Diamonds, Inc., 293 P.3d 598, 601 (Colo.App. 2012)
(“under the plain language of the statutes, the trial
court must award attorney fees and costs under sections
13-16-113(2) and 13-17-201 when it dismisses the entire
action pursuant to Rule 12(b)”). The BSLNI,
Inc. court determined that it must “interpret the
meaning of the statutory language ‘under rule
12(b)' narrowly, and will only uphold an award of fees
when an action is properly dismissed pursuant to C.R.C.P.
12(b).” Id. The court reasoned that motions to
dismiss for failure to state a claim “are intended to
test the sufficiency of the complaint and to ‘permit
early dismissal' of meritless claims, ” whereas
motions for judgment on the pleadings are filed “after
the pleadings are closed.” Id. at 601-02. The
court concluded that the requested statutory awards were not
warranted for dismissal of the action pursuant to Rule 12(c).
Id. at 602.
even if the Court had not disposed of the Defendant's
dispositive motion pursuant to Rule 56, Defendant's
Answers to the First and Second Amended Complaints closed the
pleadings and would have deemed any motion to dismiss filed
pursuant to Fed.R.Civ.P. 12(b) a motion for judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c). In Colorado, the
statutes providing awards of attorney's fees and costs
for tort actions dismissed pursuant to Rule 12(b)-Colo. Rev.
Stat. §§ 13-16-113(2) and 13-17-201-are interpreted
“narrowly” to permit such awards only when an
action is “properly dismissed pursuant to C.R.C.P.
12(b).” Accordingly, the Court is not permitted to
order awards of attorneys' fees and costs as requested by
Defendant in this matter.
on the entire record and for the reasons stated above, the
Court denies Defendant City of
Littleton's Motion for Attorney's Fees and Costs
[filed February 28, 2019; ECF No. 242].
 It is undisputed that the
statute would apply in an action brought in this Court, even
when a state tort claim is dismissed pursuant to Fed.R.Civ.P.
12(b)(6). See Jones v. Denver Post Corp., 203 F.3d
748, 757 n.6 (10th Cir. 2000).
Fed. R. Civ. P. 12(b) provides, “A motion asserting any
of these defenses [including subsection (1) for lack of
subject matter jurisdiction] must be made before pleading if
a responsive pleading is allowed.”
Fed. R. Civ. P. 12(c) states in its entirety: “After
the pleadings are closed-but early enough not to delay
trial-a party may move for ...