Tag Archives: Complaint

In Re: Lillian R. Malm v. Marion Brigitte Villegas, 2015CO4 (January 20, 2015)

“[D]elay in service… cannot be found reasonable simply because the plaintiff made diligent efforts to locate the defendant.” Opinion. Malm filed her personal injury complaint in 2005, one month before the 3-year time limitation ended. In 2013, Malm found Villegas in Germany, and the District Court reopened the case noting the lack of a rule stating a reasonable time for service in a foreign country. Villegas opposed, arguing that the failure to serve her sooner was an unreasonable delay amounting to a failure to prosecute. The Court held that a delay between filing and service of a complaint beyond the statute of limitations is reasonable only if it is the product of either wrongful conduct by the defendant or some formal impediment to service. Without any facts that Villegas deliberately avoided service, the District Court should have dismissed the case for failure to prosecute.

DISCLAIMER: The Author was an attorney on the brief for Petitioner Malm. Andy Helm assisted in the writing of this post.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2014/14SA13.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9640&courtid=2

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Filed under Interlocutory Review, Personal Injury, Proceedure, Torts

Amendments to CRCP 4: Time to Serve; New Form 1 – Summons – Effective Immediately

Effective September 5, 2013, Colorado Rule of Civil Procedure 4 (and a reference in Rule 15) has been amended to add a completely new section stating that a case may be dismissed if a defendant is not served within 63 days after the complaint is filed.  A copy of the text is below, as well as a link to the court’s official rule change.

Rule 4. Process
(a) through (k) [NO CHANGE]
(l) No Colorado Rule.
(m) TIME LIMIT FOR SERVICE. IF A DEFENDANT IS NOT SERVED WITHIN 63 DAYS (NINE WEEKS) AFTER THE COMPLAINT IS FILED, THE COURT–ON MOTION OR ON ITS OWN AFTER NOTICE TO THE PLAINTIFF–SHALL DISMISS THE ACTION WITHOUT PREJUDICE AGAINST THAT DEFENDANT OR ORDER THAT SERVICE BE MADE WITHIN A SPECIFIED TIME. BUT IF THE PLAINTIFF SHOWS GOOD CAUSE FOR THE FAILURE, THE COURT SHALL EXTEND THE TIME FOR SERVICE FOR AN APPROPRIATE PERIOD. THIS SUBDIVISION (m) DOES NOT APPLY TO SERVICE IN A FOREIGN COUNTRY UNDER RULE 4(d).

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Rule_Changes/2013/2013(12)%20redlined.pdf

Effective as of October 10, 2013, the form for a summons has also been changed to add specific language explaining the rules governing the next steps after a summons is served:

Form 1.  SUMMONS

Caption and body of the Summons form [NO CHANGE]

This Summons is issued pursuant to Rule 4, C.R.C.P., as amended. A copy of the Complaint must be served with this Summons. This form should not be used where service by publication is desired.

WARNING: A VALID SUMMONS MAY BE ISSUED BY A LAWYER AND IT NEED NOT CONTAIN A COURT CASE NUMBER, THE SIGNATURE OF A COURT OFFICER, OR A COURT SEAL. THE PLAINTIFF HAS 14 DAYS FROM THE DATE THIS SUMMONS WAS SERVED ON YOU TO FILE THE CASE WITH THE COURT. YOU ARE RESPONSIBLE FOR CONTACTING THE COURT TO FIND OUT WHETHER THE CASE HAS BEEN FILED AND OBTAIN THE CASE NUMBER. IF THE PLAINTIFF FILES THE CASE WITHIN THIS TIME, THEN YOU MUST RESPOND AS EXPLAINED IN THIS SUMMONS. IF THE PLAINTIFF FILES MORE THAN 14 DAYS AFTER THE DATE THE SUMMONS WAS SERVED ON YOU, THE CASE MAY BE DISMISSED UPON MOTION AND YOU MAY BE ENTITLED TO SEEK ATTORNEY’S FEES FROM THE PLAINTIFF.

TO THE CLERK: If the summons is issued by the clerk of the court, the signature block for the clerk or deputy should be provided by stamp, or typewriter, in the space to the left of the attorney’s name.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Rule_Changes/2013/2013(15)%20redlined.pdf

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Filed under Commentary, Proceedure

Jerry Mullins v. Medical Lien Management, Inc., 2013COA134 (Sept. 26, 2013)

This case is a fight over $17,000.00. This appeal is about civil procedure. Plaintiff filed an interpleader action to determine who was entitled to funds recovered from a tortfeasor in a personal injury case. Medical Lien Management (MLM) filed an Answer and Counterclaims. Plaintiff then amended the Complaint, which MLM Answered without reasserting its counterclaims. 1 1/2 years later, Plaintiff claimed MLM had waived or abandoned its right to assert the Counterclaims. The trial court disagreed. The court of appeals did too because: 1) there is no requirement that counterclaims be repleaded in response to an amended complaint; 2) MLM prosecuted its claims, which did not prejudice Plaintiff; 3) technical defects must be disregarded if they do not affect the rights of the parties; and 4) a claim not pleaded but still tried can be decided. Evidentiary rulings were also upheld.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/11CA0699-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9094&courtid=1

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Filed under Contracts, Proceedure

In Re: Garcia v. Schneider Energy Services, Inc. and William R. Smith, 2012CO62 (October 22, 2012)

“Ooops, I sued the wrong person. My bad.” In this Rule 21 original proceeding, plaintiff, the estate of a worker killed on defendant’s property, sued defendant just within the 2 year statute of limitations period. After it passed, it turned out that another party was the proper defendant. Plaintiff moved to amend to include the correct defendant under CRCP 15(c), claiming the amended complaint related back to the timely-filed original complaint. The trial court dismissed because the new defendant was added 116 days after the filing of the original complaint and after the statute of limitations period had run. The Court reversed and held that amending a complaint and serving a new defendant within the time for regular service under CRCP 4(m), 120 days, was a reasonable amount of time. On remand, the trial court must determine if the delay in notice was otherwise unreasonable.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SA219.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8705&courtid=2

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Filed under Personal Injury, Proceedure