SUMMARY

February 6, 2020

2020COA21

No. 18CA2136, DIA Brewing, LLC v. MCE-DIA, LLC — Civil 

Procedure — Amended and Supplemental Proceedings —

Amendments as a Matter of Course

A division of the court of appeals analyzes when an order for 

dismissal of claims without prejudice is an appealable final 

judgment that cuts off a plaintiff’s right to amend as a matter of 

course. Under the facts presented, the majority holds that the 

plaintiff had the right to file an amended complaint as a matter of 

course even though the district court had dismissed its original 

claims without prejudice. 

The dissent would affirm, concluding that the orders 

dismissing the plaintiff’s claims were final judgments.

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2020COA21

Court of Appeals No. 18CA2136

City and County of Denver District Court No. 18CV30611

Honorable Brian R. Whitney, Judge

DIA Brewing Co., LLC, a Colorado limited liability company, 

Plaintiff-Appellant,

v.

MCE-DIA, LLC, a Michigan limited liability company; Midfield Concessions 

Enterprises, Inc. a Michigan limited liability company; Andrea Hachem; 

Noureddine “Dean” Hachem; Samir Mashni; Simrae Solutions, LLC, a Colorado 

limited liability company; Sudan I. Muhammad; Pangea Concessions Group, 

LLC, a Florida limited liability company; Niven Patel; Rohit Patel; and Richard 

E. Schaden,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE 

REMANDED WITH DIRECTIONS

Division VII

Opinion by JUDGE LIPINSKY

Webb, J., concurs

Fox, J., dissents

Announced February 6, 2020

Jones & Keller, P.C., G. Stephen Long, Christopher S. Mills, Denver, Colorado; 

The Law Offices of George A. Barton, P.C., George A. Barton, Denver, Colorado; 

Connelly Law, LLC, Sean Connelly, Denver, Colorado, for Plaintiff-Appellant

Merchant & Gould P.C., Peter A. Gergely, Denver, Colorado; Woodrow & Peluso, 

LLC, Steven L. Woodrow, Denver, Colorado, for Defendants-Appellees MCEDIA, LLC, Midfield Concessions Enterprises, Inc., Andrea Hachem; Noureddine 

“Dean” Hachem; Samir Mashni; Simrae Solutions, LLC, Sudan I. Muhammad; 

Pangea Concessions Group, LLC, Niven Patel; Rohit Patel
Haddon, Morgan and Foreman, P.C., Pamela Robillard Mackey, Saskia A. 

Jordan, Adam Mueller, David G. Maxted, Denver, Colorado for DefendantAppellee Richard E. Schaden
1

¶ 1 Plaintiff, DIA Brewing Co., LLC (Brewing), had several options 

after the district court dismissed its claims without prejudice, if it 

wished to continue litigating against the defendants:

• move for leave to file an amended complaint that remedied the 

defects in its original pleading;

• file an amended complaint with the defendants’ written 

consent; or

• commence a new case, with a new complaint. 

¶ 2 But Brewing chose a different strategy that raises novel issues 

under Colorado law: it filed an amended complaint, purportedly as 

a matter of course under C.R.C.P. 15(a), despite the dismissal of its 

claims. 

¶ 3 We decide three questions of law. First, we hold that, under 

the facts of this case, the orders dismissing Brewing’s claims 

without prejudice were not final judgments. Second, because the 

dismissal orders were not final judgments, we hold that Brewing 

retained the right to amend its complaint as a matter of course

under C.R.C.P. 15(a). Third, we hold that the district court erred by

deciding that Brewing’s amended complaint failed under the futility 
2

of amendment doctrine. Thus, we reverse the order striking 

Brewing’s amended complaint and remand for further proceedings. 

I. Relevant Facts and Procedural History

¶ 4 Brewing unsuccessfully bid for a contract to establish 

restaurants and related businesses at Denver International Airport 

(DIA). The businesses included a Colorado-themed microbrewery, 

two burger restaurants, and a coffee bar. DIA issued publicly

available rankings of the five qualified bidders, which ranked 

Brewing fourth. 

¶ 5 Brewing then sued several public and private defendants, 

alleging a bid-rigging conspiracy between defendants MCE-DIA, 

LLC, the winner of the contract; Midfield Concessions Enterprises, 

Inc., Andrea Hachem, Noureddine “Dean” Hachem, Samir Mashni,

Simrae Solutions, LLC, Sudan I. Muhammad, Pangea Concessions 

Group, LLC, Niven Patel, and Rohit Patel, who are affiliates of MCEDIA, LLC; Richard E. Schaden, the CEO of the hamburger chain 

Smashburger; and DIA officials (who are no longer parties to the 

case). 

¶ 6 More specifically, Brewing alleged that the owners of MCE-DIA 

offered partial ownership of the company to affiliates of one of the 
3

DIA officials in exchange for the official’s help in awarding the 

contract to MCE-DIA. Brewing asserted that DIA’s ranking of the 

bidders was tainted and invalid based on defendants’ alleged 

wrongful conduct.

¶ 7 Brewing pleaded claims for bid-rigging in violation of section 

6-4-106, C.R.S. 2019; bribery and other predicate acts in violation 

of the Colorado Organized Crime Control Act, § 18-17-104, C.R.S. 

2019; tortious interference with prospective business opportunity; 

and civil conspiracy. 

¶ 8 The nongovernmental defendants moved to dismiss for lack of 

subject matter jurisdiction under C.R.C.P. 12(b)(1), failure to plead 

fraud with particularity under C.R.C.P. 9(b), and failure to state 

claims on which relief could be granted under C.R.C.P. 12(b)(5). 

Brewing did not amend its complaint before the district court ruled 

on the dismissal motions. But, in its briefs opposing the motions to 

dismiss, Brewing requested leave to amend its complaint if the 

court determined that “additional averments are required,” as well 

as a hearing on the dismissal motions.

¶ 9 After considering the materials filed by the defendants in 

support of their motions to dismiss, including the list ranking the 
4

bidders (which was not incorporated into the complaint), but 

without conducting a hearing, the district court concluded that 

Brewing lacked standing to assert any of its claims and had failed 

to plead fraud with particularity. In a series of orders (the June 

orders), the court dismissed the complaint in its entirety. The 

dismissal orders did not indicate whether the case was dismissed 

with or without prejudice.

¶ 10 Brewing did not move under C.R.C.P. 59 or 60 to vacate or set 

aside the June orders. Instead, the day before the time to appeal 

the June orders expired, Brewing filed an amended complaint, 

contending that it had a right to amend as a matter of course under 

C.R.C.P. 15(a). The defendants moved to strike and dismiss the 

amended complaint, both on the grounds articulated in their 

original dismissal motions and based on the June orders. 

¶ 11 The district court entered an order (the November order) ruling

that the amended complaint was “denied for filing.” The court said 

that Brewing had not “preserved amendment as a matter of course” 

when it included an amendment request in its responses to the 

dismissal motions and had not sought relief from the June orders 

under C.R.C.P. 59. Under the court’s reasoning, Brewing could no 
5

longer amend as a matter of course after entry of the June orders 

because “whether with or without prejudice, the dismissal of all 

claims by the Court would be considered an ‘order to or from which 

an appeal lies’” and thus were final judgments. In the alternative, 

the court ruled that the amended complaint failed under the futility 

of amendment doctrine because, like Brewing’s original complaint, 

it neither established standing nor pleaded fraud with particularity. 

¶ 12 Following entry of the November order, Brewing appealed the 

June and November orders. The defendants moved to dismiss the 

appeal. A motions division of this court dismissed the appeal of the 

June orders as untimely but allowed the appeal to proceed with 

respect to the November order. Brewing does not challenge the 

motions division’s partial dismissal. Defendants do not challenge 

our jurisdiction over the November order.

II. Analysis

A. Right to Amend Versus Leave to Amend

¶ 13 C.R.C.P. 15(a) allows for three types of amendment: 

amendment as a matter of course, amendment by leave of court, 

and amendment with the adverse party’s written consent. “A party 

may amend his pleading once as a matter of course at any time 
6

before a responsive pleading is filed . . . . Otherwise, a party may 

amend his pleading only by leave of court or by written consent of 

the adverse party; and leave shall be freely given when justice so 

requires.” C.R.C.P. 15(a). A motion to dismiss is not a responsive 

pleading. Davis v. Paolino, 21 P.3d 870, 873 (Colo. App. 2001). 

¶ 14 Brewing contends that it had the right to amend its complaint 

as a matter of course, even after dismissal of its original claims, 

because the defendants never filed a responsive pleading and the 

court dismissed its original claims without prejudice. Brewing 

takes the position that it filed the amended complaint as a matter of 

course. Thus, whether the district court abused its discretion in 

denying Brewing leave to amend its complaint is not before us. 

¶ 15 Defendants contend that we should review the November order 

for an abuse of discretion. They argue that Brewing’s delay in 

attempting to amend, as well as other factors, gave the district 

court discretion to dismiss the amended complaint. But we agree 

with Brewing that whether it had the right to amend as a matter of 

course under C.R.C.P. 15(a) and whether the June orders cut off 

that right are questions of law that we review de novo. So we review 

de novo whether the district court committed legal error when it 
7

concluded that Brewing had lost its absolute right to amend as a 

matter of course. See DCP Midstream, LP v. Anadarko Petroleum 

Corp., 2013 CO 36, ¶ 24, 303 P.3d 1187, 1193.

B. The Entry of a Final Judgment Cuts off a Plaintiff’s Right to 

Amend as a Matter of Course Under C.R.C.P. 15(a)

¶ 16 The entry of a final, appealable judgment cuts off the right to 

amend, despite the language of C.R.C.P. 15(a). Harris v. Reg’l 

Transp. Dist., 155 P.3d 583, 587 (Colo. App. 2006); Estate of Hays 

v. Mid-Century Ins. Co., 902 P.2d 956, 959 (Colo. App. 1995); Wilcox 

v. Reconditioned Office Sys., 881 P.2d 398, 400 (Colo. App. 1994). 

The version of Fed. R. Civ. P. 15(a) in effect before the 2009 

amendments was identical to the current version of C.R.C.P. 15(a). 

Thus, cases interpreting the older version of the federal rule are 

persuasive. Harris, 155 P.3d at 588. Federal courts construing the 

earlier version of Fed. R. Civ. P. 15(a) uniformly reached the same 

conclusion: the right to amend is cut off on entry of a final 

judgment. Tool Box v. Ogden City Corp., 419 F.3d 1084, 1087 (10th 

Cir. 2005) (listing cases applying this rule); accord 3 James Wm.

Moore et al., Moore’s Federal Practice § 15.97[2] (2d ed. 1980) 

(noting that the absolute right to amend is lost after final judgment 
8

is entered). (Under the current version of the federal rule, a party 

may amend as a matter of course within twenty-one days after 

service of either a responsive pleading or a Fed. R. Civ. P. 12(b) 

motion. Fed. R. Civ. P. 15(a). The Colorado version of Rule 15(a) 

does not refer to Rule 12(b).) 

¶ 17 The Wilcox division reasoned that “when final judgment is 

entered before a responsive pleading is filed, the liberal approach of 

C.R.C.P. 15 must be balanced against the value of preserving the 

integrity of final judgments.” 881 P.2d at 400. The division, and 

later divisions addressing the issue, held that the right to amend is 

lost after entry of a final judgment because “the concerns of finality 

in litigation become even more compelling and the litigant has had 

the benefit of a day in court, in some fashion, on the merits of his 

claim.” Id. (quoting Union Planters Nat’l Leasing, Inc. v. Woods, 687 

F.2d 117, 121 (5th Cir. 1982)). 

¶ 18 But, in the absence of a final judgment, our supreme court 

has said that the right to amend a complaint as a matter of course 

under Rule 15(a) survives dismissal. Passe v. Mitchell, 161 Colo. 

501, 502, 423 P.2d 17, 17-18 (1967) (holding that in the absence of 

a responsive pleading, “no final judgment should have been entered 
9

in the absence of a showing of record that plaintiff waived the right 

to file an amended complaint”); Wistrand v. Leach Realty Co., 147 

Colo. 573, 576, 364 P.2d 396, 397 (1961) (After the district court 

entered a dismissal order without prejudice, “[t]o now urge that the 

dismissal prejudiced Leach’s right to have his claim adjudicated 

does violence to [Rule 15(a)] and the court’s order.”); Renner v.

Chilton, 142 Colo. 454, 456, 351 P.2d 277, 278 (1960) (“The 

language of [Rule 15(a)] is, however, clear and unequivocal. It 

expressly allows one amendment as a matter of right before the 

answer or reply is filed . . . .”).

¶ 19 We perceive no conflict between the Wilcox and Renner lines of 

cases. Renner and its progeny allow a plaintiff to amend its 

complaint as a matter of course consistent with Rule 15(a); Wilcox, 

Estate of Hays, and Harris extinguish that right once the district 

court enters a final judgment. (We need not address whether 

Brewing unreasonably delayed in exercising its right to amend as a 

matter of course. Brewing filed its amended complaint forty-eight 

days after the district court dismissed its original complaint, and 

the defendants do not argue that Brewing’s amended complaint was 

untimely. See 6 Arthur R. Miller, Mary Kay Kane & A. Benjamin 
10

Spencer, Federal Practice and Procedure § 1483, Westlaw (3d ed.

database updated Aug. 2019) (“In general . . . a party could amend 

as of course within a reasonable time after an order dismissing the 

complaint had been entered, inasmuch as no responsive pleading 

had been served.”) (emphasis added).)

¶ 20 This reconciliation strikes an appropriate balance between the 

liberal thrust of modern pleading standards, see C.R.C.P. 1(a) 

(“These rules shall be liberally construed, administered, and 

employed by the court and the parties to secure the just, speedy, 

and inexpensive determination of every action.”), and the policy 

concern, identified in Wilcox, to preserve finality once “the litigant 

has had the benefit of a day in court . . . on the merits of his claim,” 

Wilcox, 881 P.2d at 400.

C. Whether the District Court Dismissed Brewing’s Claims Under 

C.R.C.P. 12(b)(1) or 12(b)(5) Is Inconsequential to the Finality 

Analysis

¶ 21 The cases addressing a party’s right to amend following 

dismissal of its claims did not limit their analysis to Rule 12(b)(5) 

dismissals. See Passe, 161 Colo. at 502, 423 P.2d at 17-18 (unless 

the plaintiff waives its right to file an amended complaint, the 

district court cannot dismiss an action with prejudice); Wistrand, 
11

147 Colo. at 576, 364 P.2d at 397 (holding, without qualification, 

that the plaintiff could amend its complaint following a dismissal 

without prejudice); Renner, 142 Colo. at 456, 351 P.2d at 278 

(noting that there are no exceptions to Rule 15(a)’s right to file an 

amended complaint before the filing of a responsive pleading).

¶ 22 Likewise, federal courts, which have more fully developed case 

law in this area, do not distinguish between Rule 12(b)(1) and 

12(b)(5) dismissals for purposes of determining whether a party may 

file a post-dismissal amended pleading. See, e.g., Northlake Cmty.

Hosp. v. United States, 654 F.2d 1234, 1240 (7th Cir. 1981) (“The 

Federal Rules of Civil Procedure . . . allow for the liberal amendment 

of pleadings, particularly to cure jurisdictional defects.”); Lone Star 

Motor Imp., Inc. v. Citroen Cars Corp., 288 F.2d 69, 75-77 (5th Cir. 

1961) (holding that the district court erred in refusing to allow 

plaintiff to cure subject matter jurisdiction defect by amended 

complaint); Keene Lumber Co. v. Leventhal, 165 F.2d 815, 823 (1st 

Cir. 1948) (stating, in dicta, that the plaintiff could amend its 

complaint to establish diversity of citizenship “as a matter of right”).

¶ 23 Further, two Colorado cases say that a plaintiff whose 

complaint is dismissed may elect either to stand by the dismissed 
12

complaint and appeal, or to file an amended complaint. Passe, 161 

Colo. at 502, 423 P.2d at 17-18; Wistrand, 147 Colo. at 576, 364 

P.2d at 397.

¶ 24 Lastly, our case law reflects the tension regarding whether a 

district court can consider only evidence “supportive of standing,” 

Colo. Gen. Assembly v. Lamm, 700 P.2d 508, 516 (Colo. 1985), or if 

it can consider “any . . . evidence submitted on the issue of 

standing,” Bd. of Cty. Comm’rs v. Bowen/Edwards Assocs., 830 

P.2d 1045, 1053 (Colo. 1992). This uncertainty disfavors crediting 

the evidence proffered by the party that seeks to defeat standing as 

a basis to deny the party that seeks to establish standing the right 

to amend under Rule 15(a), particularly where, as here, Brewing 

sought, but was not granted, a hearing.

¶ 25 Of course, judicial economy always deserves consideration. 

Allowing a plaintiff to amend a complaint after a Rule 12(b)(1)

dismissal — as opposed to taking an immediate appeal — will result 

in further proceedings before the district court. Yet the same would 

be true of an amendment after a Rule 12(b)(5) dismissal. And our 

supreme court has instructed district courts “not [to] impose 

arbitrary restrictions on making timely amendments,” and that our 
13

procedural rules should “[f]ocus . . . upon resolution of actions on 

their merits . . . .” Benton v. Adams, 56 P.3d 81, 85 (Colo. 2002). 

We must heed both admonitions.

¶ 26 We next consider whether the June orders constituted final 

judgments and conclude that they did not.

D. The June Orders Were Not Final Judgments

1. The District Court Dismissed Brewing’s Initial Claims Without 

Prejudice

¶ 27 Because the June orders did not specify whether the district 

court was dismissing Brewing’s initial claims with or without 

prejudice, we must determine whether the dismissals were with or 

without prejudice. The registry of actions said that the dismissals 

were without prejudice. But the content of an order, not its title, 

determines whether it is a final judgment. Cyr v. Dist. Court, 685 

P.2d 769, 770 (Colo. 1984). A “[j]udgment” is “a decree and order to 

or from which an appeal lies.” C.R.C.P. 54(a). 

¶ 28 C.R.C.P. 41(b)(3) presumes that dismissal orders that do not 

specify with or without prejudice must be construed as effecting a 

dismissal without prejudice. See Graham v. Maketa, 227 P.3d 516, 

517 (Colo. App. 2010) (“The dismissal order did not specify whether 
14

the action was being dismissed ‘with’ or ‘without’ prejudice, and so 

it is presumed to be without prejudice.”). 

¶ 29 Still, this conclusion does not end our analysis of whether the 

June orders were final judgments because, as we explain in the 

next section, dismissals without prejudice may be final judgments.

2. The June Orders Were Not Final Judgments Because Brewing 

Could Have Cured the Defects in Its Claims Through 

Amendment 

¶ 30 The district court’s June orders dismissed Brewing’s claims 

because Brewing lacked standing and because Brewing failed to 

plead fraud with particularity. This first basis was a dismissal for 

lack of jurisdiction under C.R.C.P. 12(b)(1) because standing is a 

jurisdictional prerequisite. C.W.B., Jr. v. A.S., 2018 CO 8, ¶ 16, 410 

P.3d 438, 442; City of Greenwood Vill. v. Petitioners for Proposed 

City of Centennial, 3 P.3d 427, 436 (Colo. 2000). So, the question is 

whether the C.R.C.P. 12(b)(1) dismissals were final judgments. 

¶ 31 A long line of Colorado cases holds that a dismissal without 

prejudice constitutes a final judgment only if the action “cannot be 

saved” by an amended complaint. See, e.g., Schoenewald v. Schoen, 

132 Colo. 142, 143-44, 286 P.2d 341, 341 (1955) (dismissal without 

prejudice was not a final judgment); Avicanna Inc. v. Mewhinney, 
15

2019 COA 129, ¶ 1 n.1, ___ P.3d ___, ___ n.1 (noting that, “[w]here

. . . the circumstances of the case indicate that the action cannot be 

saved . . . , dismissal without prejudice qualifies as a final 

judgment”); Harris, 155 P.3d at 585 (same); Burden v. Greeven, 953 

P.2d 205, 207 (Colo. App. 1998) (same); Carter v. Small Bus. Admin., 

40 Colo. App. 271, 272-73, 573 P.2d 564, 566 (1977) (same). 

¶ 32 The most common situation where a complaint “cannot be 

saved” occurs when further proceedings would be barred by a 

statute of limitations. E.g., Harris, 155 P.3d at 585; B.C. Inv. Co. v. 

Throm, 650 P.2d 1333, 1335 (Colo. App. 1982). Other cases involve 

clear preemption, e.g., Richardson v. United States, 336 F.2d 265, 

266 n.1 (9th Cir. 1964); claims that are “so patently frivolous that 

they cannot be saved,” Rubins v. Plummer, 813 P.2d 778, 779 (Colo. 

App. 1990); and other “special circumstance[s],” In re Custody of 

Nugent, 955 P.2d 584, 587 (Colo. App. 1997).

¶ 33 This approach to determining the finality of dismissal orders 

comports with the federal courts’ treatment of the issue. While 

federal courts articulate the test in different ways, the gist of the 

rule remains constant: a dismissal without prejudice is not a final 

judgment if the plaintiff can cure deficiencies through an amended 
16

complaint. See, e.g., Goode v. Cent. Va. Legal Aid Soc’y, 807 F.3d 

619, 623 (4th Cir. 2015) (“An order dismissing a complaint without 

prejudice is not an appealable final order . . . if ‘the plaintiff could 

save his action by merely amending his complaint.’” (quoting 

Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 

1064, 1066-67 (4th Cir. 1993))); Moya v. Schollenbarger, 465 F.3d 

444, 448-49 (10th Cir. 2006) (“[I]n this circuit, ‘whether an order of 

dismissal is appealable’ generally depends on ‘whether the district 

court dismissed the complaint or the action. A dismissal of the 

complaint is ordinarily a non-final, nonappealable order (since 

amendment would generally be available), while a dismissal of the 

entire action is ordinarily final.’” (quoting Mobley v. McCormick, 40 

F.3d 337, 339 (10th Cir. 1994))); Ordower v. Feldman, 826 F.2d 

1569, 1572 (7th Cir. 1987) (“If a district court’s dismissal leaves a 

plaintiff free to file an amended complaint, the dismissal is not 

considered a final appealable order.”); Borelli v. City of Reading, 532 

F.2d 950, 951 (3d Cir. 1976) (holding that “an implicit invitation to 

amplify the complaint is found in the phrase ‘without prejudice’”).

¶ 34 Viewing the June orders through this lens, Brewing could have 

saved its allegations related to standing in the original complaint, 
17

which the district court deemed insufficient, through an amended 

complaint. The court held that Brewing had not “sufficiently 

established actual injury to create standing” because it offered no 

evidence to support its allegation — i.e., it pleaded “[u]pon 

information and belief” — that it “was actually the highest scoring 

entity bidding” on the request for proposals. The court relied 

entirely on a summary ranking provided by MCE-DIA in support of 

its motion to dismiss, which showed that Brewing finished fourth of 

five bidders. So, in the court’s view, Brewing had not sufficiently 

shown injury in fact.

¶ 35 Brewing could have cured this defect by pleading additional 

facts to discredit the entire summary ranking, as it does in its 

amended complaint. Specifically, the amended complaint alleges in 

detail how Bhavesh Patel, the alleged insider at DIA, manipulated 

the voting process to ensure that MCE-DIA won the contract. (The 

amended complaint alleges how Bhavesh Patel designed the judges’ 

scorecards and manipulated DIA’s scoring tabulation matrix to 

ensure that MCE-DIA would prevail, and how he sought to 

improperly influence the judging through another alleged coconspirator. These allegations are supported by an affidavit from 
18

an investigator who interviewed an official at DIA involved with the 

request-for-proposals process.) 

¶ 36 Lastly, the motions division’s conclusion that the June orders 

constituted appealable final judgments, and that Brewing had 

missed the deadline to appeal those orders, do not preclude us from 

holding that the June orders were not final judgments for purposes 

of amendment as a matter of course. The motions division neither 

considered nor determined whether Brewing had the right to amend 

as a matter of course following the entry. And “[a] decision of a 

motions division is not always binding.” Cordova v. Indus. Claim 

Appeals Office, 55 P.3d 186, 189 (Colo. App. 2002); see Allison v. 

Engel, 2017 COA 43, ¶ 22, 395 P.3d 1217, 1222 (deciding that the 

court is not bound by a motions division’s determination of 

jurisdiction).

¶ 37 In sum, based on consistent precedent from divisions of this 

court and the federal courts, we conclude that the June orders were 

not final judgments barring amendment as a matter of course 

under Rule 15(a) because Brewing could have amended its 

complaint to cure the deficiencies noted in the June orders.
19

III. The District Court Erred by Rejecting Brewing’s Amended 

Complaint Under the Futility of Amendment Doctrine

¶ 38 As explained above, in the November order, the district court 

held that Brewing could not amend its complaint as a matter of 

course and, moreover, if Brewing had moved for leave to amend 

under C.R.C.P. 15(a), its motion would fail under the futility of 

amendment doctrine.

¶ 39 Futility of amendment is a basis to deny a motion for leave to 

amend a pleading. Benton, 56 P.3d at 85-86. A district court may 

deny a motion for leave to amend on grounds of futility if the 

proposed pleading could not survive a motion to dismiss. See id. at 

85. “A proposed amendment would clearly be futile if, among other 

things, it failed to state a legal theory or was incapable of 

withstanding a motion to dismiss.” Vinton v. Virzi, 2012 CO 10, 

¶ 13, 269 P.3d 1242, 1246.

¶ 40 Futility of amendment does not apply to amended pleadings 

filed as a matter of course, however. By definition, a party 

amending as a matter of course does not need the court’s leave to 

submit its amended pleading. “When the plaintiff has the right to 

file an amended complaint as a matter of course, . . . the plain 
20

language of Rule 15(a) shows that the court lacks the discretion to 

reject the amended complaint based on its alleged futility.” 

Williams v. Bd. of Regents, 477 F.3d 1282, 1292 (11th Cir. 2007)

(interpreting the federal analogue to C.R.C.P. 15(a)). Of course, an 

opposing party could move for dismissal of the amended pleading 

under C.R.C.P. 12(b), which identifies the grounds for dismissal of a 

pleading. 

¶ 41 Here, the district court improperly analyzed Brewing’s 

amended complaint under the futility of amendment doctrine 

because Brewing filed the amended complaint as a matter of course 

and was not seeking leave of court to do so. For this reason, we 

reverse the district court’s decision to disallow Brewing’s amended 

complaint under the futility of amendment doctrine. Because 

Brewing had the right to file its amended complaint as a matter of 

course, the next procedural step following remand will be 

defendants’ submission of an “answer or other response” pursuant 

to C.R.C.P. 12(a)(1).

IV. Conclusion

¶ 42 The judgment is reversed. The case is remanded for further 

proceedings consistent with this opinion. 
21

JUDGE WEBB concurs.

JUDGE FOX dissents.
22

JUDGE FOX, dissenting.

¶ 43 I agree that two questions of law are dispositive of this appeal. 

The first is whether a district court’s order dismissing all claims 

under C.R.C.P. 12(b)(1) on the basis that the plaintiff lacks standing 

is a final judgment. The second is whether a plaintiff retains an

absolute right to amend its complaint under C.R.C.P. 15(a) after 

final judgment is entered. I disagree with the majority that the 

June orders were nonfinal judgments and also disagree that, once 

final judgments were entered, Brewing retained an absolute right to 

amend. I would, therefore, affirm the district court’s order 

dismissing plaintiff’s amended complaint.

¶ 44 Because the majority fairly sets out the procedural history and 

the operative facts, I will not repeat them here. 

I. Analysis

A. Right to Amend Versus Leave to Amend

¶ 45 “A party may amend his pleading once as a matter of course at 

any time before a responsive pleading is filed.” C.R.C.P. 15(a). 

“Otherwise, a party may amend his pleading only by leave of court,” 

which “shall be freely given when justice so requires.” Id.
23

¶ 46 Brewing contends that it had an absolute right to amend its 

complaint even after it was dismissed for lack of standing because 

the defendants never filed a responsive pleading.1 Brewing does not 

ask this court to construe its filing of the amended complaint as 

asking for leave.

¶ 47 Thus, I agree with the majority that we are not reviewing 

whether the district court abused its discretion by denying Brewing

leave to amend its complaint. Rather, we are to review de novo 

whether the district court committed legal error when it concluded 

that Brewing had lost its absolute right to amend.2 See DCP 

Midstream, LP v. Anadarko Petroleum Corp., 2013 CO 36, ¶ 24.

 

1 The majority correctly recognizes that a motion to dismiss is not a 

responsive pleading. Davis v. Paolino, 21 P.3d 870, 873 (Colo. App. 

2001). 

2 Defendants contend that we should review the trial court’s order 

dismissing the amended complaint for an abuse of discretion, and 

argue that Brewing’s delay in attempting to amend, as well as other 

factors, gave the trial court discretion to dismiss the amended 

complaint (or more accurately, to deny leave to amend). I agree 

with Brewing that the questions of whether it had an absolute right

to amend under C.R.C.P. 15(a), and whether the June orders cut off 

that right, are questions of law that warrant de novo review.
24

B. The Entry of a Final, Appealable Judgment Cuts Off a 

Plaintiff’s Right to Amend Under C.R.C.P. 15(a)

¶ 48 For twenty-five years, divisions of this court have uniformly 

held that the entry of a final, appealable judgment cuts off the right 

to amend, notwithstanding the language of C.R.C.P. 15(a). Gandy 

v. Williams, 2019 COA 118, ¶ 10; Harris v. Reg’l Transp. Dist., 155 

P.3d 583, 587 (Colo. App. 2006); Estate of Hays v. Mid-Century Ins. 

Co., 902 P.2d 956, 959 (Colo. App. 1995); Wilcox v. Reconditioned 

Office Sys., 881 P.2d 398, 400 (Colo. App. 1994). 

¶ 49 Before Fed. R. Civ. P. 15(a) was amended in 2009, it was 

identical to the Colorado rule, and federal courts construing that 

version of the rule uniformly reached the same conclusion: the right 

to amend is cut off when a final judgment is entered.3 Tool Box v. 

Ogden City Corp., 419 F.3d 1084, 1087 (10th Cir. 2005) (listing 

cases applying this rule); Cooper v. Shumway, 780 F.2d 27, 29 

(10th Cir. 1985); accord 3 James Wm. Moore et al., Moore’s Federal 

Practice § 15.97[2] (2d ed. 1980) (noting that the absolute right to 

amend is lost after final judgment is entered).

 

3 Under the current federal rule, the absolute right to amend is cut 

off twenty-one days after service of a C.R.C.P. 12(b) motion.
25

¶ 50 These opinions are sound. The Wilcox division reasoned that 

“when final judgment is entered before a responsive pleading is 

filed, the liberal approach of C.R.C.P. 15 must be balanced against 

the value of preserving the integrity of final judgments.” 881 P.2d 

at 400. The division, and later divisions addressing the issue, 

struck that balance by holding that the right to amend is lost after 

a final judgment is entered because “the concerns of finality in 

litigation become even more compelling and the litigant has had the 

benefit of a day in court, in some fashion, on the merits of his 

claim.” Id. (quoting Union Planters Nat’l Leasing v. Woods, 687 F.2d 

117, 121 (5th Cir. 1982)). Instead, before amending, a plaintiff 

must move to set aside the dismissal judgment under C.R.C.P. 59 

or 60(b). See id.

¶ 51 So, it should have been no surprise to Brewing that under 

these precedents, it had the following choices when the district 

court dismissed its complaint for lack of standing under C.R.C.P. 

12(b)(1):

• timely move to amend the judgment of dismissal under 

C.R.C.P. 59 or to vacate the judgment under C.R.C.P. 

60;
26

• timely appeal the June 2018 dismissal to this court; or

• file a new action, taking the risk that the June 2018 

dismissal would be preclusive of the new action.

¶ 52 Brewing did none of these things. Instead, without properly 

seeking leave of court, Brewing filed an amended complaint 

forty-eight days after the June 2018 dismissal order, contending 

that it had an absolute right to do so, and it allowed the 

forty-nine-day appeal period for the June orders to expire without 

filing a notice of appeal. See C.A.R. 4(b).

¶ 53 Given these court of appeals cases and Brewing’s course of 

action, it can succeed in this appeal only if the June orders did not 

constitute final judgments, or if all of the court of appeals’ decisions 

were contrary to Colorado Supreme Court precedent. 

C. The District Court’s June Orders Were Final Judgments

¶ 54 The court’s June orders dismissed Brewing’s complaint 

because Brewing lacked standing and because Brewing failed to 

plead fraud with particularity. This first basis was a dismissal for 

lack of jurisdiction under C.R.C.P. 12(b)(1) because standing is a 

jurisdictional prerequisite. C.W.B., Jr. v. A.S., 2018 CO 8, ¶ 16; City 

of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 
27

P.3d 427, 436 (Colo. 2000). So, the question is whether the 

C.R.C.P. 12(b)(1) dismissals were final judgments. 

¶ 55 I recognize that the district court initially characterized its 

dismissals as “without prejudice.” Later, in response to an order to 

show cause from this court, the district court stated that the 

“without prejudice” designation was a “clerical error.” This 

confusion does not affect my analysis. Usually, “a trial court’s 

dismissal of a claim without prejudice does not constitute a final 

judgment,” but this designation is not dispositive. Brody v. Bock, 

897 P.2d 769, 777 (Colo. 1995). 

¶ 56 The characterization of a dismissal order as either with or 

without prejudice may, as this case illustrates, lend uncertainty to 

the process. The principal effect of a dismissal without prejudice is 

that the dismissal does not preclude filing a new action. Grynberg 

v. Phillips, 148 P.3d 446, 450 (Colo. App. 2006). That 

characterization may also affect whether the order is a final, 

appealable judgment. See id. Generally, though not always, a 

dismissal without prejudice is not a final, appealable order, and this 

court usually will dismiss an appeal of an order dismissing a case 
28

without prejudice. Avicanna Inc. v. Mewhinney, 2019 COA 129, ¶ 1 

n.1.

¶ 57 The content of an order, not its title, determines whether it is a 

final judgment. Cyr v. Dist. Court, 685 P.2d 769, 770 (Colo. 1984). 

A “[j]udgment” is “a decree and order to or from which an appeal 

lies.” C.R.C.P. 54(a). The controlling question is whether the order 

“constitutes a final determination of the rights of the parties in the 

action.” Cyr, 685 P.2d at 770. “[A]n order of dismissal is to be 

treated as a judgment for the purposes of taking an appeal when it 

finally disposes of the particular action and prevents any further 

proceedings as effectually as would any formal judgment.” Levine v. 

Empire Sav. & Loan Ass’n, 192 Colo. 188, 190, 557 P.2d 386, 387

(1976) (quoting Herrscher v. Herrscher, 259 P.2d 901, 903 (Cal. 

1953)).

¶ 58 Here, the district court’s June orders disposed of all claims 

against all parties. The court adjudicated the critical question of 

whether Brewing had standing and concluded that it did not. There 

were no remaining issues, legal or factual, for the court to resolve 

after it granted the motions to dismiss. Under the Colorado Rules 

of Civil Procedure and supreme court precedent, the orders 
29

constituted final judgments. There was simply nothing left for the 

district court to do at that point, except to address issues of fees 

and costs. And a request for fees or costs does not generally affect 

the judgment’s finality. See C.R.C.P. 58(a) (providing that entry of 

the judgment shall not be delayed for the taxing of costs); Moya v. 

Schollenbarger, 465 F.3d 444, 450 (10th Cir. 2006) (reasoning that 

dismissal of the entire action is ordinarily a final judgment); Driscoll 

v. Dist. Court, 870 P.2d 1250, 1252 (Colo. 1994) (fees and costs

request does not affect finality of a judgment); see also Baldwin v. 

Bright Mortg. Co., 757 P.2d 1072, 1074 (Colo. 1988). In asking the 

court to determine what fees and costs were due, the parties 

recognized as much.

¶ 59 The motions division of this court agreed. In the defendants’ 

motion to dismiss the appeal, they argued that the June orders 

constituted appealable final judgments, but that the time for appeal 

had expired. The motions division agreed and dismissed the 

portion of the appeal relating to the June orders because they 

“dispos[ed] of this case on the merits.”

¶ 60 While the district court never adjudicated the underlying 

merits of the plaintiff’s various claims, it did adjudicate the question 
30

of whether the plaintiffs have standing to bring those claims. 

“Although dismissal for lack of subject matter jurisdiction does not 

adjudicate the merits of the claims asserted, it does adjudicate the 

court’s jurisdiction.” W. Colo. Motors, LLC v. Gen. Motors, LLC, 2019 

COA 77, ¶ 19 (quoting Sandy Lake Band of Mississippi Chippewa v. 

United States, 714 F.3d 1098, 1103 (8th Cir. 2013)). As to that 

limited question — standing and, thus, jurisdiction — the dismissal 

order was an adjudication constituting a final judgment.

¶ 61 Because the June orders constituted final judgments, Brewing 

lost the absolute right to amend under C.R.C.P 15(a).4

D. Colorado Supreme Court Precedent Does Not Dictate a 

Different Result

¶ 62 In addressing the final question, I cannot disregard twenty-five 

years of court of appeals authority holding that entry of final 

judgment cuts off a plaintiff’s right to amend under C.R.C.P. 15(a). 

 

4 I do not exclude the possibility that a dismissal based on lack of 

standing predicated solely on the four corners of a complaint may 

not be a final, appealable judgment. But in this case, the trial court 

considered information outside of the complaint to inform its 

standing ruling. Under these circumstances, a Rule 12(b)(1) 

dismissal is a final order or judgment.
31

¶ 63 Brewing essentially argues that the prior court of appeals 

cases are contrary to earlier holdings of the Colorado Supreme 

Court, which have never been overruled by the supreme court in its 

adjudicatory or rulemaking capacities. As an intermediate 

appellate court, we are bound by supreme court authority. See 

Silver v. Colo. Cas. Ins. Co., 219 P.3d 324, 330 (Colo. App. 2009). It 

matters not that the supreme court authority is old or that we 

purportedly discern a better rule of law. It is the prerogative of the 

supreme court alone to overrule its cases. See id.

¶ 64 Brewing relies on three supreme court cases: Renner v.

Chilton, 142 Colo. 454, 351 P.2d 277 (1960); Passe v. Mitchell, 161 

Colo. 501, 423 P.2d 17 (1967); and Wistrand v. Leach Realty Co., 

147 Colo. 573, 364 P.2d 396 (1961). According to Brewing, each of 

these cases holds that a plaintiff’s right to amend is not cut off 

when a court grants a motion to dismiss so long as no responsive 

pleading has been filed.5 

 

5 These cases address a version of C.R.C.P. 15(a) that is 

substantively identical to the current version of the rule.
32

¶ 65 Passe and Renner involved a plaintiff’s attempt to amend his 

complaint after the court had granted the defendant’s C.R.C.P. 

12(b)(5) motion to dismiss for failure to state a claim, and, in both 

cases, the supreme court held that the plaintiffs had a right to 

amend. Passe, 161 Colo. at 502, 423 P.2d at 17-18; Renner, 142 

Colo. at 455-56, 351 P.2d at 277-78. In Passe, the court reasoned 

that “no final judgment should have been entered in the absence of 

a showing of record that plaintiff waived the right to file an 

amended complaint, and elected to stand upon the allegations of 

the complaint to which the motion to dismiss was addressed.”

Passe, 161 Colo. at 502, 423 P.2d at 17-18. 

¶ 66 In Wistrand, the case most heavily relied on by Brewing, the 

plaintiff’s contract claim was dismissed without prejudice under 

C.R.C.P. 12(b)(5) because the defendant was not a party to the 

contract. Wistrand, 147 Colo. at 574-75, 364 P.2d at 397. The 

plaintiff then filed a new suit against the same defendant on the 

theory of unjust enrichment. Id. at 575, 364 P.2d at 397. On 

appeal, the supreme court held that the legal theory of res judicata 

(now, claim preclusion) was inapplicable because the dismissal was 

without prejudice. Id. at 575-76, 364 P.2d at 397. 
33

¶ 67 In a discussion that does not appear to be necessary to the 

court’s holding on res judicata, the court noted that “[o]n dismissal 

of the original action [plaintiff] could have (1) amended its 

complaint, (2) stood on its complaint and appealed, (3) accepted a 

dismissal without prejudice or (4) had its rights finally adjudicated 

by a dismissal with prejudice and failure to appeal.” Id. at 575, 364 

P.2d at 397. Brewing relies on this language, and the language in 

Passe and Renner, to contend that it had an absolute right to 

amend its complaint even after dismissal. 

¶ 68 I reject this argument because in all three cases the dismissals 

were under C.R.C.P. 12(b)(5) — not, as was the case here, under 

C.R.C.P. 12(b)(1). 

¶ 69 A dismissal under Rule 12(b)(5) for failure to state a claim is 

fundamentally different from a dismissal under Rule 12(b)(1) for 

lack of jurisdiction.6 On a Rule 12(b)(5) motion, a court must take 

the facts pleaded as true and may only consider the four corners of 

the complaint (together with documents appended to or referred to 

 

6 Because the district court in this case dismissed the complaint for 

lack of standing, the court noted that it was not reaching the 

defendants’ C.R.C.P. 12(b)(5) grounds for dismissal. 
34

in the complaint). Norton v. Rocky Mountain Planned Parenthood, 

Inc., 2018 CO 3, ¶ 7. In contrast, under Rule 12(b)(1), a court must 

make findings and conclusions necessary to adjudicate the 

jurisdictional question. A court may, and often must, look beyond 

the pleadings and consider relevant evidence to assure itself that it 

has the power to hear the case. See Barry v. Bally Gaming, 2013 

COA 176, ¶ 8. And a court may (and in certain contexts, must) 

hold an evidentiary hearing and make factual findings related to its 

jurisdiction. See, e.g., Trinity Broad. of Denver v. City of 

Westminster, 848 P.2d 916, 926 (Colo. 1993). 

¶ 70 In this case, defendants’ challenge to the court’s subject 

matter jurisdiction required the court to address whether Brewing 

had standing and thus whether the court had jurisdiction to 

adjudicate the pleaded claims. On a Rule 12(b)(1) motion, in 

contrast to a Rule 12(b)(5) motion, a court may look outside of the 

complaint to resolve a jurisdictional issue. See Barry, ¶ 8. Here, 
35

the court relied on the published list of bidders to conclude that 

Brewing did not have standing.7

¶ 71 Because the merits of the standing determination of the June 

orders are not before us, I do not address to what extent the 

allegations of a complaint regarding standing must be accepted as 

true by a district court. See, e.g., Ainscough v. Owens, 90 P.3d 851, 

857 (Colo. 2004). I also need not decide whether the court may or 

must, as in certain other cases implicating the court’s subject 

matter jurisdiction, conduct evidentiary proceedings to enable the 

court to make findings of fact and conclusions of law on the 

jurisdictional questions. See, e.g., Trinity Broad., 848 P.2d at 926.

¶ 72 Because none of the supreme court decisions Brewing relied 

on addressed a dismissal under Rule 12(b)(1) for lack of 

jurisdiction, those holdings do not control here. And because a 

Rule 12(b)(1) dismissal order is at issue, this case does not require 

deciding whether Harris, a 2006 court of appeals case regarding a 

 

7 Because, in my view, the June orders are not before us, I do not 

determine whether the trial court correctly relied on the published 

bidding list to conclude that Brewing lacked standing.
36

Rule 12(b)(5) dismissal, was inconsistent with Renner, Passe, or 

Wistrand.8

¶ 73 In conclusion, the district court did not err by dismissing the 

amended complaint because its June orders constituted final 

judgments that cut off Brewing’s right to amend. Because I would 

affirm on that ground, I would not address whether the court erred 

when it concluded, in the alternative, that the amended complaint 

was futile. To the extent that Brewing’s briefs invite us to give an 

advisory opinion on whether a new action would be barred by claim 

preclusion, I would decline the invitation because that question is 

not properly before us. During oral argument, however, the parties 

conceded that Brewing is free to initiate a new action regardless of 

the outcome of the amendment question at issue.

 

8 The Harris opinion took note of only Renner, distinguishing it on

the ground that the motion to amend in Renner was “made before 

judgment was entered on the docket,” whereas in Harris, judgment 

was entered on the docket before amendment. Harris v. Reg’l 

Transp. Dist., 155 P.3d 583, 587 (Colo. App. 2006). The Harris

division found this distinction sufficient to conclude that it was not 

bound by Renner.