Colorado dismissal: an order that does not say "with prejudice" is without it

Colorado removes the ambiguity that follows most failure-to-prosecute dismissals. The order has to say which kind it is — and if it does not, the rule decides for it, in the plaintiff's favor.

Silence means without prejudice

Rule 41(b):

All orders dismissing for failure to prosecute shall specify whether the dismissal is with or without prejudice. Motions or orders that do not so specify shall be deemed motions for dismissal without prejudice or orders for dismissal without prejudice as appropriate.

Two obligations and one default.

Orders must specify. A failure-to-prosecute dismissal that says nothing about prejudice is non-compliant on its face.

Motions are read the same way. A defendant who moves to dismiss for failure to prosecute without asking for prejudice has moved for a dismissal without it, whatever was intended.

That is the drafting point for a defendant: if you want the dismissal to end the claim, say so in the motion. Silence is construed against you.

For a plaintiff, it is the first thing to check on any such order. If prejudice is not stated, the rule supplies the answer.

Dismissal with prejudice takes reasonable notice

The same subdivision sets the standard:

Actions not prosecuted or brought to trial with due diligence may be dismissed by the court with prejudice after reasonable notice by the court

Note the two conditions attached to a with-prejudice dismissal: a failure to prosecute or bring to trial "with due diligence," and reasonable notice by the court. The court cannot simply strike a dormant case with prejudice off its own bat and without warning.

Voluntary dismissal, and its effect

Rule 41(a) carries the standard structure — notice before the answer or a motion for summary judgment, or stipulation by all who have appeared — and Rule 41(a)(2) confirms the default for court-ordered dismissals:

Unless otherwise specified in the order, a dismissal under this subsection (2) is without prejudice.

So the "read the order" instruction runs through the whole rule. Both the voluntary and the failure-to-prosecute routes default to without prejudice, and both are displaced only by an order that says otherwise.

Involuntary dismissal at trial, and findings

Where a case is tried to the court and the defendant moves at the close of the plaintiff's evidence:

If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52 .

"Shall," not may — Colorado requires findings on a merits judgment, unlike Mississippi, where they are discretionary. So a losing plaintiff is entitled to reasons, and a winning defendant should be ready to help draft them.

Counterclaims and other claims

Rule 41(c) extends the rule beyond the plaintiff's claim: "The provisions of this Rule apply to the dismissal of any counterclaim, cross claim, or third-party claim." A defendant who has counterclaimed is therefore subject to the same failure-to-prosecute exposure as the plaintiff.

Refiling can be stopped until you pay for the last one

Rule 41(d) conditions the second attempt on the first:

If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

The stay is the part worth asking for. A defendant meeting the same claim twice can have the refiled case held until the costs of the first are paid — which is often a faster route to resolution than litigating the merits again.

Costs are a condition of the notice route

Colorado attaches a price to dismissing without an order, and it does so in the opening sentence:

Subject to the provisions of Rule 23(e), of Rule 66, and of any statute, an action may be dismissed by the plaintiff without order of court upon payment of costs: (A) By filing a notice of dismissal at any time before filing or service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs

Two points sit in that sentence.

"Upon payment of costs." The condition governs both the notice and the stipulation routes. Most states leave costs to the far end of the rule, where they matter only if the plaintiff refiles; Colorado asks for them on the way out. Mississippi does the same.

"Before filing or service." Note the pair. Elsewhere the notice route closes when the answer or summary judgment motion is served. In Colorado, filing closes it too — whichever first occurs. A defendant who files an answer has cut off the plaintiff's exit even before service is complete.

Two more things that are not judgments on the merits

The carve-out list in Rule 41(b)(1) is longer than the familiar one:

Unless the court in its order for dismissal otherwise specifies, a dismissal under this section (b) and any dismissal not provided for in this Rule, other than a dismissal for failure to prosecute, for lack of jurisdiction, for failure to file a complaint under Rule 3, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

Four exceptions where most states list three. Colorado adds failure to prosecute and failure to file a complaint under Rule 3, and drops improper venue.

Failure to prosecute is the significant one. In most states a failure-to-prosecute dismissal operates on the merits unless the order says otherwise; in Colorado it does not, and the specification requirement discussed above points the same way. A dormant case that is dismissed here is not, by default, a case that has been decided.

Rule 3 governs the commencement of an action. A case begun without a complaint and dismissed on that ground is not adjudicated either.

A short checklist

If you are the plaintiff:

1. Read any dismissal order for the prejudice statement. If it is missing, the dismissal is without prejudice.
2. Expect reasonable notice before any with-prejudice dismissal for failure to prosecute.
3. Prosecute with due diligence — that is the standard the rule applies, not mere activity.
4. Ask for findings if you lose at the close of your evidence in a bench trial; Rule 52 requires them.
5. Watch your counterclaim exposure if you are also a counterclaim defendant.

If you are the defendant:

1. Say "with prejudice" in the motion if that is what you want. Silence is read against you.
2. Ask the court for notice to be given before a with-prejudice dismissal, so the order is not vulnerable.
3. Frame the failure as a lack of due diligence, not merely a quiet docket.
4. Be ready to draft findings on a successful merits motion in a bench trial.
5. Remember Rule 41(c) — your own counterclaim is subject to the same rule.

Where these rules live

• C.R.C.P. 41 — Dismissal of Actions
• C.R.C.P. 52 — Findings by the Court
• C.R.C.P. 12 — Defenses and Objections
• Filing a Colorado civil complaint
• Colorado motion to dismiss
• Colorado TROs and injunctions

This page explains what the rules say. It isn't legal advice, and what amounts to due diligence in prosecuting a case is developed in case law this site doesn't cover.