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.
SUMMARY
March 8, 2018
2018COA29
No. 16CA1369 Taylor v. Long — Civil Procedure — Relief From
Judgment or Order — Excusable Neglect
In this civil action, a division of the court of appeals addresses
the proper test to be applied when a plaintiff moves under C.R.C.P.
60(b) to set aside an order dismissing the complaint for failure to
obtain timely service.
Plaintiff filed a medical malpractice action but failed to serve
the defendants within the deadline set forth in C.R.C.P. 4(m). The
district court dismissed the action without prejudice. Because the
statute of limitations had run, plaintiff could not refile the lawsuit.
She moved to set aside the judgment under C.R.C.P. 60(b) based on
excusable neglect. The district court considered only whether
plaintiff’s failure to obtain timely service was excusable, determined
that it was not, and denied plaintiff’s motion.
The division concludes that the district court abused its
discretion in failing to analyze the Rule 60(b) motion under the
three-part test articulated in Craig v. Rider, 651 P.2d 397 (Colo.
1982). That test requires the district court to consider not just
whether the neglect that resulted in the order of dismissal was
excusable, but also whether the plaintiff has alleged a meritorious
claim and whether relief from the order would be consistent with
equitable considerations.
Accordingly, the division vacates the order and remands to the
district court for application of the proper legal standard.
In doing so, the court rejects plaintiff’s argument that the
notice of dismissal required under Rule 4(m) must issue after
expiration of the deadline for obtaining service.
COLORADO COURT OF APPEALS 2018COA29
Court of Appeals No. 16CA1369
Adams County District Court No. 16CV30543
Honorable Ted C. Tow III, Judge
Ladee Taylor,
Plaintiff-Appellant,
v.
HCA-HealthONE LLC, d/b/a/ North Suburban Medical Center; The Women’s
Health Group, P.C.; Cindy E. Long, M.D.; Stacey L. Hennesy, M.D.,
Defendants-Appellees.
ORDER VACATED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE HARRIS
Furman, J., concurs
Berger, J., concurs in part and dissents in part
Announced March 8, 2018
Greer & Van Donselaar, PLLC, Marlo J. Greer, Denver, Colorado; Foster
Graham Milstein Calisher, LLP, Brian Proffitt, Chip Schoneberger, Denver,
Colorado, for Plaintiff-Appellant
Dickinson Prud’Homme Adams LLP, Gilbert A. Dickinson, Molly G. Hoffman,
Denver, Colorado, for Defendant-Appellee HCA-HealthONE LLC, d/b/a North
Suburban Medical Center
Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado, for
Defendants-Appellees Cindy E. Long, M.D.; Stacey L. Hennesy, M.D.; and The
Women’s Health Group, P.C.
¶1 Ladee Taylor’s medical malpractice lawsuit was dismissed
after she failed to serve the defendants, Cindy E. Long, M.D.; Stacey
L. Hennesy, M.D.; The Women’s Health Group, P.C.; and HCA-
HealthONE LLC, d/b/a North Suburban Medical Center, with a
copy of her complaint within the time allotted by the district court’s
delay reduction order.
¶2 On appeal, she contends that the district court failed to
provide the requisite notice before dismissing the action and applied
the wrong legal standard in evaluating whether she had
demonstrated excusable neglect. We disagree with the first
contention, but we agree with the second. Therefore, we vacate the
court’s order dismissing Taylor’s lawsuit and remand for further
findings.
I. Background
A. The Events Giving Rise to the Lawsuit
¶3 In September 2013, Taylor underwent a laparoscopic
hysterectomy. Following the surgery, Taylor experienced pelvic pain
so substantial that she could not tolerate sitting at work. Her
doctor, who had performed the surgery, prescribed medication for a
urinary tract infection, but the medication did not alleviate Taylor’s
1
symptoms because she did not have a urinary tract infection. Two
weeks later, Taylor had a second follow-up visit during which she
continued to complain of bladder pain.
¶4 Though the pain persisted, the second follow-up visit was
Taylor’s last. Her doctor decided to end treatment because Taylor
no longer had private insurance and instead was covered by
Medicaid. Taylor was not referred to another doctor.
¶5 Finally, in April 2014, Taylor went to the emergency room,
complaining of “constant, throbbing pelvic pain with discharge.”
She was informed that she had a “residual surgical device in her
vagina that was imbedded in scar tissue and protrud[ing] into the
rectum.” A computed tomography (CT) scan showed what appeared
to be a uterine manipulator cup from the hysterectomy.
¶6 Later that month, Taylor underwent surgery to remove the
cup, which was imbedded behind her bladder. She was
subsequently diagnosed with urinary incontinence, chronic pelvic
pain, bladder spasm, and levator spasm — injuries that she says
are permanent.
2
B. Procedural History of the Lawsuit
¶7 On March 31, 2016, Taylor filed a medical malpractice action
against her doctor, a second doctor who assisted in the surgery, the
doctors’ medical practice, and the medical center where the
procedure was performed.
¶8 Under C.R.C.P. 4(m), unless the court specifies a different time
for service or the plaintiff requests an extension, service must be
effectuated within sixty-three days of filing the complaint — or, in
this case, by June 2, 2016. Taylor’s lawyer did not immediately
serve the defendants, and, on May 18, 2016, the district court
issued a delay reduction order, directing Taylor to serve the
defendants within thirty-five days (or June 22, 2016) or the lawsuit
would be dismissed. On June 28, 2016, when proof of service had
not been filed, the court dismissed the case “without prejudice.”
¶9 By that time, though, the statute of limitations had run.
Therefore, despite the district court’s dismissal of the lawsuit
“without prejudice,” Taylor could not refile the complaint.
¶ 10 So Taylor’s lawyer took the following immediate action: on
June 28, the date of the order of dismissal, counsel filed a motion
requesting a vacation of the dismissal order and a seven-day
3
extension of time to serve the defendants. In the motion, counsel
explained that her docketing system had apparently malfunctioned
during her transition from her prior law firm to her current firm.
She sought relief from the court’s order under C.R.C.P. 60(b) based
on inadvertence or excusable neglect. Then, also on June 28,
counsel served three of the four defendants: the doctor who had
performed the surgery, the medical practice, and the medical
center. The next day, the remaining defendant was served.
¶ 11 The district court was not persuaded by Taylor’s hastily filed
Rule 60(b) motion. Without holding a hearing, it denied the motion
in a short written order, concluding that counsel’s docketing errors
constituted “common carelessness and negligence” not amounting
to excusable neglect.
¶ 12 Nonetheless, a week later, the medical center filed its answer
and jury demand. Shortly thereafter, counsel for another defendant
sought an extension of time to file her answer.
¶ 13 In the meantime, Taylor filed a motion to reconsider under
C.R.C.P. 59, in which she provided a fuller explanation of the
docketing problems. In an affidavit attached to the motion, counsel
told the court that a few weeks before she filed the complaint, her
4
case management and calendaring software had somehow been
disabled, which apparently deleted all of her docketed deadlines
from her calendaring program. After some “troubleshooting” with a
technician from the software company, it appeared that the problem
had been resolved and that the re-enabled software had re-entered
the pre-existing deadlines into the computer. But further
investigation — necessarily conducted after she filed her June 28
motion to vacate the dismissal order — revealed that many of the
docketing entries had not automatically been re-entered. A
technician with whom counsel spoke could not explain why some of
the entries were re-entered upon re-enabling of the software, but
others were not. The deadline for obtaining service on Taylor’s
complaint had been deleted, but not automatically re-entered.
¶ 14 As for the district court’s delay prevention order, counsel said
that neither she nor her law partner had received it on their office
computers. Instead, the order appeared on her cell phone. Counsel
explained that her practice was not to open and read court
documents on her cell phone, primarily because she could not
access her case management and calendaring system from her
phone. An exhibit to the motion appeared to show that counsel had
5
not received an electronic notification of the delay reduction order
from the court’s filing system on her computer, and another exhibit
confirmed that the delay reduction order had not been opened by
counsel.
¶ 15 In the motion, counsel also argued that the district court had
applied the wrong standard in denying her earlier motion to vacate
the dismissal order. Under Craig v. Rider, 651 P.2d 397 (Colo.
1982), she contended, the court should have considered not just
whether the error arising from the software malfunction constituted
excusable neglect on its own, but also whether she had asserted a
meritorious claim in the underlying medical malpractice suit and
whether granting relief would be consistent with considerations of
equity.
¶ 16 Before the court could rule on the Rule 59 motion, Taylor filed
a notice of appeal of the denial of the Rule 60(b) motion. The
district court then declined on jurisdictional grounds to decide the
Rule 59 motion, and that motion was eventually deemed denied.
Taylor later amended her notice of appeal to include an appeal of
the denial of the Rule 59 motion.
6
II. Notice Under C.R.C.P. 4(m)
¶ 17 We turn first to what we consider a threshold argument by
Taylor that the district court’s dismissal order was invalid under
C.R.C.P. 4(m) — an argument that, if successful, would obviate the
need to determine whether the court erred in its excusable neglect
analysis.
¶ 18 According to Taylor, the district court’s delay reduction order
was premature and therefore could not constitute the requisite
notice under Rule 4(m). In the absence of proper notice, she says,
the district court’s dismissal order was invalid.
¶ 19 We interpret rules of civil procedure in the same manner as
statutes, applying similar principles of construction. In Interest of
M.K.D.A.L., 2014 COA 148, ¶ 5. We must therefore interpret the
rule according to its commonly understood and accepted meaning.
Antero Res. Corp. v. Strudley, 2015 CO 26, ¶ 15.
¶ 20 Rule 4(m) provides:
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
7
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).
¶ 21 Taylor contends that, consistent with the plain language of the
rule, the court must provide notice after the deadline for obtaining
service has expired. But here, the district court issued its delay
reduction order on May 18, more than two weeks before the sixty-
three-day deadline was set to expire, and therefore the delay
reduction order could not have served as proper notice that the
action would be dismissed based on her failure to effectuate service.
¶ 22 Under Taylor’s reading, the expiration of the sixty-three-day
deadline is a condition precedent to both notice and dismissal: if
the defendant is not served within sixty-three days, then the court
(1) must issue a notice and (2) may dismiss the action without
prejudice or impose a new deadline for service.
¶ 23 But we read the sixty-three-day deadline as a condition
precedent only to dismissal or a new deadline. Our reading finds
support in the structure of the rule’s first sentence: without the
intervening clause, the sentence instructs that “[i]f a defendant is
not served within [the deadline], the court . . . shall dismiss the
8
action without prejudice . . . or order that service be made within a
specified time.” C.R.C.P. 4(m). The intervening clause, which
comes between “the court” and “shall dismiss” describes how
“dismissal” can come about — either via a motion by one of the
parties or on the court’s own motion, but if the latter, only after
notice to the plaintiff. In other words, while Taylor reads the word
“notice” to relate to the sixty-three-day deadline for service, we read
the word “notice,” based on its placement in the text of the rule, to
relate to “dismissal.” See Wolf Creek Ski Corp. v. Bd. of Cty.
Comm’rs, 170 P.3d 821, 825 (Colo. App. 2007) (in interpreting
statute, court looks at “the context in which a statutory term
appears” (quoting Robinson v. Colo. State Lottery Div., 155 P.3d 409,
413 (Colo. App. 2006))).
¶ 24 Moreover, under Taylor’s interpretation, although the rule
presents two options for the court — dismissal of the action or an
instruction that “service be made within a specific time” — the court
would always be forced to exercise the second option. In this case,
for example, Taylor says that the court could not issue a notice
until she failed to comply with the sixty-three-day deadline. And
the notice would have to advise the plaintiff of her noncompliance
9
before a subsequent dismissal order could be entered. But a notice
of noncompliance and possible dismissal at some time in the future
would then create, in every case, a new deadline for effectuating
service — that is, a “specified time” within which “service [must] be
made.” Thus, Taylor’s reading effectively renders the dismissal
option superfluous, a result we avoid in construing the rule. See
Spahmer v. Gullette, 113 P.3d 158, 162 (Colo. 2005) (“We construe a
statute so as to give effect to every word, and we do not adopt a
construction that renders any term superfluous.”).
¶ 25 We therefore conclude that the rule requires notice before
dismissal, but does not require notice after expiration of the service
deadline.
¶ 26 Still, we do not mean to establish a rule that any notice prior
to dismissal, no matter its timing, would necessarily suffice. The
purpose of the notice is to spur counsel to action, with a warning
that the window for obtaining service is closing and that a failure to
meet the deadline might have dire consequences. A boilerplate
delay reduction order issued within a matter of days of the filing
date may not serve the rule’s intended purpose.
10
¶ 27 We have no concern about the timing or content of the court’s
order here, though. Just a couple of weeks before the expiration of
the Rule 4(m) deadline, the court issued an order specifically
addressing counsel’s obligation to obtain service on the defendants.
¶ 28 Thus, Taylor was not entitled to additional notice beyond the
delay reduction order, and the district court’s June 28 order of
dismissal was therefore valid.
III. Rule 60(b) Motion
¶ 29 We now turn to Taylor’s argument that the court erred in
failing to apply the three-factor Craig test in evaluating her Rule
60(b) motion to set aside the order of dismissal.
A. Standard of Review
¶ 30 We review the district court’s denial of a Rule 60(b) motion for
an abuse of discretion. Goodman Assocs., LLC v. WP Mountain
Props., LLC, 222 P.3d 310, 314 (Colo. 2010). A district court abuses
its discretion if it applies an incorrect legal standard. BS & C
Enters., LLC v. Barnett, 186 P.3d 128, 130 (Colo. App. 2008); see
also Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1115-16
(Colo. 1986) (The court “must exercise [its] discretion within the
framework of, rather than in disregard of, the controlling legal
11
norm.”). Whether the trial court applied the correct legal standard
is a question of law that we review de novo. Wal-Mart Stores, Inc. v.
Crossgrove, 2012 CO 31, ¶ 7.
B. The Three-Factor Craig Test
¶ 31 C.R.C.P. 60(b) permits a court to relieve a party from a final
judgment or order. Such relief may be granted where a party
establishes mistake, inadvertence, surprise, or excusable neglect.
C.R.C.P. 60(b)(1).
¶ 32 Craig articulated a three-factor test to guide a district court’s
discretion in determining whether to set aside a final judgment or
order based on excusable neglect. 651 P.2d at 402. Though the
plaintiff in Craig sought relief under the probate code, not Rule
60(b), the supreme court concluded that motions to vacate formal
testacy orders were sufficiently analogous to motions to vacate
judgments under Rule 60(b) such that the test for the latter should
apply. Id. at 401; see also Buckmiller, 727 P.2d at 1116 (“Implicit in
Craig is the recognition that a motion to set aside a default under
C.R.C.P. 55(c) and a motion to vacate a judgment under C.R.C.P.
60(b) on the basis of excusable neglect are sufficiently analogous to
justify the application of the same standards to either motion.”).
12
¶ 33 Under Craig, the district court must consider (1) whether the
neglect that resulted in entry of judgment was excusable; (2)
whether the moving party has alleged a meritorious claim (or
defense); and (3) whether relief from the challenged order would be
consistent with equitable considerations such as protection of
action taken in reliance on the order and prevention of prejudice by
reason of evidence lost or impaired by the passage of time. 651
P.2d at 402. Later cases from the supreme court have confirmed
that “these three factors constitute a balancing test and each must
be considered in resolving the [Rule 60(b)] motion.” Goodman, 222
P.3d at 321 (citing cases applying the balancing test).
¶ 34 The district court’s consideration of these factors must be
guided by the general rule that the requirements for vacating a
judgment that is not based on the merits “should be liberally
construed in favor of the movant, especially where the motion has
been promptly made.” Craig, 651 P.2d at 402. This rule promotes
the long-standing policy favoring resolution of disputes on their
merits. Id.
13
C. Application of the Craig Test
¶ 35 In denying Taylor’s motion to vacate the dismissal order, the
district court first noted that because Taylor had sought an
extension of time to serve the defendants only after the deadline for
obtaining service had run, she had to show excusable neglect for
missing the deadline. Then the court concluded that “common
carelessness and negligence by a party’s attorney does not amount
to excusable neglect,” and therefore, “improperly docketing due
dates,” which “amount[ed] to mere negligence,” could not constitute
excusable neglect. The court found support for its conclusion in
Malm v. Villegas, 2015 CO 4, which the court said stood for the
proposition that any delay beyond Rule 4(m)’s deadline could not be
found reasonable simply because the plaintiff had made diligent
efforts to serve the defendants. And because here, according to the
court, Taylor had made no efforts to obtain timely service,
additional time for service was unwarranted.
¶ 36 Taylor argues that the court’s order failed to even consider the
second and third Craig factors — whether she had a meritorious
claim and whether reinstatement of her complaint was consistent
14
with equitable considerations — and, as for the first factor, it gave
short shrift to her reasons for missing the deadline.
¶ 37 The defendants mount a three-part defense to Taylor’s
argument. They say that Malm imposes a heightened “excusable
neglect” standard that displaces the Craig test; even if the Craig test
applies here, Taylor waived her right to have the district court apply
it by failing to cite the Craig factors in her motion; and, even if the
Craig test applies, and the district court should have applied it,
Taylor is not entitled to any relief under Craig.
1. Malm Does Not Impose a Heightened “Excusable Neglect”
Standard That Displaces Craig’s Three-Factor Test
¶ 38 Malm addressed the reasonableness, under C.R.C.P. 41(b), of a
delay of seven and a half years between the filing and service of the
complaint. The plaintiff, who had sustained injuries in a traffic
accident, filed her complaint against the other driver one month
before expiration of the statute of limitations. Malm, ¶ 3. When,
two years later, the plaintiff asserted that she had been unable to
locate the driver, the district court administratively closed the case.
Id. at ¶ 5. Five years passed with no activity. The plaintiff later
located and served the defendant in Germany and moved to reopen
15
the case. In response, the defendant filed a motion to dismiss with
prejudice under Rule 41(b), arguing that plaintiff’s failure to serve
her within a reasonable time amounted to a failure to prosecute.
When the district court denied defendant’s motion, she sought relief
in the supreme court under C.A.R. 21.
¶ 39 The supreme court began by reiterating its recent
pronouncements in Garcia v. Schneider Energy Services, Inc., 2012
CO 62 — the filing of a complaint commences an action; therefore,
the statute of limitations “in and of itself . . . imposes no direct
limitation on the time for service following commencement by
filing”; as a consequence, “service of process can be effected” after
the applicable statute of limitations has run; and thus, “the
appropriate inquiry concerning the time allowed for service of
process in an action commenced by filing is whether the defendant
was served within a reasonable time following the filing date, rather
than a reasonable time following the running of the applicable
statute of limitations.” Malm, ¶¶ 13, 15.
¶ 40 Next, the court acknowledged that although the defendant in
Garcia had not received notice of the lawsuit until after the
expiration of the statute of limitations (seventy-one days after, to be
16
precise, see Garcia, ¶ 6), the court had nonetheless characterized
the 116 days between the filing of the complaint and notice to the
defendant as “a relatively short period of time” and therefore
reasonable. Malm, ¶ 18 (quoting Garcia, ¶ 16).
¶ 41 The court cautioned, however, that where service after filing is
not actually accomplished until after the expiration of the statute of
limitations, “any delay in service beyond that ‘relatively short’ initial
period cannot be found reasonable simply because the plaintiff
made diligent efforts to locate the defendant.” Id. at ¶ 19. Rather,
to “justif[y] [a] longer delay” that extends beyond the statute of
limitations, the plaintiff must establish wrongful conduct by the
defendant or some formal impediment to service. Id. at ¶¶ 17, 19.
¶ 42 The court specifically declined to define the outer limit of the
“relatively short initial period” within which service after filing is
“presumptively reasonable,” except to say that the period would be
“measured in days rather than years.” Id. at ¶¶ 19, 20. A precise
definition was unnecessary, according to the court, because “[b]y
virtually any standard,” the seven-and-a-half-year delay between
filing and service “far exceeded the relatively short initial period not
17
requiring specific justification” and was therefore unreasonable. Id.
at ¶ 20.
¶ 43 The defendants say that, after Malm, a complaint is subject to
dismissal if it is served outside the statute of limitations and also
outside the “relatively short” presumptively reasonable period for
obtaining service after filing. Though that period was left
undefined by the Malm court, the defendants define it as the sixty-
three-day period set forth in Rule 4(m). Thus, they argue, because
Taylor’s complaint was served after the statute of limitations had
run, and after the sixty-three-day deadline had expired, she could
demonstrate “excusable neglect” only by showing wrongdoing by the
defendants or a formal impediment to service.
¶ 44 We are not persuaded that Malm announced any bright-line
rule, much less a rule that, where the statute of limitations has
run, a complaint is subject to dismissal if not served within sixty-
three days, except upon a showing of specific obstacles to service.
In our view, Malm stands for the more uncontroversial proposition
that an extraordinary delay in effecting service — a delay measured
in years rather than days — can be justified only by extraordinary
18
circumstances. See id. (“[C]ertain extraordinary circumstances
might excuse even this [seven-and-a-half-year] delay . . . .”).
¶ 45 The defendants’ reading of Malm cannot be reconciled with the
language of the opinion or the text of Rule 4(m).
¶ 46 As we have noted, the Malm court expressly declined to equate
the “relatively short initial period” within which service would be
deemed presumptively reasonable with the sixty-three-day period in
Rule 4(m). Rather, the court determined that it was “unnecessary
for [it] to resolve the applicability of [Rule 4(m)] to th[e] case,” as the
case arose under Rule 41(b). Id. at ¶ 19. Moreover, the court
acknowledged that, under Garcia, a 116-day delay between filing of
the complaint and notice to the defendant amounted to a “relatively
short period of time.” Id. at ¶ 18 (quoting Garcia, ¶ 16); see also
Garcia, ¶ 18 (“[W]e conclude that 116 days after the filing of the
original complaint is a reasonable time for notice . . . .”).
¶ 47 And even under Rule 4(m) itself, the sixty-three-day period for
effecting service is not a hard deadline. If the plaintiff fails to obtain
service within that time, the court may — even without a showing of
good cause — “order that service be made within a specified time”
after the deadline. C.R.C.P. 4(m). In fact, in its delay reduction
19
order, the district court sua sponte extended the deadline for
service in this case. The defendants have not suggested that the
court’s new eighty-three-day deadline for service was unreasonable
or otherwise improper under Malm. And if eighty-three days
constitutes a “relatively short initial period” for obtaining service,
then sixty-three days cannot be the initial period’s outer limit.
¶ 48 Thus, we reject the defendants’ argument that Malm imposes a
heightened “excusable neglect” standard that would apply to the
circumstances of this case.
2. Taylor Did Not Waive Application of the Craig Test
¶ 49 Next, we can quickly dispense with the defendants’ argument
that, even if Craig’s three-factor test provides the proper analytical
framework for resolving Taylor’s Rule 60(b) motion, Taylor waived
her right to have the court apply the test by failing to cite Craig and
its progeny, or to argue the factors, in her motion.
¶ 50 While a specific reference to the Craig factors would have been
helpful, it was not necessary. Taylor fairly presented the issue to
the district court: she filed a Rule 60(b) motion to set aside a
judgment entered without consideration of the merits on the basis
of excusable neglect. Resolution of such a motion is governed by a
20
particular standard, which the district court was obliged to apply.
“[D]efense counsel’s inadvertence or ignorance of the law does not
relieve a trial court from knowing and applying the law.” People v.
Thompson, 2017 COA 56, ¶ 245 (Dunn, J., concurring in part and
dissenting in part).
¶ 51 Still, the defendants say that, without a specific reference to
Craig or its three-factor test, the district court might have assumed
that some other “excusable neglect” test applied here. But there is
no other test for determining whether, under Rule 60(b), a non-
merits-based judgment should be vacated due to excusable neglect.
The cases cited by the defendants involved an entirely different
scenario: where, after entry of judgment on the merits, a party who
has missed the deadline for filing a Rule 59 motion seeks vacation
and reentry of the judgment under Rule 60(b). Under those
circumstances, as one of the cited cases explains, the Craig test is
preempted by a more stringent “unique circumstances” standard.
See Anderson v. Molitor, 770 P.2d 1305, 1307-08 (Colo. App. 1988)
rev’d on other grounds, 795 P.2d 266 (Colo. 1990).
¶ 52 “When there does exist a controlling legal standard . . . a court
may not disregard that standard in favor of some other legal rule.”
21
Buckmiller, 727 P.2d at 1115. Here, the district court failed to
resolve Taylor’s motion in accordance with the applicable legal
standard. In doing so, the court abused its discretion. See
Crossgrove, ¶ 7 (“A trial court necessarily abuses its discretion if its
ruling is based on an incorrect legal standard.”).
3. Taylor May Be Entitled to Relief Under the Craig Test
¶ 53 The defendants urge us to forgo a remand to the district court
for application of the Craig test because, they say, Taylor is not
entitled to reinstatement of her complaint as a matter of law. We
disagree.
¶ 54 Excusable neglect has a “flexible meaning,” and a proper
analysis requires “consideration of the reasons for the neglect and
the surrounding circumstances.” Goodman, 222 P.3d at 322. The
determination of whether a movant has established excusable
neglect therefore involves a “fact-intensive inquiry,” id. at 319, and
a careful weighing of the evidence in accordance with the
controlling legal standard, Buckmiller, 727 P.2d at 1115.
¶ 55 To be sure, in some cases, after the development of a full
record, the existence of excusable neglect becomes an issue of law
amenable to resolution on appeal. See, e.g., Craig, 651 P.2d at 407
22
(resolving all three prongs of Craig test in favor of plaintiff and
remanding with directions to set aside the order of probate). In his
concurrence in part and dissent in part, Judge Berger says this is
one of those cases — but he would reverse the judgment and order
the district court to reinstate Taylor’s complaint. We are not
entirely unsympathetic to Judge Berger’s position, but we think a
more circumspect approach is warranted. Still, we all agree that,
on this record, we surely cannot say that Taylor’s arguments fail as
a matter of law. Accordingly, a remand is necessary. See
Buckmiller, 727 P.2d at 1117 (remanding for consideration of the
Craig factors).
a. Whether the Neglect was Excusable
¶ 56 A party’s conduct constitutes excusable neglect when the
“surrounding circumstances would cause a reasonably careful
person similarly to neglect a duty,” Goodman, 222 P.3d at 319, or,
put another way, when “unforeseen circumstances” would cause a
“reasonably prudent person to overlook a required act in the
performance of some responsibility,” Colo. Dep’t of Pub. Health &
Env’t v. Caulk, 969 P.2d 804, 809 (Colo. App. 1998).
23
¶ 57 The district court characterized counsel’s excuse for the
untimely service as “improperly docketing due dates,” then
dismissed that excuse as “common carelessness.” But in her Rule
59 motion, Taylor’s counsel explained that she had not improperly
docketed due dates; to the contrary, according to counsel, upon
filing Taylor’s complaint, “it appeared that all dates were docketed
in [the software program], including the 63-day service deadline
under C.R.C.P. 4(m).” The problem, according to counsel, was that
her docketing software had somehow been disabled shortly before
she filed the complaint. Though she believed the issue had been
resolved, some of the dates that appeared to be docketed were not
in fact saved in her computer, “despite counsel’s efforts.”
¶ 58 Thus, the question is whether the software malfunction
amounted to “unforeseen circumstances,” and whether a
reasonably prudent person might have made the same error in
relying on docketing software to calendar deadlines. We leave the
answer to that question to the district court.
¶ 59 The defendants say that counsel’s explanation for the untimely
service had to be presented in her Rule 60(b) motion or not at all.
24
Therefore, they argue, the later, more-detailed affidavit, appended to
her Rule 59 motion, came too late.
¶ 60 We reject that argument — not because the affidavit
necessarily constitutes “newly-discovered evidence,” as Taylor
contends (we need not decide that question), but because, in our
view, the Craig test contemplates an evidentiary hearing, at which
the plaintiff may present additional evidence related to the three
Craig factors. Because the district court failed to apply the correct
test, it did not even consider holding a hearing. Yet, the supreme
court has instructed that, in assessing excusable neglect, “the
preferred procedure is to consider all three factors in a single
hearing” to promote an “informed decision” by the trial court.
Buckmiller, 727 P.2d at 1116. In light of that instruction, we are
reluctant to endorse a rule that strictly limits the evidence before
the court to the precise information provided in the plaintiff’s Rule
60(b) motion.
b. Merits of the Claim
¶ 61 A movant must support an assertion of a meritorious claim by
averments of fact, not simply legal conclusions. Craig, 651 P.2d at
403. Preferably, the factual allegations “should be in the form of a
25
tendered pleading,” like a complaint or, if a claim of meritorious
defense is made, an answer. Id. The allegations must be set forth
with sufficient particularity to show that a claim is “meritorious, not
frivolous.” Id.
¶ 62 The defendants say that Taylor could not establish a
meritorious claim without an affidavit from a certifying physician.
Though Taylor submitted such an affidavit, certain defendants
contend that the submission was untimely and the medical center
contends that it should not have been filed under seal.
¶ 63 The factual allegations, however, appeared in the complaint
itself — the “preferabl[e]” form for presenting the allegations, id. —
and the gist of the complaint was set forth in the Rule 60(b) motion,
with Taylor’s allegation that “a retained object was left inside
Plaintiff following surgery.” Moreover, the complaint certified that a
physician meeting certain statutory criteria had reviewed the facts
relevant to the allegations and had deemed the claims nonfrivolous.
¶ 64 In ruling on a meritorious claim, “a trial court should not
attempt to evaluate the ability of the movant to establish the
pleaded facts at trial.” Id. at 404. Even when supplementary
testimony is received at the evidentiary hearing, the focus is on the
26
“legal sufficiency of the allegations” rather than “their truth.” Id.
(quoting In re Stone, 588 F.2d 1316, 1320 (10th Cir. 1978)).
¶ 65 Though the meritorious-claim factor can generally be resolved
as a matter of law, see id., we think the better course is to remand
for the district court to consider all three factors together, as
“evidence relating to one factor might well shed light on another,”
and the strength of one factor might “set off” any weakness of
another. Buckmiller, 727 P.2d at 1116.
c. Equitable Considerations
¶ 66 Setting aside a dismissal order is, at its core, an equitable
decision. The goal is to promote substantial justice. Goodman, 222
P.3d at 319. In determining whether Rule 60(b) relief would be
consistent with equitable considerations, a district court should
take into account the promptness of the moving party in filing the
Rule 60(b) motion; the fact of any detrimental reliance by the
opposing party on the order or judgment of dismissal; and any
prejudice to the opposing party if the motion were to be granted,
including any impairment of that party’s ability to adduce proof at
trial in defense of the claim. Buckmiller, 727 P.2d at 1116; see also
Goodman, 222 P.3d at 319.
27
¶ 67 Though we leave it to the district court to weigh these
considerations, we make the following observations based on the
existing record.
¶ 68 First, Taylor filed her Rule 60(b) motion as promptly as a party
could — on the same day as the dismissal order. When the district
court denied the motion without a hearing, Taylor attempted to
supplement the allegations, based on her subsequent investigation,
through a timely filed Rule 59 motion.1 To the extent a strong
showing on this factor — promptness in filing the motion (showing
that relief would be consistent with equitable considerations) — is
in tension with a strong showing on the first factor — a thorough
explanation of the cause of the neglect — the evidentiary hearing
contemplated under Craig will generally resolve the tension,
allowing for both a promptly filed motion and a more thorough
presentation of evidence concerning the reason for the delay.
1Contrary to the defendants’ argument, Taylor’s C.R.C.P. 59
motion, filed on July 26, 2016, was timely. The Rule 59 motion was
a request for the court to reconsider its order of July 12, 2016,
denying the C.R.C.P. 60(b) motion, not its order dismissing the
case. The defendants do not otherwise challenge the applicability of
Rule 59 to an order denying a Rule 60(b) motion; thus we address
only the timing of the motion.
28
¶ 69 Second, Taylor served the defendants twenty-six days after the
period for service expired under Rule 4(m) (one defendant was
served twenty-seven days later) and six (or seven) days after the
deadline set forth in the delay reduction order — meaning eighty-
nine days after filing the complaint. The delay reduction order gave
Taylor eighty-three days to obtain service after filing, and we note
that none of the defendants have contended that the eighty-three-
day delay was unreasonable or prejudicial. Thus, as we see it, the
primary issue is whether the additional six days so prejudiced the
defendants’ ability to defend the lawsuit that the equities weigh in
favor of dismissal.
¶ 70 Third, by the time Taylor filed her Rule 59 motion, the medical
center had already filed its answer and another defendant was
preparing to do so. The medical center says that its answer does
not demonstrate an absence of detrimental reliance so much as
good faith compliance with statutory deadlines, and it argues that it
should not be “punished” for following the rules, when Taylor
herself did not. But that argument misses the point. If Taylor’s
failure to follow the rules did not affect the defendants’ course of
conduct or compromise their ability to defend against her claims,
29
then the equities favor reinstatement, regardless of the medical
center’s commendable decision to adhere to applicable deadlines.
IV. Conclusion
¶ 71 We vacate the district court’s order denying Taylor’s Rule 60(b)
motion and remand the case for further proceedings in accordance
with this opinion.
JUDGE FURMAN concurs.
JUDGE BERGER concurs in part and dissents in part.
30
JUDGE BERGER, concurring in part and dissenting in part.
¶ 72 I agree with the majority that the trial court’s order denying
Taylor’s motion to set aside the dismissal must be reversed. In fact,
I agree with almost everything the majority says. I write separately
only because I think, on this record, any ruling on remand other
than reinstatement of Taylor’s complaint would be an abuse of the
trial court’s discretion. As a result, I would reverse with directions
that the complaint be reinstated, and accordingly I concur in part
and respectfully dissent in part.
¶ 73 The supreme court has instructed that a trial court must
balance three separate factors to determine whether there is
excusable neglect sufficient to set aside a judgment under C.R.C.P.
60(b)1:
(1) whether the neglect that resulted in entry of
judgment by default was excusable;2
1 This test applies only to a discretionary determination to set aside
a judgment under C.R.C.P. 60(b)(1). A judgment that is void must
be set aside under C.R.C.P. 60(b)(3). Rainsberger v. Klein, 5 P.3d
351, 353 (Colo. App. 1999).
2 For convenience, I refer to this factor as “first level excusable
neglect” to distinguish it from the ultimate finding of excusable
neglect.
31
(2) whether the moving party has alleged a
meritorious claim or defense; and
(3) whether relief from the challenged order
would be consistent with considerations of
equity.
Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310,
319 (Colo. 2010); see also Buckmiller v. Safeway Stores, Inc., 727
P.2d 1112, 1116 (Colo. 1986) (applying Craig v. Rider, 651 P.2d
397, 401-02 (Colo. 1982)).3
¶ 74 I start with the first level excusable neglect factor. The
supreme court has defined first level excusable neglect as follows:
“A party’s conduct constitutes excusable neglect when the
surrounding circumstances would cause a reasonably careful
person similarly to neglect a duty. Common carelessness and
negligence do not amount to excusable neglect.” Goodman, 222
P.2d at 319 (quoting In re Weisbard, 25 P.3d 24, 26 (Colo. 2001)).
¶ 75 Applying this controlling definition, I think the trial court gave
insufficient consideration to how computer systems interface with
3 Early on, the court rejected the proposition that these three
factors create a “balancing test.” Goodman Assocs., LLC v. WP
Mountain Props., LLC, 222 P.3d 310, 320 (Colo. 2010). But later
cases require the trial court to “balance” these three factors. Id.
32
modern law practice. Neither the supreme court nor this court has
addressed computer glitches in the context of evaluating excusable
neglect.
¶ 76 I perceive no reason to categorically exclude errors resulting
from computer system problems or failures from a finding of first
level excusable neglect. To the contrary, in today’s world, lawyers
and virtually everyone else (including courts) rely heavily on
computer hardware and software to accomplish critical tasks. Our
modern world could not function without reliance on computers.
That reliance usually benefits everyone because it makes lawyers
and others more efficient; computers usually reduce the time
necessary to perform a task, and thus reduce costs. But computers
fail; either the hardware or the software stops working, sometimes
for inexplicable reasons.
¶ 77 The reasons offered by plaintiff’s counsel in this case for her
failure to timely serve the defendants — reasons that have not been
contradicted by the defendants — seem to me to be the poster child
of first level excusable neglect in our computer age. Given the
ubiquitous use of computers in law practice and every other aspect
33
of modern life, courts should adjust to the reality that computer
failures happen despite a user’s reasonable care.
¶ 78 The failure of Taylor’s counsel to timely serve the defendants
does not appear to be based on anything other than computer
failures and, under any meaningful standard of excusable neglect,
the showing made by Taylor’s counsel satisfies the standard for first
level excusable neglect.
¶ 79 There is an additional consideration that supports a finding of
first level excusable neglect. Under the supreme court’s cases, it is
unclear how much, if at all, it matters whether the conduct that led
to the error was the lawyer’s conduct, or the client’s. In Buckmiller,
the court broadly addressed this concept when it stated, “the degree
of negligence attributable to the client is only one factor for a court
to consider in determining whether to set aside an order or
judgment on the grounds of excusable neglect predicated on the
gross negligence of the client’s attorney.” 727 P.2d at 1117 n.2.
But that discussion was in the context of addressing the court-
made dichotomy between regular negligence by a lawyer and gross
negligence. Id.
34
¶ 80 In cases in which gross negligence is not involved, the
supreme court’s cases give little, if any, guidance on how the
negligence of the lawyer, as opposed to the negligence of the client,
should factor into the excusable neglect calculus. It seems clear to
me that the focus should be on any negligence by the client, not the
lawyer, based on the policies behind C.R.C.P. 60(b). This case is a
perfect illustration.
¶ 81 There is absolutely no evidence that Taylor herself was derelict
or negligent in any way in failing to timely serve the defendants.
Any fault lies entirely with her lawyer. When, as here, there is no
conceivable prejudice to the defendants in reinstating the
complaint, and where the injury to the plaintiff would be severe if
the complaint is not reinstated, I would conclude that the lawyer’s
negligence should play very little role in the balancing process.
¶ 82 Addressing the second and third parts of the excusable neglect
test, I think it is beyond reasonable dispute that these factors
strongly favor allowing Taylor’s claims to be heard on their merits.
See Goodman, 222 P.3d at 320.
¶ 83 From the information presently available (and acknowledging
that Taylor’s claim has not been tested by the adversary process), it
35
appears that Taylor has a meritorious cause of action resulting from
a foreign object being left in her body during surgery, and
significant injuries suffered from that alleged malpractice. Indeed,
this type of medical malpractice claim is one of the few that does
not require expert testimony to make a prima facie case. Mudd v.
Dorr, 40 Colo. App. 74, 77, 574 P.2d 97, 100 (1977).
¶ 84 The third factor weighs equally in favor of Taylor. Service was
obtained within a week of the service deadline on most of the
defendants. The defendants have not (and could not have)
plausibly asserted any legal prejudice that they suffered as a result
of the short delay in service.
¶ 85 It also is significant that unlike the defendant in Goodman,
plaintiff’s counsel here did not sit on her hands after she discovered
the problem. To the contrary, on the very day that the court
dismissed the case, she moved to set aside the dismissal and
ultimately presented extensive evidence explaining her failure to
timely serve the defendants.
¶ 86 Considering (balancing) the three components of the excusable
neglect test, there is no reasonable result other than to give Taylor
36
an opportunity to prove her claims on the merits.4 “[B]ecause
resolution of disputes on their merits is favored, the criteria for
vacating a default judgment should be liberally construed in favor
of the movant, especially when the motion is promptly made.”
Goodman, 222 P.3d at 320 (quoting Sumler v. Dist. Court, 889 P.2d
50, 56 (Colo. 1995)). No other result satisfies the overarching
purpose of C.R.C.P. 60(b): to do substantial justice. See Goodman,
222 P.3d at 319; Craig, 651 P.2d at 401; see also 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.”).
4 In my view, too many courts assume, without justification, that if
a lawyer’s negligence causes a party to lose her rights, the party
may obtain adequate redress through the mechanism of a legal
malpractice action. In theory that is true, but in practice it is very
difficult for a plaintiff to prevail in a legal malpractice action.
Indeed, the plaintiff must win on a trial within a trial, and may also
have to show collectability. See Gibbons v. Ludlow, 2013 CO 49, ¶
16; see also Boulders at Escalante LLC v. Otten Johnson Robinson
Neff & Ragonetti PC, 2015 COA 85, ¶¶ 32-49. To be sure, some
lawyers’ negligence can be remedied only through a legal
malpractice action. But if a court can give relief to a deserving
plaintiff without prejudicing the defendants and thus avoid the
necessity of a legal malpractice action, I do not perceive any valid
reason not to do so.
37
¶ 87 For these reasons, I think a remand for reconsideration by the
trial court of the excusable neglect balancing test is a waste of time.
Instead, I would reverse and remand with directions to reinstate the
complaint.
¶ 88 As may be apparent from my reasons for concluding that this
case should be remanded with directions to reinstate Taylor’s
complaint, the existing law in this area is confusing and may
deserve a fresh look by the supreme court. I say this for several
reasons.
¶ 89 First, it is inherently confusing when, as here, the ultimate
matter to be decided — excusable neglect — is comprised of a three-
factor test that includes excusable neglect as one of its elements.
Unsurprisingly, trial courts misconstrue the nature of the inquiry
when excusable neglect is both required to set aside the judgment
and required to determine if there is excusable neglect. There are
other ways to formulate the first factor without repeating in that
factor the overarching determination that must be made.
¶ 90 Second, the rule that gross negligence of the lawyer is not
imputed to the client, but regular negligence may be imputed for
the purpose of determining whether there is excusable neglect,
38
seems strange at best and illogical at worst. See Buckmiller, 727
P.2d at 1116 (adhering to distinction between regular negligence
and gross negligence made in Coerber v. Rath, 164 Colo. 294, 435
P.2d 228 (1967)); cf. Moses v. Diocese of Colo., 863 P.2d 310, 329
n.27 (Colo. 1993) (noting that a principal may be responsible for a
tort committed by its agent, but typically not for an intentional tort
of its agent). Ordinarily, gross negligence is seen as more
blameworthy than regular negligence.
¶ 91 I would instead focus on any fault of the client. Broadening
the rule adopted in Coerber, I would generally not impute the
lawyer’s negligence to the client when the client herself is
blameless. There are other fairer and more effective ways to police
lawyers’ competence than visiting lawyers’ sins on their clients. See
Colo. RPC 1.1 (addressing a lawyer’s duty of competence); Colo.
RPC 1.3 (addressing a lawyer’s duty of diligence); see also C.R.C.P.
251.1 to 251.34 (rules governing lawyer discipline and disability).
¶ 92 Third, while there inevitably will be close cases, I think
important guidance could be given to trial courts beyond the
inherently vague directions to balance three very disparate factors.
See People v. Brown, 2014 CO 25, ¶ 45 (Márquez, J., dissenting)
39
(criticizing a “mechanical test [that] requires trial courts to consider
a litany of factors, but . . . offers no guidance to trial courts on how
to use those factors in striking a balance”); see also Rutan v.
Republican Party of Ill., 497 U.S. 62, 96 (1990) (Scalia, J.,
dissenting) (arguing that a multipart balancing test leads to results
“favored by the personal (and necessarily shifting) philosophical
dispositions of a majority of [the] Court.”).
¶ 93 In those cases in which the fault lies entirely with the lawyer,
the plaintiff has a meritorious cause of action, and the defendants
will not suffer any legal prejudice if the default judgment or
dismissal is vacated, I would conclude that it would be an abuse of
discretion not to reinstate the case.
¶ 94 On the other hand, when the defendants will suffer serious
prejudice by reinstatement of the case and the plaintiff herself is
blameworthy, it will generally be an abuse of discretion to set aside
the judgment.
40