Mandatory Colorado § 13-17-201 Fees for State-Law Tort Claims Dismissed Under Rule 12(b)(6), With No “Fees-on-Fees” on Appeal Absent Substantial Frivolity

A. Precedents Cited

Weidner v. Doe, No. 24-1145, 2025 WL 1230531 (10th Cir. Mar. 5, 2025)

The panel relied on the prior appeal for the procedural and factual posture: Doe’s accusation, the state’s mid-trial dismissal of criminal charges, Weidner’s subsequent civil suit, the Rule 12(b)(6) dismissal, and the Tenth Circuit’s earlier affirmance. That context mattered because § 13-17-201 turns on whether a tort action is dismissed on the defendant’s motion before trial—here, by Rule 12(b)(6).

State v. Golden's Concrete Co., 962 P.2d 919 (Colo. 1998)

This was the decisive boundary-setting precedent for the fee award’s scope. The district court, affirmed by the Tenth Circuit, treated State v. Golden's Concrete Co. as establishing that 42 U.S.C. § 1988 preempts Colorado’s mandatory fee statute with respect to § 1983 claims. Thus, even though § 13-17-201 is mandatory for tort claims, it could not be used to obtain fees for defending the federal civil-rights causes of action.

Jones v. Denver Post Corp., 203 F.3d 748 (10th Cir. 2000), abrogated on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)

Jones v. Denver Post Corp. supplied two important propositions used in the opinion:

• Federal courts may apply § 13-17-201 to pendent (state-law) tort claims dismissed under federal Rule 12(b)(6), even though the statute references Colorado’s Rule 12(b).
• § 13-17-201 may apply in federal litigation (including the appeal), undermining Weidner’s suggestion that only Fed. R. App. P. 38 could support an appellate fee award.

The panel noted the Morgan abrogation only to clarify that the relevant point from Jones remains usable.

Servants of the Paraclete v. Does, 204 F.3d 1005 (10th Cir. 2000) and Lebahn v. Owens, 813 F.3d 1300 (10th Cir. 2016)

These cases supplied the appellate framework: denial of Rule 60(b) relief is reviewed for abuse of discretion, and reversal is reserved for decisions that are arbitrary, capricious, whimsical, or manifestly unreasonable. This stringent standard was outcome-determinative because Weidner’s appeal largely re-argued the merits of fees rather than showing an abuse of discretion in denying Rule 60(b) relief.

Yapp v. Excel Corp., 186 F.3d 1222 (10th Cir. 1999)

Yapp was central to rejecting Weidner’s “excusable neglect/mistake” theory. The panel used it to hold that deliberate, counseled litigation choices—such as intentionally not responding to a motion due to a mistaken view of procedure—are not “excusable litigation mistakes” remediable under Rule 60(b). The opinion treats counsel’s non-response not as inadvertence, but as a considered (even if legally erroneous) choice.

Rivero v. Bd. of Regents of Univ. of N.M., 950 F.3d 754 (10th Cir. 2020)

Rivero supplied a waiver/forfeiture principle: if the district court offers multiple independent grounds and the appellant fails to challenge them all in the opening brief, affirmance may follow. The panel emphasized that Weidner’s opening brief did not meaningfully confront the Rule 60(b) basis for the ruling—an omission that itself supported affirmance.

Crandall v. City & Cnty. of Denv., 238 P.3d 659 (Colo. 2010)

Crandall reinforced the statute’s mandatory character. The panel invoked it to answer Weidner’s fairness rhetoric: § 13-17-201 “permit[s] no exception” and applies to all tort actions dismissed under the rule, even if brought in good faith. This precedent anchored the court’s rejection of an amorphous “manifest injustice” argument untethered to the statute’s command.

Foxley v. Foxley, 939 P.2d 455 (Colo. App. 1996) and Monell v. Cherokee River, Inc., 347 P.3d 1179 (Colo. App. 2015)

These Colorado Court of Appeals decisions controlled the appellate-fee request. They establish that when a party seeks “fees on fees” (fees incurred litigating entitlement to fees), the award is not automatic; it is available only when the opposing party’s resistance lacks substantial justification—i.e., is substantially frivolous, substantially groundless, or substantially vexatious. The Tenth Circuit applied that limiting principle to deny Doe’s appellate fee request for failure to show Weidner’s appeal met the heightened threshold.

B. Legal Reasoning

1. Proper appellate lens: Rule 60(b) abuse-of-discretion review. The appeal effectively challenged the district court’s refusal to reopen the fee order. Under Rule 60(b), the question was not whether the fee award could be debated in the abstract, but whether the district court acted unreasonably in refusing relief from a final order based on counsel’s stated “mistake.”
2. Deliberate non-response is not “excusable neglect.” The court accepted the district court’s characterization: counsel’s decision not to respond because he believed the fee motion was “premature” was a procedural/legal gamble. Under Yapp v. Excel Corp., Rule 60(b) does not function as an “undo” button for deliberate litigation decisions that later prove mistaken.
3. Early fee motions are not barred by Rule 54(d)(2)(B). The district court reasoned—and the panel did not disturb—that Rule 54(d)(2)(B) polices untimely (late) motions, not “early” ones. Because Doe’s fee motion was timely, the “prematurity” premise did not establish error.
4. Mandatory fee-shifting for the state-law tort claims once dismissed under Rule 12(b)(6). The court accepted the district court’s conclusion that the complaint “sound[ed] primarily in tort,” and emphasized that Weidner chose to plead Colorado tort claims alongside § 1983 claims. The court also rejected Weidner’s attempt to avoid the statute by reframing the case’s “essence” as constitutional: he cited no authority that overlapping state claims become fee-immune simply because they track federal civil-rights theories, nor that state constitutional claims “sounding in tort” fall outside § 13-17-201.
5. Scope-limiting preemption: fees cannot be recovered for § 1983 claims. Relying on State v. Golden's Concrete Co., the district court properly limited the award to the five Colorado-law claims because § 1988 governs fees for § 1983 litigation.
6. Reasonableness review: lodestar and deference. The district court conducted a lodestar analysis (reasonable hours × reasonable rate) and apportioned fees to the state-law claims. The panel held Weidner’s page-count arguments and counsel’s assertions about what work was “necessary” did not demonstrate an abuse of discretion; drafting and litigation tasks include analysis, research, and strategic work not captured by page length.
7. No automatic appellate fees for defending a fee award. Even assuming § 13-17-201 can reach appellate proceedings, “fees on fees” require a showing of lack of substantial justification under Foxley v. Foxley and Monell v. Cherokee River, Inc.. Doe did not carry that burden, so the panel denied appellate fees.

C. Impact

• Procedural discipline in fee litigation: The decision reinforces that a party cannot strategically ignore a pending fee motion based on an assumption about timing and later seek Rule 60(b) relief when the assumption proves wrong. This is especially consequential where the underlying fee statute is mandatory.
• State-law add-ons can carry mandatory fee exposure: Plaintiffs bringing § 1983 cases in Colorado federal courts face a concrete risk: adding Colorado tort claims can trigger mandatory defense fees if those tort claims are dismissed on Rule 12(b)(6). The overlap with federal claims does not, without supporting authority, immunize the state claims from § 13-17-201.
• Clear boundary between § 1983 fees and state fee statutes: By limiting recovery to state-law claims under State v. Golden's Concrete Co., the decision underscores that defendants cannot use § 13-17-201 to end-run § 1988’s fee regime for § 1983 claims.
• “Fees on fees” are constrained: The appellate-fee denial signals that, in Colorado-related fee disputes, prevailing parties should not assume they will recover for litigating the fee entitlement itself—particularly on appeal—unless they can show the opponent’s position was substantially unjustified.