Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 12, 2026 Get Citation Alerts Download PDF Add Note

Montgomery v. Best Buy

Colorado Court of Appeals

• Citations: None known
• Docket Number: 25CA0481

• Precedential Status: Non-Precedential

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Combined Opinion

25CA0481 Montgomery v Best Buy 03-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0481
Jefferson County District Court No. 24CV241
Honorable Chantel Contiguglia, Judge

William Montgomery,

Plaintiff-Appellant,

v.

Best Buy Stores L.P., and Iron Spear Protection Group LLC,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE DUNN
Harris and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 12, 2026

William Montgomery, Pro Se

Montgomery Amatuzio, Sarah K. Vogel, Denver, Colorado, for Defendant-
Appellee Best Buy Stores L.P.

Business & Technology Legal Group, Brian E. Hefner, Denver, Colorado, for
Defendant-Appellee Iron Spear Protection Group LLC
¶1 Plaintiff, William Montgomery, appeals the district court’s

dismissal of his claims against defendants, Best Buy Stores L.P.

(Best Buy) and Iron Spear Protection Group LLC (Iron Spear).

Montgomery also appeals the order denying his motion to reopen

the case. We reverse the judgment and remand the case to the

district court to reinstate the complaint.

I. Background

¶2 On November 21, 2024, Montgomery filed a complaint for false

arrest and defamation against both defendants and an additional

false imprisonment claim against Iron Spear.1

¶3 The next day, the district court issued a civil procedure order,

stating, among other things, “Returns of [s]ervice on all defendants

shall be filed within [sixty-three] days after the date of the filing of

the complaint,” which, based on the filing date, made the returns of

service due January 23, 2025.

¶4 Approximately one month later — in December 2024 — the

court issued a delay reduction order stating that “[p]ursuant to

C.R.C.P. 4(m), the [c]ourt may dismiss any unserved [d]efendants if

1 Montgomery also asserted claims against two other individuals

who are not parties to this appeal.

1
[p]laintiff fails to provide a return of service within [sixty-three] days

from the filing of the complaint” and that Montgomery “has yet to

file returns of service.” The order instructed Montgomery to file

returns of service within thirty-five days of the order “or otherwise

show cause as to why an extension should be granted for an

appropriate period.” The order also stated, “Failure to comply with

this order will result in unserved [d]efendants being dismissed

without prejudice and without further notice pursuant to C.R.C.P.

121[,] [section] 1-10(2), C.R.C.P. 41(b)(2), and [Rule] 4(m).”2

¶5 On Friday, January 24, 2025 — one day after the orders’

deadline had passed — the court dismissed the action without

prejudice for failure to “file a return of service for any” defendants,

generally citing Rule 121, section 1-10 and Rule 4(m) (dismissal

order).

¶6 On Monday, January 27, the first business day after the

dismissal order, Montgomery filed three affidavits of service,

2 Thirty-five days from the date of the delay reduction order was

January 23, 2025. Thus, the delay reduction order and the civil
procedure order contained the same deadline.

2
showing that he had timely served the defendants on January 22 —

sixty-two days after he filed the complaint.

¶7 That same Monday, Montgomery also filed a motion to “Re-

Open Case For Further Proceedings.” In it, Montgomery requested

the court to accept his affidavits of service and reopen the case

because Rule 4(m) requires only that he serve the defendants within

sixty-three days — which he did — and does not require returns of

service to be filed within that time. Thus, he argued that the court’s

interpretation of Rule 4(m) was “not an accurate statement of law.”

¶8 The court denied the motion. While it agreed that Rule 4(m)

“requires defendants to be served within [sixty-three] days, not for

returns of service to be filed in [sixty-three] days,” it concluded that

Montgomery “misunderst[ood]” the dismissal and that the court

dismissed the case for failure to prosecute under Rule 121, section

1-10 (not for failure to serve defendants under Rule 4(m)).

II. Analysis

¶9 Montgomery contends that the district court erred by

dismissing the action and denying his motion to reopen the case.

3
A. Jurisdiction

¶ 10 Before addressing the propriety of the dismissal, we must first

determine whether we have jurisdiction over the appeal. See People

v. S.X.G., 2012 CO 5, ¶ 9. That requires us to determine whether

the dismissal order is final and whether Montgomery timely filed his

notice of appeal.

1. Finality

¶ 11 With limited exceptions not presented here, this court has

jurisdiction over final judgments only. C.A.R. 1(a)(1). While a

dismissal without prejudice is generally not a final judgment, it is a

final judgment when the relevant statute of limitations period has

expired. Spiremedia Inc. v. Wozniak, 2020 COA 10, ¶ 14.

¶ 12 For an incident occurring in 2023, Montgomery asserted

claims for false arrest, defamation, and false imprisonment. The

court dismissed the complaint in 2025. But the statute of

limitations for the claims is one year. § 13-80-103(1)(a), C.R.S.

1. Because the statute of limitations for the claims had expired

by the time the court dismissed the action, we conclude that the

dismissal order is final and appealable. See Spiremedia, ¶ 15.

4
2. Timeliness

¶ 13 The timely filing of a notice of appeal is generally a

jurisdictional prerequisite for appellate review. People in Interest of

B.H., 2022 COA 9, ¶ 8. In civil cases, a notice of appeal must be

filed within forty-nine days after “entry of the judgment, decree, or

order being appealed.” C.A.R. 4(a)(1). But “[t]he running of the

time for filing a notice of appeal is terminated as to all parties when

any party timely files a motion in the lower court pursuant to

C.R.C.P. 59.” C.A.R. 4(a)(3). The time to appeal restarts when the

Rule 59 motion is resolved. Id.; see also C.R.C.P. 59(j) (timeline for

a district court’s determination of post-trial motions).

¶ 14 Iron Spear argues that Montgomery’s motion to reopen was

not “a proper [Rule] 59 motion.”3 True, the motion to reopen did

not reference Rule 59, but in substance the motion essentially

requested the court to reconsider the dismissal, thus amending its

findings and judgment. See C.R.C.P. 59(a)(3)-(4); Said v. Magdy,

2024 COA 109, ¶ 10 (“[A] motion for reconsideration can qualify as

a Rule 59 motion even if it does not cite Rule 59 . . . .”). We

3 Best Buy simply asserts that the appeal is untimely but doesn’t

address the postjudgment motion.

5
therefore construe Montgomery’s motion to reopen as a Rule 59

motion. See Spiremedia, ¶¶ 17-20 (construing motion for

reconsideration of dismissal order as a Rule 59 motion).

¶ 15 Because Montgomery’s notice of appeal was filed within forty-

nine days of the order denying his motion to reopen, the appeal is

timely. See C.A.R. 4(a)(3). And that’s true even though

Montgomery served the district court with the notice of appeal after

the forty-nine-day deadline. See C.A.R. 3(a) (“An appellant’s failure

to take any step other than the timely filing of a notice of appeal

does not affect the validity of the appeal . . . .”).

B. Rule 4(m)

¶ 16 Montgomery first contends that the district court abused its

discretion by dismissing the action because it misinterpreted Rule

4(m). Specifically, he asserts that the court erred by requiring him

to file returns of service within sixty-three days of filing his

complaint and by dismissing the case when he failed to do so. Best

Buy argues that Montgomery failed to preserve this argument

because he raised it for the first time in his motion to reopen.

¶ 17 But we needn’t address preservation or whether the dismissal

order misinterpreted Rule 4(m). That’s because the district court

6
later agreed with Montgomery’s interpretation of Rule 4(m) but held

that it had dismissed the case for failure to prosecute under Rule

121, section 1-10, not Rule 4(m). Because the case was not

dismissed under Rule 4(m), any opinion about the propriety of

dismissing a case under that rule for failure to file returns of service

would be advisory, “and we must avoid issuing advisory opinions.”

Stor-N-Lock Partners #15, LLC v. City of Thornton, 2018 COA 65,

¶ 38. We therefore limit our consideration to whether the court

erred by dismissing the case under Rule 121, section 1-10.

C. The Order Denying the Motion to Reopen

¶ 18 Montgomery next contends that the district court erred by

dismissing his case for failure to prosecute under Rule 121, section

1-10 without engaging in the appropriate balancing test.

1. Preservation

¶ 19 To the extent that Best Buy argues that Montgomery did not

preserve this argument, we are not persuaded he had an

opportunity to do so. After all, the plain focus of the delay

reduction order and the dismissal order is on Rule 4(m) and the

consequences of failing to comply with it. Beyond a string citation

7
that included Rule 121, section 1-10, neither the delay reduction

order nor the dismissal order analyzes Rule 121, section 1-10.

¶ 20 It was not until the order denying the motion to reopen that

the court stated it had dismissed the case under Rule 121, section

1-10 and not Rule 4(m). And that order is the first substantive

discussion of Rule 121, section 1-10. Because Montgomery had no

opportunity to respond or object to that order, we will review it. See

Rinker v. Colina-Lee, 2019 COA 45, ¶ 26 (noting that if a court

“rules sua sponte on an issue, the merits of its ruling are subject to

review on appeal, whether timely objections were made or not”); see

also In re Marriage of Herold, 2021 COA 16, ¶ 7 (reaching merits

despite lack of preservation when party had “no opportunity to

object . . . until the court issued its ruling”).

1. Standard of Review

¶ 21 Although we review a dismissal for failure to prosecute for an

abuse of discretion, Cornelius v. River Ridge Ranch Landowners

Ass’n, 202 P.3d 564, 569 (Colo. 2009), a district court’s discretion

“is not without bounds,” Oversole v. Manci, 216 P.3d 621, 623

(Colo. App. 2009). And “when evaluating a motion to dismiss for

failure to prosecute, [courts] must bear in mind that [they] ‘exist

8
primarily to afford a forum to settle litigable matters between

disputing parties.’” Lake Meredith Reservoir Co. v. Amity Mut.

Irrigation Co., 698 P.2d 1340, 1344 (Colo. 1985) (citation omitted).

A district court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair, or based on a misapplication of

the law. Credit Serv. Co. v. Skivington, 2020 COA 60M, ¶ 17.

1. Failure to Prosecute

¶ 22 A plaintiff bears the burden of prosecuting a case “in due

course without unusual or unreasonable delay.” Cornelius, 202

P.3d at 569 (citation omitted); see C.R.C.P. 121, § 1-10. A court

may sua sponte “dismiss any action not prosecuted with due

diligence, upon 35 days’ notice.” C.R.C.P. 121, § 1-10(2).

¶ 23 A court must consider several factors when evaluating a

dismissal for failure to prosecute, including the length of the delay,

the reasons for the delay, any prejudice that may result to other

parties, any difficulties in trying the case that result from the delay,

and the nature and extent of any renewed efforts to prosecute the

case. Lake Meredith, 698 P.2d at 1345; see also Oversole, 216 P.3d

at 623 (applying factors to court’s sua sponte dismissal for failure to

prosecute).

9
¶ 24 We conclude that once Montgomery alerted the district court

to the fact that the defendants had been timely served, the court

abused its discretion by largely failing to consider the Lake Meredith

factors when it denied the motion to reopen and said that it had

dismissed the case under Rule 121, section 1-10. See Lake

Meredith, 698 P.2d at 1345.

¶ 25 To the extent the court considered any of the factors, it stated

only that Montgomery’s delay in failing to file the returns of service

was “unreasonable.” But we are hard pressed to understand how

the delay in filing the returns of service — a single business day

after the court’s deadline — is “unreasonable.” This is especially

true given the fact that the defendants were timely served; thus the

case itself was not delayed. This slight delay stands in stark

contrast to the delays generally considered unreasonable. Cf. Streu

v. City of Colorado Springs, 239 P.3d 1264, 1269 (Colo. 2010)

(affirming dismissal with prejudice after a seventeen-month delay);

Rossi v. Mathers, 749 P.2d 964, 965-66 (Colo. App. 1987) (affirming

dismissal with prejudice where litigation was pending for three

years and the plaintiff had not identified a medical expert who

would testify at trial); see also C.R.C.P. 121, § 1-10(3) (noting that

10
no activity of record “in excess of [twelve] continuous months” is

deemed prima facie failure to prosecute).

¶ 26 Beyond the short delay, the district court didn’t consider or

address any other factor. But even on this limited record, it’s clear

that the defendants were timely served, the short delay in filing the

returns of service did not prejudice the defendants or cause

difficulties in trying the case, and Montgomery quickly renewed his

efforts to prosecute the case by filing the affidavits and motion to

reopen. Because the district court failed to consider whether the

factors supported dismissal for failure to prosecute, and because

none of them do, the court abused its discretion by denying the

motion to reopen.

¶ 27 Finally, independent of the factors, under the circumstances

here, we conclude that the court’s dismissal of the action for an

essentially one day delay in filing the returns of service was

manifestly unfair. See Spahmer v. Gullette, 113 P.3d 158, 161

(Colo. 2005) (concluding that although “the trial court applied the

correct statute to the facts of the case,” its decision was nonetheless

“manifestly unfair” so as to constitute an abuse of discretion).

11
III. Appellate Attorney Fees and Sanctions

¶ 28 Considering our disposition, we decline Iron Spear’s request to

sanction Montgomery and both defendants’ request for appellate

attorney fees and costs.

IV. Disposition

¶ 29 We reverse the judgment and remand the case to the district

court to reinstate the complaint.

JUDGE HARRIS and JUDGE MOULTRIE concur.

12