Colorado Court Of Appeals Holds That Rule 15, Not Rule 41, Governs A Motion To Drop Some But Not All Claims Against A Party

On April 16, 2026, a division of the Colorado Court of Appeals issued a published opinion in English v. Thorpe, 2026 COA 29, addressing a question of first impression: which rule of civil procedure applies when a party seeks to amend a pleading by dismissing some, but not all, of its claims against a defending party. The division concluded that C.R.C.P. 15(a), governing amendments to pleadings, controls, and not C.R.C.P. 41(a)(2), which addresses voluntary dismissal of an action.

Background

This dispute arose between the estate of Joseph English and Shirley Thorpe over a jointly occupied home. English’s estate sued Thorpe for unjust enrichment and conversion. Thorpe filed an answer and three counterclaims, including two claims premised on the existence of a business partnership between Thorpe and English. Thorpe later sought to amend her answer to drop the two partnership counterclaims while maintaining her unjust enrichment counterclaim. The district court denied the motion, reasoning that because Thorpe sought to dismiss claims, C.R.C.P. 41(a)(2) rather than Rule 15(a) governed, and that permitting dismissal would alter the nature of the case and prejudice the estate.

The Court of Appeals’ Analysis

The division concluded that the district court erred by applying Rule 41(a)(2) instead of Rule 15(a) to Thorpe’s motion, and that this error was not harmless because Rule 15(a)’s more liberal standard favors the moving party.

Rule 15 Versus Rule 41

The division observed that no reported Colorado appellate decision had previously addressed whether Rule 15(a) or Rule 41(a) controls when a party seeks to dismiss some, but not all, of its claims against an opposing party. Turning to the federal rules for guidance, the division noted that federal authority is largely consistent: Rule 41 governs dismissal of an “action”—meaning the whole case, i.e., all claims against a party—while Rule 15 governs the elimination of some, but not all, individual claims from a multi-claim pleading.

The division found particularly instructive the decision in Campbell v. Hoffman, 151 F.R.D. 682, 684 (D. Kan. 1993), which explained that “Rule 41(a)(2) authorizes a plaintiff to dismiss voluntarily an ‘action,’ but does not apply when a plaintiff seeks to dismiss some, but not all, of his or her claims.” The division also cited the Ninth Circuit’s decision in Hells Canyon Preservation Council v. U.S. Forest Service, 403 F.3d 683, 688 (9th Cir. 2005), which held that Rule 15(a) is the appropriate mechanism when a party desires to eliminate one or more but less than all claims without dismissing as to any defendant, and the Seventh Circuit’s decision in Taylor v. Brown, 787 F.3d 851, 857 (7th Cir. 2015), which reaffirmed that Rule 41(a) “does not speak of dismissing one claim in a suit; it speaks of dismissing ‘an action.’”

Applying these authorities, the division held that, because Thorpe did not seek to dismiss all of her counterclaims, the district court applied the incorrect legal standard by treating her Rule 15(a) motion as a Rule 41(a)(2) motion.

The Error Was Not Harmless

The division emphasized that this misapplication was not harmless because the standards differ in a meaningful way. Rule 15(a) requires that leave to amend “shall be freely given when justice so requires,” and the court must deny amendment only upon a showing of “undue delay, bad faith, undue prejudice, [or] futility of amendment.” By contrast, Rule 41(a)(2) does not contain this liberal standard. The division found that the district court’s stated reasons for denial—that the amendment would alter the case’s nature and potentially require new discovery—were insufficient under Rule 15(a)’s more permissive framework, particularly given that discovery had not yet closed, depositions had not occurred, and trial was months away.

The division further noted that even if Rule 41(a)(2) had been properly applied, the motion should still have been granted because voluntary dismissal “generally should be granted unless a dismissal would result in legal prejudice” to the other party. In this case, any prejudice could be ameliorated, including by treating Thorpe’s prior counterclaims as evidentiary admissions, but not as judicial admissions, noting that “[j]udicial admissions are conclusive, whereas evidentiary admissions may always be contradicted or explained.”

The division reversed the district court’s judgment and remanded for a new trial.

Significance

English v. Thorpe resolves a previously open question in Colorado procedure and establishes a clear rule: when a party seeks to eliminate some but not all claims against an opposing party, the motion is properly brought and evaluated under C.R.C.P. 15(a)’s liberal amendment standard, not C.R.C.P. 41(a)(2)’s dismissal framework. Practitioners should be aware that this holding applies to both claims and counterclaims; the division rejected the argument that counterclaims should be treated differently from claims under Rule 41. The decision underscores that Rule 15(a)’s policy of freely granting amendments applies with full force when a party seeks to narrow, rather than expand, the issues in a case.

The case is English v. Thorpe, 2026 COA 29, ___ P.3d ___. The decision was authored by Judge Schutz with Judges Freyre and Brown concurring.

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