Colorado § 13-16-102 - Motion to require cost bond.

§ 13-16-102. Motion to require cost bond.

If an action described in section 13-16-101 (2) is commenced by a nonresident of this state without filing an instrument in writing, or if at any time after the commencement of any suit by a resident of this state he or she shall become nonresident, and the court is satisfied that the nonresident plaintiff is unable to pay the costs of suit, the court may, on motion of the defendant or any officer of the court, order the nonresident plaintiff, on or before the day in such order named, to give an instrument in writing for the payment of costs in the suit. To ensure that access to the courts is not unreasonably denied, a court shall not require an instrument in writing for the payment of costs of suit in excess of five thousand dollars. If the nonresident plaintiff neglects or refuses, on or before the day in such rule named, to file such instrument, the court, on motion, shall dismiss the suit.

Source: R.S. p. 154, § 2. G.L. § 324. G.S. § 398. L. 1885: p. 156, § 1. R.S. 08: § 1065. C.L. § 6581. CSA: C. 43, § 11. CRS 53: § 33-1-2. C.R.S. 1963: § 33-1-2. L. 2009: Entire section amended, (HB 09-1305), ch. 311, p. 1691, § 2, effective September 1.

ANNOTATION

Law reviews. For article, "Bonds in Colorado Courts: A Primer for Practitioners", see 34 Colo. Law. 59 (Mar. 2005). For article, "Shifting Fees for Copyright Trolls", see 50 Colo. Law. 45 (Jan. 2021).

Dismissals under this section are reviewed under an abuse of discretion standard. Hytken v. Wake, 68 P.3d 508 (Colo. App. 2002).

The filing of a motion for a cost bond preserves defendant's rights to answer and prevents plaintiff from seeking default judgment. McDermett v. Rosenbaum, 13 Colo. App. 444, 58 P. 880 (1899).

Requirement of cost bond is a matter of judicial discretion as to residents. Whether or not a resident plaintiff shall be required to give security for costs is a matter in the sound discretion of the court. Knight v. Fisher, 15 Colo. 176, 25 P. 78 (1890); Ward v. Williams, 16 Colo. 86, 27 P. 247 (1891); Fleming v. Breitner, 73 Colo. 250, 215 P. 133 (1923).

Court has no discretion as to nonresidents. If any action shall be commenced by a nonresident without filing the cost bond required by § 13-6-101, the court, on motion, shall dismiss the same. This court has repeatedly held that this language is unequivocal and leaves nothing to the discretion of the court. Edgar Gold & Silver Mining Co. v. Taylor, 10 Colo. 110, 14 P. 113 (1887); Lewis v. Keim, 883 P.2d 610 (Colo. App. 1994).

The filing of a bond by a nonresident, after commencement of suit comes too late. Filing the bond subsequently to the commencement of the suit, and whether before or after the motion to dismiss is interposed, cannot avail the nonresident plaintiff. Sutro v. Simpson, 14 F. 370 (D. Colo. 1882); Edgar Gold & Silver Mining Co. v. Taylor, 10 Colo. 110, 14 P. 113 (1887).

Defendant waives right to cost bond when no motion made in trial court. When no motion for a cost bond is made in the trial court, the defendant's right to a cost bond is waived. Payton v. Spiesberger & Son Co., 40 Colo. 289, 90 P. 605 (1907).

For the lack of authority for clerk to demand a bond for accrued costs, see Teller v. Sievers, 20 Colo. App. 109, 77 P. 261 (1904).

Security required under this section may not be excused or deferred under § 13-16-103. Lewis v. Keim, 883 P.2d 610 (Colo. App. 1994) (disapproved of by supreme court in Walcott v. District Ct., 2nd Jud. Dist., 924 P.2d 163 (Colo. 1996)).

Inability to obtain cost bond does not equate to the neglect or refusal to pay such a bond. Lewis v. Keim, 883 P.2d 610 (Colo. App. 1994); Walcott v. District Ct., 2nd Jud. Dist., 924 P.2d 163 (Colo. 1996).

The burden is on the plaintiff to file a cost bond and failure to do so for any reason other than indigency or defendant's waiver mandates dismissal. Hytken v. Wake, 68 P.3d 508 (Colo. App. 2002).

Dismissal not mandated when plaintiff's failure to obtain cost bond by date ordered is not due to neglect or refusal to obtain the bond. The expiration of the time period ordered does not deprive the court of jurisdiction. Rotz v. Hyatt Corp., 2012 COA 29, 296 P.3d 164.

Court has discretion in determining whether a nonresident plaintiff's delay in filing a cost bond is the result of neglect, as opposed to the party's inability to timely comply. In exercising its discretion, the court shall consider whether: (1) plaintiff ultimately filed a cost bond that complies with the statute; (2) the court afforded plaintiff sufficient time to acquire the cost bond; and (3) failure to file the bond was the result of inability to comply within the time provided in the order after considering the circumstances surrounding plaintiff's late filing. Rotz v. Hyatt Corp., 2012 COA 29, 296 P.3d 164.

Section 13-16-103 provides judges with the authority to waive cost requirements under this section and § 13-16-101 and, therefore, provides sufficient authority to permit a plaintiff to proceed when the plaintiff is a poor person and unable to pay costs and expenses. Walcott v. District Ct., 2nd Jud. Dist., 924 P.2d 163 (Colo. 1996).

Although court improperly denied defendant's motion for filing of cost bond, order appointing receiver need not be vacated. Bank of Am. Nat. Trust & Sav. Ass'n v. Denver Hotel Ass'n Ltd. P'ship, 830 P.2d 1138 (Colo. App. 1992).

Although district court erred in denying cost bond for nonresident plaintiff, such error did not require that an order for appointment of receiver be vacated; under such circumstances, remand of cause with directions to set date for the filing of cost bond was appropriate remedy. Bank of Am. Nat. Trust & Sav. Ass'n v. Denver Hotel Ass'n Ltd. P'ship, 830 P.2d 1138 (Colo. App. 1992).