CO2 Committee, Inc. v. Montezuma County, Colorado, et al.

The District Court granted the Respondents’ Motion to Dismiss, by facial attack, the Petitioner’s Complaint under Rule 12(b)(1). The material part of the Complaint was to recover money the Respondents (collectively the “County”) took as taxes which the Committee did not owe without notice and in violation of their civil rights. The District Court in its Order relied on allegations of fact in the County’s Motion to Dismiss despite facial attack case law. Some of those allegations were false and material. On appeal, the Tenth Circuit affirmed the District Court’s Order and Judgment with little attention to the rule that motions to dismiss under Rule 12(b)(1) with facial attack must accept well pled allegations of the complaint as true. The Question Presented Is: Because the District Court and the County agreed on the facial attack procedure, should the Tenth Circuit on appeal have reversed the Order of the District Court which used in its Order allegations of fact from County’s Motion to Dismiss under Rule 12(b)(1)?