Motion to Dismiss — Rule 12(b)

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01ATTORNEY INFORMATION

Attorney Name *

State Bar No. *

Firm / Office Name

Address *

Phone *

Fax

Email *

02CASE INFORMATION

County *

File No. *

Division

Plaintiff Name *

Defendant / Movant Name *

03GROUNDS FOR DISMISSAL

⚠ WAIVER RULE: Grounds 12(b)(2)–(5) must be raised in the first responsive pleading or motion or they are waived. Grounds 12(b)(6) and 12(b)(7) may be raised at any time before judgment.

12(b)(1) — Lack of subject matter jurisdiction 12(b)(2) — Lack of personal jurisdiction 12(b)(3) — Improper venue 12(b)(4) — Insufficiency of process 12(b)(5) — Insufficient service of process 12(b)(6) — Failure to state a claim upon which relief can be granted 12(b)(7) — Failure to join an indispensable party (Rule 19)

0412(b)(6) ARGUMENT — FAILURE TO STATE A CLAIM

Standard: A complaint must be dismissed under Rule 12(b)(6) when, accepting all well-pleaded allegations as true and drawing all reasonable inferences in the plaintiff's favor, the complaint fails to allege facts sufficient to state a claim for relief. Sutton v. Duke, 277 N.C. 94 (1970); Raritan River Steel Co. v. Cherry, Bekaert & Holland, 322 N.C. 200 (1988).

Argument (why the complaint fails to state a claim)

05SUPPORTING BRIEF / MEMORANDUM

Status of Brief

06HEARING REQUESTED

Oral Argument / Hearing

07CERTIFICATE OF SERVICE

Date Served *

Served Upon *

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WAIVER RULE — CRITICAL

12(b)(2) — personal jurisdiction: WAIVED if not raised first
12(b)(3) — venue: WAIVED if not raised first
12(b)(4) — process: WAIVED if not raised first
12(b)(5) — service: WAIVED if not raised first
12(b)(6) — failure to state a claim: may be raised any time before judgment
12(b)(7) — indispensable party: may be raised any time before judgment
12(b)(1) — SMJ: cannot be waived; may be raised at any time

12(b)(6) STANDARD

Court assumes all well-pleaded facts are true
Dismissal is proper only if no law supports the claim
Dismissal warranted if facts alleged are insufficient to state a claim
If matters outside the pleadings are considered, the court must convert to a Rule 56 summary judgment motion

STATUTORY REFERENCE

Rule 12(b)Motion to dismiss grounds

Rule 12(d)Waiver of certain defenses

Rule 12(g)Consolidation of defenses

Rule 56Summary judgment (if 12(b)(6) converted)

Sutton v. Duke277 N.C. 94 (1970)

NEED AN ATTORNEY?

This motion must be filed and signed by a licensed NC attorney
Barker Richardson, PLLC → for civil litigation