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Alabama Motion to Dismiss

In Alabama you move to dismiss under Ala. R. Civ. P. 12(b) in the 30-day answer window.

Introduction

In Alabama a defendant who wants to knock out a lawsuit before answering files a Motion to Dismiss under Ala. R. Civ. P. 12(b). The rule lists seven defenses that may, at the pleader's option, be raised by motion instead of in the answer, with failure to state a claim upon which relief can be granted under Rule 12(b)(6) the most common. The motion must be made before pleading if a further pleading is permitted, and it is served within the same 30-day window the answer would be due (Rule 12(a)), counted from service of the summons and complaint. Serving the motion alters the answer clock: if the court denies the motion or postpones it to trial, the responsive pleading is due within 10 days after notice of the court's action. The motion follows Rule 7(b) motion practice, so it must be in writing, state the grounds with particularity, and set forth the relief sought. You file it in the Circuit Court or District Court named in your summons, depending on the amount in controversy. Missing the window risks a default judgment, so the timing matters. DocDraft drafts an Alabama-formatted motion from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    Alabama's pre-answer dismissal vehicle is a Motion to Dismiss under Ala. R. Civ. P. 12(b). The rule lets a defendant raise listed defenses by motion rather than in the responsive pleading.

  2. 2

    Rule 12(b) enumerates seven defenses that may be made by motion: (1) lack of subject-matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, and (7) failure to join a party under Rule 19.

  3. 3

    The motion shares the answer window. Under Rule 12(a) a defendant serves an answer within 30 days after service of the summons and complaint, and a Rule 12(b) motion must be made before pleading if a further pleading is permitted.

  4. 4

    Serving the motion alters the answer clock. If the court denies the motion or postpones its disposition until trial, the responsive pleading is due within 10 days after notice of the court's action (Rule 12(a)).

  5. 5

    The Alabama Rules of Civil Procedure do not set a statewide page limit or require a separate supporting brief for a Rule 12(b) motion; many local circuit courts impose briefing requirements through standing orders, so check your court's local rules.

  6. 6

    Failure to state a claim upon which relief can be granted is the Rule 12(b)(6) ground, and it tracks the federal Rule 12(b)(6) standard.

  7. 7

    File the motion in the trial court named in your summons: the Circuit Court for civil matters exceeding $20,000, or the District Court for amounts up to $20,000 (small claims division up to $6,000). The District Court track shortens the response period to 14 days under Rule 12(dc).

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

IN THE [CIRCUIT / DISTRICT] COURT OF [COUNTY] COUNTY, ALABAMA

[PLAINTIFF NAME], Plaintiff,

v. Case No. [CASE NUMBER]

[DEFENDANT NAME], Defendant.

DEFENDANT'S MOTION TO DISMISS (Ala. R. Civ. P. 12(b))

COMES NOW the Defendant, [DEFENDANT NAME], and pursuant to Rule 12(b) of the Alabama Rules of Civil Procedure, moves this Court to dismiss the Complaint filed by Plaintiff [PLAINTIFF NAME], and in support states as follows:

I. GROUNDS FOR DISMISSAL

  1. Defendant moves to dismiss under Ala. R. Civ. P. 12(b) on the following ground(s):

    [ ] (1) lack of jurisdiction over the subject matter; [ ] (2) lack of jurisdiction over the person; [ ] (3) improper venue; [ ] (4) insufficiency of process; [ ] (5) insufficiency of service of process; [ ] (6) failure to state a claim upon which relief can be granted; [ ] (7) failure to join a party under Rule 19.

  2. This motion is made before pleading, as permitted by Ala. R. Civ. P. 12(b), and in lieu of an answer pending the Court's disposition.

II. MEMORANDUM IN SUPPORT

[State with particularity the factual and legal basis for each ground asserted. For a Rule 12(b)(6) motion, explain why the Complaint fails to state a claim upon which relief can be granted, accepting the well-pleaded facts as alleged.]

III. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court dismiss the Complaint, and grant such other and further relief as the Court deems just and proper.

Respectfully submitted,

[DEFENDANT NAME / COUNSEL] [Address] [Telephone] [Email]

CERTIFICATE OF SERVICE

I certify that on [DATE] I served a copy of the foregoing Motion to Dismiss on counsel for Plaintiff (or Plaintiff, if self-represented) by [method of service] at the address of record.

[SIGNATURE]

Alabama Requirements for Motion to Dismiss

File the motion before pleading under Rule 12(b)

A Motion to Dismiss under Ala. R. Civ. P. 12(b) raises listed defenses by motion in lieu of the answer. It must be made before pleading if a further pleading is permitted.

Serve within the 30-day answer window

Under Ala. R. Civ. P. 12(a) a defendant serves an answer within 30 days after service of the summons and complaint. The Rule 12(b) motion is served within that same window. District Court general-civil actions shorten the period to 14 days under Rule 12(dc).

Select your Rule 12(b) grounds

Rule 12(b) enumerates seven defenses that may be made by motion: lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, and failure to join a party under Rule 19.

Assert failure to state a claim under Rule 12(b)(6) where applicable

Failure to state a claim upon which relief can be granted is the Rule 12(b)(6) ground and tracks the federal Rule 12(b)(6) standard. State why the complaint, on its well-pleaded facts, fails as a matter of law.

Put the motion in writing and state grounds with particularity

Under Ala. R. Civ. P. 7(b) the motion must be in writing, state with particularity the grounds, and set forth the relief or order sought. The caption and form rules for pleadings apply to motions.

Check local rules for any supporting brief requirement

The Alabama Rules of Civil Procedure do not set a statewide page limit or require a separate supporting memorandum for a Rule 12(b) motion. Many local circuit courts impose briefing requirements through standing orders, so check your court's local rules.

File in the Circuit or District Court named in your summons

The Circuit Court has original jurisdiction over civil matters exceeding $20,000; the District Court handles amounts up to $20,000, with a small claims division up to $6,000. File with the clerk of that court in paper or via AlaFile e-filing.

Track the 10-day clock if the motion is denied

Under Ala. R. Civ. P. 12(a), if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 10 days after notice of the court's action, unless the court fixes a different time.

Frequently Asked Questions

File a written Motion to Dismiss under Ala. R. Civ. P. 12(b) with the clerk of the court named in your summons, in paper or through AlaFile e-filing. Under Rule 7(b) the motion must state the grounds with particularity and set forth the relief sought. It must be made before pleading if a further pleading is permitted, and served on the opposing party.

A Rule 12(b) motion is served within the same 30-day window the answer would be due under Ala. R. Civ. P. 12(a), counted from service of the summons and complaint. The motion must be made before pleading. In District Court general-civil actions the period is shortened to 14 days under Rule 12(dc).

In an Alabama Circuit Court action, Ala. R. Civ. P. 12(b) lets a defendant test the suit by motion before answering. Threshold grounds attack the court's reach or the mechanics of suit: jurisdiction over the subject matter or the person, venue, and the sufficiency of process or its service. The merits ground, failure to state a claim upon which relief can be granted, is Rule 12(b)(6). Failure to join a required party under Rule 19 is also available.

The Alabama Rules of Civil Procedure do not set a statewide meet-and-confer requirement as a precondition to a Rule 12(b) motion. Rule 12(b) provides that the listed defenses may at the option of the pleader be made by motion, with no conference prerequisite stated in the rule. Local court standing orders may differ, so check your court's local rules.

Under Ala. R. Civ. P. 12(a), if the court denies the motion or postpones its disposition until trial on the merits, the responsive pleading must be served within 10 days after notice of the court's action, unless the court fixes a different time. Serving the motion replaces the original answer window until the court rules.

File in the trial court named in your summons. The Circuit Court has original jurisdiction over civil matters exceeding $20,000; the District Court handles amounts up to $20,000, with a small claims division up to $6,000. The motion is filed with the clerk of that court, in paper or via AlaFile e-filing.