Delaware Motion to Dismiss

Q: How do I file a motion to dismiss in Delaware?

You file a written motion to dismiss under Superior Court Civil Rule 12(b) in place of an answer. Under Rule 7(b) the motion must state its grounds with particularity, set forth the relief sought, comply with the caption and form-of-pleading rules, and be signed under Rule 11. File it in whichever Delaware trial court the complaint was filed in: the Superior Court, the Court of Chancery, or the Court of Common Pleas.

Q: What is the deadline to file a motion to dismiss in Delaware?

A Rule 12(b) motion must be made before pleading and shares the answer window. Under Superior Court Civil Rule 12(a) a defendant must serve an answer within 20 days after service of process, so the motion is due within that same 20-day period. Because 20 days exceeds the Rule 6(a) short-period threshold, intermediate weekends and holidays are counted, so the deadline runs on calendar days.

Q: What are the grounds for a motion to dismiss in Delaware?

Before answering in Delaware's Superior Court or Court of Chancery, a defendant may move to dismiss under Rule 12(b). Some grounds question whether the suit can stand: subject-matter or personal jurisdiction, venue, and the sufficiency of process or its service. The merits ground, failure to state a claim upon which relief can be granted, is the federal-tracking 12(b)(6) defense that dominates Chancery litigation. Failure to join a party under Rule 19 completes the seven, restated by Chancery effective June 14, 2024.

Q: Do I need to meet and confer before filing a motion to dismiss in Delaware?

The Superior Court Civil Rules contain no statewide meet-and-confer requirement for a Rule 12(b) motion to dismiss. Rule 7(b) requires only that the motion be in writing, state its grounds with particularity, and set forth the relief sought. Motion practice and the briefing schedule fall under Rule 78, so check your court's local rules for any conference or scheduling steps.

Q: What happens if my motion to dismiss is denied in Delaware?

If the court denies the motion, the case continues and you then file an answer to the complaint. A Rule 12(b) motion is made before pleading and substitutes for the answer, so the answer obligation revives once the motion is resolved. Superior Court Civil Rule 78 governs motion practice and timing, so check your court's local rules for the schedule after a ruling.

Q: Where do I file a motion to dismiss in Delaware?

Delaware has three trial courts, and you file in whichever one the complaint was filed in. The Superior Court is the court of law, the Court of Chancery is the court of equity where the Rule 12(b)(6) motion is the dominant vehicle in corporate and fiduciary-duty cases, and the Court of Common Pleas hears civil claims up to $75,000. Each court applies its own parallel Rule 12(b).

In Delaware you move to dismiss under Superior Court Civil Rule 12(b) within the 20-day answer window.

Introduction

In Delaware a defendant challenges a complaint by filing a motion to dismiss under Superior Court Civil Rule 12(b), which lets you raise certain defenses by motion instead of answering. Rule 12(b) lists seven grounds: 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. The motion shares the answer window. Because a Rule 12(b) motion must be made before pleading, it is the procedural substitute for the answer and is due within the same 20 calendar days the answer is due under Rule 12(a). What makes Delaware distinctive is its three-court structure: file in the Superior Court if the case is at law, in the Court of Common Pleas for claims up to $75,000, or in the Court of Chancery if the case is in equity, where the Chancery Rule 12(b)(6) motion for failure to state a claim is the dominant pre-answer vehicle in corporate litigation. Under Rule 7(b) the motion must be in writing, state its grounds with particularity, and set forth the relief sought. If you miss the 20-day window you risk a default. DocDraft drafts a Delaware-formatted motion from your facts, with attorney review available before you file.

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Key Things to Know

1
The Delaware vehicle is a motion to dismiss under Superior Court Civil Rule 12(b), which permits a defendant to raise listed defenses by motion rather than in a responsive pleading. The Court of Chancery and Court of Common Pleas each apply a parallel Rule 12(b).
2
Rule 12(b) enumerates seven grounds assertable by motion: (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; and (7) failure to join a party under Rule 19.
3
The motion shares the answer window. A defendant must serve an answer within 20 days after service of process under Rule 12(a), and a Rule 12(b) motion must be made before pleading, so it is due within that same 20-calendar-day period.
4
Because the 20-day period exceeds the Rule 6(a) short-period threshold of less than 11 days, intermediate weekends and holidays are counted, so the deadline runs on calendar days.
5
Rule 7(b) requires that the motion be in writing, state its grounds with particularity, and set forth the relief sought, and that it comply with the caption and form-of-pleading rules and be signed under Rule 11. Superior Court Civil Rule 78 governs motion practice and the briefing schedule, so check your court's local rules for response and reply deadlines and any briefing format.
6
The most common ground is failure to state a claim upon which relief can be granted, the sixth Rule 12(b) defense, which tracks the federal 12(b)(6) standard and tests whether the complaint pleads a legally sufficient claim.
7
Where you file depends on Delaware's three-court structure: the Superior Court is the court of law, the Court of Chancery is the court of equity where Rule 12(b)(6) dominates corporate and fiduciary-duty disputes, and the Court of Common Pleas hears civil claims up to $75,000. File the motion in whichever of the three trial courts the complaint was filed in.

Key decisions before you file

Before you file a Motion to Dismiss in Delaware, a few decisions shape the document: which option to choose and what each one means. The Motion to Dismiss guide walks through them.

Open the Motion to Dismiss guide

Customize your Motion to Dismiss Template with DocDraft

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR ______________ COUNTY

[If your case is in equity, caption instead: IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE. If the claim is for $75,000 or less, caption instead: IN THE COURT OF COMMON PLEAS OF THE STATE OF DELAWARE IN AND FOR ______________ COUNTY.]

______________________________, ) Plaintiff, ) ) C.A. No. ____________ v. ) ) ______________________________, ) Defendant. )

DEFENDANT'S MOTION TO DISMISS

Defendant ______________, by and through undersigned counsel, respectfully moves this Court under Superior Court Civil Rule 12(b) to dismiss the Complaint, and in support states with particularity the grounds therefor:

GROUNDS FOR DISMISSAL

This motion is made before pleading, as permitted by Superior Court Civil Rule 12(b), in lieu of a responsive pleading.
The Complaint should be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief can be granted [and/or, as applicable: Rule 12(b)(1) lack of jurisdiction over the subject matter; Rule 12(b)(2) lack of jurisdiction over the person; Rule 12(b)(3) improper venue; Rule 12(b)(4) insufficiency of process; Rule 12(b)(5) insufficiency of service of process; Rule 12(b)(7) failure to join a party under Rule 19].
[State the specific factual and legal basis for each ground asserted.]

MEMORANDUM OF POINTS AND AUTHORITIES

Under Rule 12(b)(6), the Complaint fails to state a claim upon which relief can be granted because [set forth the legal argument and authorities]. [Note: Superior Court Civil Rule 78 governs motion practice and the briefing schedule; check the court's local rules for response and reply deadlines and any briefing format requirements.]

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

Respectfully submitted,

[Attorney Name / Self-Represented Party] [Bar ID, if applicable] [Address] [Telephone] [Email]

Dated: ______________

CERTIFICATE OF SERVICE

I hereby certify that on this ____ day of ______, 20, a true and correct copy of the foregoing Motion to Dismiss was served upon all counsel of record [and/or self-represented parties] in the manner prescribed by the applicable Delaware civil rules.

[Signature]

Delaware Requirements for Motion to Dismiss

File the motion to dismiss before pleading, within the 20-day answer window
Under Superior Court Civil Rule 12(a) a defendant must serve an answer within 20 days after service of process. A Rule 12(b) motion must be made before pleading, so it is due within that same 20-day period and substitutes for the answer.
Count the 20-day deadline on calendar days
Because the 20-day period exceeds the Rule 6(a) short-period threshold of less than 11 days, intermediate weekends and holidays are counted, so the deadline runs on calendar days.
Select the Rule 12(b) grounds for your motion
Rule 12(b) permits seven defenses 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)
The sixth Rule 12(b) ground, failure to state a claim upon which relief can be granted, is the most common basis for dismissal and tests whether the complaint pleads a legally sufficient claim. The Court of Chancery restates this ground in modernized phrasing effective June 14, 2024.
State the grounds with particularity and set forth the relief sought
Rule 7(b) requires the motion to be in writing, state its grounds with particularity, and set forth the relief sought. It must comply with the caption and form-of-pleading rules and be signed under Rule 11.
Check local rules for the briefing schedule under Rule 78
Superior Court Civil Rule 78 governs motion practice and the briefing schedule. Rule 7(b) does not require a proposed form of order. Check your court's local rules for response and reply deadlines, briefing format, and any proposed-order practice.
File in the correct Delaware trial court
Delaware has three trial courts: the Superior Court (law), the Court of Chancery (equity, where Rule 12(b)(6) is the dominant vehicle in corporate cases), and the Court of Common Pleas (civil claims up to $75,000). File the motion in whichever court the complaint was filed in.
Serve the motion and prepare a certificate of service
The motion must comply with the caption and form-of-pleading rules under Rule 7(b) and be signed under Rule 11. Serve the motion on all parties and attach a certificate of service.

Frequently Asked Questions

How do I file a motion to dismiss in Delaware?

What is the deadline to file a motion to dismiss in Delaware?

What are the grounds for a motion to dismiss in Delaware?

Do I need to meet and confer before filing a motion to dismiss in Delaware?

What happens if my motion to dismiss is denied in Delaware?

Where do I file a motion to dismiss in Delaware?

Introduction

Key Things to Know

Key decisions before you file

Customize your Motion to Dismiss Template with DocDraft

Delaware Requirements for Motion to Dismiss

File the motion to dismiss before pleading, within the 20-day answer window

Count the 20-day deadline on calendar days

Select the Rule 12(b) grounds for your motion

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

State the grounds with particularity and set forth the relief sought

Check local rules for the briefing schedule under Rule 78

File in the correct Delaware trial court

Serve the motion and prepare a certificate of service

Frequently Asked Questions