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Georgia Motion to Dismiss

In Georgia you move to dismiss under O.C.G.A. 9-11-12(b) within the 30-day response window.

Introduction

In Georgia the pre-answer challenge to a complaint is a motion to dismiss under O.C.G.A. 9-11-12(b), the Georgia Civil Practice Act analog of federal Rule 12(b). It asks the Superior Court or State Court to throw out the lawsuit, or part of it, before you file an answer. What sets Georgia apart is the list of grounds: subsection (b) enumerates only six defenses you may raise by written motion, not the federal seven. They are lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, and failure to state a claim. The federal failure-to-join ground is not on the (b) list; in Georgia that defense lives in O.C.G.A. 9-11-12(h)(2) and 9-11-19 and can be raised through trial. The motion is made before or at the time of pleading, so it shares the answer window of 30 calendar days after you are served, under O.C.G.A. 9-11-12(a). Uniform Superior Court Rule 6.1 requires the motion to include citations of supporting authorities, and under USCR 6.3 it is generally decided on the papers without an oral hearing unless the court orders one. Miss the window and you risk a default judgment, and you can waive the jurisdiction, venue, process, and service defenses under O.C.G.A. 9-11-12(h)(1). DocDraft drafts a Georgia-formatted motion to dismiss from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    The vehicle is a motion to dismiss under O.C.G.A. 9-11-12(b), Georgia's Civil Practice Act analog of federal Rule 12(b). It is a written motion that asks the court to throw out the complaint, or part of it, before you answer.

  2. 2

    Georgia's subsection (b) lists only six defenses, not the federal seven: lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, and failure to state a claim. The federal failure-to-join ground is not on the (b) list.

  3. 3

    It is filed in lieu of an answer, on the same deadline. A 9-11-12(b) motion is made before or at the time of pleading, so it shares the answer window: 30 calendar days after you are served with the summons and complaint under O.C.G.A. 9-11-12(a).

  4. 4

    If the motion is denied, you still must answer and the case continues. The motion to dismiss is a step in the case, not the end of it.

  5. 5

    Uniform Superior Court Rule 6.1 requires every pre-trial motion to include or be accompanied by citations of supporting authorities. There is no statewide page limit under USCR 6.1, and the opposing party has 30 days to respond under USCR 6.2.

  6. 6

    Failure to state a claim upon which relief can be granted is the most common ground, listed at O.C.G.A. 9-11-12(b)(6). It argues the complaint, even if true, describes no legal wrong the court can act on.

  7. 7

    You file in the Superior Court or State Court that has jurisdiction over the complaint. Under USCR 6.3 the motion is generally decided on the briefs without an oral hearing unless the court orders one. The failure-to-join-an-indispensable-party defense survives under O.C.G.A. 9-11-12(h)(2) and 9-11-19 and can be raised through trial.

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 SUPERIOR COURT OF __________ COUNTY STATE OF GEORGIA

__________________________, ) Plaintiff, ) ) Civil Action File No. ____________ v. ) ) __________________________, ) Defendant. )

DEFENDANT'S MOTION TO DISMISS

COMES NOW Defendant __________________, and pursuant to O.C.G.A. § 9-11-12(b) of the Georgia Civil Practice Act, moves this Court to dismiss the Complaint, or the claims identified below, and in support shows the Court the following.

I. GROUNDS FOR DISMISSAL

Defendant moves to dismiss on the following ground(s) enumerated in O.C.G.A. § 9-11-12(b) [select all that apply]:

( ) (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.

[If raising failure to join a party indispensable under O.C.G.A. § 9-11-19, note that this defense is preserved under O.C.G.A. § 9-11-12(h)(2) and is not among the (b) grounds.]

II. MEMORANDUM OF SUPPORTING AUTHORITIES

Pursuant to Uniform Superior Court Rule 6.1, this motion is accompanied by the following citations of supporting authorities. [State the factual and legal basis for each ground asserted above, with citation to controlling statutes and decisions. Where allegations of unstipulated fact are relied upon, attach supporting affidavits or cite evidentiary materials of record.]

III. PRAYER FOR RELIEF

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

Respectfully submitted this ____ day of ______, 20.

[Signature] [Printed Name] [Georgia Bar No., if attorney] [Address] [Telephone / Email] Defendant [or Attorney for Defendant], Pro Se if self-represented

CERTIFICATE OF SERVICE

I certify that I have this day served a true and correct copy of the foregoing Defendant's Motion to Dismiss upon the opposing party [or counsel of record] by [method of service permitted under O.C.G.A. § 9-11-5], addressed as follows:

This ____ day of ______, 20.

[Signature]

Georgia Requirements for Motion to Dismiss

File before or at the time of pleading, within 30 days of service

A motion to dismiss under O.C.G.A. 9-11-12(b) must be made before or at the time of pleading, so it shares the answer window of 30 calendar days after service of the summons and complaint under O.C.G.A. 9-11-12(a). Filing the motion in lieu of an answer replaces the initial answer obligation.

Identify your defense from the six grounds in O.C.G.A. 9-11-12(b)

O.C.G.A. 9-11-12(b) enumerates six defenses you may raise by written motion: lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, and failure to state a claim. Georgia lists six, not the federal seven.

Failure to state a claim is the (b)(6) ground

Failure to state a claim upon which relief can be granted is listed at O.C.G.A. 9-11-12(b)(6). It argues the complaint, even if everything in it were true, describes no legal wrong the court can act on.

Raise failure to join a party under 9-11-12(h)(2), not (b)

The federal Rule 12(b)(7) failure-to-join ground is not among Georgia's six (b) defenses. Under O.C.G.A. 9-11-12(h)(2), failure to join a party indispensable under O.C.G.A. 9-11-19 is preserved and can be asserted through trial rather than waived if omitted from a pre-answer motion.

Include citations of supporting authorities under USCR 6.1

Uniform Superior Court Rule 6.1 requires every pre-trial motion to include or be accompanied by citations of supporting authorities and, where unstipulated facts are relied upon, supporting affidavits or citations to evidentiary materials of record. No statewide page limit is set by USCR 6.1.

The opposing party has 30 days to respond under USCR 6.2

Under Uniform Superior Court Rule 6.2, the opposing party has 30 days after service of the motion to file a response, which must likewise cite supporting authorities. Under USCR 6.3 the motion is generally decided without an oral hearing unless the court orders otherwise.

A proposed order may be required by local rule

No statewide Uniform Superior Court Rule requires a proposed order to accompany a motion to dismiss. Some individual circuits or judges require one by standing order, so check your court's local rules before filing.

File in the Superior Court or State Court and serve the other side

File the motion in the Superior Court or State Court that has jurisdiction over the complaint. Superior Court practice follows the Uniform Superior Court Rules; State Courts apply parallel rules, including a State Court Rule 6.2. Serve a copy on the opposing party. Failing to raise the jurisdiction, venue, process, and service defenses waives them under O.C.G.A. 9-11-12(h)(1).

Frequently Asked Questions

You file a written motion to dismiss under O.C.G.A. 9-11-12(b) with the Superior Court or State Court handling the complaint, before or at the time you would otherwise answer. Uniform Superior Court Rule 6.1 requires the motion to include or be accompanied by citations of supporting authorities. Serve a copy on the opposing party, who then has 30 days to respond under USCR 6.2.

A motion to dismiss under O.C.G.A. 9-11-12(b) must be made before or at the time of pleading, so it shares the answer window. That window is 30 calendar days after you are served with the summons and complaint under O.C.G.A. 9-11-12(a). Filing the motion in lieu of an answer replaces the initial answer obligation. Missing the window can lead to a default judgment.

The most frequent ground is failure to state a claim upon which relief can be granted: even when every allegation is taken as true, the complaint states no legal claim. O.C.G.A. 9-11-12(b) enumerates six defenses that may be raised by written motion, also covering lack of jurisdiction over the subject matter or person, improper venue, insufficiency of process, and insufficiency of service of process. Georgia lists six, not the federal seven; failure to join a party is handled separately under 9-11-12(h)(2) and 9-11-19.

No statewide meet-and-confer requirement applies to a motion to dismiss in Georgia. The only conference-certification duty in the Uniform Superior Court Rules applies to discovery-dispute motions under USCR 6.4(B), not to a 9-11-12(b) motion. Individual courts can have their own practices, so check your court's local rules.

If the court denies the motion, the case continues and you must file an answer to the complaint. Under O.C.G.A. 9-11-12(h)(1), the personal-jurisdiction, venue, process, and service-of-process defenses are waived if they were neither raised by motion nor included in the responsive pleading, while failure to state a claim and failure to join an indispensable party survive under 9-11-12(h)(2).

You file in the Superior Court or State Court that has jurisdiction over the underlying complaint. Superior Court practice is governed by the Uniform Superior Court Rules, and State Courts apply parallel rules, including a State Court Rule 6.2. Under USCR 6.3, the motion is generally decided on the briefs without an oral hearing unless the court orders otherwise.