Hawaii Motion to Dismiss

Introduction

Key Things to Know

1. 1

   Hawaii's pre-answer challenge to a complaint is a motion to dismiss under Haw. R. Civ. P. 12(b), the state Rule of Civil Procedure that tracks the federal rule. Every defense must be asserted in the responsive pleading, except that the seven listed defenses may, at the option of the pleader, be made by motion before pleading.

2. 2

   Rule 12(b) lists seven enumerated grounds: (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. The District Court analog under DCRCP 12(b) lists the same seven grounds.

3. 3

   The motion is made before pleading and shares the answer window: a defendant has 20 days after being served with the summons and complaint to answer or move, under Haw. R. Civ. P. 12(a)(1). Because HRCP 6(a) excludes weekends and holidays only when the period is under 7 days, the 20-day window runs in calendar days.

4. 4

   A timely 12(b) motion replaces the answer rather than running alongside it. Under HRCP 12(a)(4) the responsive pleading is due after the court disposes of the motion. Confirm the post-ruling answer period against the text of HRCP 12(a)(4) for your situation.

5. 5

   Hawaii's Rules of Civil Procedure impose no statewide pre-filing meet-and-confer precondition to a Rule 12(b) motion to dismiss. Under RCCH Rule 7 a motion raising a question of law is accompanied by a supporting memorandum, and under RCCH Rule 7.1 a memorandum cannot exceed 20 pages, with a table of contents and table of authorities required when it exceeds 15 pages.

6. 6

   The most common ground is failure to state a claim upon which relief can be granted, which is subsection (6) of Rule 12(b). If matters outside the pleading are presented and not excluded by the court, the motion is treated as one for summary judgment under Rule 56, and all parties are given a reasonable opportunity to present material.

7. 7

   You file with the clerk of the court named in the summons where the action is pending. Circuit Court has exclusive jurisdiction over civil actions exceeding $40,000 and concurrent jurisdiction with District Court between $10,000 and $40,000, with District Court handling smaller actions; confirm the current thresholds against the District Court jurisdiction page and HRS chapter 604.

Hawaii Requirements for Motion to Dismiss

• Answer or move within 20 days of service

  A defendant has 20 days after being served with the summons and complaint to answer or move, under Haw. R. Civ. P. 12(a)(1). A Rule 12(b) motion is made before pleading. Because HRCP 6(a) excludes weekends and holidays only when the period is under 7 days, the 20-day window runs in calendar days.

• File the motion at least 18 days before the hearing

  Under Rules of the Circuit Courts (RCCH) Rule 7, the motion is filed and served not less than 18 days before the hearing. Calendar the hearing date so the motion and supporting memorandum are filed within that window.

• Note that the answer is due after the court rules

  A timely Rule 12(b) motion replaces the answer rather than running alongside it. Under Haw. R. Civ. P. 12(a)(4) the responsive pleading becomes due after the court disposes of the motion. Confirm the post-ruling answer period against the text of HRCP 12(a)(4).

• Identify the grounds under Rule 12(b)

  Select grounds from the seven enumerated in Haw. R. Civ. P. 12(b): (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. The District Court analog under DCRCP 12(b) lists the same seven.

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

  The failure-to-state-a-claim ground is subsection (6) of Rule 12(b). If matters outside the pleading are presented and not excluded by the court, the motion is treated as one for summary judgment under Rule 56, and all parties are given a reasonable opportunity to present pertinent material.

• Attach a supporting memorandum within the page limit

  Under RCCH Rule 7 a motion involving a question of law is accompanied by a supporting memorandum. Under RCCH Rule 7.1 a memorandum in support cannot exceed 20 pages exclusive of affidavits, exhibits, and attachments, and a memorandum exceeding 15 pages must include a table of contents and a table of authorities.

• File in the correct court by amount in controversy

  File with the clerk of the court named in the summons where the action is pending. Circuit Court has exclusive jurisdiction over civil actions exceeding $40,000 and concurrent jurisdiction with District Court between $10,000 and $40,000, with District Court handling smaller actions. Confirm the current thresholds against the District Court jurisdiction page and HRS chapter 604.

• Serve the motion and complete a certificate of service

  Serve the motion to dismiss on the plaintiff or plaintiff's counsel in accordance with Haw. R. Civ. P. 5 and file a certificate of service. Whether a proposed order must accompany a Rule 12(b) motion is not set by a statewide HRCP or RCCH rule; circuit and division practice may vary, so check your court's local rules.