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Hawaii Motion to Dismiss

In Hawaii you move to dismiss under Haw. R. Civ. P. 12(b), before pleading within the 20-day answer window.

Introduction

In Hawaii the 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 federal Rule 12(b). Rule 12(b) lists seven enumerated defenses a defendant may raise by motion at the pleader's option: 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 must be made before pleading, and it shares the answer window: a defendant has 20 days after being served with the summons and complaint to answer or move under HRCP 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. A timely 12(b) motion replaces the answer; the responsive pleading is then due after the court disposes of the motion under HRCP 12(a)(4). Hawaii's motion practice adds its own format rules: under Rules of the Circuit Courts (RCCH) Rule 7 a motion raising a legal question carries a supporting memorandum and is filed not less than 18 days before hearing, and under RCCH Rule 7.1 that memorandum cannot exceed 20 pages. Missing the 20-day window risks a default. DocDraft drafts a Hawaii-formatted motion to dismiss from your facts, with attorney review available before you file.

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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.

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 THE [FIRST / SECOND / THIRD / FIFTH] CIRCUIT STATE OF HAWAII

[PLAINTIFF NAME], Plaintiff,

 vs.

[DEFENDANT NAME], Defendant.

Civil No. [CASE NUMBER]

DEFENDANT'S MOTION TO DISMISS

[Haw. R. Civ. P. 12(b)]

Defendant [DEFENDANT NAME], appearing [through counsel / pro se], moves this Court pursuant to Rule 12(b) of the Hawaii Rules of Civil Procedure to dismiss the Complaint filed by Plaintiff [PLAINTIFF NAME]. This motion is made before pleading. This motion is based on Rule 12(b), the records and files in this action, the accompanying Memorandum in Support, and any argument permitted at the hearing.

GROUNDS FOR DISMISSAL

Defendant moves to dismiss the Complaint, and each claim for relief therein, on the following ground(s) under Haw. R. Civ. P. 12(b):

  1. Failure to state a claim upon which relief can be granted. (Haw. R. Civ. P. 12(b)(6).)

[Add any additional applicable grounds from Rule 12(b): (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; (7) failure to join a party under Rule 19.]

MEMORANDUM IN SUPPORT OF MOTION

[Required under RCCH Rule 7 for a motion involving a question of law. Under RCCH Rule 7.1 the memorandum shall not exceed 20 pages exclusive of affidavits, exhibits, and attachments; if it exceeds 15 pages it must include a table of contents and a table of authorities.]

I. INTRODUCTION This motion challenges the legal sufficiency of the Complaint. On a Rule 12(b)(6) motion, the well-pleaded allegations of the Complaint are taken as true, and the question is whether those allegations state a claim upon which relief can be granted.

II. STATEMENT OF FACTS [Summarize the allegations of the Complaint as relevant to the grounds raised.]

III. ARGUMENT [State the legal basis for each ground. Argue why the Complaint fails to state a claim upon which relief can be granted and/or why any other Rule 12(b) ground applies. Note: if matters outside the pleading are presented and not excluded by the court on a 12(b)(6) motion, the motion is treated as one for summary judgment under Rule 56.]

IV. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court grant this Motion to Dismiss.

WHEREFORE, Defendant respectfully requests that the Court:

  1. Dismiss the Complaint, and each claim for relief therein;
  2. Grant such other and further relief as the Court deems just and proper.

DATED: [CITY], Hawaii, [DATE].

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [Hawaii Bar No., if applicable] [Address] [Telephone] [Email] Attorney for Defendant / Defendant, pro se

NOTICE OF HEARING

[Under RCCH Rule 7 the motion shall be filed and served not less than 18 days before the hearing. Insert the hearing date, time, and courtroom as set by the court.]

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing MOTION TO DISMISS was duly served on the following party or parties by [method of service] on the date set forth below, in accordance with Haw. R. Civ. P. 5.

[PLAINTIFF / PLAINTIFF'S COUNSEL NAME AND ADDRESS]

DATED: [CITY], Hawaii, [DATE].

[NAME OF PERSON SERVING]

[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. Check the applicable circuit's standing orders and your court's local rules.]

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.

Frequently Asked Questions

In Hawaii you file a motion to dismiss under Haw. R. Civ. P. 12(b). The motion is made before pleading and raises one or more of seven enumerated defenses at the pleader's option instead of asserting them in the answer. Under RCCH Rule 7 a motion raising a question of law is accompanied by a supporting memorandum, and it is filed with the clerk of the court named in the summons where the action is pending.

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. Under RCCH Rule 7 the motion is filed not less than 18 days before hearing.

Most motions turn on failure to state a claim upon which relief can be granted, subsection (6): taking every allegation as true, the complaint still pleads no legal claim. Rule 12(b) lists seven grounds in all, the remaining six being lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, and failure to join a party under Rule 19. The District Court analog under DCRCP 12(b) lists the same seven grounds.

Hawaii's Rules of Civil Procedure do not impose a statewide meet-and-confer requirement as a precondition to filing a Rule 12(b) motion to dismiss. Civil motion practice is governed by Rules of the Circuit Courts (RCCH) Rule 7, which requires a written motion stating the grounds and, for a question of law, a supporting memorandum. Check your court's local rules for any added procedures.

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. If a failure-to-state-a-claim motion presents matters outside the pleading, the court may treat it as a motion for summary judgment under Rule 56 and give the parties a reasonable opportunity to present material.

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 civil actions. Confirm the current thresholds against the District Court jurisdiction page and HRS chapter 604.