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Massachusetts Motion to Dismiss

In Massachusetts you move to dismiss under Mass. R. Civ. P. 12(b) within 20 days, with a Rule 9A package.

Introduction

In Massachusetts you challenge a complaint with a motion to dismiss under Mass. R. Civ. P. 12(b). The rule tracks the federal scheme but lists ten enumerated defenses, with 12(b)(6), failure to state a claim upon which relief can be granted, the most common ground. The motion must be made before pleading if a further pleading is permitted, and filing it stands in for your answer. The shared responsive window is 20 calendar days after service of the pleading requiring a response, under Mass. R. Civ. P. 12(a). What makes Massachusetts practice distinct is procedural and lives in the Superior Court Rules. Superior Court Rule 9C requires counsel to confer in good faith before serving a Rule 12 motion and to attach a 9C certificate. Superior Court Rule 9A then imposes a packaging sequence: you serve the motion with a separate supporting memorandum, the opponent serves its opposition back on you rather than on the court, and you assemble and file the combined Rule 9A Package with the clerk. General civil cases are filed in the District Court or Boston Municipal Court or in the Superior Court depending on the amount in controversy. Miss the window and you risk a default. DocDraft drafts a Massachusetts-formatted motion from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    The Massachusetts vehicle is a motion to dismiss under Mass. R. Civ. P. 12(b), which tracks the federal Rule 12(b) scheme; 12(b)(6) is failure to state a claim upon which relief can be granted.

  2. 2

    Rule 12(b) lists ten enumerated defenses, not the federal seven. Massachusetts adds three: (8) misnomer of a party, (9) pendency of a prior action in a court of the Commonwealth, and (10) improper amount of damages, alongside subject-matter and personal jurisdiction, venue, process, service, failure to state a claim, and failure to join a party under Rule 19.

  3. 3

    The motion shares the responsive-pleading window. A pre-answer Rule 12(b) motion must be made before pleading if a further pleading is permitted, and the underlying response is due within 20 calendar days after service, under Mass. R. Civ. P. 12(a).

  4. 4

    Filing the motion stands in for your answer until the court rules. Mass. R. Civ. P. 12 governs when and how the defenses are presented; confirm the post-denial answer timing for your case against the current rule text and any court order.

  5. 5

    Under Superior Court Rule 9C, counsel must confer in good faith before serving a Rule 12 motion and make a real effort to narrow the disagreement, then attach a Rule 9C certificate stating the conference was held with its date, time, and participants, or that it was not held despite reasonable efforts.

  6. 6

    Failure to state a claim, Rule 12(b)(6), is the most common ground. It argues that even if everything in the complaint is true, the facts do not state a claim upon which relief can be granted.

  7. 7

    File in the trial court named on your summons. General civil cases go to the District Court or Boston Municipal Court or to the Superior Court depending on the amount in controversy; the Rule 9A and 9C procedures described here are Superior Court rules, and District Court and Boston Municipal Court follow their own motion rules.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

COMMONWEALTH OF MASSACHUSETTS

[COUNTY], ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. __________

[PLAINTIFF NAME], ) Plaintiff, ) ) v. ) DEFENDANT'S MOTION TO DISMISS ) UNDER MASS. R. CIV. P. 12(b) [DEFENDANT NAME], ) Defendant. ) ____________________________________)

DEFENDANT'S MOTION TO DISMISS

Pursuant to Mass. R. Civ. P. 12(b), Defendant [DEFENDANT NAME] moves to dismiss the Complaint 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 [ ] (8) Misnomer of a party [ ] (9) Pendency of a prior action in a court of the Commonwealth [ ] (10) Improper amount of damages

Defendant requests a hearing on this motion. [Strike if no hearing is requested.]

This motion is supported by the separate Memorandum of Reasons and Supporting Authorities served and filed with it pursuant to Superior Court Rule 9A.

MEMORANDUM OF REASONS AND SUPPORTING AUTHORITIES

I. INTRODUCTION [State the ground(s) relied on and the relief requested.]

II. STANDARD A motion under Mass. R. Civ. P. 12(b)(6) tests whether the Complaint states a claim upon which relief can be granted. [State the applicable standard with supporting authorities.]

III. ARGUMENT [Set out the reasons the motion should be granted, with supporting authorities, as required by Superior Court Rule 9A.]

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

Respectfully submitted, [DEFENDANT NAME], Defendant,

[Signature] [Name / BBO No., if represented] [Address] [Telephone] [Email] Dated: ______________

RULE 9C CERTIFICATE Counsel for the moving party certifies that the conference required by Superior Court Rule 9C was held on [DATE] at [TIME], with the following participants: [NAMES], and that the parties made a good faith effort to narrow the areas of disagreement. [Or: that the conference was not held despite reasonable efforts by the moving party to initiate it, as follows: [DESCRIBE EFFORTS].]

[Signature]

CERTIFICATE OF SERVICE I certify that on [DATE] I served a copy of this motion and the accompanying memorandum on [OPPOSING PARTY / COUNSEL] by [METHOD OF SERVICE] in accordance with the Massachusetts Rules of Civil Procedure and Superior Court Rule 9A.

[Signature]

Massachusetts Requirements for Motion to Dismiss

File before pleading, within the 20-day window

A pre-answer Rule 12(b) motion must be made before pleading if a further pleading is permitted. It shares the responsive-pleading window, which is 20 calendar days after service of the pleading requiring a response, under Mass. R. Civ. P. 12(a).

The motion stands in for your answer until the court rules

Filing a Rule 12(b) motion replaces the responsive pleading while it is pending. Mass. R. Civ. P. 12 governs when and how the defenses are presented; confirm the post-denial answer timing against the current rule text and any court order.

Select your Rule 12(b) ground or grounds

Mass. R. Civ. P. 12(b) enumerates ten defenses, including the three Massachusetts additions beyond the federal seven: misnomer of a party (8), pendency of a prior action in a court of the Commonwealth (9), and improper amount of damages (10).

Failure to state a claim under 12(b)(6)

The most common ground is failure to state a claim upon which relief can be granted, Mass. R. Civ. P. 12(b)(6). It argues that even taking the complaint as true, the facts do not state a claim for relief.

Serve a separate supporting memorandum under Rule 9A

Superior Court Rule 9A(a) requires the moving party to serve with the motion a separate memorandum stating the reasons and supporting authorities for the motion, plus any affidavits or exhibits evidencing the facts on which it is based. The motion contains a hearing request if one is desired.

Hold the Rule 9C conference and attach the certificate

Superior Court Rule 9C requires counsel to confer in advance of serving a Rule 12 motion and make a good faith effort to narrow disagreement. The motion must include a certificate stating the conference was held, with date, time, and participants, or that it was not held despite reasonable efforts.

Assemble and file the Rule 9A Package

Under Superior Court Rule 9A, the opponent serves its opposition back on the moving party, who then assembles the Rule 9A Package, the original motion papers, the opposition, and any reply, and files the combined package with the clerk. Re-confirm the exact package-filing day count against the current Superior Court Rule 9A before relying on a specific deadline; local sessions may set their own requirements.

File in the trial court named on your summons

General civil cases are filed in the District Court or Boston Municipal Court or in the Superior Court depending on the amount in controversy. The Rule 9A and 9C procedures are Superior Court rules; the District Court and Boston Municipal Court follow their own motion rules. Confirm the court and any local requirements before filing.

Frequently Asked Questions

File a motion to dismiss under Mass. R. Civ. P. 12(b) in the trial court named on your summons. In Superior Court you first confer with opposing counsel under Rule 9C, then serve the motion with a separate supporting memorandum under Rule 9A. The opponent serves its opposition back on you, and you assemble and file the combined Rule 9A Package with the clerk.

A pre-answer Rule 12(b) motion must be made before pleading if a further pleading is permitted. It shares the responsive-pleading window, which is 20 calendar days after service of the pleading requiring a response, under Mass. R. Civ. P. 12(a). Filing the motion stands in for your answer until the court rules.

Mass. R. Civ. P. 12(b) controls, and sequence governs which defenses survive. Lack of personal jurisdiction, improper venue, insufficiency of process, and insufficiency of service of process are waived unless raised in your first Rule 12 motion or the responsive pleading. Lack of subject-matter jurisdiction and failure to state a claim under 12(b)(6) remain preserved. Massachusetts adds three grounds beyond the federal seven: misnomer of a party, pendency of a prior action in a Commonwealth court, and improper amount of damages.

In Superior Court, yes. Rule 9C requires counsel to confer in advance of serving a Rule 12 motion and make a good faith effort to narrow areas of disagreement. The motion must include a certificate stating the conference was held, with its date, time, and the names of the participants, or that it was not held despite reasonable efforts by the moving party.

If the court denies the Rule 12(b) motion, the case continues and you must file your answer to the complaint. Mass. R. Civ. P. 12 governs how and when the defenses are presented. Confirm the exact post-denial answer timing for your case against the current rule text and any order entered by the court.

File in the trial court named on your summons. General civil cases go to the District Court or Boston Municipal Court or to the Superior Court depending on the amount in controversy. The Rule 9A packaging procedure and the Rule 9C conference described here are Superior Court rules; the District Court and Boston Municipal Court follow their own motion rules.