Mississippi Motion to Dismiss

Introduction

Key Things to Know

1. 1

   Mississippi's pre-answer challenge to a complaint is a motion to dismiss under Miss. R. Civ. P. 12(b), which tracks the federal 12(b) numbering and menu of defenses. The failure-to-state-a-claim ground is cited as 12(b)(6).

2. 2

   Rule 12(b) lists seven enumerated grounds matching the federal rule: (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 12(b)(7) failure-to-join ground is a distinct Mississippi enumeration.

3. 3

   The motion shares the answer window. Under Miss. R. Civ. P. 12(a) a defendant serves an answer within 30 days after service of the summons and complaint, and a Rule 12 motion is made before the responsive pleading, so filing it tolls the 30-day answer clock.

4. 4

   If the court denies the motion or postpones its disposition until trial on the merits, the responsive pleading must be served within 10 days after notice of the court's action under Miss. R. Civ. P. 12(a). The answer clock does not run again until the court rules.

5. 5

   There is no statewide meet-and-confer requirement to file a Rule 12(b) motion to dismiss. The Uniform Civil Rules impose a good-faith-confer certificate only on motions to compel discovery, not on dismissal motions. Local rules of an individual judicial district may add a pre-motion conference, so confirm the local rules of your trial court before filing.

6. 6

   The most common ground, failure to state a claim upon which relief can be granted, is Rule 12(b)(6) and tracks federal 12(b)(6). When matters outside the pleading are presented and not excluded on a 12(b)(6) motion, the motion is treated as one for summary judgment under Rule 56.

7. 7

   Where you file turns on a law-versus-equity split. Mississippi has two general-jurisdiction trial courts: Circuit Court (a court of law, with County Court handling civil matters up to $200,000 where one exists) and Chancery Court (a court of equity hearing divorces, wills, guardianships, and land matters). The same 12(b) motion is captioned for whichever court the suit was filed in, and the Mississippi Rules of Civil Procedure govern in all three.

Mississippi Requirements for Motion to Dismiss

• The motion shares the 30-day answer window and tolls it

  A Rule 12 motion is made before the responsive pleading. Under Miss. R. Civ. P. 12(a) a defendant serves an answer within 30 days after service of the summons and complaint, and filing a 12(b) motion tolls that 30-day answer window so the motion stands in place of the answer until the court rules.

• If denied, the answer is due 10 days after notice

  Under Miss. R. Civ. P. 12(a), if the court denies the motion to dismiss or postpones its disposition until trial on the merits, the responsive pleading must be served within 10 days after notice of the court's action. The answer clock does not run again until the court rules on the motion.

• Use a motion to dismiss under Rule 12(b)

  Mississippi's pre-answer challenge to a complaint is a motion to dismiss under Miss. R. Civ. P. 12(b), which tracks the federal 12(b) numbering and menu of defenses. There is no demurrer; the failure-to-state-a-claim ground is cited as 12(b)(6).

• Select grounds from the seven listed in Rule 12(b)

  Miss. R. Civ. P. 12(b) lists seven grounds matching the federal rule: (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.

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

  The most common ground, failure to state a claim upon which relief can be granted, is Rule 12(b)(6) and tracks federal 12(b)(6). If matters outside the pleading are presented on a 12(b)(6) motion and not excluded by the court, the motion is treated as one for summary judgment under Rule 56.

• Put the motion in writing and state grounds with particularity

  Under Miss. R. Civ. P. 7(b)(1) the motion must be in writing, state with particularity the grounds for the motion, and set forth the relief or order sought. List each Rule 12(b) ground relied on rather than relying on a general request to dismiss.

• File a memorandum of authorities in circuit court, capped at 25 pages

  Under UCRCCC Rule 4.02, in circuit court a memorandum of authorities in support of a motion to dismiss must be mailed to the judge presiding over the action when the motion is filed, and memoranda or briefs must not exceed 25 pages. The respondent replies within 10 days after service of the movant's memorandum, and a rebuttal memorandum may be served within 5 days of the reply. Local rules of your judicial district may add requirements; confirm them before filing.

• File in the correct court under the law-versus-equity split

  File in the trial court where the suit is pending. Mississippi splits general jurisdiction by law and equity: a civil suit at law sits in Circuit Court, or County Court for matters up to $200,000 where one exists, while equity matters such as divorces, wills, and guardianships sit in Chancery Court. The Mississippi Rules of Civil Procedure govern in all three. No statewide rule requires a proposed order with a 12(b) motion; check your district's local rules. Serve all parties of record.