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Mississippi Motion to Dismiss

In Mississippi you move to dismiss under Miss. R. Civ. P. 12(b) within the 30-day answer window.

Introduction

In Mississippi the pre-answer vehicle for challenging a complaint is a motion to dismiss under Miss. R. Civ. P. 12(b), which tracks the federal numbering and menu of defenses. The most common ground, failure to state a claim upon which relief can be granted, is cited as 12(b)(6), and Mississippi also enumerates 12(b)(7), failure to join a party under Rule 19. The motion is made before the responsive pleading and shares the answer clock: under Rule 12(a) a defendant has 30 days after service of the summons and complaint, and filing a 12(b) motion tolls that window. If the court denies the motion or postpones its disposition until trial, the responsive pleading is then served within 10 days after notice of the court's action. The motion must be in writing, state the grounds with particularity, and set forth the relief sought under Rule 7(b)(1). And in circuit court, the statewide Uniform Civil Rules require a memorandum of authorities for a motion to dismiss, capped at 25 pages and mailed to the presiding judge, under UCRCCC Rule 4.02. Where you file turns on a law-versus-equity split: a civil suit at law sits in Circuit Court, while equity matters such as divorces and wills sit in Chancery Court. Missing the 30-day window risks a default. DocDraft drafts a Mississippi-formatted motion to dismiss from your facts, with attorney review available before you file.

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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.

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 ____________ COURT OF ____________ COUNTY, MISSISSIPPI [CIRCUIT / COUNTY / CHANCERY COURT, as appropriate to whether the suit is at law or in equity]

____________________________, Plaintiff,

  vs.                                   CIVIL ACTION NO. ____________________

____________________________, Defendant.

DEFENDANT'S MOTION TO DISMISS

COMES NOW Defendant, ____________________, and pursuant to Rule 12(b) of the Mississippi Rules of Civil Procedure, moves the Court to dismiss the Complaint, and in support states with particularity the following grounds (Miss. R. Civ. P. 7(b)(1)):

[SELECT AND PLEAD ALL APPLICABLE GROUNDS UNDER Miss. R. Civ. P. 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. ( ) (6) Failure to state a claim upon which relief can be granted. The Complaint fails to state a claim because ____________________________. ( ) (7) Failure to join a party under Rule 19.

This motion is made before the responsive pleading and tolls the time to answer. If the Court denies this motion or postpones its disposition until trial on the merits, Defendant will serve a responsive pleading within ten (10) days after notice of the Court's action (Miss. R. Civ. P. 12(a)).

WHEREFORE, Defendant respectfully requests that the Court grant this Motion to Dismiss and dismiss Plaintiff's Complaint, and grant such other relief as the Court deems just.

MEMORANDUM OF AUTHORITIES IN SUPPORT OF MOTION TO DISMISS [In circuit court, a memorandum of authorities in support of a motion to dismiss must be mailed to the judge presiding over the action at the time the motion is filed, and must not exceed 25 pages (UCRCCC Rule 4.02). State the standard for the ground raised, cite the relevant facts, and apply the controlling law. For a Rule 12(b)(6) motion, note that 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. Confirm your trial court's local rules, which may set additional briefing or conference requirements.]

Respectfully submitted,

[Name] [Address] [Telephone] [Counsel for Defendant, if represented / Defendant, pro se]

Date: ________________

CERTIFICATE OF SERVICE

I certify that on the ____ day of _________, 20, I served a copy of the foregoing Motion to Dismiss and supporting Memorandum of Authorities upon all counsel and parties of record in the manner provided by the Mississippi Rules of Civil Procedure.

[Name]

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.

Frequently Asked Questions

File a written motion to dismiss under Miss. R. Civ. P. 12(b) before your answer. Under Rule 7(b)(1) the motion must state the grounds with particularity and set forth the relief sought. In circuit court, a memorandum of authorities supporting the motion must be mailed to the presiding judge when the motion is filed under UCRCCC Rule 4.02, and it cannot exceed 25 pages. Caption it for the Circuit, County, or Chancery Court where the suit is pending.

A Rule 12(b) motion is made before the responsive pleading, so it shares the answer window. Under Miss. R. Civ. P. 12(a) a defendant has 30 days after service of the summons and complaint. Filing the 12(b) motion tolls that 30-day clock. If the motion is denied or its disposition is postponed until trial, the answer is then served within 10 days after notice of the court's action.

Miss. R. Civ. P. 12(b) controls, and order of assertion is what protects each defense. Lack of personal jurisdiction, improper venue, insufficiency of process, and insufficiency of service of process are waived if not 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) stay preserved for later. Mississippi's menu tracks the federal seven, ending at 12(b)(7), failure to join a party under Rule 19.

No statewide rule requires a meet-and-confer 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. Local rules of an individual judicial district may add a pre-motion conference requirement, so confirm the local rules of the trial court where your case is pending before you file.

If the court denies the motion to dismiss or postpones its disposition until trial on the merits, the case proceeds and the responsive pleading must be served within 10 days after notice of the court's action under Miss. R. Civ. P. 12(a). Filing the 12(b) motion had tolled the 30-day answer window, which does not run again until the court rules.

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 Circuit, County, and Chancery Court.